N.Y. Tax Law § 24-b: Television writers' and directors' fees and salaries credit

* § 24-b. Television writers' and directors' fees and salaries credit.

(a)(1) 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 thirty

percent and the qualified television writers' and directors' fees and

salaries costs paid or incurred in the production of a qualified film,

provided that: (i) the credit amount shall not exceed fifty thousand

dollars for qualified television writers' and directors' fees and

salaries claimed for such expenses incurred for the employment of any

one specific writer or director for the production of a single

television pilot or a single episode of a television series, and (ii)

the credit amount shall not exceed one hundred fifty thousand dollars

for qualified television writers' and directors' fees and salaries

claimed for such expenses incurred for the employment of any one

specific writer or director. In addition, under no circumstances shall

the credit amount include fees or salaries for more than one director

per episode. The credit shall be allowed for the taxable year in which

the production of such qualified film is completed.

(3) No qualified television writers' and directors' fees and salaries

used by a taxpayer either as the basis for the allowance of the credit

provided for pursuant to this section or used in the calculation of the

credit provided pursuant to this section shall be used by such taxpayer

to claim any other credit allowed pursuant to this chapter.

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

have the following meanings:

(1) "Qualified film production company" is a corporation, partnership,

limited partnership, or other entity or individual whose project is

conditionally eligible to receive a tax credit under section twenty-four

of this article which or who is principally engaged in the production of

a qualified film and controls the qualified film during production.

(2) "Qualified independent film production company" is a corporation,

partnership, limited partnership, or other entity or individual whose

project is conditionally eligible to receive a tax credit under section

twenty-four of this article, that or who (i) is principally engaged in

the production of a qualified film with a maximum budget of fifteen

million dollars, (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.

(3) "Qualified film" means a television film, television pilot and/or

each episode of a television series, regardless of the medium by means

of which the film, pilot or episode is created or conveyed.

(4) "Qualified television writers' and directors' fees and salaries"

means salaries or fees paid to a writer or director who receives an

on-air credit, provided that in each case, such writer or director is a

minority group member, as defined in subdivision eight of section three

hundred ten of the executive law, or a woman, and provided, further,

that salaries or fees paid to any writer or director who is a profit

participant in the qualified film shall not be eligible. Such fees shall

not include relocation fees or hotel costs and per diems. In addition,

such fees shall not include salaries or fees paid to writers or

directors for work done on episodes of television series that were

deemed conditionally eligible for the tax credit under section

twenty-four of this article prior to the tax year for which the credit

is first available.

(5) "Writer" means a person who is engaged by a qualified film

production company or a qualified independent film production company to

write television scripts, outlines, rewrites, stories, or teleplays for

television series and who reports to work regularly in a writers room

located in the state. For the purposes of this definition, "writer"

shall not include showrunners or executive producers.

(6) "Writers room" means a room or physical location in the state

where writers employed by a qualified film production company or

qualified independent film production company write television scripts,

outlines, rewrites, stories, or teleplays for television series utilized

in a qualified film. A writers room is located in the state only if it

is in use in the state at least eighty percent of the time it is in

existence.

(7) "Director" means an individual employed or retained to direct the

production, as the word "direct" is commonly used in the motion picture

industry, who would be classified as a director under the basic

agreement in place between the Association of Motion Picture and

Television Producers and the Director's Guild of America and who must

meet the minimum criteria for work on qualified productions in New York

state as established by the commissioner of economic development by

regulation.

(8) "Profit participant" is an individual who has negotiated for a

percentage of profits generated by a qualified film. Profit

participation does not include monies contractually required by

collectively bargained agreements for reuse of a qualified film on

different platforms over time.

(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 54.

(2) article 22: section 606: subsection (v).

(d) Notwithstanding any provision of this chapter, (1) employees and

officers of the department of economic 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 certification

submitted to the department of economic development, and (2) the

commissioner and the commissioner of the department of economic

development may release the names and addresses of any taxpayer claiming

this credit and the amount of the credit earned by the taxpayer.

Provided, however, if a taxpayer claims this credit because it is a

member of a limited liability company or a partner in a partnership,

only the amount of credit earned by the entity and not the amount of

credit claimed by the taxpayer may be released.

(e) Maximum amount of credits. (1) The aggregate amount of tax credits

allowed under this section, subdivision fifty-four of section two

hundred ten-B and subsection (v) of section six hundred six of this

chapter in any calendar year shall be five million dollars. Such

aggregate amount of credits shall be allocated by the department of

economic development among taxpayers in order of priority based upon the

date of filing an application for allocation of television writers' and

directors' fees and salaries credit with such department. 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 commissioner of economic development, after consulting with

the commissioner, shall promulgate regulations to establish procedures

for the allocation of tax credits as required by subdivision (a) of this

section. Such rules and regulations shall include provisions describing

the application process, the due dates for such applications, the

standards which shall be used to evaluate the applications, the

documentation that will be provided to taxpayers to substantiate to the

department the amount of tax credits allocated to such taxpayers, and

such other provisions as deemed necessary and appropriate.

Notwithstanding any other provisions to the contrary in the state

administrative procedure act, such rules and regulations may be adopted

on an emergency basis.

(f) The department of economic development shall submit to the

governor, the temporary president of the senate, and the speaker of the

assembly, an annual report to be submitted on February first of each

year evaluating the effectiveness of the television writers' and

directors' fees and salaries tax credit provided by this section in

stimulating the growth of diversity in the film industry in the state.

Such report shall include, but need not be limited to, the number of

qualified film production companies and/or qualified independent film

production companies which received a television writers' and directors'

fees and salaries credit, the credit amounts claimed by each qualified

film production company and/or qualified independent film production

company, as well as the impact on employment and the economy of the

state. Such report shall be based on data available from the application

filed with the department of economic development for allocation of

television writers' and directors' fees and salaries credits.

Notwithstanding any provision of law to the contrary, the information

contained in the report shall be public information. The report may also

include any recommendations of changes in the calculation or

administration of the credit, and any other recommendation of the

commissioner of the department of economic development regarding

continuing modification, repeal of such act, and such other information

regarding the act as the commissioner of the department of economic

development may feel useful and appropriate.

* 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