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