S T A T E O F N E W Y O R K
________________________________________________________________________
9467
I N S E N A T E
May 31, 2022
___________
Introduced by Sen. COONEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Commerce, Economic Devel-
opment and Small Business
AN ACT to amend the economic development law, in relation to allowing
for eligibility of Green CHIPS projects in the Excelsior tax credit
program
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 16 of section 352 of the economic development
law, as amended by section 1 of part K of chapter 59 of the laws of
2017, is amended and two new subdivisions 3-a and 24 are added to read
as follows:
3-A. "GREEN CHIPS BENEFIT-COST RATIO" MEANS THE FOLLOWING CALCULATION
WITH RESPECT TO GREEN CHIPS PROJECTS: THE RATIO WHERE THE NUMERATOR IS
THE SUM OF: (A) THE VALUE OF ALL REMUNERATION PROJECTED TO BE PAID FOR
ALL NET NEW JOBS DURING THE PERIOD OF PARTICIPATION IN THE PROGRAM; (B)
THE VALUE OF CAPITAL INVESTMENTS TO BE MADE BY THE BUSINESS ENTERPRISE
DURING THE PERIOD OF PARTICIPATION IN THE PROGRAM; AND (C) ALL RESEARCH
AND DEVELOPMENT EXPENDITURES BY THE PARTICIPANT IN NEW YORK STATE DURING
THE PERIOD OF PARTICIPATION IN THE PROGRAM; AND THE DENOMINATOR IS THE
AMOUNT OF TOTAL TAX BENEFITS UNDER THIS ARTICLE THAT WILL BE USED AND
REFUNDED AS WELL AS ANY STATE GRANTS PROVIDED TO THE PARTICIPANT.
16. "Preliminary schedule of benefits" means the maximum aggregate
amount of each component of the tax credit that a participant in the
excelsior jobs program is eligible to receive pursuant to this article.
The schedule shall indicate the annual amount of each component of the
credit a participant may claim in each of its ten years of eligibility.
The preliminary schedule of benefits shall be issued by the department
when the department approves the application for admission into the
program. The commissioner may amend that schedule, provided that the
commissioner complies with the credit caps in section three hundred
fifty-nine of this article AS APPLICABLE.
24. "GREEN CHIPS PROJECT" MEANS A PROJECT MEETING ALL OF THE FOLLOWING
CRITERIA: (A) IS WITHIN THE SEMICONDUCTOR MANUFACTURING AND RELATED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16022-01-2
S. 9467 2
EQUIPMENT AND MATERIAL SUPPLIER SECTOR; (B) INCLUDES SUSTAINABILITY
MEASURES TO MITIGATE THE PROJECT'S GREENHOUSE GAS EMISSIONS IMPACT OVER
ITS LIFETIME; (C) PROVIDES FOR THE PAYMENT OF NOT LESS THAN FEDERAL
PREVAILING WAGE RATES FOR ITS PROJECT CONSTRUCTION; (D) MAKES COMMIT-
MENTS TO WORKER AND COMMUNITY INVESTMENT, INCLUDING THROUGH TRAINING AND
EDUCATION BENEFITS PAID BY THE PARTICIPANT AND PROGRAMS TO EXPAND
EMPLOYMENT OPPORTUNITY FOR ECONOMICALLY DISADVANTAGED INDIVIDUALS; (E)
WILL CREATE AT LEAST FIVE HUNDRED NET NEW JOBS AND MAKE AT LEAST THREE
BILLION DOLLARS IN QUALIFIED INVESTMENT; AND (F) THE PARTICIPANT UNDER-
TAKING A GREEN CHIPS PROJECT SHALL MAINTAIN A GREEN CHIPS BENEFIT-COST
RATIO OF AT LEAST FIFTEEN TO ONE. SUCH PROJECTS ARE ELIGIBLE TO ENTER
INTO A PHASE ONE OF A GREEN CHIPS PROJECT TEN-YEAR BENEFIT TERM. SUCH
PROJECTS, PROVIDED THEY ARE IN GOOD STANDING WITH ALL REQUIREMENTS OF
THIS CHAPTER, ARE ALSO ELIGIBLE TO ENTER INTO A PHASE TWO OF A GREEN
CHIPS PROJECT, AND THEREFORE TO INITIATE A NEW AND SEPARATE TEN-YEAR
SCHEDULE RELATED TO PHASE TWO, PROVIDED THAT PHASE TWO WILL CREATE AT
LEAST FIVE HUNDRED NET NEW JOBS BEYOND THOSE CREATED IN PHASE ONE, AND
THAT PHASE TWO WILL MAKE AT LEAST THREE BILLION DOLLARS IN QUALIFIED
INVESTMENT BEYOND THE INVESTMENT TOTAL ASSOCIATED WITH PHASE ONE. FOR
GREEN CHIPS PROJECTS, PHASE ONE AND PHASE TWO TERMS MAY OVERLAP, DEPEND-
ING ON THE TIME OF INITIATION FOR BOTH PROJECTS. IN NO EVENT SHALL CRED-
ITS BE AWARDED FOR A GREEN CHIPS PROJECT BEYOND TWO THOUSAND FIFTY.
§ 2. Subdivisions 1 and 3 of section 353 of the economic development
law, subdivision 1 as amended by section 2 of part L of chapter 59 of
the laws of 2020, paragraphs (k) and (l) of subdivision 1 as amended and
paragraph (m) as added by section 2 of part D of chapter 59 of the laws
of 2021, and subdivision 3 as separately amended by section 2 of part K
and section 2 of part ZZ of chapter 59 of the laws of 2017, are amended
and a new subdivision 7 is added to read as follows:
1. To be a participant in the excelsior jobs program, a business enti-
ty shall operate in New York state predominantly:
(a) as a financial services data center or a financial services back
office operation;
(b) in manufacturing;
(c) in software development and new media;
(d) in scientific research and development;
(e) in agriculture;
(f) in the creation or expansion of back office operations in the
state;
(g) in a distribution center;
(h) in an industry with significant potential for private-sector
economic growth and development in this state as established by the
commissioner in regulations promulgated pursuant to this article. In
promulgating such regulations the commissioner shall include job and
investment criteria;
(i) as an entertainment company;
(j) in music production;
(k) as a life sciences company;
(l) as a company operating in one of the industries listed in para-
graphs (b) through (e) of this subdivision and engaging in a green
project as defined in section three hundred fifty-two of this article;
[or]
(m) as a participant operating in one of the industries listed in
paragraphs (a) through (k) of this subdivision and operating or sponsor-
ing child care services to its employees as defined in section three
hundred fifty-two of this article; OR
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(N) AS A GREEN CHIPS PROJECT.
3. For the purposes of this article, in order to participate in the
excelsior jobs program, a business entity operating predominantly in
manufacturing must create at least five net new jobs; a business entity
operating predominately in agriculture must create at least five net new
jobs; a business entity operating predominantly as a financial service
data center or financial services customer back office operation must
create at least twenty-five net new jobs; a business entity operating
predominantly in scientific research and development must create at
least five net new jobs; a business entity operating predominantly in
software development must create at least five net new jobs; a business
entity creating or expanding back office operations must create at least
twenty-five net new jobs; a business entity operating predominately in
music production must create at least five net new jobs; a business
entity operating predominantly as an entertainment company must create
or obtain at least one hundred net new jobs; or a business entity oper-
ating predominantly as a distribution center in the state must create at
least fifty net new jobs, notwithstanding subdivision five of this
section; or a business entity operating predominately as a life sciences
company must create at least five net new jobs; or a business entity
must be a regionally significant project OR GREEN CHIPS PROJECT as
defined in this article; or
7. NOTWITHSTANDING SUBDIVISION SIXTEEN OF SECTION THREE HUNDRED
FIFTY-TWO OF THIS ARTICLE, THE DEPARTMENT IS HEREBY AUTHORIZED TO ALLOW
PHASE TWO OF A GREEN CHIPS PROJECT TO ENTER INTO A NEW AND SEPARATE
SCHEDULE OF BENEFITS WHICH MAY OVERLAP WITH THE PHASE ONE OF A GREEN
CHIPS PROJECT SCHEDULE OF BENEFITS, FOR A NEW TEN-YEAR BENEFIT TERM.
NOTWITHSTANDING PARAGRAPH THREE OF SUBDIVISION A OF SECTION THREE
HUNDRED FIFTY-FOUR OF THIS ARTICLE, SUCH PHASE TWO OF A GREEN CHIPS
PROJECT SHALL BE ADMITTED INTO THE PROGRAM. PROVIDED HOWEVER, FOR SUCH
PHASE TWO OF A GREEN CHIPS PROJECT, THE NEW BENEFIT TERM SHALL EXCLU-
SIVELY BE PROVIDED FOR NET NEW INVESTMENTS, NEW RESEARCH AND DEVELOPMENT
EXPENDITURES, AND NET NEW JOB CREATION ABOVE THE COMMITMENTS OUTLINED IN
THE SCHEDULE OF BENEFITS FOR A BUSINESS' PHASE ONE OF A GREEN CHIPS
PROJECT WITH THE DEPARTMENT. ASSUMING THE REQUIREMENTS OF THIS ARTICLE
HAVE BEEN MET, BOTH A GREEN CHIPS PROJECT AND ANY PHASE TWO OF SUCH
PROJECT SHALL BE ELIGIBLE FOR BENEFITS UNDER SECTION THREE HUNDRED
FIFTY-FIVE OF THIS ARTICLE.
§ 3. Subdivisions 1, 2, 3, and 7 of section 355 of the economic devel-
opment law, subdivisions 1 and 3 as amended by section 4 of part L of
chapter 59 of the laws of 2020, subdivision 2 as amended by section 3 of
part D of chapter 59 of the laws of 2021, and subdivision 7 as added by
section 4 of part G of chapter 61 of the laws of 2011, are amended to
read as follows:
1. Excelsior jobs tax credit component. A participant in the excelsior
jobs program shall be eligible to claim a credit for each net new job it
creates in New York state. In a project that is not a green project, the
amount of such credit per job shall be equal to the product of the gross
wages paid and up to 6.85 percent. In a green project, OR A GREEN CHIPS
PROJECT, the amount of such credit per job shall be equal to the product
of the gross wages paid and up to 7.5 percent. PROVIDED, HOWEVER, GIVEN
THE TRANSFORMATIONAL NATURE OF GREEN CHIPS PROJECTS, ONLY THE FIRST TWO
HUNDRED THOUSAND DOLLARS OF GROSS WAGES PER JOB SHALL BE ELIGIBLE FOR
THIS CREDIT. THE MAXIMUM AMOUNT OF GROSS WAGES PER JOB FOR A GREEN CHIPS
PROJECT MAY BE ADJUSTED FOR INFLATION AT AN ANNUAL AMOUNT DETERMINED BY
THE COMMISSIONER IN A MANNER SUBSTANTIALLY SIMILAR TO THE COST OF LIVING
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ADJUSTMENTS CALCULATED BY THE UNITED STATES SOCIAL SECURITY ADMINIS-
TRATION BASED ON CHANGES IN CONSUMER PRICE INDICES OR A RATE OF FOUR
PERCENT PER YEAR, WHICHEVER IS HIGHER.
2. Excelsior investment tax credit component. A participant in the
excelsior jobs program shall be eligible to claim a credit on qualified
investments. In a project that is not a green project, the credit shall
be equal to two percent of the cost or other basis for federal income
tax purposes of the qualified investment. In a green project, the credit
shall be equal to five percent of the cost or other basis for federal
income tax purposes of the qualified investment. In a project for child
care services OR A GREEN CHIPS PROJECT, the credit shall be up to five
percent of the cost or other basis for federal income tax purposes of
the qualified investment in child care services OR IN THE GREEN CHIPS
PROJECT AS APPLICABLE. A participant may not claim both the excelsior
investment tax credit component and the investment tax credit set forth
in subdivision one of section two hundred ten-B, subsection (a) of
section six hundred six, the former subsection (i) of section fourteen
hundred fifty-six, or subdivision (q) of section fifteen hundred eleven
of the tax law for the same property in any taxable year, except that a
participant may claim both the excelsior investment tax credit component
and the investment tax credit for research and development property. In
addition, a taxpayer who or which is qualified to claim the excelsior
investment tax credit component and is also qualified to claim the
brownfield tangible property credit component under section twenty-one
of the tax law may claim either the excelsior investment tax credit
component or such tangible property credit component, but not both with
regard to a particular piece of property. A credit may not be claimed
until a business enterprise has received a certificate of tax credit,
provided that qualified investments made on or after the issuance of the
certificate of eligibility but before the issuance of the certificate of
tax credit to the business enterprise, may be claimed in the first taxa-
ble year for which the business enterprise is allowed to claim the cred-
it. Expenses incurred prior to the date the certificate of eligibility
is issued are not eligible to be included in the calculation of the
credit.
3. Excelsior research and development tax credit component. A partic-
ipant in the excelsior jobs program shall be eligible to claim a credit
equal to fifty percent of the portion of the participant's federal
research and development tax credit that relates to the participant's
research and development expenditures in New York state during the taxa-
ble year; provided however, if not a green project, the excelsior
research and development tax credit shall not exceed six percent of the
qualified research and development expenditures attributable to activ-
ities conducted in New York state, or, if a green project OR A GREEN
CHIPS PROJECT, the excelsior research and development tax credit shall
not exceed eight percent of the research and development expenditures
attributable to activities conducted in New York state. If the federal
research and development credit has expired, then the research and
development expenditures relating to the federal research and develop-
ment credit shall be calculated as if the federal research and develop-
ment credit structure and definition in effect in two thousand nine were
still in effect. Notwithstanding any other provision of this chapter to
the contrary, research and development expenditures in this state,
including salary or wage expenses for jobs related to research and
development activities in this state, may be used as the basis for the
excelsior research and development tax credit component and the quali-
S. 9467 5
fied emerging technology company facilities, operations and training
credit under the tax law.
7. For availability of special excelsior jobs program rates governing
the provision of gas or electric service, see subdivision twelve-d of
section sixty-six of the public service law. Such special excelsior jobs
program rates may remain available to participants as defined in this
article for a period of up to ten years commencing in the first taxable
year that the participant receives a certificate of tax credit, or the
first taxable year listed on its preliminary schedule of benefits,
whichever is later. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION,
SUCH SPECIAL EXCELSIOR JOB PROGRAM RATES SHALL REMAIN AVAILABLE TO A
GREEN CHIPS PROJECT WHICH ENTERS INTO A PHASE TWO OF SUCH PROJECT FOR
THE ENTIRETY OF BOTH OF ITS SCHEDULES OF BENEFITS. Provided however, if
a participant is removed from the excelsior jobs program pursuant to
this article, the excelsior jobs program rates may be denied.
§ 4. Section 359 of the economic development law, as amended by
section 5 of part L of chapter 59 of the laws of 2020, is amended to
read as follows:
§ 359. Cap on tax credit. [The] 1. EXCEPT WITH RESPECT TO TAX CREDITS
ISSUED TO GREEN CHIPS PROJECTS AS ARTICULATED IN SUBDIVISION FOUR OF
THIS SECTION, THE total amount of tax credits issued by the commissioner
for any taxable year may not exceed the limitations set forth in this
[section] SUBDIVISION. [One-half] EXCEPT WITH RESPECT TO TAX CREDITS
ISSUED TO GREEN CHIPS PROJECTS AS ARTICULATED IN SUBDIVISION FOUR OF
THIS SECTION, ONE-HALF of any amount of tax credits not awarded for a
particular taxable year may be used by the commissioner to award tax
credits in another taxable year.
Credit components in the aggregate With respect to taxable
shall not exceed: years beginning in:
$ 50 million 2011
$ 100 million 2012
$ 150 million 2013
$ 200 million 2014
$ 250 million 2015
$ 183 million 2016
$ 183 million 2017
$ 183 million 2018
$ 183 million 2019
$ 183 million 2020
$ 183 million 2021
$ 133 million 2022
$ 83 million 2023
$ 36 million 2024
$ 200 million 2025
$ 200 million 2026
$ 200 million 2027
$ 200 million 2028
$ 200 million 2029
2. Twenty-five percent of tax credits shall be allocated to businesses
accepted into the program under subdivision four of section three
hundred fifty-three of this article and seventy-five percent of tax
credits shall be allocated to businesses accepted into the program under
subdivision three of section three hundred fifty-three of this article.
S. 9467 6
3. Provided, however, if by September thirtieth of a calendar year,
the department has not allocated the full amount of credits available in
that year to either: (i) businesses accepted into the program under
subdivision four of section three hundred fifty-three of this article or
(ii) businesses accepted into the program under subdivision three of
section three hundred fifty-three of this article, the commissioner may
allocate any remaining tax credits to businesses referenced in this
paragraph as needed; provided, however, that under no circumstances may
the aggregate statutory cap for all program years be exceeded. One
hundred percent of the unawarded amounts remaining at the end of two
thousand twenty-nine may be allocated in subsequent years, notwithstand-
ing the fifty percent limitation on any amounts of tax credits not
awarded in taxable years two thousand eleven through two thousand twen-
ty-nine. Provided, however, no tax credits may be allowed for taxable
years beginning on or after January first, two thousand forty.
4. THE TOTAL AMOUNT OF TAX CREDITS ISSUED BY THE COMMISSIONER FOR THE
TAXABLE YEARS TWO THOUSAND TWENTY-TWO TO TWO THOUSAND FORTY-ONE FOR
GREEN CHIPS PROJECTS SHALL NOT EXCEED FIVE HUNDRED MILLION PER YEAR. ONE
HUNDRED PERCENT OF ANY AMOUNT OF TAX CREDITS NOT AWARDED FOR A PARTIC-
ULAR TAXABLE YEAR MAY BE USED BY THE COMMISSIONER TO AWARD TAX CREDITS
IN ANOTHER TAXABLE YEAR. NOTWITHSTANDING THE FOREGOING, GREEN CHIPS
PROJECTS MAY BE ALLOWED TO CLAIM CREDITS FOR TAXABLE YEARS UP TO JANUARY
FIRST, TWO THOUSAND FIFTY.
§ 5. The act shall take effect immediately.
