N.Y. Economic Development Law § 354: Application and approval process

§ 354. Application and approval process. 1. A business enterprise must

submit a completed application as prescribed by the commissioner. An

application made by an entertainment company must be submitted by June

first, two thousand fifteen, except for an application made by an

entertainment company that is eligible to participate in the excelsior

jobs program based upon creating net new jobs pursuant to paragraph (a)

of subdivision twelve of section three hundred fifty-two of this

article. An application may be recommended by entities, including but

not limited to, those created pursuant to subdivision (e) of section

nine hundred fifty-seven of the general municipal law.

2. As part of such application, each business enterprise must:

(a) Agree to allow the department of taxation and finance to share its

tax information with the department. However, any information shared as

a result of this agreement shall not be available for disclosure or

inspection under the state freedom of information law.

(b) Agree to allow the department of labor to share its tax and

employer information with the department. However, any information

shared as a result of this agreement shall not be available for

disclosure or inspection under the state freedom of information law.

(c) Allow the department and its agents access to any and all books

and records the department may require to monitor compliance.

(d) Agree to be permanently disqualified for empire zone benefits at

any location or locations that qualify for excelsior jobs program

benefits if admitted into the excelsior jobs program.

(e) Provide the following information to the department upon request:

(i) a plan outlining the schedule for meeting the job and investment

requirements as set forth in subdivisions three and four of section

three hundred fifty-three of this article. Such plan must include

details on job titles and expected salaries;

(ii) the prior three years of federal and state income or franchise

tax returns, unemployment insurance quarterly returns, real property tax

bills and audited financial statements;

(iii) the amount and description of projected qualified investments

for which it plans to claim the excelsior investment tax credit;

(iv) an estimate of the portion of any federal research and

development tax credits, attributable to research and development

activities conducted in New York state, that it anticipates claiming for

the years it expects to claim the excelsior research and development

credit; and

(v) the employer identification or social security numbers for all

related persons to the applicant, including those of any members of a

limited liability company or partners in a partnership.

(f) Provide a clear and detailed presentation of all related persons

to the applicant to assure the department that jobs are not being

shifted within the state.

(g) Certify, under penalty of perjury, that it is in substantial

compliance with all environmental, worker protection, and local, state,

and federal tax laws.

3. (a) After reviewing a business enterprise's completed application

and determining that the business enterprise will meet the conditions

set forth in subdivisions three and four of section three hundred

fifty-three of this article, the department may admit the applicant into

the program and provide the applicant with a certificate of eligibility

and a preliminary schedule of benefits by year based on the applicant's

projections as set forth in its application. This preliminary schedule

of benefits delineates the maximum possible benefits an applicant may

receive.

(b) Notwithstanding the requirements of this subdivision, an existing

participant in the excelsior jobs program may be eligible for an

enhanced investment tax credit on projects for child care services and

the excelsior child care services tax credit component, provided:

(i) the participant is in compliance with the requirements of this

article;

(ii) the participant is not, at the time of application to the

department for either the enhanced investment tax credit on projects for

child care services or the excelsior child care tax credit component,

either operating a child care facility or sponsoring child care services

for its employees; and

(iii) the participant is seeking to provide such services on condition

of receipt of additional tax credits attributable to child care

services. Such existing participant may apply to the department for the

benefit as defined in section three hundred fifty-five of this article.

In no circumstances shall the benefit term for child care services

exceed the existing participant's existing benefit term in its

preliminary schedule of benefits.

4. In order to become a participant in the program, an applicant must

submit evidence that it satisfies the eligibility criteria specified in

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

this section in such form as the commissioner may prescribe. After

reviewing such evidence and finding it sufficient, the department shall

certify the applicant as a participant and issue to that participant a

certificate of tax credit for one taxable year. To receive a certificate

of tax credit for subsequent taxable years, the participant must submit

to the department a performance report demonstrating that the

participant continues to satisfy the eligibility criteria specified in

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

this section. If such eligibility criteria is met, a participant can

receive tax credits based on interim job, investment or research and

development milestones. A participant's increase in employment,

qualified investment, or federal research and development tax credit

attributable to research and development activities in New York state

above its projections listed in its application shall not result in an

increase in tax benefits under this article. However, if the

participant's expenditures are less than the estimated amounts, the

credit shall be less than the estimate.

5. A participant may claim tax benefits commencing in the first

taxable year that the business enterprise receives a certificate of tax

credit or the first taxable year listed on its preliminary schedule of

benefits, whichever is later. A participant may claim such benefits for

the next nine consecutive taxable years, provided that the participant

demonstrates to the department that it continues to satisfy the

eligibility criteria specified in section three hundred fifty-three of

this article and subdivision two of this section in each of those

taxable years, and provided that no tax credits may be allowed for

taxable years beginning on or after January first, two thousand forty.

If, in any given year, a participant who has satisfied the eligibility

criteria specified in section three hundred fifty-three of this article

realizes job creation less than the estimated amount, the credit shall

be reduced by the proportion of actual job creation to the estimated

amount, provided the proportion is at least seventy-five percent of the

jobs estimated.