S T A T E O F N E W Y O R K
________________________________________________________________________
3186
2009-2010 Regular Sessions
I N A S S E M B L Y
January 23, 2009
___________
Introduced by M. of A. O'MARA, REILICH, TEDISCO, KOLB, MOLINARO, McKEV-
ITT -- Multi-Sponsored by -- M. of A. BACALLES, BALL, BARCLAY,
BURLING, BUTLER, CONTE, CROUCH, DUPREY, ERRIGO, FINCH, HAWLEY,
P. LOPEZ, MILLER, OAKS, QUINN, RAIA, SALADINO, SAYWARD, SCOZZAFAVA,
SPANO, THIELE, TOWNSEND, WALKER -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the tax law, in relation to a small business electric
energy tax credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 210 of the tax law is amended by adding a new
subdivision 41 to read as follows:
41. SMALL BUSINESS ELECTRIC ENERGY TAX CREDIT. (A) A TAXPAYER THAT IS
ELIGIBLE UNDER THE LIMITATIONS SPECIFIED IN PARAGRAPH (B) OF THIS SUBDI-
VISION SHALL BE ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS ARTI-
CLE. THE AMOUNT OF THE CREDIT SHALL BE EQUAL TO THE PRODUCT OF TWO
CENTS PER KILOWATT HOUR FOR ALL BUSINESS RELATED ELECTRICITY USAGE AT
THE TAXPAYER'S PRIMARY BUSINESS LOCATION.
(B) AN ELIGIBLE TAXPAYER SHALL:
(I) HAVE NO MORE THAN TWENTY FULL TIME EQUIVALENT EMPLOYEES IN NEW
YORK STATE, INCLUDING ANY RELATED MEMBERS OR AFFILIATES;
(II) NOT BE A SOLE-PROPRIETORSHIP IF SUCH SOLE-PROPRIETOR'S PRIMARY
BUSINESS LOCATION IS SITED IN OR PART OF SUCH SOLE-PROPRIETOR'S PLACE OF
RESIDENCE;
(III) NOT BE CERTIFIED PURSUANT TO ARTICLE EIGHTEEN-B OF THE GENERAL
MUNICIPAL LAW; AND
(IV) NOT BE RECEIVING ANY ALLOCATION OR AWARD PURSUANT TO ANY PROGRAM
AUTHORIZED UNDER ARTICLE SIX OF THE ECONOMIC DEVELOPMENT LAW.
(C) (I) THE TERM "BUSINESS RELATED ELECTRICITY USAGE" SHALL REFER TO
ELECTRICAL POWER USAGE USED AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION
TO FURTHER THE ECONOMIC ACTIVITY OF THE TAXPAYER AT THE PRIMARY BUSINESS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01141-03-9
A. 3186 2
LOCATION THAT IS CLEARLY DELIMITED FROM ANY SHARED ELECTRICAL POWER
USAGE COST.
(II) THE TERM "PRIMARY BUSINESS LOCATION" SHALL MEAN THE PHYSICAL SITE
OF THE TAXPAYER WITHIN THE STATE OF NEW YORK WHERE THE MAJORITY OF THE
TAXPAYER'S ECONOMIC ACTIVITY IS GENERATED OR COORDINATED THROUGH.
(III) THE TERM "RELATED MEMBERS" SHALL HAVE THE SAME MEANING AS SET
FORTH IN CLAUSES (A) AND (B) OF SUBPARAGRAPH ONE OF PARAGRAPH (O) OF
SUBDIVISION NINE OF SECTION TWO HUNDRED EIGHT OF THIS ARTICLE, AS
AMENDED BY SECTION ONE OF PART M OF CHAPTER SIX HUNDRED EIGHTY-SIX OF
THE LAWS OF TWO THOUSAND THREE, AND THE TERM "AFFILIATES" SHALL MEAN
THOSE CORPORATIONS THAT ARE MEMBERS OF THE SAME AFFILIATED GROUP (AS
DEFINED IN SECTION FIFTEEN HUNDRED FOUR OF THE INTERNAL REVENUE CODE) AS
THE TAXPAYER.
(D) THE ELIGIBLE USAGE LEVEL SHALL BE THE TOTAL KILOWATT HOUR USAGE OF
THE TAXPAYER FOR BUSINESS RELATED ELECTRICITY USAGE DURING THE TAXPAY-
ER'S TAXABLE YEAR AS VERIFIED THROUGH BILLS OR OTHER FORM OF USAGE CHART
PROVIDED TO THE TAXPAYER BY THE TAXPAYER'S ELECTRICITY POWER SERVICE
PROVIDER.
(E) THE CREDIT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR
SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS THAN THE HIGHER OF
THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF SUBDIVISION ONE OF
THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDIT ALLOWED UNDER THIS SUBDI-
VISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO SUCH AMOUNT, ANY AMOUNT
OF CREDIT NOT DEDUCTIBLE IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN
OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF THIS CHAPTER. PROVIDED,
HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF SECTION ONE THOUSAND EIGHT-
Y-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE PAID THER-
EON.
S 2. Section 606 of the tax law is amended by adding a new subsection
(qq) to read as follows:
(QQ) SMALL BUSINESS ELECTRIC ENERGY TAX CREDIT. (1) A TAXPAYER THAT IS
ELIGIBLE UNDER THE LIMITATIONS SPECIFIED IN PARAGRAPH TWO OF THIS
SUBSECTION SHALL BE ALLOWED A CREDIT AGAINST THE TAX IMPOSED BY THIS
ARTICLE. THE AMOUNT OF THE CREDIT SHALL BE EQUAL TO THE PRODUCT (OR PRO
RATA SHARE OF THE PRODUCT IN THE CASE OF A PARTNERSHIP) OF TWO CENTS PER
KILOWATT HOUR FOR ALL BUSINESS RELATED ELECTRICITY USAGE AT THE TAXPAY-
ER'S PRIMARY BUSINESS LOCATION.
(2) AN ELIGIBLE TAXPAYER SHALL:
(I) HAVE NO MORE THAN TWENTY FULL TIME EQUIVALENT EMPLOYEES IN NEW
YORK STATE, INCLUDING ANY RELATED MEMBERS OR AFFILIATES;
(II) SHALL NOT BE A SOLE-PROPRIETORSHIP IF SUCH SOLE-PROPRIETOR'S
PRIMARY BUSINESS LOCATION IS SITED IN OR PART OF SUCH SOLE-PROPRIETOR'S
PLACE OF RESIDENCE;
(III) NOT BE CERTIFIED PURSUANT TO ARTICLE EIGHTEEN-B OF THE GENERAL
MUNICIPAL LAW; AND
(IV) NOT BE RECEIVING ANY ALLOCATION OR AWARD PURSUANT TO ANY PROGRAM
AUTHORIZED UNDER ARTICLE SIX OF THE ECONOMIC DEVELOPMENT LAW.
(3) (I) THE TERM "BUSINESS RELATED ELECTRICITY USAGE" SHALL REFER TO
ELECTRICAL POWER USAGE USED AFTER THE EFFECTIVE DATE OF THIS SUBSECTION
TO FURTHER THE ECONOMIC ACTIVITY OF THE TAXPAYER AT THE PRIMARY BUSINESS
LOCATION THAT IS CLEARLY DELIMITED FROM ANY SHARE ELECTRICAL POWER USAGE
COST.
(II) THE TERM "PRIMARY BUSINESS LOCATION" SHALL MEAN THE PHYSICAL SITE
OF THE TAXPAYER WITHIN THE STATE OF NEW YORK WHERE THE MAJORITY OF THE
TAXPAYER'S ECONOMIC ACTIVITY IS GENERATED OR COORDINATED THROUGH.
A. 3186 3
(III) THE TERM "RELATED MEMBERS" SHALL HAVE THE SAME MEANING AS SET
FORTH IN CLAUSES (A) AND (B) OF SUBPARAGRAPH ONE OF PARAGRAPH (O) OF
SUBDIVISION NINE OF SECTION TWO HUNDRED EIGHT OF THIS CHAPTER, AS
AMENDED BY SECTION ONE OF PART M OF CHAPTER SIX HUNDRED EIGHTY-SIX OF
THE LAWS OF TWO THOUSAND THREE, AND THE TERM "AFFILIATES" SHALL MEAN
THOSE CORPORATIONS THAT ARE MEMBERS OF THE SAME AFFILIATED GROUP (AS
DEFINED IN SECTION FIFTEEN HUNDRED FOUR OF THE INTERNAL REVENUE CODE) AS
THE TAXPAYER.
(4) THE ELIGIBLE USAGE LEVEL SHALL BE THE TOTAL KILOWATT HOUR USAGE OF
THE TAXPAYER FOR BUSINESS RELATED ELECTRICITY USAGE DURING THE TAXPAY-
ER'S TAXABLE YEAR AS VERIFIED THROUGH BILLS OR OTHER FORM OF USAGE CHART
PROVIDED TO THE TAXPAYER BY THE TAXPAYER'S ELECTRICITY POWER SERVICE
PROVIDER.
(5) IF THE AMOUNT OF CREDIT ALLOWED UNDER THIS SUBSECTION FOR ANY
TAXABLE YEAR SHALL EXCEED THE TAXPAYER'S TAX FOR SUCH YEAR, THE EXCESS
SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED EIGHTY-SIX OF THIS
ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE PAID THEREON.
S 3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
the laws of 2008, is amended to read as follows:
(B) shall be treated as the owner of a new business with respect to
such share if the corporation qualifies as a new business pursuant to
paragraph (j) of subdivision twelve of section two hundred ten of this
chapter.
The corporation's credit base under
section two hundred ten or section
With respect to the following fourteen hundred fifty-six of this
credit under this section: chapter is:
(I) Investment tax credit Investment credit base
under subsection (a) or qualified
rehabilitation
expenditures under
subdivision twelve of
section two hundred ten
(II) Empire zone Cost or other basis
investment tax credit under subdivision
under subsection (j) twelve-B
of section two hundred
ten
(III) Empire zone Eligible wages under
wage tax credit subdivision nineteen of
under subsection (k) section two hundred ten
or subsection (e) of
section fourteen hundred
fifty-six
(IV) Empire zone Qualified investments
capital tax credit and contributions under
under subsection (l) subdivision twenty of
section two hundred ten
or subsection (d) of
A. 3186 4
section fourteen hundred
fifty-six
(V) Agricultural property tax Allowable school
credit under subsection (n) district property taxes under
subdivision twenty-two of
section two hundred ten
(VI) Credit for employment Qualified first-year wages or
of persons with dis- qualified second-year wages
abilities under under subdivision
subsection (o) twenty-three of section
two hundred ten
or subsection (f)
of section fourteen
hundred fifty-six
(VII) Employment incentive Applicable investment credit
credit under subsec- base under subdivision
tion (a-1) twelve-D of section two
hundred ten
(VIII) Empire zone Applicable investment
employment credit under sub-
incentive credit under division twelve-C
subsection (j-1) of section two hundred ten
(IX) Alternative fuels credit Cost under subdivision
under subsection (p) twenty-four of section two
hundred ten
(X) Qualified emerging Applicable credit base
technology company under subdivision twelve-E
employment credit of section two hundred ten
under subsection (q)
(XI) Qualified emerging Qualified investments under
technology company subdivision twelve-F of
capital tax credit section two hundred ten
under subsection (r)
(XII) Credit for purchase of an Cost of an automated
automated external defibrillator external defibrillator under
under subsection (s) subdivision twenty-five of
section two hundred ten
or subsection (j) of section
fourteen hundred fifty-six
(XIII) Low-income housing Credit amount under
credit under subsection (x) subdivision thirty
of section two hundred ten or
subsection (l) of section
fourteen hundred fifty-six
A. 3186 5
(XIV) Credit for transportation Amount of credit under sub-
improvement contributions division thirty-two of section
under subsection (z) two hundred ten or subsection
(n) of section fourteen
hundred fifty-six
(XV) QEZE credit for real property Amount of credit under
taxes under subsection (bb) subdivision twenty-seven of
section two hundred ten or
subsection (o) of section
fourteen hundred fifty-six
(XVI) QEZE tax reduction credit Amount of benefit period
under subsection (cc) factor, employment increase factor
and zone allocation
factor (without regard
to pro ration) under
subdivision twenty-eight of
section two hundred ten or
subsection (p) of section
fourteen hundred fifty-six
and amount of tax factor
as determined under
subdivision (f) of section sixteen
(XVII) Green building credit Amount of green building credit
under subsection (y) under subdivision thirty-one
of section two hundred ten
or subsection (m) of section
fourteen hundred fifty-six
(XVIII) Credit for long-term Qualified costs under
care insurance premiums subdivision twenty-five-a of
under subsection (aa) section two hundred ten
or subsection (k) of section
fourteen hundred fifty-six
(XIX) Brownfield redevelopment Amount of credit
credit under subsection under subdivision
(dd) thirty-three of section
two hundred ten
or subsection (q) of
section fourteen hundred
fifty-six
(XX) Remediated brownfield Amount of credit under
credit for real property subdivision thirty-four
taxes for qualified of section two hundred
sites under subsection ten or subsection (r) of
(ee) section fourteen hundred
fifty-six
(XXI) Environmental Amount of credit under
remediation subdivision thirty-five of
insurance credit under section two hundred
subsection (ff) ten or subsection
A. 3186 6
(s) of section
fourteen hundred
fifty-six
(XXII) Empire state film production Amount of credit for qualified
credit under subsection (gg) production costs in production
of a qualified film under
subdivision thirty-six of
section two hundred ten
(XXIII) Qualified emerging Qualifying expenditures and
technology company facilities, development activities under
operations and training credit subdivision twelve-G of section
under subsection (nn) two hundred ten
(XXIV) Security training tax Amount of credit
credit under under subdivision thirty-seven
subsection (ii) of section two hundred ten or
under subsection (t) of
section fourteen hundred fifty-six
(XXV) Credit for qualified fuel Amount of credit under
cell electric generating equipment subdivision thirty-seven
expenditures under subsection (g-2) of section two hundred ten
or subsection (t) of
section fourteen hundred
fifty-six
(XXVI) Empire state commercial Amount of credit for qualified
production credit under production costs in production
subsection (jj) of a qualified commercial under
subdivision thirty-eight of section
two hundred ten
(XXVII) Biofuel production Amount of credit
tax credit under under subdivision
subsection (jj) thirty-eight of
section two hundred ten
(XXVIII) Clean heating fuel credit Amount of credit
under subsection (mm) under subdivision thirty-nine of
section two hundred ten
(XXIX) Credit for rehabilitation Amount of credit under
of historic properties subdivision forty of
under subsection (oo) subsection two hundred ten
(XXX) Credit for companies who Amount of credit under
provide transportation subdivision forty of
to individuals section two hundred ten
with disabilities
under subsection (oo)
(XXXI) SMALL BUSINESS ELECTRICITY QUALIFYING ELECTRICITY USAGE
ENERGY CREDIT UNDER SUBSECTION CREDIT UNDER SUBDIVISION FORTY-ONE
(QQ) OF SECTION TWO HUNDRED TEN
A. 3186 7
S 4. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2009; provided, however that the
empire state film production credit under subsection (gg), the empire
state commercial production credit under subsection (jj) and the credit
for companies who provide transportation to individuals with disabili-
ties under subsection (oo) of section 606 of the tax law contained in
section three of this act shall expire on the same date as provided in
section 9 of part P of chapter 60 of the laws of 2004, as amended,
section 10 of part V of chapter 62 of the laws of 2006, and section 5 of
chapter 522 of the laws of 2006, as amended, respectively.