P.R. Laws tit. 13, § 10438
(a) Governing principles for the granting of incentives.— In the evaluation, analysis, consideration, award, renegotiation, and revision of any incentives or benefits granted under this chapter, the Department of Economic Development and Commerce, the Industrial Tax Exemption Office, and the Director thereof shall be required to oversee and ensure compliance with the governing principles stated below:
(1) Jobs.— The incentivized activity and the exempt business shall promote the creation of new jobs.
(2) Sound integration.— The conceptual design and planning of the incentivized activity and the exempt business shall be carried out, first of all, taking into account environmental, geographical, and physical aspects, as well as the materials and goods that are abundantly available in the site where it is to be developed.
(3) Commitment to the economic activity.— The incentivized activity and the exempt business shall acquire raw materials and products manufactured in Puerto Rico for the construction, maintenance, renovation or extension of the physical facilities thereof. If the purchase of said products cannot be financially justified when taking into account criteria such as the quality, quantity, price, or availability of these products in Puerto Rico, the Director may issue a certificate attesting to such fact.
(4) Commitment to agriculture.— The incentivized activity and the exempt business shall not affect and/or mitigate any adverse effect that the operation thereof in land of high agricultural significance may have. The Director shall evaluate the particularities of each case and may issue a certificate attesting to such fact.
(5) Transfer of knowledge.— The incentivized activity and the exempt business shall acquire services from professionals or enterprises with a presence in Puerto Rico. However, if this is not possible due to criteria such as availability, experience, specificity or skill, or any other valid reason recognized by the Director, the exempt business may acquire such services through an intermediary with a presence in Puerto Rico, which shall contract directly with the service provider chosen by the exempt business, in order to receive the requested services.
The term “services” shall mean, but the list below shall not be construed as limiting the Director to include others by regulations, as the contracting of jobs related to:
(A) Surveying, production construction plan, as well as engineering and architectural designs, and related services;
(B) construction and all that pertains to this sector;
(C) financial, environmental, technological, scientific, management, marketing, human resources, information technology, and auditing consulting services;
(D) advertising, public relations, commercial art, and graphic design services; and
(E) security or facility maintenance.
(6) Financial commitment.— The incentivized activity and the exempt business shall submit proof that they use the services of, and that they deposit a significant amount of the income derived from their economic activity in, banking and/or cooperative institutions with a presence in Puerto Rico. If the financial activity cannot be financially justified when taking into account criteria such as the availability or accessibility of these institutions in Puerto Rico, the Director may issue a certificate attesting to such fact.
The Director of the Industrial Tax Exemption Office shall be the sole official responsible for verifying and ensuring that the incentivized activity and the exempt business meet the eligibility requirements established in this section and all other provisions of this chapter, except for the provisions of the Green Energy Fund.
If the exempt business partially meets the requirements established in this section, the Director shall be required to establish a formula that allows for the quantification of the aforementioned factors, and for the subtraction of the requirement that has not been met from the total percentage of the specific credit, in order to obtain the exact percentage of the benefit in question.
The governing principles set forth in this section shall apply to every incentivized activity or exempt business that applies for any of the benefits granted under this chapter as of December 1 st, 2015. However, the provisions of this section shall not apply to any request for renegotiation and/or conversion of a decree, as authorized in Section 6 of this Act made by any exempt business that has not been signed and completed prior to the aforementioned date.
(b) Duties of the Director, Certificate of Compliance.— In the evaluation, analysis, consideration, award, renegotiation, and revision of any incentives or benefits granted by this chapter, the Department of Economic Development and Commerce, the Industrial Tax Exemption Office, and the Director thereof shall be required to oversee and ensure that the governing principles provided in subsection (a) of this section, as well as the remaining provisions of this chapter are complied with.
The Director shall be responsible for verifying and ensuring that the exempt businesses meet the requirements established in this chapter, particularly those set forth in subsection (a) of this section. If the exempt business fails to meet one or more of the requirements established in subsection (a) of this section due to criteria such as quality, quantity, price, or availability in Puerto Rico, among other factors that, in the judgment of the Director, hinder, impair, or prevent the successful operation of the incentivized activity within reasonable parameters, the Director may issue a certificate attesting to such fact, exempting the exempt business, in whole or in part, from meeting the requirement in question.
If the exempt business fails to fully meet the requirements of subsection (a) of this section, and fails to qualify for any of the exceptions to such provision, the Director shall be responsible for establishing a formula that allows for the quantification of the factors set forth in said section, and for the subtraction of the requirement that has not been met from the total percentage of the specific benefit or incentive granted by this chapter, in order to obtain the exact percentage of the benefit or incentive in question.
The Director shall be required and responsible for preparing a Certificate of Compliance every two years, once the exempt business validates, in the judgment of said official, that it has met the requirements set forth in subsection (a) of this section and complied with the other provisions of this chapter. Every two years, the Director shall verify the information submitted by exempt businesses annually so that the Certificate of Compliance is issued not later than the last day of the third (3 rd) month after the close of the taxable year of the applicant.
Upon the filing of an application for a Certificate of Compliance with the Industrial Tax Exemption Office, the Director shall collect the fees for the processing thereof, which shall be payable by certified check, money order, or cashier’s check to the Secretary of the Treasury. The Secretary of Economic Development shall prescribe by regulations the application processing fees. Provided, That said regulations shall be revised every three (3) years after its approval.
The Certificate of Compliance shall include, in turn, the following information regarding the exempt business: the name of the business, the cadastre number of the property or properties connected to the business; the merchant registration number; the account connected to the business as required in the Puerto Rico Internal Revenue Code; the employer identification number; and the information required by §§ 1411 et seq. of Title 23, better known as the “Fiscal Information and Permit Control Act”.
The Certificate of Compliance shall be issued by the Executive Director through the Interagency Validation Portal for the Granting of Incentives for the Economic Development of Puerto Rico to the agencies, public corporations, and municipalities responsible for granting the benefits or incentives under this chapter. However, during the period in which the Portal is still not operating, it shall be the duty of the Director to issue a Certificate of Compliance to the agencies, public corporations, and municipalities responsible for granting benefits or incentives under this chapter following the ordinary process. The filing of the Certificate of Compliance by the exempt business shall be an essential requirement for the agency, public corporation, or municipality to grant the benefit or incentive provided for in this chapter.
Actions taken by the Secretary of the Department of the Treasury, the Executive Director of the Municipal Revenues Collection Center (CRIM, Spanish acronym), or any other government official or body, or public corporation concerned, in connection with the qualification process for the granting of the benefits or incentives under this chapter shall be limited to the taxation aspects of the granting of the benefit or incentive in question, upon the issuance of a valid Certificate of Compliance, as provided by this section. The Director shall be responsible, first and foremost, for overseeing eligibility under any and all provisions of this chapter. However, the Secretary of the Department of the Treasury, the Executive Director of the Municipal Revenues Collection Center (CRIM), or any other government official or body, or public corporation concerned, in connection with any of the benefits or incentives granted under this chapter may contact the applicant and the Director should further information be needed to validate the data on the Certificate of Compliance, and shall notify and request the applicant to supply such information in order to rectify the situation. The Secretary of the Department of the Treasury or the Executive Director of the Municipal Revenues Collection Center (CRIM) may deny any tax incentives or benefits requested if, in their judgment, the information requested has not been supplied. Moreover, the provisions of this chapter shall not preclude, in any manner, the power conferred to the Secretary of the Treasury under § 33202 of this title, known as the “Puerto Rico Internal Revenue Code of 2011”; and, if necessary, the power to revoke any incentives previously granted by virtue of a Certificate of Compliance, in accordance with the corresponding act; or the power to refer the case to the pertinent agency or public corporation for the corresponding action.
(c) Regular procedure.—
(1) Tax exemption application.— Any person who has established or proposes to establish in Puerto Rico an exempt business may file an application for the incentives under this chapter with the Secretary of Development, upon filing the corresponding application duly sworn before the Exemption Office.
At the time of filing, the Director shall collect the corresponding processing fees, which shall be paid by certified check, bank or postal money order to the order of the Secretary of the Treasury.
The Secretary of Development shall establish through regulation the processing fees to be collected. Provided, That said regulation shall be revised every three (3) years after its approval.
The fees in effect under §§ 10641 et seq. of this title, shall remain in effect until the approval of the first regulation under this provision.
(2) Interagency consideration of applications.—
(A) Once an application under this chapter is received by the Exemption Office, the Director thereof shall send, within five (5) days counted as of the filing date of the application, a copy of such application to the Secretary of the Treasury and the Director of Development in order for the latter, in consultation with the Executive Director, to file an eligibility report and issue a recommendation on the activity to be carried out and other facts in connection with the application. When evaluating the application, the Secretary of the Treasury shall verify compliance by the shareholders or business partners of the applying business with their tax responsibilities under the Internal Revenue Code of Puerto Rico. Such verification shall not be necessary in the case of shareholders not residents of Puerto Rico or public corporations. Failure to comply with said tax responsibility shall be grounds for Secretary of the Treasury not to endorse the exemption application of the applying business.
(B) Once the Director of Development files the eligibility report and issues his/her recommendations, he/she shall send a copy of the decree project, within five (5) business days after having received the necessary documents to process the case, to the concerned agencies, including the concerned municipality and the Municipal Revenues Collection Center (CRIM, Spanish acronym), for their evaluation and recommendations. Any unfavorable recommendations in connection with the decree project shall include the reasons therefore.
The agencies and municipalities consulted by the Director shall have thirty (30) days to file their report or recommendations in connection with the decree project referred to them. In the event that the recommendation of the agency or municipality be favorable, or the same is not received by the Exemption Office during the abovementioned thirty (30) day term, such decree project shall be deemed to have obtained a favorable recommendation and the Secretary of Development may take the corresponding action regarding such application.
In the event that the municipality raises any objection with respect to the decreed project referred to it, the Exemption Office shall consider such objection, as necessary, and the Exemption Office shall notify the parties and corresponding agencies on the administrative action or review of the decree project deemed pertinent. Once the controversy under consideration is settled, the Director shall make the determination that he/she deems appropriate and submit the case to the Secretary of Development for final consideration.
(C) In the case of amendments to grants awarded pursuant to this chapter, the period for the agencies and municipalities concerned to submit a report or opinion before the Director shall be twenty (20) days.
(D) Once the reports are received, or the term to submit such report elapses, the Director shall submit the decree project and his/her recommendation to the consideration of the Secretary of Development within the following five (5) days.
(E) The Director may rest on the recommendations submitted by those agencies and municipalities issuing such reports and opinions and may request them to support the same.
(F) The Secretary of Development shall issue a final determination, in writing, within a term not to exceed five (5) days as of the date the project of decree was submitted to his/her consideration.
(G) The Secretary of Development may delegate unto the Director those functions that, in his/her discretion, are convenient to expedite the administration of this chapter, except for the function of approving or denying original tax exemptions to be granted under this chapter.
(3) Additional provisions.—
(A) The Exemption Office may require tax exemption decree applicants who submit the necessary sworn statements to establish the stated, required or appropriate facts to determine whether the operations or proposed operations of the applicant qualify under the provisions of this chapter.
(B) The Director may hold any public or administrative hearings as necessary to comply with the duties and obligations imposed under this chapter. In addition, he/she may require tax exemption decree applicants to furnish any proof that may support the tax exemption requested.
The Director or the Special Examiner of the Exemption Office designated by the Director, with the approval of the Secretary of Development, may receive the proof presented in connection with any decree application and shall be empowered to summon witnesses and take statements with respect to the alleged facts or otherwise related to the requested decree, take oaths to any person making a statement before him/her and submit a report to the Secretary of Development in connection with the proof presented, together with his/her recommendations on the case.
(C) Any person that commits or attempts to commit, by him/herself or on behalf of someone else, any misrepresentation or deceitful representation in connection with any tax exemption application, grant or any violation of the provisions regarding predecessor or successor businesses shall be found guilty of a third degree felony, and upon conviction, shall be punished pursuant to the penalty provided for such kind of offense in the Puerto Rico Penal Code, as amended.
Provided further that, in these cases, the exemption decree shall be revoked retroactively and the grantee or its shareholders shall become liable for all taxes that were fully or partially exonerated under this chapter.
(D) The fees, charges, and penalties prescribed under subsection (a)(1) of this section shall be covered into a Special Account created to such purposes in the Department of the Treasury, in order to defray the regular operating expenses of the Exemption Office. Before resorting to the funds deposited in the Special Account, the Exemption Office shall submit every year, for the approval of the Government’s Office of Management and Budget, an expense budget chargeable to the Special Account funds. The resources of the Special Account designated to defray the regular operating expenses of the Exemption Office may be complemented with fund appropriations from the General Fund of Puerto Rico, as necessary.
(E) The Exemption Office shall establish any systems necessary to facilitate the electronic filing and transmittal of exemption applications and documents in connection therewith, in order to expedite interagency evaluation of the exemption applications and the procedures in general.
(d) Extensions.—
(1) Any exempt business that holds a decree granted under this chapter may request to the Secretary of Development, before the expiration of its decree, tax extension of the decree in effect if such business shows that it shall continue carrying out the eligible activity.
(2) The decree’s extension shall not exceed ten (10) additional years to those granted in the original decree.
(3) The exempt business to which a decree extension is granted under this chapter shall be subject to a ten percent (10%) fixed rate on its GEI during the extension period, in lieu of the tax provided in § 10430(a) of this title, or any other income tax, if any, levied under the Internal Revenue Code of Puerto Rico or any other law.
(4) During the extension period, the exempt business shall enjoy a fifty percent (50%) exemption from municipal and state taxes on real and personal property used in developing, organizing, building, establishing or operating the eligible activity covered under the decree, in lieu of the exemption provided under § 10433(a) of this title.
(5) During the extension period, the exempt business shall enjoy a fifty percent (50%)-exemption from municipal licenses, excises, and other taxes imposed by any municipal ordinance, in lieu of the exemption provided under § 10434(a) of this title.
(6) The extension granted under this subsection may not be reapplied for upon the expiration of the extended term set forth under clause (2) of this subsection.
(e) Renegotiations and conversions.—
(1) Renegotiation of decrees in effect.—
(A) Any exempt business that holds a decree granted under this chapter may request the Secretary of Development to consider renegotiating its decree in effect if it shows that it shall make a substantial investment in, or a substantial renovation of its existing operations, which represents not less than twenty-five percent (25%) of the initial investment for which the original decree to be renegotiated was granted. If said exempt business shows to the satisfaction of the Secretary of Development that it is unable to meet the abovementioned investment increase requirement, it shall submit the necessary evidence to the Exemption Office. The Secretary of Development, with prior favorable recommendation of the Secretary of the Treasury, the Director of Development, and the Executive Director, and with the previous recommendation of the agencies issuing tax exemption reports, may, only in his/her discretion, consider such renegotiation taking into account any other factor or circumstance which reasonably shows that the renegotiation of the decree shall benefit the social and economic interest of Puerto Rico.
(B) The terms granted under a decree renegotiated in accordance with this clause shall not exceed an additional fifteen (15) years to those granted under the original decree.
(C) For purposes of this section, the terms “substantial investment” and “substantial renovation” shall have the meaning determined by the Executive Director through regulations.
(D) For purposes of this section, the investment of the exempt business in its existing operations shall be computed according to the book value of the property devoted to the eligible activity, computed with the depreciation benefit admissible under the straight-line method, taking into account the useful life of said property determined according to Subtitle A of the Internal Revenue Code of Puerto Rico, in lieu of any other accelerated depreciation allowed by law.
(E) If the renegotiation requested is granted, the Secretary of Development, with the previous recommendation of the agencies issuing tax exemption reports, shall take into account the location, the investment, the decree’s remainder period, the tax incentives already enjoyed, and its financial capacity, in order for the exempt business to obtain an additional exemption period under a renegotiated decree with tax incentives adjusted under this chapter.
(F) The Secretary of Development shall establish the terms and conditions deemed necessary and convenient for the best interests of Puerto Rico within the term provided herein, and may, at his/her discretion, with the previous recommendation of the agencies issuing tax exemption reports, impose special requirements, limit the exemption period and percentage, limit the taxes to be exempt, and require and provide any other necessary term or condition to achieve the purpose of developing green energy sources proposed by this chapter.
(G) When the exempt business interested in renegotiating its decree fails to comply with the investment increase requirement provided in paragraph (A) of this clause, the Secretary of Development may, with the previous favorable recommendation of the Secretary of the Treasury, the Director of Development, and the Executive Director, and the agencies issuing tax exemption reports, impose a fixed seven percent (7%) tax rate on the GEI.
(H) If the Secretary of Development, upon previous consultation with the Secretary of the Treasury, the Director of Development and the Executive Director, and the agencies issuing tax exemption reports, determines that a renegotiation would be in harmony with the public policy, the tax rate for the decree shall be four percent (4%).
(I) All other terms, conditions, and incentives contained in this chapter, which do not contravene with the provisions of this subsection, shall apply to the exempt businesses covered thereunder.
(J) After the renegotiation of the decree, the exempt business may apply for an exemption as provided in subsection (b) of this section.
(2) Conversion of exempt business under industrial or tax incentive laws.— An exempt business that has obtained a decree under industrial or tax incentive laws and is engaged in an eligible activity may opt to avail itself of the provisions of this chapter, subject to the limits set forth hereinbelow, provided that it shows compliance with all the applicable legal provisions.
(A) The decree of any business exempt under industrial or tax incentive laws, which opts to avail itself of the benefits of this chapter, shall be adjusted in order for the benefits under §§ 10430—10436 of this title to be granted.
(B) In order to determine the term of the decree converted under this chapter, the period during which the business has enjoyed exemption under the decree or grant under industrial or tax incentive laws shall be subtracted from the term provided in § 10436 of this title.
(C) The exempt business that converts its decree under the provisions of this subsection, which on the conversion date had been operating under industrial or tax incentive laws, may distribute the income earned before the effective date of the conversion on any subsequent period, in accordance with the tax treatment set forth in the law under which such income was earned.
(D) An exempt business that avails itself of the provisions of this subsection shall pay taxes in full in connection with its income, in accordance with the tax treatment set forth in the law under which such income was earned.
(E) The benefits under this subsection may be applied for within twelve (12) months as of the effective date of this act, and the effectiveness of its provisions may be established as of the first day of the taxable year in which the same are applied for, but never before the effective date of this act, and until the first day of the following taxable year, at the option of the exempt business.
(F) All other terms, conditions, and incentives contained in this chapter, which do not contravene with the provisions of this subsection, shall apply to the exempt businesses covered thereunder.
(f) Denial of application.—
(1) Denial if not for the benefit of Puerto Rico.— The Secretary of Development may deny any application if he/she determines that the same is not in the best economic and social interests of Puerto Rico, after considering the nature of the physical facilities, number of jobs, the amount of the payroll, and the investment, the location of the project, the environmental impact thereof, or other factors, that in his/her judgment merit such determination, as well as the recommendations of the agencies issuing tax exemption reports.
The applicant may, after having been notified of the denial, request reconsideration to the Secretary of Development within sixty (60) days after receipt of the notice, stating the facts and arguments in connection with its application, which it believes to be pertinent, including the benefit for Puerto Rico, that it believes shall render such request for reconsideration meritorious.
In the event that the application is reconsidered, the Secretary of Development may accept any proposed project or eligible activity offered for the benefit of Puerto Rico and may require and provide any other term or condition that is in the best interest of Puerto Rico and the purposes of this chapter.
(2) Denial for conflict with the public interest.— The Secretary of Development may deny any application when he/she determines, based on the facts submitted for his/her consideration and after the applicant has been afforded the opportunity to make a thorough presentation the issue in dispute, that the application is in conflict with the public interest of Puerto Rico for any of the following reasons:
(A) That the applying exempt business has not been organized as a permanent bona fide business, or in light of the moral or financial reputation of the people constituting the same, the plans and methods to obtain financing for the eligible activity, the nature or intended use for the eligible activity or any other factor that may indicate that there is a reasonable possibility that granting of the exemption shall be detrimental to the economic and social interest of Puerto Rico, or
(B) any other reasons for conflict with Puerto Rico’s public interest.
(g) Transfer of exempt business.—
(1) General rule.— The transfer of a tax exemption grant or the stock, property or other interest on property of an exempt business that holds a decree granted under this chapter must be previously approved by the Director. If the same is carried out without previous approval, the exemption grant shall be rendered null as of the date the transfer occurred, except in those cases listed in clause (2) of this subsection. The above notwithstanding, the Director may retroactively approve any transfer made without his/her approval when in his/her judgment the circumstances of the case so justify, taking into consideration the best interests of Puerto Rico and the purposes of this chapter.
(2) Exceptions.— The following transfers shall be authorized without the need of previous consent:
(A) The transfer of the assets of a decedent to his/her estate or the transfer by bequest or inheritance.
(B) The transfer under the provisions of this chapter.
(C) The transfer of stock or any interest in a partnership when such a transfer does not directly or indirectly result in a change in the ownership or control of an exempt business that holds a decree under this chapter.
(D) The transfer of stock of a corporation that owns or operates an exempt business that holds a decree granted under this chapter, when the same occurs after the Director has determined that any transfer of the stock of said corporation shall be allowed without his/her prior approval.
(E) The pledge, mortgage or other security with purpose of securing a bona fide debt. Any transfer of control, title or interest by virtue of said contract shall be subject to the provisions of subsection (a) of this section.
(F) The transfer by law, court order or by a bankruptcy judge to a receiver or trustee. Any subsequent transfer to a third party other than the same debtor or former bankrupt shall be subject to the provisions of subsection (a) of this section.
(G) The transfer of all assets of an exempt business that holds a decree issued under this chapter to an affiliate business. For the purposes of this paragraph, affiliate businesses are those whose shareholders or partners hold eighty percent (80%) or more of the exempt business common stock or voting shares issued and outstanding.
(3) Notice.— Any transfer included in the exceptions of subsection (2) of this section shall be notified to the Director by the exempt business that holds a decree under this chapter, with a copy to the Director of Development, the Executive Director, and Secretary of the Treasury within thirty (30) days of the transfer, except those included under clause (2)(D) of this subsection that do not convert the stockholder into a holder of ten percent (10%) or more of the outstanding corporate capital, and those included under clause (2)(G) of this subsection, which shall be notified by the exempt business to the Director, with a copy to the Secretary of the Treasury, prior to the transfer.
(h) Procedure for permissive and mandatory revocations.—
(1) Permissive revocation.—
(A) When the grantee fails to comply with any of the obligations imposed by this chapter or its regulations or by the terms of the exemption decree.
(B) When the grantee fails to commence or to complete the construction of the facilities needed for the eligible activity, or fails to commence eligible activity within the period fixed for such purposes in the decree.
(C) When the grantee suspends its operations for more than thirty (30) days without the authorization of the Secretary of Development. The Secretary of Development shall authorize such suspensions for periods greater than thirty (30) days when they occur as a result of extraordinary causes.
(D) When the grantee fails to comply with its tax responsibility under the Internal Revenue Code of Puerto Rico and other tax laws of Puerto Rico.
(2) Mandatory revocation.— The Secretary of Development shall revoke any decree granted under this chapter if it was obtained by false or fraudulent representations concerning the nature of the eligible activity to be carried out in Puerto Rico, or the use that has been given or shall be given to property devoted to the eligible activity, or any other facts or circumstances which wholly or partially motivated the granting of the decree.
An additional cause for revocation under this clause arises when a person commits or attempts to commit, by him/herself or on behalf of any other person, a violation of the provisions regarding successor businesses or exempt predecessor businesses.
In the event of such a revocation, all net income computed, previously reported as GEI, whether or not distributed, as well as any distribution thereof, shall be subject to the taxes levied by the Internal Revenue Code of Puerto Rico. In addition, the taxpayer shall be deemed to have filed a false or fraudulent tax return with intent of evading the payment of taxes, and shall, therefore, be subject to the penal provisions of the Internal Revenue Code of Puerto Rico. The tax due in such cases, as well as any other taxes theretofore exempt and unpaid, shall become due and payable from the date when such taxes would have become due and would have been payable had it not been for the decree, and shall be levied and collected in accordance with the provisions of the Internal Revenue Code of Puerto Rico.
(3) Procedure.— In the event of the revocation of a decree granted under this chapter, the grantee shall have the opportunity to appear and be heard before the Director or any Special Examiner of the Exemption Office designated to such purposes, who shall report his/her conclusions and recommendations to the Secretary of Development, with previous recommendation of the agencies issuing tax exemption reports.
History —July 19, 2010, No. 83, § 2.17; Nov. 17, 2015, No. 187, § 94; Dec. 28, 2016, No. 208, § 25.