N.Y. Comp. Codes R. & Regs. Tit. 5 § 191.1 - Application and review process
(a) An
applicant must submit a complete application as prescribed by the
commissioner.
(b) As part of such
application, an applicant must:
(1) agree to
allow the Department of Taxation and Finance to share its tax information with
the department. Note that the form created by the department to effectuate this
information transfer may only be executed by a person with authority to act on
the business entity's behalf in this regard. 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; and
(2) agree to allow the Department of Labor to
share its tax and employer information with the department. Note that the form
created by the department to effectuate this information transfer may only be
executed by a person with authority to act on the business entity's behalf in
this regard. 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; and
(3) allow the
department and its agents access to any and all books and records deemed
relevant by the department to monitor compliance with the provisions of article
17 of the Economic Development Law; and
(4) 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 for such
location or locations; and
(5)
provide, upon request by the department, all of the following information:
(i) a plan outlining the schedule for meeting
the job and investment requirements (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;
(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; and
(6) 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; and
(7) certify, under penalty of perjury, that
it is in substantial compliance with all environmental, worker protection, and
local, State, and Federal tax laws; and
(8) for Green CHIPS projects, submit a Green
CHIPS sustainability plan and a Green CHIPS community plan.
(c) The commissioner, upon receipt
of a complete application from an applicant, shall determine whether the
applicant meets the eligibility criteria set forth in section
191.2 of this Part. An applicant
that does not meet the eligibility criteria set forth in section
191.2 of this Part shall not be
accepted into the program.
(d)
Having determined that an application is complete and that the applicant meets
the eligibility criteria set forth in section
191.2 of this Part and, if a Green
CHIPS project, also meets the eligibility provisions of section
190.2(r) of the
Title, the Department may admit the applicant and issue a certificate of
eligibility as defined in section
190.2(g) of this
Title and a preliminary schedule of benefits that indicates the annual amount
of each component of the credit an applicant may be entitled to in each of its
ten or twenty years of eligibility as applicable. The Commissioner may amend a
preliminary schedule of benefits provided that the Commissioner complies with
the credit caps in section
359 of
the Economic Development Law.
(e)
With respect only to participant's engaging in a Green CHIPS project as defined
herein, such participants may provide a range of estimated net new jobs to the
Department that consists of a lower-bound "estimated number of net new jobs"
and an upper-bound "maximum number of net new jobs." For the purposes of
calculating whether a participant has met its minimum number of net new jobs to
be subject to the pro-ration or loss of all other tax benefits as further
articulated in section
192.1(c) of this
Title, the lower-bound estimated number of net new jobs shall be used. For
purposes of calculating the jobs tax credit that may be available to a Green
CHIPS participant in any given year, the upper-bound maximum number of net new
jobs shall be used. In order for a participant to receive its maximum jobs tax
credit, it must create the maximum number of net new jobs listed in its
schedule of benefits. In presenting its net new jobs schedules to the
Department, the estimated and maximum number of net new jobs shall be the same
in year 10 of each project phase. In addition, the estimated and maximum number
of net new jobs schedules must be reasonably justified by the Green CHIPS
participant and approved by Department. The Department may adopt standards to
establish a reasonable relationship between the two schedules and shall approve
or reject such schedules in their sole discretion.
(f) With respect to investment, each Green
CHIPS participant will have a cap on the annual amount of investment tax
credits it can be issued, provided that:
1)
if a participant initially falls short on its investment goal pursuant to the
schedule of benefits, it may amend its schedule commensurate with the shortfall
to allow for increased investment in future schedule years and/or phases;
and
2) if a participant exceeds its
investment goal, the excess investment shall carry forward as counting toward
future year investment goals. However, if a participant fails to meet its
estimated lower bound net new jobs commitment as outlined above in any given
year, then it shall face a pro-rated or complete loss of investment tax credit
component and research and development tax credit
components.
(g) With
respect to participants engaging in Green CHIPS projects, any investment and
net new jobs made or created subsequent to the eligibility date established by
the certificate of eligibility but prior to year one of phase one shall count
towards the tax credit. A participant who is awarded and accepts a phase two
schedule and elects to postpone the commencement of phase two after completing
phase one, shall be required to submit a "request for temporary extension" to
the Department for each year in which it requests the postponement. Such
request for temporary extension shall include, to the satisfaction of the
Department, the reasons for the requested postponement (e.g., industry demand
slowdown, industry oversupply conditions, etc.). Provided that each request for
temporary extension is granted by the Department at its sole discretion and the
participant is awarded and accepts a phase two schedule, upon commencing its
phase two schedule of benefits, the value of investments not counted in phase
one and made prior to the start of phase two shall be counted as progress
toward its investment goals, as shall any excess investment made during phase
one. Provided further that each request for temporary extension is granted by
the Department in its sole discretion and if the participant is awarded and
accepts a phase two schedule, upon commencing its phase two schedule of
benefits, any net new jobs not counted in phase one and created prior to the
start of phase two shall be counted as progress toward its net new job goals,
as shall any excess net new jobs created during phase one provided such net new
jobs are maintained continuously during phase two. Any excess investments made
or net new jobs created prior to the award and acceptance of a phase two
schedule by a participant shall not be counted as progress towards its phase
two investment or net new job goals.
(h) Notwithstanding subdivision (ai) of
section 190.2 of this Title, the Department
is hereby authorized to allow a Green CHIPS participant in good standing with
phase one of a Green CHIPS project to enter into phase two of a Green CHIPS
project with a new and separate schedule of benefits which may overlap with
phase one of a Green CHIPS project schedule of benefits from a timing
perspective, for a new ten-year benefit term. Notwithstanding subdivision (d)
of section 191.1 of this Part, 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
exclusively 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 participant's phase one of a Green CHIPS project
with the Department. Assuming the requirements of this Part have been met, a
participant in both a Green CHIPS project and any phase two of such project
shall be eligible for benefits under section
193.1 of this
Title.
Notes
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