Senate Bill S5227A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5227--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 27, 2023
                                ___________
 
 Introduced  by Sens. KENNEDY, SKOUFIS -- read twice and ordered printed,
   and when printed to be  committed  to  the  Committee  on  Finance  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the executive law, in relation  to  design  professional
   overhead audit recovery

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The executive law is amended by adding a new section  170-g
 to read as follows:
   §  170-G.  DESIGN  PROFESSIONAL OVERHEAD AUDIT RECOVERY. 1. AS USED IN
 THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "DESIGN PROFESSIONAL" MEANS  ANY  CORPORATION,  LIMITED  LIABILITY
 COMPANY,  PARTNERSHIP  OR  OTHER  BUSINESS  ENTITY LEGALLY AUTHORIZED TO
 PRACTICE ANY OF  THE  PROFESSIONS  REGULATED  BY  ARTICLES  ONE  HUNDRED
 FORTY-FIVE,  ONE  HUNDRED FORTY-SEVEN AND ONE HUNDRED FORTY-EIGHT OF THE
 EDUCATION LAW.
   (B) "STATE AGENCY" SHALL MEAN (I) ANY STATE DEPARTMENT, (II) ANY DIVI-
 SION, BOARD, COMMISSION OR BUREAU OF ANY  STATE  DEPARTMENT,  (III)  THE
 STATE  UNIVERSITY  OF  NEW  YORK  AND  THE  CITY UNIVERSITY OF NEW YORK,
 INCLUDING ALL THEIR CONSTITUENT UNITS, OR (IV) A BOARD,  A  MAJORITY  OF
 WHOSE  MEMBERS  ARE  APPOINTED BY THE GOVERNOR OR WHO SERVE BY VIRTUE OF
 BEING STATE OFFICERS OR EMPLOYEES AS DEFINED IN SUBPARAGRAPH  (I),  (II)
 OR (III) OF PARAGRAPH (I) OF SUBDIVISION ONE OF SECTION SEVENTY-THREE OF
 THE PUBLIC OFFICERS LAW.
   (C)  "STATE  AUTHORITY"  MEANS  A  PUBLIC  AUTHORITY OR PUBLIC BENEFIT
 CORPORATION CREATED BY OR EXISTING UNDER THE LAWS OF THE STATE, WITH ONE
 OR MORE OF ITS MEMBERS APPOINTED BY THE GOVERNOR OR WHO SERVE AS MEMBERS
 BY VIRTUE OF HOLDING A CIVIL OFFICE OF THE STATE, OTHER THAN  AN  INTER-
 STATE  OR INTERNATIONAL AUTHORITY OR PUBLIC BENEFIT CORPORATION, INCLUD-
 ING SUBSIDIARIES OF SUCH PUBLIC AUTHORITY OR PUBLIC BENEFIT CORPORATION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04721-02-3
              

 S. 5227--A                          2
 
   (D) "PAYCHECK PROTECTION PROGRAM LOAN" MEANS ANY  LOAN  AUTHORIZED  OR
 ISSUED  PURSUANT TO PUBLIC LAW 116-136, THE CORONAVIRUS AID, RELIEF, AND
 ECONOMIC SECURITY ACT.
   2. NO STATE AGENCY OR STATE AUTHORITY SHALL DEMAND ANY CREDIT, RECOUP-
 MENT, RATE ADJUSTMENT OR ANY OTHER PAYMENT FROM A DESIGN PROFESSIONAL ON
 THE  BASIS  OF SUCH DESIGN PROFESSIONAL HAVING RECEIVED FORGIVENESS ON A
 PAYCHECK PROTECTION ACT LOAN. ANY STATE AGENCY OR STATE  AUTHORITY  THAT
 PURSUANT  TO  THE APPLICATION OF ANY AUDIT RULE OR REQUIREMENT INCLUDING
 BUT NOT LIMITED TO THE FEDERAL ACQUISITION REGULATION COLLECTS, RECOUPS,
 OR CLAWS BACK ANY MONEY FROM A DESIGN PROFESSIONAL ON THE BASIS OF THEIR
 HAVING RECEIVED A PAYCHECK PROTECTION PROGRAM SHALL CREDIT  SUCH  DESIGN
 PROFESSIONAL  IN  AN  AMOUNT  NO LESS THAN THE AMOUNT RECOVERED NO LATER
 THAN ONE HUNDRED EIGHTY DAYS FROM ANY  SUCH  COLLECTION,  RECOUPMENT  OR
 CLAW BACK. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH CREDIT SHALL
 BE DEEMED LOAN FORGIVENESS AND SHALL NOT BE USED IN ANY TAX, OVERHEAD OR
 INDIRECT LABOR COST CALCULATION BY ANY STATE AGENCY OR STATE AUTHORITY.
   3. NO STATE AGENCY OR STATE AUTHORITY SHALL DEMAND ANY CREDIT, RECOUP-
 MENT, RATE ADJUSTMENT OR ANY OTHER PAYMENT FROM A DESIGN PROFESSIONAL ON
 THE  BASIS  OF  SUCH  DESIGN  PROFESSIONAL  HAVING  RECEIVED AN EMPLOYEE
 RETENTION TAX CREDIT IN THE YEARS TWO THOUSAND TWENTY  OR  TWO  THOUSAND
 TWENTY-ONE.    ANY  STATE AGENCY OR STATE AUTHORITY THAT PURSUANT TO THE
 APPLICATION OF ANY AUDIT RULE OR REQUIREMENT INCLUDING BUT  NOT  LIMITED
 TO  THE  FEDERAL  ACQUISITION REGULATION COLLECTS, RECOUPS OR CLAWS BACK
 ANY MONEY FROM A DESIGN  PROFESSIONAL  ON  THE  BASIS  OF  THEIR  HAVING
 RECEIVED  AN  EMPLOYEE  RETENTION  TAX  CREDIT IN THE YEARS TWO THOUSAND
 TWENTY OR TWO THOUSAND TWENTY-ONE SHALL CREDIT SUCH DESIGN  PROFESSIONAL
 IN  AN  AMOUNT  RECOVERED NO LATER THAN ONE HUNDRED EIGHTY DAYS FROM ANY
 SUCH COLLECTION, RECOUPMENT OR  CLAW  BACK.  NOTWITHSTANDING  ANY  OTHER
 PROVISION  OF  LAW,  AMOUNTS  RECEIVED THROUGH AN EMPLOYEE RETENTION TAX
 CREDIT SHALL NOT BE USED IN ANY  TAX,  DIRECT  TECHNICAL  LABOR,  DIRECT
 NON-SALARY  COST,  OVERHEAD  OR  INDIRECT  LABOR COST CALCULATION BY ANY
 STATE AGENCY OR STATE AUTHORITY.
   § 2. This act shall take effect immediately.