S T A T E O F N E W Y O R K
________________________________________________________________________
5838
2009-2010 Regular Sessions
I N A S S E M B L Y
February 20, 2009
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Ways and Means
AN ACT to amend the tax law, in relation to brownfield redevelopment tax
credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs 1, 2, 4, 6 and 7 of subdivision (a) of section
21 of the tax law, as amended by section 1 of part H of chapter 577 of
the laws of 2004, are amended to read as follows:
(1) General. A taxpayer subject to tax under article nine, nine-A,
twenty-two, thirty-two or thirty-three of this chapter shall be allowed
a credit against such tax, pursuant to the provisions referenced in
subdivision (f) of this section. Such credit shall be allowed with
respect to a qualified site, as such term is defined in paragraph one of
subdivision (b) of this section. The amount of the credit in a taxable
year shall be the sum of the credit components specified in paragraphs
two, three and four of this subdivision applicable in such year.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THE QUALIFIED SITE IS
OWNED BY, OR WAS ACQUIRED BY A TAXPAYER FROM, A MUNICIPALITY, AS SUCH
TERM IS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 27-1405 OF THE
ENVIRONMENTAL CONSERVATION LAW, THE CREDIT SHALL BE REDUCED BY THE
FOLLOWING AMOUNTS TO THE EXTENT THAT THEY WERE INCURRED AFTER THE DATE
OF THE BROWNFIELD SITE CLEANUP AGREEMENT EXECUTED BY THE TAXPAYER AND
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO SECTION 27-1409
OF THE ENVIRONMENTAL CONSERVATION LAW (A) THE AMOUNT OF ALL SITE PREPA-
RATION COSTS AND ON-SITE GROUNDWATER REMEDIATION COSTS UNDERTAKEN
SPECIFICALLY ON SUCH QUALIFIED SITE BY OR AT THE EXPENSE OF SUCH MUNICI-
PALITY (OR ANY AFFILIATED MUNICIPALITY THEREOF), (B) THE AMOUNT OF ALL
COSTS OF ALL INFRASTRUCTURE WORK, AS DEFINED BELOW, UNDERTAKEN SPECIF-
ICALLY ON THE QUALIFIED SITE BY OR AT THE EXPENSE OF SUCH MUNICIPALITY
(OR ANY AFFILIATED MUNICIPALITY THEREOF) AND (C) THE AMOUNT OF ALL COSTS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07967-01-9
A. 5838 2
FOR IMPROVEMENTS UNDERTAKEN BY OR AT THE EXPENSE OF THE MUNICIPALITY (OR
ANY AFFILIATED MUNICIPALITY THEREOF) SPECIFICALLY ON ANY PORTION OF THE
QUALIFIED SITE WHICH WILL BE AVAILABLE TO THE GENERAL PUBLIC FREE OF
CHARGE OR WHICH IMPROVEMENTS ARE MADE FOR ENVIRONMENTAL CONSERVATION
PURPOSES; AND SUCH AMOUNT OF ALL COSTS UNDER SUBPARAGRAPHS (A), (B) AND
(C) OF THIS PARAGRAPH SHALL INSTEAD BE PAID BY THE TAX DEPARTMENT TO
SUCH MUNICIPALITY (OR ANY AFFILIATED MUNICIPALITY DESIGNATED BY SUCH
MUNICIPALITY); PROVIDED, HOWEVER, THAT SUCH MUNICIPALITY MAY WAIVE ITS
RIGHT TO ANY SUCH PAYMENT, IN WHOLE OR IN PART, BY FILING WRITTEN NOTICE
OF SUCH WAIVER WITH THE COMMISSIONER ON OR BEFORE THE DATE THE TAXPAYER
FILES A RETURN CLAIMING THE CREDIT DESCRIBED IN THIS SECTION, AND THE
AMOUNT OF ANY SUCH PAYMENT SO WAIVED SHALL NOT BE A REDUCTION AGAINST
THE CREDIT AVAILABLE TO TAXPAYER HEREUNDER. FOR PURPOSES OF THIS
SECTION, "INFRASTRUCTURE WORK" MEANS ALL IMPROVEMENTS WHICH ARE CUSTOM-
ARILY CONSTRUCTED OR INSTALLED BY A MUNICIPALITY AND ARE GENERALLY
NECESSARY FOR A SITE TO BE DEVELOPED, INCLUDING WITHOUT LIMITATION
ROADS, CURBS, SIDEWALKS, SEWERS, UTILITIES, BULKHEADING, DRAINAGE FACIL-
ITIES AND RELATED EARTHWORK AND LANDSCAPING.
(2) Site preparation credit component. The site preparation credit
component shall be equal to the applicable percentage of the site prepa-
ration costs paid or incurred by the taxpayer OR THE MUNICIPALITY (OR
ANY AFFILIATED MUNICIPALITY THEREOF) ENTITLED TO A PAYMENT PURSUANT TO
PARAGRAPH ONE OF THIS SUBDIVISION with respect to a qualified site. The
credit component amount so determined with respect to a site's quali-
fication for a certificate of completion shall be allowed for the taxa-
ble year in which the effective date of the certificate of completion
occurs. The credit component amount determined other than with respect
to such qualification shall be allowed for the taxable year in which the
improvement to which the applicable costs apply is placed in service for
up to five taxable years after the issuance of such certificate of
completion.
(4) On-site groundwater remediation credit component. The on-site
groundwater remediation credit component shall be equal to the applica-
ble percentage of the on-site groundwater remediation costs paid or
incurred by the taxpayer OR THE MUNICIPALITY (OR ANY AFFILIATED MUNICI-
PALITY THEREOF) ENTITLED TO A PAYMENT PURSUANT TO PARAGRAPH ONE OF THIS
SUBDIVISION with respect to a qualified site (to the extent that such
groundwater remediation costs are not included in the determination of
the site preparation credit or the cost or other basis included in the
determination of the tangible property credit). The credit component so
determined for costs incurred and paid with respect to and prior to the
issuance of a certificate of completion shall be allowed for the taxable
year in which the effective date of the issuance of a certificate of
completion occurs. The credit component amount determined in taxable
years after the effective date of the issuance of a certificate of
completion shall be allowed in the taxable year such qualified costs are
incurred and paid for up to five taxable years after the issuance of
such certificate of completion.
(6) Site preparation costs and on-site groundwater remediation costs
paid or incurred by the taxpayer OR THE MUNICIPALITY (OR ANY AFFILIATED
MUNICIPALITY THEREOF) ENTITLED TO A PAYMENT PURSUANT TO PARAGRAPH ONE OF
THIS SUBDIVISION with respect to a qualified site and the cost or other
basis for federal income tax purposes of tangible personal property and
other tangible property, including buildings and structural components
of buildings, which constitute qualified tangible property shall only
include costs paid or incurred by the taxpayer OR THE MUNICIPALITY (OR
A. 5838 3
ANY AFFILIATED MUNICIPALITY THEREOF) ENTITLED TO A PAYMENT PURSUANT TO
PARAGRAPH ONE OF THIS SUBDIVISION on or after the date of the brownfield
site cleanup agreement executed by the taxpayer and the department of
environmental conservation pursuant to section 27-1409 of the environ-
mental conservation law.
(7) The amount of any grant received from the federal, state or a
local government or an instrumentality or public benefit corporation
thereof received by the taxpayer and used to pay for any of the costs
described in paragraphs two, three and four of this subdivision, which
was not included in the federal gross income of the taxpayer, shall be
subtracted in computing the credit components under this section;
PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO ANY AMOUNTS THE SOURCE OF
WHICH ARE PAYMENTS PURSUANT TO PARAGRAPH ONE OF THIS SUBDIVISION.
S 2. Paragraph 3 of subdivision (b) of section 21 of the tax law, as
amended by chapter 420 of the laws of 2006, is amended to read as
follows:
(3) Qualified tangible property. "Qualified tangible property" is
property described in either subparagraph (A) or (B) of this paragraph
which:
(A) (i) is depreciable pursuant to section one hundred sixty-seven of
the internal revenue code,
(ii) has a useful life of four years or more,
(iii) has been acquired by purchase as defined in section one hundred
seventy-nine (d) of the internal revenue code BY THE TAXPAYER OR THE
MUNICIPALITY (OR ANY AFFILIATED MUNICIPALITY THEREOF) ENTITLED TO A
PAYMENT PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (A) OF THIS SECTION,
(iv) has a situs on a qualified site in this state, and
(v) is principally used by the taxpayer for industrial, commercial,
recreational or environmental conservation purposes (including the
commercial development of residential housing); or
(B)(i) is, or when occupied becomes, part of a dwelling whose primary
ownership structure is covered under either article nine-B of the real
property law or meets the requirements of section 216 (b)(1) of the
Internal Revenue Code;
(ii) has been acquired by purchase (as defined in section one hundred
seventy-nine (d) of the Internal Revenue Code) BY THE TAXPAYER OR THE
MUNICIPALITY (OR ANY AFFILIATED MUNICIPALITY THEREOF) ENTITLED TO A
PAYMENT PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (A) OF THIS SECTION;
(iii) has a situs on a qualified site in this state; and
(iv) for purposes of this subparagraph only, and notwithstanding any
other section of law to the contrary, property qualifying under this
subparagraph shall be deemed to be qualified tangible property for the
purposes of paragraph one of subdivision (d) of this section; and in
addition, for the purposes of this subdivision only, property qualifying
under this subparagraph shall be deemed to have been placed in service
for the purposes of paragraph three of subdivision (a) of this section
when a certificate of occupancy is issued for such property.
S 3. This act shall take effect immediately and shall apply to all
qualified sites from the date on which the brownfield site clean-up
agreement with respect to such qualified site was entered into, includ-
ing without limitation such brownfield site clean-up agreements entered
into prior to such effective date.