Florida Senate - 2008 CS for SB 850
By the Committee on Commerce; and Senator Fasano
577-05237A-08 2008850c1
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A bill to be entitled
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An act relating to corporate income tax credits; creating
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part XIII of ch. 288, F.S., consisting of s. 288.991,
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F.S.; creating the New Markets Tax Credit Program;
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providing definitions; authorizing the Office of Tourism,
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Trade, and Economic Development to develop a list of
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industries, in consultation with Enterprise Florida, Inc.,
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in which equity investments can be made; qualify certain
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equity investments as eligible for tax credits; providing
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an application process; requiring an application fee;
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providing for the certification of an investment;
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providing for notice to the applicant and the Department
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of Revenue; providing for a limit on the amount of
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investments the office may certify; requiring the
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certified equity investments to be issued within a certain
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timeframe; providing that a taxpayer who holds a qualified
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equity investment in a qualified low-income business on
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the credit allowance date of the investment is entitled to
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a nonrefundable, nontransferable tax credit for the
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taxable year in which the credit allowance date falls;
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limiting the amount of the tax credit that may be redeemed
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in a fiscal year; authorizing a taxpayer to carry over any
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amount of the tax credit that the taxpayer is prohibited
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from redeeming in a taxable year to a subsequent taxable
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year; providing for the redemption of tax credits earned
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by certain business entities and by the partners, members,
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or shareholders of those entities; specifying how tax
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credits may be claimed by insurance companies; providing
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how the amount of tax credits available to the taxpayer
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will be calculated; requiring the calculations to be
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certified and accompanied by audited financial statements
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and notarized affidavits; requiring the office to
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disqualify community development entities under certain
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circumstances; requiring the department to recapture tax
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credits from certain taxpayers under certain
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circumstances; requiring notice; requiring community
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development entities that have certified investments to
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report certain information to the office; requiring the
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office to prepare annual reports on low-income community
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investments made in this state; authorizing the department
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to conduct examinations to verify receipt and application
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of tax credits; authorizing the department to pursue
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recovery of certain funds; authorizing the office to
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revoke or modify certain decisions relating to eligibility
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for tax credits under certain circumstances; providing for
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applicant liability for costs and fees relating to
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investigations of fraudulent claims; providing for
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taxpayer liability for reimbursement of fraudulently
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claimed tax credits; providing a penalty; authorizing the
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office and the department to adopt rules; providing for
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future repeal of the tax credit program; amending s.
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220.02, F.S.; revising legislative intent with respect to
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the order of tax credits to include the New Markets Tax
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Credit; amending s. 220.13, F.S.; revising a definition;
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amending s. 213.053, F.S.; authorizing the Department of
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Revenue to share confidential taxpayer information with
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the Office of Tourism, Trade, and Economic Development;
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providing for application of the tax credit; providing an
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effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Part XIII of chapter 288, Florida Statutes,
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consisting of section 288.991, is created to read:
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288.991 New Markets Tax Credit.--
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(1) PURPOSE.--The New Markets Tax Credit program is
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established to encourage capital investment in rural and urban
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low-income communities by allowing state taxpayers to receive
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future credit against specified state taxes by investing in
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community development entities that make quality equity
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investments in qualified active low-income community businesses
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that create jobs by leveraging credit available from the federal
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New Markets Tax Credit Program.
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(2) DEFINITIONS.--As used in this section, the term:
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(a) "Adjusted purchase price" means the product of the
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amount paid at issuance for a qualified equity investment and a
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fraction of which:
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1. The numerator is the dollar amount of qualified
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low-income community investments made in this state from the
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issuance of a qualified equity investment held by a qualified
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community development entity on the applicable credit allowance
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date; and
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2. The denominator is the total dollar amount of qualified
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low-income community investments made from the issuance of a
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qualified equity investment held by a qualified community
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development entity on the applicable credit allowance date.
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(b) "Credit allowance date" means:
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1. The first anniversary of the date that a qualified
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equity investment is initially made; and
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2. Each of the six subsequent anniversaries of that date.
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(c) "Department" means the Department of Revenue.
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(d) "Long-term debt security" means a debt instrument
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issued by a qualified community development entity, at par value
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or a premium, having an original maturity date of at least 7
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years from the date of issuance, with no acceleration for
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repayment, amortization, or prepayment features before its
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original maturity date and having no distribution, payment, or
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interest features related to the profitability of the qualified
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community development entity or the performance of the entity's
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investment portfolio. This paragraph does not limit the holder's
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ability to accelerate payments on the debt instrument in
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situations where the qualified community development entity has
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defaulted on covenants designed to ensure compliance with this
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section or s. 45D of the Internal Revenue Code of 1986, as
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amended.
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(e) "Low-income community" means any population census
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tract within the state where:
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1. The federal individual poverty rate is at least 20
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percent; or
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2. In the case of a tract that is:
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a. Not located within a metropolitan area, the median
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family income does not exceed 80 percent of the statewide median
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family income; or
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b. Located within a metropolitan area, the median family
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income does not exceed 80 percent of the greater of the statewide
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median family income or the metropolitan area median income.
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(f) "Office" means the Office of Tourism, Trade, and
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Economic Development.
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(g) "Qualified active low-income community business" has
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the same meaning as in s. 45D of the Internal Revenue Code of
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1986, as amended, but excludes any trade or business:
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1. That derives or projects to derive 15 percent or more of
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its annual revenue from the rental or sale of real estate;
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2. That engages predominantly in the development or holding
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of intangibles for sale or license;
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3. That operates a private or commercial golf course,
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country club, massage parlor, hot tub facility, suntan facility,
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racetrack, or other facility used for gambling, or a store the
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principal business of which is the sale of alcoholic beverages
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for consumption off premises; and
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4. The principal activity of which is farming if the sum of
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the aggregate unadjusted bases or the fair market value of the
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assets owned by the business which are used in such trade or
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business, whichever is greater, and the aggregate value of the
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assets leased by the business used in such trade or business
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exceeds $500,000. For the purposes of this subparagraph, two or
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more trades or businesses are treated as a single trade or
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business.
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A business shall be considered a qualified active low-income
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community business for the duration of the qualified community
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development entity's investment in or loan to the business if the
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entity reasonably expects, at the time it makes the investment or
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loan that the business will continue to satisfy the requirements
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of being a qualified active low-income community business
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throughout the entire period of the investment or loan. The
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subsequent insolvency, including reorganization or liquidation in
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bankruptcy, receivership, winding up, or dissolution of a
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business does not disqualify the business from being a qualified
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active low-income community business if all other requirements of
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this section continue to be met.
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(h) "Qualified community development entity" means an
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entity that is certified as a qualified community development
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entity by the Community Development Financial Institutions Fund
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of the United States Department of the Treasury pursuant to s.
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45D of the Internal Revenue Code of 1986, as amended, and that
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has entered into an allocation agreement with the fund with
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respect to tax credits authorized by section 45D, and includes
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this state within the service area set forth in the agreement.
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(i) "Qualified equity investment" means an equity
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investment or long-term debt security issued by a qualified
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community development entity which:
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1. Is acquired on or after July 1, 2008, solely in exchange
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for cash at the time of its original issuance;
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2. Has at least 85 percent of its cash purchase price used
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by the qualified community development entity to make qualified
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low-income community investments within the 12-month period
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beginning on the date the cash is paid by the purchaser to the
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entity; and
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3. Is certified by the Office of Tourism, Trade, and
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Economic Development as a qualified equity investment pursuant
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to this section.
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(j) "Qualified low-income community investment" means a
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capital or equity investment in or loan to a qualified active
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low-income community business which is made after July 1, 2008.
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The maximum amount of debt or equity issued by any one qualified
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active low-income community business on a collective basis with
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all of its affiliates, which may be included in the calculation
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of the numerator described in paragraph (a), is $10 million,
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whether the investment is issued to one or more qualified
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community development entities.
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(3) QUALIFIED EQUITY INVESTMENTS.--
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(a) The office shall designate a comprehensive list of
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industries using the North American Industry Classification
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System, in consultation with Enterprise Florida, Inc., that will
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be used to direct investments for this program. The industries
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listed should lead to strong positive impacts on or benefits to
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the state and regional economies. The office shall submit a copy
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of the list to the President of the Senate and the Speaker of the
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House of Representatives upon completion of the list and any
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further modifications.
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(b) A qualified community development entity that seeks to
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have an equity investment or long-term debt security designated
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as a qualified equity investment and eligible for tax credits
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under this section shall apply to the office. The qualified
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community development entity must submit an application on a form
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that the office prescribes, and that includes, but need not be
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limited to:
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1. The name, address, tax identification number of the
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entity, and evidence of the entity's certification as a qualified
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community development entity;
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2. A copy of the allocation agreement executed by the
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entity and the Community Development Financial Institutions Fund;
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3. A certificate executed by an executive officer of the
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entity attesting that the allocation agreement remains in effect
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and has not been revoked or cancelled by the Community
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Development Financial Institutions Fund;
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4. A description of the proposed amount, structure, and
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purchaser of the equity investment or long-term debt security;
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5. The name and tax identification number of any taxpayer
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eligible to redeem tax credits earned as a result of the issuance
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of the qualified equity investment;
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6. Information regarding the proposed use of proceeds from
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the issuance of a qualified equity investment, which must include
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the types of qualified active low-income community businesses
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that will be funded and an estimate of the percentage of
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qualified low-income community investments that will be made
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statewide;
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7. A statement setting forth the entity's plans to invest
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in only those entities engaged in industries identified for this
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program by the office;
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8. A statement setting forth the entity's plans for the
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development of relationships with community-based organizations,
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local community development offices and organizations, and
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economic development organizations, as well as any steps the
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entity has taken to implement these relationships; and
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9. A nonrefundable application fee of $1,000 per
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application submitted.
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(c) Within 30 days after receipt of a completed application
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containing the information necessary for the office to certify a
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potential qualified equity investment, including payment of the
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application fee, the office shall grant or deny the application
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in full or in part. If the office denies any part of the
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application, it shall inform the qualified community development
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entity of the grounds for the denial. If the qualified community
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development entity fails to provide the information or complete
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its application within the 15-day period, the application remains
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denied and must be resubmitted in full with a new submission
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date.
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(d) If an application is deemed complete, the office may
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certify the proposed equity investment or long-term debt security
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as a qualified equity investment and eligible for tax credits
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under this section. The office shall provide written notice of
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the certification to the qualified community development entity
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and the department. The notice must include the maximum amount of
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tax credits that may be earned from the issuance of the qualified
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equity investment, which shall be calculated with reference to
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the estimate of the percentage of qualified low-income community
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investments made in this state by the qualified community
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development entity included in the application, and the names of
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those taxpayers who are eligible to redeem the credits and their
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respective credit amounts. The office shall certify qualified
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equity investments in the order applications are received.
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Applications received on the same day shall be deemed to have
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been received simultaneously.
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(e) Once the office has certified qualified equity
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investments that, on a cumulative basis, are eligible for $105
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million in tax credits, of which no more than $15 million may be
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claimed per state fiscal year exclusive of tax credits carried
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forward, and on or after June 30, 2015, the office may not
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certify any more qualified equity investments. If a pending
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request cannot be fully certified, the office shall certify the
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portion that may be certified unless the qualified community
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development entity elects to withdraw its request rather than
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receive partial credit.
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(f) Within 30 days after receiving notice of certification,
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the qualified community development entity shall issue the
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qualified equity investment and receive cash in the amount of the
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certified amount. The qualified community development entity must
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provide the office with evidence of the receipt of the cash
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investment within 10 business days after receipt. If the
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qualified community development entity does not receive the cash
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investment and issue the qualified equity investment within 30
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days following receipt of the certification notice, the
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certification lapses and the entity may not issue the qualified
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equity investment without reapplying to the office for
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certification. A certification that lapses reverts back to the
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office and must be reissued in accordance with the application
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process outlined in this subsection.
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(4) TAX CREDITS.--
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(a) A taxpayer that makes a qualified equity investment
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earns a vested tax credit against taxes imposed by s. 220.11 or
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s. 624.509. The taxpayer or a subsequent holder of the qualified
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equity investment on the credit allowance date of the qualified
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equity investment may use a portion of the vested tax credit
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equal to 8.33 percent of the adjusted purchase price of the
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qualified equity investment during the calendar year in which the
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credit allowance date falls.
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(b) A taxpayer's cash investment in a qualified equity
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investment is considered a qualified low-income community
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investment only to the extent that the cash is invested within
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the 12-month period beginning on the date the cash is paid by the
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taxpayer to the community development entity.
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(c) A taxpayer may not redeem any portion of a tax credit
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in a tax year in which the tax credit exceeds the taxpayer's
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state tax liability for the tax year. Such portion may be carried
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forward for use in a subsequent tax year; however, all unused tax
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credits expire on December 31, 2029.
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(d) A tax credit authorized under this section is not
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refundable or transferable. However, if a qualified equity
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investment is transferred, any unused tax credits transfer with
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the investment. Tax credit amounts, including any carryover
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amounts, from credit allowance dates before the date of transfer
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do not transfer with the qualified equity investment. Tax credits
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earned by a partnership, limited liability company, S
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corporation, or other pass-through entity may be allocated to the
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partners, members, or shareholders of such entity for direct
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redemption in accordance with any agreement between the partners,
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members, or shareholders.
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(e) Tax credits for taxpayers who are insurance companies
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subject to the insurance premium tax under s. 624.509 must be
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claimed against the insurance premium tax. An insurance company
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claiming a credit against the insurance premium tax is not
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required to pay any additional retaliatory tax levied pursuant to
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s. 624.5091. Because credits under this section are available to
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an insurance company, s. 624.5091 does not limit such credit in
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any manner.
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(5) CALCULATION OF CREDIT.--
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(a) Within 30 days after each credit allowance date, each
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qualified community development entity shall submit to the office
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the following with respect to each qualified equity investment
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issued by the entity:
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1. A listing, certified by an executive officer of the
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entity, of all qualified low-income community investments made by
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the entity from the proceeds of a qualified equity investment and
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held as of the credit allowance date, which must include the name
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of each qualified active low-income community business funded,
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the location of the principal office of each such business, the
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type of business, the amount of the qualified low-income
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community investment in each business, and the total of qualified
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low-income community investments by all community development
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entities in each business;
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2. Bank records, records of wire transfers of funds, or
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other similar documents that reflect the investments listed
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above;
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3. A calculation, certified by the chief financial or
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accounting officer of the entity, of the amount of qualified low-
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income community investments made in this state using proceeds
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from the issuance of the qualified equity investment held by the
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entity as of the credit allowance date, and the total qualified
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low-income community investments made using proceeds of the
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issuance of the qualified equity investment held by the entity on
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the credit allowance date. In making this calculation, an
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investment shall be deemed to be held by a qualified community
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development entity even if the investment has been sold or repaid
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if the entity reinvests an amount equal to the capital returned
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to or recovered from the original investment, exclusive of any
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profits realized, in another qualified low-income community
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investment within 12 months after receipt of such capital. An
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entity is not required to reinvest capital returned from a
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qualified low-income community investment after the sixth
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anniversary of the issuance of the qualified equity investment
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for which the proceeds were used to make the qualified low-income
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community investment, and the qualified low-income community
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investment shall be deemed to be held by the entity through the
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seventh anniversary of the qualified equity investment's
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issuance;
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4. An attestation from the entity's chief financial or
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accounting officer that no redemption or principal payment was
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made with respect to the qualified equity investment since the
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previous credit allowance date; and
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5. Any information relating to the recapture of any federal
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tax credits available with respect to a qualified equity
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investment which the entity received since the prior credit
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allowance date.
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(b) Within 20 days after receipt of the information listed
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in paragraph (a), the office shall certify in writing to the
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qualified community development entity and to the department the
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amount of credit that is eligible for use for the credit
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allowance date. The notice must include a listing of those
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taxpayers that are eligible to redeem the tax credit for the
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credit allowance date.
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(6) AUDIT AND RECAPTURE.--
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(a) A qualified community development entity that receives
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an annual allocation of tax credits in an amount equal to or in
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excess of $500,000 shall be treated as a recipient and required
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to participate in a state single audit pursuant to s. 215.97. The
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office shall be deemed the state awarding agency and coordinating
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agency. In addition to the required financial reporting package,
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the audit must attest to the entity's adherence to the
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performance conditions enumerated in this section as they relate
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to the recapture of the tax credit under paragraph (b). Taxpayers
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that are not qualified community development entities may not be
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treated as subrecipients or otherwise required to participate in
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the state single audit program since such persons do not control
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adherence to the performance standards of this program.
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(b) The office shall disqualify a qualified community
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development entity from receiving additional Florida markets tax
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credits if more than 50 percent of qualified equity investments
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during the first 3 years of operation become insolvent,
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reorganized, or liquidated in bankruptcy, receivership, winding
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up, or dissolved. In addition, the office shall recapture 50
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percent of all credits issued to such qualified community
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development entity.
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(c) The office shall order recapture of any tax credit
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authorized under this section with respect to a qualified equity
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investment if:
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1. Any amount of any federal tax credit which is eligible
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for a tax credit under this section is recaptured under s. 45D of
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the Internal Revenue Code of 1986, as amended;
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2. The qualified community development entity is not deemed
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to be a qualified community development entity under the federal
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New Markets Tax Credit Program;
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3. The qualified community development entity redeems or
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makes a principal repayment before the seventh anniversary of the
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issuance of the qualified equity investment;
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4. The qualified community development entity fails to make
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qualified low-income community investments in qualified active
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low-income community businesses;
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5. The qualified community development entity fails to
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maintain at least 85 percent of the proceeds of the qualified
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equity investment in qualified low-income community investments
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at any time before the seventh anniversary of the issuance of the
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qualified equity investment and remains in compliance with
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subparagraph (2)(i)2.;
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6. The qualified community development entity fails to
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provide to the office and the department any of the information
418
or reports required by this section; or
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7. The office determines as a result of a state single
420
audit or an examination by the office that a taxpayer received
421
tax credits pursuant to this section to which the taxpayer was
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not entitled.
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(d) The office shall provide notice to the qualified
424
community development entity and to the department of any
425
proposed recapture of tax credits pursuant to this subsection.
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The entity shall have 90 days to cure any deficiency indicated in
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the office's original recapture notice and avoid such recapture.
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If the entity fails or is unable to cure such deficiency within
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the 90-day period, the office shall provide the entity and the
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department with a final order of recapture. The qualified
431
community development entity is responsible for providing copies
432
of the final order of recapture to taxpayers owning the tax
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credits at issue.
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(e) Any tax credit for which a final recapture order has
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been issued shall be recaptured by the department from the
436
taxpayer who claimed the tax credit on a tax return, or in the
437
case of multiple succeeding entities, in the order of tax-credit
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succession, and such funds shall be paid into the General Revenue
439
Fund. Such action by the department does not constitute an audit
440
or otherwise alter the department's ability to audit the
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taxpayer.
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(7) ANNUAL REPORTING.--
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(a) Within 120 days after the end of a calendar year that
444
includes a credit allowance date, each community development
445
entity that has an equity investment or long-term debt security
446
certified as a qualified equity investment under this section
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shall provide the office with:
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1. The entity's annual financial statements for the
449
immediately preceding calendar year, audited by an independent
450
certified public accountant;
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2. Using the North American Industry Classification System
452
Code, the types of businesses funded, the counties where the
453
qualified active low-income community businesses are located, the
454
dollars invested, and the number of jobs created and retained by
455
qualified active low-income community businesses funded in a form
456
satisfactory to the office;
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3. A statement describing the relationships that the entity
458
has established with community-based organizations, local
459
community development offices and organizations, and economic
460
development organizations, and a summary of the outcomes
461
resulting from those relationships; and
462
4. Other information as prescribed by the office and
463
documentation to demonstrate continued certification by the
464
federal program.
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(b) The office shall prepare an annual report of all
466
qualified low-income community investments made in this state
467
from the proceeds of qualified equity investments which includes
468
relevant statistics from the North American Industry
469
Classification System Code, the county or counties where the
470
qualified low-income community investments are located, the
471
dollars invested, the number of jobs created and retained by
472
business in which qualified low-income community investments have
473
been made, and the value of applicable state tax credits claimed
474
for the latest year for which such information is available. The
475
office shall submit a copy to the Governor, the President of the
476
Senate, and the Speaker of the House of Representatives each July
477
1, beginning in 2010, and may post the annual report on the
478
office's website.
479
(8) EXAMINATION.--
480
(a) The office may conduct examinations to verify that tax
481
credits under this section have been received and applied
482
according to the requirements of this section and to verify
483
information provided by qualified community development entities
484
to the office.
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(b) The office may revoke or modify any written decision
486
qualifying, certifying, or otherwise granting eligibility for tax
487
credits under this section if it is discovered that the qualified
488
community development entity submitted any false statement,
489
representation, or certification in any application, record,
490
report, plan, or other document filed in an attempt to receive
491
the tax credits.
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(c) A qualified community development entity that submits
493
information under this section which includes fraudulent
494
information is liable for reimbursement of the reasonable costs
495
and fees associated with the review, processing, investigation,
496
and prosecution of the fraudulent claim plus a penalty in an
497
amount double the credit amount certified and claimed by the
498
holders of the entity's qualified equity investments, which
499
penalty is in addition to any criminal penalty to which the
500
taxpayer is liable for the same acts.
501
(9) RULEMAKING AUTHORITY.--
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(a) The office may adopt rules pursuant to ss. 120.536(1)
503
and 120.54 to administer this section.
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(b) The department may adopt rules pursuant to ss.
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(10) EXPIRATION.--This section expires December 31, 2021.
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Section 2. Subsection (8) of section 220.02, Florida
508
Statutes, is amended to read:
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220.02 Legislative intent.--
510
(8) It is the intent of the Legislature that credits
511
against either the corporate income tax or the franchise tax be
512
applied in the following order: those enumerated in s. 631.828,
519
those enumerated in s. 220.192, and those enumerated in s.
520
220.193, and those enumerated in s. 288.991.
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Section 3. Paragraph (a) of subsection (1) of section
522
220.13, Florida Statutes, is amended to read:
523
220.13 "Adjusted federal income" defined.--
524
(1) The term "adjusted federal income" means an amount
525
equal to the taxpayer's taxable income as defined in subsection
526
(2), or such taxable income of more than one taxpayer as provided
527
in s. 220.131, for the taxable year, adjusted as follows:
528
(a) Additions.--There shall be added to such taxable
529
income:
530
1. The amount of any tax upon or measured by income,
531
excluding taxes based on gross receipts or revenues, paid or
532
accrued as a liability to the District of Columbia or any state
533
of the United States which is deductible from gross income in the
534
computation of taxable income for the taxable year.
535
2. The amount of interest which is excluded from taxable
536
income under s. 103(a) of the Internal Revenue Code or any other
537
federal law, less the associated expenses disallowed in the
538
computation of taxable income under s. 265 of the Internal
539
Revenue Code or any other law, excluding 60 percent of any
540
amounts included in alternative minimum taxable income, as
541
defined in s. 55(b)(2) of the Internal Revenue Code, if the
542
taxpayer pays tax under s. 220.11(3).
543
3. In the case of a regulated investment company or real
544
estate investment trust, an amount equal to the excess of the net
545
long-term capital gain for the taxable year over the amount of
546
the capital gain dividends attributable to the taxable year.
547
4. That portion of the wages or salaries paid or incurred
548
for the taxable year which is equal to the amount of the credit
549
allowable for the taxable year under s. 220.181. This
550
subparagraph shall expire on the date specified in s. 290.016 for
551
the expiration of the Florida Enterprise Zone Act.
552
5. That portion of the ad valorem school taxes paid or
553
incurred for the taxable year which is equal to the amount of the
554
credit allowable for the taxable year under s. 220.182. This
555
subparagraph shall expire on the date specified in s. 290.016 for
556
the expiration of the Florida Enterprise Zone Act.
557
6. The amount of emergency excise tax paid or accrued as a
558
liability to this state under chapter 221 which tax is deductible
559
from gross income in the computation of taxable income for the
560
taxable year.
561
7. That portion of assessments to fund a guaranty
562
association incurred for the taxable year which is equal to the
563
amount of the credit allowable for the taxable year.
564
8. In the case of a nonprofit corporation which holds a
565
pari-mutuel permit and which is exempt from federal income tax as
566
a farmers' cooperative, an amount equal to the excess of the
567
gross income attributable to the pari-mutuel operations over the
568
attributable expenses for the taxable year.
569
9. The amount taken as a credit for the taxable year under
570
s. 220.1895.
571
10. Up to nine percent of the eligible basis of any
572
designated project which is equal to the credit allowable for the
573
taxable year under s. 220.185.
574
11. The amount taken as a credit for the taxable year under
575
s. 220.187.
576
12. The amount taken as a credit for the taxable year under
577
s. 220.192.
578
13. The amount taken as a credit for the taxable year under
579
s. 220.193.
580
14. Any portion of a qualified equity investment, as
581
defined in s. 288.991, which is claimed as a deduction by the
582
taxpayer for the purpose of calculating the taxpayer's net
583
income.
584
Section 4. Subsection (19) is added to section 213.053,
585
Florida Statutes, to read:
586
213.053 Confidentiality and information sharing.--
587
(19) Information relative to tax credits taken by a
588
taxpayer under s. 288.991 may be disclosed to the Office of
589
Tourism, Trade, and Economic Development or its employees or
590
agents that have been identified in writing by the office to the
591
department for use in performance of their official duties. All
592
information so obtained is subject to the same confidentiality as
593
imposed on the department.
594
Section 5. This act shall take effect July 1, 2008, and
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applies to tax years ending after December 31, 2008.
CODING: Words stricken are deletions; words underlined are additions.