S T A T E O F N E W Y O R K
________________________________________________________________________
5864--A
2019-2020 Regular Sessions
I N S E N A T E
May 15, 2019
___________
Introduced by Sens. JACKSON, RAMOS, BAILEY, BENJAMIN, BIAGGI, GOUNARDES,
KAPLAN, KENNEDY, MAY, MYRIE, PERSAUD, SALAZAR, SANDERS, SEPULVEDA --
read twice and ordered printed, and when printed to be committed to
the Committee on Investigations and Government Operations -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the tax law, in relation to a television writers' and
directors' fees and salaries credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The tax law is amended by adding a new section 24-b to read
as follows:
§ 24-B. TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES CREDIT.
(A)(1) A TAXPAYER WHICH IS A QUALIFIED FILM PRODUCTION COMPANY, OR A
QUALIFIED INDEPENDENT FILM PRODUCTION COMPANY, OR WHICH IS A SOLE
PROPRIETOR OF OR A MEMBER OF A PARTNERSHIP WHICH IS A QUALIFIED FILM
PRODUCTION COMPANY OR A QUALIFIED INDEPENDENT FILM PRODUCTION COMPANY,
AND WHICH IS SUBJECT TO TAX UNDER ARTICLES NINE-A OR TWENTY-TWO OF THIS
CHAPTER, SHALL BE ALLOWED A CREDIT AGAINST SUCH TAX, PURSUANT TO THE
PROVISIONS REFERENCED IN SUBDIVISION (C) OF THIS SECTION, TO BE COMPUTED
AS HEREINAFTER PROVIDED.
(2) THE AMOUNT OF THE CREDIT SHALL BE THE PRODUCT (OR PRO RATA SHARE
OF THE PRODUCT, IN THE CASE OF A MEMBER OF A PARTNERSHIP) OF THIRTY
PERCENT AND THE QUALIFIED TELEVISION WRITERS' AND DIRECTORS' FEES AND
SALARIES COSTS PAID OR INCURRED IN THE PRODUCTION OF A QUALIFIED FILM,
PROVIDED THAT: (I) THE CREDIT AMOUNT SHALL NOT EXCEED FIFTY THOUSAND
DOLLARS FOR QUALIFIED TELEVISION WRITERS' AND DIRECTORS' FEES AND SALA-
RIES CLAIMED FOR SUCH EXPENSES INCURRED FOR THE EMPLOYMENT OF ANY ONE
SPECIFIC WRITER OR DIRECTOR FOR THE PRODUCTION OF A SINGLE TELEVISION
PILOT OR A SINGLE EPISODE OF A TELEVISION SERIES, AND (II) THE CREDIT
AMOUNT SHALL NOT EXCEED ONE HUNDRED FIFTY THOUSAND DOLLARS FOR QUALIFIED
TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES CLAIMED FOR SUCH
EXPENSES INCURRED FOR THE EMPLOYMENT OF ANY ONE SPECIFIC WRITER OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10593-04-9
S. 5864--A 2
DIRECTOR. THE CREDIT SHALL BE ALLOWED FOR THE TAXABLE YEAR IN WHICH THE
PRODUCTION OF SUCH QUALIFIED FILM IS COMPLETED.
(3) NO QUALIFIED TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES
USED BY A TAXPAYER EITHER AS THE BASIS FOR THE ALLOWANCE OF THE CREDIT
PROVIDED FOR PURSUANT TO THIS SECTION OR USED IN THE CALCULATION OF THE
CREDIT PROVIDED PURSUANT TO THIS SECTION SHALL BE USED BY SUCH TAXPAYER
TO CLAIM ANY OTHER CREDIT ALLOWED PURSUANT TO THIS CHAPTER.
(B) DEFINITIONS. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
(1) "QUALIFIED FILM PRODUCTION COMPANY" IS A CORPORATION, PARTNERSHIP,
LIMITED PARTNERSHIP, OR OTHER ENTITY OR INDIVIDUAL WHICH OR WHO IS PRIN-
CIPALLY ENGAGED IN THE PRODUCTION OF A QUALIFIED FILM AND CONTROLS THE
QUALIFIED FILM DURING PRODUCTION.
(2) "QUALIFIED INDEPENDENT FILM PRODUCTION COMPANY" IS A CORPORATION,
PARTNERSHIP, LIMITED PARTNERSHIP, OR OTHER ENTITY OR INDIVIDUAL, THAT OR
WHO (I) IS PRINCIPALLY ENGAGED IN THE PRODUCTION OF A QUALIFIED FILM
WITH A MAXIMUM BUDGET OF FIFTEEN MILLION DOLLARS, (II) CONTROLS THE
QUALIFIED FILM DURING PRODUCTION, AND (III) EITHER IS NOT A PUBLICLY
TRADED ENTITY, OR NO MORE THAN FIVE PERCENT OF THE BENEFICIAL OWNERSHIP
OF WHICH IS OWNED, DIRECTLY OR INDIRECTLY, BY A PUBLICLY TRADED ENTITY.
(3) "QUALIFIED FILM" MEANS A TELEVISION FILM, TELEVISION PILOT AND/OR
EACH EPISODE OF A TELEVISION SERIES, REGARDLESS OF THE MEDIUM BY MEANS
OF WHICH THE FILM, PILOT OR EPISODE IS CREATED OR CONVEYED.
(4) "QUALIFIED TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES"
MEANS: (I) SALARIES OR FEES PAID TO A WRITER OR DIRECTOR WHO RECEIVES AN
ON-AIR CREDIT; (II) FOR A NON-CREDITED WRITER, UP TO SEVENTY-FIVE THOU-
SAND DOLLARS IN SALARIES OR FEES PER SERIES OF EPISODES. PROVIDED THAT
IN EACH CASE, SUCH WRITER OR DIRECTOR IS A MINORITY GROUP MEMBER, AS
DEFINED IN SUBDIVISION EIGHT OF SECTION THREE HUNDRED TEN OF THE EXECU-
TIVE LAW, OR A WOMAN, AND PROVIDED, FURTHER, THAT SALARIES OR FEES PAID
TO ANY WRITER OR DIRECTOR WHO IS A PROFIT PARTICIPANT IN THE QUALIFIED
FILM SHALL NOT BE ELIGIBLE.
(5) "WRITER" MEANS A PERSON WHO IS: (I) ENGAGED BY A QUALIFIED FILM
PRODUCTION COMPANY OR A QUALIFIED INDEPENDENT FILM PRODUCTION COMPANY TO
WRITE LITERARY MATERIAL (INCLUDING MAKING CHANGES OR REVISIONS IN LITER-
ARY MATERIAL), WHEN THE COMPANY HAS THE RIGHT BY CONTRACT TO DIRECT THE
PERFORMANCE OF PERSONAL SERVICES IN WRITING OR PREPARING SUCH MATERIAL
OR IN MAKING REVISIONS, MODIFICATIONS OR CHANGES THEREIN; OR (II)
ENGAGED BY THE COMPANY AND WHO PERFORMS SERVICES (AT THE COMPANY'S
DIRECTION OR WITH ITS CONSENT) IN WRITING OR PREPARING SUCH LITERARY
MATERIAL OR MAKING REVISIONS, MODIFICATIONS, OR CHANGES IN SUCH MATERI-
AL; AND (III) WHO REPORTS TO WORK REGULARLY IN A WRITERS ROOM LOCATED IN
THE STATE.
(6) "LITERARY MATERIAL" SHALL BE DEEMED TO INCLUDE STORIES, ADAPTA-
TIONS, TREATMENTS, ORIGINAL TREATMENTS, SCENARIOS, CONTINUITIES, TELE-
PLAYS, SCREENPLAYS, DIALOGUE, SCRIPTS, SKETCHES, PLOTS, OUTLINES, NARRA-
TIVE SYNOPSES, ROUTINES, NARRATIONS, AND FORMATS.
(7) "WRITERS ROOM" MEANS A ROOM OR PHYSICAL LOCATION WHERE WRITERS
EMPLOYED BY A QUALIFIED FILM PRODUCTION COMPANY OR QUALIFIED INDEPENDENT
FILM PRODUCTION COMPANY WRITE OR REVISE LITERARY MATERIALS UTILIZED IN A
QUALIFIED FILM.
(8) "DIRECTOR" MEANS AN INDIVIDUAL EMPLOYED OR RETAINED TO DIRECT THE
PRODUCTION, AS THE WORD "DIRECT" IS COMMONLY USED IN THE MOTION PICTURE
INDUSTRY, AND WHO WOULD BE CLASSIFIED AS A DIRECTOR UNDER THE BASIC
AGREEMENT IN PLACE BETWEEN THE ASSOCIATION OF MOTION PICTURE AND TELE-
S. 5864--A 3
VISION PRODUCERS AND THE DIRECTOR'S GUILD OF AMERICA AND WHO IS A RESI-
DENT OF NEW YORK.
(9) "PROFIT PARTICIPANT" IS AN INDIVIDUAL WHO HAS NEGOTIATED FOR A
PERCENTAGE OF PROFITS GENERATED BY A QUALIFIED FILM. PROFIT PARTIC-
IPATION DOES NOT INCLUDE MONIES CONTRACTUALLY REQUIRED BY COLLECTIVELY
BARGAINED AGREEMENTS FOR REUSE OF A QUALIFIED FILM ON DIFFERENT PLAT-
FORMS OVER TIME.
(C) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
(1) ARTICLE 9-A: SECTION 210-B: SUBDIVISION 54.
(2) ARTICLE 22: SECTION 606: SUBSECTION (V).
(D) NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER, (1) EMPLOYEES AND
OFFICERS OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND THE DEPARTMENT
SHALL BE ALLOWED AND ARE DIRECTED TO SHARE AND EXCHANGE INFORMATION
REGARDING THE CREDITS APPLIED FOR, ALLOWED, OR CLAIMED PURSUANT TO THIS
SECTION AND TAXPAYERS WHO ARE APPLYING FOR CREDITS OR WHO ARE CLAIMING
CREDITS, INCLUDING INFORMATION CONTAINED IN OR DERIVED FROM CREDIT CLAIM
FORMS SUBMITTED TO THE DEPARTMENT AND APPLICATIONS FOR CERTIFICATION
SUBMITTED TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT, AND (2) THE COMMIS-
SIONER AND THE COMMISSIONER OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT
MAY RELEASE THE NAMES AND ADDRESSES OF ANY TAXPAYER CLAIMING THIS CREDIT
AND THE AMOUNT OF THE CREDIT EARNED BY THE TAXPAYER. PROVIDED, HOWEVER,
IF A TAXPAYER CLAIMS THIS CREDIT BECAUSE IT IS A MEMBER OF A LIMITED
LIABILITY COMPANY OR A PARTNER IN A PARTNERSHIP, ONLY THE AMOUNT OF
CREDIT EARNED BY THE ENTITY AND NOT THE AMOUNT OF CREDIT CLAIMED BY THE
TAXPAYER MAY BE RELEASED.
(E) MAXIMUM AMOUNT OF CREDITS. (1) THE AGGREGATE AMOUNT OF TAX CREDITS
ALLOWED UNDER THIS SECTION, SUBDIVISION FIFTY-FOUR OF SECTION TWO
HUNDRED TEN-B AND SUBSECTION (V) OF SECTION SIX HUNDRED SIX OF THIS
CHAPTER IN ANY CALENDAR YEAR SHALL BE FIVE MILLION DOLLARS. SUCH AGGRE-
GATE AMOUNT OF CREDITS SHALL BE ALLOCATED BY THE DEPARTMENT OF ECONOMIC
DEVELOPMENT AMONG TAXPAYERS IN ORDER OF PRIORITY BASED UPON THE DATE OF
FILING AN APPLICATION FOR ALLOCATION OF TELEVISION WRITERS' AND DIREC-
TORS' FEES AND SALARIES CREDIT WITH SUCH DEPARTMENT. IF THE TOTAL AMOUNT
OF ALLOCATED CREDITS APPLIED FOR IN ANY PARTICULAR YEAR EXCEEDS THE
AGGREGATE AMOUNT OF TAX CREDITS ALLOWED FOR SUCH YEAR UNDER THIS
SECTION, SUCH EXCESS SHALL BE TREATED AS HAVING BEEN APPLIED FOR ON THE
FIRST DAY OF THE SUBSEQUENT YEAR.
(2) THE COMMISSIONER OF ECONOMIC DEVELOPMENT, AFTER CONSULTING WITH
THE COMMISSIONER, SHALL PROMULGATE REGULATIONS BY OCTOBER THIRTY-FIRST,
TWO THOUSAND NINETEEN TO ESTABLISH PROCEDURES FOR THE ALLOCATION OF TAX
CREDITS AS REQUIRED BY SUBDIVISION (A) OF THIS SECTION. SUCH RULES AND
REGULATIONS SHALL INCLUDE PROVISIONS DESCRIBING THE APPLICATION PROCESS,
THE DUE DATES FOR SUCH APPLICATIONS, THE STANDARDS WHICH SHALL BE USED
TO EVALUATE THE APPLICATIONS, THE DOCUMENTATION THAT WILL BE PROVIDED TO
TAXPAYERS TO SUBSTANTIATE TO THE DEPARTMENT THE AMOUNT OF TAX CREDITS
ALLOCATED TO SUCH TAXPAYERS, AND SUCH OTHER PROVISIONS AS DEEMED NECES-
SARY AND APPROPRIATE. NOTWITHSTANDING ANY OTHER PROVISIONS TO THE
CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE ACT, SUCH RULES AND REGU-
LATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS IF NECESSARY TO MEET SUCH
OCTOBER THIRTY-FIRST, TWO THOUSAND NINETEEN DEADLINE.
(F) THE DEPARTMENT OF ECONOMIC DEVELOPMENT SHALL SUBMIT TO THE GOVER-
NOR, THE TEMPORARY PRESIDENT OF THE SENATE, AND THE SPEAKER OF THE
ASSEMBLY, AN ANNUAL REPORT TO BE SUBMITTED ON FEBRUARY FIRST OF EACH
YEAR EVALUATING THE EFFECTIVENESS OF THE TELEVISION WRITERS' AND DIREC-
TORS' FEES AND SALARIES TAX CREDIT PROVIDED BY THIS SECTION IN STIMULAT-
S. 5864--A 4
ING THE GROWTH OF DIVERSITY IN THE FILM INDUSTRY IN THE STATE. SUCH
REPORT SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, THE NUMBER OF QUALI-
FIED FILM PRODUCTION COMPANIES AND/OR QUALIFIED INDEPENDENT FILM
PRODUCTION COMPANIES WHICH RECEIVED A TELEVISION WRITERS' AND DIRECTORS'
FEES AND SALARIES CREDIT, THE CREDIT AMOUNTS CLAIMED BY EACH QUALIFIED
FILM PRODUCTION COMPANY AND/OR QUALIFIED INDEPENDENT FILM PRODUCTION
COMPANY, AS WELL AS THE IMPACT ON EMPLOYMENT AND THE ECONOMY OF THE
STATE. SUCH REPORT SHALL BE BASED ON DATA AVAILABLE FROM THE APPLICATION
FILED WITH THE DEPARTMENT OF ECONOMIC DEVELOPMENT FOR ALLOCATION OF
TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES CREDITS. NOTWITH-
STANDING ANY PROVISION OF LAW TO THE CONTRARY, THE INFORMATION CONTAINED
IN THE REPORT SHALL BE PUBLIC INFORMATION. THE REPORT MAY ALSO INCLUDE
ANY RECOMMENDATIONS OF CHANGES IN THE CALCULATION OR ADMINISTRATION OF
THE CREDIT, AND ANY OTHER RECOMMENDATION OF THE COMMISSIONER OF THE
DEPARTMENT OF ECONOMIC DEVELOPMENT REGARDING CONTINUING MODIFICATION,
REPEAL OF SUCH ACT, AND SUCH OTHER INFORMATION REGARDING THE ACT AS THE
COMMISSIONER OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT MAY FEEL USEFUL
AND APPROPRIATE.
§ 2. Section 210-B of the tax law is amended by adding a new subdivi-
sion 54 to read as follows:
54. TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES CREDIT. (A)
ALLOWANCE OF CREDIT. A TAXPAYER WHO IS ELIGIBLE PURSUANT TO SECTION
TWENTY-FOUR-B OF THIS CHAPTER SHALL BE ALLOWED A CREDIT TO BE COMPUTED
AS PROVIDED IN SUCH SECTION AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE AMOUNT PRESCRIBED IN PARAGRAPH (D) OF SUBDIVISION ONE OF
SECTION TWO HUNDRED TEN OF THIS ARTICLE. PROVIDED, HOWEVER, THAT IF THE
AMOUNT OF THE CREDIT ALLOWABLE UNDER THIS SUBDIVISION FOR ANY TAXABLE
YEAR REDUCES THE TAX TO SUCH AMOUNT OR IF THE TAXPAYER OTHERWISE PAYS
TAX BASED ON THE FIXED DOLLAR MINIMUM AMOUNT, THE EXCESS SHALL BE TREAT-
ED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF THIS CHAPTER.
PROVIDED, FURTHER, THE PROVISIONS OF SUBSECTION (C) OF SECTION ONE THOU-
SAND EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE
PAID THEREON.
§ 3. Section 606 of the tax law is amended by adding a new subsection
(v) to read as follows:
(V) TELEVISION WRITERS' AND DIRECTORS' FEES AND SALARIES CREDIT. (1)
ALLOWANCE OF CREDIT. A TAXPAYER WHO IS ELIGIBLE PURSUANT TO SECTION
TWENTY-FOUR-B OF THIS CHAPTER SHALL BE ALLOWED A CREDIT TO BE COMPUTED
AS PROVIDED IN SUCH SECTION AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWABLE UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH
YEAR, THE EXCESS SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDIT-
ED OR REFUNDED AS PROVIDED IN SECTION SIX HUNDRED EIGHTY-SIX OF THIS
ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE PAID THEREON.
§ 4. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law is amended by adding a new clause (xlv) to read as
follows:
(XLV) TELEVISION WRITERS' AMOUNT OF CREDIT FOR THE SUM OF
AND DIRECTORS' FEES AND SALARIES QUALIFIED TELEVISION WRITERS' AND
CREDIT UNDER SUBSECTION (V) DIRECTORS' SALARIES CREDIT
UNDER SUBDIVISION FIFTY-FOUR OF
SECTION TWO HUNDRED TEN-B
S. 5864--A 5
§ 5. Paragraph 4 of subdivision (e) of section 24 of the tax law, as
amended by section 2 of part SSS of chapter 59 of the laws of 2019, is
amended to read as follows:
(4) Additional pool 2 - The aggregate amount of tax credits allowed in
subdivision (a) of this section shall be increased by an additional four
hundred twenty million dollars in each year starting in two thousand ten
through two thousand twenty-four provided however, seven million dollars
of the annual allocation shall be available for the empire state film
post production credit pursuant to section thirty-one of this article in
two thousand thirteen and two thousand fourteen [and], twenty-five
million dollars of the annual allocation shall be available for the
empire state film post production credit pursuant to section thirty-one
of this article in each year starting in two thousand fifteen through
two thousand twenty-four AND FIVE MILLION DOLLARS OF THE ANNUAL ALLO-
CATION SHALL BE MADE AVAILABLE FOR THE TELEVISION WRITERS' AND DIREC-
TORS' FEES AND SALARIES CREDIT PURSUANT TO SECTION TWENTY-FOUR-B OF THIS
ARTICLE IN EACH YEAR STARTING IN TWO THOUSAND TWENTY THROUGH TWO THOU-
SAND TWENTY-FOUR. This amount shall be allocated by the governor's
office for motion picture and television development among taxpayers in
accordance with subdivision (a) of this section. If the commissioner of
economic development determines that the aggregate amount of tax credits
available from additional pool 2 for the empire state film production
tax credit have been previously allocated, and determines that the pend-
ing applications from eligible applicants for the empire state film post
production tax credit pursuant to section thirty-one of this article is
insufficient to utilize the balance of unallocated empire state film
post production tax credits from such pool, the remainder, after such
pending applications are considered, shall be made available for allo-
cation in the empire state film tax credit pursuant to this section,
subdivision twenty of section two hundred ten-B and subsection (gg) of
section six hundred six of this chapter. Also, if the commissioner of
economic development determines that the aggregate amount of tax credits
available from additional pool 2 for the empire state film post
production tax credit have been previously allocated, and determines
that the pending applications from eligible applicants for the empire
state film production tax credit pursuant to this section is insuffi-
cient to utilize the balance of unallocated film production tax credits
from such pool, then all or part of the remainder, after such pending
applications are considered, shall be made available for allocation for
the empire state film post production credit pursuant to this section,
subdivision thirty-two of section two hundred ten-B and subsection (qq)
of section six hundred six of this chapter. The governor's office for
motion picture and television development must notify taxpayers of their
allocation year and include the allocation year on the certificate of
tax credit. Taxpayers eligible to claim a credit must report the allo-
cation year directly on their empire state film production credit tax
form for each year a credit is claimed and include a copy of the certif-
icate with their tax return. In the case of a qualified film that
receives funds from additional pool 2, no empire state film production
credit shall be claimed before the later of the taxable year the
production of the qualified film is complete, or the taxable year imme-
diately following the allocation year for which the film has been allo-
cated credit by the governor's office for motion picture and television
development.
§ 6. This act shall take effect immediately, and shall apply to taxa-
ble years beginning on or after January 1, 2020.
