* § 400. Definitions. For the purposes of this article:

1. "Benefit-cost ratio" means the following calculation: the numerator
is the sum of (i) the value of all remuneration projected to be paid for
all net new jobs during the period of participation in the program, and
(ii) the cost of qualified investments to be made by the business entity
during the period of participation in the program, and the denominator
is the amount of total tax benefits under this article that is projected
to be used and refunded.

2. "Certificate of eligibility" means the document issued by the
department to an applicant that demonstrates that the applicant has been
admitted as a participant into the economic transformation and facility
redevelopment program by the department. Possession of a certificate of
eligibility does not by itself guarantee the eligibility of the
participant to claim the tax credits allowed pursuant to section
thirty-five of the tax law.

3. "Net new jobs" means jobs created in the economic transformation
area that:

(a) are new to the area;

(b) have not been transferred from employment in this state with the
participant or with a related person in this state, and are not
replacing jobs with similar titles or job responsibilities;

(c) are either full-time wage-paying jobs or equivalent to a full-time
wage-paying job requiring at least thirty-five hours per week;

(d) are filled for more than six months in a taxable year;

(e) are not general executive officers of the participant; and

(f) may not be filled with individuals having the familial
relationship defined in section 267(c)(4) of the internal revenue code
with any owner of the participant.

4. "Participant" means a business entity that:

(a) is a new business as defined in subdivision nine of this section.

(b) has completed an application prescribed by the department to be
admitted into the program;

(c) has demonstrated how it plans to meet the eligibility criteria in
section four hundred one of this article; and

(d) has been issued a certificate of eligibility by the department.

(e) provided, however that the requirement in paragraph (a) of this
subdivision that the participant be a new business shall not apply to a
closed facility as defined in paragraph (d) of subdivision eleven of
this section.

5. "Preliminary schedule of benefits" means the estimated aggregate
amount of the tax credits that a participant in the economic
transformation and facility redevelopment program is eligible to receive
pursuant to section thirty-five of the tax law. The schedule shall
indicate the annual amount of each credit a participant expects to claim
in each of its five years of eligibility.

6. "Qualified investment" means an investment in tangible property
(including a building or a structural component of a building) owned by
a business entity which:

(a) is depreciable pursuant to section one hundred sixty-seven of the
internal revenue code;

(b) has a useful life of four years or more;

(c) is acquired by purchase as defined in section one hundred
seventy-nine (d) of the internal revenue code;

(d) has a situs in an economic transformation area in this state in
which it is certified; and

(e) is placed in service in an economic transformation area in the
state on or after the date the certificate of eligibility is issued to
the business entity.

7. "Related person" means a "related person" pursuant to subparagraph
(c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code.

8. "Remuneration" means wages paid to and benefits received by an
employee by a participant in the economic transformation and facility
redevelopment program.

9. "New business" means a business entity that satisfies all of the
following tests:

(a) the business entity must not be currently operating or located
within the economic transformation area in which it is applying for
certification;

(b) the business entity must not be moving existing jobs into the
economic transformation area in which it is applying for certification
from another area of the state;

(c) the business entity must not be substantially similar in ownership
and operation to another taxpayer taxable or previously taxable under
section one hundred eighty-three or one hundred eighty-four or former
section one hundred eighty-five of article nine, former section one
hundred eighty-six or article nine-A, twenty-two, thirty-two or
thirty-three of the tax law or the income or losses of which is or was
includable under article twenty-two of the tax law;

(d) the business entity must not have caused individuals to transfer
from existing employment with a related person and located in New York
state to similar employment with the business entity;

(e) the business entity must not have acquired, purchased, leased, or
had transferred to it real property located in the economic
transformation area in which it is applying for certification if that
real property was previously owned by an entity with similar ownership,
regardless of form of incorporation or organization; and

(f) the business entity must not be substantially similar in operation
to a business entity from which it has acquired real or tangible
personal property that is located in the economic transformation area in
which it is applying for certification.

10. "Economic transformation area" means:

(a) In the region of the state outside of the metropolitan commuter
transportation district (as defined in section twelve hundred sixty-two
of the public authorities law) and the port authority district (as
defined by article two of chapter one hundred fifty-four of the laws of
nineteen hundred twenty-one), an area within a five mile radius in this
state of a closed facility. If more than sixty persons were employed in
full-time positions at a closed facility on April first, two thousand
eleven, then it is the area within a ten mile radius in this state of
that closed facility. The commissioner may increase the radius of the
area from ten miles to up to fifteen miles in this state based on
factors including but not limited to population density, the poverty
rate, the unemployment rate and the loss of jobs in the region. However,
the increased radius may not extend into the metropolitan commuter
transportation district. The commissioner may also decrease the radius
of the ten mile area but to no less than a five mile radius based on
factors including but not limited to population density, the poverty
rate, the unemployment rate and the loss of jobs in the region. Upon
notification of the commissioner, pursuant to subdivision eleven of this
section, the commissioner shall establish the size of the transformation
area prior to the acceptance of any applications into the program.

(b) In the metropolitan commuter transportation district outside the
port authority district, an area within a one mile radius in this state
of a closed facility. If more than sixty persons were employed in
full-time positions at a closed facility on April first, two thousand
eleven, then it is the area within a five mile radius in this state of
that closed facility, provided that the commissioner may decrease the
radius of the expanded area but to no less than a one mile radius based
on factors including but not limited to population density, the poverty
rate, the unemployment rate, and the loss of jobs in the area and
whether the radius would extend outside of the metropolitan commuter
transportation district. Upon notification of the commissioner pursuant
to subdivision eleven of this section, the commissioner shall establish
the size of the transformation area prior to the acceptance of any
applications into the program.

(c) In the port authority district, an area limited to the site of the
closed facility.

(d) Notwithstanding paragraph (b) of this subdivision, with respect to
a closed facility described in paragraph (d) of subdivision eleven of
this section, the economic transformation area shall consist only of the
acreage of the closed facility.

11. "Closed facility" means:

(a) a correctional facility, as defined in paragraph (a) of
subdivision four of section two of the correction law, that has been
selected by the governor of the state of New York for closure after
April first, two thousand eleven but no later than March thirty-first,
two thousand twenty-six; or

(b) a facility operated by the office of children and family services
under article nineteen-G of the executive law that is closed pursuant to
authority granted to such office in a chapter of the laws of two
thousand eleven; or

(c) which has been closed provided that the commissioner of
correctional services or the commissioner of the office of children and
family services has notified the commissioner of such closure; or

(d) a facility previously owned by the state, and when operated, was
operated as a psychiatric facility pursuant to section 7.17 of the
mental hygiene law, and located within the metropolitan commuter
transportation district but outside New York city.

* NB Repealed December 31, 2026