N.Y. Economic Development Law § 352: Definitions

§ 352. Definitions. For the purposes of this article:

1. "Agriculture" means both agricultural production (establishments

performing the complete farm or ranch operation, such as farm

owner-operators, tenant farm operators, and sharecroppers) and

agricultural support (establishments that perform one or more activities

associated with farm operation, such as soil preparation, planting,

harvesting, shearing, animal and plant fiber processing, and management,

on a contract or fee basis).

1-a. "Animal and plant fiber textile manufacturing" means the

processes of harvesting, cleaning, spinning, knitting, weaving, dyeing

and finishing textiles containing animal and plant fiber grown or

produced predominantly in New York state.

2. "Back office operations" means a business function that may include

one or more of the following activities: customer service, information

technology and data processing, human resources, accounting and related

administrative functions.

3. "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 value of capital investments to be made by the business

enterprise during the period of participation in the program, and the

denominator is the amount of total tax benefits under this article that

will be used and refunded.

3-a. "Green CHIPS benefit-cost ratio" means the following calculation

with respect to Green CHIPS projects: the ratio where the numerator is

the sum of: (a) the value of all remuneration projected to be paid for

all net new jobs during the period of participation in the program; (b)

the value of capital investments to be made by the business enterprise

during the period of participation in the program; and (c) all research

and development expenditures by the participant in New York State during

the period of participation in the program; and the denominator is the

amount of total tax benefits under this article that will be used and

refunded as well as any state grants provided to the participant.

4. "Certificate of eligibility" means the document issued by the

department to an applicant that has completed an application to be

admitted into the excelsior jobs program and has been accepted into the

program by the department. Possession of a certificate of eligibility

does not by itself guarantee the eligibility to claim the tax credit.

5. "Certificate of tax credit" means the document issued to a

participant by the department, after the department has verified that

the participant has met all applicable eligibility criteria in this

article. The certificate shall be issued annually if such criteria are

satisfied and shall specify the exact amount of each of the tax credit

components under this article that a participant may claim, pursuant to

section three hundred fifty-five of this article, and shall specify the

taxable year in which such credit may be claimed.

5-a. "Child care services" means those services undertaken or

sponsored by a participant in this program meeting the requirements of

"child day care" as defined in paragraph (a) of subdivision one of

section three hundred ninety of the social services law or any child

care services in the city of New York whereby a permit to operate such

child care services is required pursuant to the health code of the city

of New York.

6. "Distribution center" means a large scale facility involving

processing, repackaging and/or movement of finished or semi-finished

goods to retail locations across a multi-state area.

7. "Entertainment company" means a corporation, partnership, limited

partnership, or other entity principally engaged in the production or

post production of (i) motion pictures, which shall include

feature-length films and television films, (ii) instructional videos,

(iii) televised commercial advertisements, (iv) animated films or

cartoons, (v) music videos, (vi) television programs, which shall

include, but not be limited to, television series, television pilots,

and single television episodes, or (vii) programs primarily intended for

radio broadcast. "Entertainment company" shall not include an entity (i)

principally engaged in the live performance of events, including, but

not limited to, theatrical productions, concerts, circuses, and sporting

events, (ii) principally engaged in the production of content intended

primarily for industrial, corporate or institutional end-users, (iii)

principally engaged in the production of fundraising films or programs,

or (iv) engaged in the production of content 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.

8. "Financial services data centers or financial services customer

back office operations" means operations that manage the data or

accounts of existing customers or provide product or service information

and support to customers of financial services companies, including

banks, other lenders, securities and commodities brokers and dealers,

investment banks, portfolio managers, trust offices, and insurance

companies.

8-a. "Green project" means a project deemed by the commissioner to

make products or develop technologies that are primarily aimed at

reducing greenhouse gas emissions or supporting the use of clean energy

in accordance with goals described in chapter one hundred six of the

laws of two thousand nineteen. "Green project" shall include, but not be

limited to, the manufacture or development of products or technologies

or supply chain components primarily for renewable energy systems as

defined in section sixty-six-p of the public service law, vehicles that

use non-hydrocarbon fuels and produce zero or near zero emissions, heat

pumps, energy efficiency, clean energy storage and other products that

significantly reduce greenhouse gas emissions by minimizing the

utilization of depletable resources or by improving industrial or

agricultural efficiency. "Green project" shall not include a project

primarily composed of (i) necessarily local activities such as retail,

building construction, or the installation, deployment or adoption of a

clean energy product or technology at an end user's site, or (ii) the

production of products or development of technologies that would produce

only marginal and incremental energy savings or environmental benefits

ancillary to the core function of the product or technology.

9. "Investment zone" shall mean an area within the state that had been

designated under paragraph (i) of subdivision (a) and subdivision (d) of

section nine hundred fifty-eight of the general municipal law that was

wholly contained within up to four distinct and separate contiguous

areas as of the date immediately preceding the date the designation of

such area expired pursuant to section nine hundred sixty-nine of the

general municipal law.

10. "Life sciences" means agricultural biotechnology, biogenerics,

bioinformatics, biomedical engineering, biopharmaceuticals, academic

medical centers, biotechnology, chemical synthesis, chemistry

technology, medical diagnostics, genomics, medical image analysis,

marine biology, medical devices, medical nanotechnology, natural product

pharmaceuticals, proteomics, regenerative medicine, RNA interference,

stem cell research, medical and neurological clinical trials, health

robotics and veterinary science.

11. "Life sciences company" means a business entity or an organization

or institution that devotes the majority of its efforts in the various

stages of research, development, technology transfer and

commercialization related to any life sciences field.

12. "Manufacturing" means the process of working raw materials into

products suitable for use or which gives new shapes, new quality or new

combinations to matter which has already gone through some artificial

process by the use of machinery, tools, appliances, or other similar

equipment. "Manufacturing" does not include an operation that involves

only the assembly of components, provided, however, the assembly of

motor vehicles or other high value-added products shall be considered

manufacturing.

13. "Music production" means the process of creating sound recordings

of at least eight minutes, recorded in professional sound studios,

intended for commercial release. "Music production" does not include

recording of live concerts, or recordings that are primarily spoken word

or wildlife or nature sounds, or produced for instructional use or

advertising or promotional purposes.

13-a. "Net new child care services expenditures" means the calculation

of new, annual participant expenditures on child care services whether

internal or provided by a third party (including coverage for full or

partial discount of employee rates), minus any revenues received by the

participant through a third-party operator (i.e. rent paid to the

participant by the child care provider) or employees and may be further

defined by the commissioner in regulations. For the purposes of this

definition, expenditures for child care services that a participant has

incurred prior to admission to this program shall not be eligible for

the credit.

14. "Net new jobs" means:

(a) jobs created in this state that (i) are new to the state,

(ii) have not been transferred from employment with another business

located in this state including from a related person in this state,

(iii) are either full-time wage-paying jobs or equivalent to a

full-time wage-paying job requiring at least thirty-five hours per week,

and

(iv) are filled for more than six months; or

(b) jobs obtained by an entertainment company in this state (i) as a

result of the termination of a licensing agreement with another

entertainment company, (ii) that the commissioner determines to be at

risk of leaving the state as a direct result of the termination, (iii)

that are either full-time wage-paying jobs or equivalent to a full-time

wage-paying job requiring at least thirty-five hours per week, and (iv)

that are filled for more than six months.

15. "Participant" means a business entity that:

(a) has completed an application prescribed by the department to be

admitted into the program;

(b) has been issued a certificate of eligibility by the department;

(c) has demonstrated that it meets the eligibility criteria in section

three hundred fifty-three and subdivision two of section three hundred

fifty-four of this article; and

(d) has been certified as a participant by the commissioner.

16. "Preliminary schedule of benefits" means the maximum aggregate

amount of each component of the tax credit that a participant in the

excelsior jobs program is eligible to receive pursuant to this article.

The schedule shall indicate the annual amount of each component of the

credit a participant may claim in each of its ten years of eligibility.

The preliminary schedule of benefits shall be issued by the department

when the department approves the application for admission into the

program. The commissioner may amend that schedule, provided that the

commissioner complies with the credit caps in section three hundred

fifty-nine of this article as applicable.

17. "Qualified investment" means an investment in tangible property

(including a building or a structural component of a building) owned by

a business enterprise 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 this state; and

(e) is placed in service in the state on or after the date the

certificate of eligibility is issued to the business enterprise.

18. "Regionally significant project" means (a) a manufacturer creating

at least ten net new jobs in the state and making significant capital

investment in the state; (b) a business creating at least ten net new

jobs in agriculture in the state and making significant capital

investment in the state, (c) a financial services firm, distribution

center, or back office operation creating at least one hundred net new

jobs in the state and making significant capital investment in the

state, (d) a scientific research and development firm creating at least

ten net new jobs in the state, and making significant capital investment

in the state, (e) a life sciences company creating at least twenty net

new jobs in the state and making significant capital investment in the

state or (f) an entertainment company creating or obtaining at least two

hundred net new jobs in the state and making significant capital

investment in the state. Other businesses creating one hundred fifty or

more net new jobs in the state and making significant capital investment

in the state may be considered eligible as a regionally significant

project by the commissioner as well. The commissioner shall promulgate

regulations pursuant to section three hundred fifty-six of this article

to determine what additional criteria a business must meet to be

eligible as a regionally significant project, including, but not limited

to, whether a business exports a substantial portion of its products or

services outside of the state or outside of a metropolitan statistical

area or county within the state.

19. "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.

20. "Remuneration" means wages and benefits paid to an employee by a

participant in the excelsior jobs program.

20-a. "Significant capital investment" means a project which will be

either a newly constructed facility or a newly constructed addition to,

expansion of or improvement of a facility, consisting of tangible

personal property and other tangible property, including buildings and

structural components of buildings, that are depreciable pursuant to

section one hundred sixty-seven of the internal revenue code, have a

useful life of four years or more, are acquired by purchase as defined

in section one hundred seventy-nine (d) of the internal revenue code,

and that is equal to or exceeds (a) one million dollars for a

manufacturer; (b) two hundred fifty thousand dollars for an agriculture

business; (c) three million dollars for a financial services firm or

back office operation; (d) fifteen million dollars for a distribution

center; (e) three million dollars for a scientific research and

development firm; or (f) three million dollars for other businesses.

21. "Research and development expenditures" mean the expenses of the

business enterprise that are qualified research expenses under the

federal research and development credit under section forty-one of the

internal revenue code and are attributable to activities conducted in

the state. If the federal research and development credit has expired,

then the research and development expenditures shall be calculated as if

the federal research and development credit structure and definition in

effect in federal tax year two thousand nine were still in effect.

22. "Scientific research and development" means conducting research

and experimental development in the physical, engineering, and life

sciences, including but not limited to agriculture, animal fiber,

electronics, environmental, biology, botany, biotechnology, computers,

chemistry, food, fisheries, forests, geology, health, mathematics,

medicine, oceanography, pharmacy, physics, plant fiber, veterinary, and

other allied subjects. For the purposes of this article, scientific

research and development does not include medical or veterinary

laboratory testing facilities.

23. "Software development" means the creation of coded computer

instructions or production or post-production of video games, as defined

in subdivision one-a of section six hundred eleven of the general

business law, other than those embedded and used exclusively in

advertising, promotional websites or microsites, and also includes new

media as defined by the commissioner in regulations.

24. "Green CHIPS project" means a project meeting all of the following

criteria: (a) is within the semiconductor manufacturing and related

equipment and material supplier sector; (b) includes sustainability

measures to mitigate the project's greenhouse gas emissions impact over

its lifetime; (c) provides for the payment of not less than federal

prevailing wage rates for its project construction; (d) makes

commitments to worker and community investment, including through

training and education benefits paid by the participant and programs to

expand employment opportunity for economically disadvantaged

individuals; (e) will create at least five hundred net new jobs and make

at least three billion dollars in qualified investment; and (f) the

participant undertaking a Green CHIPS project shall maintain a Green

CHIPS benefit-cost ratio of at least fifteen to one. Such projects are

eligible to enter into a phase one of a Green CHIPS project ten-year

benefit term. Such projects, provided they are in good standing with all

requirements of this chapter, are also eligible to enter into a phase

two of a Green CHIPS project, and therefore to initiate a new and

separate ten-year schedule related to phase two, provided that phase two

will create at least five hundred net new jobs beyond those created in

phase one, and that phase two will make at least three billion dollars

in qualified investment beyond the investment total associated with

phase one. For Green CHIPS projects, phase one and phase two terms may

overlap, depending on the time of initiation for both projects. In no

event shall credits be awarded for a Green CHIPS project beyond two

thousand fifty.

25. "Semiconductor supply chain project" means a project deemed by the

commissioner to make products or develop technologies that are primarily

aimed at supporting the growth of the semiconductor manufacturing and

related equipment and material supplier sector. "Semiconductor supply

chain project" shall include, but need not be limited to, semiconductor

device manufacturing, producers of component parts, direct input

materials and equipment necessary for the manufacture of semiconductor

chips, machinery, equipment, and materials necessary for the operational

efficiency of semiconductor manufacturing facilities, other such inputs

directly supportive of the domestic production of semiconductor chips,

and companies engaged in the assembly, testing, packaging and advanced

packaging semiconductor value chain. "Semiconductor supply chain

project" shall not include a project primarily composed of: (i)

machinery, equipment, or materials that are inputs to manufacturing

generally, but are not direct inputs to semiconductor manufacturing in

specific; (ii) the production of products or development of technologies

that would produce only marginal and incremental benefits to the

semiconductor manufacturing sector; (iii) projects that would otherwise

qualify as a Green CHIPS project as defined in section twenty-four of

this section.