N.Y. Economic Development Law § 400: Definitions

* § 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