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         220.194Micro-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         220.195Micro-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.