Md. Code Regs. 24.05.03.02

Current through Register Vol. 51, No. 24, December 2, 2024

Section 24.05.03.02 - Definitions

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1) "Act" means Tax-General Article, §10-725, Annotated Code of Maryland.

(2) "Active business" has the meaning stated in Regulation .14D(5)(c) of this chapter.

(3) Actual Amount of an Investment.

(a) "Actual amount of an investment" means the amount expressed in United States currency of an investment that is:

(i) Paid in exchange for an equity interest or other ownership interest in a qualified Maryland biotechnology company;

(ii) Immediately available to the qualified Maryland biotechnology company for the purpose of engaging in its primary biotechnology activities; and

(iii) Substantially used to engage in the primary biotechnology activities.

(b) "Actual amount of an investment" does not include start up or organization expenses not deductible as current business expenses of the qualified Maryland biotechnology company.

(4) "Applicant" means a qualified investor that has filed an application for a certificate.

(5) "Biotechnology" has the meaning stated in Regulation .14C of this chapter.

(6) "Biotechnology company" means a company that is primarily engaged in the research, development, or commercialization of innovative and proprietary biotechnology.

(7) "Certificate" means an initial certificate or a final certificate of eligibility for tax credit under this chapter.

(8) Company.

(a) "Company" means any entity duly organized and existing under the law of any jurisdiction for the purpose of conducting business for profit.

(b) "Company" does not include an individual or a sole proprietorship.

(9) "Comptroller" means the Maryland Comptroller of the Treasury, or the Comptroller's designee.

(10) "Convertible Debt" means a debt, bond, or loan issued by a qualified Maryland biotechnology company to a qualified investor for a contemporaneous exchange of cash or cash equivalents expressed in United States dollars, at a risk of loss, convertible into a specified amount of stock, partnership or membership interests, or other ownership interest.

(11) "Credit amount" means the amount of money expressed as United States currency approved by the Department with respect to an investment and set out in an initial certificate or a final certificate.

(12) "Department" means the Department of Business and Economic Development.

(13) Entity.

(a) "Entity" means an individual or a legal or juridical person which is:

(i) Created, organized, and existing under the laws of any jurisdiction; and

(ii) Subject to any express exclusions or limitations of particular entities set forth in the Act or this chapter.

(b) "Entity" includes a corporation, a limited liability company, a partnership, a limited partnership, a limited liability partnership, or a trust.

(14) "Final certificate" means a certificate issued by the Department stating the final credit amount approved by the Department.

(15) "Headquarters and base of operations" means the facility or facilities located in the State, where the qualified Maryland biotechnology company's financial, personnel, planning, management, administrative, biotechnology research, biotechnology development, and biotechnology production activities are primarily handled.

(16) "Initial certificate" means a certificate issued by the Department stating a maximum credit amount for which the applicant is eligible based on an application.

(17) Investment.

(a) "Investment" means the contribution of money in cash or cash equivalents expressed in United States dollars, at a risk of loss, to a qualified Maryland biotechnology company in exchange for stock, a partnership or membership interest, or other ownership interest, title to which equity or ownership interest vests in the qualified investor applying for an initial certificate of eligibility for tax credit.

(b) Investment includes convertible debt created on or after July 1, 2015, if the convertible debt is:

(i) Created by the qualified investor applying for an initial certificate of eligibility for tax credit;

(ii) Created within 1 year prior to the date that the qualified investor applies for an initial certificate of eligibility for tax credit; and

(iii) Converted to an interest described in §B(17)(a) within 30 days after the issuance of an initial certificate of eligibility for tax credit and prior to the issuance of a final certificate for tax credit.

(c) Investment does not include debt.

(18) "Investment notice" means the notice submitted by an applicant that the applicant has made an investment in a qualified Maryland biotechnology company.

(19) "Invests" means to pay money in cash or cash equivalents in exchange for an equity or other ownership interest in a qualified Maryland biotechnology company with a view to profit and financial return or the growth in value of the equity interest acquired, as a result of the qualified Maryland biotechnology company's use of the investment to carry on its biotechnology research, biotechnology development, and commercialization of biotechnology.

(20) "Ownership interest" means the equity interest in a qualified Maryland biotechnology company owned and held directly by an applicant free of any encumbrances.

(21) Qualified investor.

(a) "Qualified investor" means any entity that:

(i) Invests at least $25,000 in a qualified Maryland biotechnology company; and

(ii) Is required to file an income tax return in any jurisdiction.

(b) "Qualified investor" does not include a qualified pension plan, individual retirement account, or other qualified retirement plan as defined by the Employee Retirement Income Security Act of 1974, as amended, or fiduciaries or custodians under these plans, or similar tax-favored plans or entities under the laws of other countries.

(22) Qualified Maryland Biotechnology Company (QMBC).

(a) "Qualified Maryland biotechnology company (QMBC)" means a biotechnology company:

(i) That has its headquarters and base of operations in the State;

(ii) That has fewer than 50 full-time employees;

(iii) That except as provided in §B(21)(b) of this regulation, been in active business not longer than 10 years;

(iv) Whose securities are not publicly traded on any exchange; and

(v) That has been certified as a qualified Maryland biotechnology company by the Department under this chapter.

(b) "Qualified Maryland biotechnology company (QMBC)" includes a company that has been in active business for up to 12 years if the Department determines that the company requires additional time to complete the process of regulatory approval of a biotechnology product.

(23) "QMBC certificate" means a certificate issued by the Department certifying that a company is a qualified Maryland biotechnology company.

(24) "QMBC certificate holder" means a company that has been certified by the Department as a qualified Maryland biotechnology company and has received from the Department a QMBC certificate evidencing that determination.

(25) "Recapture" means the process by which the Comptroller will recover all or part of any tax credit claimed by, or refund made to, an applicant.

(26) "Rescission" means the process by which the Secretary may rescind, make void, cancel, or render ineffective an initial certificate.

(27) "Rescission notice" means the notice issued by the Department to inform an applicant that an initial certificate has been rescinded.

(28) "Reserve Fund" means the Biotechnology Investment Tax Credit Reserve Fund which is administered by the Treasurer and the Comptroller.

(29) "Revocation" means the process by which the Department may revoke a final tax credit certificate or a QMBC certificate.

(30) "Risk of loss" means when repayment of an investment entirely depends upon the success of the business operations of the qualified company.

(31) "Secretary" means the Secretary of Business and Economic Development, or the Secretary's designee.

(32) "Tax credit" means the credit against Maryland income tax for an investment in a qualified Maryland biotechnology company equal to the credit amount approved by the Secretary in a final certificate.

(33) "Tax credit certificate holder" means an entity that has received an initial certificate or a final certificate from the Department under this chapter.

(34) "Treasurer" means the State Treasurer of Maryland, or the Treasurer's designee.

Md. Code Regs. 24.05.03.02

Regulations .02 adopted effective September 17, 2012 (39:18 Md. R. 1197); amended effective 43:10 Md. R. 589, eff.5/23/2016