S T A T E O F N E W Y O R K
________________________________________________________________________
4527
2011-2012 Regular Sessions
I N S E N A T E
April 11, 2011
___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment Operations
AN ACT to amend the tax law, in relation to empire state commercial
production tax credit; and to amend section 8 of part V of chapter 62
of the laws of 2006 amending the tax law relating to the empire state
commercial production tax credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Paragraph 2 of subdivision (a) of section 28 of the tax
2 law, as amended by chapter 300 of the laws of 2007, subparagraph (i) as
3 amended by chapter 448 of the laws of 2009, is amended to read as
4 follows:
5 (2) The state has annually [seven] TEN million dollars in total tax
6 credits to disburse to all eligible commercial production companies. The
7 seven million dollars in total tax credits shall be allocated according
8 to subparagraphs (i), (ii) [and], (iii) AND (IV) of this paragraph:
9 (i) The state annually will disburse [three] FOUR AND ONE-HALF million
10 of the total [seven] TEN million in tax credits to all eligible
11 production companies and the amount of the credit shall be the product
12 (or pro rata share of the product, in the case of a member of a partner-
13 ship) of twenty percent of the qualified production costs paid or
14 incurred in the production of a qualified commercial, provided that the
15 qualified production costs paid or incurred are attributable to the use
16 of tangible property or the performance of services within the state in
17 the production of such qualified commercial. To be eligible for said
18 credit the total qualified production costs of a qualified production
19 company must be greater in the aggregate during the current calendar
20 year than the average of the three previous years for which the credit
21 was applied. Provided, however, that until a qualified production compa-
22 ny has established a three year history, the credit will be based on
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10632-01-1
S. 4527 2
1 either the previous year or the average of the two previous years,
2 whichever period is longer for the qualified production company seeking
3 the credit. If the qualified production company has never applied for
4 the growth credit, the previous year's data will be used to create a
5 benchmark. The tax credit shall be applied only to the amount of the
6 total qualified production costs of the current calendar year that are
7 greater than the total amount of production costs of the appropriate
8 measurement period as described in this subparagraph. The tax credit
9 must be distributed to eligible production companies on a pro rata
10 basis, provided, however, that no such qualified production company
11 shall receive more than three hundred thousand dollars annually for such
12 credit. The credit shall be allowed for the taxable year in which the
13 production of such qualified commercial is completed.
14 (ii) The state annually will disburse [three] FOUR AND ONE-HALF
15 million of the total [seven] TEN million in tax credits to all eligible
16 production companies who film or record qualified commercials within the
17 metropolitan commuter transportation district as defined in section
18 twelve hundred sixty-two of the public authorities law. The amount of
19 the credit shall be the product (or pro rata share of the product, in
20 the case of a member of a partnership) of five percent of the qualified
21 production costs paid or incurred in the production of a qualified
22 commercial, provided that the qualified production costs paid or
23 incurred are attributable to the use of tangible property or the
24 performance of services within the state in the production of such qual-
25 ified commercial. To be eligible for said credit the total qualified
26 production costs of a qualified production company must be greater than
27 five hundred thousand dollars in the aggregate during the calendar year.
28 Such credit will be applied to qualified production costs exceeding five
29 hundred thousand dollars in a calendar year.
30 (iii) The state annually will disburse one million of the total
31 [seven] TEN million in tax credits to all eligible production companies
32 who film or record a qualified commercial outside of the metropolitan
33 commuter transportation district as defined in section twelve hundred
34 sixty-two of the public authorities law. The amount of the credit shall
35 be the product (or pro rata share of the product, in the case of a
36 member of a partnership) of five percent of the qualified production
37 costs paid or incurred in the production of a qualified commercial,
38 provided that the qualified production costs paid or incurred are
39 attributable to the use of tangible property or the performance of
40 services within the state in the production of such qualified commer-
41 cial. To be eligible for said credit the total qualified production
42 costs of a qualified production company must be greater than two hundred
43 thousand dollars in the aggregate during the calendar year. Such credit
44 will be applied to qualified production costs exceeding two hundred
45 thousand dollars in a calendar year.
46 (IV) PROVIDED, HOWEVER, IF THERE IS ANY MONEY REMAINING FOR THE ANNUAL
47 TAX CREDIT DISBURSEMENT AS DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARA-
48 GRAPH, SUCH MONEY SHALL BE DISBURSED TO ALL ELIGIBLE PRODUCTION COMPA-
49 NIES SATISFYING THE CRITERIA SET FORTH IN SUBPARAGRAPHS (I) AND (II) OF
50 THIS PARAGRAPH ON A PRO RATA BASIS.
51 S 2. Section 8 of part V of chapter 62 of the laws of 2006 amending
52 the tax law relating to the empire state commercial production tax cred-
53 it, as amended by chapter 440 of the laws of 2006, subdivision (d) as
54 amended by chapter 300 of the laws of 2007, is amended to read as
55 follows:
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1 S 8. Maximum amount of credits. (a) The aggregate amount of tax cred-
2 its allowed under subparagraph (i) of paragraph 2 of subdivision (a) of
3 section 28, subdivision 38 of section 210 and subsection (jj) of section
4 606 of the tax law in any calendar year shall be $[3] 4.5 million. Such
5 aggregate amount of credits shall be allocated by the governor's office
6 for motion picture and television development among taxpayers on a pro
7 rata basis. Such office shall establish by rules and regulations a date
8 certain on which the taxpayers eligible for such pro rata allocation
9 shall be determined.
10 (b) The aggregate amount of tax credits allowed under subparagraph
11 (ii) of paragraph 2 of subdivision (a) of section 28, subdivision 38 of
12 section 210 and subsection (jj) of section 606 of the tax law in any
13 calendar year shall be $[3] 4.5 million. Such aggregate amount of cred-
14 its shall be allocated by the governor's office for motion picture and
15 television development among taxpayers on a pro rata basis. If the total
16 amount of allocated credits applied for in any particular year exceeds
17 the aggregate amount of tax credits allowed for such year under this
18 section, such excess shall be treated as having been applied for on the
19 first day of the subsequent year.
20 (c) The aggregate amount of tax credits allowed under subparagraph
21 (iii) of paragraph 2 of subdivision (a) of section 28, subdivision 38 of
22 section 210 and subsection (jj) of section 606 of the tax law in any
23 calendar year shall be $1 million. Such aggregate amount of credits
24 shall be allocated by the governor's office for motion picture and tele-
25 vision development among taxpayers on a pro rata basis. If the total
26 amount of allocated credits applied for in any particular year exceeds
27 the aggregate amount of tax credits allowed for such year under this
28 section, such excess shall be treated as having been applied for on the
29 first day of the subsequent year.
30 (d) The aggregate amount of tax credits allowed pursuant to the
31 authority of subdivision (c) of section 1201-a of the tax law in any
32 calendar year shall be $[3] 4.5 million for 2007 through 2011 allocated
33 equally to the credit substantially identical to credits allowed under
34 subparagraphs (i) and (ii) of paragraph 2 of section 28 of the tax law.
35 Such aggregate amount of credits shall be allocated by the mayor's
36 office of film, theater and broadcasting among taxpayers on a pro rata
37 basis. Such credits shall be allocated in amounts to be determined by
38 the city via local law and such credits shall be substantially identical
39 to credits allowed under subparagraphs (i) and (ii) of paragraph 2 of
40 subdivision (a) of section 28 of the tax law. Provided however nothing
41 herein shall preclude the city via local law from allocating its entire
42 annual amount of credits to one category of credits allowed under
43 subparagraph (i) or (ii) of paragraph 2 of subdivision (a) of section 28
44 of the tax law.
45 (e) The New York state commissioner of economic development, after
46 consulting with the New York state commissioner of taxation and finance,
47 the New York city commissioner of finance and the mayor's office of
48 film, theater and broadcasting shall promulgate regulations by October
49 31, 2006 to establish procedures for the allocation of tax credits as
50 required by subdivisions (a), (b) and (c) of this section. Such rules
51 and regulations shall include provisions describing the application
52 process, the due dates for such applications, the standards which shall
53 be used to evaluate the applications, the documentation that will be
54 provided to taxpayers to substantiate to the New York state department
55 of taxation and finance or the New York city department of finance the
56 amount of tax credits allocated to such taxpayers, and such other
S. 4527 4
1 provisions as are deemed necessary and appropriate. Notwithstanding any
2 other provisions to the contrary in the state administrative procedure
3 act or the city administrative procedure act, such rules and regulations
4 may be adopted on an emergency basis if necessary to meet such October
5 31, 2006 deadline.
6 S 3. This act shall take effect immediately and shall apply to taxable
7 years beginning on and after January 1, 2011; provided, however, that
8 the amendments to paragraph 2 of subdivision (a) of section 28 of the
9 tax law made by section one of this act shall not affect the repeal of
10 such section and shall be deemed repealed therewith.