Florida Senate - 2009 SB 1644 By Senator Ring 32-00250D-09 20091644__ 1 A bill to be entitled 2 An act relating to economic development; creating the 3 “Micro-Targeted Technology Commercialization Act”; 4 providing that the purpose of the act is to promote 5 the commercialization of certain technologies by 6 startup and early stage companies in this state; 7 amending s. 220.13, F.S.; redefining the term 8 “adjusted federal income” to prohibit a seller from 9 deducting from his or her taxable income any net 10 operating loss transferred pursuant to the act; 11 amending s. 220.16, F.S.; providing for allocation of 12 specified nonbusiness income to the state; creating s. 13 220.194, F.S.; creating the Micro-Targeted Technology 14 Commercialization Credit Transfer Program; providing 15 intent, goals, and objectives; providing definitions; 16 requiring that the Institute for the Commercialization 17 of Public Research identify examples of micro-targeted 18 technology and compile a list of the technology for 19 the Office of Tourism, Trade, and Economic 20 Development; requiring the office to certify eligible 21 companies for the transfer of corporate income tax net 22 operating loss amounts; providing qualifications and 23 an application process and requirements; requiring an 24 application fee; providing for an application 25 deadline; requiring the office to grant or deny an 26 application within a specified time after receiving a 27 completed application; providing for calculating the 28 certified credit amount; providing a maximum amount 29 that may be transferred; providing a penalty; 30 requiring each certified company to file an annual 31 report with the office; requiring the office and the 32 Department of Revenue to adopt rules; creating s. 33 220.195, F.S.; creating the Micro-Targeted Technology 34 Commercialization Assistance Grant Program; providing 35 intent, goals, and objectives of the grant program; 36 directing the Office of Tourism, Trade, and Economic 37 Development to manage the grant program; directing the 38 Florida Institute for the Commercialization of Public 39 Research to review grant applications and submit 40 recommendations to the Office of Tourism, Trade, and 41 Economic Development; specifying eligibility 42 requirements for grants; specifying the grant amount; 43 detailing the permissible uses of the grant funds; 44 requiring the Office of Tourism, Trade, and Economic 45 Development to prepare an annual report; providing 46 rulemaking authority; directing the Office of Program 47 Policy Analysis and Government Accountability to 48 review the program and prepare a report; amending s. 49 213.053, F.S.; authorizing the Department of Revenue 50 to share confidential taxpayer information with the 51 Office of Tourism, Trade, and Economic Development; 52 providing an appropriation; providing for an 53 allocation of the funds; providing for future repeal 54 of the credit transfer program and the grant program; 55 providing an effective date. 56 57 Be It Enacted by the Legislature of the State of Florida: 58 59 Section 1. Short title.—This act may be cited as the 60 “Micro-Targeted Technology Commercialization Act.” 61 Section 2. Legislative purpose.—The purpose of this act is 62 to promote the commercialization of certain technologies by 63 startup and early stage Florida companies, and to create high 64 wage jobs in these industry sectors. The act creates two 65 financial mechanisms to promote commercialization efforts: a net 66 operating loss credit transfer program and a commercialization 67 grant program. 68 Section 3. Paragraph (b) of subsection (1) of section 69 220.13, Florida Statutes, is amended to read: 70 220.13 “Adjusted federal income” defined.— 71 (1) The term “adjusted federal income” means an amount 72 equal to the taxpayer's taxable income as defined in subsection 73 (2), or such taxable income of more than one taxpayer as 74 provided in s. 220.131, for the taxable year, adjusted as 75 follows: 76 (b) Subtractions.— 77 1. There shall be subtracted from such taxable income: 78 a. The net operating loss deduction allowable for federal 79 income tax purposes under s. 172 of the Internal Revenue Code 80 for the taxable year, 81 b. The net capital loss allowable for federal income tax 82 purposes under s. 1212 of the Internal Revenue Code for the 83 taxable year, 84 c. The excess charitable contribution deduction allowable 85 for federal income tax purposes under s. 170(d)(2) of the 86 Internal Revenue Code for the taxable year, and 87 d. The excess contributions deductions allowable for 88 federal income tax purposes under s. 404 of the Internal Revenue 89 Code for the taxable year, except that any net operating loss 90 transferred pursuant to s. 220.194 may not be deducted by the 91 seller. 92 However, a net operating loss and a capital loss shall never be 93 carried back as a deduction to a prior taxable year, but all 94 deductions attributable to such losses shall be deemed net 95 operating loss carryovers and capital loss carryovers, 96 respectively, and treated in the same manner, to the same 97 extent, and for the same time periods as are prescribed for such 98 carryovers in ss. 172 and 1212, respectively, of the Internal 99 Revenue Code. 100 2. There shall be subtracted from such taxable income any 101 amount to the extent included therein the following: 102 a. Dividends treated as received from sources without the 103 United States, as determined under s. 862 of the Internal 104 Revenue Code. 105 b. All amounts included in taxable income under s. 78 or s. 106 951 of the Internal Revenue Code. 107 However, as to any amount subtracted under this subparagraph, 108 there shall be added to such taxable income all expenses 109 deducted on the taxpayer's return for the taxable year which are 110 attributable, directly or indirectly, to such subtracted amount. 111 Further, no amount shall be subtracted with respect to dividends 112 paid or deemed paid by a Domestic International Sales 113 Corporation. 114 3. In computing “adjusted federal income” for taxable years 115 beginning after December 31, 1976, there shall be allowed as a 116 deduction the amount of wages and salaries paid or incurred 117 within this state for the taxable year for which no deduction is 118 allowed pursuant to s. 280C(a) of the Internal Revenue Code 119 (relating to credit for employment of certain new employees). 120 4. There shall be subtracted from such taxable income any 121 amount of nonbusiness income included therein, including 122 payments received for a certified tax credit amount pursuant to 123 s. 220.194. 124 5. There shall be subtracted any amount of taxes of foreign 125 countries allowable as credits for taxable years beginning on or 126 after September 1, 1985, under s. 901 of the Internal Revenue 127 Code to any corporation which derived less than 20 percent of 128 its gross income or loss for its taxable year ended in 1984 from 129 sources within the United States, as described in s. 130 861(a)(2)(A) of the Internal Revenue Code, not including credits 131 allowed under ss. 902 and 960 of the Internal Revenue Code, 132 withholding taxes on dividends within the meaning of sub 133 subparagraph 2.a., and withholding taxes on royalties, interest, 134 technical service fees, and capital gains. 135 6. Notwithstanding any other provision of this code, except 136 with respect to amounts subtracted pursuant to subparagraphs 1. 137 and 3., any increment of any apportionment factor which is 138 directly related to an increment of gross receipts or income 139 which is deducted, subtracted, or otherwise excluded in 140 determining adjusted federal income shall be excluded from both 141 the numerator and denominator of such apportionment factor. 142 Further, all valuations made for apportionment factor purposes 143 shall be made on a basis consistent with the taxpayer's method 144 of accounting for federal income tax purposes. 145 Section 4. Subsection (5) is added to section 220.16, 146 Florida Statutes, to read: 147 220.16 Allocation of nonbusiness income.—Nonbusiness income 148 shall be allocated as follows: 149 (5) The amount of financial assistance received in exchange 150 for transferring a net operating loss as authorized by s. 151 220.194 is allocable to this state. 152 Section 5. Section 220.194, Florida Statutes, is created to 153 read: 154 220.194 Micro-Targeted Technology Commercialization Credit 155 Transfer Program; transfer of net loss carryforward as a 156 certified credit.— 157 (1) PURPOSE; GOALS AND OBJECTIVES.—It is the intent of the 158 Legislature that the Micro-Targeted Technology Commercialization 159 Credit Transfer Program act as a catalyst for eligible companies 160 to accelerate their revenue and job growth and their market 161 penetration by monetizing their net operating losses into 162 transferable credits. The program’s objectives include: 163 (a) Accelerating the entry of new technology-based products 164 into the marketplace; 165 (b) Producing additional technology-based jobs for this 166 state; 167 (c) Accelerating commercialization of micro-targeted 168 technologies in the biomedical and technical fields; and 169 (d) Encouraging the growth of high-quality, high-wage 170 biomedical and technology firms in this state. 171 (2) DEFINITIONS.—As used in ss. 220.194 and 220.195, the 172 term: 173 (a) “Certified credit amount” means the product of the net 174 operating loss in this state multiplied by the corporate income 175 tax rate imposed during the year it was sought. 176 (b) “Certified micro-targeted technology company” means a 177 business entity that is registered with the Secretary of State, 178 is currently operating in this state, and is certified by the 179 office to trade net operating loss deduction credits pursuant to 180 this section. 181 (c) “Department” means the Department of Revenue. 182 (d) “Institute” means the Institute for the 183 Commercialization of Public Research. 184 (e) “Micro-targeted technology” means individual 185 components, technology, or processes that are crucial to the 186 development of larger or more complex biomedical or 187 technological devices, processes, or information systems. 188 (f) “Office” means the Office of Tourism, Trade, and 189 Economic Development. 190 (3) THE INSTITUTE FOR THE COMMERCIALIZATION OF PUBLIC 191 RESEARCH.—The Institute for the Commercialization of Public 192 Research or other Florida research-based consortium shall 193 identify examples of micro-targeted technology and compile a 194 list that is updated annually to add new technologies or delete 195 those technologies that are no longer applicable. The office 196 shall adopt this list as a rule. 197 (4) QUALIFICATIONS FOR CERTIFICATION.—A company seeking to 198 transfer a net operating loss shall be certified as a qualified 199 micro-targeted technology company by the office if it timely 200 files a completed application and meets the requirements of this 201 subsection. For purposes of this subsection, all conditions in 202 paragraphs (a) through (g) must be met no later than the date 203 the application is filed with the office. All other requirements 204 in this subsection must be satisfied before any allowed benefits 205 may be transferred to the company. In order to be certified, a 206 micro-targeted technology company shall demonstrate that: 207 (a) It is registered with the Secretary of State to operate 208 in this state. 209 (b) It is primarily engaged in developing, manufacturing, 210 producing, or providing micro-targeted technology for commercial 211 or public purposes. 212 (c) It has fewer than 100 full-time, worldwide employees, 213 including full-time employees leased to the applicant, of which 214 at least 75 percent work full time in this state at the time the 215 net operating loss credit transfer is first allowed. 216 (d) It has been audited by an independent certified public 217 accountant and: 218 1. The company has not had positive net income in any of 219 the 2 previous years of ongoing operations; 220 2. The company has reported a net operating loss in any of 221 the 2 previous years of operation; and 222 3. The company is not at least 50 percent owned or 223 controlled, directly or indirectly, by another corporation that 224 has demonstrated positive net income in any of the 2 previous 225 years of ongoing operations, or is not part of a consolidated 226 group of affiliated corporations, as filed for federal income 227 tax purposes, which in the aggregate demonstrated positive net 228 income in any of the 2 previous years of ongoing operations. 229 (e) The company has at least one active application for a 230 patent under 35 U.S.C. s. 111(a) on file with the United States 231 Patent and Trademark Office. 232 (f) The company has received research grants or other 233 financial assistance from governmental entities, foundations, 234 and other private entities or investors. 235 (g) The company has an established business plan that 236 describes its commercialization strategy, a business-development 237 plan that includes revenue projections and a strategy for 238 becoming profitable, and a timeline for development which 239 addresses revenue growth and job creation in this state. 240 (h) The company can certify that: 241 1. It will not transfer a net operating loss in exchange 242 for private financial assistance in an amount that is less than 243 75 percent of the certified credit amount; 244 2. All proceeds from the transfer will be expended to 245 support the operation or expansion of the company's business 246 activity in this state; and 247 3. Upon transfer of a credit, it shall notify the office of 248 the amount within 30 days after each certified credit is 249 transferred, the amount of the financial assistance received, 250 and the identity of the purchaser of the certified credit. 251 (5) APPLICATION FOR CERTIFICATION.— 252 (a) A completed application must be filed with the office 253 on or after 2 p.m., on the first business day of July commencing 254 in 2009. The office may investigate the qualifications of each 255 company applicant and may require by rule the applicant to 256 provide such evidence of its qualification as is necessary to 257 assure compliance with the requirements of this section, 258 including, but not limited to, the state corporate income tax 259 return supporting the request for certification of a credit 260 transfer, audited financial statements, federal tax returns, and 261 state and federal employment filings. 262 (b) The office shall require a nonrefundable application 263 fee of $100 per application submitted. The department shall 264 cooperate with the office in its review of the applications. 265 (c) The office shall grant or deny an application in full 266 or in part within 90 days after receiving a completed 267 application containing the necessary information, including 268 payment of the application fee. If the office denies any part of 269 the application, it shall inform the applicant of the grounds 270 for the denial. 271 (d) This section does not create a presumption that a 272 company applicant will be approved by the office to transfer its 273 certified credits. However, the office may issue a nonbinding 274 opinion letter, upon the request of a prospective applicant, as 275 to its eligibility and the potential amount of certified tax 276 credits available. 277 (6) CALCULATION OF CERTIFIED CREDIT TRANSFER AMOUNT AND 278 LIMITATIONS.—When submitting an application for certification, a 279 company shall state the amount of the net operating loss 280 deduction, including any net operating loss carryover, it 281 requests to be transferred as a certified credit. To the extent 282 allowed as a deduction in this state, a reported net operating 283 loss deduction not otherwise taken may be certified by the 284 office for transfer by a certified micro-targeted technology 285 company in exchange for private financial assistance from a 286 purchaser as follows: 287 (a) The net operating loss shall be transferred as a 288 certified credit amount. 289 (b) The maximum lifetime net operating loss credits that a 290 micro-targeted technology company may be certified to transfer 291 may not exceed $1 million. 292 (c) Once the office has certified the transfer of total net 293 operating loss credits that may be claimed during a state fiscal 294 year in a cumulative amount of $3 million, the office may not 295 approve the transfer of any additional credits that may be taken 296 in that state fiscal year. 297 (d) The certified micro-targeted technology company is 298 liable for a penalty if, after a transfer, the net operating 299 loss is disallowed pursuant to an audit by the department. The 300 penalty equals the amount of the credit transferred, reduced in 301 proportion to the amount of the net operating loss certified for 302 transfer over the amount of the certified net operating loss 303 disallowed. 304 (e) The applicant and its successors shall maintain all 305 records necessary to support the reported net operating loss. 306 (7) PURCHASE OF TRANSFERRED CERTIFIED CREDITS.— 307 (a) The certified credit amount must be reported as a 308 credit against tax due by the unaffiliated corporate purchaser 309 on the next tax return due to be filed by the purchaser, but in 310 no case may it be reported later than 1 year after the date of 311 transfer. 312 (b) The purchaser of a certified credit amount may not 313 further sell, or otherwise transfer, the certified credit. 314 (c) It is the responsibility of the certified micro 315 targeted technology company that transferred the certified 316 credit to notify the office within 30 days after transfer of the 317 amount of each certified credit transferred, the amount of the 318 financial assistance received, and the identity of the purchaser 319 of the certified credit. The office shall certify to the 320 department the same information within 14 working days. 321 (8) REPORTING REQUIREMENT.—Each company that is certified 322 to transfer its net operating loss credits must provide the 323 office with an annual report on its development covering the 324 year after it has received funds from transferring its credits. 325 The report must include the company’s commercialization 326 strategy; business development plan; timeline for development; 327 actual revenue and revenue projections, both total and within 328 Florida only; and actual employment and employment projections, 329 both total and within Florida only. The report is due January 3 330 each applicable year. 331 (9) RULEMAKING AUTHORITY.— 332 (a) The office shall adopt rules pursuant to ss. 120.536(1) 333 and 120.54 to administer this section. The rules must establish 334 the criteria for qualified technology research and experimental 335 development, production, or provision of technology for 336 commercial or public purposes; the format of application forms; 337 and the procedures to implement the program. 338 (b) The department may adopt rules pursuant to ss. 339 120.536(1) and 120.54 to administer this section. 340 Section 6. Section 220.195, Florida Statutes, is created to 341 read: 342 220.195 Micro-Targeted Technology Commercialization 343 Assistance Grant Program.— 344 (1) INTENT; GOALS AND OBJECTIVES; CREATION OF PROGRAM.— 345 (a) It is the intent of the Legislature that the Micro 346 Targeted Technology Commercialization Assistance Grant Program 347 act as a catalyst for eligible startup companies to accelerate 348 their growth and market penetration using state grant funds to 349 help pay certain operating expenditures. 350 (b) The grant program’s objectives include: 351 1. Accelerating the entry of new technology-based products 352 into the marketplace; 353 2. Producing additional technology-based jobs for this 354 state; 355 3. Providing leveraged resources to increase the 356 effectiveness and success of applicants' projects; 357 4. Accelerating commercialization of micro-targeted 358 technologies in the biomedical and technical fields; and 359 5. Encouraging the establishment and growth of high 360 quality, high-wage advanced biomedical and technology firms in 361 this state. 362 (2) ELIGIBILITY GUIDELINES.—A qualified applicant must: 363 (a) Be a company specializing in micro-targeted technology 364 which is registered with the Secretary of State to operate in 365 this state; 366 (b) Conduct its business activities in this state; 367 (c) Have fewer than 25 full-time, worldwide employees, 368 including full-time employees leased to the applicant, of which 369 at least 75 percent are domiciled in this state; 370 (d) Have at least one active application for a patent under 371 35 U.S.C. s. 111(a) filed with the United States Patent and 372 Trademark Office; 373 (e) Have received research grants or other financial 374 assistance from governmental entities, foundations, and other 375 private entities or investors, which in total at least equals 376 the amount of the grant being requested through this program; 377 (f) Have been selected to receive state university research 378 commercialization assistance grant funding, pursuant to s. 379 1004.226, which will be considered for the list of qualified 380 technologies; 381 (g) Have an executed agreement with the licensing 382 institution; and 383 (h) Have an established business plan that describes its 384 commercialization strategy, a business development plan that 385 includes revenue projections and a strategy for becoming 386 profitable, and a timeline for development that addresses 387 revenue growth and job creation in this state. 388 Each company receiving funding must provide the institute and 389 the office an annual report on its development since being 390 awarded the grant. The report must include the company’s 391 commercialization strategy; business development plan; timeline 392 for development; actual revenue and revenue projections, both 393 total and within Florida only; and actual employment and 394 employment projections, both total and within Florida only. The 395 report is due on the anniversary date of when the company 396 received its grant. 397 (3) GRANT SELECTION PROCESS AND ADMINISTRATION.— 398 (a) The office shall provide administrative support to the 399 institute, as needed, for the twice-yearly issuance of an open 400 call for grant applications, for providing blank application 401 forms, and for receiving and processing the applications for 402 review. 403 (b) The office shall collect and provide to the institute 404 all grant applications within 15 days after the posted submittal 405 deadline date. 406 (c) The board of directors of the institute shall review 407 all grant applications received and, based on the eligibility 408 guidelines in subsection (3), submit a list of recommended grant 409 recipients to the office for its final approval. An application 410 must be recommended for approval or be denied by the institute’s 411 board within 45 days after receiving the application. The total 412 amount of grants recommended for disbursal to eligible companies 413 may not exceed $4.5 million in any one year. 414 (d) The executive director of the office shall review the 415 institute’s list of recommended grant recipients, and must 416 approve or deny the individual recommendations. The executive 417 director’s decisions must be made within 30 days after receiving 418 the list of recommendations from the institute. 419 (e) This section does not create a presumption that an 420 applicant will be approved by the office to receive a grant. 421 However, the office may issue a nonbinding opinion letter, upon 422 the request of a prospective applicant, as to its eligibility 423 for a grant and the potential amount of the grant. 424 (f) Grant awards shall be disbursed twice yearly to 425 recipient companies. 426 (4) AWARDS.—The office may make a one-time award of up to 427 $500,000 to a qualified applicant. Disbursal of grant awards 428 shall be within 45 days after the office’s final approval of 429 grant applications. 430 (5) USE OF GRANT FUNDS.—Grant funds shall be used by a 431 recipient to pay only wages, rent, and other operating expenses, 432 and to purchase equipment and supplies necessary to its 433 business. Grant funds may not be used to retire company debt. 434 (6) ANNUAL REPORT.—The office, with assistance from the 435 institute, shall submit an annual report of the grant program’s 436 activities to the Governor, the President of the Senate, and the 437 Speaker of the House of Representatives by July 15 of each year, 438 beginning in 2010. 439 (7) RULES.—The office may adopt rules pursuant to ss. 440 120.536(1) and 120.54 to administer this section, including the 441 format and content of grant application forms, and the criteria 442 for qualifying companies engaged in technology research and 443 experimental development, production, or provision of technology 444 for commercial or public purposes. 445 (8) MONITORING.—Before the 2011 Regular Session of the 446 Legislature, the Office of Program Policy Analysis and 447 Government Accountability shall conduct a review and evaluation 448 of the grant program. The office shall specifically evaluate the 449 grant program’s effectiveness in using state funds to sustain 450 and nurture companies developing micro-targeted technologies, to 451 create high-wage jobs, and to attract outside investment in 452 these companies. 453 Section 7. Subsection (19) is added to section 213.053, 454 Florida Statutes, to read: 455 213.053 Confidentiality and information sharing.— 456 (19) Information relative to transfer of net operating 457 losses under s. 220.194 may be disclosed to the Office of 458 Tourism, Trade, and Economic Development or its employees or 459 agents that have been identified in writing by the office to the 460 department for use in the performance of official duties. All 461 information so obtained is subject to the same confidentiality 462 as imposed on the department. 463 Section 8. (1) The sum of $29 million is transferred from 464 the Florida Opportunity Fund to the Economic Development Trust 465 Fund for the purpose of funding the credit transfer program and 466 grant program created by this act. Notwithstanding s. 216.301, 467 Florida Statutes, and pursuant to s. 216.351, Florida Statutes, 468 the unexpended balance of this appropriation at the end of the 469 fiscal year shall remain in the trust fund and shall be 470 available for carrying out the purposes of the grant program in 471 future years. 472 (2) Of that amount: 473 (a) The sum of $2 million is appropriated to the Institute 474 for the Commercialization of Public Research for the 2009-2010 475 fiscal year to support its operations, including its management, 476 operations, tracking, and measurement of outcomes relative to 477 the grant program. 478 (b) The sum of $18 million shall be retained in the 479 Economic Development Trust Fund and earmarked for the Micro 480 Targeted Technology Commercialization Assistance Grant Program, 481 to be used consistent with the purposes of s. 220.195, Florida 482 Statutes. 483 (c) The sum of $9 million shall be retained in the Economic 484 Development Trust Fund to be used to reimburse the General 485 Revenue Fund so as to defray the cost to the state of the net 486 operating loss tax credits created in s. 220.195, Florida 487 Statutes. 488 Section 9. Sections 220.194 and 220.195, Florida Statutes, 489 are repealed effective June 30, 20l3, unless reviewed and saved 490 from repeal through reenactment by the Legislature. 491 Section 10. This act shall take effect upon becoming a law.