N.Y. Tax Law § 20: Credit for transportation improvement contributions

§ 20. Credit for transportation improvement contributions. (a)

Allowance of credit. For taxable years beginning before January first,

two thousand nine, a taxpayer subject to tax under article nine, nine-A,

twenty-two, thirty-two or thirty-three of this chapter shall be allowed

a credit against such tax, pursuant to the provisions referenced in

subdivision (d) of this section. The credit shall be allowed where a

taxpayer has made a certified contribution of at least ten million

dollars to a qualified transportation improvement project in a prior

taxable year. The credit shall be equal to six percent of the taxpayer's

increased qualified business facility payroll for the taxable year. The

aggregate of all credit amounts allowed to the taxpayer pursuant to this

section with respect to a certified contribution shall not exceed the

amount of such certified contribution.

(b) Definitions. As used in this section, the following terms shall

have the following meanings:

(1) Qualified business facility ("QBF"). A business facility the

construction or expansion of which is intended to be enhanced by a

qualified transportation improvement project, as described in paragraph

three of this subdivision.

(2) Certified contribution. The term "certified contribution" means a

contribution certified jointly by the commissioner of transportation and

the commissioner of economic development as a contribution to a

qualified transportation improvement project, such certification

indicating the date and amount of such contribution by the taxpayer, and

including a description of the associated QBF. The commissioner of

transportation and the comptroller are authorized to accept, hold and,

notwithstanding section four of the state finance law, to disburse such

contributions, in the same manner as is authorized for municipal

contributions in section ten of the highway law.

(3) Qualified transportation improvement project. The term "qualified

transportation improvement project" means the design, development,

construction, and/or improvement of transportation infrastructure and

related facilities or systems, including, but not limited to, highways,

roadways, bridges, ramps or lanes; or railroad, port, aviation or mass

transit facilities; or ferry or marine facilities; or associated

right-of-way and associated connections to existing or planned

transportation infrastructure or facilities. Such project must be

designed in part to enhance the planned construction or expansion of a

QBF. A project for the design, development, construction, and/or

improvement of transportation infrastructure and related facilities or

systems shall be considered a "qualified transportation improvement

project" under this section only if the commissioner of transportation

and the commissioner of economic development jointly determine, in their

sole discretion, that the project would promote the development of

employment opportunities in connection with such QBF by creating more

than one thousand new jobs in connection therewith, and is in the best

interests of the people of the state. The undertaking of said project is

declared to be for a public purpose, and the commissioner of

transportation is authorized to participate in the costs thereof.

(4) Increased QBF payroll. The term "increased QBF payroll" means the

excess, if any, of (A) the taxpayer's total wages, salaries and other

personal service compensation of employees employed in connection with a

QBF other than general executive officers (in the case of a

corporation), for the taxable year, over (B) the average of the

taxpayer's total wages, salaries and other personal service compensation

of such employees for the taxable year in which the contribution was

made and for the two immediately preceding taxable years, if any, but

only to the extent that such excess exists with regard to the state.

(c) Recapture. (1) If the taxpayer has made a contribution which is

the basis for a credit allowed under this section, and if with respect

to the third full taxable year (the "test year") next following the

taxable year during which such contribution was made (the "contribution

year") the employment increase test described in paragraph three of this

subdivision is not met, the taxpayer shall add back the sum of the

amounts of such credit which have been allowed for all prior taxable

years, and shall be allowed no further credit under this section with

respect to such contribution with respect to any other taxable year.

(2) The amount required to be added back pursuant to this subdivision

shall be augmented by an amount equal to the product of such amount and

the underpayment rate of interest (without regard to compounding), set

by the commissioner pursuant to subsection (e) of section one thousand

ninety-six of this chapter, in the case of taxpayers which applied the

credit against tax under article nine, nine-A, thirty-two or

thirty-three, or pursuant to subsection (j) of section six hundred

ninety-seven of this chapter, in the case of taxpayers who applied the

credit against tax under article twenty-two of this chapter, in effect

on the last day of the taxable year.

(3) The employment increase test shall be deemed met where the average

number of full-time employees of the taxpayer employed (A) in connection

with a QBF and (B) in this state, during the test year, exceeds, in each

case, such number determined with respect to the contribution year and

the two immediately preceding taxable years by one thousand.

(4) The average number of employees in a taxable year shall be

computed by ascertaining the number of employees, except general

executive officers (in the case of a corporation), employed by the

taxpayer on the thirty-first day of March, the thirtieth day of June,

the thirtieth day of September and the thirty-first day of December in

the taxable year, by adding together the number of employees ascertained

on each of such dates and dividing the sum so obtained by the number of

such abovementioned dates occurring within the taxable year.

(d) Cross-references. For application of the credit provided for in

this section, see the following provisions of this chapter:

(1) Article 9: Section 187-e,

(2) Article 9-A: Section 210: subdivision 32,

(3) Article 22: Section 606: subsections (i) and (z),

(4) Article 32: Section 1456: subsection (n),

(5) Article 33: Section 1511: subdivision (p).