§ 24. Empire state film production credit. (a) (1) Allowance of
credit. 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 production costs paid or incurred in the
production of a qualified film, provided that: (i) the qualified
production costs (excluding post production costs) paid or incurred
which are attributable to the use of tangible property or the
performance of services at a qualified film production facility in the
production of such qualified film equal or exceed seventy-five percent
of the production costs (excluding post production costs) paid or
incurred which are attributable to the use of tangible property or the
performance of services at any film production facility within and
without the state in the production of such qualified film, and (ii)
except with respect to a qualified independent film production company
or pilot, at least ten percent of the total principal photography
shooting days spent in the production of such qualified film must be
spent at a qualified film production facility. However, if the qualified
production costs (excluding post production costs) which are
attributable to the use of tangible property or the performance of
services at a qualified film production facility in the production of
such qualified film is less than three million dollars, then the portion
of the qualified production costs attributable to the use of tangible
property or the performance of services in the production of such
qualified film outside of a qualified film production facility shall be
allowed only if the shooting days spent in New York outside of a film
production facility in the production of such qualified film equal or
exceed seventy-five percent of the total shooting days spent within and
without New York outside of a film production facility in the production
of such qualified film. The credit shall be allowed for the taxable year
in which the production of such qualified film is completed. However, in
the case of a qualified film that receives funds from additional pool 2,
no credit shall be claimed before the later of (1) the taxable year the
production of the qualified film is complete, or (2) the taxable year
that includes the last day of the allocation year for which the film has
been allocated credit by the department of economic development. If the
amount of the credit is at least one million dollars but less than five
million dollars, the credit shall be claimed over a two year period
beginning in the first taxable year in which the credit may be claimed
and in the next succeeding taxable year, with one-half of the amount of
credit allowed being claimed in each year. If the amount of the credit
is at least five million dollars, the credit shall be claimed over a
three year period beginning in the first taxable year in which the
credit may be claimed and in the next two succeeding taxable years, with
one-third of the amount of the credit allowed being claimed in each
year.

(3) No qualified production costs used by a taxpayer either as the
basis for the allowance of the credit provided for under this section or
used in the calculation of the credit provided for under this section
shall be used by such taxpayer to claim any other credit allowed
pursuant to this chapter.

(4) (i) Notwithstanding the foregoing provisions of this subdivision,
a qualified film production company or qualified independent film
production company, that has applied for credit under the provisions of
this section, agrees as a condition for the granting of the credit: (A)
to include in each qualified film distributed by DVD, or other media for
the secondary market, a New York promotional video approved by the
governor's office of motion picture and television development or to
include in the end credits of each qualified film "Filmed With the
Support of the New York State Governor's Office of Motion Picture and
Television Development" and a logo provided by the governor's office of
motion picture and television development, and (B) to certify that it
will purchase taxable tangible property and services, defined as
qualified production costs pursuant to paragraph one of subdivision (b)
of this section, only from companies registered to collect and remit
state and local sales and use taxes pursuant to articles twenty-eight
and twenty-nine of this chapter.

(ii) On or after January first, two thousand twenty-three, a qualified
film production company or qualified independent film production company
that has applied for credit under the provisions of this section shall,
as a condition for the granting of the credit, file a diversity plan
with the governor's office for motion picture and television development
outlining specific goals for hiring a diverse workforce. The
commissioner of economic development shall promulgate regulations
implementing the requirements of this paragraph, which, notwithstanding
any provisions to the contrary in the state administrative procedure
act, may be adopted on an emergency basis, to ensure compliance with the
provisions of this paragraph. The governor's office for motion picture
and television development shall review each submitted plan as to
whether it meets the requirements established by the commissioner of
economic development, and shall verify that the applicant has met or
made good-faith efforts in achieving these goals. The diversity plan
also shall indicate whether the qualified film production company or
qualified independent film production company that has applied for
credit under the provisions of this section intends to participate in
training, education, and recruitment programs that are designed to
promote and encourage the training and hiring in the film and television
industry of New York residents who represent the diversity of the
State's population.

(5) For the period two thousand fifteen through two thousand
thirty-four, in addition to the amount of credit established in
paragraph two of this subdivision, a taxpayer shall be allowed a credit
equal to (i) the product (or pro rata share of the product, in the case
of a member of a partnership) of ten percent and the wages, salaries or
other compensation constituting qualified production costs as defined in
paragraph two of subdivision (b) of this section, paid to individuals
directly employed by a qualified film production company or a qualified
independent film production company for services performed by those
individuals in one of the counties specified in this paragraph in
connection with a qualified film with a minimum budget of five hundred
thousand dollars, and (ii) the product (or pro rata share of the
product, in the case of a member of a partnership) of ten percent and
the qualified production costs (excluding wages, salaries or other
compensation) paid or incurred in the production of a qualified film
where the property constituting such qualified production costs was
used, and the services constituting such qualified production costs were
performed in any of the counties specified in this paragraph in
connection with a qualified film with a minimum budget of five hundred
thousand dollars where the majority of principal photography shooting
days in the production of such film were shot in any of the counties
specified in this paragraph. Provided, however, that the aggregate total
eligible qualified production costs constituting wages, salaries or
other compensation, for writers, directors, composers, producers, and
performers shall not exceed forty percent of the aggregate sum total of
all other qualified production costs. For purposes of the credit, the
services must be performed and the property must be used in one or more
of the following counties: Albany, Allegany, Broome, Cattaraugus,
Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland,
Delaware, Dutchess, Erie, Essex, Franklin, Fulton, Genesee, Greene,
Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe,
Montgomery, Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Oswego,
Otsego, Putnam, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler,
Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster,
Warren, Washington, Wayne, Wyoming, or Yates.

(b) Definitions. As used in this section, the following terms shall
have the following meanings:

(1) "Qualified production costs" means production costs only to the
extent such costs are attributable to the use of tangible property or
the performance of services within the state directly and predominantly
in the production (including pre-production and post production) of a
qualified film. In the case of an eligible relocated television series,
the term "qualified production costs" shall include, in the first season
that the eligible relocated television series is produced in New York
after relocation, qualified relocation costs. Provided, however, that
the aggregate total eligible qualified production costs for producers,
writers, directors, performers (other than background actors with no
scripted lines), and composers shall not exceed forty percent of the
aggregate sum total of all other qualified production costs.

(2) "Production costs" means any costs for tangible property used and
services performed directly and predominantly in the production
(including pre-production and post production) of a qualified film.
"Production costs" shall not include (i) costs for a story, script or
scenario to be used for a qualified film and (ii) wages or salaries or
other compensation for writers, directors, composers, and performers
(other than background actors with no scripted lines) to the extent
those wages or salaries or other compensation exceed five hundred
thousand dollars per individual. "Production costs" generally include
technical and crew production costs, such as expenditures for film
production facilities, or any part thereof, props, makeup, wardrobe,
film processing, camera, sound recording, set construction, lighting,
shooting, editing and meals, and shall include the wages, salaries or
other compensation of no more than two producers per qualified film, not
to exceed five hundred thousand dollars per producer, where only one of
whom is the principal individual responsible for overseeing the creative
and managerial process of production of the qualified film and only one
of whom is the principal individual responsible for the day-to-day
operational management of production of the qualified film; provided,
however, that such producers are not compensated for any other position
on the qualified film by a qualified film production company or a
qualified independent film production company for services performed.

(3) "Qualified film" means a feature-length film, television film,
relocated television production, television pilot or television series,
regardless of the medium by means of which the film, pilot or series is
created or conveyed. For the purposes of the credit provided by this
section only, a "qualified film" whose majority of principal photography
shooting days in the production of the qualified film are shot in
Westchester, Rockland, Nassau, or Suffolk county or any of the five New
York City boroughs shall have a minimum budget of one million dollars. A
"qualified film", whose majority of principal photography shooting days
in the production of the qualified film are shot in any other county of
the state than those listed in the preceding sentence shall have a
minimum budget of two hundred fifty thousand dollars. "Qualified film"
shall not include: (i) a documentary film, news or current affairs
program, interview or talk program, "how-to" (i.e., instructional) film
or program, film or program consisting primarily of stock footage,
sporting event or sporting program, game show, award ceremony, film or
program intended primarily for industrial, corporate or institutional
end-users, fundraising film or program, daytime drama (i.e., daytime
"soap opera"), commercials, music videos or "reality" program; (ii) a
production for which records are required under section 2257 of title
18, United States code, to be maintained with respect to any performer
in such production (reporting of books, films, etc. with respect to
sexually explicit conduct); or (iii) other than a relocated television
production, a television series commonly known as variety entertainment,
variety sketch and variety talk, i.e., a program with components of
improvisational or scripted content (monologues, sketches, interviews),
either exclusively or in combination with other entertainment elements
such as musical performances, dancing, cooking, crafts, pranks, stunts,
and games and which may be further defined in regulations of the
commissioner of economic development. However, a qualified film shall
include a television series as described in subparagraph (iii) of this
paragraph only if an application for such series has been deemed
conditionally eligible for the tax credit under this section prior to
April first, two thousand twenty, such series remains in continuous
production for each season, and an annual application for each season of
such series is continually submitted for such series after April first,
two thousand twenty. A series that changes either or both the title of
the series or the principal cast prior to March thirty-first, two
thousand twenty-three, shall be considered to remain in continuous
production for each season, provided the series films at the same
location as prior seasons, is produced by the same entity, and retains
at least eighty percent of the staff from the prior season.

(4) "Film production facility" shall mean a building and/or complex of
buildings and their improvements and associated back-lot facilities in
which films are or are intended to be regularly produced and which
contain at least one sound stage, provided, however, that an armory
owned by the state or city of New York located in the city of New York
shall not be considered to be a "film production facility" unless it
meets the criteria contained in paragraph five of this subdivision or
unless such facility is used by a qualified independent film production
company.

(5) "Qualified film production facility" shall mean a film production
facility in the state, which contains at least one sound stage having a
minimum of seven thousand square feet of contiguous production space,
provided, however, that except with respect to a qualified film
production facility being used by a qualified independent film
production company: (i) a film production facility in the city of New
York must contain at least one sound stage having a minimum of seven
thousand square feet of contiguous production space that is sound proof
with a Noise Criteria ("NC") of 30 or better, has sufficient heating and
air conditioning for shooting without the need for supplemental units,
incorporates a permanent grid and sufficient built-in electric service
for shooting without the need for generators, and is column-free with a
clear height of at least sixteen feet under the permanent grid for
facilities constructed on or after January first, two thousand nineteen,
and at least twelve feet under the permanent grid for facilities
constructed before January first, two thousand nineteen; and (ii) an
armory owned by the state or city of New York located in the city of New
York that does not satisfy the criteria of subparagraph (i) of this
paragraph shall be treated as a qualified film production facility upon
certification by the governor's office of motion picture and television
development of a petition submitted to that office by a qualified film
production company establishing that no qualified film production
facility is available in the city of New York that has stage space
available for shooting such company's film. Such petition shall be
submitted no later than ninety days prior to the start of principal
photography for the qualified film and the governor's office of motion
picture and television development shall have ten days to certify or
reject the petition. A stage will be deemed unavailable if consideration
has been paid for its use or such stage is currently under an agreement
with an option for use and, in either circumstance, such period of use
includes the petitioner's estimated start date of principal photography.

(6) "Qualified film production company" is a corporation, partnership,
limited partnership, or other entity or individual which or who is
principally engaged in the production of a qualified film and controls
the qualified film during production.

(7) "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, and (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.

(8) "Relocated television production" shall mean, notwithstanding the
limitations in subparagraph (i) of paragraph three of this subdivision,
a television production that is a talk or variety program that filmed at
least two seasons outside the state prior to its first relocated season
in New York, the episodes are filmed before a studio audience of two
hundred or more, and the relocated television production incurs (i) at
least thirty million dollars in annual production costs in the state, or
(ii) at least ten million dollars in capital expenditures at a qualified
production facility in the state.

(9) "Eligible relocated television series" shall mean the first two
years of a regularly occurring production intended to run in its initial
broadcast, regardless of the medium or mode of its distribution, in a
series of narrative and/or thematically related episodes, each of which
has a running time of at least thirty minutes in length (inclusive of
commercial advertisement and interstitial programming, if any), which
had filmed a minimum of six episodes of the television series outside
the state immediately prior to relocating to the state, where the
television series had a total minimum budget of at least one million
dollars per episode. For the purposes of this definition only, a
television series produced by and for media services providers described
as streaming services and/or digital platforms (and excluding
network/cable) shall mean a regularly occurring production intended to
run in its initial release in a series of narrative and/or thematically
related episodes, the aggregate length of which is at least seventy-five
minutes, although the episodes themselves may vary in duration from the
thirty minutes specified for network/cable production.

(10) "Qualified relocation costs" means the costs incurred, excluding
wages, salaries and other compensation, in the first season that an
eligible relocated television series relocates to New York including
such costs incurred to transport sets, props and wardrobe to New York
and other costs as determined by the department of economic development
to the extent such costs do not exceed six million dollars.

(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 20.

(2) article 22: section 606: subsection (gg).

(d) Notwithstanding any provision of this chapter, employees and
officers of the governor's office of motion picture and television
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 credit submitted to the governor's
office of motion picture and television development.

(e) Allocation of credit. (1) The aggregate amount of tax credits
allowed under this section, subdivision thirty-six of section two
hundred ten and subsection (gg) of section six hundred six of this
chapter in any calendar year shall be twenty-five million dollars in two
thousand four and two thousand five, sixty million dollars in two
thousand six and two thousand seven, sixty-five million dollars in two
thousand eight, seventy-five million dollars in two thousand nine,
eighty-five million dollars in two thousand ten, ninety million dollars
in two thousand eleven and two thousand twelve, and one hundred ten
million dollars in two thousand thirteen. Such aggregate amount of
credits shall be allocated by the governor's office for motion picture
and television development among taxpayers in order of priority based
upon the date of filing an application for allocation of film production
credit with such office. 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 aggregate amount of tax credits allowed pursuant to the
authority of subdivision (b) of section twelve hundred one-a of this
chapter in any calendar year shall be twelve million five hundred
thousand dollars in two thousand four and two thousand five and thirty
million dollars in two thousand six through two thousand eleven. Such
aggregate amount of credits shall be allocated by the mayor's office of
film, theater and broadcasting among taxpayers in order of priority
based upon the date of filing an application for allocation of film
production credit with such office. 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.

(3) Additional pool 1 - The aggregate amount of tax credits allowed in
subdivision (a) of this section shall be increased by an additional
three hundred fifty million dollars in two thousand nine. This
additional 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.

* (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-three and seven hundred million
dollars in each year starting in two thousand twenty-four through two
thousand thirty-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, 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-three, and forty-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 twenty-four through two thousand thirty-four. This amount
shall be allocated by the department of economic 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 pending 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 allocation 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 insufficient 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 department of economic 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 allocation year directly on their empire state film
production credit tax form for each year a credit is claimed and include
a copy of the certificate with their tax return. In the case of a
qualified film that receives funds from additional pool 2 where the
taxpayer filed an initial application before April first, two thousand
twenty-three, no empire state film production credit shall be claimed
before the later of (1) the taxable year the production of the qualified
film is complete, or (2) the taxable year immediately following the
allocation year for which the film has been allocated credit by the
department of economic development. In the case of a qualified film that
receives funds from additional pool 2 where the taxpayer filed an
initial application on or after April first, two thousand twenty-three,
no empire state film production credit shall be claimed before the later
of (1) the taxable year the production of the qualified film is
complete, or (2) the taxable year that includes the last day of the
allocation year for which the film has been allocated credit by the
department of economic development.

* NB Effective until the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 7 of chapter
683 of 2019

* (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-three and seven hundred million
dollars each year starting in two thousand twenty-four through two
thousand thirty-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, 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-three, and forty-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 twenty-four through two thousand thirty-four. Provided
further, five million dollars of the annual allocation shall be made
available for the television writers' and directors' fees and salaries
credit pursuant to section twenty-four-b of this article in each year
starting in two thousand twenty through two thousand thirty-four. This
amount shall be allocated by the department of economic 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 pending 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 allocation 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 insufficient 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 department of economic 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 allocation year directly on their empire state film
production credit tax form for each year a credit is claimed and include
a copy of the certificate with their tax return. In the case of a
qualified film that receives funds from additional pool 2 where the
taxpayer filed an initial application before April first, two thousand
twenty-three, no empire state film production credit shall be claimed
before the later of (1) the taxable year the production of the qualified
film is complete, or (2) the taxable year immediately following the
allocation year for which the film has been allocated credit by the
department of economic development. In the case of a qualified film that
receives funds from additional pool 2 where the taxpayer filed an
initial application on or after April first, two thousand twenty-three,
no empire state film production credit shall be claimed before the later
of (1) the taxable year the production of the qualified film is
complete, or (2) the taxable year that includes the last day of the
allocation year for which the film has been allocated credit by the
department of economic development.

* NB Effective on the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 7 of chapter
683 of 2019

(f) (1) With regard to certificates of tax credit issued on or after
January first, two thousand twenty, the commissioner of economic
development shall reduce by one-quarter of one percent the amount of
credit allowed to a taxpayer and this reduced amount shall be reported
on a certificate of tax credit issued pursuant to this section and the
regulations promulgated by the commissioner of economic development to
implement this credit program. Provided, however, for certificates of
tax credit issued on or after January first, two thousand twenty-three,
the amount of credit shall be reduced by one-half of one percent allowed
to the taxpayer.

(2) By January thirty-first of each year, the commissioner of economic
development shall report to the comptroller the total amount of such
reductions of tax credit during the immediately preceding calendar year.
On or before March thirty-first of each year, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund established
under section ninety-seven-ff of the state finance law an amount equal
to the total amount of such reductions reported by the commissioner of
economic development for the immediately preceding calendar year.

(3) Notwithstanding paragraph two of this subdivision, the following
provisions shall apply with respect to reductions of tax credit in two
thousand twenty. (i) The commissioner of economic development shall
report to the comptroller by June first, two thousand twenty the total
amount of such reductions of tax credit during the period of January
first, two thousand twenty through May fifteenth, two thousand twenty.
On or before July first, two thousand twenty, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund an amount
equal to the total amount of such reductions reported by the
commissioner of economic development for the period of January first,
two thousand twenty through May fifteenth, two thousand twenty. (ii) By
January thirty-first, two thousand twenty-one, the commissioner of
economic development shall report to the comptroller the total amount of
such reductions of tax credit during the period of May sixteenth, two
thousand twenty through December thirty-first, two thousand twenty. On
or before March thirty-first, two thousand twenty-one, the comptroller
shall transfer without appropriations from the general fund to the
empire state entertainment diversity job training development fund an
amount equal to the total amount of such reductions reported by the
commissioner of economic development for the period of May sixteenth,
two thousand twenty through December thirty-first, two thousand twenty.