Add S28-a, amd SS210 & 606, Tax L; add S91-h, St Fin L
Establishes an Empire state film post production tax credit against personal and corporate franchise taxes for a portion of qualified post production costs attributable to the use of tangible property or services within the state; directs the commissioner of taxation and finance to withhold 7% of such credit and to deposit the revenue therefrom into the New York state post production internship education and development program fund; monies from such fund shall be disbursed for the payment of tuition for post production interns.
STATE OF NEW YORK
________________________________________________________________________
5559
2011-2012 Regular Sessions
IN ASSEMBLY
February 23, 2011
___________
Introduced by M. of A. ENGLEBRIGHT, O'DONNELL, ZEBROWSKI, HOOPER, BING,
JAFFEE, PAULIN, COLTON, TITONE, KELLNER, ROSENTHAL, CAHILL, MAGNAREL-
LI, LENTOL, PEOPLES-STOKES, GALEF, MARKEY, DenDEKKER -- Multi-Spon-
sored by -- M. of A. ABBATE, BOYLAND, GLICK, LANCMAN, LUPARDO, McENE-
NY, MILLMAN, PHEFFER, SWEENEY -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the tax law, in relation to an empire state film post
production tax credit and to amend the state finance law, in relation
to establishing the New York state post production internship educa-
tion and development program fund; and providing for the repeal of
such provisions upon expiration thereof
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 28-a to read
2 as follows:
3 § 28-a. Empire state film post production credit. (a) Allowance of
4 credit. (1) A taxpayer which is a film production company or a qualified
5 film production company, and which is subject to tax under article
6 nine-A or twenty-two of this chapter, shall be allowed a credit against
7 such tax, pursuant to the provisions referenced in subdivision (c) of
8 this section to be computed as provided in this subdivision.
9 (2) (i) The amount of the credit shall be the product (or pro rata
10 share of the product, in the case of a member of a partnership) of ten
11 percent and the qualified post production costs paid in the production
12 of a qualified film at a qualified post production facility.
13 (ii) If a taxpayer is eligible for the film production credit pursuant
14 to section twenty-four of this article, and the post production costs
15 otherwise meet the requirements of subparagraph (i) of this paragraph,
16 the amount of the post production credit allowed such taxpayer shall be
17 enhanced by an additional five percent with respect to such qualified
18 post production costs.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08835-01-1
A. 5559 2
1 (3) A taxpayer shall not be eligible for the credit established by
2 this section unless the qualified post production costs at a qualified
3 post production facility meet or exceed seventy-five percent of the
4 total post production costs paid or incurred in the post production of
5 the qualified film at any post production facility. The credit shall be
6 allowed for the taxable year in which the production of such qualified
7 film is completed.
8 (4) No qualified post production costs used by a taxpayer either as
9 the basis for the allowance of the credit provided for under this
10 section or used in the calculation of the credit provided for under this
11 section shall be used by such taxpayer to claim any other credit allowed
12 pursuant to this chapter.
13 (b) Definitions. As used in this section the following terms shall
14 have the following meanings:
15 (1) "Qualified film production company" and "qualified film" shall
16 have the same meaning as are ascribed to such terms by section twenty-
17 four of this article.
18 (2) "Film production company" is a corporation, partnership, limited
19 partnership, or other entity or individual which or who is principally
20 engaged in the production of a qualified film and controls the qualified
21 film during production.
22 (3) "Post production costs" means production of original content for a
23 qualified film employing traditional, emerging and new workflow tech-
24 niques used in post-production for picture, sound and music editorial,
25 rerecording and mixing, visual effects, graphic design, original scor-
26 ing, animation, and musical composition; but shall not include the
27 editing of previously produced content for a qualified film.
28 (4) "Post production facility" means a building and/or complex of
29 buildings and their improvements on which film are intended to be post
30 produced.
31 (5) "Qualified post production facility" means a post production
32 facility located in the state, engaged in finishing a qualified film.
33 (c) Withholding of portion of credit. Notwithstanding any other
34 provision of law to the contrary, the amount shall withhold from any
35 credit allowed a taxpayer pursuant to this section, an amount equal to
36 seven percent of such credit claimed by the taxpayer. All monies with-
37 held pursuant to this subdivision shall be credited and paid into the
38 New York state post production internship education and development
39 program fund established by section ninety-one-h of the state finance
40 law.
41 (d) Limitation on credit. (1) The aggregate amount of tax credits
42 authorized pursuant to this section shall not exceed seven million
43 dollars in each of two thousand eleven, two thousand twelve and two
44 thousand thirteen taxable years.
45 (2) The aggregate amount of tax credits each taxable year shall be
46 allocated by the governor's office for motion picture and television
47 development among taxpayers in order of priority based upon the date of
48 filing an application with such office for allocation of a film post
49 production credit. If the total amount of allocated credits applied for
50 during any taxable year exceeds the aggregate amount thereof authorized
51 by paragraph one of this subdivision, such excess shall be deemed to
52 have been applied for on the first day of the immediately subsequent
53 taxable year.
54 (e) Cross-references. For application of the credit provided for in
55 this section, see the following provisions of this chapter:
56 (1) article 9-A: section 210: subdivision 43.
A. 5559 3
1 (2) article 22: section 606: subsection (ss).
2 § 2. Section 210 of the tax law is amended by adding a new subdivision
3 43 to read as follows:
4 43. Empire state film post production credit. (a) Allowance of credit.
5 A taxpayer who is eligible pursuant to section twenty-eight-a of this
6 chapter shall be allowed a credit to be computed as provided in such
7 section twenty-eight-a against the tax imposed by this article.
8 (b) Application of credit. The credit allowed under this subdivision
9 for any taxable year shall not reduce the tax due for such year to less
10 than the amount prescribed in paragraph (d) of subdivision one of this
11 section. Provided, however, that if the amount of the credit allowable
12 under this subdivision for any taxable year reduces the tax to such
13 amount, fifty percent of the excess shall be treated as an overpayment
14 of tax to be credited or refunded in accordance with the provisions of
15 section one thousand eighty-six of this chapter. Provided, however, the
16 provisions of subsection (c) of section one thousand eighty-eight of
17 this chapter notwithstanding, no interest shall be paid thereon. The
18 balance of such credit not credited or refunded in such taxable year may
19 be a carry over to the immediately succeeding taxable year and may be
20 deducted from the taxpayer's tax for such year. The excess, if any, of
21 the amount of the credit over the tax for such succeeding year shall be
22 treated as an overpayment of tax to be credited or refunded in accord-
23 ance with the provisions of section one thousand eighty-six of this
24 chapter. Provided, however, the provisions of subsection (c) of section
25 one thousand eighty-eight of this chapter notwithstanding, no interest
26 shall be paid thereon.
27 § 3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
28 of the tax law is amended by adding a new clause (xxxii) to read as
29 follows:
30 (xxxii) Empire state filmAmount of credit for
31 post productionqualified post production
32 credit undercosts of a qualified film
33 subsection (ss)under subdivision forty-three of
34 section two hundred ten
35 § 4. Section 606 of the tax law is amended by adding a new subsection
36 (ss) to read as follows:
37 (ss) Empire state film post production credit. (1) Allowance of cred-
38 it. A taxpayer who is eligible pursuant to section twenty-eight-a of
39 this chapter shall be allowed a credit to be computed as provided in
40 such section twenty-eight-a against the tax imposed by this article.
41 (2) Application of credit. If the amount of the credit allowable under
42 this subsection for any taxable year exceeds the taxpayer's tax for such
43 year, fifty percent of the excess shall be treated as an overpayment of
44 tax to be credited or refunded in accordance with the provisions of
45 section one thousand eighty-six of this chapter. Provided, however, the
46 provisions of subsection (c) of section one thousand eighty-eight of
47 this chapter notwithstanding, no interest shall be paid thereon. The
48 balance of such credit not credited or refunded in such taxable year may
49 be carried over to the immediately succeeding taxable year and may be
50 deducted from the taxpayer's tax for such year. The excess, if any, of
51 the amount of the credit over the tax for such succeeding year shall be
52 treated as an overpayment of tax to be credited or refunded in accord-
53 ance with the provisions of section one thousand eighty-six of this
54 chapter. Provided, however, the provisions of subsection (c) of section
A. 5559 4
1 one thousand eighty-eight of this chapter notwithstanding, no interest
2 shall be paid thereon.
3 § 5. The state finance law is amended by adding a new section 91-h to
4 read as follows:
5 § 91-h. New York state post production internship education and devel-
6 opment program fund. 1. There is hereby established, in the joint custo-
7 dy of the commissioner of taxation and finance and the comptroller, a
8 special fund to be known as the "New York state post production intern-
9 ship education and development program fund".
10 2. Such fund shall consist of all revenue credited thereto pursuant to
11 subdivision (c) of section twenty-eight-a of the tax law, and all other
12 moneys appropriated, credited or transferred thereto from any other fund
13 or source pursuant to law. Nothing in this section shall be deemed to
14 prevent the state from receiving grants, gifts or bequests for the
15 purposes of the fund as defined in this section and depositing them into
16 the fund according to law.
17 3. The monies in the fund, upon appropriation shall only be expended
18 for the payment of tuition on behalf of qualified interns participating
19 in post production internships with post production companies. Monies
20 shall be payable from the fund for such purpose on the audit and warrant
21 of the comptroller on vouchers approved and certified by the commission-
22 er of education.
23 4. For the purposes for this section, "post production internship"
24 means an internship in a qualified post production facility, as defined
25 in section twenty-eight-a of the tax law that has been approved by the
26 chancellor of the state university of New York, the board of trustees of
27 the city university of New York, or the chief administrative officer of
28 any private college or university for the purpose of providing
29 production experience and skill development. No such internship shall be
30 eligible for tuition cost reimbursement unless it grants academic credit
31 to participating students.
32 § 6. This act shall take effect immediately and shall apply to taxable
33 years beginning on or after January 1, 2012.
