STATE OF NEW YORK
________________________________________________________________________
1830
2015-2016 Regular Sessions
IN ASSEMBLY
January 13, 2015
___________
Introduced by M. of A. GUNTHER -- read once and referred to the Commit-
tee on Ways and Means
AN ACT to amend the tax law, in relation to biofuel production credit
for production of cellulosic ethanol
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 28 of the tax law, as added by section 1 of part X
2 of chapter 62 of the laws of 2006, subdivision (a) as amended by section
3 1 of part K of chapter 59 of the laws of 2012, subdivision (d) as
4 amended by section 46 of part A of chapter 59 of the laws of 2014, is
5 renumbered section 38-a and amended to read as follows:
6 § 38-a. Biofuel production credit. (a) General. A taxpayer subject to
7 tax under article nine, nine-A or twenty-two of this chapter shall be
8 allowed a credit against such tax pursuant to the provisions referenced
9 in subdivision (d) of this section. The credit (or pro rata share of
10 earned credit in the case of a partnership) for each gallon of biofuel
11 produced at a biofuel plant on or after January first, two thousand six
12 shall equal fifteen cents per gallon or twenty-five cents per gallon for
13 production of cellulosic ethanol after the production of the first forty
14 thousand gallons per year presented to market. The credit under this
15 section shall be capped at two and one-half million dollars per taxpayer
16 per taxable year for up to no more than four consecutive taxable years
17 per biofuel plant. If the taxpayer is a partner in a partnership or
18 shareholder of a New York S corporation, then the cap imposed by the
19 preceding sentence shall be applied at the entity level, so that the
20 aggregate credit allowed to all the partners or shareholders of each
21 such entity in the taxable year does not exceed two and one-half million
22 dollars. The tax credit allowed pursuant to this section shall apply to
23 taxable years beginning before January first, two thousand [twenty]
24 twenty-one.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04527-01-5
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1 (b) Definitions. For the purpose of this section, the following terms
2 shall have the following meanings:
3 (1) "Biofuel" means a fuel which includes biodiesel and ethanol. The
4 term "biodiesel" shall mean a fuel comprised exclusively of mono-alkyl
5 esters of long chain fatty acids derived from vegetable oils or animal
6 fats, designated B100, which meets the specifications of American Socie-
7 ty of Testing and Materials designation D 6751-02. The term "ethanol"
8 shall mean ethyl alcohol manufactured in the United States and its
9 territories and sold (i) for fuel use and which has been rendered unfit
10 for beverage use in a manner and which is produced at a facility
11 approved by the federal bureau of alcohol, tobacco and firearms for the
12 production of ethanol for fuel, or (ii) as denatured ethanol used by
13 blenders and refiners which has been rendered unfit for beverage use.
14 The term "biofuel" may also include any other standard approved by the
15 New York state energy and research development authority.
16 (2) "Cellulosic ethanol" means the production of ethanol from ligno-
17 cellulosic biomass feedstocks not used for food production that are
18 altered through activities referenced in subparagraph five of paragraph
19 (b) of subdivision one of section thirty-one hundred two-e of the public
20 authorities law. Such lignocellulosic biomass feedstocks may include,
21 but are not necessarily limited to, switchgrasses or willows, agricul-
22 tural and forestry residues, clean wood and wood wastes, pulp and paper
23 mill wastes or extracts, and non-recyclable paper. Any question as to
24 whether any feedstock qualifies under this paragraph shall be determined
25 by the president of the New York state energy and research development
26 authority in consultation with the commissioner of environmental conser-
27 vation and the commissioner of agriculture and markets.
28 (3) "Biofuel plant" means a commercial facility located in New York
29 state at which one or more biofuels are produced. For the purposes of
30 this section, any commercial facility where cellulosic ethanol is
31 produced shall be considered a separate biofuel plant.
32 (c) Reporting requirements. A taxpayer wishing to claim a credit under
33 this section shall annually certify to the commissioner (i) that biofuel
34 produced at the eligible biofuel plant meets all existing standards for
35 biofuel and (ii) the amount of biofuel produced at the eligible biofuel
36 plant during a taxable year.
37 (d) Cross-references. For application of the credit provided for in
38 this section, see the following provisions of this chapter:
39 (1) Article 9: Section 187-c.
40 (2) Article 9-A: Section 210-B, subdivision 24.
41 (3) Article 22: Section 606, subsections (i) and (jj).
42 § 2. Section 187-c of the tax law, as amended by section 2 of part K
43 of chapter 59 of the laws of 2012, is amended to read as follows:
44 § 187-c. Biofuel production credit. A taxpayer shall be allowed a
45 credit to be computed as provided in section [twenty-eight] thirty-
46 eight-a of this chapter, [as added by part X of chapter sixty-two of the
47 laws of two thousand six,] against the tax imposed by this article.
48 Provided, however, that the amount of such credit allowed against the
49 tax imposed by section one hundred eighty-four of this article shall be
50 the excess of the amount of such credit over the amount of any credit
51 allowed by this section against the tax imposed by section one hundred
52 eighty-three of this article. In no event shall the credit under this
53 section be allowed in an amount which will reduce the tax payable to
54 less than the applicable minimum tax fixed by section one hundred eight-
55 y-three or one hundred eighty-five of this article. If, however, the
56 amount of the credit allowed under this section for any taxable year
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1 reduces the tax to such amount, the excess shall be treated as an over-
2 payment of tax to be credited or refunded in accordance with the
3 provisions of section six hundred eighty-six of this chapter. Provided,
4 however, the provisions of subsection (c) of section one thousand eight-
5 y-eight of this chapter notwithstanding, no interest shall be paid ther-
6 eon. The tax credit allowed pursuant to this section shall apply to
7 taxable years beginning before January first, two thousand [twenty]
8 twenty-one.
9 § 3. Section 187-c of the tax law, as amended by section 15 of part S
10 of chapter 59 of the laws of 2014, is amended to read as follows:
11 § 187-c. Biofuel production credit. A taxpayer shall be allowed a
12 credit to be computed as provided in section [twenty-eight] thirty-
13 eight-a of this chapter, [as added by part X of chapter sixty-two of the
14 laws of two thousand six,] against the tax imposed by this article.
15 Provided, however, that the amount of such credit allowed against the
16 tax imposed by section one hundred eighty-four of this article shall be
17 the excess of the amount of such credit over the amount of any credit
18 allowed by this section against the tax imposed by section one hundred
19 eighty-three of this article. In no event shall the credit under this
20 section be allowed in an amount which will reduce the tax payable to
21 less than the applicable minimum tax fixed by section one hundred eight-
22 y-three of this article. If, however, the amount of the credit allowed
23 under this section for any taxable year reduces the tax to such amount,
24 the excess shall be treated as an overpayment of tax to be credited or
25 refunded in accordance with the provisions of section six hundred eight-
26 y-six of this chapter. Provided, however, the provisions of subsection
27 (c) of section one thousand eighty-eight of this chapter notwithstand-
28 ing, no interest shall be paid thereon. The tax credit allowed pursuant
29 to this section shall apply to taxable years beginning before January
30 first, two thousand [twenty] twenty-one.
31 § 4. Subdivision 24 of section 210-B of the tax law, as added by
32 section 17 of part A of chapter 59 of the laws of 2014, is amended to
33 read as follows:
34 24. Biofuel production credit. (a) General. A taxpayer shall be
35 allowed a credit, to be computed as provided in section [twenty-eight]
36 thirty-eight-a of this chapter [added as part X of chapter sixty-two of
37 the laws of two thousand six], against the tax imposed by this article.
38 The credit allowed under this subdivision for any taxable year shall not
39 reduce the tax due for such year to less than the fixed dollar minimum
40 amount prescribed in paragraph (d) of subdivision one of section two
41 hundred ten of this article. However, if the amount of credit allowed
42 under this subdivision for any taxable year reduces the tax to such
43 amount or if the taxpayer otherwise pays tax based on the fixed dollar
44 minimum amount, any amount of credit thus not deductible in such taxable
45 year shall be treated as an overpayment of tax to be credited or
46 refunded in accordance with the provisions of section one thousand
47 eighty-six of this chapter. Provided, however, the provisions of
48 subsection (c) of section one thousand eighty-eight of this chapter
49 notwithstanding, no interest shall be paid thereon. The tax credit
50 allowed pursuant to this section shall apply to taxable years beginning
51 before January first, two thousand [twenty] twenty-one.
52 § 5. Subsection (jj) of section 606 of the tax law, as amended by
53 section 4 of part K of chapter 59 of the laws of 2012, is amended to
54 read as follows:
55 (jj) Biofuel production credit. A taxpayer shall be allowed a credit
56 to be computed as provided in section [twenty-eight] thirty-eight-a of
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1 this chapter, [as added by part X of chapter sixty-two of the laws of
2 two thousand six,] against the tax imposed by this article. If the
3 amount of the credit allowed under this subsection for any taxable year
4 shall exceed the taxpayer's tax for such year, the excess shall be
5 treated as an overpayment of tax to be credited or refunded in accord-
6 ance with the provisions of section six hundred eighty-six of this arti-
7 cle, provided, however, that no interest shall be paid thereon. The tax
8 credit allowed pursuant to this section shall apply to taxable years
9 beginning before January first, two thousand [twenty] twenty-one.
10 § 6. This act shall take effect immediately; provided, however, that
11 the amendments made to section 187-c of the tax law made by section
12 three of this act shall take effect on the same date and in the same
13 manner as section 15 of part S of chapter 59 of the laws of 2014, takes
14 effect.
