Section 57-114-7 - Certification and award of mFlex tax incentive, terms of incentive, nontransferability of certification and incentive; mandatory and permissive conditions to certifications and incentive awards(1) The authority shall evaluate an application to determine whether the applicant's proposed project is a qualified economic development project and whether it is therefore eligible for an award by the authority of an mFlex tax incentive, as calculated in accordance with Section 57-114-9.(2) Upon approval of an applicant's application, the authority shall issue a certification (a) designating the applicant's project as a "qualified economic development project" and eligible for the mFlex tax incentive authorized by this chapter; (b) awarding the initial mFlex tax incentive calculated pursuant to Section 57-114-9; and (c) imposing those mandatory conditions pursuant to subsection (4) of this section and any discretionary conditions otherwise imposed by the authority.(3) Upon the issuance of the certification and execution of the mFlex agreement by a qualified business or industry and the authority, the qualified business or industry may apply the amount of its mFlex tax incentive as a credit to offset (a) any state taxes (except for withholding tax required to be deducted and withheld from employee wages pursuant to Section 27-7-301 et seq.), as incurred thereby, up to the full amount of the mFlex tax incentive awarded by the authority for the associated qualified economic development project, and (b) only up to twenty percent (20%) of the mFlex tax incentive amount may be applied as a credit during the course of any reporting year to offset withholding tax deducted and withheld from employee wages pursuant to Section 27-7-301 et seq.; provided that the amount of the mFlex tax incentive available to be applied as a credit to offset such state taxes shall be subject to any subsequent adjustments made by the authority to such award pursuant to Section 57-114-13, and any performance requirements set out in the mFlex agreement. The amount of the mFlex tax incentive available to be applied as a credit to offset any state taxes described in Section 57-114-3(bb)(i) shall be limited to those such taxes payable directly by the qualified business or industry to the Department of Revenue pursuant to a direct pay permit issued by the Department of Revenue under Section 27-65-93. The amount of the mFlex tax incentive available to be applied as a credit to offset any state taxes may not be applied as a credit to offset any state taxes incurred prior to the issuance of the certification by the authority and execution of the mFlex agreement by the qualified business or industry and the authority.(4) The following conditions shall apply to each such certification made, and each mFlex tax incentive awarded, by the authority in accordance with this chapter: (a) Any certification and mFlex tax incentive award issued by the authority under this chapter is nontransferable and cannot be applied, used or assigned to any other person or business or tax account without prior approval by the authority, except for one or more affiliates of the qualified business or industry disclosed thereby on its application or in a subsequent annual report submitted to the authority in accordance with this chapter;(b) No qualified business or industry may claim or use the mFlex tax incentive awarded thereto under this chapter unless the qualified business or industry is in full compliance with all state and local tax laws, and related ordinances, permits and other applicable governmental approvals; and(c) Each qualified business or industry must enter into an mFlex agreement with the authority which sets out, at a minimum, (i) the obligation of the business or industry to provide an annual report to the authority pursuant to Section 57-114-13 that demonstrates the actual amount of its qualified investment, including actual expenditures on manufacturing machinery, nonmanufacturing equipment and component building materials, the number of new full-time jobs created and maintained as a result of the project, and any other relevant information as may be required by the authority; and (ii) terms for readjustment or recapture of all or a portion of the mFlex tax incentive awarded thereto pursuant to Section 57-114-13 if the applicant 1. fails to satisfy the minimum job creation requirement if certification of the project is predicated on satisfaction of the minimum job creation requirement and not the minimum qualified investment, or 2. fails to satisfy the minimum qualified investment if certification of the project is predicated on satisfaction of the minimum job creation requirement and not the minimum qualified investment, and/or 3. fails to otherwise satisfy any other additional performance requirements of the qualified business or industry or its qualified economic development project that are imposed by the authority.(5) In addition to those mandatory conditions prescribed by this chapter that apply to each certification and award of an mFlex tax incentive made by the authority in accordance herewith, the authority is authorized to impose any other conditions upon any certification and award of an mFlex tax incentive made by the authority as it shall find best promotes economic development in the state.(6) Upon certifying a qualified business or industry as eligible for, and awarding, an mFlex tax incentive under this chapter, the authority shall forward the certification along with any other necessary information to the Department of Revenue so that the mFlex tax incentive awarded to the qualified business or industry can be recorded by the Department of Revenue and used to verify each state tax credit subsequently applied by the qualified business or industry.(7) Within thirty (30) days following the end of each calendar quarter, the authority shall provide to the Governor, Lieutenant Governor and the Speaker of the House of Representatives a copy of each certification made, together with a copy of each mFlex agreement approved and executed, during the immediately preceding calendar quarter.Added by Laws, 2022, ch. 462, SB 2159,§ 4, eff. 7/1/2022.