N.J. Admin. Code § 19:31AA-1.9

Current through Register Vol. 56, No. 12, June 17, 2024

Section 19:31AA-1.9 - Reporting requirements and annual report

(a) An applicant that is approved for an incentive award and that enters an incentive award agreement shall submit annually, commencing in the privilege period for which the incentive award is issued and for the remainder of the commitment period, a report indicating whether the applicant is aware of any condition, event, or act that would cause the applicant or any co-applicant not to be in compliance with the incentive award agreement or the provisions of this subchapter, the Act, and any additional reporting requirements in the incentive award agreement or tax credit certificate. The applicant, or an authorized agent of the applicant, shall certify that the information provided pursuant to this subsection is true and correct pursuant to the penalty of perjury.

(b) The annual report shall consist of:

1. A certification indicating whether the applicant is aware of any condition, event, or act that would cause the applicant or any co-applicant not to be in compliance with the approval, the Act, and the incentive award agreement, including, but not limited to, covenants that relate to the operation of the project and the use of space;

2. A certification indicating that the project does not violate any environmental law requirements, including, but not limited to, the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13;

3. If applicable, for the two years after the first certificate of compliance is issued, evidence that the project remains in compliance with the Authority's affirmative action requirements pursuant to N.J.A.C. 19:31AA-1.13;

4. If applicable, for the two years after the first certificate of compliance is issued, evidence that the project remains in compliance with the Authority's prevailing wage requirements pursuant to N.J.A.C. 19:31AA-1.13;

5. A tax clearance certificate as described at section 1 at N.J.S.A. 54:50-39 for the applicant and any co-applicant;

6. A certification from the applicant that the supermarket or grocery store is operating on a full-time basis, which may include, but not be limited to, access to reports from an independent scanning data company;

7. A list of all tenants, sub-tenants, or licensees of the supermarket or grocery store, the gross leasable area leased by each tenant or sub-tenant or occupied by a licensee, and whether the tenant or sub-tenant is operating its business at the premises;

8. Annual financial statements, as certified by a certified public accountant and accompanied by an unqualified opinion, reporting the project's financial performance;

9. If applicable, satisfactory evidence that the applicant complies with the labor harmony agreement requirement pursuant to N.J.A.C. 19:31AA-1.8(d) or as required for the tax credit pursuant to N.J.A.C. 19:31AA-1.7(d)1. For a financing gap tax credit award calculated as set forth at N.J.A.C. 19:31AA-1.7(d)1, if the applicant does not provide satisfactory evidence of the executed agreement in effect for the relevant privilege period, the amount of the tax credit specified in the certificate of compliance shall be reduced to an annual amount corresponding to an award pursuant to N.J.A.C. 19:31AA-1.7(d)2;

10. For a tax credit that has been awarded before the completion of construction of the supermarket or grocery store, the first annual report shall include the permanent certificate of occupancy covering the entire project;

11. A floor plan identifying the actual uses of the supermarket or grocery store for each quarter of the relevant privilege period, including square footage for any alcoholic beverages and products related to the consumption of such beverages, all retail space (for example, planogram), and the retail space dedicated to fresh and/or frozen fruit and vegetables. The calculation of the square footage of uses shall be determined as the average of the quarterly floor plans for the period;

12. A copy of a permit from the Supplemental Nutrition Assistance Program (SNAP) and an executed vendor agreement from the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), unless an application for SNAP or WIC retailer authorization is pending pursuant to N.J.A.C. 19:31AA-1.8(g);

13. If the Authority approval included a co-applicant, a certification that the participation agreement between the applicant and the co-applicant remains in effect and is not in default and that the co-applicant is making the contribution(s) required pursuant to the participation agreement;

14. Evidence satisfactory to the Authority of the listening session required pursuant to N.J.A.C. 19:31AA-1.3(a)7iv, including, but not limited to, providing a copy of the notice of the listening session and the minutes of such listening session;

15. For a financing gap tax credit, the annual report shall additionally include, for the third year of the eligibility period, verification of the applicant's projected cash flow;

16. For an initial operating cost tax credit:

i. The annual financial statement shall include initial operating costs for the relevant privilege period and an income statement in a form satisfactory to the Authority that indicates the initial operating shortfall; and

ii. Evidence of continued financing approvals, including the submittal of executed financing commitments; and

17. In conducting its annual review, the Authority may require an applicant to submit any information determined by the Authority to be necessary and relevant to its review.

(c) The annual reports required at (a) above are due 120 days after the end of the applicant's tax privilege period. Failure to timely submit the report, absent extenuating circumstances and the written approval of the Authority, shall result in a forfeiture of the tax credits for that privilege period. The Authority reserves the right to audit any of the representations made and documents submitted in the annual report.

(d) Upon receipt, review, and acceptance of each annual report submitted during the eligibility period, the Authority shall provide to the applicant and the Director of the Division of Taxation in the Department of the Treasury a certificate of compliance indicating the amount of tax credits that the applicant or any co-applicant may apply against the applicant's tax liability. If the Authority approval included a co-applicant, the Authority shall provide the certificate of compliance to the co-applicant with a notice to the applicant. No tax credit certificate will be valid without the certificate of compliance issued for the relevant tax privilege period.

(e) Upon receipt by the Director of the certificate of compliance, the Director shall allow the applicant or any co-applicant a credit against the tax imposed pursuant to N.J.S.A. 54:10A-5, 54:18A-2 and 3, 17:32-15, or 17B:23-5. An applicant or any co-applicant shall apply the credit awarded against the applicant's liability for the tax period in which the supermarket or grocery store opens for business to the public.

(f) Credits granted to a partnership or a New Jersey S corporation shall be passed through to the corporate partners, corporate members, or corporate owners, respectively, pro-rata, or pursuant to an executed agreement among the partners, members, or owners documenting an alternate distribution method provided to the Director and accompanied by any additional information as the Director may prescribe, consistent with any rule, guidance, or other publication issued by the Division of Taxation.

(g) The Director shall prescribe the order of priority of the application of the credit allowed pursuant to this section and any other credits allowed by law against the tax imposed pursuant to N.J.S.A. 54:10A-5. The amount of the credit applied pursuant to this section against the tax imposed pursuant to N.J.S.A. 54:10A-5, together with any other credits allowed by law, shall not reduce the tax liability to an amount less than the statutory minimum provided at N.J.S.A. 54:10A-5.e. Any credit shall be valid in the privilege period in which the certification is approved, and any unused portion thereof may be carried forward into the next 10 privilege periods or until exhausted, whichever is earlier.

N.J. Admin. Code § 19:31AA-1.9

Recodified from 19:31-28.9 56 N.J.R. 807(a), effective 5/6/2024