STATE OF NEW YORK
________________________________________________________________________
3186
2009-2010 Regular Sessions
IN ASSEMBLY
January 23, 2009
___________
Introduced by M. of A. O'MARA, REILICH, TEDISCO, KOLB, MOLINARO, McKEV-
ITT -- Multi-Sponsored by -- M. of A. BACALLES, BALL, BARCLAY,
BURLING, BUTLER, CONTE, CROUCH, DUPREY, ERRIGO, FINCH, HAWLEY,
P. LOPEZ, MILLER, OAKS, QUINN, RAIA, SALADINO, SAYWARD, SCOZZAFAVA,
SPANO, THIELE, TOWNSEND, WALKER -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the tax law, in relation to a small business electric
energy tax credit
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 210 of the tax law is amended by adding a new
2 subdivision 41 to read as follows:
3 41. Small business electric energy tax credit. (a) A taxpayer that is
4 eligible under the limitations specified in paragraph (b) of this subdi-
5 vision shall be allowed a credit against the tax imposed by this arti-
6 cle. The amount of the credit shall be equal to the product of two
7 cents per kilowatt hour for all business related electricity usage at
8 the taxpayer's primary business location.
9 (b) An eligible taxpayer shall:
10 (i) have no more than twenty full time equivalent employees in New
11 York state, including any related members or affiliates;
12 (ii) not be a sole-proprietorship if such sole-proprietor's primary
13 business location is sited in or part of such sole-proprietor's place of
14 residence;
15 (iii) not be certified pursuant to article eighteen-B of the general
16 municipal law; and
17 (iv) not be receiving any allocation or award pursuant to any program
18 authorized under article six of the economic development law.
19 (c) (i) The term "business related electricity usage" shall refer to
20 electrical power usage used after the effective date of this subdivision
21 to further the economic activity of the taxpayer at the primary business
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01141-03-9
A. 3186 2
1 location that is clearly delimited from any shared electrical power
2 usage cost.
3 (ii) The term "primary business location" shall mean the physical site
4 of the taxpayer within the state of New York where the majority of the
5 taxpayer's economic activity is generated or coordinated through.
6 (iii) The term "related members" shall have the same meaning as set
7 forth in clauses (A) and (B) of subparagraph one of paragraph (o) of
8 subdivision nine of section two hundred eight of this article, as
9 amended by section one of part M of chapter six hundred eighty-six of
10 the laws of two thousand three, and the term "affiliates" shall mean
11 those corporations that are members of the same affiliated group (as
12 defined in section fifteen hundred four of the internal revenue code) as
13 the taxpayer.
14 (d) The eligible usage level shall be the total kilowatt hour usage of
15 the taxpayer for business related electricity usage during the taxpay-
16 er's taxable year as verified through bills or other form of usage chart
17 provided to the taxpayer by the taxpayer's electricity power service
18 provider.
19 (e) The credit allowed under this subdivision for any taxable year
20 shall not reduce the tax due for such year to less than the higher of
21 the amounts prescribed in paragraphs (c) and (d) of subdivision one of
22 this section. However, if the amount of credit allowed under this subdi-
23 vision for any taxable year reduces the tax to such amount, any amount
24 of credit not deductible in such taxable year shall be treated as an
25 overpayment of tax to be credited or refunded in accordance with the
26 provisions of section one thousand eighty-six of this chapter. Provided,
27 however, the provisions of subsection (c) of section one thousand eight-
28 y-eight of this chapter notwithstanding, no interest shall be paid ther-
29 eon.
30 § 2. Section 606 of the tax law is amended by adding a new subsection
31 (qq) to read as follows:
32 (qq) Small business electric energy tax credit. (1) A taxpayer that is
33 eligible under the limitations specified in paragraph two of this
34 subsection shall be allowed a credit against the tax imposed by this
35 article. The amount of the credit shall be equal to the product (or pro
36 rata share of the product in the case of a partnership) of two cents per
37 kilowatt hour for all business related electricity usage at the taxpay-
38 er's primary business location.
39 (2) An eligible taxpayer shall:
40 (i) have no more than twenty full time equivalent employees in New
41 York state, including any related members or affiliates;
42 (ii) shall not be a sole-proprietorship if such sole-proprietor's
43 primary business location is sited in or part of such sole-proprietor's
44 place of residence;
45 (iii) not be certified pursuant to article eighteen-B of the general
46 municipal law; and
47 (iv) not be receiving any allocation or award pursuant to any program
48 authorized under article six of the economic development law.
49 (3) (i) The term "business related electricity usage" shall refer to
50 electrical power usage used after the effective date of this subsection
51 to further the economic activity of the taxpayer at the primary business
52 location that is clearly delimited from any share electrical power usage
53 cost.
54 (ii) The term "primary business location" shall mean the physical site
55 of the taxpayer within the state of New York where the majority of the
56 taxpayer's economic activity is generated or coordinated through.
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1 (iii) The term "related members" shall have the same meaning as set
2 forth in clauses (A) and (B) of subparagraph one of paragraph (o) of
3 subdivision nine of section two hundred eight of this chapter, as
4 amended by section one of part M of chapter six hundred eighty-six of
5 the laws of two thousand three, and the term "affiliates" shall mean
6 those corporations that are members of the same affiliated group (as
7 defined in section fifteen hundred four of the internal revenue code) as
8 the taxpayer.
9 (4) The eligible usage level shall be the total kilowatt hour usage of
10 the taxpayer for business related electricity usage during the taxpay-
11 er's taxable year as verified through bills or other form of usage chart
12 provided to the taxpayer by the taxpayer's electricity power service
13 provider.
14 (5) If the amount of credit allowed under this subsection for any
15 taxable year shall exceed the taxpayer's tax for such year, the excess
16 shall be treated as an overpayment of tax to be credited or refunded in
17 accordance with the provisions of section six hundred eighty-six of this
18 article, provided, however, that no interest shall be paid thereon.
19 § 3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
20 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
21 the laws of 2008, is amended to read as follows:
22 (B) shall be treated as the owner of a new business with respect to
23 such share if the corporation qualifies as a new business pursuant to
24 paragraph (j) of subdivision twelve of section two hundred ten of this
25 chapter.
26 The corporation's credit base under
27 section two hundred ten or section
28 With respect to the following fourteen hundred fifty-six of this
29 credit under this section: chapter is:
30 (i) Investment tax credit Investment credit base
31 under subsection (a) or qualified
32 rehabilitation
33 expenditures under
34 subdivision twelve of
35 section two hundred ten
36 (ii) Empire zone Cost or other basis
37 investment tax credit under subdivision
38 under subsection (j) twelve-B
39 of section two hundred
40 ten
41 (iii) Empire zone Eligible wages under
42 wage tax credit subdivision nineteen of
43 under subsection (k) section two hundred ten
44 or subsection (e) of
45 section fourteen hundred
46 fifty-six
47 (iv) Empire zone Qualified investments
48 capital tax credit and contributions under
49 under subsection (l) subdivision twenty of
50 section two hundred ten
51 or subsection (d) of
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1 section fourteen hundred
2 fifty-six
3 (v) Agricultural property tax Allowable school
4 credit under subsection (n) district property taxes under
5 subdivision twenty-two of
6 section two hundred ten
7 (vi) Credit for employment Qualified first-year wages or
8 of persons with dis- qualified second-year wages
9 abilities under under subdivision
10 subsection (o) twenty-three of section
11 two hundred ten
12 or subsection (f)
13 of section fourteen
14 hundred fifty-six
15 (vii) Employment incentive Applicable investment credit
16 credit under subsec- base under subdivision
17 tion (a-1) twelve-D of section two
18 hundred ten
19 (viii) Empire zone Applicable investment
20 employment credit under sub-
21 incentive credit under division twelve-C
22 subsection (j-1) of section two hundred ten
23 (ix) Alternative fuels credit Cost under subdivision
24 under subsection (p) twenty-four of section two
25 hundred ten
26 (x) Qualified emerging Applicable credit base
27 technology company under subdivision twelve-E
28 employment credit of section two hundred ten
29 under subsection (q)
30 (xi) Qualified emerging Qualified investments under
31 technology company subdivision twelve-F of
32 capital tax credit section two hundred ten
33 under subsection (r)
34 (xii) Credit for purchase of an Cost of an automated
35 automated external defibrillator external defibrillator under
36 under subsection (s) subdivision twenty-five of
37 section two hundred ten
38 or subsection (j) of section
39 fourteen hundred fifty-six
40 (xiii) Low-income housing Credit amount under
41 credit under subsection (x) subdivision thirty
42 of section two hundred ten or
43 subsection (l) of section
44 fourteen hundred fifty-six
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1 (xiv) Credit for transportation Amount of credit under sub-
2 improvement contributions division thirty-two of section
3 under subsection (z) two hundred ten or subsection
4 (n) of section fourteen
5 hundred fifty-six
6 (xv) QEZE credit for real property Amount of credit under
7 taxes under subsection (bb) subdivision twenty-seven of
8 section two hundred ten or
9 subsection (o) of section
10 fourteen hundred fifty-six
11 (xvi) QEZE tax reduction credit Amount of benefit period
12 under subsection (cc) factor, employment increase factor
13 and zone allocation
14 factor (without regard
15 to pro ration) under
16 subdivision twenty-eight of
17 section two hundred ten or
18 subsection (p) of section
19 fourteen hundred fifty-six
20 and amount of tax factor
21 as determined under
22 subdivision (f) of section sixteen
23 (xvii) Green building credit Amount of green building credit
24 under subsection (y) under subdivision thirty-one
25 of section two hundred ten
26 or subsection (m) of section
27 fourteen hundred fifty-six
28 (xviii) Credit for long-term Qualified costs under
29 care insurance premiums subdivision twenty-five-a of
30 under subsection (aa) section two hundred ten
31 or subsection (k) of section
32 fourteen hundred fifty-six
33 (xix) Brownfield redevelopment Amount of credit
34 credit under subsection under subdivision
35 (dd) thirty-three of section
36 two hundred ten
37 or subsection (q) of
38 section fourteen hundred
39 fifty-six
40 (xx) Remediated brownfield Amount of credit under
41 credit for real property subdivision thirty-four
42 taxes for qualified of section two hundred
43 sites under subsection ten or subsection (r) of
44 (ee) section fourteen hundred
45 fifty-six
46 (xxi) Environmental Amount of credit under
47 remediation subdivision thirty-five of
48 insurance credit under section two hundred
49 subsection (ff) ten or subsection
A. 3186 6
1 (s) of section
2 fourteen hundred
3 fifty-six
4 (xxii) Empire state film production Amount of credit for qualified
5 credit under subsection (gg) production costs in production
6 of a qualified film under
7 subdivision thirty-six of
8 section two hundred ten
9 (xxiii) Qualified emerging Qualifying expenditures and
10 technology company facilities, development activities under
11 operations and training credit subdivision twelve-G of section
12 under subsection (nn) two hundred ten
13 (xxiv) Security training tax Amount of credit
14 credit under under subdivision thirty-seven
15 subsection (ii) of section two hundred ten or
16 under subsection (t) of
17 section fourteen hundred fifty-six
18 (xxv) Credit for qualified fuel Amount of credit under
19 cell electric generating equipment subdivision thirty-seven
20 expenditures under subsection (g-2) of section two hundred ten
21 or subsection (t) of
22 section fourteen hundred
23 fifty-six
24 (xxvi) Empire state commercial Amount of credit for qualified
25 production credit under production costs in production
26 subsection (jj) of a qualified commercial under
27 subdivision thirty-eight of section
28 two hundred ten
29 (xxvii) Biofuel production Amount of credit
30 tax credit under under subdivision
31 subsection (jj) thirty-eight of
32 section two hundred ten
33 (xxviii) Clean heating fuel credit Amount of credit
34 under subsection (mm) under subdivision thirty-nine of
35 section two hundred ten
36 (xxix) Credit for rehabilitation Amount of credit under
37 of historic properties subdivision forty of
38 under subsection (oo) subsection two hundred ten
39 (xxx) Credit for companies who Amount of credit under
40 provide transportation subdivision forty of
41 to individuals section two hundred ten
42 with disabilities
43 under subsection (oo)
44 (xxxi) Small business electricityQualifying electricity usage
45 energy credit under subsectioncredit under subdivision forty-one
46 (qq)of section two hundred ten
A. 3186 7
1 § 4. This act shall take effect immediately and shall apply to taxable
2 years beginning on or after January 1, 2009; provided, however that the
3 empire state film production credit under subsection (gg), the empire
4 state commercial production credit under subsection (jj) and the credit
5 for companies who provide transportation to individuals with disabili-
6 ties under subsection (oo) of section 606 of the tax law contained in
7 section three of this act shall expire on the same date as provided in
8 section 9 of part P of chapter 60 of the laws of 2004, as amended,
9 section 10 of part V of chapter 62 of the laws of 2006, and section 5 of
10 chapter 522 of the laws of 2006, as amended, respectively.
