S T A T E O F N E W Y O R K
________________________________________________________________________
5784
2009-2010 Regular Sessions
I N A S S E M B L Y
February 20, 2009
___________
Introduced by M. of A. ENGLEBRIGHT, O'DONNELL, ZEBROWSKI, HOOPER, BING,
BRADLEY, JAFFEE, PAULIN, COLTON, ESPAILLAT, DelMONTE, TITONE, KELLNER,
GIANARIS, ROSENTHAL, CAHILL, MAGNARELLI, FIELDS, LENTOL, PEOPLES,
GALEF, MARKEY, JOHN -- Multi-Sponsored by -- M. of A. ABBATE, BOYLAND,
CARROZZA, EDDINGTON, KOON, LANCMAN, LUPARDO, McENENY, MILLMAN, PHEF-
FER, SWEENEY -- read once and referred to the Committee on Ways and
Means
AN ACT to amend the tax law, in relation to an empire state film post
production tax credit and to amend the state finance law, in relation
to establishing the New York state post production internship educa-
tion and development program fund; and providing for the repeal of
such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The tax law is amended by adding a new section 30 to read
as follows:
S 30. EMPIRE STATE FILM POST PRODUCTION CREDIT. (A) ALLOWANCE OF CRED-
IT. (1) A TAXPAYER WHICH IS A FILM PRODUCTION COMPANY OR A QUALIFIED
FILM PRODUCTION COMPANY, AND WHICH IS SUBJECT TO TAX UNDER ARTICLE
NINE-A OR TWENTY-TWO OF THIS CHAPTER, SHALL BE ALLOWED A CREDIT AGAINST
SUCH TAX, PURSUANT TO THE PROVISIONS REFERENCED IN SUBDIVISION (C) OF
THIS SECTION TO BE COMPUTED AS PROVIDED IN THIS SUBDIVISION.
(2) (I) THE AMOUNT OF THE CREDIT SHALL BE THE PRODUCT (OR PRO RATA
SHARE OF THE PRODUCT, IN THE CASE OF A MEMBER OF A PARTNERSHIP) OF TEN
PERCENT AND THE QUALIFIED POST PRODUCTION COSTS PAID IN THE PRODUCTION
OF A QUALIFIED FILM AT A QUALIFIED POST PRODUCTION FACILITY.
(II) IF A TAXPAYER IS ELIGIBLE FOR THE FILM PRODUCTION CREDIT PURSUANT
TO SECTION TWENTY-FOUR OF THIS ARTICLE, AND THE POST PRODUCTION COSTS
OTHERWISE MEET THE REQUIREMENTS OF SUBPARAGRAPH (I) OF THIS PARAGRAPH,
THE AMOUNT OF THE POST PRODUCTION CREDIT ALLOWED SUCH TAXPAYER SHALL BE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09124-01-9
A. 5784 2
ENHANCED BY AN ADDITIONAL FIVE PERCENT WITH RESPECT TO SUCH QUALIFIED
POST PRODUCTION COSTS.
(3) A TAXPAYER SHALL NOT BE ELIGIBLE FOR THE CREDIT ESTABLISHED BY
THIS SECTION UNLESS THE QUALIFIED POST PRODUCTION COSTS AT A QUALIFIED
POST PRODUCTION FACILITY MEET OR EXCEED SEVENTY-FIVE PERCENT OF THE
TOTAL POST PRODUCTION COSTS PAID OR INCURRED IN THE POST PRODUCTION OF
THE QUALIFIED FILM AT ANY POST PRODUCTION FACILITY. THE CREDIT SHALL BE
ALLOWED FOR THE TAXABLE YEAR IN WHICH THE PRODUCTION OF SUCH QUALIFIED
FILM IS COMPLETED.
(4) NO QUALIFIED POST PRODUCTION COSTS USED BY A TAXPAYER EITHER AS
THE BASIS FOR THE ALLOWANCE OF THE CREDIT PROVIDED FOR UNDER THIS
SECTION OR USED IN THE CALCULATION OF THE CREDIT PROVIDED FOR UNDER THIS
SECTION SHALL BE USED BY SUCH TAXPAYER TO CLAIM ANY OTHER CREDIT ALLOWED
PURSUANT TO THIS CHAPTER.
(B) DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
(1) "QUALIFIED FILM PRODUCTION COMPANY" AND "QUALIFIED FILM" SHALL
HAVE THE SAME MEANING AS ARE ASCRIBED TO SUCH TERMS BY SECTION
TWENTY-FOUR OF THIS ARTICLE.
(2) "FILM PRODUCTION COMPANY" IS A CORPORATION, PARTNERSHIP, LIMITED
PARTNERSHIP, OR OTHER ENTITY OR INDIVIDUAL WHICH OR WHO IS PRINCIPALLY
ENGAGED IN THE PRODUCTION OF A QUALIFIED FILM AND CONTROLS THE QUALIFIED
FILM DURING PRODUCTION.
(3) "POST PRODUCTION COSTS" MEANS PRODUCTION OF ORIGINAL CONTENT FOR A
QUALIFIED FILM EMPLOYING TRADITIONAL, EMERGING AND NEW WORKFLOW TECH-
NIQUES USED IN POST-PRODUCTION FOR PICTURE, SOUND AND MUSIC EDITORIAL,
RERECORDING AND MIXING, VISUAL EFFECTS, GRAPHIC DESIGN, ORIGINAL SCOR-
ING, ANIMATION, AND MUSICAL COMPOSITION; BUT SHALL NOT INCLUDE THE
EDITING OF PREVIOUSLY PRODUCED CONTENT FOR A QUALIFIED FILM.
(4) "POST PRODUCTION FACILITY" MEANS A BUILDING AND/OR COMPLEX OF
BUILDINGS AND THEIR IMPROVEMENTS ON WHICH FILM ARE INTENDED TO BE POST
PRODUCED.
(5) "QUALIFIED POST PRODUCTION FACILITY" MEANS A POST PRODUCTION
FACILITY LOCATED IN THE STATE, ENGAGED IN FINISHING A QUALIFIED FILM.
(C) WITHHOLDING OF PORTION OF CREDIT. NOTWITHSTANDING ANY OTHER
PROVISION OF LAW TO THE CONTRARY, THE AMOUNT SHALL WITHHOLD FROM ANY
CREDIT ALLOWED A TAXPAYER PURSUANT TO THIS SECTION, AN AMOUNT EQUAL TO
SEVEN PERCENT OF SUCH CREDIT CLAIMED BY THE TAXPAYER. ALL MONIES WITH-
HELD PURSUANT TO THIS SUBDIVISION SHALL BE CREDITED AND PAID INTO THE
NEW YORK STATE POST PRODUCTION INTERNSHIP EDUCATION AND DEVELOPMENT
PROGRAM FUND ESTABLISHED BY SECTION NINETY-ONE-H OF THE STATE FINANCE
LAW.
(D) LIMITATION ON CREDIT. (1) THE AGGREGATE AMOUNT OF TAX CREDITS
AUTHORIZED PURSUANT TO THIS SECTION SHALL NOT EXCEED SEVEN MILLION
DOLLARS IN EACH OF TWO THOUSAND NINE, TWO THOUSAND TEN AND TWO THOUSAND
ELEVEN TAXABLE YEARS.
(2) THE AGGREGATE AMOUNT OF TAX CREDITS EACH TAXABLE YEAR SHALL BE
ALLOCATED BY THE GOVERNOR'S OFFICE FOR MOTION PICTURE AND TELEVISION
DEVELOPMENT AMONG TAXPAYERS IN ORDER OF PRIORITY BASED UPON THE DATE OF
FILING AN APPLICATION WITH SUCH OFFICE FOR ALLOCATION OF A FILM POST
PRODUCTION CREDIT. IF THE TOTAL AMOUNT OF ALLOCATED CREDITS APPLIED FOR
DURING ANY TAXABLE YEAR EXCEEDS THE AGGREGATE AMOUNT THEREOF AUTHORIZED
BY PARAGRAPH ONE OF THIS SUBDIVISION, SUCH EXCESS SHALL BE DEEMED TO
HAVE BEEN APPLIED FOR ON THE FIRST DAY OF THE IMMEDIATELY SUBSEQUENT
TAXABLE YEAR.
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(E) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
(1) ARTICLE 9-A: SECTION 210: SUBDIVISION 41.
(2) ARTICLE 22: SECTION 606: SUBSECTION (QQ).
S 2. Section 210 of the tax law is amended by adding a new subdivision
41 to read as follows:
41. EMPIRE STATE FILM POST PRODUCTION CREDIT. (A) ALLOWANCE OF CREDIT.
A TAXPAYER WHO IS ELIGIBLE PURSUANT TO SECTION THIRTY OF THIS CHAPTER
SHALL BE ALLOWED A CREDIT TO BE COMPUTED AS PROVIDED IN SUCH SECTION
THIRTY AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE AMOUNT PRESCRIBED IN PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. PROVIDED, HOWEVER, THAT IF THE AMOUNT OF THE CREDIT ALLOWABLE
UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO SUCH
AMOUNT, FIFTY PERCENT OF THE EXCESS 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 EIGHTY-EIGHT OF
THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON. THE
BALANCE OF SUCH CREDIT NOT CREDITED OR REFUNDED IN SUCH TAXABLE YEAR MAY
BE A CARRY OVER TO THE IMMEDIATELY SUCCEEDING TAXABLE YEAR AND MAY BE
DEDUCTED FROM THE TAXPAYER'S TAX FOR SUCH YEAR. THE EXCESS, IF ANY, OF
THE AMOUNT OF THE CREDIT OVER THE TAX FOR SUCH SUCCEEDING YEAR SHALL BE
TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORD-
ANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF THIS
CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF SECTION
ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, 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:
Investment tax credit Investment credit base
under subsection (a) or qualified
rehabilitation
expenditures under
subdivision twelve of
section two hundred ten
Empire zone Cost or other basis
investment tax credit under subdivision
under subsection (j) twelve-B
of section two hundred
ten
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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
Empire zone Qualified investments
capital tax credit and contributions under
under subsection (l) subdivision twenty of
section two hundred ten
or subsection (d) of
section fourteen hundred
fifty-six
Agricultural property tax Allowable school
credit under subsection (n) district property taxes under
subdivision twenty-two of
section two hundred ten
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
Employment incentive Applicable investment credit
credit under subsec- base under subdivision
tion (a-1) twelve-D of section two
hundred ten
Empire zone Applicable investment
employment credit under sub-
incentive credit under division twelve-C
subsection (j-1) of section two hundred ten
Alternative fuels credit Cost under subdivision
under subsection (p) twenty-four of section two
hundred ten
Qualified emerging Applicable credit base
technology company under subdivision twelve-E
employment credit of section two hundred ten
under subsection (q)
Qualified emerging Qualified investments under
technology company subdivision twelve-F of
capital tax credit section two hundred ten
under subsection (r)
Credit for purchase of an Cost of an automated
automated external defibrillator external defibrillator under
under subsection (s) subdivision twenty-five of
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section two hundred ten
or subsection (j) of section
fourteen hundred fifty-six
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
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
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
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
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
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
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
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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
Environmental Amount of credit under
remediation subdivision thirty-five of
insurance credit under section two hundred
subsection (ff) ten or subsection
(s) of section
fourteen hundred
fifty-six
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
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
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
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
Empire state commercial production Amount of credit for qualified
credit under subsection (jj) production costs in production
of a qualified commercial under
subdivision thirty-eight of sec-
tion two hundred ten
Biofuel production Amount of credit
tax credit under under subdivision
subsection (jj) thirty-eight of
section two hundred ten
Clean heating fuel credit Amount of credit under
under subsection (mm) subdivision thirty-nine of
section two hundred ten
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Credit for rehabilitation Amount of credit under
of historic properties subdivision forty of
under subsection (oo) [subsection] SECTION
two hundred ten
Credit for companies who Amount of credit under
provide transportation subdivision forty of
to individuals section two hundred ten
with disabilities
under subsection (oo)
EMPIRE STATE FILM AMOUNT OF CREDIT FOR
POST PRODUCTION QUALIFIED POST PRODUCTION
CREDIT UNDER COSTS OF A QUALIFIED FILM
SUBSECTION (QQ) UNDER SUBDIVISION FORTY-ONE OF
SECTION TWO HUNDRED TEN
S 4. Section 606 of the tax law is amended by adding a new subsection
(qq) to read as follows:
(QQ) EMPIRE STATE FILM POST PRODUCTION CREDIT. (1) ALLOWANCE OF CRED-
IT. A TAXPAYER WHO IS ELIGIBLE PURSUANT TO SECTION THIRTY OF THIS CHAP-
TER SHALL BE ALLOWED A CREDIT TO BE COMPUTED AS PROVIDED IN SUCH SECTION
THIRTY AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWABLE UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH
YEAR, FIFTY PERCENT OF THE EXCESS 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 EIGHTY-EIGHT OF
THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON. THE
BALANCE OF SUCH CREDIT NOT CREDITED OR REFUNDED IN SUCH TAXABLE YEAR MAY
BE CARRIED OVER TO THE IMMEDIATELY SUCCEEDING TAXABLE YEAR AND MAY BE
DEDUCTED FROM THE TAXPAYER'S TAX FOR SUCH YEAR. THE EXCESS, IF ANY, OF
THE AMOUNT OF THE CREDIT OVER THE TAX FOR SUCH SUCCEEDING YEAR SHALL BE
TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORD-
ANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF THIS
CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF SECTION
ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST
SHALL BE PAID THEREON.
S 5. The state finance law is amended by adding a new section 91-h to
read as follows:
S 91-H. NEW YORK STATE POST PRODUCTION INTERNSHIP EDUCATION AND DEVEL-
OPMENT PROGRAM FUND. 1. THERE IS HEREBY ESTABLISHED, IN THE JOINT CUSTO-
DY OF THE COMMISSIONER OF TAXATION AND FINANCE AND THE COMPTROLLER, A
SPECIAL FUND TO BE KNOWN AS THE "NEW YORK STATE POST PRODUCTION INTERN-
SHIP EDUCATION AND DEVELOPMENT PROGRAM FUND".
2. SUCH FUND SHALL CONSIST OF ALL REVENUE CREDITED THERETO PURSUANT TO
SUBDIVISION (C) OF SECTION THIRTY OF THE TAX LAW, AND ALL OTHER MONEYS
APPROPRIATED, CREDITED OR TRANSFERRED THERETO FROM ANY OTHER FUND OR
SOURCE PURSUANT TO LAW. NOTHING IN THIS SECTION SHALL BE DEEMED TO
PREVENT THE STATE FROM RECEIVING GRANTS, GIFTS OR BEQUESTS FOR THE
PURPOSES OF THE FUND AS DEFINED IN THIS SECTION AND DEPOSITING THEM INTO
THE FUND ACCORDING TO LAW.
3. THE MONIES IN THE FUND, UPON APPROPRIATION SHALL ONLY BE EXPENDED
FOR THE PAYMENT OF TUITION ON BEHALF OF QUALIFIED INTERNS PARTICIPATING
IN POST PRODUCTION INTERNSHIPS WITH POST PRODUCTION COMPANIES. MONIES
SHALL BE PAYABLE FROM THE FUND FOR SUCH PURPOSE ON THE AUDIT AND WARRANT
A. 5784 8
OF THE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY THE COMMISSION-
ER OF EDUCATION.
4. FOR THE PURPOSES FOR THIS SECTION, "POST PRODUCTION INTERNSHIP"
MEANS AN INTERNSHIP IN A QUALIFIED POST PRODUCTION FACILITY, AS DEFINED
IN SECTION THIRTY OF THE TAX LAW THAT HAS BEEN APPROVED BY THE CHANCEL-
LOR OF THE STATE UNIVERSITY OF NEW YORK, THE BOARD OF TRUSTEES OF THE
CITY UNIVERSITY OF NEW YORK, OR THE CHIEF ADMINISTRATIVE OFFICER OF ANY
PRIVATE COLLEGE OR UNIVERSITY FOR THE PURPOSE OF PROVIDING PRODUCTION
EXPERIENCE AND SKILL DEVELOPMENT. NO SUCH INTERNSHIP SHALL BE ELIGIBLE
FOR TUITION COST REIMBURSEMENT UNLESS IT GRANTS ACADEMIC CREDIT TO
PARTICIPATING STUDENTS.
S 6. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2010; 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, as amended and
section 5 of chapter 522 of the laws of 2006, as amended, respectively;
and provided further that the provisions of this act shall expire and be
deemed repealed on the same date as section 9 of part P of chapter 60 of
the laws of 2004, as amended.