Fla. Admin. Code Ann. R. 62-788.301 - Site Rehabilitation Voluntary Cleanup Tax Credit Application Process

(1) A tax credit applicant, or multiple tax credit applicants working jointly to conduct site rehabilitation at a single contaminated site, can only file one tax credit application per contaminated site per year, claiming the percentage and the amount for the Site Rehabilitation Tax Credit Type in Table 1, for the cost of voluntary cleanup activity that is integral to site rehabilitation. If multiple tax credit applicants submit an application, then they must indicate on the application form each tax credit applicant's percentage contribution toward payment of site rehabilitation costs.

(2) Complete applications for the annual site rehabilitation tax credit must be received by the Department's Division of Waste Management in Tallahassee by 5:00 p.m. (Eastern Standard Time) on January 31 of the year following the calendar year for which a tax credit applicant is claiming site rehabilitation costs. If January 31 falls on a weekend, then the deadline moves forward to the next business day. A tax credit applicant shall submit an application using Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C. In addition to the requirements of subsection 62-788.101(3), F.A.C., the application must include the following:

(a) A completed and signed affidavit from each tax credit applicant (multiple tax credit applicants submitting a joint application must each sign a separate affidavit) certifying that all information contained in the application, including all records of costs incurred and paid and claimed in the tax credit application, are true and correct [Section VII. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C.];

(b) If the application is submitted by the real property owner, then the Real Property Owner Affidavit section of the application form must also be completed and signed by the real property owner stating that it is not, and has never been, the owner or operator of the drycleaning facility where the contamination exists [Section II.D. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C.];

(c) Proof that the tax credit applicant has entered into a voluntary cleanup agreement (VCA) or a BSRA, as applicable. A copy of the cover page and the signature page(s) of the VCA or BSRA, as applicable, will suffice as proof;

(d) Proof of payment of all applicable deductibles pursuant to Section 376.3078(3)(e), F.S., for eligible drycleaning solvent cleanup program sites. If deductibles were paid prior to submitting a tax credit application, then the tax credit applicant shall include a copy of the cancelled check or a receipt for a cashier's check or money order as proof of payment and note the application year the deductible was paid in Section II.C. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C. If deductibles have not been paid, the tax credit applicant shall fill out the deductible information in Section II.C. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C., and enclose a cashier's check or money order for the appropriate amount.

(e) Copies of documents that clearly describe the goods or services and associated costs that are being claimed in the application. If such documents also include costs for goods or services that are not being claimed in the application such goods or services and the associated costs shall be clearly annotated or shall otherwise clearly identify such goods or services and unclaimed costs. Though not required, inclusion of a cost-summary table that provides detail of claimed costs as represented by payment requests and payment records is encouraged. Copies of documents for goods or services that are being claimed shall demonstrate a link between the contractual records, the payment requests associated with the contractual records, and the payment records for the claimed portions of the payment requests, as required by each of the following three subparagraphs:

1. Contractual records must describe the scope of work performed that was integral to site rehabilitation during the time period covered by the application. These contractual records shall correlate the costs claimed with both the payment requests and the payment records provided in accordance with subparagraphs 62-788.301(2)(e) 2. and 3., F.A.C. If the tax credit applicant did not procure the services listed on the contractual records included in the application, then the tax credit applicant must explain its relationship to the entity that procured those services. Examples of such contractual records include contracts, documentation of contract negotiations, proposals, work orders, task assignments, and change orders;

2. Payment requests must describe the goods or services provided that were integral to site rehabilitation during the time period covered by the application. These payment requests shall correlate the costs claimed with both the contractual records and payment records provided in accordance with subparagraphs 62-788.301(2)(e) 1. and 3., F.A.C. The payment requests must include the name of the payee, a description of the goods or services provided, the period of service during which the goods or services were provided, the date upon which the payment request was issued, and the total amount being requested. Examples of such payment requests are invoices, payment applications, sales tickets, and account statements. Payment requests that include costs for goods or services that are not being claimed in the VCTC application must clearly identify which costs are being claimed; and

3. Payment records involving actual costs incurred that were integral to site rehabilitation during the time period covered by the application and paid prior to submittal of the tax credit application (or by the January 31 application deadline). These payment records shall correlate the costs claimed with both the contractual records and the payment requests provided in accordance with subparagraphs 62-788.301(2)(e) 1. and 2., F.A.C. The payment records shall also demonstrate that the tax credit applicant, which must be the signatory to the VCA or BSRA, paid the costs of site rehabilitation. For cases in which costs were prepaid (e.g., made in a previous year), the amount claimed must be only for the prorated portion of the prepaid work conducted in the calendar year for which tax credits are sought. Documentation must support these expense amounts and the timing of the work and show that it is part of the prepaid scope. Additionally, the Certified Public Accountant (CPA) must clearly describe these transactions and the proration amount claimed in a given calendar year in the report described in paragraph 62-788.301(2)(g)., F.A.C. Payment records include, but are not limited to, cancelled checks and bank statements;

(f) A certification form stating that rehabilitation activities associated with the documentation submitted pursuant to paragraph (e) have been conducted under the observation of, and related technical documents have been signed and sealed by, an appropriate registered technical professional in each contributing technical discipline [Section V. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C.]; and

(g) Proof that the documentation submitted pursuant to paragraph (e) has been reviewed and verified by an independent CPA in accordance with standards established by the American Institute of Certified Public Accountants [Section VI. of Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C.]. The CPA's report shall clearly state the total amount claimed in the application and the total amount approved by the CPA. A copy of the CPA's report shall be submitted with the tax credit application [refer to A Guideline for Agreed-Upon Procedures Attestation Service for the Voluntary Cleanup Tax Credit (VCTC) Program, dated December 2021, referenced in subsection 62-788.151(1), F.A.C.].

(3) The CPA and appropriate registered technical professional(s) submitting forms as part of a tax credit application shall verify such forms. Verification shall be accomplished as provided in Section 92.525(2), F.S., and subject to the provisions of Section 92.525(3), F.S. This verification requirement is accomplished by completing and signing the appropriate certifications included as part of the application form, Form 62-788.101(1), incorporated by reference in subsection 62-788.101(1), F.A.C.

(4) For purposes of Rule 62-788.301, F.A.C., integral costs are those the tax credit applicant(s) incurred and paid in the applicable timeframe that were "integral to site rehabilitation, " as defined in Rule 62-788.201, F.A.C. Site rehabilitation costs include activities conducted pursuant to Chapter 62-780, F.A.C. Costs that are not integral to site rehabilitation under this section include, but are not limited to, the following:

(a) Costs related to brownfield area designation and preparing a tax credit application (as detailed in Section 376.30781(14)(d), F.S.);

(b) Costs of demolition or vegetation or tree removal not directly associated with integral site rehabilitation activity;

(c) Costs to address contamination that is from a source outside of the tax credit applicant's site being addressed under a VCA or BSRA;

(d) Costs related to expedited laboratory analyses;

(e) Costs of bonds or supplemental insurance that is not directly associated with integral site rehabilitation activity;

(f) Unpaid contractor retainage costs;

(g) Costs to remove or close in place an underground or aboveground storage tank (which is considered a compliance activity in accordance with Chapter 62-761 or 62-762, F.A.C.);

(h) Costs for Hazardous Waste Operations and Emergency Response training of staff;

(i) Any fees, deductibles, or copayments required to be paid for those participating in a state-funded cleanup program pursuant to Sections 376.305, 376.3071, 376.30713, 376.3072, and 376.3078, F.S.

(j) Costs of administrative activities or legal discussions related to property transactions, contracts, late fees, or financial audits not directly associated with integral to site rehabilitation activities;

(k) Costs for grant-required activities that are not integral to site rehabilitation;

(l) Costs for sampling or mitigation of asbestos, methane, or lead-based paint; and

(m) Costs for engineering controls that are not integral to site rehabilitation. Building slabs or foundations can be approved engineering controls over contaminated material to reduce or eliminate the potential for migration of, or exposure to, contaminants, pursuant to Rules 62-780.301 and 62-780.680, F.A.C., including the supporting subbase material (fill pad) and the poured slab or foundation. Building slab and foundation costs are prorated in relation to what is integral to site rehabilitation for the engineering control to be effective to reduce or eliminate potential for migration of or exposure to contaminants per Chapter 62-780, F.A.C., and will exclude any costs associated with the slab or foundation that are in excess of what is required to be an engineering control. In addition, costs for thicker sidewalks or parking lots, rebar reinforcement, excess subbase material, building footers or stem walls that are not integral to site rehabilitation for the engineering control to be effective to reduce or eliminate potential for migration of or exposure to contaminants per Chapter 62-780, F.A.C., will also be excluded if they are in excess of what is required to be an engineering control.

(5) This rule shall be reviewed, and if necessary, repealed or renewed through the rulemaking process five years from the effective date.

Notes

Fla. Admin. Code Ann. R. 62-788.301

Rulemaking Authority 376.30781 FS. Law Implemented 220.1845, 376.30781 FS.

Adopted by Florida Register Volume 48, Number 036, February 22, 2022 effective 3/9/2022.

New 3-9-22.