§ 354. Application and approval process. 1. A business enterprise must
submit a completed application as prescribed by the commissioner. An
application made by an entertainment company must be submitted by June
first, two thousand fifteen, except for an application made by an
entertainment company that is eligible to participate in the excelsior
jobs program based upon creating net new jobs pursuant to paragraph (a)
of subdivision twelve of section three hundred fifty-two of this
article. An application may be recommended by entities, including but
not limited to, those created pursuant to subdivision (e) of section
nine hundred fifty-seven of the general municipal law.

2. As part of such application, each business enterprise must:

(a) Agree to allow the department of taxation and finance to share its
tax information with the department. However, any information shared as
a result of this agreement shall not be available for disclosure or
inspection under the state freedom of information law.

(b) Agree to allow the department of labor to share its tax and
employer information with the department. However, any information
shared as a result of this agreement shall not be available for
disclosure or inspection under the state freedom of information law.

(c) Allow the department and its agents access to any and all books
and records the department may require to monitor compliance.

(d) Agree to be permanently disqualified for empire zone benefits at
any location or locations that qualify for excelsior jobs program
benefits if admitted into the excelsior jobs program.

(e) Provide the following information to the department upon request:

(i) a plan outlining the schedule for meeting the job and investment
requirements as set forth in subdivisions three and four of section
three hundred fifty-three of this article. Such plan must include
details on job titles and expected salaries;

(ii) the prior three years of federal and state income or franchise
tax returns, unemployment insurance quarterly returns, real property tax
bills and audited financial statements;

(iii) the amount and description of projected qualified investments
for which it plans to claim the excelsior investment tax credit;

(iv) an estimate of the portion of any federal research and
development tax credits, attributable to research and development
activities conducted in New York state, that it anticipates claiming for
the years it expects to claim the excelsior research and development
credit; and

(v) the employer identification or social security numbers for all
related persons to the applicant, including those of any members of a
limited liability company or partners in a partnership.

(f) Provide a clear and detailed presentation of all related persons
to the applicant to assure the department that jobs are not being
shifted within the state.

(g) Certify, under penalty of perjury, that it is in substantial
compliance with all environmental, worker protection, and local, state,
and federal tax laws.

3. (a) After reviewing a business enterprise's completed application
and determining that the business enterprise will meet the conditions
set forth in subdivisions three and four of section three hundred
fifty-three of this article, the department may admit the applicant into
the program and provide the applicant with a certificate of eligibility
and a preliminary schedule of benefits by year based on the applicant's
projections as set forth in its application. This preliminary schedule
of benefits delineates the maximum possible benefits an applicant may
receive.

(b) Notwithstanding the requirements of this subdivision, an existing
participant in the excelsior jobs program may be eligible for an
enhanced investment tax credit on projects for child care services and
the excelsior child care services tax credit component, provided:

(i) the participant is in compliance with the requirements of this
article;

(ii) the participant is not, at the time of application to the
department for either the enhanced investment tax credit on projects for
child care services or the excelsior child care tax credit component,
either operating a child care facility or sponsoring child care services
for its employees; and

(iii) the participant is seeking to provide such services on condition
of receipt of additional tax credits attributable to child care
services. Such existing participant may apply to the department for the
benefit as defined in section three hundred fifty-five of this article.
In no circumstances shall the benefit term for child care services
exceed the existing participant's existing benefit term in its
preliminary schedule of benefits.

4. In order to become a participant in the program, an applicant must
submit evidence that it satisfies the eligibility criteria specified in
section three hundred fifty-three of this article and subdivision two of
this section in such form as the commissioner may prescribe. After
reviewing such evidence and finding it sufficient, the department shall
certify the applicant as a participant and issue to that participant a
certificate of tax credit for one taxable year. To receive a certificate
of tax credit for subsequent taxable years, the participant must submit
to the department a performance report demonstrating that the
participant continues to satisfy the eligibility criteria specified in
section three hundred fifty-three of this article and subdivision two of
this section. If such eligibility criteria is met, a participant can
receive tax credits based on interim job, investment or research and
development milestones. A participant's increase in employment,
qualified investment, or federal research and development tax credit
attributable to research and development activities in New York state
above its projections listed in its application shall not result in an
increase in tax benefits under this article. However, if the
participant's expenditures are less than the estimated amounts, the
credit shall be less than the estimate.

5. A participant may claim tax benefits commencing in the first
taxable year that the business enterprise receives a certificate of tax
credit or the first taxable year listed on its preliminary schedule of
benefits, whichever is later. A participant may claim such benefits for
the next nine consecutive taxable years, provided that the participant
demonstrates to the department that it continues to satisfy the
eligibility criteria specified in section three hundred fifty-three of
this article and subdivision two of this section in each of those
taxable years, and provided that no tax credits may be allowed for
taxable years beginning on or after January first, two thousand forty.
If, in any given year, a participant who has satisfied the eligibility
criteria specified in section three hundred fifty-three of this article
realizes job creation less than the estimated amount, the credit shall
be reduced by the proportion of actual job creation to the estimated
amount, provided the proportion is at least seventy-five percent of the
jobs estimated.