S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4420

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 23, 2009
                               ___________

Introduced  by  Sen.  O. JOHNSON  -- read twice and ordered printed, and
  when printed to be committed to the Committee  on  Investigations  and
  Government Operations

AN  ACT  to  amend the tax law, in relation to pollution tax credits for
  the purchase of certain equipment made by dry cleaning businesses

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision (a) of section 1115 of the tax law is amended
by adding a new paragraph 44 to read as follows:
  (44) EQUIPMENT OR MACHINERY CERTIFIED BY THE  DEPARTMENT  OF  ENVIRON-
MENTAL CONSERVATION, PURSUANT TO REGULATIONS PROMULGATED BY SUCH DEPART-
MENT,  FOR  POLLUTION  PREVENTION OR CONTROL WHICH, FOR PURPOSES OF THIS
PARAGRAPH, SHALL MEAN ANY PROCESS, FACILITY, DEVICE, FIXTURE,  EQUIPMENT
OR  MACHINERY USED PRIMARILY FOR THE CONTROL, PREVENTION OR ABATEMENT OF
POLLUTION OR CONTAMINANTS FROM THE OPERATION OF A  DRY  CLEANING  PLANT,
INCLUDING  ANY STRUCTURE, MACHINERY OR EQUIPMENT INSTALLED IN THE RECON-
STRUCTION OR REPLACEMENT OF SUCH  PROCESS,  FACILITY,  DEVICE,  FIXTURE,
EQUIPMENT OR MACHINERY.
  S  2.  Subparagraph (A) of   paragraph 2 of subsection  (a) of section
606 of the tax law, as amended by chapter 637 of the laws  of  2008,  is
amended to read as follows:
  (A)  A  credit  shall be allowed under this subsection with respect to
tangible personal property and other tangible property, including build-
ings and structural components  of  buildings,  which  are:  depreciable
pursuant  to  section  one  hundred  sixty-seven of the internal revenue
code, have a useful life of four years or more, are acquired by purchase
as defined in section one  hundred  seventy-nine  (d)  of  the  internal
revenue code, have a situs in this state and are (i) principally used by
the  taxpayer  in  the production of goods by manufacturing, processing,
assembling, refining, mining, extracting, farming,  agriculture,  horti-
culture,  floriculture,  viticulture  or commercial fishing, (ii) indus-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06208-01-9
              

S. 4420                             2

trial waste treatment facilities or air  pollution  control  facilities,
used in the taxpayer's trade or business OR BUSINESS INVESTMENTS MADE BY
DRY  CLEANING  BUSINESSES  TO  ACHIEVE  POLLUTION  PREVENTION  INCLUDING
INVESTMENTS  INTO  CHANGES  IN FACILITY PROCESSES OR OPERATIONS METHODS,
(iii) research and development property, (iv) principally  used  in  the
ordinary course of the taxpayer's trade or business as a broker or deal-
er  in connection with the purchase or sale (which shall include but not
be limited to the issuance, entering into, assumption,  offset,  assign-
ment,  termination, or transfer) of stocks, bonds or other securities as
defined in section four hundred  seventy-five  (c)(2)  of  the  Internal
Revenue  Code,  or  of  commodities  as defined in section 475(e) of the
Internal Revenue Code, (v) principally used in the  ordinary  course  of
the  taxpayer's  trade  or  business  of  providing  investment advisory
services for a regulated investment company as defined in section  eight
hundred  fifty-one  of  the  Internal  Revenue  Code,  or  lending, loan
arrangement or loan origination services to customers in connection with
the purchase or sale (which shall include but  not  be  limited  to  the
issuance, entering into, assumption, offset, assignment, termination, or
transfer)  of securities as defined in section four hundred seventy-five
(c)(2) of the Internal Revenue Code, or (vi) principally used as a qual-
ified film  production  facility  including  qualified  film  production
facilities  having a situs in an empire zone designated as such pursuant
to article eighteen-B of the general municipal law, where  the  taxpayer
is  providing  three  or  more services to any qualified film production
company using the facility, including such services as a studio lighting
grid, lighting and grip equipment, multi-line phone  service,  broadband
information  technology  access,  industrial  scale electrical capacity,
food services, security  services,  and  heating,  ventilation  and  air
conditioning. For purposes of clauses (iv) and (v) of this subparagraph,
property  purchased  by  a  taxpayer affiliated with a regulated broker,
dealer, or registered investment adviser is allowed a credit under  this
subsection  if  the property is used by its affiliated regulated broker,
dealer  or  registered  investment  adviser  in  accordance  with   this
subsection.  For  purposes of determining if the property is principally
used in qualifying uses, the uses by the taxpayer described  in  clauses
(iv)  and  (v)  of this subparagraph may be aggregated. In addition, the
uses by the taxpayer, its affiliated regulated broker, dealer and regis-
tered investment adviser under either or both of those  clauses  may  be
aggregated. Provided, however, a taxpayer shall not be allowed the cred-
it  provided  by  clauses  (iv)  and (v) of this subparagraph unless (I)
eighty percent or more of the employees  performing  the  administrative
and  support  functions resulting from or related to the qualifying uses
of such equipment are located in this state, or (II) the average  number
of  employees  that  perform  the  administrative  and support functions
resulting from or related to the qualifying uses of such  equipment  and
are  located  in this state during the taxable year for which the credit
is claimed is equal to or greater than ninety-five percent of the  aver-
age  number of employees that perform these functions and are located in
this state during the thirty-six months immediately preceding  the  year
for  which  the  credit  is  claimed,  or  (III) the number of employees
located in this state during the taxable year for which  the  credit  is
claimed  is  equal  to  or  greater than ninety percent of the number of
employees located in  this  state  on  December  thirty-first,  nineteen
hundred ninety-eight or, if the taxpayer was not a calendar year taxpay-
er  in  nineteen hundred ninety-eight, the last day of its first taxable
year ending after December thirty-first, nineteen hundred  ninety-eight.

S. 4420                             3

If  the  taxpayer becomes subject to tax in this state after the taxable
year beginning in nineteen hundred ninety-eight, then  the  taxpayer  is
not  required  to  satisfy the employment test provided in the preceding
sentence  of  this  subparagraph  for  its  first  taxable year. For the
purposes of clause (III) of this subparagraph the employment  test  will
be  based  on  the number of employees located in this state on the last
day of the first taxable year the taxpayer is subject  to  tax  in  this
state.  If  the  uses  of  the  property must be aggregated to determine
whether the property is principally used in qualifying uses, then either
each affiliate using the property must satisfy this employment  test  or
this  employment  test  must be satisfied through the aggregation of the
employees of the taxpayer, its affiliated regulated broker, dealer,  and
registered  investment  adviser using the property. For purposes of this
subsection, the term "goods" shall not include electricity.
  S 3. Subparagraph (B) of paragraph 2 of subsection (a) of section  606
of  the  tax  law is amended by adding three new clauses (vi), (vii) and
(viii) to read as follows:
  (VI) POLLUTION PREVENTION SHALL MEAN CHANGES IN PRODUCTION METHODS  OR
RAW  MATERIALS  THAT  REDUCE,  AVOID  OR  ELIMINATE  THE USE OF TOXIC OR
HAZARDOUS SUBSTANCES OR THE GENERATION OF SUCH SUBSTANCES OR  POLLUTANTS
PER  UNIT  OF  PRODUCT,  SO AS TO REDUCE RISKS TO THE HEALTH OF WORKERS,
CONSUMERS OR THE ENVIRONMENT, WITHOUT SHIFTING  RISKS  BETWEEN  WORKERS,
CONSUMERS  OR  ENVIRONMENTAL  MEDIA.  POLLUTION  PREVENTION INCLUDES THE
REDESIGN, MODIFICATION, UPGRADE OR REPLACEMENT OF PRODUCTION  PROCESSES,
EQUIPMENT  OR TECHNOLOGY; REFORMULATION OR REDESIGN OF PRODUCTS, SUBSTI-
TUTION OF INPUTS OR RAW MATERIALS; IMPROVEMENTS IN HOUSEKEEPING, MAINTE-
NANCE, TRAINING OR INVENTORY CONTROL; AND EXTENDED USE OR REUSE OF MATE-
RIALS THROUGH METHODS  INTEGRAL  TO  THE  PRODUCTION  PROCESS,  SUCH  AS
IN-PROCESS,  CLOSED-LOOP RECYCLING. SUCH TERM DOES NOT INCLUDE INCINERA-
TION, TRANSFER FROM ONE MEDIUM OF RELEASE OR DISCHARGE TO ANOTHER MEDIA,
OFF-SITE  OR  OUT-OF-PRODUCTION  RECYCLING,  END-OF-PIPE  TREATMENT   OR
POLLUTION CONTROL.
  (VII)  POLLUTANT SHALL MEAN ANY SUBSTANCE, CONTAMINANT, WASTE OR EMIS-
SION WHICH CONTRIBUTES TO POLLUTION AS DEFINED IN  ARTICLE  ONE  OF  THE
ENVIRONMENTAL CONSERVATION LAW.
  (VIII) TOXIC OR HAZARDOUS SUBSTANCE SHALL MEAN ANY SUBSTANCE LISTED AS
A  SUBSTANCE  HAZARDOUS  TO  PUBLIC HEALTH, SAFETY OR THE ENVIRONMENT IN
REGULATIONS PROMULGATED PURSUANT TO ARTICLE THIRTY-SEVEN OF THE ENVIRON-
MENTAL CONSERVATION LAW.
  S 4. Subparagraph (i) of paragraph (b) of subdivision  12  of  section
210  of  the  tax law, as amended by chapter 637 of the laws of 2008, is
amended to read as follows:
  (i) A credit shall be allowed under this subdivision with  respect  to
tangible personal property and other tangible property, including build-
ings  and  structural  components  of  buildings, which are: depreciable
pursuant to section one hundred  sixty-seven  of  the  internal  revenue
code, have a useful life of four years or more, are acquired by purchase
as  defined  in  section  one  hundred  seventy-nine (d) of the internal
revenue code, have a situs in this state and are (A) principally used by
the taxpayer in the production of goods  by  manufacturing,  processing,
assembling,  refining,  mining, extracting, farming, agriculture, horti-
culture, floriculture, viticulture or commercial fishing, (B) industrial
waste treatment facilities or air pollution control facilities, used  in
the  taxpayer's trade or business, (C) research and development property
OR BUSINESS INVESTMENTS MADE  BY  DRY  CLEANING  BUSINESSES  TO  ACHIEVE
POLLUTION  PREVENTION  INCLUDING  INVESTMENTS  INTO  CHANGES IN FACILITY

S. 4420                             4

PROCESSES OR OPERATIONS OR PRODUCTION METHODS, (D) principally  used  in
the  ordinary  course of the taxpayer's trade or business as a broker or
dealer in connection with the purchase or sale (which shall include  but
not  be  limited  to  the  issuance,  entering into, assumption, offset,
assignment, termination, or transfer) of stocks, bonds or other  securi-
ties  as  defined  in  section  four  hundred seventy-five (c)(2) of the
Internal Revenue Code, or of commodities  as  defined  in  section  four
hundred  seventy-five  (e) of the Internal Revenue Code, (E) principally
used in the ordinary course of  the  taxpayer's  trade  or  business  of
providing investment advisory services for a regulated investment compa-
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code,  or  lending,  loan  arrangement  or  loan origination services to
customers in connection with the purchase or sale (which  shall  include
but  not  be limited to the issuance, entering into, assumption, offset,
assignment, termination,  or  transfer)  of  securities  as  defined  in
section  four  hundred seventy-five (c)(2) of the Internal Revenue Code,
(F) principally used in the ordinary course of the  taxpayer's  business
as  an  exchange registered as a national securities exchange within the
meaning of sections 3(a)(1) and 6(a) of the Securities Exchange  Act  of
1934  or  a  board  of trade as defined in section 1410(a)(1) of the New
York Not-for-Profit Corporation Law or as an entity that is wholly owned
by one or more such national securities exchanges or boards of trade and
that provides automation or technical services thereto, or  (G)  princi-
pally  used  as a qualified film production facility including qualified
film production facilities having a situs in an empire  zone  designated
as  such  pursuant  to  article eighteen-B of the general municipal law,
where the taxpayer is providing three or more services to any  qualified
film production company using the facility, including such services as a
studio  lighting  grid,  lighting  and  grip equipment, multi-line phone
service, broadband information technology access, industrial scale elec-
trical capacity, food services, security services, and  heating,  venti-
lation and air conditioning. For purposes of clauses (D), (E) and (F) of
this  subparagraph,  property  purchased by a taxpayer affiliated with a
regulated broker, dealer, registered investment adviser, national  secu-
rities exchange or board of trade, is allowed a credit under this subdi-
vision if the property is used by its affiliated regulated broker, deal-
er, registered investment adviser, national securities exchange or board
of  trade in accordance with this subdivision. For purposes of determin-
ing if the property is principally used in qualifying uses, the uses  by
the  taxpayer  described in clauses (D) and (E) of this subparagraph may
be aggregated. In addition, the uses by  the  taxpayer,  its  affiliated
regulated broker, dealer, and registered investment adviser under either
or  both  of  those  clauses  may  be aggregated.   Provided, however, a
taxpayer shall not be allowed the credit provided by  clauses  (D),  (E)
and  (F)  of  this subparagraph unless (I) eighty percent or more of the
employees performing the administrative and support functions  resulting
from  or related to the qualifying uses of such equipment are located in
this state or (II) the average number  of  employees  that  perform  the
administrative  and  support  functions resulting from or related to the
qualifying uses of such equipment and are located in this  state  during
the  taxable year for which the credit is claimed is equal to or greater
than ninety-five percent of the average number of employees that perform
these functions and are located in  this  state  during  the  thirty-six
months  immediately  preceding the year for which the credit is claimed,
or (III) the number of employees located in this state during the  taxa-
ble  year  for  which  the credit is claimed is equal to or greater than

S. 4420                             5

ninety percent of the number of  employees  located  in  this  state  on
December thirty-first, nineteen hundred ninety-eight or, if the taxpayer
was  not  a calendar year taxpayer in nineteen hundred ninety-eight, the
last  day  of its first taxable year ending after December thirty-first,
nineteen hundred ninety-eight. If the taxpayer becomes subject to tax in
this state after the taxable year beginning in nineteen hundred  ninety-
eight,  then the taxpayer is not required to satisfy the employment test
provided in the preceding sentence of this subparagraph  for  its  first
taxable  year.  For  purposes  of  clause (III) of this subparagraph the
employment test will be based on the number of employees located in this
state on the last day of the first taxable year the taxpayer is  subject
to  tax in this state. If the uses of the property must be aggregated to
determine whether the property is principally used in  qualifying  uses,
then  either each affiliate using the property must satisfy this employ-
ment test or this employment test must be satisfied through  the  aggre-
gation  of  the  employees  of  the  taxpayer,  its affiliated regulated
broker, dealer, and registered investment adviser  using  the  property.
For  purposes  of  this  subdivision, the term "goods" shall not include
electricity.
  S 5. Subparagraph (ii) of paragraph (b) of subdivision 12  of  section
210  of  the tax law is amended by adding three new clauses (F), (G) and
(H) to read as follows:
  (F) POLLUTION PREVENTION SHALL MEAN CHANGES IN PRODUCTION  METHODS  OR
RAW  MATERIALS  THAT  REDUCE,  AVOID  OR  ELIMINATE  THE USE OF TOXIC OR
HAZARDOUS SUBSTANCES OR THE GENERATION OF SUCH SUBSTANCES OR  POLLUTANTS
PER  UNIT  OF  PRODUCT,  SO AS TO REDUCE RISKS TO THE HEALTH OF WORKERS,
CONSUMERS OR THE ENVIRONMENT, WITHOUT SHIFTING  RISKS  BETWEEN  WORKERS,
CONSUMERS  OR  ENVIRONMENTAL  MEDIA.  POLLUTION  PREVENTION INCLUDES THE
REDESIGN, MODIFICATION, UPGRADE OR REPLACEMENT OF PRODUCTION  PROCESSES,
EQUIPMENT  OR TECHNOLOGY; REFORMULATION OR REDESIGN OF PRODUCTS, SUBSTI-
TUTION OF INPUTS OR RAW MATERIALS; IMPROVEMENTS IN HOUSEKEEPING, MAINTE-
NANCE, TRAINING OR INVENTORY CONTROL; AND EXTENDED USE OR REUSE OF MATE-
RIALS THROUGH METHODS  INTEGRAL  TO  THE  PRODUCTION  PROCESS,  SUCH  AS
IN-PROCESS,  CLOSED-LOOP RECYCLING. SUCH TERM DOES NOT INCLUDE INCINERA-
TION, TRANSFER FROM ONE MEDIUM OF RELEASE OR DISCHARGE TO ANOTHER MEDIA,
OFF-SITE   OR  OUT-OF-PRODUCTION  RECYCLING,  END-OF-PIPE  TREATMENT  OR
POLLUTION CONTROL.
  (G) POLLUTANT SHALL MEAN ANY SUBSTANCE, CONTAMINANT, WASTE OR EMISSION
WHICH CONTRIBUTES TO POLLUTION AS DEFINED IN ARTICLE ONE OF THE ENVIRON-
MENTAL CONSERVATION LAW.
  (H) TOXIC OR HAZARDOUS SUBSTANCE SHALL MEAN ANY SUBSTANCE LISTED AS  A
SUBSTANCE HAZARDOUS TO PUBLIC HEALTH, SAFETY OR THE ENVIRONMENT IN REGU-
LATIONS  PROMULGATED  PURSUANT  TO  ARTICLE THIRTY-SEVEN OF THE ENVIRON-
MENTAL CONSERVATION LAW.
  S 6. This act shall take effect three years after it shall have become
a law and shall apply to taxable years ending on or after such effective
date, except that section one of this act shall take effect on the first
day of the sales tax quarterly period, as designated in subdivision  (b)
of  section  1136 of the tax law, next commencing on or after the effec-
tive date of this act and shall apply to sales  made  on  or  after  the
effective  date of section one of this act and shall apply to all equip-
ment or machinery purchased on or after  such  date  although  purchased
under a prior contract.