Florida Senate - 2008 CS for CS for SB 850
By the Committees on Community Affairs; Commerce; and Senators Fasano, Crist and Haridopolos
578-07969-08 2008850c2
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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 low-
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income community investments made in this state from the issuance
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of a qualified equity investment held by a qualified community
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development entity on the applicable credit allowance 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.
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1. The term excludes any trade or business:
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a. 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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b. That engages predominantly in the development or holding
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of intangibles for sale or license;
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c. 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; or
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d. In which the principal activity 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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2. A business shall be considered a qualified active low-
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income community business for the duration of the qualified
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community development entity's investment in or loan to the
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business if the entity reasonably expects, at the time it makes
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the investment or loan that the business will continue to satisfy
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the requirements of being a qualified active low-income community
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business throughout the entire period of the investment or loan.
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The subsequent insolvency, including reorganization or
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liquidation in bankruptcy, receivership, winding up, or
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dissolution, of a business does not disqualify the business from
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being a qualified active low-income community business if all
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other requirements of this section continue to be met.
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3. 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., which 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, regional, and local economies. The office shall submit
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a copy of the list to the President of the Senate and the Speaker
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of the House of Representatives upon completion of the list and
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any further modifications. The office may waive the requirement
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to limit investments to only those industries included on the
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list if the office determines that an investment would have a
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positive impact on a community.
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4. Jobs created must pay an average wage of no less than
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115 percent of the federal poverty guideline for a family of four
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as defined by the United States Department of Health and Human
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Services' Federal Register.
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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 that is issued by a
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qualified community development entity and that:
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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 to
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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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(3) QUALIFIED EQUITY INVESTMENTS.--
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(a) 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 be 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 provides, 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 for each application
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submitted. The office shall determine the amount of the
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application fee, which in total may not exceed the cost of
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administering the program.
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(b) 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 provides any additional information required
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by the office or otherwise completes its application within 15
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days after the notice of denial, the application shall be
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considered completed as of the original date of submission. If
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the qualified community development entity fails to provide the
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information or complete its application within the 15-day period,
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the application remains denied and must be resubmitted in full
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with a new submission date.
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(c) 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. For applications received on the
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same day and deemed complete, the office shall certify,
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consistent with remaining tax credit authority, qualified equity
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investments in proportionate percentages based on the amount of
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qualified equity investment requested to be certified in each
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investment.
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(d) Once the office has certified qualified equity
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investments that are eligible for tax credits, and on or after
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June 30, 2015, the office may not certify any more qualified
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equity investments. Tax credits subject to appropriations in any
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year must be approved and enacted by the Legislature. If a
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pending request cannot be fully certified, the office shall
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certify the portion that may be certified unless the qualified
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community development entity elects to withdraw its request
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rather than receive partial credit.
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(e) 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 6.5 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, 2021.
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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 shall be treated as a
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recipient and required to participate in a state single audit
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pursuant to s. 215.97. The office shall be deemed the state
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awarding agency and coordinating agency. In addition to the
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required financial reporting package, the audit must attest to
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the entity's adherence to the performance conditions enumerated
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in this section as they relate to the recapture of the tax credit
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under paragraph (b). Taxpayers that are not qualified community
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development entities may not be treated as subrecipients or
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otherwise required to participate in the state single audit
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program since such persons do not control adherence to the
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performance standards of this program.
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(c) 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 three years of operation become insolvent,
401
reorganized or liquidated in bankruptcy, receivership, winding
402
up, or dissolved. In addition, the office shall recapture 50
403
percent of all credits issued to such qualified community
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development entity.
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(b) The office shall order the department to recapture any
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tax credit authorized under this section with respect to a
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qualified equity investment if:
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1. Any amount of any federal tax credit which is eligible
409
for a tax credit under this section is recaptured under s. 45D of
410
the Internal Revenue Code of 1986, as amended;
411
2. The qualified community development entity is not deemed
412
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
423
at any time before the seventh anniversary of the issuance of the
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qualified equity investment and remains in compliance with
425
subparagraph (2)(i)2.;
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6. The qualified community development entity fails to
427
provide to the office and the department any of the information
428
or reports required by this section; or
429
7. The office determines as a result of a state single
430
audit or an examination by the office that a taxpayer received
431
tax credits pursuant to this section to which the taxpayer was
432
not entitled.
433
(c) The office shall provide notice to the qualified
434
community development entity and to the department of any
435
proposed recapture of tax credits pursuant to this subsection.
436
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
441
community development entity is responsible for providing copies
442
of the final order of recapture to taxpayers owning the tax
443
credits at issue.
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(d) Any tax credit for which a final recapture order has
445
been issued shall be recaptured by the department from the
446
taxpayer who claimed the tax credit on a tax return, or in the
447
case of multiple succeeding entities, in the order of tax-credit
448
succession, and such funds shall be paid into the General Revenue
449
Fund. Such action by the department does not constitute an audit
450
or otherwise alter the department's ability to audit the
451
taxpayer.
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(7) ANNUAL REPORTING.--
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(a) Within 120 days after the end of a calendar year that
454
includes a credit allowance date, each community development
455
entity that has an equity investment or long-term debt security
456
certified as a qualified equity investment under this section
457
shall provide the office with:
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1. The entity's annual financial statements for the
459
immediately preceding calendar year, audited by an independent
460
certified public accountant;
461
2. Using the North American Industry Classification System
462
Code, the types of businesses funded, the counties where the
463
qualified active low-income community businesses are located, the
464
dollars invested, and the number of jobs created and retained by
465
qualified active low-income community businesses funded in a form
466
satisfactory to the office;
467
3. A statement describing the relationships that the entity
468
has established with community-based organizations, local
469
community development offices and organizations, and economic
470
development organizations, and a summary of the outcomes
471
resulting from those relationships; and
472
4. Other information as prescribed by the office and
473
documentation to demonstrate continued certification by the
474
federal program.
475
(b) The office shall prepare an annual report of all
476
qualified low-income community investments made in this state
477
from the proceeds of qualified equity investments, which includes
478
relevant statistics from the North American Industry
479
Classification System Code, the county or counties where the
480
qualified low-income community investments are located, the
481
dollars invested, the number of jobs created and retained by
482
business in which qualified low-income community investments have
483
been made, and the value of applicable state tax credits claimed
484
for the latest year for which such information is available. The
485
office shall submit a copy to the Governor, the President of the
486
Senate, and the Speaker of the House of Representatives each July
487
1, beginning in 2010, and may post the annual report on the
488
office's website.
489
(8) EXAMINATION.--
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(a) The office may conduct examinations to verify that tax
491
credits under this section have been received and applied
492
according to the requirements of this section and to verify
493
information provided by qualified community development entities
494
to the office.
495
(b) The office may revoke or modify any written decision
496
qualifying, certifying, or otherwise granting eligibility for tax
497
credits under this section if it is discovered that the qualified
498
community development entity submitted any false statement,
499
representation, or certification in any application, record,
500
report, plan, or other document filed in an attempt to receive
501
the tax credits.
502
(c) A qualified community development entity that submits
503
information under this section which includes fraudulent
504
information is liable for reimbursement of the reasonable costs
505
and fees associated with the review, processing, investigation,
506
and prosecution of the fraudulent claim plus a penalty in an
507
amount double the credit amount certified and claimed by the
508
holders of the entity's qualified equity investments, which
509
penalty is in addition to any criminal penalty to which the
510
taxpayer is liable for the same acts.
511
(9) RULEMAKING AUTHORITY.--
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(a) The office may adopt rules pursuant to ss. 120.536(1)
513
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.
517
Section 2. Subsection (8) of section 220.02, Florida
518
Statutes, is amended to read:
519
220.02 Legislative intent.--
520
(8) It is the intent of the Legislature that credits
521
against either the corporate income tax or the franchise tax be
522
applied in the following order: those enumerated in s. 631.828,
529
those enumerated in s. 220.192, and those enumerated in s.
530
220.193, and those enumerated in s. 288.991.
531
Section 3. Paragraph (a) of subsection (1) of section
532
220.13, Florida Statutes, is amended to read:
533
220.13 "Adjusted federal income" defined.--
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(1) The term "adjusted federal income" means an amount
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equal to the taxpayer's taxable income as defined in subsection
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(2), or such taxable income of more than one taxpayer as provided
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in s. 220.131, for the taxable year, adjusted as follows:
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(a) Additions.--There shall be added to such taxable
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income:
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1. The amount of any tax upon or measured by income,
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excluding taxes based on gross receipts or revenues, paid or
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accrued as a liability to the District of Columbia or any state
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of the United States which is deductible from gross income in the
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computation of taxable income for the taxable year.
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2. The amount of interest which is excluded from taxable
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income under s. 103(a) of the Internal Revenue Code or any other
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federal law, less the associated expenses disallowed in the
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computation of taxable income under s. 265 of the Internal
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Revenue Code or any other law, excluding 60 percent of any
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amounts included in alternative minimum taxable income, as
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defined in s. 55(b)(2) of the Internal Revenue Code, if the
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taxpayer pays tax under s. 220.11(3).
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3. In the case of a regulated investment company or real
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estate investment trust, an amount equal to the excess of the net
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long-term capital gain for the taxable year over the amount of
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the capital gain dividends attributable to the taxable year.
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4. That portion of the wages or salaries paid or incurred
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for the taxable year which is equal to the amount of the credit
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allowable for the taxable year under s. 220.181. This
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subparagraph shall expire on the date specified in s. 290.016 for
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the expiration of the Florida Enterprise Zone Act.
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5. That portion of the ad valorem school taxes paid or
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incurred for the taxable year which is equal to the amount of the
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credit allowable for the taxable year under s. 220.182. This
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subparagraph shall expire on the date specified in s. 290.016 for
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the expiration of the Florida Enterprise Zone Act.
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6. The amount of emergency excise tax paid or accrued as a
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liability to this state under chapter 221 which tax is deductible
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from gross income in the computation of taxable income for the
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taxable year.
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7. That portion of assessments to fund a guaranty
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association incurred for the taxable year which is equal to the
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amount of the credit allowable for the taxable year.
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8. In the case of a nonprofit corporation which holds a
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pari-mutuel permit and which is exempt from federal income tax as
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a farmers' cooperative, an amount equal to the excess of the
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gross income attributable to the pari-mutuel operations over the
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attributable expenses for the taxable year.
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9. The amount taken as a credit for the taxable year under
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s. 220.1895.
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10. Up to nine percent of the eligible basis of any
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designated project which is equal to the credit allowable for the
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taxable year under s. 220.185.
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11. The amount taken as a credit for the taxable year under
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s. 220.187.
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12. The amount taken as a credit for the taxable year under
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s. 220.192.
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13. The amount taken as a credit for the taxable year under
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s. 220.193.
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14. Any portion of a qualified equity investment, as
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defined in s. 288.991, which is claimed as a deduction by the
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taxpayer for the purpose of calculating the taxpayer's net
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income.
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Section 4. Subsection (19) is added to section 213.053,
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Florida Statutes, to read:
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213.053 Confidentiality and information sharing.--
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(19) Information relative to tax credits taken by a
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taxpayer under s. 288.991 may be disclosed to the Office of
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Tourism, Trade, and Economic Development or its employees or
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agents that have been identified in writing by the office to the
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department for use in performance of their official duties. All
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information so obtained is subject to the same confidentiality as
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imposed on the department.
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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.