22 - Tax credit for remediated brownfields.

§ 22. Tax credit for remediated brownfields.  (a) Definitions. As used  in this section the following terms shall have the following meanings:    (1) Certificate of completion. A "certificate of completion" issued by  the  commissioner  of  environmental  conservation  pursuant  to section  27-1419 of the environmental conservation law.    (2) Qualified site. For purposes of this section, a  "qualified  site"  is  a  site  with  respect to which a certificate of completion has been  issued by the commissioner of  environmental  conservation  pursuant  to  section 27-1419 of the environmental conservation law.    (3)  Developer.  (i)  A  "developer" is a taxpayer under article nine,  nine-A, twenty-two, thirty-two or thirty-three of this  chapter  who  or  which  either  (I)  has  been  issued  a  certificate of completion with  respect to a qualified site or (II) has purchased or in  any  other  way  has been conveyed all or any portion of a qualified site from a taxpayer  or  any  other  party  who  or  which  has  been issued a certificate of  completion  with  respect  to  such  site  provided,  such  purchase  or  conveyance  occurs  within  seven  years  of  the  effective date of the  certificate of completion issued with respect to  such  qualified  site.  Provided  further,  that  the taxpayer who or which is purchasing all or  any portion of a qualified site and the taxpayer or any other party  who  or  which  has  been  issued a certificate of completion with respect to  such site may not be  related  persons,  as  such  term  is  defined  in  subparagraph  (C)  of  paragraph three of subsection (b) of section four  hundred sixty-five of the internal revenue code.    (ii) Where the entity to whom a certificate  of  completion  has  been  issued  is a partnership, or where the entity which has purchased all or  any portion of a qualified site from a taxpayer who or  which  has  been  issued  a certificate of completion with respect to such site within the  applicable time limit is a partnership, any partner in such  partnership  who  or  which  is  taxable  under  article  nine,  nine-A,  twenty-two,  thirty-two or thirty-three of this chapter shall be  a  developer  under  this paragraph. Where the entity to whom a certificate of completion has  been  issued  is a New York S corporation, or where the entity which has  purchased all or any portion of a qualified site from a taxpayer who  or  which  has  been issued a certificate of completion with respect to such  site within the applicable time limit is a New York S  corporation,  any  shareholder  in  such  New York S corporation shall be a developer under  this paragraph.    (4) Cessation of status. A taxpayer shall cease to be a  developer  on  the  first  day  of  the  taxable  year  during  which revocation of its  certificate of completion under section  27-1419  of  the  environmental  conservation  law is final and no longer subject to judicial review, and  the amount of any credit allowed by this section shall be added back  in  the  taxable  year  in  which  such determination is final and no longer  subject to judicial review.    (5) Environmental zones (EN-Zones). An "environmental zone" shall mean  an area designated as such by the commissioner of economic  development.  Such  areas  so  designated  are areas which are census tracts and block  numbering areas which, as of the two thousand census, satisfy either  of  the following criteria:    (A) areas that have both:    (i)  a  poverty  rate of at least twenty percent for the year to which  the data relate;    (ii) an unemployment rate of at least one and  one-quarter  times  the  statewide unemployment rate for the year to which the data relate, or;    (B)  areas  that have a poverty rate of at least two times the poverty  rate for the county in which the areas are located for the year to which  the data relate, provided, however, that a qualified site shall only  bedeemed  to  be  located in an environmental zone under this subparagraph  (B) if such site was the subject of a brownfield site cleanup  agreement  pursuant  to  section 27-1409 of the environmental conservation law that  was entered into prior to September first, two thousand ten.    Such  designation  shall  be made and a list of all such environmental  zones shall be established by the commissioner of  economic  development  no  later  than  December  thirty-first,  two  thousand  four  provided,  however, that a qualified site shall only be deemed to be located in  an  environmental zone under subparagraph (B) of this paragraph if such site  was  the  subject  of  a  brownfield  site cleanup agreement pursuant to  section 27-1409 of the environmental conservation law that  was  entered  into prior to September first, two thousand ten.    (b) Remediated brownfield credit for real property taxes for qualified  sites.  (1)  Allowance of credit. A developer of a qualified site who or  which  is  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  paragraph  nine  of  this  subdivision, for eligible real property taxes imposed on  such site.    (2) Amount of credit. The amount of the credit  shall  be  twenty-five  percent  of  the  product  of  (i)  the  benefit period factor, (ii) the  employment number factor, and (iii) the  eligible  real  property  taxes  paid  or  incurred  by  the  developer  of the qualified site during the  taxable year (or the pro rata share of such  taxes  in  the  case  of  a  partner  in a partnership or a shareholder in a New York S corporation),  except that if the real property which is  the  subject  of  the  credit  provided  for  under  this  section  is  attributed  to a qualified site  located in an  environmental  zone  as  defined  in  paragraph  five  of  subdivision  (a)  of this section, the amount of the credit shall be the  product of the factors and taxes referred to in subparagraphs (i),  (ii)  and  (iii)  of this paragraph. However, the amount of the credit may not  exceed the credit limitation  set  forth  in  paragraph  seven  of  this  subdivision.    (3)  Benefit  period  factor. The benefit period factor is a numerical  value corresponding with a benefit period  of  ten  consecutive  taxable  years  commencing  in  the  taxpayer's  taxable  year  during  which the  certificate of completion is  issued  for  the  qualified  site  or  the  taxpayer's  first  taxable  year commencing on or after April first, two  thousand five, whichever is later. The benefit period  factors  are  set  forth in the following table:  Taxable year of benefit period:     Benefit period factor:  1-10                                1.0    (4)  Employment  number  factor. (i) The employment number factors are  set forth in the following table:  Average number of full-time                  Employment number factor:  employees employed by the  developer of a qualified site, plus  the average number of full-time  employees employed by a lessee  or lessees  of a portion of such qualified  site, where such employees are  employed at such site  during the taxable year:  At least 25 but less than 50                    .25  At least 50 but less than 75                    .50  At least 75 but less than 100                   .75  At least 100                                   1.00(ii) For purposes of this paragraph, the average number  of  full-time  employees, excluding general executive officers, employed by a developer  and  a  lessee  at  a  qualified  site  during  a  taxable year or other  applicable period, shall be computed by ascertaining the number of  such  employees  employed by the developer and such lessee on the thirty-first  day of March, the thirtieth day of June, the thirtieth day of  September  and  the  thirty-first day of December during each taxable year or other  applicable period, by adding together the  number  of  such  individuals  ascertained  on  each  of such dates and dividing the sum so obtained by  the number of such dates occurring within such  taxable  year  or  other  applicable  period. Where the developer is a partner in a partnership or  a shareholder in a New York  S  corporation,  the  number  of  full-time  employees of the partnership or the New York S corporation respectively,  at such qualified site, shall be used for purposes of this calculation.    (5)  Eligible  real  property  taxes. The term "eligible real property  taxes" means  taxes  imposed  on  real  property  which  consists  of  a  qualified site owned by the developer, provided such taxes become a lien  on  the  real  property  in a period during which the real property is a  qualified site. In addition, the term  "eligible  real  property  taxes"  includes  payments  in lieu of taxes by the developer, with respect to a  qualified site, to the  state,  a  municipal  corporation  or  a  public  benefit corporation pursuant to a written agreement entered into between  the developer and the state, a municipal corporation or a public benefit  corporation.  Provided,  however,  such a payment in lieu of taxes shall  not constitute eligible real property taxes in any taxable year  to  the  extent  that  such payment exceeds the product of (A) the greater of (i)  the basis for federal income tax purposes, determined on  the  date  the  taxpayer  becomes  a  developer  as  defined under this section, of real  property, including buildings and structural  components  of  buildings,  owned  by  the developer and located on a qualified site with respect to  which the taxpayer is a developer, or (ii) the basis for federal  income  tax  purposes  of  such  real  property  described in clause (i) of this  subparagraph on the last day of the taxable year, and (B) the  estimated  effective  full  value tax rate within the county in which such property  is located,  as  most  recently  calculated  by  the  commissioner.  The  commissioner shall annually calculate estimated and effective full value  tax  rates  within  each  county  for  this  purpose based upon the most  current information available to him or her in relation to county, city,  town, village and school district taxes.  Provided  further,  where  the  amount  of the credit determined under paragraph two of this subdivision  is the total product of the factors and tax specified therein, the  term  "eligible  real property taxes" under this paragraph shall apply only to  taxes imposed on real property which is attributed to a  qualified  site  located  in an environmental zone. Where the developer is a partner in a  partnership or a shareholder in a New  York  S  corporation,  such  real  property   shall  be  owned  by  the  partnership  or  the  New  York  S  corporation, respectively.    (6) Credit recapture. Where a developer's eligible real property taxes  which were the basis for the allowance of the credit provided for  under  this  subdivision  are subsequently reduced as a result of a final order  in any proceeding under article seven of the real property  tax  law  or  other provision of law, the taxpayer shall add back, in the taxable year  in  which  such  final  order is issued, the excess of (i) the amount of  credit originally allowed for a taxable year over  (ii)  the  amount  of  credit  determined  based upon the reduced eligible real property taxes.  If such final order reduces real property taxes for more than one  year,  the  taxpayer  must determine how much of such reduction is attributable  to each year covered by such final order and  calculate  the  amount  ofcredit  which  is  required  by this paragraph to be recaptured for each  year based on such reduction.    (7)  Credit  limitation. The credit limitation shall be the product of  (i) ten thousand dollars  and  (ii)  the  average  number  of  full-time  employees  employed by the developer of a qualified site and a lessee or  lessees of a portion of such qualified site during the taxable year,  as  such  average  is  computed under subparagraph (ii) of paragraph four of  this subdivision.    (8) Credit option. If the qualified site is located  in  whole  or  in  part  in  an  area  designated  as  an  empire  zone pursuant to article  eighteen-B of the general  municipal  law,  and  a  taxpayer  meets  the  eligibility  requirements  for  both  the credit provided for under this  section and the QEZE credit for real property taxes provided  for  under  section  fifteen  of  this  article, with respect to all or part of such  site, such taxpayer shall not be allowed to claim both such credits. The  taxpayer shall be required, in the first taxable year such  taxpayer  is  allowed  to claim a credit under this section, to elect whether to claim  the credit provided for under this section or the  credit  provided  for  under  section fifteen of this article. Such election shall be made with  the filing of the return or report required under article nine,  nine-A,  twenty-two,  thirty-two  or  thirty-three  of this chapter, whichever is  applicable, for such taxable year. Such election shall apply to  and  be  binding  in  each  subsequent  taxable  year  applicable  to  the credit  provided for under either  this  section  or  section  fifteen  of  this  article. A taxpayer who or which has been allowed a credit under section  fifteen  of  this article, in a taxable year preceding the first taxable  year such taxpayer is allowed to claim  a  credit  under  this  section,  shall  not  be  precluded  from making the election provided for in this  paragraph.    (9) Cross-references. For application of the credit  provided  for  in  this subdivision, see the following provisions of this chapter:    (i) Article 9: Section 187-h.    (ii) Article 9-A: Section 210: subdivision 34.    (iii) Article 22: Section 606: subsections (i) and (ee).    (iv) Article 32: Section 1456: subsection (r).    (v) Article 33: Section 1511: subdivision (v).