Section 2.08 - Revocation of the Certification of a Project(1)Standard for Revocation. The EACC may revoke a project certification if it determines that a Controlling Business or affiliate is in material non-compliance with representations made in its application for project certification or the obligations set forth in an EDIP contract. The EACC shall have the discretion to determine whether material non-compliance shall result in revocation of a project certification, taking into account: (a) the conduct of the Controlling Business subsequent to the project certification;(b) the extent to which the material non-compliance is the result of unforeseen conditions that are outside the control of the Controlling Business;(c) the potential impact on the municipality in which the certified project is located; and(d) such other considerations as the EACC shall deem relevant to the sound implementation and public purposes of the EDIP. Where the EACC determines that material non-compliance is due to factors outside the control of the Controlling Business, the EACC may elect to provide the Controlling Business with reasonable opportunity to cure the material non-compliance. The EACC ordinarily shall revoke the certification of a project that does not commence construction within two years of the commencement date provided in the application for project certification. Extensions beyond such two year period may be granted by the EACC only upon good cause shown by the Controlling Business.
(2)Effective Date and Reporting. If the EACC revokes a project's certification, such revocation shall take effect on the first day of the tax year in which the material non-compliance occurred, as determined by the EACC. Within 30 days after a project certification is revoked, the EACC shall report to the Controlling Business and to the Department of Revenue the number of permanent, full-time jobs actually created by the certified project to the number of permanent, full-time jobs the Controlling Business was required to create pursuant to its EDIP contract.(3)Loss of EDIP Tax Credits. If the EACC revokes a project certification, then:(a) All EDIP tax credits claimed by the Controlling Business prior to the effective date of the revocation shall be recaptured in accordance with M.G.L. c. 62, § 6(g) and M.G.L. c. 63, § 38N(h); and(b) The Controlling Business may not claim EDIP tax credits for tax years following the revocation.(4)Hearing. Prior to revoking the certification of a project, the EACC shall provide the project proponent with reasonable notice and an opportunity to be heard on the matter. Any hearing provided pursuant to 402 CMR 2.08(4) shall be conducted in a manner directed by the EACC.(5)EDIP Contract Amendment. In circumstances where the EACC may revoke a project certification, the EACC may instead, in its sole discretion, amend the applicable EDIP contract to reduce the EDIP tax credits available to the Controlling Business or modify the schedule for claiming said EDIP tax credits.(6)Voluntary Withdrawal. Where a Controlling Business is in material non-compliance with the terms and conditions of an EDIP contract, it may elect to voluntarily withdraw from the EDIP program. A voluntary withdrawal shall be treated as the revocation of a project certification for purposes of 402 CMR 2.08(2) and shall result in the loss of EDIP tax credits to the same extent as set forth in 402 CMR 2.08(3).(7)Effect of Decertification on a Local Tax Incentive. A TIF agreement or STA agreement will remain in place after the EACC revokes a project's certification if the TIF agreement or STA agreement does not expressly provide for termination upon the revocation of the project certification, and the continuation of the TIF agreement or STA agreement otherwise is consistent with the original municipal authorization. The EACC's revocation of a certified project's certification will result in the termination of a TIF agreement or STA agreement applicable to the decertified project if:(a) The terms of the TIF agreement or STA agreement expressly provide for termination of the agreement upon the revocation of the project certification; or(b) As a result of the revocation, the project no longer fulfills the terms and conditions of the municipal action authorizing the host community to enter into the TIF agreement or STA agreement; or(c) The EACC determines that the project no longer furthers the public purpose of encouraging increased industrial and commercial activity in the commonwealth. In such case, the host municipality may permit the continuation of the tax increment financing or special tax assessment, as applicable, by amending the TIF agreement or STA agreement. In such a case, the host community should notify the EACC that it will amend the TIF agreement or STA agreement; duly authorize the amendment, including a vote of town meeting, town council, or city council with the approval of the mayor, as required by law; and submit the fully executed amendment to the EACC for approval by the EACC. The EACC shall allow the host municipality to levy taxes on the decertified project in accordance with the original TIF agreement or STA agreement until the date of the EACC's approval of the amendment, but not for more than one year after the date of EACC vote to revoke the project certification.
Amended by Mass Register Issue 1372, eff. 8/24/2018.