N.Y. Comp. Codes R. & Regs. tit. 5 § 191.1

Current through Register Vol. 46, No. 53, December 31, 2024

Section 191.1 - Application and review process

(a) An applicant must submit a complete application as prescribed by the commissioner.

(b) As part of such application, an applicant must:

(1) agree to allow the Department of Taxation and Finance to share its tax information with the department. Note that the form created by the department to effectuate this information transfer may only be executed by a person with authority to act on the business entity's behalf in this regard. However, any information shared as a result of this agreement shall not be available for disclosure or inspection under the State Freedom of Information Law; and

(2) agree to allow the Department of Labor to share its tax and employer information with the department. Note that the form created by the department to effectuate this information transfer may only be executed by a person with authority to act on the business entity's behalf in this regard. However, any information shared as a result of this agreement shall not be available for disclosure or inspection under the State Freedom of Information Law; and

(3) allow the department and its agents access to any and all books and records deemed relevant by the department to monitor compliance with the provisions of article 17 of the Economic Development Law; and

(4) agree to be permanently disqualified for empire zone benefits at any location or locations that qualify for Excelsior Jobs Program benefits if admitted into the Excelsior Jobs Program for such location or locations; and

(5) provide, upon request by the department, all of the following information:

(i) a plan outlining the schedule for meeting the job and investment requirements (such plan must include details on job titles and expected salaries);

(ii) the prior three years of Federal and State income or franchise tax returns, unemployment insurance quarterly returns, real property tax bills and audited financial statements;

(iii) the amount and description of projected qualified investments for which it plans to claim the Excelsior Investment Tax Credit;

(iv) an estimate of the portion of any Federal research and development tax credits, attributable to research and development activities conducted in New York State, that it anticipates claiming for the years it expects to claim the Excelsior Research and Development Credit;

(v) the employer identification or social security numbers for all related persons to the applicant, including those of any members of a limited liability company or partners in a partnership; and

(6) provide a clear and detailed presentation of all related persons to the applicant to assure the department that jobs are not being shifted within the State; and

(7) certify, under penalty of perjury, that it is in substantial compliance with all environmental, worker protection, and local, State, and Federal tax laws; and

(8) for Green CHIPS projects, submit a Green CHIPS sustainability plan and a Green CHIPS community plan.

(c) The commissioner, upon receipt of a complete application from an applicant, shall determine whether the applicant meets the eligibility criteria set forth in section 191.2 of this Part. An applicant that does not meet the eligibility criteria set forth in section 191.2 of this Part shall not be accepted into the program.

(d) Having determined that an application is complete and that the applicant meets the eligibility criteria set forth in section 191.2 of this Part and, if a Green CHIPS project, also meets the eligibility provisions of section 190.2(r) of the Title, the Department may admit the applicant and issue a certificate of eligibility as defined in section 190.2(g) of this Title and a preliminary schedule of benefits that indicates the annual amount of each component of the credit an applicant may be entitled to in each of its ten or twenty years of eligibility as applicable. The Commissioner may amend a preliminary schedule of benefits provided that the Commissioner complies with the credit caps in section 359 of the Economic Development Law.

(e) With respect only to participant's engaging in a Green CHIPS project as defined herein, such participants may provide a range of estimated net new jobs to the Department that consists of a lower-bound "estimated number of net new jobs" and an upper-bound "maximum number of net new jobs." For the purposes of calculating whether a participant has met its minimum number of net new jobs to be subject to the pro-ration or loss of all other tax benefits as further articulated in section 192.1(c) of this Title, the lower-bound estimated number of net new jobs shall be used. For purposes of calculating the jobs tax credit that may be available to a Green CHIPS participant in any given year, the upper-bound maximum number of net new jobs shall be used. In order for a participant to receive its maximum jobs tax credit, it must create the maximum number of net new jobs listed in its schedule of benefits. In presenting its net new jobs schedules to the Department, the estimated and maximum number of net new jobs shall be the same in year 10 of each project phase. In addition, the estimated and maximum number of net new jobs schedules must be reasonably justified by the Green CHIPS participant and approved by Department. The Department may adopt standards to establish a reasonable relationship between the two schedules and shall approve or reject such schedules in their sole discretion.

(f) With respect to investment, each Green CHIPS participant will have a cap on the annual amount of investment tax credits it can be issued, provided that:

1) if a participant initially falls short on its investment goal pursuant to the schedule of benefits, it may amend its schedule commensurate with the shortfall to allow for increased investment in future schedule years and/or phases; and

2) if a participant exceeds its investment goal, the excess investment shall carry forward as counting toward future year investment goals. However, if a participant fails to meet its estimated lower bound net new jobs commitment as outlined above in any given year, then it shall face a pro-rated or complete loss of investment tax credit component and research and development tax credit components.

(g) With respect to participants engaging in Green CHIPS projects, any investment and net new jobs made or created subsequent to the eligibility date established by the certificate of eligibility but prior to year one of phase one shall count towards the tax credit. A participant who is awarded and accepts a phase two schedule and elects to postpone the commencement of phase two after completing phase one, shall be required to submit a "request for temporary extension" to the Department for each year in which it requests the postponement. Such request for temporary extension shall include, to the satisfaction of the Department, the reasons for the requested postponement (e.g., industry demand slowdown, industry oversupply conditions, etc.). Provided that each request for temporary extension is granted by the Department at its sole discretion and the participant is awarded and accepts a phase two schedule, upon commencing its phase two schedule of benefits, the value of investments not counted in phase one and made prior to the start of phase two shall be counted as progress toward its investment goals, as shall any excess investment made during phase one. Provided further that each request for temporary extension is granted by the Department in its sole discretion and if the participant is awarded and accepts a phase two schedule, upon commencing its phase two schedule of benefits, any net new jobs not counted in phase one and created prior to the start of phase two shall be counted as progress toward its net new job goals, as shall any excess net new jobs created during phase one provided such net new jobs are maintained continuously during phase two. Any excess investments made or net new jobs created prior to the award and acceptance of a phase two schedule by a participant shall not be counted as progress towards its phase two investment or net new job goals.

(h) Notwithstanding subdivision (ai) of section 190.2 of this Title, the Department is hereby authorized to allow a Green CHIPS participant in good standing with phase one of a Green CHIPS project to enter into phase two of a Green CHIPS project with a new and separate schedule of benefits which may overlap with phase one of a Green CHIPS project schedule of benefits from a timing perspective, for a new ten-year benefit term. Notwithstanding subdivision (d) of section 191.1 of this Part, such phase two of a Green CHIPS project shall be admitted into the program. Provided however, for such phase two of a Green CHIPS project, the new benefit term shall exclusively be provided for net new investments, new research and development expenditures, and net new job creation above the commitments outlined in the schedule of benefits for a participant's phase one of a Green CHIPS project with the Department. Assuming the requirements of this Part have been met, a participant in both a Green CHIPS project and any phase two of such project shall be eligible for benefits under section 193.1 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 191.1

Amended New York State Register June 27, 2018/Volume XL, Issue 26, eff. 6/27/2018

Amended New York State Register December 16, 2020/Volume XLII, Issue 50, eff. 12/16/2020

Amended New York State Register May 3, 2023/Volume XLV, Issue 18, eff. 5/3/2023