N.Y. Comp. Codes R. & Regs. tit. 5 § 270.2

Current through Register Vol. 46, No. 45, November 2, 2024
Section 270.2 - Definitions

As used in this regulation, the following terms shall have the following meanings:

(a)Applicant means a taxpayer that is a qualified New York City musical and theatrical production company that is engaged in the production of a qualified musical and theatrical production. For the purposes of this definition, only one qualified New York City musical and theatrical company may receive this credit per production.
(b)Certificate of conditional eligibility means a notification by the department to the applicant indicating that the applicant appears to be a qualified New York City musical and theatrical production company scheduled to produce a qualified musical and theatrical production. Such notification may include, but need not be limited to, the following information: name and address of the applicant, taxpayer identification number, a statement that the applicant appears to be scheduled to produce a qualified musical and theatrical production, and a disclaimer stating that actual receipt of the tax credit is subject to completion and approval of the final application and the availability of State funds.
(c)Certificate of tax credit means a certificate issued by the department which states the amount of the New York City musical and theatrical production tax credit that the applicant has qualified for based on the department's analysis under section 24-c of the Tax Law and the provisions of this Part. Such certificate shall include, but need not be limited to, the following information: name and address of the applicant, name of the qualified musical or theatrical production to which the credit applies, the amount of the tax credit to be received by the applicant, the allocation year of the tax credit, and a disclaimer stating that actual receipt of the tax credit is subject to the statutory maximum amount of credits that are allocated for the program and the availability of State funds.
(d)Commissioner means the Commissioner or Acting Commissioner of the New York State Department of Economic Development.
(e)Completeness of the application means that all questions on the application were fully addressed by the applicant and that any additional substantiating documents that were requested by the department were provided.
(f)Credit period of a qualified New York City musical and theatrical production company is the period starting on the production start date and ending on:
(1) the date the production has expended sufficient qualified production expenditures to reach its credit cap;
(2) March 31, 2023; or
(3) the date the qualified musical and theatrical production closes, whichever comes first.
(g)Date the qualified musical and theatrical production closes is the date after the production's final public performance on which the move of all physical production assets (i.e. sets, costumes, lighting and audio equipment) from the qualified New York City production facility to their subsequent facilities (such as lessor vendor facilities and storage facilities) is complete.
(h)Department means the New York State Department of Economic Development.
(i)Diversity and arts job training program plan means a description of the programmatic, operational and/or financial ways applicants will participate in New York State diversity and arts job training programs in the theater industry. A list of options, as well as criteria for additional opportunities to satisfy this requirement, shall be outlined in the initial application and its instructions.
(j)Final application means a document created by the department and submitted by an applicant which contains information concerning actual production expenditures regarding a New York City qualified musical or theatrical production that could make it eligible for the New York City musical and theatrical production tax credit under the provisions of this Part. Such application shall include, but need not be limited to: actual data with regard to the qualified musical or theatrical production's total production budget, its production schedule, and any other information the department determines is necessary.
(k)First performance means the first public performance of a qualified musical and theatrical production after April 19, 2021 at which tickets are available to the public for purchase, including a preview or opening performance but not a dress rehearsal.
(l)Initial application means a document created by the department which an applicant must complete in order to prove its eligibility for the program and contains information concerning estimated production expenditures regarding a New York City qualified musical or theatrical production. Such application shall include, but need not be limited to: the qualified musical or theatrical production's total production budget, schedule and their diversity and arts job training program plan, their public access and availability plan, their New York State Council on the Arts contribution attestation, and any other information the department determines is necessary.
(m)Net operating profits shall be defined, for the purposes of section 270.3(3) of this Part, as all ongoing revenue minus all ongoing production costs including marketing and advertising costs and shall be calculated on a quarterly basis.
(n)New York State Council on the Arts contribution attestation is a document an applicant shall complete as part of their initial application affirming they shall make the necessary contributions required under section 24-c (g)(3) of the Tax Law.
(o)Ongoing production costs shall be defined, for the purposes of section 270.3(3) of this Part as weekly operating expenses associated with the production after the end of the credit period, not including marketing and advertising as reflected on a quarterly basis.
(p)Ongoing revenue prospectively after the end of the credit period shall be defined, for the purposes of section 270.3(3) of this Part, as all gross weekly box office revenues after the end of the credit period as reflected on a quarterly basis.
(q)Production start date is the date that is up to 12 weeks prior to the first performance of the qualified musical and theatrical production.
(r)Program means the New York City musical and theatrical production tax credit program.
(s)Public access and availability plan means a plan as part of the applicant's initial application for how the production will be available for low or no-cost to low income New Yorkers. The department in its initial application and instructions shall outline criteria and minimum standards for this plan.
(t)Qualified musical and theatrical production means a for-profit, live, scripted, dramatic performance by one or more performers of a narrative presentation with or without musical performances and/or accompaniment that, in its original or adaptive version, is performed in a qualified New York City production facility. A qualified musical and theatrical production shall not include ballet, opera, musical solo, group, band, or orchestra performance; solo, duo or several performers" standup comedy performance. For the purposes of this program, the department shall make final determinations on which productions meet these criteria. Whether or not such production was first performed in a qualified New York City production facility prior to the State disaster emergency pursuant to executive order 202 of 2020 as amended, it shall still be treated as a qualified musical and theatrical production.
(u)Qualified New York City musical and theatrical production company is a corporation, partnership, limited partnership, or other entity or individual which or who is principally engaged in the production of a qualified musical or theatrical production that is to be performed in a qualified New York City production facility.
(v)Qualified production expenditure means any costs paid by the applicant for tangible property used and services performed directly and predominantly in the production of a qualified musical and theatrical production within the State including:
(1) expenditures for design, construction and operation, including sets, special and visual effects, costumes, wardrobes, make-up, accessories and costs associated with sound, lighting, and staging;
(2) all salaries, wages, fees, per diems, payroll tax expenditures, fees for workers" compensation insurance, and other compensation including related benefits for services performed of which the total allowable expense shall not exceed $200,000 per week;
(3) technical and crew production costs, such as expenditures for qualified production facilities, or any part thereof, props, make-up, wardrobe, costumes, equipment used for special and visual effects, sound recording, set construction, and lighting; and
(4) up to 50 percent of marketing and advertising costs as calculated on a monthly basis.

For the purposes of this definition, expenses may only be counted once on a single qualified production.

(w)Qualified New York City production facility means a facility located within the city of New York:
(1) in which live theatrical productions are or are intended to be primarily presented;
(2) that contains at least 1 stage with a seating capacity of 500 or more seats, and dressing rooms, storage areas, and other ancillary amenities necessary for the qualified musical and theatrical production; and
(3) for which receipts attributable to ticket sales constitute 75 percent or more of gross receipts of the facility.
(x)Qualified certified public accountant means a New York State certified public accountant approved by the department to conduct a third party verification.
(y)Third party verification means an evaluation conducted by a qualified certified public accountant of an applicant's application using agreed upon procedures as prescribed by the department to verify that all criteria pursuant to section 270.5 of this Part have been met. Such agreed upon procedures shall be posted online.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 270.2

Adopted New York State Register December 22, 2021/Volume XLIII, Issue 51, eff. 12/22/2021