20 - Credit for transportation improvement contributions.

§   20.  Credit  for  transportation  improvement  contributions.  (a)  Allowance of credit. For taxable years beginning before  January  first,  two thousand nine, a taxpayer subject to tax under article nine, nine-A,  twenty-two,  thirty-two or thirty-three of this chapter shall be allowed  a credit against such tax, pursuant  to  the  provisions  referenced  in  subdivision  (d)  of  this  section. The credit shall be allowed where a  taxpayer has made a certified  contribution  of  at  least  ten  million  dollars  to  a  qualified  transportation improvement project in a prior  taxable year. The credit shall be equal to six percent of the taxpayer's  increased qualified business facility payroll for the taxable year.  The  aggregate of all credit amounts allowed to the taxpayer pursuant to this  section  with  respect  to a certified contribution shall not exceed the  amount of such certified contribution.    (b) Definitions. As used in this section, the  following  terms  shall  have the following meanings:    (1)  Qualified  business  facility  ("QBF").  A  business facility the  construction or expansion of which is  intended  to  be  enhanced  by  a  qualified  transportation improvement project, as described in paragraph  three of this subdivision.    (2) Certified contribution. The term "certified contribution" means  a  contribution certified jointly by the commissioner of transportation and  the  commissioner  of  economic  development  as  a  contribution  to  a  qualified  transportation  improvement   project,   such   certification  indicating the date and amount of such contribution by the taxpayer, and  including  a  description  of  the  associated  QBF. The commissioner of  transportation and the comptroller are authorized to accept,  hold  and,  notwithstanding  section four of the state finance law, to disburse such  contributions, in  the  same  manner  as  is  authorized  for  municipal  contributions in section ten of the highway law.    (3)  Qualified transportation improvement project. The term "qualified  transportation  improvement  project"  means  the  design,  development,  construction,  and/or  improvement  of transportation infrastructure and  related facilities or systems, including, but not limited to,  highways,  roadways,  bridges,  ramps or lanes; or railroad, port, aviation or mass  transit  facilities;  or  ferry  or  marine  facilities;  or  associated  right-of-way   and   associated   connections  to  existing  or  planned  transportation  infrastructure  or  facilities.  Such  project  must  be  designed  in  part to enhance the planned construction or expansion of a  QBF.  A  project  for  the  design,  development,  construction,  and/or  improvement  of  transportation infrastructure and related facilities or  systems shall be  considered  a  "qualified  transportation  improvement  project"  under  this section only if the commissioner of transportation  and the commissioner of economic development jointly determine, in their  sole discretion, that the  project  would  promote  the  development  of  employment  opportunities  in  connection with such QBF by creating more  than one thousand new jobs in connection therewith, and is in  the  best  interests of the people of the state. The undertaking of said project is  declared   to   be  for  a  public  purpose,  and  the  commissioner  of  transportation is authorized to participate in the costs thereof.    (4) Increased QBF payroll. The term "increased QBF payroll" means  the  excess,  if  any,  of (A) the taxpayer's total wages, salaries and other  personal service compensation of employees employed in connection with a  QBF  other  than  general  executive  officers  (in  the   case   of   a  corporation),  for  the  taxable  year,  over  (B)  the  average  of the  taxpayer's total wages, salaries and other personal service compensation  of such employees for the taxable year in  which  the  contribution  was  made  and  for  the two immediately preceding taxable years, if any, but  only to the extent that such excess exists with regard to the state.(c) Recapture. (1) If the taxpayer has made a  contribution  which  is  the  basis  for a credit allowed under this section, and if with respect  to the third full taxable year (the  "test  year")  next  following  the  taxable  year during which such contribution was made (the "contribution  year") the employment increase test described in paragraph three of this  subdivision  is  not  met,  the  taxpayer  shall add back the sum of the  amounts of such credit which have been allowed  for  all  prior  taxable  years,  and  shall  be allowed no further credit under this section with  respect to such contribution with respect to any other taxable year.    (2) The amount required to be added back pursuant to this  subdivision  shall  be augmented by an amount equal to the product of such amount and  the underpayment rate of interest (without regard to  compounding),  set  by  the  commissioner pursuant to subsection (e) of section one thousand  ninety-six of this chapter, in the case of taxpayers which  applied  the  credit   against   tax   under   article  nine,  nine-A,  thirty-two  or  thirty-three, or pursuant to  subsection  (j)  of  section  six  hundred  ninety-seven  of  this chapter, in the case of taxpayers who applied the  credit against tax under article twenty-two of this chapter,  in  effect  on the last day of the taxable year.    (3) The employment increase test shall be deemed met where the average  number of full-time employees of the taxpayer employed (A) in connection  with a QBF and (B) in this state, during the test year, exceeds, in each  case,  such  number determined with respect to the contribution year and  the two immediately preceding taxable years by one thousand.    (4) The average number  of  employees  in  a  taxable  year  shall  be  computed  by  ascertaining  the  number  of  employees,  except  general  executive officers (in the case  of  a  corporation),  employed  by  the  taxpayer  on  the  thirty-first day of March, the thirtieth day of June,  the thirtieth day of September and the thirty-first day of  December  in  the taxable year, by adding together the number of employees ascertained  on  each of such dates and dividing the sum so obtained by the number of  such abovementioned dates occurring within the taxable year.    (d) Cross-references. For application of the credit  provided  for  in  this section, see the following provisions of this chapter:    (1) Article 9: Section 187-e,    (2) Article 9-A: Section 210: subdivision 32,    (3) Article 22: Section 606: subsections (i) and (z),    (4) Article 32: Section 1456: subsection (n),    (5) Article 33: Section 1511: subdivision (p).