Legislation
SECTION 24
Empire state film production credit
Tax (TAX) CHAPTER 60, ARTICLE 1
§ 24. Empire state film production credit. (a) (1) Allowance of
credit. A taxpayer which is a qualified film production company, or a
qualified independent film production company, or which is a sole
proprietor of or a member of a partnership which is a qualified film
production company or a qualified independent film production company,
and which is subject to tax under articles nine-A or twenty-two of this
chapter, shall be allowed a credit against such tax, pursuant to the
provisions referenced in subdivision (c) of this section, to be computed
as hereinafter provided.
(2) The amount of the credit shall be the product (or pro rata share
of the product, in the case of a member of a partnership) of twenty-five
percent and the qualified production costs paid or incurred in the
production of a qualified film, provided that: (i) the qualified
production costs (excluding post production costs) paid or incurred
which are attributable to the use of tangible property or the
performance of services at a qualified film production facility in the
production of such qualified film equal or exceed seventy-five percent
of the production costs (excluding post production costs) paid or
incurred which are attributable to the use of tangible property or the
performance of services at any film production facility within and
without the state in the production of such qualified film, and (ii)
except with respect to a qualified independent film production company
or pilot, at least ten percent of the total principal photography
shooting days spent in the production of such qualified film must be
spent at a qualified film production facility. However, if the qualified
production costs (excluding post production costs) which are
attributable to the use of tangible property or the performance of
services at a qualified film production facility in the production of
such qualified film is less than three million dollars, then the portion
of the qualified production costs attributable to the use of tangible
property or the performance of services in the production of such
qualified film outside of a qualified film production facility shall be
allowed only if the shooting days spent in New York outside of a film
production facility in the production of such qualified film equal or
exceed seventy-five percent of the total shooting days spent within and
without New York outside of a film production facility in the production
of such qualified film. The credit shall be allowed for the taxable year
in which the production of such qualified film is completed. However, in
the case of a qualified film that receives funds from additional pool 2,
no credit shall be claimed before the later of (1) the taxable year the
production of the qualified film is complete, or (2) the first taxable
year beginning immediately after the allocation year for which the film
has been allocated credit by the governor's office for motion picture
and television development. If the amount of the credit is at least one
million dollars but less than five million dollars, the credit shall be
claimed over a two year period beginning in the first taxable year in
which the credit may be claimed and in the next succeeding taxable year,
with one-half of the amount of credit allowed being claimed in each
year. If the amount of the credit is at least five million dollars, the
credit shall be claimed over a three year period beginning in the first
taxable year in which the credit may be claimed and in the next two
succeeding taxable years, with one-third of the amount of the credit
allowed being claimed in each year.
(3) No qualified production costs used by a taxpayer either as the
basis for the allowance of the credit provided for under this section or
used in the calculation of the credit provided for under this section
shall be used by such taxpayer to claim any other credit allowed
pursuant to this chapter.
(4) (i) Notwithstanding the foregoing provisions of this subdivision,
a qualified film production company or qualified independent film
production company, that has applied for credit under the provisions of
this section, agrees as a condition for the granting of the credit: (A)
to include in each qualified film distributed by DVD, or other media for
the secondary market, a New York promotional video approved by the
governor's office of motion picture and television development or to
include in the end credits of each qualified film "Filmed With the
Support of the New York State Governor's Office of Motion Picture and
Television Development" and a logo provided by the governor's office of
motion picture and television development, and (B) to certify that it
will purchase taxable tangible property and services, defined as
qualified production costs pursuant to paragraph one of subdivision (b)
of this section, only from companies registered to collect and remit
state and local sales and use taxes pursuant to articles twenty-eight
and twenty-nine of this chapter.
(ii) On or after January first, two thousand twenty-three, a qualified
film production company or qualified independent film production company
that has applied for credit under the provisions of this section shall,
as a condition for the granting of the credit, file a diversity plan
with the governor's office for motion picture and television development
outlining specific goals for hiring a diverse workforce. The
commissioner of economic development shall promulgate regulations
implementing the requirements of this paragraph, which, notwithstanding
any provisions to the contrary in the state administrative procedure
act, may be adopted on an emergency basis, to ensure compliance with the
provisions of this paragraph. The governor's office for motion picture
and television development shall review each submitted plan as to
whether it meets the requirements established by the commissioner of
economic development, and shall verify that the applicant has met or
made good-faith efforts in achieving these goals. The diversity plan
also shall indicate whether the qualified film production company or
qualified independent film production company that has applied for
credit under the provisions of this section intends to participate in
training, education, and recruitment programs that are designed to
promote and encourage the training and hiring in the film and television
industry of New York residents who represent the diversity of the
State's population.
(5) For the period two thousand fifteen through two thousand
twenty-nine, in addition to the amount of credit established in
paragraph two of this subdivision, a taxpayer shall be allowed a credit
equal to the product (or pro rata share of the product, in the case of a
member of a partnership) of ten percent and the amount of wages or
salaries paid to individuals directly employed (excluding those employed
as writers, directors, music directors, producers and performers,
including background actors with no scripted lines) by a qualified film
production company or a qualified independent film production company
for services performed by those individuals in one of the counties
specified in this paragraph in connection with a qualified film with a
minimum budget of five hundred thousand dollars. For purposes of this
additional credit, the services must be performed in one or more of the
following counties: Albany, Allegany, Broome, Cattaraugus, Cayuga,
Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware,
Dutchess, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton,
Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery,
Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Oswego, Otsego,
Putnam, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler, Seneca,
St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren,
Washington, Wayne, Wyoming, or Yates. The aggregate amount of tax
credits allowed pursuant to the authority of this paragraph shall be
five million dollars each year during the period two thousand fifteen
through two thousand twenty-nine of the annual allocation made available
to the program pursuant to paragraph four of subdivision (e) of this
section. Such aggregate amount of credits shall be allocated by the
governor's office for motion picture and television development among
taxpayers in order of priority based upon the date of filing an
application for allocation of film production credit with such office.
If the total amount of allocated credits applied for under this
paragraph in any year exceeds the aggregate amount of tax credits
allowed for such year under this paragraph, such excess shall be treated
as having been applied for on the first day of the next year. If the
total amount of allocated tax credits applied for under this paragraph
at the conclusion of any year is less than five million dollars, the
remainder shall be treated as part of the annual allocation made
available to the program pursuant to paragraph four of subdivision (e)
of this section. However, in no event may the total of the credits
allocated under this paragraph and the credits allocated under paragraph
five of subdivision (a) of section thirty-one of this article exceed
five million dollars in any year during the period two thousand fifteen
through two thousand twenty-nine.
(b) Definitions. As used in this section, the following terms shall
have the following meanings:
(1) "Qualified production costs" means production costs only to the
extent such costs are attributable to the use of tangible property or
the performance of services within the state directly and predominantly
in the production (including pre-production and post production) of a
qualified film.
(2) "Production costs" means any costs for tangible property used and
services performed directly and predominantly in the production
(including pre-production and post production) of a qualified film.
"Production costs" shall not include (i) costs for a story, script or
scenario to be used for a qualified film and (ii) wages or salaries or
other compensation for writers, directors, including music directors,
producers and performers (other than background actors with no scripted
lines). "Production costs" generally include technical and crew
production costs, such as expenditures for film production facilities,
or any part thereof, props, makeup, wardrobe, film processing, camera,
sound recording, set construction, lighting, shooting, editing and
meals.
(3) "Qualified film" means a feature-length film, television film,
relocated television production, television pilot or television series,
regardless of the medium by means of which the film, pilot or series is
created or conveyed. For the purposes of the credit provided by this
section only, a "qualified film" whose majority of principal photography
shooting days in the production of the qualified film are shot in
Westchester, Rockland, Nassau, or Suffolk county or any of the five New
York City boroughs shall have a minimum budget of one million dollars. A
"qualified film", whose majority of principal photography shooting days
in the production of the qualified film are shot in any other county of
the state than those listed in the preceding sentence shall have a
minimum budget of two hundred fifty thousand dollars. "Qualified film"
shall not include: (i) a documentary film, news or current affairs
program, interview or talk program, "how-to" (i.e., instructional) film
or program, film or program consisting primarily of stock footage,
sporting event or sporting program, game show, award ceremony, film or
program intended primarily for industrial, corporate or institutional
end-users, fundraising film or program, daytime drama (i.e., daytime
"soap opera"), commercials, music videos or "reality" program; (ii) a
production for which records are required under section 2257 of title
18, United States code, to be maintained with respect to any performer
in such production (reporting of books, films, etc. with respect to
sexually explicit conduct); or (iii) other than a relocated television
production, a television series commonly known as variety entertainment,
variety sketch and variety talk, i.e., a program with components of
improvisational or scripted content (monologues, sketches, interviews),
either exclusively or in combination with other entertainment elements
such as musical performances, dancing, cooking, crafts, pranks, stunts,
and games and which may be further defined in regulations of the
commissioner of economic development. However, a qualified film shall
include a television series as described in subparagraph (iii) of this
paragraph only if an application for such series has been deemed
conditionally eligible for the tax credit under this section prior to
April first, two thousand twenty, such series remains in continuous
production for each season, and an annual application for each season of
such series is continually submitted for such series after April first,
two thousand twenty.
(4) "Film production facility" shall mean a building and/or complex of
buildings and their improvements and associated back-lot facilities in
which films are or are intended to be regularly produced and which
contain at least one sound stage, provided, however, that an armory
owned by the state or city of New York located in the city of New York
shall not be considered to be a "film production facility" unless it
meets the criteria contained in paragraph five of this subdivision or
unless such facility is used by a qualified independent film production
company.
(5) "Qualified film production facility" shall mean a film production
facility in the state, which contains at least one sound stage having a
minimum of seven thousand square feet of contiguous production space,
provided, however, that except with respect to a qualified film
production facility being used by a qualified independent film
production company: (i) a film production facility in the city of New
York must contain at least one sound stage having a minimum of seven
thousand square feet of contiguous production space that is sound proof
with a Noise Criteria ("NC") of 30 or better, has sufficient heating and
air conditioning for shooting without the need for supplemental units,
incorporates a permanent grid and sufficient built-in electric service
for shooting without the need for generators, and is column-free with a
clear height of at least sixteen feet under the permanent grid for
facilities constructed on or after January first, two thousand nineteen,
and at least twelve feet under the permanent grid for facilities
constructed before January first, two thousand nineteen; and (ii) an
armory owned by the state or city of New York located in the city of New
York that does not satisfy the criteria of subparagraph (i) of this
paragraph shall be treated as a qualified film production facility upon
certification by the governor's office of motion picture and television
development of a petition submitted to that office by a qualified film
production company establishing that no qualified film production
facility is available in the city of New York that has stage space
available for shooting such company's film. Such petition shall be
submitted no later than ninety days prior to the start of principal
photography for the qualified film and the governor's office of motion
picture and television development shall have ten days to certify or
reject the petition. A stage will be deemed unavailable if consideration
has been paid for its use or such stage is currently under an agreement
with an option for use and, in either circumstance, such period of use
includes the petitioner's estimated start date of principal photography.
(6) "Qualified film production company" is a corporation, partnership,
limited partnership, or other entity or individual which or who is
principally engaged in the production of a qualified film and controls
the qualified film during production.
(7) "Qualified independent film production company" is a corporation,
partnership, limited partnership, or other entity or individual, that or
who (i) is principally engaged in the production of a qualified film
with a maximum budget of fifteen million dollars, and (ii) controls the
qualified film during production, and (iii) either is not a publicly
traded entity, or no more than five percent of the beneficial ownership
of which is owned, directly or indirectly, by a publicly traded entity.
(8) "Relocated television production" shall mean, notwithstanding the
limitations in subparagraph (i) of paragraph three of this subdivision,
a television production that is a talk or variety program that filmed at
least five seasons outside the state prior to its first relocated season
in New York, the episodes are filmed before a studio audience of two
hundred or more, and the relocated television production incurs (i) at
least thirty million dollars in annual production costs in the state, or
(ii) at least ten million dollars in capital expenditures at a qualified
production facility in the state.
(c) Cross-references. For application of the credit provided for in
this section, see the following provisions of this chapter:
(1) article 9-A: section 210-B: subdivision 20.
(2) article 22: section 606: subsection (gg).
(d) Notwithstanding any provision of this chapter, employees and
officers of the governor's office of motion picture and television
development and the department shall be allowed and are directed to
share and exchange information regarding the credits applied for,
allowed, or claimed pursuant to this section and taxpayers who are
applying for credits or who are claiming credits, including information
contained in or derived from credit claim forms submitted to the
department and applications for credit submitted to the governor's
office of motion picture and television development.
(e) Allocation of credit. (1) The aggregate amount of tax credits
allowed under this section, subdivision thirty-six of section two
hundred ten and subsection (gg) of section six hundred six of this
chapter in any calendar year shall be twenty-five million dollars in two
thousand four and two thousand five, sixty million dollars in two
thousand six and two thousand seven, sixty-five million dollars in two
thousand eight, seventy-five million dollars in two thousand nine,
eighty-five million dollars in two thousand ten, ninety million dollars
in two thousand eleven and two thousand twelve, and one hundred ten
million dollars in two thousand thirteen. Such aggregate amount of
credits shall be allocated by the governor's office for motion picture
and television development among taxpayers in order of priority based
upon the date of filing an application for allocation of film production
credit with such office. If the total amount of allocated credits
applied for in any particular year exceeds the aggregate amount of tax
credits allowed for such year under this section, such excess shall be
treated as having been applied for on the first day of the subsequent
year.
(2) The aggregate amount of tax credits allowed pursuant to the
authority of subdivision (b) of section twelve hundred one-a of this
chapter in any calendar year shall be twelve million five hundred
thousand dollars in two thousand four and two thousand five and thirty
million dollars in two thousand six through two thousand eleven. Such
aggregate amount of credits shall be allocated by the mayor's office of
film, theater and broadcasting among taxpayers in order of priority
based upon the date of filing an application for allocation of film
production credit with such office. If the total amount of allocated
credits applied for in any particular year exceeds the aggregate amount
of tax credits allowed for such year under this section, such excess
shall be treated as having been applied for on the first day of the
subsequent year.
(3) Additional pool 1 - The aggregate amount of tax credits allowed in
subdivision (a) of this section shall be increased by an additional
three hundred fifty million dollars in two thousand nine. This
additional amount shall be allocated by the governor's office for motion
picture and television development among taxpayers in accordance with
subdivision (a) of this section.
* (4) Additional pool 2 - The aggregate amount of tax credits allowed
in subdivision (a) of this section shall be increased by an additional
four hundred twenty million dollars in each year starting in two
thousand ten through two thousand twenty-nine provided however, seven
million dollars of the annual allocation shall be available for the
empire state film post production credit pursuant to section thirty-one
of this article in two thousand thirteen and two thousand fourteen and
twenty-five million dollars of the annual allocation shall be available
for the empire state film post production credit pursuant to section
thirty-one of this article in each year starting in two thousand fifteen
through two thousand twenty-nine. This amount shall be allocated by the
governor's office for motion picture and television development among
taxpayers in accordance with subdivision (a) of this section. If the
commissioner of economic development determines that the aggregate
amount of tax credits available from additional pool 2 for the empire
state film production tax credit have been previously allocated, and
determines that the pending applications from eligible applicants for
the empire state film post production tax credit pursuant to section
thirty-one of this article is insufficient to utilize the balance of
unallocated empire state film post production tax credits from such
pool, the remainder, after such pending applications are considered,
shall be made available for allocation in the empire state film tax
credit pursuant to this section, subdivision twenty of section two
hundred ten-B and subsection (gg) of section six hundred six of this
chapter. Also, if the commissioner of economic development determines
that the aggregate amount of tax credits available from additional pool
2 for the empire state film post production tax credit have been
previously allocated, and determines that the pending applications from
eligible applicants for the empire state film production tax credit
pursuant to this section is insufficient to utilize the balance of
unallocated film production tax credits from such pool, then all or part
of the remainder, after such pending applications are considered, shall
be made available for allocation for the empire state film post
production credit pursuant to this section, subdivision thirty-two of
section two hundred ten-B and subsection (qq) of section six hundred six
of this chapter. The governor's office for motion picture and television
development must notify taxpayers of their allocation year and include
the allocation year on the certificate of tax credit. Taxpayers eligible
to claim a credit must report the allocation year directly on their
empire state film production credit tax form for each year a credit is
claimed and include a copy of the certificate with their tax return. In
the case of a qualified film that receives funds from additional pool 2,
no empire state film production credit shall be claimed before the later
of the taxable year the production of the qualified film is complete, or
the taxable year immediately following the allocation year for which the
film has been allocated credit by the governor's office for motion
picture and television development.
* NB Effective until the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 6 sb 2 (b) of
chapter 683 of 2019
* (4) Additional pool 2 - The aggregate amount of tax credits allowed
in subdivision (a) of this section shall be increased by an additional
four hundred twenty million dollars in each year starting in two
thousand ten through two thousand twenty-nine provided however, seven
million dollars of the annual allocation shall be available for the
empire state film post production credit pursuant to section thirty-one
of this article in two thousand thirteen and two thousand fourteen,
twenty-five million dollars of the annual allocation shall be available
for the empire state film post production credit pursuant to section
thirty-one of this article in each year starting in two thousand fifteen
through two thousand twenty-nine and five million dollars of the annual
allocation shall be made available for the television writers' and
directors' fees and salaries credit pursuant to section twenty-four-b of
this article in each year starting in two thousand twenty through two
thousand twenty-nine. This amount shall be allocated by the governor's
office for motion picture and television development among taxpayers in
accordance with subdivision (a) of this section. If the commissioner of
economic development determines that the aggregate amount of tax credits
available from additional pool 2 for the empire state film production
tax credit have been previously allocated, and determines that the
pending applications from eligible applicants for the empire state film
post production tax credit pursuant to section thirty-one of this
article is insufficient to utilize the balance of unallocated empire
state film post production tax credits from such pool, the remainder,
after such pending applications are considered, shall be made available
for allocation in the empire state film tax credit pursuant to this
section, subdivision twenty of section two hundred ten-B and subsection
(gg) of section six hundred six of this chapter. Also, if the
commissioner of economic development determines that the aggregate
amount of tax credits available from additional pool 2 for the empire
state film post production tax credit have been previously allocated,
and determines that the pending applications from eligible applicants
for the empire state film production tax credit pursuant to this section
is insufficient to utilize the balance of unallocated film production
tax credits from such pool, then all or part of the remainder, after
such pending applications are considered, shall be made available for
allocation for the empire state film post production credit pursuant to
this section, subdivision thirty-two of section two hundred ten-B and
subsection (qq) of section six hundred six of this chapter. The
governor's office for motion picture and television development must
notify taxpayers of their allocation year and include the allocation
year on the certificate of tax credit. Taxpayers eligible to claim a
credit must report the allocation year directly on their empire state
film production credit tax form for each year a credit is claimed and
include a copy of the certificate with their tax return. In the case of
a qualified film that receives funds from additional pool 2, no empire
state film production credit shall be claimed before the later of the
taxable year the production of the qualified film is complete, or the
taxable year immediately following the allocation year for which the
film has been allocated credit by the governor's office for motion
picture and television development.
* NB Effective on the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 6 sb 2 (b) of
chapter 683 of 2019
(f) (1) With regard to certificates of tax credit issued on or after
January first, two thousand twenty, the commissioner of economic
development shall reduce by one-quarter of one percent the amount of
credit allowed to a taxpayer and this reduced amount shall be reported
on a certificate of tax credit issued pursuant to this section and the
regulations promulgated by the commissioner of economic development to
implement this credit program. Provided, however, for certificates of
tax credit issued on or after January first, two thousand twenty-three,
the amount of credit shall be reduced by one-half of one percent allowed
to the taxpayer.
(2) By January thirty-first of each year, the commissioner of economic
development shall report to the comptroller the total amount of such
reductions of tax credit during the immediately preceding calendar year.
On or before March thirty-first of each year, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund established
under section ninety-seven-ff of the state finance law an amount equal
to the total amount of such reductions reported by the commissioner of
economic development for the immediately preceding calendar year.
(3) Notwithstanding paragraph two of this subdivision, the following
provisions shall apply with respect to reductions of tax credit in two
thousand twenty. (i) The commissioner of economic development shall
report to the comptroller by June first, two thousand twenty the total
amount of such reductions of tax credit during the period of January
first, two thousand twenty through May fifteenth, two thousand twenty.
On or before July first, two thousand twenty, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund an amount
equal to the total amount of such reductions reported by the
commissioner of economic development for the period of January first,
two thousand twenty through May fifteenth, two thousand twenty. (ii) By
January thirty-first, two thousand twenty-one, the commissioner of
economic development shall report to the comptroller the total amount of
such reductions of tax credit during the period of May sixteenth, two
thousand twenty through December thirty-first, two thousand twenty. On
or before March thirty-first, two thousand twenty-one, the comptroller
shall transfer without appropriations from the general fund to the
empire state entertainment diversity job training development fund an
amount equal to the total amount of such reductions reported by the
commissioner of economic development for the period of May sixteenth,
two thousand twenty through December thirty-first, two thousand twenty.
credit. A taxpayer which is a qualified film production company, or a
qualified independent film production company, or which is a sole
proprietor of or a member of a partnership which is a qualified film
production company or a qualified independent film production company,
and which is subject to tax under articles nine-A or twenty-two of this
chapter, shall be allowed a credit against such tax, pursuant to the
provisions referenced in subdivision (c) of this section, to be computed
as hereinafter provided.
(2) The amount of the credit shall be the product (or pro rata share
of the product, in the case of a member of a partnership) of twenty-five
percent and the qualified production costs paid or incurred in the
production of a qualified film, provided that: (i) the qualified
production costs (excluding post production costs) paid or incurred
which are attributable to the use of tangible property or the
performance of services at a qualified film production facility in the
production of such qualified film equal or exceed seventy-five percent
of the production costs (excluding post production costs) paid or
incurred which are attributable to the use of tangible property or the
performance of services at any film production facility within and
without the state in the production of such qualified film, and (ii)
except with respect to a qualified independent film production company
or pilot, at least ten percent of the total principal photography
shooting days spent in the production of such qualified film must be
spent at a qualified film production facility. However, if the qualified
production costs (excluding post production costs) which are
attributable to the use of tangible property or the performance of
services at a qualified film production facility in the production of
such qualified film is less than three million dollars, then the portion
of the qualified production costs attributable to the use of tangible
property or the performance of services in the production of such
qualified film outside of a qualified film production facility shall be
allowed only if the shooting days spent in New York outside of a film
production facility in the production of such qualified film equal or
exceed seventy-five percent of the total shooting days spent within and
without New York outside of a film production facility in the production
of such qualified film. The credit shall be allowed for the taxable year
in which the production of such qualified film is completed. However, in
the case of a qualified film that receives funds from additional pool 2,
no credit shall be claimed before the later of (1) the taxable year the
production of the qualified film is complete, or (2) the first taxable
year beginning immediately after the allocation year for which the film
has been allocated credit by the governor's office for motion picture
and television development. If the amount of the credit is at least one
million dollars but less than five million dollars, the credit shall be
claimed over a two year period beginning in the first taxable year in
which the credit may be claimed and in the next succeeding taxable year,
with one-half of the amount of credit allowed being claimed in each
year. If the amount of the credit is at least five million dollars, the
credit shall be claimed over a three year period beginning in the first
taxable year in which the credit may be claimed and in the next two
succeeding taxable years, with one-third of the amount of the credit
allowed being claimed in each year.
(3) No qualified production costs used by a taxpayer either as the
basis for the allowance of the credit provided for under this section or
used in the calculation of the credit provided for under this section
shall be used by such taxpayer to claim any other credit allowed
pursuant to this chapter.
(4) (i) Notwithstanding the foregoing provisions of this subdivision,
a qualified film production company or qualified independent film
production company, that has applied for credit under the provisions of
this section, agrees as a condition for the granting of the credit: (A)
to include in each qualified film distributed by DVD, or other media for
the secondary market, a New York promotional video approved by the
governor's office of motion picture and television development or to
include in the end credits of each qualified film "Filmed With the
Support of the New York State Governor's Office of Motion Picture and
Television Development" and a logo provided by the governor's office of
motion picture and television development, and (B) to certify that it
will purchase taxable tangible property and services, defined as
qualified production costs pursuant to paragraph one of subdivision (b)
of this section, only from companies registered to collect and remit
state and local sales and use taxes pursuant to articles twenty-eight
and twenty-nine of this chapter.
(ii) On or after January first, two thousand twenty-three, a qualified
film production company or qualified independent film production company
that has applied for credit under the provisions of this section shall,
as a condition for the granting of the credit, file a diversity plan
with the governor's office for motion picture and television development
outlining specific goals for hiring a diverse workforce. The
commissioner of economic development shall promulgate regulations
implementing the requirements of this paragraph, which, notwithstanding
any provisions to the contrary in the state administrative procedure
act, may be adopted on an emergency basis, to ensure compliance with the
provisions of this paragraph. The governor's office for motion picture
and television development shall review each submitted plan as to
whether it meets the requirements established by the commissioner of
economic development, and shall verify that the applicant has met or
made good-faith efforts in achieving these goals. The diversity plan
also shall indicate whether the qualified film production company or
qualified independent film production company that has applied for
credit under the provisions of this section intends to participate in
training, education, and recruitment programs that are designed to
promote and encourage the training and hiring in the film and television
industry of New York residents who represent the diversity of the
State's population.
(5) For the period two thousand fifteen through two thousand
twenty-nine, in addition to the amount of credit established in
paragraph two of this subdivision, a taxpayer shall be allowed a credit
equal to the product (or pro rata share of the product, in the case of a
member of a partnership) of ten percent and the amount of wages or
salaries paid to individuals directly employed (excluding those employed
as writers, directors, music directors, producers and performers,
including background actors with no scripted lines) by a qualified film
production company or a qualified independent film production company
for services performed by those individuals in one of the counties
specified in this paragraph in connection with a qualified film with a
minimum budget of five hundred thousand dollars. For purposes of this
additional credit, the services must be performed in one or more of the
following counties: Albany, Allegany, Broome, Cattaraugus, Cayuga,
Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware,
Dutchess, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton,
Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery,
Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Oswego, Otsego,
Putnam, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler, Seneca,
St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren,
Washington, Wayne, Wyoming, or Yates. The aggregate amount of tax
credits allowed pursuant to the authority of this paragraph shall be
five million dollars each year during the period two thousand fifteen
through two thousand twenty-nine of the annual allocation made available
to the program pursuant to paragraph four of subdivision (e) of this
section. Such aggregate amount of credits shall be allocated by the
governor's office for motion picture and television development among
taxpayers in order of priority based upon the date of filing an
application for allocation of film production credit with such office.
If the total amount of allocated credits applied for under this
paragraph in any year exceeds the aggregate amount of tax credits
allowed for such year under this paragraph, such excess shall be treated
as having been applied for on the first day of the next year. If the
total amount of allocated tax credits applied for under this paragraph
at the conclusion of any year is less than five million dollars, the
remainder shall be treated as part of the annual allocation made
available to the program pursuant to paragraph four of subdivision (e)
of this section. However, in no event may the total of the credits
allocated under this paragraph and the credits allocated under paragraph
five of subdivision (a) of section thirty-one of this article exceed
five million dollars in any year during the period two thousand fifteen
through two thousand twenty-nine.
(b) Definitions. As used in this section, the following terms shall
have the following meanings:
(1) "Qualified production costs" means production costs only to the
extent such costs are attributable to the use of tangible property or
the performance of services within the state directly and predominantly
in the production (including pre-production and post production) of a
qualified film.
(2) "Production costs" means any costs for tangible property used and
services performed directly and predominantly in the production
(including pre-production and post production) of a qualified film.
"Production costs" shall not include (i) costs for a story, script or
scenario to be used for a qualified film and (ii) wages or salaries or
other compensation for writers, directors, including music directors,
producers and performers (other than background actors with no scripted
lines). "Production costs" generally include technical and crew
production costs, such as expenditures for film production facilities,
or any part thereof, props, makeup, wardrobe, film processing, camera,
sound recording, set construction, lighting, shooting, editing and
meals.
(3) "Qualified film" means a feature-length film, television film,
relocated television production, television pilot or television series,
regardless of the medium by means of which the film, pilot or series is
created or conveyed. For the purposes of the credit provided by this
section only, a "qualified film" whose majority of principal photography
shooting days in the production of the qualified film are shot in
Westchester, Rockland, Nassau, or Suffolk county or any of the five New
York City boroughs shall have a minimum budget of one million dollars. A
"qualified film", whose majority of principal photography shooting days
in the production of the qualified film are shot in any other county of
the state than those listed in the preceding sentence shall have a
minimum budget of two hundred fifty thousand dollars. "Qualified film"
shall not include: (i) a documentary film, news or current affairs
program, interview or talk program, "how-to" (i.e., instructional) film
or program, film or program consisting primarily of stock footage,
sporting event or sporting program, game show, award ceremony, film or
program intended primarily for industrial, corporate or institutional
end-users, fundraising film or program, daytime drama (i.e., daytime
"soap opera"), commercials, music videos or "reality" program; (ii) a
production for which records are required under section 2257 of title
18, United States code, to be maintained with respect to any performer
in such production (reporting of books, films, etc. with respect to
sexually explicit conduct); or (iii) other than a relocated television
production, a television series commonly known as variety entertainment,
variety sketch and variety talk, i.e., a program with components of
improvisational or scripted content (monologues, sketches, interviews),
either exclusively or in combination with other entertainment elements
such as musical performances, dancing, cooking, crafts, pranks, stunts,
and games and which may be further defined in regulations of the
commissioner of economic development. However, a qualified film shall
include a television series as described in subparagraph (iii) of this
paragraph only if an application for such series has been deemed
conditionally eligible for the tax credit under this section prior to
April first, two thousand twenty, such series remains in continuous
production for each season, and an annual application for each season of
such series is continually submitted for such series after April first,
two thousand twenty.
(4) "Film production facility" shall mean a building and/or complex of
buildings and their improvements and associated back-lot facilities in
which films are or are intended to be regularly produced and which
contain at least one sound stage, provided, however, that an armory
owned by the state or city of New York located in the city of New York
shall not be considered to be a "film production facility" unless it
meets the criteria contained in paragraph five of this subdivision or
unless such facility is used by a qualified independent film production
company.
(5) "Qualified film production facility" shall mean a film production
facility in the state, which contains at least one sound stage having a
minimum of seven thousand square feet of contiguous production space,
provided, however, that except with respect to a qualified film
production facility being used by a qualified independent film
production company: (i) a film production facility in the city of New
York must contain at least one sound stage having a minimum of seven
thousand square feet of contiguous production space that is sound proof
with a Noise Criteria ("NC") of 30 or better, has sufficient heating and
air conditioning for shooting without the need for supplemental units,
incorporates a permanent grid and sufficient built-in electric service
for shooting without the need for generators, and is column-free with a
clear height of at least sixteen feet under the permanent grid for
facilities constructed on or after January first, two thousand nineteen,
and at least twelve feet under the permanent grid for facilities
constructed before January first, two thousand nineteen; and (ii) an
armory owned by the state or city of New York located in the city of New
York that does not satisfy the criteria of subparagraph (i) of this
paragraph shall be treated as a qualified film production facility upon
certification by the governor's office of motion picture and television
development of a petition submitted to that office by a qualified film
production company establishing that no qualified film production
facility is available in the city of New York that has stage space
available for shooting such company's film. Such petition shall be
submitted no later than ninety days prior to the start of principal
photography for the qualified film and the governor's office of motion
picture and television development shall have ten days to certify or
reject the petition. A stage will be deemed unavailable if consideration
has been paid for its use or such stage is currently under an agreement
with an option for use and, in either circumstance, such period of use
includes the petitioner's estimated start date of principal photography.
(6) "Qualified film production company" is a corporation, partnership,
limited partnership, or other entity or individual which or who is
principally engaged in the production of a qualified film and controls
the qualified film during production.
(7) "Qualified independent film production company" is a corporation,
partnership, limited partnership, or other entity or individual, that or
who (i) is principally engaged in the production of a qualified film
with a maximum budget of fifteen million dollars, and (ii) controls the
qualified film during production, and (iii) either is not a publicly
traded entity, or no more than five percent of the beneficial ownership
of which is owned, directly or indirectly, by a publicly traded entity.
(8) "Relocated television production" shall mean, notwithstanding the
limitations in subparagraph (i) of paragraph three of this subdivision,
a television production that is a talk or variety program that filmed at
least five seasons outside the state prior to its first relocated season
in New York, the episodes are filmed before a studio audience of two
hundred or more, and the relocated television production incurs (i) at
least thirty million dollars in annual production costs in the state, or
(ii) at least ten million dollars in capital expenditures at a qualified
production facility in the state.
(c) Cross-references. For application of the credit provided for in
this section, see the following provisions of this chapter:
(1) article 9-A: section 210-B: subdivision 20.
(2) article 22: section 606: subsection (gg).
(d) Notwithstanding any provision of this chapter, employees and
officers of the governor's office of motion picture and television
development and the department shall be allowed and are directed to
share and exchange information regarding the credits applied for,
allowed, or claimed pursuant to this section and taxpayers who are
applying for credits or who are claiming credits, including information
contained in or derived from credit claim forms submitted to the
department and applications for credit submitted to the governor's
office of motion picture and television development.
(e) Allocation of credit. (1) The aggregate amount of tax credits
allowed under this section, subdivision thirty-six of section two
hundred ten and subsection (gg) of section six hundred six of this
chapter in any calendar year shall be twenty-five million dollars in two
thousand four and two thousand five, sixty million dollars in two
thousand six and two thousand seven, sixty-five million dollars in two
thousand eight, seventy-five million dollars in two thousand nine,
eighty-five million dollars in two thousand ten, ninety million dollars
in two thousand eleven and two thousand twelve, and one hundred ten
million dollars in two thousand thirteen. Such aggregate amount of
credits shall be allocated by the governor's office for motion picture
and television development among taxpayers in order of priority based
upon the date of filing an application for allocation of film production
credit with such office. If the total amount of allocated credits
applied for in any particular year exceeds the aggregate amount of tax
credits allowed for such year under this section, such excess shall be
treated as having been applied for on the first day of the subsequent
year.
(2) The aggregate amount of tax credits allowed pursuant to the
authority of subdivision (b) of section twelve hundred one-a of this
chapter in any calendar year shall be twelve million five hundred
thousand dollars in two thousand four and two thousand five and thirty
million dollars in two thousand six through two thousand eleven. Such
aggregate amount of credits shall be allocated by the mayor's office of
film, theater and broadcasting among taxpayers in order of priority
based upon the date of filing an application for allocation of film
production credit with such office. If the total amount of allocated
credits applied for in any particular year exceeds the aggregate amount
of tax credits allowed for such year under this section, such excess
shall be treated as having been applied for on the first day of the
subsequent year.
(3) Additional pool 1 - The aggregate amount of tax credits allowed in
subdivision (a) of this section shall be increased by an additional
three hundred fifty million dollars in two thousand nine. This
additional amount shall be allocated by the governor's office for motion
picture and television development among taxpayers in accordance with
subdivision (a) of this section.
* (4) Additional pool 2 - The aggregate amount of tax credits allowed
in subdivision (a) of this section shall be increased by an additional
four hundred twenty million dollars in each year starting in two
thousand ten through two thousand twenty-nine provided however, seven
million dollars of the annual allocation shall be available for the
empire state film post production credit pursuant to section thirty-one
of this article in two thousand thirteen and two thousand fourteen and
twenty-five million dollars of the annual allocation shall be available
for the empire state film post production credit pursuant to section
thirty-one of this article in each year starting in two thousand fifteen
through two thousand twenty-nine. This amount shall be allocated by the
governor's office for motion picture and television development among
taxpayers in accordance with subdivision (a) of this section. If the
commissioner of economic development determines that the aggregate
amount of tax credits available from additional pool 2 for the empire
state film production tax credit have been previously allocated, and
determines that the pending applications from eligible applicants for
the empire state film post production tax credit pursuant to section
thirty-one of this article is insufficient to utilize the balance of
unallocated empire state film post production tax credits from such
pool, the remainder, after such pending applications are considered,
shall be made available for allocation in the empire state film tax
credit pursuant to this section, subdivision twenty of section two
hundred ten-B and subsection (gg) of section six hundred six of this
chapter. Also, if the commissioner of economic development determines
that the aggregate amount of tax credits available from additional pool
2 for the empire state film post production tax credit have been
previously allocated, and determines that the pending applications from
eligible applicants for the empire state film production tax credit
pursuant to this section is insufficient to utilize the balance of
unallocated film production tax credits from such pool, then all or part
of the remainder, after such pending applications are considered, shall
be made available for allocation for the empire state film post
production credit pursuant to this section, subdivision thirty-two of
section two hundred ten-B and subsection (qq) of section six hundred six
of this chapter. The governor's office for motion picture and television
development must notify taxpayers of their allocation year and include
the allocation year on the certificate of tax credit. Taxpayers eligible
to claim a credit must report the allocation year directly on their
empire state film production credit tax form for each year a credit is
claimed and include a copy of the certificate with their tax return. In
the case of a qualified film that receives funds from additional pool 2,
no empire state film production credit shall be claimed before the later
of the taxable year the production of the qualified film is complete, or
the taxable year immediately following the allocation year for which the
film has been allocated credit by the governor's office for motion
picture and television development.
* NB Effective until the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 6 sb 2 (b) of
chapter 683 of 2019
* (4) Additional pool 2 - The aggregate amount of tax credits allowed
in subdivision (a) of this section shall be increased by an additional
four hundred twenty million dollars in each year starting in two
thousand ten through two thousand twenty-nine provided however, seven
million dollars of the annual allocation shall be available for the
empire state film post production credit pursuant to section thirty-one
of this article in two thousand thirteen and two thousand fourteen,
twenty-five million dollars of the annual allocation shall be available
for the empire state film post production credit pursuant to section
thirty-one of this article in each year starting in two thousand fifteen
through two thousand twenty-nine and five million dollars of the annual
allocation shall be made available for the television writers' and
directors' fees and salaries credit pursuant to section twenty-four-b of
this article in each year starting in two thousand twenty through two
thousand twenty-nine. This amount shall be allocated by the governor's
office for motion picture and television development among taxpayers in
accordance with subdivision (a) of this section. If the commissioner of
economic development determines that the aggregate amount of tax credits
available from additional pool 2 for the empire state film production
tax credit have been previously allocated, and determines that the
pending applications from eligible applicants for the empire state film
post production tax credit pursuant to section thirty-one of this
article is insufficient to utilize the balance of unallocated empire
state film post production tax credits from such pool, the remainder,
after such pending applications are considered, shall be made available
for allocation in the empire state film tax credit pursuant to this
section, subdivision twenty of section two hundred ten-B and subsection
(gg) of section six hundred six of this chapter. Also, if the
commissioner of economic development determines that the aggregate
amount of tax credits available from additional pool 2 for the empire
state film post production tax credit have been previously allocated,
and determines that the pending applications from eligible applicants
for the empire state film production tax credit pursuant to this section
is insufficient to utilize the balance of unallocated film production
tax credits from such pool, then all or part of the remainder, after
such pending applications are considered, shall be made available for
allocation for the empire state film post production credit pursuant to
this section, subdivision thirty-two of section two hundred ten-B and
subsection (qq) of section six hundred six of this chapter. The
governor's office for motion picture and television development must
notify taxpayers of their allocation year and include the allocation
year on the certificate of tax credit. Taxpayers eligible to claim a
credit must report the allocation year directly on their empire state
film production credit tax form for each year a credit is claimed and
include a copy of the certificate with their tax return. In the case of
a qualified film that receives funds from additional pool 2, no empire
state film production credit shall be claimed before the later of the
taxable year the production of the qualified film is complete, or the
taxable year immediately following the allocation year for which the
film has been allocated credit by the governor's office for motion
picture and television development.
* NB Effective on the first of January next succeeding the date the
department of economic development provides notice to the legislative
bill drafting commission of a determination pursuant to § 6 sb 2 (b) of
chapter 683 of 2019
(f) (1) With regard to certificates of tax credit issued on or after
January first, two thousand twenty, the commissioner of economic
development shall reduce by one-quarter of one percent the amount of
credit allowed to a taxpayer and this reduced amount shall be reported
on a certificate of tax credit issued pursuant to this section and the
regulations promulgated by the commissioner of economic development to
implement this credit program. Provided, however, for certificates of
tax credit issued on or after January first, two thousand twenty-three,
the amount of credit shall be reduced by one-half of one percent allowed
to the taxpayer.
(2) By January thirty-first of each year, the commissioner of economic
development shall report to the comptroller the total amount of such
reductions of tax credit during the immediately preceding calendar year.
On or before March thirty-first of each year, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund established
under section ninety-seven-ff of the state finance law an amount equal
to the total amount of such reductions reported by the commissioner of
economic development for the immediately preceding calendar year.
(3) Notwithstanding paragraph two of this subdivision, the following
provisions shall apply with respect to reductions of tax credit in two
thousand twenty. (i) The commissioner of economic development shall
report to the comptroller by June first, two thousand twenty the total
amount of such reductions of tax credit during the period of January
first, two thousand twenty through May fifteenth, two thousand twenty.
On or before July first, two thousand twenty, the comptroller shall
transfer without appropriations from the general fund to the empire
state entertainment diversity job training development fund an amount
equal to the total amount of such reductions reported by the
commissioner of economic development for the period of January first,
two thousand twenty through May fifteenth, two thousand twenty. (ii) By
January thirty-first, two thousand twenty-one, the commissioner of
economic development shall report to the comptroller the total amount of
such reductions of tax credit during the period of May sixteenth, two
thousand twenty through December thirty-first, two thousand twenty. On
or before March thirty-first, two thousand twenty-one, the comptroller
shall transfer without appropriations from the general fund to the
empire state entertainment diversity job training development fund an
amount equal to the total amount of such reductions reported by the
commissioner of economic development for the period of May sixteenth,
two thousand twenty through December thirty-first, two thousand twenty.