Bill Text: NY S05403 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes the small business pandemic job retention tax credit program.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS [S05403 Detail]
Download: New_York-2021-S05403-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5403 2021-2022 Regular Sessions IN SENATE March 4, 2021 ___________ Introduced by Sen. OBERACKER -- read twice and ordered printed, and when printed to be committed to the Committee on Commerce, Economic Devel- opment and Small Business AN ACT to amend the economic development law and the tax law, in relation to establishing the small business pandemic job retention tax credit The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The economic development law is amended by adding a new 2 article 23 to read as follows: 3 ARTICLE 23 4 SMALL BUSINESS PANDEMIC JOB RETENTION TAX CREDIT PROGRAM 5 Section 450. Short title. 6 451. Statement of legislative findings and declaration. 7 452. Definitions. 8 453. Eligibility criteria. 9 454. Application and approval process. 10 455. Small business pandemic job retention tax credit. 11 456. Powers and duties of the commissioner. 12 457. Maintenance of records. 13 458. Reporting. 14 459. Cap on tax credit. 15 § 450. Short title. This article shall be known and may be cited as 16 the "small business pandemic job retention tax credit program act". 17 § 451. Statement of legislative findings and declaration. It is hereby 18 found and declared that New York state needs to provide assistance to 19 small businesses who have suffered economic harm as a result of the 20 COVID-19 pandemic. The small business pandemic job retention tax credit 21 program is designed to provide relief to businesses who maintained 22 staffing levels despite suffering significant loss of revenue due to the 23 pandemic. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09365-01-1S. 5403 2 1 § 452. Definitions. For the purposes of this article: 2 1. "Average full-time employment" shall mean the average number of 3 full-time equivalent positions employed by an eligible business entity 4 during a given period. 5 2. "Average starting full-time employment" shall be calculated as the 6 average number of full-time equivalent positions employed by a business 7 entity in an eligible industry between January first, two thousand twen- 8 ty, and March first, two thousand twenty. 9 3. "Average ending full-time employment" shall be calculated as the 10 average number of full-time equivalent positions employed by a business 11 entity in an eligible industry between April first, two thousand twen- 12 ty-one, and December thirty-first, two thousand twenty-one. 13 4. "Certificate of tax credit" means the document issued to a business 14 entity by the department after the department has verified that the 15 business entity has met all applicable eligibility criteria in this 16 article. The certificate shall specify the exact amount of the tax cred- 17 it under this article that a business entity may claim, pursuant to 18 section four hundred fifty-five of this article. 19 § 453. Eligibility criteria. 1. To be eligible for a tax credit under 20 the small business pandemic job retention tax credit program, a business 21 entity must: 22 (a) be a small business as defined in section one hundred thirty-one 23 of this chapter and have fewer than one hundred full-time job equiv- 24 alents in New York state as of April first, two thousand twenty-one; 25 (b) operate a business location in New York state that charges admis- 26 sion and/or accepts payment for goods and/or services from in-person 27 customers; 28 (c) have experienced economic harm as a result of the COVID-19 emer- 29 gency as evidenced by a year-to-year decrease of at least forty percent 30 in New York state between the second quarter of two thousand nineteen 31 and the second quarter of two thousand twenty or the third quarter of 32 two thousand nineteen and the third quarter of two thousand twenty for 33 gross receipts; and 34 (d) have demonstrated a flat average level of employees, who have been 35 paid wages at a rate equal to no less than seventy-five percent of their 36 rate of pay during the time period described in subdivision two of 37 section four hundred fifty-two of this article. 38 2. A business entity must be in substantial compliance with any emer- 39 gency restrictions or public health orders impacting the industry sector 40 or other laws and regulations as determined by the commissioner. In 41 addition, a business entity may not owe past due state taxes or local 42 property taxes unless the business entity is making payments and comply- 43 ing with an approved binding payment agreement entered into with the 44 taxing authority. 45 § 454. Application and approval process. 1. A business entity must 46 submit a complete application as prescribed by the commissioner. 47 2. The commissioner shall establish procedures and a timeframe for 48 business entities to submit applications. As part of the application, 49 each business entity must: 50 (a) provide evidence in a form and manner prescribed by the commis- 51 sioner of its business eligibility; 52 (b) agree to allow the department of taxation and finance to share the 53 business entity's tax information with the department; provided, howev- 54 er, that any information shared as a result of the small business 55 pandemic job retention tax credit program shall not be available for 56 disclosure or inspection under the state freedom of information law;S. 5403 3 1 (c) agree to allow the department of labor to share its tax and 2 employer information with the department; provided, however, that any 3 information shared as a result of the small business pandemic job 4 retention tax credit program shall not be available for disclosure or 5 inspection under the state freedom of information law; 6 (d) allow the department and its agents access to any and all books 7 and records the department may require to monitor compliance; 8 (e) certify that it is in substantial compliance with all emergency 9 orders or public health regulations currently required of such entity, 10 and local and state tax laws; and 11 (f) agree to provide any additional information required by the 12 department relevant to this article. 13 3. After reviewing a business entity's completed final application and 14 determining that the business entity meets the eligibility criteria as 15 set forth in this article, the department may issue to that business 16 entity a certificate of tax credit. A business entity may claim the tax 17 credit in the taxable year that includes December thirty-first, two 18 thousand twenty-one. 19 § 455. Small business pandemic job retention tax credit. 1. A business 20 entity in the small business pandemic job retention tax credit program 21 that meets the eligibility requirements of section four hundred fifty- 22 three of this article may be eligible to claim a credit of up to ten 23 thousand dollars. 24 2. A business entity, including a partnership, limited liability 25 company and subchapter S corporation, may not receive in excess of ten 26 thousand dollars in tax credits under this program. 27 3. The credit shall be allowed as provided in section forty-five, 28 subdivision fifty-five of section two hundred ten-B and subsection (kkk) 29 of section six hundred six of the tax law. 30 § 456. Powers and duties of the commissioner. 1. The commissioner may 31 promulgate regulations establishing an application process and eligibil- 32 ity criteria, that will be applied consistent with the purposes of this 33 article, so as not to exceed the annual cap on tax credits set forth in 34 section four hundred fifty-nine of this article which, notwithstanding 35 any provisions to the contrary in the state administrative procedure 36 act, may be adopted on an emergency basis. 37 2. The commissioner shall, in consultation with the department of 38 taxation and finance, develop a certificate of tax credit that shall be 39 issued by the commissioner to eligible businesses. Such certificate 40 shall contain such information as required by the department of taxation 41 and finance. 42 3. The commissioner shall solely determine the eligibility of any 43 applicant applying for entry into the program and shall remove any busi- 44 ness entity from the program for failing to meet any of the requirements 45 set forth in section four hundred fifty-three of this article, or for 46 failing to meet the requirements set forth in subdivision one of section 47 four hundred fifty-four of this article. 48 § 457. Maintenance of records. Each business entity participating in 49 the program shall keep all relevant records for their duration of 50 program participation for at least three years. 51 § 458. Reporting. Each business entity participating in this program 52 must submit a performance report to the department at a time prescribed 53 in regulations by the commissioner. 54 § 459. Cap on tax credit. The total amount of tax credits listed on 55 certificates of tax credit issued by the commissioner pursuant to this 56 article may not exceed one hundred million dollars.S. 5403 4 1 § 2. The tax law is amended by adding a new section 45 to read as 2 follows: 3 § 45. Small business pandemic job retention tax credit. (a) Allowance 4 of credit. A taxpayer subject to tax under article nine-a or twenty-two 5 of this chapter shall be allowed a credit against such tax, pursuant to 6 the provisions referenced in subdivision (f) of this section. The amount 7 of the credit is equal to the amount determined pursuant to section four 8 hundred fifty-five of the economic development law. No cost or expense 9 paid or incurred by the taxpayer which is included as part of the calcu- 10 lation of this credit shall be the basis of any other tax credit allowed 11 under this chapter. 12 (b) Eligibility. To be eligible for the small business pandemic job 13 retention tax credit, the taxpayer shall have been issued a certificate 14 of tax credit by the department of economic development pursuant to 15 subdivision three of section four hundred fifty-four of the economic 16 development law, which certificate shall set forth the amount of the 17 credit that may be claimed for the taxable year. The taxpayer shall be 18 allowed to claim only the amount listed on the certificate of tax credit 19 for that taxable year. A taxpayer that is a partner in a partnership, 20 member of a limited liability company or shareholder in a subchapter S 21 corporation that has received a certificate of tax credit shall be 22 allowed its pro rata share of the credit earned by the partnership, 23 limited liability company or subchapter S corporation. 24 (c) Tax return requirement. The taxpayer shall be required to attach 25 to its tax return, in the form prescribed by the commissioner, proof of 26 receipt of its certificate of tax credit issued by the commissioner of 27 the department of economic development. 28 (d) Information sharing. Notwithstanding any provision of this chap- 29 ter, employees of the department of economic development and the depart- 30 ment shall be allowed and are directed to share and exchange: 31 (1) information derived from tax returns or reports that is relevant 32 to a taxpayer's eligibility to participate in the small business pandem- 33 ic job retention tax credit program; 34 (2) information regarding the credit applied for, allowed or claimed 35 pursuant to this section and taxpayers that are applying for the credit 36 or that are claiming the credit; and 37 (3) information contained in or derived from credit claim forms 38 submitted to the department and applications for admission into the 39 small business pandemic job retention tax credit program. Except as 40 provided in paragraph two of this subdivision, all information exchanged 41 between the department of economic development and the department shall 42 not be subject to disclosure or inspection under the state's freedom of 43 information law. 44 (e) Credit recapture. If a certificate of tax credit issued by the 45 department of economic development under article twenty-four of the 46 economic development law is revoked by such department, the amount of 47 credit described in this section and claimed by the taxpayer prior to 48 that revocation shall be added back to tax in the taxable year in which 49 any such revocation becomes final. 50 (f) Cross references. For application of the credit provided for in 51 this section, see the following provisions of this chapter: 52 (1) article 9-A: section 210-B, subdivision 55; 53 (2) article 22: section 606, subsection (kkk). 54 § 3. Section 210-B of the tax law is amended by adding a new subdivi- 55 sion 55 to read as follows:S. 5403 5 1 55. Small business pandemic job retention tax credit. (a) Allowance of 2 credit. A taxpayer shall be allowed a credit, to be computed as provided 3 in section forty-five of this chapter, against the taxes imposed by this 4 article. 5 (b) Application of credit. The credit allowed under this subdivision 6 for the taxable year shall not reduce the tax due for such year to less 7 than the amount prescribed in paragraph (d) of subdivision one of 8 section two hundred ten of this article. However, if the amount of cred- 9 it allowed under this subdivision for the taxable year reduces the tax 10 to such amount or if the taxpayer otherwise pays tax based on the fixed 11 dollar minimum amount, any amount of credit thus not deductible in such 12 taxable year shall be treated as an overpayment of tax to be credited or 13 refunded in accordance with the provisions of section one thousand 14 eighty-six of this chapter. Provided, however, the provisions of 15 subsection (c) of section one thousand eighty-eight of this chapter 16 notwithstanding, no interest will be paid thereon. 17 § 4. Section 606 of the tax law is amended by adding a new subsection 18 (kkk) to read as follows: 19 (kkk) Small business pandemic job retention tax credit. (1) Allowance 20 of credit. A taxpayer shall be allowed a credit, to be computed as 21 provided in section forty-five of this chapter, against the tax imposed 22 by this article. 23 (2) Application of credit. If the amount of the credit allowed under 24 this subsection for the taxable year exceeds the taxpayer's tax for such 25 year, the excess shall be treated as an overpayment of tax to be credit- 26 ed or refunded in accordance with the provisions of section six hundred 27 eighty-six of this article, provided, however, that no interest will be 28 paid thereon. 29 § 5. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 30 of the tax law is amended by adding a new clause (xlvi) to read as 31 follows: 32 (xlvi) Small business pandemic Amount of credit 33 job retention tax credit under subdivision 34 fifty-five of section 35 two hundred ten-B 36 § 6. This act shall take effect immediately.
