Bill Text: NY S05864 | 2019-2020 | General Assembly | Amended
Bill Title: Provides a television writers' and directors' fees and salaries credit; provides that to be eligible the writer or director is a minority group member, or a woman, and provides, further, that any writer or director who is a profit participant in the qualified production shall not be eligible.
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Passed) 2019-12-18 - APPROVAL MEMO.60 [S05864 Detail]
Download: New_York-2019-S05864-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5864--A 2019-2020 Regular Sessions IN SENATE May 15, 2019 ___________ Introduced by Sens. JACKSON, RAMOS, BAILEY, BENJAMIN, BIAGGI, GOUNARDES, KAPLAN, KENNEDY, MAY, MYRIE, PERSAUD, SALAZAR, SANDERS, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the tax law, in relation to a television writers' and directors' fees and salaries credit The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The tax law is amended by adding a new section 24-b to read 2 as follows: 3 § 24-b. Television writers' and directors' fees and salaries credit. 4 (a)(1) A taxpayer which is a qualified film production company, or a 5 qualified independent film production company, or which is a sole 6 proprietor of or a member of a partnership which is a qualified film 7 production company or a qualified independent film production company, 8 and which is subject to tax under articles nine-A or twenty-two of this 9 chapter, shall be allowed a credit against such tax, pursuant to the 10 provisions referenced in subdivision (c) of this section, to be computed 11 as hereinafter provided. 12 (2) The amount of the credit shall be the product (or pro rata share 13 of the product, in the case of a member of a partnership) of thirty 14 percent and the qualified television writers' and directors' fees and 15 salaries costs paid or incurred in the production of a qualified film, 16 provided that: (i) the credit amount shall not exceed fifty thousand 17 dollars for qualified television writers' and directors' fees and sala- 18 ries claimed for such expenses incurred for the employment of any one 19 specific writer or director for the production of a single television 20 pilot or a single episode of a television series, and (ii) the credit 21 amount shall not exceed one hundred fifty thousand dollars for qualified 22 television writers' and directors' fees and salaries claimed for such 23 expenses incurred for the employment of any one specific writer or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10593-04-9S. 5864--A 2 1 director. The credit shall be allowed for the taxable year in which the 2 production of such qualified film is completed. 3 (3) No qualified television writers' and directors' fees and salaries 4 used by a taxpayer either as the basis for the allowance of the credit 5 provided for pursuant to this section or used in the calculation of the 6 credit provided pursuant to this section shall be used by such taxpayer 7 to claim any other credit allowed pursuant to this chapter. 8 (b) Definitions. As used in this section, the following terms shall 9 have the following meanings: 10 (1) "Qualified film production company" is a corporation, partnership, 11 limited partnership, or other entity or individual which or who is prin- 12 cipally engaged in the production of a qualified film and controls the 13 qualified film during production. 14 (2) "Qualified independent film production company" is a corporation, 15 partnership, limited partnership, or other entity or individual, that or 16 who (i) is principally engaged in the production of a qualified film 17 with a maximum budget of fifteen million dollars, (ii) controls the 18 qualified film during production, and (iii) either is not a publicly 19 traded entity, or no more than five percent of the beneficial ownership 20 of which is owned, directly or indirectly, by a publicly traded entity. 21 (3) "Qualified film" means a television film, television pilot and/or 22 each episode of a television series, regardless of the medium by means 23 of which the film, pilot or episode is created or conveyed. 24 (4) "Qualified television writers' and directors' fees and salaries" 25 means: (i) salaries or fees paid to a writer or director who receives an 26 on-air credit; (ii) for a non-credited writer, up to seventy-five thou- 27 sand dollars in salaries or fees per series of episodes. Provided that 28 in each case, such writer or director is a minority group member, as 29 defined in subdivision eight of section three hundred ten of the execu- 30 tive law, or a woman, and provided, further, that salaries or fees paid 31 to any writer or director who is a profit participant in the qualified 32 film shall not be eligible. 33 (5) "Writer" means a person who is: (i) engaged by a qualified film 34 production company or a qualified independent film production company to 35 write literary material (including making changes or revisions in liter- 36 ary material), when the company has the right by contract to direct the 37 performance of personal services in writing or preparing such material 38 or in making revisions, modifications or changes therein; or (ii) 39 engaged by the company and who performs services (at the company's 40 direction or with its consent) in writing or preparing such literary 41 material or making revisions, modifications, or changes in such materi- 42 al; and (iii) who reports to work regularly in a writers room located in 43 the state. 44 (6) "Literary material" shall be deemed to include stories, adapta- 45 tions, treatments, original treatments, scenarios, continuities, tele- 46 plays, screenplays, dialogue, scripts, sketches, plots, outlines, narra- 47 tive synopses, routines, narrations, and formats. 48 (7) "Writers room" means a room or physical location where writers 49 employed by a qualified film production company or qualified independent 50 film production company write or revise literary materials utilized in a 51 qualified film. 52 (8) "Director" means an individual employed or retained to direct the 53 production, as the word "direct" is commonly used in the motion picture 54 industry, and who would be classified as a director under the basic 55 agreement in place between the Association of Motion Picture and Tele-S. 5864--A 3 1 vision Producers and the Director's Guild of America and who is a resi- 2 dent of New York. 3 (9) "Profit participant" is an individual who has negotiated for a 4 percentage of profits generated by a qualified film. Profit partic- 5 ipation does not include monies contractually required by collectively 6 bargained agreements for reuse of a qualified film on different plat- 7 forms over time. 8 (c) Cross-references. For application of the credit provided for in 9 this section, see the following provisions of this chapter: 10 (1) article 9-A: section 210-B: subdivision 54. 11 (2) article 22: section 606: subsection (v). 12 (d) Notwithstanding any provision of this chapter, (1) employees and 13 officers of the department of economic development and the department 14 shall be allowed and are directed to share and exchange information 15 regarding the credits applied for, allowed, or claimed pursuant to this 16 section and taxpayers who are applying for credits or who are claiming 17 credits, including information contained in or derived from credit claim 18 forms submitted to the department and applications for certification 19 submitted to the department of economic development, and (2) the commis- 20 sioner and the commissioner of the department of economic development 21 may release the names and addresses of any taxpayer claiming this credit 22 and the amount of the credit earned by the taxpayer. Provided, however, 23 if a taxpayer claims this credit because it is a member of a limited 24 liability company or a partner in a partnership, only the amount of 25 credit earned by the entity and not the amount of credit claimed by the 26 taxpayer may be released. 27 (e) Maximum amount of credits. (1) The aggregate amount of tax credits 28 allowed under this section, subdivision fifty-four of section two 29 hundred ten-B and subsection (v) of section six hundred six of this 30 chapter in any calendar year shall be five million dollars. Such aggre- 31 gate amount of credits shall be allocated by the department of economic 32 development among taxpayers in order of priority based upon the date of 33 filing an application for allocation of television writers' and direc- 34 tors' fees and salaries credit with such department. If the total amount 35 of allocated credits applied for in any particular year exceeds the 36 aggregate amount of tax credits allowed for such year under this 37 section, such excess shall be treated as having been applied for on the 38 first day of the subsequent year. 39 (2) The commissioner of economic development, after consulting with 40 the commissioner, shall promulgate regulations by October thirty-first, 41 two thousand nineteen to establish procedures for the allocation of tax 42 credits as required by subdivision (a) of this section. Such rules and 43 regulations shall include provisions describing the application process, 44 the due dates for such applications, the standards which shall be used 45 to evaluate the applications, the documentation that will be provided to 46 taxpayers to substantiate to the department the amount of tax credits 47 allocated to such taxpayers, and such other provisions as deemed neces- 48 sary and appropriate. Notwithstanding any other provisions to the 49 contrary in the state administrative procedure act, such rules and regu- 50 lations may be adopted on an emergency basis if necessary to meet such 51 October thirty-first, two thousand nineteen deadline. 52 (f) The department of economic development shall submit to the gover- 53 nor, the temporary president of the senate, and the speaker of the 54 assembly, an annual report to be submitted on February first of each 55 year evaluating the effectiveness of the television writers' and direc- 56 tors' fees and salaries tax credit provided by this section in stimulat-S. 5864--A 4 1 ing the growth of diversity in the film industry in the state. Such 2 report shall include, but need not be limited to, the number of quali- 3 fied film production companies and/or qualified independent film 4 production companies which received a television writers' and directors' 5 fees and salaries credit, the credit amounts claimed by each qualified 6 film production company and/or qualified independent film production 7 company, as well as the impact on employment and the economy of the 8 state. Such report shall be based on data available from the application 9 filed with the department of economic development for allocation of 10 television writers' and directors' fees and salaries credits. Notwith- 11 standing any provision of law to the contrary, the information contained 12 in the report shall be public information. The report may also include 13 any recommendations of changes in the calculation or administration of 14 the credit, and any other recommendation of the commissioner of the 15 department of economic development regarding continuing modification, 16 repeal of such act, and such other information regarding the act as the 17 commissioner of the department of economic development may feel useful 18 and appropriate. 19 § 2. Section 210-B of the tax law is amended by adding a new subdivi- 20 sion 54 to read as follows: 21 54. Television writers' and directors' fees and salaries credit. (a) 22 Allowance of credit. A taxpayer who is eligible pursuant to section 23 twenty-four-b of this chapter shall be allowed a credit to be computed 24 as provided in such section against the tax imposed by this article. 25 (b) Application of credit. The credit allowed under this subdivision 26 for any taxable year shall not reduce the tax due for such year to less 27 than the amount prescribed in paragraph (d) of subdivision one of 28 section two hundred ten of this article. Provided, however, that if the 29 amount of the credit allowable under this subdivision for any taxable 30 year reduces the tax to such amount or if the taxpayer otherwise pays 31 tax based on the fixed dollar minimum amount, the excess shall be treat- 32 ed as an overpayment of tax to be credited or refunded in accordance 33 with the provisions of section one thousand eighty-six of this chapter. 34 Provided, further, the provisions of subsection (c) of section one thou- 35 sand eighty-eight of this chapter notwithstanding, no interest shall be 36 paid thereon. 37 § 3. Section 606 of the tax law is amended by adding a new subsection 38 (v) to read as follows: 39 (v) Television writers' and directors' fees and salaries credit. (1) 40 Allowance of credit. A taxpayer who is eligible pursuant to section 41 twenty-four-b of this chapter shall be allowed a credit to be computed 42 as provided in such section against the tax imposed by this article. 43 (2) Application of credit. If the amount of the credit allowable under 44 this subsection for any taxable year exceeds the taxpayer's tax for such 45 year, the excess shall be treated as an overpayment of tax to be credit- 46 ed or refunded as provided in section six hundred eighty-six of this 47 article, provided, however, that no interest shall be paid thereon. 48 § 4. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 49 of the tax law is amended by adding a new clause (xlv) to read as 50 follows: 51 (xlv) Television writers' Amount of credit for the sum of 52 and directors' fees and salaries qualified television writers' and 53 credit under subsection (v) directors' salaries credit 54 under subdivision fifty-four of 55 section two hundred ten-BS. 5864--A 5 1 § 5. Paragraph 4 of subdivision (e) of section 24 of the tax law, as 2 amended by section 2 of part SSS of chapter 59 of the laws of 2019, is 3 amended to read as follows: 4 (4) Additional pool 2 - The aggregate amount of tax credits allowed in 5 subdivision (a) of this section shall be increased by an additional four 6 hundred twenty million dollars in each year starting in two thousand ten 7 through two thousand twenty-four provided however, seven million dollars 8 of the annual allocation shall be available for the empire state film 9 post production credit pursuant to section thirty-one of this article in 10 two thousand thirteen and two thousand fourteen [and], twenty-five 11 million dollars of the annual allocation shall be available for the 12 empire state film post production credit pursuant to section thirty-one 13 of this article in each year starting in two thousand fifteen through 14 two thousand twenty-four and five million dollars of the annual allo- 15 cation shall be made available for the television writers' and direc- 16 tors' fees and salaries credit pursuant to section twenty-four-b of this 17 article in each year starting in two thousand twenty through two thou- 18 sand twenty-four. This amount shall be allocated by the governor's 19 office for motion picture and television development among taxpayers in 20 accordance with subdivision (a) of this section. If the commissioner of 21 economic development determines that the aggregate amount of tax credits 22 available from additional pool 2 for the empire state film production 23 tax credit have been previously allocated, and determines that the pend- 24 ing applications from eligible applicants for the empire state film post 25 production tax credit pursuant to section thirty-one of this article is 26 insufficient to utilize the balance of unallocated empire state film 27 post production tax credits from such pool, the remainder, after such 28 pending applications are considered, shall be made available for allo- 29 cation in the empire state film tax credit pursuant to this section, 30 subdivision twenty of section two hundred ten-B and subsection (gg) of 31 section six hundred six of this chapter. Also, if the commissioner of 32 economic development determines that the aggregate amount of tax credits 33 available from additional pool 2 for the empire state film post 34 production tax credit have been previously allocated, and determines 35 that the pending applications from eligible applicants for the empire 36 state film production tax credit pursuant to this section is insuffi- 37 cient to utilize the balance of unallocated film production tax credits 38 from such pool, then all or part of the remainder, after such pending 39 applications are considered, shall be made available for allocation for 40 the empire state film post production credit pursuant to this section, 41 subdivision thirty-two of section two hundred ten-B and subsection (qq) 42 of section six hundred six of this chapter. The governor's office for 43 motion picture and television development must notify taxpayers of their 44 allocation year and include the allocation year on the certificate of 45 tax credit. Taxpayers eligible to claim a credit must report the allo- 46 cation year directly on their empire state film production credit tax 47 form for each year a credit is claimed and include a copy of the certif- 48 icate with their tax return. In the case of a qualified film that 49 receives funds from additional pool 2, no empire state film production 50 credit shall be claimed before the later of the taxable year the 51 production of the qualified film is complete, or the taxable year imme- 52 diately following the allocation year for which the film has been allo- 53 cated credit by the governor's office for motion picture and television 54 development. 55 § 6. This act shall take effect immediately, and shall apply to taxa- 56 ble years beginning on or after January 1, 2020.