Bill Text: NY S08636 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to the calculation of the brownfield site preparation credit for certain taxpayers.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2018-06-19 - referred to environmental conservation [S08636 Detail]
Download: New_York-2017-S08636-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8636--A IN SENATE May 10, 2018 ___________ Introduced by Sen. MARCELLINO -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conser- vation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the environmental conservation law and the tax law, in relation to the calculation of the brownfield site preparation credit for certain taxpayers The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 3 of section 27-1419 of the environmental 2 conservation law, as amended by section 10 of part BB of chapter 56 of 3 the laws of 2015, is amended to read as follows: 4 3. Upon receipt of the final engineering report, the department shall 5 review such report and the data submitted pursuant to the brownfield 6 site cleanup agreement as well as any other relevant information regard- 7 ing the brownfield site. Upon satisfaction of the commissioner that the 8 remediation requirements set forth in this title have been or will be 9 achieved in accordance with the timeframes, if any, established in the 10 remedial work plan, the commissioner shall issue a written approval of 11 the final engineering report and a certificate of completion. The 12 certificate shall include such information as determined by the depart- 13 ment of taxation and finance, including but not limited to the brown- 14 field site boundaries included in the final engineering report, the date 15 of the brownfield site cleanup agreement, and the applicable percentages 16 available as of the date of the certificate of completion for that site 17 for purposes of section twenty-one of the tax law. For those sites for 18 which the department has issued a notice to the applicant on or after 19 July first, two thousand fifteen or the date of publication in the state 20 register of proposed regulations defining "underutilized" as provided in 21 subdivision thirty of section 27-1405 of this title, whichever shall be 22 later, that its request for participation has been accepted under subdi- 23 vision six of section 27-1407 of this title, the tangible property cred- 24 it component of the brownfield redevelopment tax credit pursuant to 25 paragraph three of subdivision (a) of section twenty-one of the tax law 26 shall only be available to the taxpayer if the criteria for receiving 27 such tax component have been met. For those sites for which the depart- 28 ment has issued a notice to the taxpayer after June twenty-third, two EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15844-03-8S. 8636--A 2 1 thousand eight that its request for participation has been accepted 2 under subdivision six of section 27-1407 of this title, the applicable 3 percentage for the site preparation credit component pursuant to para- 4 graph two of subdivision (a) of section twenty-one of the tax law, and 5 the on-site groundwater remediation credit component pursuant to para- 6 graph four of subdivision (a) of section twenty-one of the tax law shall 7 be based on the level of cleanup achieved pursuant to subdivision four 8 of section 27-1415 of this title and the level of cleanup of soils to 9 contaminant-specific soil cleanup objectives promulgated pursuant to 10 subdivision six of section 27-1415 of this title, up to a maximum of 11 fifty percent, as follows: 12 (a) soil cleanup for unrestricted use, the protection of groundwater 13 or the protection of ecological resources, the applicable percentage 14 shall be fifty percent; 15 (b) soil cleanup for residential use, the applicable percentage shall 16 be forty percent, except for Track 4 which shall be twenty-eight 17 percent; 18 (c) soil cleanup for commercial use, the applicable percentage shall 19 be thirty-three percent, except for Track 4 which shall be twenty-five 20 percent; 21 (d) soil cleanup for industrial use, the applicable percentage shall 22 be twenty-seven percent, except for Track 4 which shall be twenty-two 23 percent. 24 § 2. Paragraph 2 of subdivision (b) of section 21 of the tax law, as 25 amended by section 23 of part BB of chapter 56 of the laws of 2015, is 26 amended to read as follows: 27 (2) (A) Site preparation costs. The term "site preparation costs" 28 shall mean all amounts properly chargeable to a capital account, which 29 are paid or incurred which are necessary to implement a site's investi- 30 gation, remediation, or qualification for a certificate of completion, 31 and shall include costs of: excavation; demolition; activities undertak- 32 en under the oversight of the department of labor or in accordance with 33 standards established by the department of health to remediate and 34 dispose of regulated materials including asbestos, lead or polychlori- 35 nated biphenyls; environmental consulting; engineering; legal costs; 36 transportation, disposal, treatment or containment of contaminated soil; 37 remediation measures taken to address contaminated soil vapor; cover 38 systems consistent with applicable regulations; physical support of 39 excavation; dewatering and other work to facilitate or enable remedi- 40 ation activities; sheeting, shoring, and other engineering controls 41 required to prevent off-site migration of contamination from the quali- 42 fied site or migrating onto the qualified site; [and] the costs of fenc- 43 ing, temporary electric wiring, scaffolding, and security facilities 44 until such time as the certificate of completion has been issued; and 45 the cost of activities set forth in all work plans and in the final 46 engineering report approved under title fourteen of article twenty-seven 47 of the environmental conservation law. Site preparation shall include 48 all costs paid or incurred within sixty months after the last day of the 49 tax year in which the certificate of completion is issued that are 50 necessary for compliance with the certificate of completion or subse- 51 quent modifications thereof, or the remedial program defined in such 52 certificate of completion including but not limited to institutional 53 controls, engineering controls, an approved site management plan, and an 54 environmental easement with respect to the qualified site. Site prepara- 55 tion cost shall [not] include the costs of foundation systems that are 56 part of the site's engineering controls described in approved work plansS. 8636--A 3 1 or a final engineering report under title fourteen of article twenty- 2 seven of the environmental conservation law, but only to the extent that 3 such foundation system costs do not exceed costs for the cover system 4 requirements which shall be defined in the regulations applicable to the 5 qualified site. 6 (B) With respect to any site for which (1) the department of environ- 7 mental conservation has issued a notice before July first, two thousand 8 fifteen that a request for participation with respect to the qualified 9 site has been accepted under subdivision six of section 27-1407 of the 10 environmental conservation law, and (2) the taxpayer's claim for the 11 site preparation credit component determined with respect to the site's 12 qualification for the certificate of completion has not been finally 13 determined: site preparation cost shall include the costs of foundation 14 systems that are part of the site's engineering controls described in 15 approved work plans or a final engineering report under title fourteen 16 of article twenty-seven of the environmental conservation law, which are 17 minimum cover system costs for at least one foot thickness of low perme- 18 able material such as concrete or asphalt at sites where the remedial 19 cover system is being constructed after end point data has confirmed the 20 selected remedial track pursuant to subdivision four of section 27-1415 21 of the environmental conservation law has been met and the remaining 22 soil is structurally supportive; or costs for two feet thickness of low 23 permeable material such as concrete or asphalt for sites where the reme- 24 dial cover system is being constructed after end point data has 25 confirmed the selected remedial track pursuant to subdivision four of 26 section 27-1415 of the environmental conservation law has been met and 27 the remaining soil is structurally unsound soil, such as historic fill 28 or sand. 29 (C) Site preparation costs as defined in this paragraph, and which 30 under the Internal Revenue Code, as amended, may also be properly 31 included in the cost or other basis for federal income tax purposes of 32 qualified tangible property, as described in paragraph three of this 33 subdivision, shall be allowable for purposes of the calculation of the 34 site preparation credit component under paragraph two of subdivision (a) 35 of this section, but any such costs shall be excluded from such quali- 36 fied tangible property basis for purposes of calculating the tangible 37 property credit component under paragraph three of subdivision (a) of 38 this section. 39 § 3. This act shall take effect immediately and shall apply to all 40 sites for which the taxpayer's claim for the site preparation credit 41 component determined with respect to the site's qualification for the 42 certificate of completion has not been finally determined as of such 43 effective date. Any non-final determinations by the commissioner of the 44 department of taxation and finance shall be subject to redetermination 45 to give effect to this act. The taxpayer may seek redetermination by 46 written notice to the commissioner given on or before the date which is 47 one year from such effective date. Such redetermination shall be made by 48 the department of taxation and finance desk audit bureau or other proc- 49 ess established by the commissioner by regulation, and shall be subject 50 to review pursuant to article 40 of the tax law. Effective immediately, 51 the addition, amendment and/or repeal of any rule or regulation neces- 52 sary for the implementation of this act on its effective date are 53 authorized and directed to be made and completed on or before such 54 effective date.
