Florida Senate - 2009                                     SB 312
       
       
       
       By Senator Ring
       
       
       
       
       32-00440-09                                            2009312__
    1                        A bill to be entitled                      
    2         An act relating to the entertainment industry;
    3         amending s. 288.1254, F.S.; renaming the entertainment
    4         industry financial incentive program as the
    5         entertainment industry financial incentive and tax
    6         credit program; revising the program to provide
    7         qualified entertainment entities with a choice of
    8         corporate income tax and sales and use tax credits or
    9         reimbursement from appropriations; revising provisions
   10         relating to definitions, creation and scope,
   11         application procedures, approval process, eligibility,
   12         required documents, qualified and certified
   13         productions, queues, fraud, and annual reports;
   14         providing duties and responsibilities of the Office of
   15         Film and Entertainment, the Office of Tourism, Trade,
   16         and Economic Development, and the Department of
   17         Revenue relating to the tax credits; providing
   18         criteria and limitations for awards of tax credits;
   19         providing a total amount available for tax credits;
   20         providing for uses, allocations, election,
   21         distributions, and carryforward of the tax credits;
   22         providing for use of consolidated returns; providing
   23         for partnerships and noncorporate distributions of tax
   24         credits; providing for succession of tax credits;
   25         providing requirements for transfer of tax credits;
   26         requiring a purchaser of transferred tax credits to
   27         pay a percentage of the amount paid to fund specified
   28         film education grants; providing priority allocation
   29         of financial incentive and tax credits; providing for
   30         withdrawal of tax credit eligibility; authorizing the
   31         Office of Tourism, Trade, and Economic Development to
   32         adopt rules, policies, and procedures; authorizing the
   33         Department of Revenue to adopt rules and conduct
   34         audits; providing for revocation and forfeiture of tax
   35         credits; providing liability for reimbursement of
   36         certain costs and fees associated with a fraudulent
   37         claim; providing for future expiration of tax credit
   38         authorization except for carryforward of tax credits
   39         authorized prior to that date; creating s. 288.1256,
   40         F.S.; establishing the Florida Graduate Film
   41         Investment Program; requiring administration by the
   42         Office of Film and Entertainment; providing for
   43         deposit of funds; requiring that funds be used for
   44         certain family friendly films; amending s. 288.1252,
   45         F.S.; requiring the Florida Film and Entertainment
   46         Advisory Council to advise on films produced under the
   47         Florida Graduate Film Investment Program; amending s.
   48         220.13, F.S.; including a portion of the entertainment
   49         industry tax credit, as provided in s. 288.1254, F.S.,
   50         for the purpose of calculating a taxpayer's net
   51         income; amending s. 220.02, F.S.; including tax
   52         credits enumerated in s. 288.1254, F.S., in the order
   53         of application of credits against certain taxes;
   54         amending s. 213.053, F.S.; authorizing the Department
   55         of Revenue to provide tax credit information to the
   56         Office of Film and Entertainment and the Office of
   57         Tourism, Trade, and Economic Development; amending s.
   58         212.08, F.S.; requiring electronic funds transfer for
   59         the entertainment industry tax credit; providing
   60         procedures; providing rulemaking authority; providing
   61         for severability; providing an effective date.
   62         
   63  Be It Enacted by the Legislature of the State of Florida:
   64         
   65         Section 1. Section 288.1254, Florida Statutes, is amended
   66  to read:
   67         288.1254 Entertainment industry financial incentive and tax
   68  credit program.—
   69         (1) DEFINITIONS.—As used in this section, the term:
   70         (a) “Certified production” means a qualified production
   71  that has financial incentive funds allocated or tax credits
   72  awarded to it by the Office of Tourism, Trade, and Economic
   73  Development based on its estimated qualified expenditures. The
   74  term excludes a production if its first day of principal
   75  photography in this state occurred before the production is
   76  certified by the Office of Tourism, Trade, and Economic
   77  Development, unless the production spans more than 1 fiscal
   78  year, was a certified production on the first day of such
   79  photography, and is required to submit an application for
   80  continuing the same production in the subsequent year.
   81         (b) “Certified production company” means a qualified
   82  production company that has received a financial incentive
   83  allocation or a tax credit award for a certified production.
   84         (c)(b) “Digital media project” means a production of
   85  interactive entertainment which is produced for distribution in
   86  commercial or educational markets, including a video game,
   87  simulation, or animation, or a production intended for Internet
   88  or wireless distribution. The term excludes a production deemed
   89  by the Office of Film and Entertainment to contain obscene
   90  content as defined in s. 847.001(10).
   91         (d) “Financial incentive,” “financial incentive payment,”
   92  or “incentive funding” means a monetary reimbursement for
   93  qualified expenditures based upon legislative appropriation.
   94         (e)(c) “High-impact television series” means a production
   95  created to run multiple production seasons having an estimated
   96  order of at least seven episodes per season and qualified
   97  expenditures of at least $625,000 per episode.
   98         (f)(d) “Off-season certified production” means a
   99  production, other than a digital media project or an animated
  100  production, which films 75 percent or more of its principal
  101  photography days from June 1 through November 30.
  102         (g)(e) “Production” means a theatrical, or direct-to-video,
  103  or motion picture; a made-for-television motion picture; a
  104  commercial; a music video; an industrial or educational film; an
  105  infomercial; a documentary film; a television pilot program,
  106  including; a presentation for a television pilot program; a
  107  television series, including, but not limited to, a drama, a
  108  reality show, a comedy, a soap opera, a telenovela, a game show,
  109  or a miniseries production; or a digital media project by the
  110  entertainment industry. One season of a television series is
  111  considered one production. The term excludes a weather or market
  112  program; a sporting event; a sports show; a gala; a production
  113  that solicits funds; a home shopping program; a political
  114  program; a political documentary; political advertising; a
  115  gambling-related project or production; a concert production; a
  116  pornographic production; or a local, regional, or Internet
  117  distributed-only news show, current-events show, pornographic
  118  production, or current-affairs show. A production may be
  119  produced on or by film, tape, or otherwise by means of a motion
  120  picture camera; electronic camera or device; tape device;
  121  computer; any combination of the foregoing; or any other means,
  122  method, or device now used or later adopted.
  123         (h)(f) “Production expenditures” means the costs of
  124  tangible and intangible property used and services performed
  125  primarily and customarily in the production, including
  126  preproduction and postproduction, excluding costs for
  127  development, marketing, and distribution. Production
  128  expenditures include, but are not limited to:
  129         1. Wages, salaries, or other compensation, including
  130  amounts paid through payroll service companies, for technical
  131  and production crews, directors, producers, and performers.
  132         2. Expenditures for sound stages, backlots, production
  133  editing, digital effects, sound recordings, sets, and set
  134  construction.
  135         3. Expenditures for rental equipment, including, but not
  136  limited to, cameras and grip or electrical equipment.
  137         4. Expenditures for meals, travel, and accommodations.
  138         (i)(g) “Qualified expenditures” means production
  139  expenditures incurred in this state by a qualified production
  140  for:
  141         1. Goods purchased or leased from, or services provided by,
  142  a vendor or supplier in this state which is registered with the
  143  Department of State or the Department of Revenue and doing
  144  business in this state.
  145         2. Payments to residents of this state in the form of
  146  salary, wages, or other compensation up to a maximum of $400,000
  147  per resident for the general production queue and the
  148  independent Florida filmmaker queue and up to a maximum of
  149  $200,000 for the digital media queue.
  150  For a qualified production involving an event, such as an awards
  151  show, the term excludes expenditures solely associated with the
  152  event itself and not directly required by the production. The
  153  term excludes expenditures prior to certification, with the
  154  exception of those incurred for a commercial, a music video, or
  155  the pickup of additional episodes of a television series within
  156  a single season.
  157         (j)(h) “Qualified production” means a production in this
  158  state meeting the requirements of this section and the minimum
  159  qualified expenditures and requirements of its appropriate
  160  queue. The term excludes a production:
  161         1. In which less than 50 percent of the positions that make
  162  up its production cast and below-the-line production crew are
  163  filled by residents of this state, whose residency is
  164  demonstrated by a valid Florida driver's license or other state
  165  issued identification confirming residency, or students enrolled
  166  full-time in a film-and-entertainment-related course of study at
  167  an institution of higher education in this state; or
  168         2. That is deemed by the Office of Film and Entertainment
  169  to contain obscene content as defined in s. 847.001(10).
  170         (k)(i) “Qualified production company” means a corporation,
  171  limited liability company, partnership, or other legal entity
  172  engaged in producing a qualified production.
  173         (2) CREATION AND PURPOSE OF PROGRAM.—The entertainment
  174  industry financial incentive and tax credit program is created
  175  within the Office of Film and Entertainment. The purpose of this
  176  program is to encourage the use of this state as a site for
  177  filming and to develop and sustain the workforce and
  178  infrastructure for film and entertainment production.
  179         (3) APPLICATION PROCEDURE; APPROVAL PROCESS.—
  180         (a) A qualified production company in this state producing
  181  a qualified production may submit a program application to the
  182  Office of Film and Entertainment for the purpose of determining
  183  certification for a financial incentive or for an award of tax
  184  credits authorized by this section. The applicant shall provide
  185  the office with information required to determine whether the
  186  production is a qualified production and to determine the
  187  qualified expenditures and other information necessary for the
  188  office to determine certification.
  189         (b) The Office of Film and Entertainment shall develop an
  190  application form for use in qualifying an applicant as a
  191  qualified production. The form must include, but need not be
  192  limited to, production-related information concerning employment
  193  of residents in this state, a detailed budget of planned
  194  qualified expenditures, and the applicant's signed affirmation
  195  that the information on the form has been verified and is
  196  correct. The Office of Film and Entertainment and local film
  197  commissions shall distribute the form.
  198         (c) The Office of Film and Entertainment shall establish a
  199  process by which an application is accepted and reviewed for
  200  certification for a financial incentive or for tax credit
  201  eligibility and by which the amount of the financial incentive
  202  or tax credit award is determined. The office may request
  203  assistance from a duly appointed local film commission in
  204  determining qualification for the financial incentive allocation
  205  or tax credit award and compliance with this section.
  206         (d) The Office of Film and Entertainment shall review the
  207  application within 10 business days after receipt. Upon its
  208  determination that the application contains all the information
  209  required by this subsection and meets the criteria set out in
  210  this section, the office shall qualify the applicant and
  211  recommend to the Office of Tourism, Trade, and Economic
  212  Development that the applicant for a financial incentive be
  213  certified for a maximum amount of available funds and that the
  214  applicant for a tax credit be certified for the tax credit and
  215  for a maximum tax credit award amount. Within 5 business days
  216  after receipt of the recommendation, the Office of Tourism,
  217  Trade, and Economic Development shall reject the recommendation
  218  or certify the applicant and shall certify the maximum
  219  recommended tax credit award, if any, to the applicant and to
  220  the executive director of the Department of Revenue.
  221         (e) The Office of Film and Entertainment shall deny an
  222  application if it determines that the application is not
  223  complete or the production or the tax credit sought does not
  224  meet the requirements of this section.
  225         (f) The Office of Film and Entertainment shall develop a
  226  process to verify the actual qualified expenditures of a
  227  certified production. The process must require:
  228         1. A certified production to submit, in a timely manner
  229  after production ends and after making all of its qualified
  230  expenditures, data substantiating each qualified expenditure to
  231  an independent certified public accountant licensed in this
  232  state;
  233         2. Such accountant to conduct an audit, at the certified
  234  production's expense, to substantiate each qualified expenditure
  235  and submit the results as a report, along with all
  236  substantiating data, to the Office of Film and Entertainment;
  237  and
  238         3. The Office of Film and Entertainment to review the
  239  accountant's submittal and report to the Office of Tourism,
  240  Trade, and Economic Development the final verified amount of
  241  actual qualified expenditures made by the certified production.
  242         (g)1.4. The Office of Tourism, Trade, and Economic
  243  Development shall determine and approve the incentive amount or
  244  the final amount of the tax credit award for to each certified
  245  applicant. The Office of Tourism, Trade, and Economic
  246  Development shall then notify the executive director of the
  247  Department of Revenue that the certified production has met the
  248  requirements of the financial incentive and tax credit program.
  249         2. The Office of Tourism, Trade, and Economic Development
  250  shall award all tax credits for the previous year by September
  251  30.
  252         (h)(g) The Office of Film and Entertainment shall ensure
  253  that, as a condition of receiving incentive funding or a tax
  254  credit under this section, marketing materials promoting this
  255  state as a tourist destination or film and entertainment
  256  production destination are included, when appropriate, at no
  257  cost to the state, which must, at a minimum, include placement
  258  in the end credits of a “Filmed in Florida” logo with size and
  259  placement commensurate to other logos included in the end
  260  credits or, if no logos are used, the statement “Filmed in
  261  Florida using Florida's Entertainment Industry Financial
  262  Incentive,” or a similar statement approved by the Office of
  263  Film and Entertainment before such placement. The Office of Film
  264  and Entertainment shall develop a “Filmed in Florida” logo and
  265  supply it for the purposes specified in this paragraph.
  266         (4) TAX CREDIT ELIGIBILITY; ELECTION AND DISTRIBUTION;
  267  CARRYFORWARD; CONSOLIDATED RETURNS; PARTNERSHIP AND NONCORPORATE
  268  DISTRIBUTIONS; MERGERS OR ACQUISITIONS.—
  269         (a) Tax credit authorization.—For fiscal years beginning on
  270  or after July 1, 2009, and ending June 30, 2012, a qualified
  271  production is eligible for a tax credit against taxes due under
  272  chapter 220 or taxes collected or accrued under chapter 212.
  273         (b) Total tax credit.—The total amount of tax credits that
  274  may be awarded under this section is $75 million, allocated $25
  275  million each fiscal year the incentive remains in effect. If the
  276  total amount of allocated credits applied for in any fiscal year
  277  exceeds the aggregate amount of tax credits allowed for such
  278  year under this section, such excess shall be treated as having
  279  been applied for on the first day of the next fiscal year in
  280  which credits are available. In any fiscal year, tax credits
  281  that are not awarded or that are forfeited due to the withdrawal
  282  of a certified production or to a production's actual qualified
  283  expenditures being less than the certified amount shall be
  284  available for award in subsequent fiscal years.
  285         (c) Election and distribution of tax credits.—A certified
  286  production company receiving a tax credit award under this
  287  section shall, at the time the credit is awarded by the Office
  288  of Tourism, Trade, and Economic Development after production is
  289  completed and all requirements to receive a credit award have
  290  been met, make an irrevocable election to apply the credit
  291  against taxes due under chapter 220, against taxes collected or
  292  accrued under chapter 212, or against a stated combination of
  293  the two taxes. The election shall be binding upon any
  294  distributee, successor, transferee, or purchaser. The Office of
  295  Tourism, Trade, and Economic Development shall notify the
  296  Department of Revenue of any election made pursuant to this
  297  paragraph within 5 business days of such election.
  298         (d) Tax credit carryforward.—If the certified production
  299  company cannot use the entire tax credit in the taxable year or
  300  reporting period in which the credit is awarded because of
  301  insufficient tax liability on the part of the certified
  302  production company, any excess amount may be carried forward to
  303  a succeeding taxable year or reporting period. A tax credit
  304  applied against taxes imposed under chapter 212 may be carried
  305  forward for a maximum of 5 years following the date of award,
  306  after which period the credit expires and may not be used. A tax
  307  credit applied against taxes imposed under chapter 220 may be
  308  carried forward for a maximum of 5 taxable years following the
  309  qualified production company's taxable year in which the credit
  310  was awarded, after which period the credit expires and may not
  311  be used.
  312         (e) Consolidated returns.—A certified production company
  313  that files a Florida consolidated return as a member of an
  314  affiliated group under s. 220.131(1) may be allowed the tax
  315  credit on a consolidated return basis up to the amount of the
  316  tax imposed upon the consolidated group under chapter 220.
  317         (f) Partnership and noncorporate distributions.—A qualified
  318  production company that is not a corporation as defined in s.
  319  220.03 may elect to distribute tax credits awarded under this
  320  section to its partners or members in proportion to their
  321  respective distributive income or loss in the taxable year in
  322  which the tax credits were awarded.
  323         (g) Mergers or acquisitions.—Tax credits available under
  324  this section to a certified production company may succeed to a
  325  surviving or acquiring entity subject to the same conditions and
  326  limitations as described in this section; however, they may not
  327  be transferred again by the surviving or acquiring entity.
  328         (5) TRANSFER OF TAX CREDITS.—
  329         (a) Authorization.—Upon application to the Office of Film
  330  and Entertainment and approval by the Office of Tourism, Trade,
  331  and Economic Development, a certified production company, or a
  332  partner or member that has received a distribution under
  333  paragraph (4)(f), may elect to transfer, in whole or in part,
  334  any unused tax credit amount granted under this section. An
  335  election to transfer any unused tax credit amount under chapter
  336  212 or chapter 220 must be made no later than 5 years from the
  337  date the credit was awarded, after which period the credit
  338  expires and may not be used. The Office of Tourism, Trade, and
  339  Economic Development shall notify the Department of Revenue of
  340  the election and transfer within 5 business days of such
  341  election and transfer.
  342         (b) Number of transfers permitted.—A certified production
  343  company that has elected to apply a credit amount against taxes
  344  remitted under chapter 212 is permitted a one-time transfer of
  345  unused credits to one transferee. A certified production company
  346  that has elected to apply a credit amount against taxes due
  347  under chapter 220 is permitted a one-time transfer of unused
  348  credits to no more than four transferees, and such transfers
  349  shall occur in the same taxable year.
  350         (c) Minimum consideration.—The transfer or purchase of any
  351  amount of the tax credit shall not be exchanged for less than 75
  352  percent of the credit's value.
  353         (d) Transferee rights and limitations.—The transferee is
  354  subject to the same rights and limitations as the certified
  355  production company awarded the tax credit, except that the
  356  transferee may not sell or otherwise transfer the tax credit.
  357         (e) Written contractual notice.—No later than 3 business
  358  days prior to the certified production company's election to
  359  transfer its awarded tax credit, the Office of Film and
  360  Entertainment shall receive written contractual notice, on a
  361  form approved by the Office of Tourism, Trade, and Economic
  362  Development and signed by both the certified production company
  363  and the transferee, describing the terms of the transfer and the
  364  intention of any purchaser to allocate payment for the film
  365  education program under paragraph (f) at the time the transfer
  366  is made.
  367         (f) Film education fee.
  368         1. A purchaser of any transferred tax credit under this
  369  subsection shall pay an amount equal to 5 percent of the total
  370  amount paid for the tax credit into the Grants and Donations
  371  Trust Fund within the Executive Office of the Governor for use
  372  by the Office of Film and Entertainment within the Office of
  373  Tourism, Trade, and Economic Development for film education
  374  programs. The fees collected under this paragraph shall be
  375  subject to specific appropriation by the Legislature.
  376         a. Fifty percent of the fee collected under this paragraph
  377  shall be made available to the Office of Film and Entertainment
  378  for the purpose described in s. 288.1256.
  379         b. Fifty percent of the fee collected under this paragraph
  380  shall be transferred and provided to film and digital media
  381  programs at Florida institutions of higher education approved by
  382  the Office of Film and Entertainment to be applied as a grant
  383  toward production costs for a student-made production. To be
  384  eligible for this grant, a student-made production may not
  385  contain obscene content as defined in s. 847.001(10). The
  386  recipient of the transfer may choose the approved film or
  387  digital media program to receive these funds.
  388         2. This paragraph shall not apply to the transfer of tax
  389  credits to an affiliated company of the certified production.
  390         (6)(4) PRIORITY FOR INCENTIVE FUNDING AND ALLOCATION OF TAX
  391  CREDITS; WITHDRAWAL OF ELIGIBILITY; QUEUES.—
  392         (a) Priority for incentive funding and tax credit awards.
  393  The priority of a qualified production for incentive funding or
  394  a tax credit award must be determined on a first-come, first
  395  served basis within its appropriate queue. Each qualified
  396  production must be placed into the appropriate queue and is
  397  subject to the requirements of that queue.
  398         (b)(e)Withdrawal of eligibility Schedule.—Each qualified
  399  production or certified production shall continue on a
  400  reasonable schedule, which means beginning principal photography
  401  in this state no more than 45 calendar days before or after the
  402  date provided in the production's program program's application
  403  under subsection (3). The Office of Tourism, Trade, and Economic
  404  Development shall withdraw the eligibility of a qualified
  405  production or a certified production for incentive funding or a
  406  tax credit award if any such production does not continue on a
  407  reasonable schedule. The office shall recertify the tax credits
  408  to the next qualified or certified production or productions in
  409  the respective queue that have not been certified for their full
  410  maximum award and have not started principal photography before
  411  the tax credits become available.
  412         (c)(b)General production queue.—Eighty-five percent of
  413  incentive funding appropriated or of all tax credits awarded
  414  under this section in any state fiscal year must be dedicated to
  415  the general production queue. A production certified under this
  416  queue is eligible for a reimbursement or a tax credit award
  417  equal to 15 percent of its actual qualified expenditures. Within
  418  this queue:
  419         1. A qualified production, excluding commercials, music
  420  videos, and digital media projects, which demonstrates a minimum
  421  of $625,000 in qualified expenditures is eligible for up to a
  422  maximum of $8 million in incentive funding or a tax credit
  423  award. A qualified production spanning multiple state fiscal
  424  years may combine qualified expenditures from such fiscal years
  425  to satisfy the threshold.
  426         2. A qualified production company that produces national,
  427  international, or regional commercials, or music videos may be
  428  eligible for a maximum of $500,000 in incentive funding or a tax
  429  credit award if it demonstrates a minimum of $100,000 in
  430  qualified expenditures per national, international, or regional
  431  commercial or music video and exceeds a combined threshold of
  432  $500,000 after combining actual qualified expenditures from
  433  qualified commercials and music videos during a single state
  434  fiscal year. After a qualified production company that produces
  435  commercials, music videos, or both reaches the threshold of
  436  $500,000, it is eligible to apply for certification for
  437  incentive funding or a tax credit award.
  438         3. An off-season certified production is eligible for an
  439  additional 5-percent incentive funding or tax credit award on
  440  actual qualified expenditures. An off-season certified
  441  production that does not complete 75 percent of principal
  442  photography due to disruption caused by a hurricane or tropical
  443  storm may not be disqualified from eligibility for the
  444  additional 5-percent incentive or tax credit award as a result
  445  of the disruption.
  446         4. Each qualified production shall make a good faith effort
  447  to use existing providers of infrastructure or equipment in this
  448  state, including providers of camera gear, grip and lighting
  449  equipment, vehicle providers, and postproduction services when
  450  available in-state.
  451         5. A qualified high-impact television series shall be
  452  allowed first position in this queue for incentive funding or
  453  tax credits not yet certified.
  454         (d)(c)Independent Florida filmmaker queue.—Five percent of
  455  incentive funding appropriated or tax credits available under
  456  this section in any state fiscal year must be dedicated to the
  457  independent Florida filmmaker queue. A production certified
  458  under this queue is eligible for a financial incentive or tax
  459  credit award reimbursement equal to 15 percent of its actual
  460  qualified expenditures. An independent Florida film that meets
  461  the criteria of this queue and demonstrates a minimum of
  462  $100,000, but not more than $625,000, in total qualified
  463  expenditures is eligible for incentive funding or a tax credit
  464  award. To qualify for this queue, a qualified production must:
  465         1. Be planned as a feature film or documentary of no less
  466  than 70 minutes in length.
  467         2. Provide evidence of 50 percent of the financing for its
  468  total budget in an escrow account or other form dedicated to the
  469  production.
  470         3. Do all major postproduction in this state.
  471         4. Employ Florida workers in at least six of the following
  472  key positions: writer, director, producer, director of
  473  photography, star or one of the lead actors, unit production
  474  manager, editor, or production designer. As used in this
  475  subparagraph, the term “Florida worker” means a person who has
  476  been a resident of this state for at least 1 year before a
  477  production's application under subsection (3) was submitted or a
  478  person who graduated from a film school, college, university, or
  479  community college in this state no more than 5 years before such
  480  submittal or who is enrolled full-time in such a school,
  481  college, or university.
  482         (e)(d)Digital media projects queue.—Ten percent of
  483  incentive funding appropriated or tax credits available under
  484  this section in any state fiscal year shall be dedicated to the
  485  digital media projects queue. A production certified under this
  486  queue is eligible for a financial incentive or tax credit award
  487  reimbursement equal to 10 percent of its actual qualified
  488  expenditures. A qualified production that is a digital media
  489  project that demonstrates a minimum of $300,000 in total
  490  qualified expenditures is eligible for a maximum of $1 million
  491  in incentive funding or a tax credit award. As used in this
  492  paragraph, the term “qualified expenditures” means the wages or
  493  salaries paid to a resident of this state for working on a
  494  single qualified digital media project, up to a maximum of
  495  $200,000 in wages or salaries paid per resident. A qualified
  496  production company producing digital media projects may not
  497  qualify for more than three projects in any 1 fiscal year.
  498  Projects that extend beyond a fiscal year must reapply each
  499  fiscal year in order to be eligible for incentive funding or a
  500  tax credit award for that year.
  501         (f) Family-friendly productions.—A certified production
  502  determined by the Commissioner of Film and Entertainment, with
  503  the advice of the Florida Film and Entertainment Advisory
  504  Council, to be family friendly based on the review of the script
  505  and an interview with the director is eligible for an additional
  506  financial incentive or tax credit award reimbursement equal to 2
  507  percent of its actual qualified expenditures. Family-friendly
  508  productions are those that have cross-generational appeal; would
  509  be considered suitable for viewing by children age 5 and older;
  510  are appropriate in theme, content, and language for a broad
  511  family audience; embody a responsible resolution of issues; and
  512  do not exhibit any act of smoking, sex, nudity, or vulgar or
  513  profane language.
  514         (g) Productions in partnership with postsecondary education
  515  programs.—A certified production determined by the Commissioner
  516  of Film and Entertainment to have partnered with a state public
  517  postsecondary film-and-entertainment-related educational program
  518  in the production is eligible for an additional financial
  519  incentive or tax credit of 10 percent of its actual qualified
  520  expenditures. Productions in partnership with such postsecondary
  521  educational programs are those that provide opportunities for
  522  students through internships or in other capacities that will
  523  assist students in their educational responsibilities and in
  524  preparation for their future positions in the film and
  525  entertainment industry upon graduation.
  526         (7)(5) RULES, POLICIES, AND PROCEDURES.—
  527         (a) The Office of Tourism, Trade, and Economic Development
  528  may adopt rules under ss. 120.536(1) and 120.54 and develop
  529  policies and procedures to administer this section, including,
  530  but not limited to, rules specifying requirements for the
  531  application and approval process; records required for
  532  substantiation for incentive funding and tax credit awards;
  533  procedures for making the election in paragraph (4)(c); the
  534  manner and form of documentation required to claim tax credits
  535  awarded or transferred under this section; the determination of,
  536  qualification for, and certification for tax credits; the
  537  implementation of the Florida Graduate Film Investment Program
  538  in s. 288.1256; and marketing requirements for tax credit
  539  recipients.
  540         (b) The Department of Revenue may adopt rules pursuant to
  541  ss. 120.536(1) and 120.54 prescribing the forms and
  542  documentation needed to substantiate a claim for the tax credit
  543  and the specific procedures and guidelines for claiming the tax
  544  credit awarded or transferred under this section.
  545         (8)AUDIT AUTHORITY; REVOCATION AND FORFEITURE OF TAX
  546  CREDITS; FRAUDULENT CLAIMS.—
  547         (a) Audit authority.—The Department of Revenue may conduct
  548  examinations and audits as provided in s. 213.34 to verify that
  549  tax credits under this section have been received, transferred,
  550  and applied according to the requirements of this section. If
  551  the Department of Revenue determines that tax credits have not
  552  been received, transferred, or applied as required by this
  553  section, it may, in addition to the remedies provided in this
  554  subsection, pursue recovery of such funds pursuant to the laws
  555  and rules governing the assessment of taxes.
  556         (b) Revocation of tax credits.—The Office of Tourism,
  557  Trade, and Economic Development may revoke or modify any written
  558  decision qualifying, certifying, or otherwise granting
  559  eligibility for tax credits under this section if it is
  560  discovered that the tax credit applicant submitted any false
  561  statement, representation, or certification in any application,
  562  record, report, plan, or other document filed in an attempt to
  563  receive tax credits under this section. The Office of Tourism,
  564  Trade, and Economic Development shall immediately notify the
  565  Department of Revenue of any revoked or modified orders
  566  affecting previously certified tax credits.
  567         (c) Forfeiture of tax credits.—A determination by the
  568  Department of Revenue, as a result of an audit or examination by
  569  the Department of Revenue or from information received from the
  570  Office of Film and Entertainment, that an applicant received tax
  571  credits pursuant to this section to which the applicant was not
  572  entitled is grounds for forfeiture of previously claimed and
  573  awarded tax credits. The applicant is responsible for
  574  immediately returning forfeited tax credits to the Department of
  575  Revenue, together with the appropriate interest and penalty,
  576  computed from the date of receipt of such credits, and such
  577  funds shall be paid into the General Revenue Fund of the state.
  578  Tax credits purchased in good faith are not subject to
  579  forfeiture unless the transferee submitted fraudulent
  580  information in the purchase or failed to meet the requirements
  581  in subsection (5). The Department of Revenue shall immediately
  582  notify the Office of Tourism, Trade, and Economic Development of
  583  the forfeiture of previously claimed and awarded tax credits.
  584         (d)(7)Fraudulent claims FRAUD.—Any applicant that submits
  585  information under this section that includes fraudulent
  586  information is liable for reimbursement of the reasonable costs
  587  and fees associated with the review, processing, investigation,
  588  and prosecution of the fraudulent claim. An applicant that
  589  obtains a financial an incentive payment or a tax credit amount
  590  under this section through a claim that is fraudulent is liable
  591  for reimbursement of the financial incentive payment or tax
  592  credit amount plus a penalty in an amount double the financial
  593  incentive payment or the tax credit amount claimed and
  594  reimbursement of reasonable costs. The penalty is in addition to
  595  any criminal penalty to which the applicant is liable for the
  596  same acts. The applicant is also liable for costs and fees
  597  incurred by the state in investigating and prosecuting the
  598  fraudulent claim.
  599         (9)(6) ANNUAL REPORT.—Each October 1, the Office of Film
  600  and Entertainment shall provide an annual report for the
  601  previous fiscal year to the Governor, the President of the
  602  Senate, and the Speaker of the House of Representatives which
  603  outlines the return on investment and economic benefits to the
  604  state on funds expended pursuant to this section.
  605         (10) TAX CREDIT EXPIRATION.—On July 1, 2012, tax credits
  606  under this section may no longer be authorized, except that the
  607  tax credit carryforward provided for in this section shall
  608  continue to be valid for the period specified.
  609         Section 2. Section 288.1256, Florida Statutes, is created
  610  to read:
  611         288.1256 Florida Graduate Film Investment Program.—
  612         (1) The Office of Film and Entertainment shall create and
  613  administer a program, using moneys deposited into the Grants and
  614  Donations Trust Fund of the Executive Office of the Governor
  615  pursuant to s. 288.1254(5)(f), to award either a grant or a loan
  616  guarantee for films that are:
  617         (a) Written, produced, and directed by Florida residents
  618  who are graduates of an Office of Film and Entertainment
  619  approved film program at a Florida institution of higher
  620  education; and
  621         (b) Determined by the Commissioner of Film and
  622  Entertainment, with the advice of the Florida Film and
  623  Entertainment Advisory Council, to be family friendly based on
  624  the review of the script and a personal interview with the
  625  director. Family friendly productions are those that have cross
  626  generational appeal; would be considered suitable for viewing by
  627  children age 5 and older; are appropriate in theme, content, and
  628  language for a broad family audience; embody a responsible
  629  resolution of issues; and do not exhibit any act of smoking,
  630  sex, nudity, or vulgar or profane language.
  631         (2) Films that are deemed by the Office of Film and
  632  Entertainment to contain obscene content as defined in s.
  633  847.001(10) are not eligible for this program.
  634         Section 3. Paragraph (j) is added to subsection (5) of
  635  section 288.1252, Florida Statutes, to read:
  636         288.1252 Florida Film and Entertainment Advisory Council;
  637  creation; purpose; membership; powers and duties.—
  638         (5) POWERS AND DUTIES.—The Florida Film and Entertainment
  639  Advisory Council shall have all the powers necessary or
  640  convenient to carry out and effectuate the purposes and
  641  provisions of this act, including, but not limited to, the power
  642  to:
  643         (j)Advise whether a film produced under s. 288.1256 meets
  644  the criteria delineated in that section.
  645         Section 4. Paragraph (a) of subsection (1) of section
  646  220.13, Florida Statutes, is amended to read:
  647         220.13 “Adjusted federal income” defined.—
  648         (1) The term “adjusted federal income” means an amount
  649  equal to the taxpayer's taxable income as defined in subsection
  650  (2), or such taxable income of more than one taxpayer as
  651  provided in s. 220.131, for the taxable year, adjusted as
  652  follows:
  653         (a) Additions.—There shall be added to such taxable income:
  654         1. The amount of any tax upon or measured by income,
  655  excluding taxes based on gross receipts or revenues, paid or
  656  accrued as a liability to the District of Columbia or any state
  657  of the United States which is deductible from gross income in
  658  the computation of taxable income for the taxable year.
  659         2. The amount of interest which is excluded from taxable
  660  income under s. 103(a) of the Internal Revenue Code or any other
  661  federal law, less the associated expenses disallowed in the
  662  computation of taxable income under s. 265 of the Internal
  663  Revenue Code or any other law, excluding 60 percent of any
  664  amounts included in alternative minimum taxable income, as
  665  defined in s. 55(b)(2) of the Internal Revenue Code, if the
  666  taxpayer pays tax under s. 220.11(3).
  667         3. In the case of a regulated investment company or real
  668  estate investment trust, an amount equal to the excess of the
  669  net long-term capital gain for the taxable year over the amount
  670  of the capital gain dividends attributable to the taxable year.
  671         4. That portion of the wages or salaries paid or incurred
  672  for the taxable year which is equal to the amount of the credit
  673  allowable for the taxable year under s. 220.181. This
  674  subparagraph shall expire on the date specified in s. 290.016
  675  for the expiration of the Florida Enterprise Zone Act.
  676         5. That portion of the ad valorem school taxes paid or
  677  incurred for the taxable year which is equal to the amount of
  678  the credit allowable for the taxable year under s. 220.182. This
  679  subparagraph shall expire on the date specified in s. 290.016
  680  for the expiration of the Florida Enterprise Zone Act.
  681         6. The amount of emergency excise tax paid or accrued as a
  682  liability to this state under chapter 221 which tax is
  683  deductible from gross income in the computation of taxable
  684  income for the taxable year.
  685         7. That portion of assessments to fund a guaranty
  686  association incurred for the taxable year which is equal to the
  687  amount of the credit allowable for the taxable year.
  688         8. In the case of a nonprofit corporation which holds a
  689  pari-mutuel permit and which is exempt from federal income tax
  690  as a farmers' cooperative, an amount equal to the excess of the
  691  gross income attributable to the pari-mutuel operations over the
  692  attributable expenses for the taxable year.
  693         9. The amount taken as a credit for the taxable year under
  694  s. 220.1895.
  695         10. Up to nine percent of the eligible basis of any
  696  designated project which is equal to the credit allowable for
  697  the taxable year under s. 220.185.
  698         11. The amount taken as a credit for the taxable year under
  699  s. 220.187.
  700         12. The amount taken as a credit for the taxable year under
  701  s. 220.192.
  702         13. The amount taken as a credit for the taxable year under
  703  s. 220.193.
  704         14. Any amount in excess of $25,000 allowable as a
  705  deduction for federal income tax purposes under s. 179 of the
  706  Internal Revenue Code of 1986, as amended, for the taxable year.
  707         15. Any amount allowable as a deduction for federal income
  708  tax purposes under s. 167 or s. 168 of the Internal Revenue Code
  709  of 1986, as amended, for the taxable year to the extent that
  710  such amount includes bonus depreciation allowable as deduction
  711  under s. 168(k).
  712         16. The amount taken as a credit for the taxable year under
  713  s. 288.1254.
  714         Section 5. Subsection (8) of section 220.02, Florida
  715  Statutes, is amended to read:
  716         220.02 Legislative intent.—
  717         (8) It is the intent of the Legislature that credits
  718  against either the corporate income tax or the franchise tax be
  719  applied in the following order: those enumerated in s. 631.828,
  720  those enumerated in s. 220.191, those enumerated in s. 220.181,
  721  those enumerated in s. 220.183, those enumerated in s. 220.182,
  722  those enumerated in s. 220.1895, those enumerated in s. 221.02,
  723  those enumerated in s. 220.184, those enumerated in s. 220.186,
  724  those enumerated in s. 220.1845, those enumerated in s. 220.19,
  725  those enumerated in s. 220.185, those enumerated in s. 220.187,
  726  those enumerated in s. 220.192, and those enumerated in s.
  727  220.193, and those enumerated in s. 288.1254. The Department of
  728  Revenue may adopt rules pursuant to ss. 120.536(1) and 120.54
  729  prescribing the forms and documentation needed to substantiate a
  730  claim for the tax credit and the specific procedures and
  731  guidelines for claiming the credit awarded or transferred under
  732  s. 288.1254.
  733         Section 6. Paragraph (z) is added to subsection (8) of
  734  section 213.053, Florida Statutes, to read:
  735         213.053 Confidentiality and information sharing.—
  736         (8) Notwithstanding any other provision of this section,
  737  the department may provide:
  738         (z) Information relative to tax credits taken under s.
  739  288.1254 to the Office of Film and Entertainment and the Office
  740  of Tourism, Trade, and Economic Development.
  741  Disclosure of information under this subsection shall be
  742  pursuant to a written agreement between the executive director
  743  and the agency. Such agencies, governmental or nongovernmental,
  744  shall be bound by the same requirements of confidentiality as
  745  the Department of Revenue. Breach of confidentiality is a
  746  misdemeanor of the first degree, punishable as provided by s.
  747  775.082 or s. 775.083.
  748         Section 7. Paragraph (q) is added to subsection (5) of
  749  section 212.08, Florida Statutes, to read:
  750         212.08 Sales, rental, use, consumption, distribution, and
  751  storage tax; specified exemptions.—The sale at retail, the
  752  rental, the use, the consumption, the distribution, and the
  753  storage to be used or consumed in this state of the following
  754  are hereby specifically exempt from the tax imposed by this
  755  chapter.
  756         (5) EXEMPTIONS; ACCOUNT OF USE.—
  757         (q) Entertainment industry tax credit; requirement for
  758  electronic funds transfer.—
  759         1. For the fiscal years beginning July 1, 2009, and ending
  760  June 30, 2012, a qualified production, as defined in s.
  761  288.1254(1)(j), is eligible for tax credits against its state
  762  sales and use tax liabilities as provided in s. 288.1254.
  763         2. The credit shall be deducted from any sales and use tax
  764  remitted by the dealer to the department by electronic funds
  765  transfer and can only be deducted on a sales and use tax return
  766  initiated through electronic data interchange. The dealer shall
  767  separately state the credit on the electronic return. The net
  768  amount of tax due and payable must be remitted by electronic
  769  funds transfer. If the credit for the qualified expenditures is
  770  larger than the amount owed on the sales and use tax return, the
  771  amount of the credit may be carried forward to a succeeding
  772  reporting period. A dealer may only obtain a credit using the
  773  method described in this subparagraph. A dealer is not
  774  authorized to obtain a credit by applying for a refund.
  775         3. The department may adopt rules pursuant to ss.
  776  120.536(1) and 120.54 to implement and administer this
  777  paragraph, including rules prescribing the forms and
  778  documentation needed to substantiate a claim for the tax credit
  779  and the specific procedures and guidelines for claiming the
  780  credit awarded or transferred under this paragraph.
  781         Section 8. If any provision of this act or the application
  782  thereof to any person or circumstance is held invalid, the
  783  invalidity shall not affect other provisions or applications of
  784  the act which can be given effect without the invalid provision
  785  or application, and to this end the provisions of this act are
  786  declared severable.
  787         Section 9. This act shall take effect July 1, 2009.