S T A T E   O F   N E W   Y O R K
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                                  7267

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 27, 2009
                               ___________

Introduced  by  M. of A. THIELE, WALKER -- read once and referred to the
  Committee on Ways and Means

AN ACT to amend the tax law, in  relation  to  providing  an  expiration
  therefor  and  in  relation  to investment tax credits for alternative
  energy production facilities and small hydro facilities

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

  Section  1.  Paragraph 2 of subsection (g-2) of section 606 of the tax
law, as amended by chapter 446 of the laws of 2005, is amended  to  read
as follows:
  (2)  Qualified  fuel  cell electric generating equipment expenditures.
(A) Qualified fuel cell electric generating equipment  expenditures  are
the  costs,  incurred  on  or  after  [July] JANUARY first, two thousand
[five] THREE, associated with the purchase of on-site electricity gener-
ation systems utilizing proton exchange membrane fuel cells, providing a
rated baseload capacity of no less than one kilowatt and  no  more  than
one hundred kilowatts of electricity, which are located in this state at
the time the qualified fuel cell electric generating equipment is placed
in service.
  (B)  Qualified  fuel  cell  electric generating equipment expenditures
shall also include costs, incurred on or after [July] JANUARY first, two
thousand [five] THREE, for materials,  labor  for  on-site  preparation,
assembly  and  original  installation, engineering services, designs and
plans directly related  to  construction  or  installation  and  utility
compliance costs.
  (C)  Such  qualified  expenditures shall not include interest or other
finance charges.
  S 2. 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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03989-01-9

              

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  (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,
(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  securities 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 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, assump-
tion,  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 taxpay-
er's  business  as  an  exchange  registered  as  a  national securities
exchange within the meaning of sections 3(a)(1) and 6(a) of the  Securi-
ties Exchange Act of 1934 or a board of trade as defined in SUBPARAGRAPH
(A) OF PARAGRAPH ONE OF section [1410(a)(1)] FOURTEEN HUNDRED TEN 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) principally 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 munici-
pal 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  heat-
ing,  ventilation  and  air  conditioning,  OR (H) AN ALTERNATIVE ENERGY
PRODUCTION FACILITY AND SMALL HYDRO FACILITY, AS DEFINED IN SUBDIVISIONS
TWO-B AND TWO-C OF SECTION TWO OF  THE  PUBLIC  SERVICE  LAW,  PROVIDED,
HOWEVER,  FOR  THE  PURPOSES  OF  THIS  ARTICLE,  AN  ALTERNATIVE ENERGY
PRODUCTION FACILITY SHALL NOT BE SUBJECT  TO  THE  MAXIMUM  CAPACITY  OF
EIGHTY  MEGAWATTS AS PROVIDED IN SUBDIVISION TWO-B OF SECTION TWO OF THE
PUBLIC SERVICE LAW. For purposes of clauses (D), (E)  and  (F)  of  this
subparagraph,  property  purchased by a taxpayer affiliated with a regu-
lated broker, dealer, registered investment adviser, national securities
exchange or board of trade, is allowed a credit under  this  subdivision
if  the  property  is  used  by its affiliated regulated broker, dealer,
registered investment adviser, national securities exchange or board  of
trade  in  accordance with this subdivision. For purposes of determining

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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  regu-
lated  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 adminis-
trative and support functions resulting from or related to the  qualify-
ing  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
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 PROVIDED, HOWEVER, THAT THIS EXCLUSION IN NO WAY AFFECTS THE
CREDIT ALLOWABLE UNDER CLAUSE (H) OF THIS SUBPARAGRAPH.
  S 3. This act shall take effect immediately, and shall apply to  taxa-
ble years beginning on or after January 1, 2010.