§ 352 — Definitions

§ 352. Definitions. For the purposes of this article:\n 1. "Agriculture" means both agricultural production (establishments\nperforming the complete farm or ranch operation, such as farm\nowner-operators, tenant farm operators, and sharecroppers) and\nagricultural support (establishments that perform one or more activities\nassociated with farm operation, such as soil preparation, planting,\nharvesting, shearing, animal and plant fiber processing, and management,\non a contract or fee basis).\n 1-a. "Animal and plant fiber textile manufacturing" means the\nprocesses of harvesting, cleaning, spinning, knitting, weaving, dyeing\nand finishing textiles containing animal and plant fiber grown or\nproduced predominantly in New York state.\n 2. "Back office operations" means a business function that may include\none or more of the following activities: customer service, information\ntechnology and data processing, human resources, accounting and related\nadministrative functions.\n 3. "Benefit-cost ratio" means the following calculation: the numerator\nis the sum of (i) the value of all remuneration projected to be paid for\nall net new jobs during the period of participation in the program, and\n(ii) the value of capital investments to be made by the business\nenterprise during the period of participation in the program, and the\ndenominator is the amount of total tax benefits under this article that\nwill be used and refunded.\n 3-a. "Green CHIPS benefit-cost ratio" means the following calculation\nwith respect to Green CHIPS projects: the ratio where the numerator is\nthe sum of: (a) the value of all remuneration projected to be paid for\nall net new jobs during the period of participation in the program; (b)\nthe value of capital investments to be made by the business enterprise\nduring the period of participation in the program; and (c) all research\nand development expenditures by the participant in New York State during\nthe period of participation in the program; and the denominator is the\namount of total tax benefits under this article that will be used and\nrefunded as well as any state grants provided to the participant.\n 4. "Certificate of eligibility" means the document issued by the\ndepartment to an applicant that has completed an application to be\nadmitted into the excelsior jobs program and has been accepted into the\nprogram by the department. Possession of a certificate of eligibility\ndoes not by itself guarantee the eligibility to claim the tax credit.\n 5. "Certificate of tax credit" means the document issued to a\nparticipant by the department, after the department has verified that\nthe participant has met all applicable eligibility criteria in this\narticle. The certificate shall be issued annually if such criteria are\nsatisfied and shall specify the exact amount of each of the tax credit\ncomponents under this article that a participant may claim, pursuant to\nsection three hundred fifty-five of this article, and shall specify the\ntaxable year in which such credit may be claimed.\n 5-a. "Child care services" means those services undertaken or\nsponsored by a participant in this program meeting the requirements of\n"child day care" as defined in paragraph (a) of subdivision one of\nsection three hundred ninety of the social services law or any child\ncare services in the city of New York whereby a permit to operate such\nchild care services is required pursuant to the health code of the city\nof New York.\n 6. "Distribution center" means a large scale facility involving\nprocessing, repackaging and/or movement of finished or semi-finished\ngoods to retail locations across a multi-state area.\n 7. "Entertainment company" means a corporation, partnership, limited\npartnership, or other entity principally engaged in the production or\npost production of (i) motion pictures, which shall include\nfeature-length films and television films, (ii) instructional videos,\n(iii) televised commercial advertisements, (iv) animated films or\ncartoons, (v) music videos, (vi) television programs, which shall\ninclude, but not be limited to, television series, television pilots,\nand single television episodes, or (vii) programs primarily intended for\nradio broadcast. "Entertainment company" shall not include an entity (i)\nprincipally engaged in the live performance of events, including, but\nnot limited to, theatrical productions, concerts, circuses, and sporting\nevents, (ii) principally engaged in the production of content intended\nprimarily for industrial, corporate or institutional end-users, (iii)\nprincipally engaged in the production of fundraising films or programs,\nor (iv) engaged in the production of content for which records are\nrequired under section 2257 of title 18, United States code, to be\nmaintained with respect to any performer in such production.\n 8. "Financial services data centers or financial services customer\nback office operations" means operations that manage the data or\naccounts of existing customers or provide product or service information\nand support to customers of financial services companies, including\nbanks, other lenders, securities and commodities brokers and dealers,\ninvestment banks, portfolio managers, trust offices, and insurance\ncompanies.\n 8-a. "Green project" means a project deemed by the commissioner to\nmake products or develop technologies that are primarily aimed at\nreducing greenhouse gas emissions or supporting the use of clean energy\nin accordance with goals described in chapter one hundred six of the\nlaws of two thousand nineteen. "Green project" shall include, but not be\nlimited to, the manufacture or development of products or technologies\nor supply chain components primarily for renewable energy systems as\ndefined in section sixty-six-p of the public service law, vehicles that\nuse non-hydrocarbon fuels and produce zero or near zero emissions, heat\npumps, energy efficiency, clean energy storage and other products that\nsignificantly reduce greenhouse gas emissions by minimizing the\nutilization of depletable resources or by improving industrial or\nagricultural efficiency. "Green project" shall not include a project\nprimarily composed of (i) necessarily local activities such as retail,\nbuilding construction, or the installation, deployment or adoption of a\nclean energy product or technology at an end user's site, or (ii) the\nproduction of products or development of technologies that would produce\nonly marginal and incremental energy savings or environmental benefits\nancillary to the core function of the product or technology.\n 9. "Investment zone" shall mean an area within the state that had been\ndesignated under paragraph (i) of subdivision (a) and subdivision (d) of\nsection nine hundred fifty-eight of the general municipal law that was\nwholly contained within up to four distinct and separate contiguous\nareas as of the date immediately preceding the date the designation of\nsuch area expired pursuant to section nine hundred sixty-nine of the\ngeneral municipal law.\n 10. "Life sciences" means agricultural biotechnology, biogenerics,\nbioinformatics, biomedical engineering, biopharmaceuticals, academic\nmedical centers, biotechnology, chemical synthesis, chemistry\ntechnology, medical diagnostics, genomics, medical image analysis,\nmarine biology, medical devices, medical nanotechnology, natural product\npharmaceuticals, proteomics, regenerative medicine, RNA interference,\nstem cell research, medical and neurological clinical trials, health\nrobotics and veterinary science.\n 11. "Life sciences company" means a business entity or an organization\nor institution that devotes the majority of its efforts in the various\nstages of research, development, technology transfer and\ncommercialization related to any life sciences field.\n 12. "Manufacturing" means the process of working raw materials into\nproducts suitable for use or which gives new shapes, new quality or new\ncombinations to matter which has already gone through some artificial\nprocess by the use of machinery, tools, appliances, or other similar\nequipment. "Manufacturing" does not include an operation that involves\nonly the assembly of components, provided, however, the assembly of\nmotor vehicles or other high value-added products shall be considered\nmanufacturing.\n 13. "Music production" means the process of creating sound recordings\nof at least eight minutes, recorded in professional sound studios,\nintended for commercial release. "Music production" does not include\nrecording of live concerts, or recordings that are primarily spoken word\nor wildlife or nature sounds, or produced for instructional use or\nadvertising or promotional purposes.\n 13-a. "Net new child care services expenditures" means the calculation\nof new, annual participant expenditures on child care services whether\ninternal or provided by a third party (including coverage for full or\npartial discount of employee rates), minus any revenues received by the\nparticipant through a third-party operator (i.e. rent paid to the\nparticipant by the child care provider) or employees and may be further\ndefined by the commissioner in regulations. For the purposes of this\ndefinition, expenditures for child care services that a participant has\nincurred prior to admission to this program shall not be eligible for\nthe credit.\n 14. "Net new jobs" means:\n (a) jobs created in this state that (i) are new to the state,\n (ii) have not been transferred from employment with another business\nlocated in this state including from a related person in this state,\n (iii) are either full-time wage-paying jobs or equivalent to a\nfull-time wage-paying job requiring at least thirty-five hours per week,\nand\n (iv) are filled for more than six months; or\n (b) jobs obtained by an entertainment company in this state (i) as a\nresult of the termination of a licensing agreement with another\nentertainment company, (ii) that the commissioner determines to be at\nrisk of leaving the state as a direct result of the termination, (iii)\nthat are either full-time wage-paying jobs or equivalent to a full-time\nwage-paying job requiring at least thirty-five hours per week, and (iv)\nthat are filled for more than six months.\n 15. "Participant" means a business entity that:\n (a) has completed an application prescribed by the department to be\nadmitted into the program;\n (b) has been issued a certificate of eligibility by the department;\n (c) has demonstrated that it meets the eligibility criteria in section\nthree hundred fifty-three and subdivision two of section three hundred\nfifty-four of this article; and\n (d) has been certified as a participant by the commissioner.\n 16. "Preliminary schedule of benefits" means the maximum aggregate\namount of each component of the tax credit that a participant in the\nexcelsior jobs program is eligible to receive pursuant to this article.\nThe schedule shall indicate the annual amount of each component of the\ncredit a participant may claim in each of its ten years of eligibility.\nThe preliminary schedule of benefits shall be issued by the department\nwhen the department approves the application for admission into the\nprogram. The commissioner may amend that schedule, provided that the\ncommissioner complies with the credit caps in section three hundred\nfifty-nine of this article as applicable.\n 17. "Qualified investment" means an investment in tangible property\n(including a building or a structural component of a building) owned by\na business enterprise which:\n (a) is depreciable pursuant to section one hundred sixty-seven of the\ninternal revenue code;\n (b) has a useful life of four years or more;\n (c) is acquired by purchase as defined in section one hundred\nseventy-nine (d) of the internal revenue code;\n (d) has a situs in this state; and\n (e) is placed in service in the state on or after the date the\ncertificate of eligibility is issued to the business enterprise.\n 18. "Regionally significant project" means (a) a manufacturer creating\nat least ten net new jobs in the state and making significant capital\ninvestment in the state; (b) a business creating at least ten net new\njobs in agriculture in the state and making significant capital\ninvestment in the state, (c) a financial services firm, distribution\ncenter, or back office operation creating at least one hundred net new\njobs in the state and making significant capital investment in the\nstate, (d) a scientific research and development firm creating at least\nten net new jobs in the state, and making significant capital investment\nin the state, (e) a life sciences company creating at least twenty net\nnew jobs in the state and making significant capital investment in the\nstate or (f) an entertainment company creating or obtaining at least two\nhundred net new jobs in the state and making significant capital\ninvestment in the state. Other businesses creating one hundred fifty or\nmore net new jobs in the state and making significant capital investment\nin the state may be considered eligible as a regionally significant\nproject by the commissioner as well. The commissioner shall promulgate\nregulations pursuant to section three hundred fifty-six of this article\nto determine what additional criteria a business must meet to be\neligible as a regionally significant project, including, but not limited\nto, whether a business exports a substantial portion of its products or\nservices outside of the state or outside of a metropolitan statistical\narea or county within the state.\n 19. "Related person" means a "related person" pursuant to subparagraph\n(c) of paragraph three of subsection (b) of section four hundred\nsixty-five of the internal revenue code.\n 20. "Remuneration" means wages and benefits paid to an employee by a\nparticipant in the excelsior jobs program.\n 20-a. "Significant capital investment" means a project which will be\neither a newly constructed facility or a newly constructed addition to,\nexpansion of or improvement of a facility, consisting of tangible\npersonal property and other tangible property, including buildings and\nstructural components of buildings, that are depreciable pursuant to\nsection one hundred sixty-seven of the internal revenue code, have a\nuseful life of four years or more, are acquired by purchase as defined\nin section one hundred seventy-nine (d) of the internal revenue code,\nand that is equal to or exceeds (a) one million dollars for a\nmanufacturer; (b) two hundred fifty thousand dollars for an agriculture\nbusiness; (c) three million dollars for a financial services firm or\nback office operation; (d) fifteen million dollars for a distribution\ncenter; (e) three million dollars for a scientific research and\ndevelopment firm; or (f) three million dollars for other businesses.\n 21. "Research and development expenditures" mean the expenses of the\nbusiness enterprise that are qualified research expenses under the\nfederal research and development credit under section forty-one of the\ninternal revenue code and are attributable to activities conducted in\nthe state. If the federal research and development credit has expired,\nthen the research and development expenditures shall be calculated as if\nthe federal research and development credit structure and definition in\neffect in federal tax year two thousand nine were still in effect.\n 22. "Scientific research and development" means conducting research\nand experimental development in the physical, engineering, and life\nsciences, including but not limited to agriculture, animal fiber,\nelectronics, environmental, biology, botany, biotechnology, computers,\nchemistry, food, fisheries, forests, geology, health, mathematics,\nmedicine, oceanography, pharmacy, physics, plant fiber, veterinary, and\nother allied subjects. For the purposes of this article, scientific\nresearch and development does not include medical or veterinary\nlaboratory testing facilities.\n 23. "Software development" means the creation of coded computer\ninstructions or production or post-production of video games, as defined\nin subdivision one-a of section six hundred eleven of the general\nbusiness law, other than those embedded and used exclusively in\nadvertising, promotional websites or microsites, and also includes new\nmedia as defined by the commissioner in regulations.\n 24. "Green CHIPS project" means a project meeting all of the following\ncriteria: (a) is within the semiconductor manufacturing and related\nequipment and material supplier sector; (b) includes sustainability\nmeasures to mitigate the project's greenhouse gas emissions impact over\nits lifetime; (c) provides for the payment of not less than federal\nprevailing wage rates for its project construction; (d) makes\ncommitments to worker and community investment, including through\ntraining and education benefits paid by the participant and programs to\nexpand employment opportunity for economically disadvantaged\nindividuals; (e) will create at least five hundred net new jobs and make\nat least three billion dollars in qualified investment; and (f) the\nparticipant undertaking a Green CHIPS project shall maintain a Green\nCHIPS benefit-cost ratio of at least fifteen to one. Such projects are\neligible to enter into a phase one of a Green CHIPS project ten-year\nbenefit term. Such projects, provided they are in good standing with all\nrequirements of this chapter, are also eligible to enter into a phase\ntwo of a Green CHIPS project, and therefore to initiate a new and\nseparate ten-year schedule related to phase two, provided that phase two\nwill create at least five hundred net new jobs beyond those created in\nphase one, and that phase two will make at least three billion dollars\nin qualified investment beyond the investment total associated with\nphase one. For Green CHIPS projects, phase one and phase two terms may\noverlap, depending on the time of initiation for both projects. In no\nevent shall credits be awarded for a Green CHIPS project beyond two\nthousand fifty.\n 25. "Semiconductor supply chain project" means a project deemed by the\ncommissioner to make products or develop technologies that are primarily\naimed at supporting the growth of the semiconductor manufacturing and\nrelated equipment and material supplier sector. "Semiconductor supply\nchain project" shall include, but need not be limited to, semiconductor\ndevice manufacturing, producers of component parts, direct input\nmaterials and equipment necessary for the manufacture of semiconductor\nchips, machinery, equipment, and materials necessary for the operational\nefficiency of semiconductor manufacturing facilities, other such inputs\ndirectly supportive of the domestic production of semiconductor chips,\nand companies engaged in the assembly, testing, packaging and advanced\npackaging semiconductor value chain. "Semiconductor supply chain\nproject" shall not include a project primarily composed of: (i)\nmachinery, equipment, or materials that are inputs to manufacturing\ngenerally, but are not direct inputs to semiconductor manufacturing in\nspecific; (ii) the production of products or development of technologies\nthat would produce only marginal and incremental benefits to the\nsemiconductor manufacturing sector; (iii) projects that would otherwise\nqualify as a Green CHIPS project as defined in section twenty-four of\nthis section.\n