Senate Bill S5628

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5628
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 26, 2025
                                ___________
 
 Introduced  by Sen. HARCKHAM -- read twice and ordered printed, and when
   printed to be committed to the Committee on Budget and Revenue
 
 AN ACT to amend the tax law, in relation to establishing an  agrivoltaic
   production  tax  credit; and to amend the agriculture and markets law,
   in relation to the impact of agrivoltaics on agricultural assessments

   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 61 to read as follows:
   61. AGRIVOLTAIC PRODUCTION TAX CREDIT. (A)  DEFINITIONS.  AS  USED  IN
 THIS SUBDIVISION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (I)  "AGRIVOLTAICS"  MEANS A SIMULTANEOUS USE OF LAND FOR SOLAR PHOTO-
 VOLTAIC POWER GENERATION AND AGRICULTURAL PRODUCTION OF CROPS, LIVESTOCK
 AND LIVESTOCK PRODUCTS.
   (II) "CROPS, LIVESTOCK AND LIVESTOCK PRODUCTS"  SHALL  HAVE  THE  SAME
 MEANING  AS  SUCH  PHRASE IS DEFINED IN SECTION THREE HUNDRED ONE OF THE
 AGRICULTURE AND MARKETS LAW.
   (III) "ELIGIBLE FARMER" MEANS A TAXPAYER WHO:
   (A) MANAGES A FARM OPERATION, AS SUCH PHRASE  IS  DEFINED  IN  SECTION
 THREE  HUNDRED  ONE OF THE AGRICULTURE AND MARKETS LAW, THAT IS SITUATED
 WHOLLY OR IN PART WITHIN ONE OR MORE QUALIFIED  AGRIVOLTAIC  FACILITIES;
 AND
   (B)  USES  NOT  LESS  THAN  TWO-THIRDS  OF THE TOTAL LAND AREA OF SUCH
 FACILITY OR FACILITIES AS LAND USED IN AGRICULTURAL PRODUCTION, AS  SUCH
 PHRASE  IS  DEFINED  IN SECTION THREE HUNDRED ONE OF THE AGRICULTURE AND
 MARKETS LAW.
   (IV) "QUALIFIED AGRIVOLTAIC FACILITY" MEANS A PHOTOVOLTAIC ELECTRICITY
 GENERATION FACILITY THAT:
   (A) IS PRE-QUALIFIED BY THE NEW YORK STATE ENERGY RESEARCH AND  DEVEL-
 OPMENT  AUTHORITY IN CONSULTATION WITH THE DEPARTMENT OF AGRICULTURE AND
 MARKETS PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION AS  BEING  REASON-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10320-01-5
              

 S. 5628                             2
 
 ABLY  ABLE TO PRODUCE CROPS, LIVESTOCK AND LIVESTOCK PRODUCTS SUFFICIENT
 TO QUALIFY THE ASSOCIATED ELECTRICITY FOR THE CREDIT  PROVIDED  BY  THIS
 SUBDIVISION;
   (B)  IS  CONNECTED TO UTILITY TRANSMISSION OR DISTRIBUTION INFRASTRUC-
 TURE AND PLACED INTO SERVICE ON OR AFTER  JANUARY  FIRST,  TWO  THOUSAND
 TWENTY-SIX;
   (C)  HAS  AN AC NAMEPLATE CAPACITY OF NOT MORE THAN TEN THOUSAND KILO-
 WATTS; AND
   (D) IS DESIGNED AND OPERATED IN SUCH A MANNER THAT NOT LESS THAN FOUR-
 FIFTHS OF THE LAND AREA  MAY  BE  USED  AS  LAND  USED  IN  AGRICULTURAL
 PRODUCTION,  AS  SUCH  PHRASE IS DEFINED IN SECTION THREE HUNDRED ONE OF
 THE AGRICULTURE AND MARKETS LAW.
   (B) ALLOWANCE OF CREDIT. (I) A TAXPAYER THAT  IS  AN  ELIGIBLE  FARMER
 SHALL BE ALLOWED A CREDIT FOR TAXABLE YEARS BEGINNING ON AND AFTER JANU-
 ARY  FIRST,  TWO  THOUSAND  TWENTY-SIX,  TO  BE  COMPUTED AS HEREINAFTER
 PROVIDED, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
   (II) THE AMOUNT OF THE CREDIT PROVIDED BY  THIS  SUBDIVISION  FOR  ANY
 TAXABLE YEAR SHALL BE AN AMOUNT EQUAL TO THE PRODUCT OF:
   (A) THE KILOWATT HOURS OF ELECTRICITY PRODUCED IN THAT YEAR BY A QUAL-
 IFIED  AGRIVOLTAIC  FACILITY  DURING THE TWENTY-YEAR PERIOD BEGINNING ON
 THE DATE SUCH FACILITY WAS ORIGINALLY PLACED IN SERVICE;
   (B) A BASE CREDIT RATE VALUE OF ONE CENT PER KILOWATT-HOUR; AND
   (C) AN AGRICULTURAL USE FACTOR AS DETERMINED BY THE TYPE  OF  AGRICUL-
 TURAL PRODUCTION CONDUCTED WITHIN THE FACILITY AT A RATE OF:
   (1)  ONE-HALF  TIMES  FOR  SHEEP  GRAZING, WITH OR WITHOUT APIARIES OR
 OTHER POLLINATOR HABITAT;
   (2) THREE TIMES FOR MECHANICAL HARVESTING OF PERENNIAL FORAGE CROPS;
   (3) FOUR TIMES FOR CATTLE GRAZING WITH  OR  WITHOUT  THE  PRESENCE  OF
 OTHER LIVESTOCK; AND
   (4)  FIVE  TIMES FOR THE PRODUCTION OF ANNUAL CROPS OR PERENNIAL CROPS
 OTHER THAN FORAGES.
   (III) THE AGRICULTURAL USE  FACTOR  AS  DESCRIBED  IN  CLAUSE  (C)  OF
 SUBPARAGRAPH  (II) OF THIS PARAGRAPH SHALL BE PRORATED BY THE ACREAGE OF
 EACH RESPECTIVE AGRICULTURAL PRODUCTION TYPE.
   (IV) BEGINNING ON JANUARY FIRST, TWO THOUSAND  TWENTY-SEVEN,  AND  FOR
 EACH  CALENDAR YEAR THEREAFTER, THE VALUE OF THE CREDIT PROVIDED BY THIS
 SUBDIVISION SHALL BE ADJUSTED ANNUALLY  USING  AN  INFLATION  ADJUSTMENT
 FACTOR DETERMINED BY THE COMPTROLLER.
   (C) PRE-QUALIFICATION. THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP-
 MENT AUTHORITY SHALL, IN CONSULTATION WITH THE DEPARTMENT OF AGRICULTURE
 AND  MARKETS,  DEVELOP  A PRE-QUALIFICATION PROCESS FOR ELIGIBLE FARMERS
 SEEKING TO CLAIM THE CREDIT PROVIDED BY THIS SUBDIVISION TO BE  APPROVED
 BY  THE  PUBLIC  SERVICE COMMISSION NO LATER THAN DECEMBER THIRTY-FIRST,
 TWO THOUSAND TWENTY-FIVE. SUCH PRE-QUALIFICATION PROCESS SHALL:
   (I) DETERMINE THAT A QUALIFIED AGRIVOLTAIC FACILITY IS REASONABLY ABLE
 TO PRODUCE CROPS, LIVESTOCK AND LIVESTOCK PRODUCTS SUFFICIENT TO QUALIFY
 THE ASSOCIATED ELECTRICITY FOR THE CREDIT PROVIDED BY THIS  SUBDIVISION;
 AND
   (II) PRIORITIZE EASE OF APPLICATION FOR THE ELIGIBLE FARMER.
   (D)  ANNUAL  CERTIFICATION.  THE  NEW  YORK  STATE ENERGY RESEARCH AND
 DEVELOPMENT AUTHORITY SHALL, IN  CONSULTATION  WITH  THE  DEPARTMENT  OF
 AGRICULTURE AND MARKETS, DEVELOP A CERTIFICATION FORM FOR ELIGIBLE FARM-
 ERS  SEEKING  TO  CLAIM  THE  CREDIT  PROVIDED BY THIS SUBDIVISION TO BE
 APPROVED BY THE PUBLIC SERVICE COMMISSION NO LATER THAN  DECEMBER  THIR-
 TY-FIRST, TWO THOUSAND TWENTY-FIVE. SUCH CERTIFICATION FORM SHALL:
 S. 5628                             3
 
   (I)  COLLECT  THE INFORMATION REQUIRED TO CERTIFY THAT THE ELECTRICITY
 WAS PRODUCED IN ASSOCIATION WITH THE FARMER'S SIMULTANEOUS  USE  OF  THE
 LAND WITHIN THE FACILITY FOR AGRICULTURAL PRODUCTION OF CROPS, LIVESTOCK
 AND LIVESTOCK PRODUCTS;
   (II)  PRIORITIZE  REDUCING  THE REGULATORY BURDEN OF COMPLIANCE ON THE
 ELIGIBLE FARMER;
   (III) BE CERTIFIED BY THE ELIGIBLE FARMER FOR  EACH  YEAR  THE  CREDIT
 PROVIDED BY THIS SUBDIVISION IS CLAIMED; AND
   (IV) BE AUDITABLE FOR A PERIOD NOT TO EXCEED THREE YEARS.
   (E)  APPLICATION OF CREDIT. EXCEPT AS OTHERWISE PROVIDED IN THIS PARA-
 GRAPH, THE CREDIT ALLOWED UNDER THIS SUBDIVISION FOR  ANY  TAXABLE  YEAR
 SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR 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 ALLOW-
 ABLE UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO SUCH
 AMOUNT  OR  IF THE TAXPAYER OTHERWISE PAYS TAX BASED ON THE FIXED DOLLAR
 MINIMUM AMOUNT, ANY AMOUNT OF CREDIT ALLOWED FOR A TAXABLE YEAR COMMENC-
 ING JANUARY FIRST, TWO THOUSAND TWENTY-SIX AND NOT  DEDUCTIBLE  IN  SUCH
 TAXABLE  YEAR  MAY  BE  CARRIED  OVER  TO THE FIFTEEN TAXABLE YEARS NEXT
 FOLLOWING SUCH TAXABLE YEAR AND MAY BE DEDUCTED FROM THE TAXPAYER'S  TAX
 FOR  SUCH  YEAR  OR  YEARS. IN LIEU OF SUCH CARRYOVER, ANY SUCH TAXPAYER
 THAT IS AN ELIGIBLE FARMER MAY ELECT TO TREAT THE AMOUNT OF SUCH  CARRY-
 OVER  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 THOU-
 SAND  EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST SHALL BE
 PAID THEREON.
   (F) TRANSFER OF CREDIT. WITH PRIOR NOTICE  IN  ACCORDANCE  WITH  REGU-
 LATIONS  PROMULGATED  BY THE DEPARTMENT, AN ELIGIBLE FARMER MAY TRANSFER
 ALL OR PART OF THE CREDIT PROVIDED BY THIS SUBDIVISION TO AN OWNER OF  A
 QUALIFIED  AGRIVOLTAIC FACILITY SUCH ELIGIBLE FARMER'S FARM OPERATION IS
 SITUATED WITHIN, WITH THE SAME EFFECT AS IF THE OWNER OF SUCH  QUALIFIED
 AGRIVOLTAIC  FACILITY  HAD  QUALIFIED  FOR  THE  CREDIT PROVIDED BY THIS
 SUBDIVISION THEMSELF.
   § 2. Section 305 of the agriculture and  markets  law  is  amended  by
 adding a new subdivision 8 to read as follows:
   8.  AGRIVOLTAICS.  NOTWITHSTANDING ANY PROVISION OF LAW, RULE OR REGU-
 LATION TO THE CONTRARY, THE PRESENCE OF AGRIVOLTAICS  SHALL  NOT  IMPACT
 THE  ELIGIBILITY  OF  LAND  TO  RECEIVE  AN  ASSESSMENT PURSUANT TO THIS
 SECTION. AS USED IN THIS SUBDIVISION, "AGRIVOLTAICS" SHALL MEAN A SIMUL-
 TANEOUS USE OF LAND FOR SOLAR PHOTOVOLTAIC POWER GENERATION AND AGRICUL-
 TURAL PRODUCTION OF CROPS, LIVESTOCK AND LIVESTOCK PRODUCTS.
   § 3. This act shall take effect immediately.