The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4387
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2023
                                ___________
 
 Introduced   by   M.   of   A.   GUNTHER,  LUPARDO,  COLTON,  ZEBROWSKI,
   PEOPLES-STOKES, AUBRY, BRABENEC --  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-B  of the tax law is amended by adding a new
 subdivision 59 to read as follows:
   59. 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  NINETEEN  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 RECEIV-
 ING 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 TO FURTHER  THE  ECONOMIC  ACTIVITY  OF  THE
 TAXPAYER AT THE PRIMARY BUSINESS 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09056-01-3

 A. 4387                             2
 
 SUBPARAGRAPH ONE OF PARAGRAPH (O) OF SUBDIVISION  NINE  OF  SECTION  TWO
 HUNDRED  EIGHT  OF  THIS  ARTICLE,  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)  IN  NO EVENT SHALL THE CREDIT PROVIDED FOR IN THIS SUBDIVISION BE
 ALLOWED IN AN AMOUNT WHICH WILL REDUCE THE TAX PAYABLE TO LESS THAN  THE
 FIXED  DOLLAR  MINIMUM AMOUNT PRESCRIBED IN PARAGRAPH (D) OF SUBDIVISION
 ONE OF SECTION TWO HUNDRED TEN OF THIS ARTICLE.  HOWEVER, IF THE  AMOUNT
 OF  CREDIT  ALLOWED  UNDER THIS SUBDIVISION 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 EIGHTY-EIGHT OF THIS CHAPTER
 NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
   § 2. Section 606 of the tax law is amended by adding a new  subsection
 (ooo) to read as follows:
   (OOO)  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  NINETEEN  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 RECEIV-
 ING 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 TO FURTHER  THE  ECONOMIC  ACTIVITY  OF  THE
 TAXPAYER AT THE PRIMARY BUSINESS 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  SUBPARA-
 GRAPH  ONE  OF  PARAGRAPH (O) OF SUBDIVISION NINE OF SECTION TWO HUNDRED
 EIGHT OF THIS CHAPTER, AND THE TERM "AFFILIATES" SHALL MEAN THOSE CORPO-
 RATIONS 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.
 A. 4387                             3
 
   (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.
   §  3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
 of the tax law is amended by adding a new clause (l) to read as follows:
 (L) SMALL BUSINESS ELECTRIC          QUALIFYING ELECTRICITY USAGE
 ENERGY TAX CREDIT                    UNDER SUBDIVISION FIFTY-NINE
 UNDER SUBSECTION (OOO)               OF SECTION TWO HUNDRED TEN-B
   § 4. This act shall take effect immediately and shall apply to taxable
 years beginning on or after January 1, 2023.