§ 354 — Application and approval process

§ 354. Application and approval process. 1. A business enterprise must\nsubmit a completed application as prescribed by the commissioner. An\napplication made by an entertainment company must be submitted by June\nfirst, two thousand fifteen, except for an application made by an\nentertainment company that is eligible to participate in the excelsior\njobs program based upon creating net new jobs pursuant to paragraph (a)\nof subdivision twelve of section three hundred fifty-two of this\narticle. An application may be recommended by entities, including but\nnot limited to, those created pursuant to subdivision (e) of section\nnine hundred fifty-seven of the general municipal law.\n 2. As part of such application, each business enterprise must:\n (a) Agree to allow the department of taxation and finance to share its\ntax information with the department. However, any information shared as\na result of this agreement shall not be available for disclosure or\ninspection under the state freedom of information law.\n (b) Agree to allow the department of labor to share its tax and\nemployer information with the department. However, any information\nshared as a result of this agreement shall not be available for\ndisclosure or inspection under the state freedom of information law.\n (c) Allow the department and its agents access to any and all books\nand records the department may require to monitor compliance.\n (d) Agree to be permanently disqualified for empire zone benefits at\nany location or locations that qualify for excelsior jobs program\nbenefits if admitted into the excelsior jobs program.\n (e) Provide the following information to the department upon request:\n (i) a plan outlining the schedule for meeting the job and investment\nrequirements as set forth in subdivisions three and four of section\nthree hundred fifty-three of this article. Such plan must include\ndetails on job titles and expected salaries;\n (ii) the prior three years of federal and state income or franchise\ntax returns, unemployment insurance quarterly returns, real property tax\nbills and audited financial statements;\n (iii) the amount and description of projected qualified investments\nfor which it plans to claim the excelsior investment tax credit;\n (iv) an estimate of the portion of any federal research and\ndevelopment tax credits, attributable to research and development\nactivities conducted in New York state, that it anticipates claiming for\nthe years it expects to claim the excelsior research and development\ncredit; and\n (v) the employer identification or social security numbers for all\nrelated persons to the applicant, including those of any members of a\nlimited liability company or partners in a partnership.\n (f) Provide a clear and detailed presentation of all related persons\nto the applicant to assure the department that jobs are not being\nshifted within the state.\n (g) Certify, under penalty of perjury, that it is in substantial\ncompliance with all environmental, worker protection, and local, state,\nand federal tax laws.\n 3. (a) After reviewing a business enterprise's completed application\nand determining that the business enterprise will meet the conditions\nset forth in subdivisions three and four of section three hundred\nfifty-three of this article, the department may admit the applicant into\nthe program and provide the applicant with a certificate of eligibility\nand a preliminary schedule of benefits by year based on the applicant's\nprojections as set forth in its application. This preliminary schedule\nof benefits delineates the maximum possible benefits an applicant may\nreceive.\n (b) Notwithstanding the requirements of this subdivision, an existing\nparticipant in the excelsior jobs program may be eligible for an\nenhanced investment tax credit on projects for child care services and\nthe excelsior child care services tax credit component, provided:\n (i) the participant is in compliance with the requirements of this\narticle;\n (ii) the participant is not, at the time of application to the\ndepartment for either the enhanced investment tax credit on projects for\nchild care services or the excelsior child care tax credit component,\neither operating a child care facility or sponsoring child care services\nfor its employees; and\n (iii) the participant is seeking to provide such services on condition\nof receipt of additional tax credits attributable to child care\nservices. Such existing participant may apply to the department for the\nbenefit as defined in section three hundred fifty-five of this article.\nIn no circumstances shall the benefit term for child care services\nexceed the existing participant's existing benefit term in its\npreliminary schedule of benefits.\n 4. In order to become a participant in the program, an applicant must\nsubmit evidence that it satisfies the eligibility criteria specified in\nsection three hundred fifty-three of this article and subdivision two of\nthis section in such form as the commissioner may prescribe. After\nreviewing such evidence and finding it sufficient, the department shall\ncertify the applicant as a participant and issue to that participant a\ncertificate of tax credit for one taxable year. To receive a certificate\nof tax credit for subsequent taxable years, the participant must submit\nto the department a performance report demonstrating that the\nparticipant continues to satisfy the eligibility criteria specified in\nsection three hundred fifty-three of this article and subdivision two of\nthis section. If such eligibility criteria is met, a participant can\nreceive tax credits based on interim job, investment or research and\ndevelopment milestones. A participant's increase in employment,\nqualified investment, or federal research and development tax credit\nattributable to research and development activities in New York state\nabove its projections listed in its application shall not result in an\nincrease in tax benefits under this article. However, if the\nparticipant's expenditures are less than the estimated amounts, the\ncredit shall be less than the estimate.\n 5. A participant may claim tax benefits commencing in the first\ntaxable year that the business enterprise receives a certificate of tax\ncredit or the first taxable year listed on its preliminary schedule of\nbenefits, whichever is later. A participant may claim such benefits for\nthe next nine consecutive taxable years, provided that the participant\ndemonstrates to the department that it continues to satisfy the\neligibility criteria specified in section three hundred fifty-three of\nthis article and subdivision two of this section in each of those\ntaxable years, and provided that no tax credits may be allowed for\ntaxable years beginning on or after January first, two thousand forty.\nIf, in any given year, a participant who has satisfied the eligibility\ncriteria specified in section three hundred fifty-three of this article\nrealizes job creation less than the estimated amount, the credit shall\nbe reduced by the proportion of actual job creation to the estimated\namount, provided the proportion is at least seventy-five percent of the\njobs estimated.\n