| 1 | A bill to be entitled |
| 2 | An act relating to Florida ports investments; creating s. |
| 3 | 311.23, F.S.; providing a short title; providing a |
| 4 | purpose; providing definitions; providing requirements for |
| 5 | certification to operate as a certified capital company; |
| 6 | providing application requirements; providing for an |
| 7 | application fee and annual certification renewal fees; |
| 8 | providing application review and approval and |
| 9 | certification administration and enforcement duties and |
| 10 | responsibilities of the Department of Financial Services; |
| 11 | providing grounds for denial of certification or |
| 12 | decertification; providing for investments by the Office |
| 13 | of Tourism, Trade, and Economic Development in port |
| 14 | related activities; specifying allocations for certain |
| 15 | port activities and investments; providing requirements |
| 16 | for capital allocation and investment; providing for a |
| 17 | premium tax credit; providing for carryforward of the |
| 18 | credit; providing limitations on the credit; providing |
| 19 | limitations on the amount of tax credits; providing |
| 20 | requirements for the office to administer the allocation |
| 21 | of tax credits; providing requirements and procedures for |
| 22 | a credit claim process; providing penalties for perjury |
| 23 | for false written declaration involving verification of |
| 24 | certain documentation; authorizing the Department of |
| 25 | Revenue to conduct audits; providing investment |
| 26 | requirements; providing for state participation; providing |
| 27 | requirements and procedures for decertification; |
| 28 | preserving audit authority of the Chief Financial Officer; |
| 29 | providing criteria for deficiency assessments; providing |
| 30 | penalties for failure to report and timely pay any tax |
| 31 | due; providing for transferability of unused credits; |
| 32 | providing a definition; providing reporting requirements; |
| 33 | providing for deposit of fees; authorizing the Department |
| 34 | of Revenue to adopt rules; authorizing the Office of |
| 35 | Tourism, Trade, and Economic Development to adopt rules; |
| 36 | providing an effective date. |
| 37 |
|
| 38 | Be It Enacted by the Legislature of the State of Florida: |
| 39 |
|
| 40 | Section 1. Section 311.23, Florida Statutes, is created to |
| 41 | read: |
| 42 | 311.23 Florida Ports Investment Act.- |
| 43 | (1) SHORT TITLE.-This section may be cited as the "Florida |
| 44 | Ports Investment Act." |
| 45 | (2) PURPOSE.-The primary purpose of this section is to |
| 46 | stimulate a substantial increase in the state's port |
| 47 | infrastructure by providing an incentive for insurance companies |
| 48 | to invest in certified port activities in this state which, in |
| 49 | turn, will generate investments in new port businesses or in |
| 50 | expanding port businesses. The increase in investment capital |
| 51 | flowing into new or expanding port activities and businesses is |
| 52 | intended to contribute to employment growth, create jobs that |
| 53 | exceed the average wage for the county in which the jobs are |
| 54 | created, and expand or diversify the economic base of this |
| 55 | state. |
| 56 | (3) DEFINITIONS.-As used in this section, the term: |
| 57 | (a) "Affiliate of an insurance company" means: |
| 58 | 1. Any person directly or indirectly beneficially owning, |
| 59 | whether through rights, options, convertible interests, or |
| 60 | otherwise, controlling, or holding power to vote 10 percent or |
| 61 | more of the outstanding voting securities or other voting |
| 62 | ownership interests of the insurance company; |
| 63 | 2. Any person 10 percent or more of whose outstanding |
| 64 | voting securities or other voting ownership interest is directly |
| 65 | or indirectly beneficially owned, whether through rights, |
| 66 | options, convertible interests, or otherwise, controlled, or |
| 67 | held with power to vote by the insurance company; |
| 68 | 3. Any person directly or indirectly controlling, |
| 69 | controlled by, or under common control with the insurance |
| 70 | company; |
| 71 | 4. A partnership in which the insurance company is a |
| 72 | general partner; or |
| 73 | 5. Any person who is a principal, director, employee, or |
| 74 | agent of the insurance company or an immediate family member of |
| 75 | the principal, director, employee, or agent. |
| 76 | (b) "Certified capital" means an investment of cash by a |
| 77 | certified investor in a certified capital company which fully |
| 78 | funds the purchase price of either or both its equity interest |
| 79 | in the certified capital company or a qualified debt instrument |
| 80 | issued by the certified capital company. |
| 81 | (c) "Certified capital company" means a corporation, |
| 82 | partnership, or limited liability company that: |
| 83 | 1. Is certified by the office under this section; |
| 84 | 2. Receives investments of certified capital from two or |
| 85 | more unaffiliated certified investors; and |
| 86 | 3. Makes investments in qualified port businesses as its |
| 87 | primary activity. |
| 88 | (d) "Certified investor" means any insurance company |
| 89 | subject to premium tax liability under s. 624.509 that |
| 90 | contributes certified capital. |
| 91 | (e) "Department" means the Department of Financial |
| 92 | Services. |
| 93 | (f) "Office" means the Office of Tourism, Trade, and |
| 94 | Economic Development. |
| 95 | (g) "Premium tax liability" means any liability incurred |
| 96 | by an insurance company under s. 624.509. |
| 97 | (h) "Principal" means an executive officer of a |
| 98 | corporation, partner of a partnership, manager of a limited |
| 99 | liability company, or any other person with equivalent executive |
| 100 | functions. |
| 101 | (i) "Qualified port business" means the ports and |
| 102 | associated facilities listed in s. 403.021(9)(b) that meet the |
| 103 | following qualifications: |
| 104 | 1. The port is headquartered in this state and its |
| 105 | principal business operations are located in this state. |
| 106 | 2. Regional projects use the port's foreign trade zone for |
| 107 | purposes involving manufacturing, processing or assembling of |
| 108 | products, or conducting or providing services. |
| 109 | 3. The port has applied and qualified for investment |
| 110 | funding under paragraph (5)(d). |
| 111 | (j) "Qualified debt instrument" means a debt instrument, |
| 112 | or a hybrid of a debt instrument, issued by a certified capital |
| 113 | company, at par value or a premium, with an original maturity |
| 114 | date of at least 5 years after the date of issuance, a repayment |
| 115 | schedule that is no faster than a level principal amortization |
| 116 | over a 5-year period, and interest, distribution, or payment |
| 117 | features that are not related to the profitability of the |
| 118 | certified capital company or the performance of the certified |
| 119 | capital company's investment portfolio. |
| 120 | (k) "Qualified distribution" means any distribution or |
| 121 | payment to equity holders of a certified capital company for: |
| 122 | 1. Costs and expenses of forming, syndicating, managing, |
| 123 | and operating the certified capital company, including an annual |
| 124 | management fee in an amount that does not exceed 2.5 percent of |
| 125 | the certified capital of the certified capital company, plus |
| 126 | reasonable and necessary fees in accordance with industry custom |
| 127 | for professional services, including, but not limited to, legal |
| 128 | and accounting services, related to the operation of the |
| 129 | certified capital company; or |
| 130 | 2. Any projected increase in federal or state taxes, |
| 131 | including penalties and interest related to state and federal |
| 132 | income taxes, of the equity owners of a certified capital |
| 133 | company resulting from the earnings or other tax liability of |
| 134 | the certified capital company to the extent that the increase is |
| 135 | related to the ownership, management, or operation of a |
| 136 | certified capital company. |
| 137 | (4) CERTIFICATION; GROUNDS FOR DENIAL OR DECERTIFICATION.- |
| 138 | (a) To operate as a certified capital company, a |
| 139 | corporation, partnership, or limited liability company must be |
| 140 | certified by the department pursuant to this section. |
| 141 | (b) An applicant for certification as a certified capital |
| 142 | company must file a verified application with the department on |
| 143 | or before December 1, 2010, in a form that the department may |
| 144 | prescribe by rule. The applicant shall submit a nonrefundable |
| 145 | application fee of $7,500 to the department. The applicant shall |
| 146 | provide: |
| 147 | 1. The name of the applicant and the address of its |
| 148 | principal office and each office in this state. |
| 149 | 2. The applicant's form and place of organization and the |
| 150 | relevant organizational documents, bylaws, and amendments or |
| 151 | restatements of such documents, bylaws, or amendments. |
| 152 | 3. Evidence from the Department of State that the |
| 153 | applicant is registered with the Department of State as required |
| 154 | by law, maintains an active status with the Department of State, |
| 155 | and has not been dissolved or had its registration revoked, |
| 156 | canceled, or withdrawn. |
| 157 | 4. The applicant's proposed method of doing business. |
| 158 | 5. The applicant's financial condition and history, |
| 159 | including an audit report on the financial statements prepared |
| 160 | in accordance with generally accepted accounting principles |
| 161 | showing net capital of not less than $500,000 within 90 days |
| 162 | after the date the application is submitted to the department. |
| 163 | If the date of the application is more than 90 days after the |
| 164 | preparation of the applicant's fiscal year-end financial |
| 165 | statements, the applicant may file financial statements reviewed |
| 166 | by an independent certified public accountant for the period |
| 167 | subsequent to the audit report, together with the audited |
| 168 | financial statement for the most recent fiscal year. If the |
| 169 | applicant has been in business less than 12 months and has not |
| 170 | prepared an audited financial statement, the applicant may file |
| 171 | a financial statement reviewed by an independent certified |
| 172 | public accountant. |
| 173 | (c) On or before December 31, 2010, the department shall |
| 174 | grant or deny certification as a certified capital company. If |
| 175 | the department denies certification within the time period |
| 176 | specified, the department shall inform the applicant of the |
| 177 | grounds for the denial. If the department has not granted or |
| 178 | denied certification within the time specified, the application |
| 179 | shall be deemed approved. The department shall approve the |
| 180 | application if the department finds that: |
| 181 | 1. The applicant satisfies the requirements of paragraph |
| 182 | (b). |
| 183 | 2. No evidence exists that the applicant has committed any |
| 184 | act specified in paragraph (d). |
| 185 | 3. At least two of the principals have a minimum of 5 |
| 186 | years of experience making venture capital investments out of |
| 187 | private equity funds, with not less than $20 million being |
| 188 | provided by third-party investors for investment in the early |
| 189 | stage of operating businesses. At least one full-time manager or |
| 190 | principal of the certified capital company who has such |
| 191 | experience must be primarily located in an office of the |
| 192 | certified capital company which is based in this state. |
| 193 | (d) The department may deny certification or decertify a |
| 194 | certified capital company if the grounds for decertification are |
| 195 | not removed or corrected within 90 days after the notice of such |
| 196 | grounds is received by the certified capital company. The |
| 197 | department may deny certification or decertify a certified |
| 198 | capital company if the certified capital company fails to |
| 199 | maintain common stock or paid-in capital of at least $500,000, |
| 200 | or if the department determines that the applicant, or any |
| 201 | principal or director of the certified capital company, has: |
| 202 | 1. Violated any provision of this section; |
| 203 | 2. Made a material misrepresentation or false statement or |
| 204 | concealed any essential or material fact from any person during |
| 205 | the application process or with respect to information and |
| 206 | reports required of certified capital companies under this |
| 207 | section; |
| 208 | 3. Been convicted of, or entered a plea of guilty or nolo |
| 209 | contendere to, a crime against the laws of this state or any |
| 210 | other state or of the United States or any other country or |
| 211 | government, including a fraudulent act in connection with the |
| 212 | operation of a certified capital company, or in connection with |
| 213 | the performance of fiduciary duties in another capacity; |
| 214 | 4. Been adjudicated liable in a civil action on grounds of |
| 215 | fraud, embezzlement, misrepresentation, or deceit; or |
| 216 | 5.a. Been the subject of any decision, finding, |
| 217 | injunction, suspension, prohibition, revocation, denial, |
| 218 | judgment, or administrative order by any court of competent |
| 219 | jurisdiction, administrative law judge, or any state or federal |
| 220 | agency, national securities, commodities, or option exchange, or |
| 221 | national securities, commodities, or option association, |
| 222 | involving a material violation of any federal or state |
| 223 | securities or commodities law or any rule or regulation adopted |
| 224 | under such law, or any rule or regulation of any national |
| 225 | securities, commodities, or options exchange, or national |
| 226 | securities, commodities, or options association; or |
| 227 | b. Been the subject of any injunction or adverse |
| 228 | administrative order by a state or federal agency regulating |
| 229 | banking, insurance, finance or small loan companies, real |
| 230 | estate, mortgage brokers, or other related or similar |
| 231 | industries. |
| 232 | (e) The certified capital company shall file a copy of its |
| 233 | certification with the department by January 31, 2011. |
| 234 | (f) Any offering material involving the sale of securities |
| 235 | of the certified capital company shall include the following |
| 236 | statement: "By authorizing the formation of a certified capital |
| 237 | company, the State of Florida does not endorse the quality of |
| 238 | management or the potential for earnings of such company and is |
| 239 | not liable for damages or losses to a certified investor in the |
| 240 | company. Use of the word 'certified' in an offering does not |
| 241 | constitute a recommendation or endorsement of the investment by |
| 242 | the State of Florida. Investments in a certified capital company |
| 243 | prior to the time such company is certified are not eligible for |
| 244 | premium tax credits. If applicable provisions of law are |
| 245 | violated, the state may require forfeiture of unused premium tax |
| 246 | credits and repayment of used premium tax credits by the |
| 247 | certified investor." |
| 248 | (g) An insurance company or any affiliate of an insurance |
| 249 | company may not manage or control, directly or indirectly, the |
| 250 | direction of investments of a certified capital company. This |
| 251 | prohibition does not preclude a certified investor, insurance |
| 252 | company, or any other party from exercising its legal rights and |
| 253 | remedies, which may include interim management of a certified |
| 254 | capital company, if a certified capital company is in default of |
| 255 | its obligations under law or its contractual obligations to such |
| 256 | certified investor, insurance company, or other party. |
| 257 | (h) On or before December 31 of each year, each certified |
| 258 | capital company shall pay to the department an annual, |
| 259 | nonrefundable renewal certification fee of $5,000. Renewal fees |
| 260 | may not be required within 6 months after the date of initial |
| 261 | certification. |
| 262 | (i) The department shall administer and provide for the |
| 263 | enforcement of certification requirements for certified capital |
| 264 | companies as provided in this section. The department may adopt |
| 265 | any rules necessary to carry out its duties, obligations, and |
| 266 | powers related to certification, renewal of certification, or |
| 267 | decertification of certified capital companies and may perform |
| 268 | any other acts necessary for the proper administration and |
| 269 | enforcement of such duties, obligations, and powers. |
| 270 | (j) Decertification of a certified capital company under |
| 271 | this subsection does not affect the ability of certified |
| 272 | investors in the certified capital company from claiming future |
| 273 | premium tax credits earned as a result of an investment in the |
| 274 | certified capital company during the period in which it was duly |
| 275 | certified. |
| 276 | (5) INVESTMENTS BY THE OFFICE IN PORT-RELATED ACTIVITIES.- |
| 277 | (a)1. The office shall seek to maintain the state's |
| 278 | advantage in ports and related industries. In order to maintain |
| 279 | that advantage, the office shall: |
| 280 | a. Allocate at least 60 percent of the capital to direct |
| 281 | port activities as described in s. 402.021(9). |
| 282 | b. Allocate at least 20 percent of the capital to port- |
| 283 | related activities as specified in s. 403.021(9). |
| 284 | c. Allocate at least 20 percent of the capital to |
| 285 | education related to ports and port-related studies under the |
| 286 | New Florida Initiative developed by the Florida Board of |
| 287 | Governors of the State University System. |
| 288 | 2. The capital raised under this section shall be |
| 289 | allocated by July 1, 2012. |
| 290 | 3. An individual port project may not consume more than 15 |
| 291 | percent of the total revenues of the corporation's intake. |
| 292 | (b) All capital not invested in qualified port businesses: |
| 293 | 1. Must be held in a financial institution as defined by |
| 294 | s. 655.005(1)(h) or held by a broker-dealer registered under s. |
| 295 | 517.12. |
| 296 | 2. Must be invested only in: |
| 297 | a. United States Treasury obligations; |
| 298 | b. Certificates of deposit or other obligations, maturing |
| 299 | within 3 years after acquisition of such certificates or |
| 300 | obligations, issued by any financial institution or trust |
| 301 | company incorporated under the laws of the United States; |
| 302 | c. Marketable obligations, maturing within 5 years or less |
| 303 | after the acquisition of such obligations, which are rated "A" |
| 304 | or better by any nationally recognized credit rating agency; |
| 305 | d. Mortgage-backed securities, with an average life of 5 |
| 306 | years or less, after the acquisition of such securities, which |
| 307 | are rated "A" or better by any nationally recognized credit |
| 308 | rating agency; |
| 309 | e. Collateralized mortgage obligations and real estate |
| 310 | mortgage investment conduits that are direct obligations of an |
| 311 | agency of the Federal Government; are not private-label issues; |
| 312 | are in book-entry form; and do not include the classes of |
| 313 | interest only, principal only, residual, or zero; or |
| 314 | f. Interests in money market funds, the portfolio of which |
| 315 | is limited to cash and obligations described in sub- |
| 316 | subparagraphs a.-d. |
| 317 | (c) The aggregate amount of all investments in qualified |
| 318 | port businesses made by the certified capital company from the |
| 319 | date of its certification shall be considered in the calculation |
| 320 | of the percentage requirements under paragraph (a). |
| 321 | (d) When an investment in a qualified port business is |
| 322 | ready, the port must petition the office to receive funding and |
| 323 | certify that the investment is of a beneficial nature to the |
| 324 | port, is ready to proceed within 60 days for design, |
| 325 | construction, and permitting, and will create a lasting economic |
| 326 | impact as defined by the office. Applications for funding must |
| 327 | be made to the office under rules adopted by the office. |
| 328 | (6) PREMIUM TAX CREDIT; AMOUNT; LIMITATIONS.- |
| 329 | (a) Any certified investor who makes an investment of |
| 330 | certified capital shall earn a vested credit against premium tax |
| 331 | liability equal to 100 percent of the certified capital invested |
| 332 | by the certified investor. Certified investors shall be entitled |
| 333 | to use no more than 10 percentage points of the vested premium |
| 334 | tax credit, including any carryforward credits under this |
| 335 | section, per year beginning with premium tax filings for |
| 336 | calendar year 2012. Any premium tax credits not used by |
| 337 | certified investors in any single year may be carried forward |
| 338 | and applied against the premium tax liabilities of such |
| 339 | investors for subsequent calendar years. The carryforward credit |
| 340 | may be applied against subsequent premium tax filings through |
| 341 | calendar year 2029. |
| 342 | (b) The credit to be applied against premium tax liability |
| 343 | in any single year may not exceed the premium tax liability of |
| 344 | the certified investor for that taxable year. |
| 345 | (c) A certified investor claiming a credit against premium |
| 346 | tax liability earned through an investment in a certified |
| 347 | capital company shall not be required to pay any additional |
| 348 | retaliatory tax levied pursuant to s. 624.5091 as a result of |
| 349 | claiming such credit. Because credits under this section are |
| 350 | available to a certified investor, s. 624.5091 does not limit |
| 351 | such credit in any manner. |
| 352 | (d) The amount of tax credits vested under this section |
| 353 | shall not be considered in ratemaking proceedings involving a |
| 354 | certified investor. |
| 355 | (7) ANNUAL TAX CREDIT; MAXIMUM AMOUNT; ALLOCATION |
| 356 | PROCESS.- |
| 357 | (a) The total amount of tax credits which may be allocated |
| 358 | by the office shall not exceed $500 million. The total amount of |
| 359 | tax credits which may be used by certified investors under this |
| 360 | section shall not exceed $25 million annually. |
| 361 | (b) The office shall be responsible for allocating premium |
| 362 | tax credits as provided for in this section to certified capital |
| 363 | companies. |
| 364 | (c) Each certified capital company must apply to the |
| 365 | office for an allocation of premium tax credits for potential |
| 366 | certified investors by March 15, 2011, on a form developed by |
| 367 | the office with the cooperation of the Department of Revenue. |
| 368 | The form shall be accompanied by an affidavit from each |
| 369 | potential certified investor confirming that the potential |
| 370 | certified investor has agreed to make an investment of certified |
| 371 | capital in a certified capital company up to a specified amount, |
| 372 | subject only to the receipt of a premium tax credit allocation |
| 373 | pursuant to this subsection. No allocation shall be made to the |
| 374 | potential investors of a certified capital company unless such |
| 375 | certified capital company has filed premium tax allocation |
| 376 | claims that would result in an allocation to the potential |
| 377 | investors in such certified capital company of not less than $15 |
| 378 | million in the aggregate. |
| 379 | (d) On or before April 1, 2011, the office shall inform |
| 380 | each certified capital company of its share of total premium tax |
| 381 | credits available for allocation to each of its potential |
| 382 | investors. |
| 383 | (e) If a certified capital company does not receive |
| 384 | certified capital equaling the amount of premium tax credits |
| 385 | allocated to a potential certified investor for which the |
| 386 | investor filed a premium tax allocation claim within 10 business |
| 387 | days after the investor received a notice of allocation, the |
| 388 | certified capital company shall notify the office by overnight |
| 389 | common carrier delivery service of the company's failure to |
| 390 | receive the capital. That portion of the premium tax credits |
| 391 | allocated to the certified capital company shall be forfeited. |
| 392 | If the office must make a pro rata allocation under paragraph |
| 393 | (f), it shall reallocate such available credits among the other |
| 394 | certified capital companies on the same pro rata basis as the |
| 395 | initial allocation. |
| 396 | (f) If the total amount of capital committed by all |
| 397 | certified investors to certified capital companies in premium |
| 398 | tax allocation claims exceeds the aggregate cap on the amount of |
| 399 | credits that may be awarded, the premium tax credits that may be |
| 400 | allowed to any one certified investor shall be allocated using |
| 401 | the following ratio: |
| 402 | |
| 403 | A/B = X/>$500,000,000 |
| 404 | |
| 405 | Where the letter "A" represents the total amount of certified |
| 406 | capital that certified investors have agreed to invest in any |
| 407 | one certified capital company, the letter "B" represents the |
| 408 | aggregate amount of certified capital that all certified |
| 409 | investors have agreed to invest in all certified capital |
| 410 | companies, the letter "X" is the numerator and represents the |
| 411 | total amount of premium tax credits and certified capital that |
| 412 | may be allocated to a certified capital company in calendar year |
| 413 | 2011, and $500 million is the denominator and represents the |
| 414 | total amount of premium tax credits and certified capital that |
| 415 | may be allocated to all certified investors in calendar year |
| 416 | 2011. Any such premium tax credits are not first available for |
| 417 | utilization until annual filings are made in 2012 for calendar |
| 418 | year 2011, and the tax credits may be used at a rate not to |
| 419 | exceed 10 percent annually. |
| 420 | (g) The maximum amount of certified capital for which |
| 421 | premium tax allocation claims may be filed on behalf of any |
| 422 | certified investor and its affiliates by one or more certified |
| 423 | capital companies may not exceed $25 million. |
| 424 | (h) To the extent that less than $500 million in certified |
| 425 | capital is raised in connection with the procedure set forth in |
| 426 | paragraphs (c)-(g), the department may adopt rules to allow a |
| 427 | subsequent allocation of the remaining premium tax credits |
| 428 | authorized under this section. |
| 429 | (8) ANNUAL TAX CREDIT; CLAIM PROCESS.- |
| 430 | (a) On an annual basis, on or before December 31, each |
| 431 | certified capital company shall file with the department and the |
| 432 | office, in consultation with the department, on a form |
| 433 | prescribed by the office, for each calendar year: |
| 434 | 1. The total dollar amount the certified capital company |
| 435 | received from certified investors, the identity of the certified |
| 436 | investors, and the amount received from each certified investor |
| 437 | during the immediately preceding calendar year. |
| 438 | 2. The total dollar amount the certified capital company |
| 439 | invested and the amount invested in qualified port businesses, |
| 440 | together with the identity and location of those businesses and |
| 441 | the amount invested in each qualified port business during the |
| 442 | immediately preceding calendar year. |
| 443 | 3. For informational purposes only, the total number of |
| 444 | permanent, full-time jobs either created or retained by the |
| 445 | qualified port business during the immediately preceding |
| 446 | calendar year, the average wage of the jobs created or retained, |
| 447 | the industry sectors in which the qualified port businesses |
| 448 | operate, and any additional capital invested in qualified port |
| 449 | businesses from sources other than certified capital companies. |
| 450 | (b) The form shall be verified by one or more principals |
| 451 | of the certified capital company submitting the form. |
| 452 | Verification shall be accomplished as provided in s. |
| 453 | 92.525(1)(b) and subject to the provisions of s. 92.525(3). |
| 454 | (c) The office shall review the form, and any supplemental |
| 455 | documentation, submitted by each certified capital company for |
| 456 | the purpose of verifying: |
| 457 | 1. That the businesses in which certified capital has been |
| 458 | invested by the certified capital company are in fact qualified |
| 459 | port businesses and that the amount of certified capital |
| 460 | invested by the certified capital company is as represented in |
| 461 | the form. |
| 462 | 2. The amount of certified capital invested in the |
| 463 | certified capital company by the certified investors. |
| 464 | 3. The amount of premium tax credit available to certified |
| 465 | investors. |
| 466 | (d) The Department of Revenue may audit and examine the |
| 467 | accounts, books, or records of certified capital companies and |
| 468 | certified investors to ascertain the correctness of any report |
| 469 | and financial return that has been filed and to ascertain a |
| 470 | certified capital company's compliance with the tax-related |
| 471 | provisions of this section. |
| 472 | (e) This subsection shall take effect January 1, 2011. |
| 473 | (9) REQUIREMENT FOR FULL INVESTMENT; STATE PARTICIPATION.- |
| 474 | (a) A certified capital company may make qualified |
| 475 | distributions at any time. In order to make a distribution to |
| 476 | its equity holders, other than a qualified distribution, a |
| 477 | certified capital company must have invested an amount |
| 478 | cumulatively equal to 100 percent of its certified capital in |
| 479 | investments in qualified port businesses. Payments to debt |
| 480 | holders of a certified capital company, however, may be made |
| 481 | without restriction with respect to repayments of principal and |
| 482 | interest on indebtedness owed to them by a certified capital |
| 483 | company, including indebtedness of the certified capital company |
| 484 | on which certified investors earned premium tax credits. A debt |
| 485 | holder that is also a certified investor or equity holder of a |
| 486 | certified capital company may receive payments with respect to |
| 487 | such debt without restrictions. |
| 488 | (b) Cumulative distributions from a certified capital |
| 489 | company to its certified investors and equity holders, other |
| 490 | than qualified distributions, in excess of the certified capital |
| 491 | company's original certified capital and any additional capital |
| 492 | contributions to the certified capital company may be audited by |
| 493 | a nationally recognized certified public accounting firm |
| 494 | acceptable to the office, at the expense of the certified |
| 495 | capital company, if the department directs such an audit to be |
| 496 | conducted. The audit shall determine whether aggregate |
| 497 | cumulative distributions from the certified capital company to |
| 498 | all certified investors and equity holders, other than qualified |
| 499 | distributions, have equaled the sum of the certified capital |
| 500 | company's original certified capital and any additional capital |
| 501 | contributions to the certified capital company. If at the time |
| 502 | of any such distribution made by the certified capital company, |
| 503 | such distribution taken together with all other such |
| 504 | distributions made by the certified capital company, other than |
| 505 | qualified distributions, exceeds in the aggregate the sum of the |
| 506 | certified capital company's original certified capital and any |
| 507 | additional capital contributions to the certified capital |
| 508 | company, as determined by the audit, the certified capital |
| 509 | company shall pay to the Department of Revenue 10 percent of the |
| 510 | portion of such distribution in excess of such amount. Payments |
| 511 | to the Department of Revenue by a certified capital company |
| 512 | pursuant to this paragraph may not exceed the aggregate amount |
| 513 | of tax credits used by all certified investors in such certified |
| 514 | capital company. |
| 515 | (10) DECERTIFICATION.- |
| 516 | (a) The department shall conduct an annual review of each |
| 517 | certified capital company to determine if the certified capital |
| 518 | company is abiding by the requirements of certification, to |
| 519 | advise the certified capital company as to the eligibility |
| 520 | status of its investments in qualified port businesses, and to |
| 521 | ensure that no investment has been made in violation of this |
| 522 | section. The cost of the annual review shall be paid by each |
| 523 | certified capital company. |
| 524 | (b) This subsection does not limit the Chief Financial |
| 525 | Officer's authority to conduct audits of certified capital |
| 526 | companies as deemed appropriate and necessary. |
| 527 | (c) Any material violation of this section, or a finding |
| 528 | that the certified capital company or any principal or director |
| 529 | thereof has committed any act specified in paragraph (4)(d), |
| 530 | constitutes grounds for decertification of the certified capital |
| 531 | company. If the department determines that a certified capital |
| 532 | company is no longer in compliance with the certification |
| 533 | requirements of this section, the department shall, by written |
| 534 | notice, inform the officers of such company that the company may |
| 535 | be subject to decertification 90 days after the date of mailing |
| 536 | of the notice, unless the deficiencies are corrected and the |
| 537 | company is again found to be in compliance with all |
| 538 | certification requirements. |
| 539 | (d) At the end of the 90-day grace period, if the |
| 540 | certified capital company is still not in compliance with the |
| 541 | certification requirements, the department may issue a notice to |
| 542 | revoke or suspend the certification or to impose an |
| 543 | administrative fine. The department shall advise each respondent |
| 544 | of the right to an administrative hearing under chapter 120 |
| 545 | prior to final action by the department. |
| 546 | (e) If the department revokes a certification, such |
| 547 | revocation shall also deny, suspend, or revoke the |
| 548 | certifications of all affiliates of the certified capital |
| 549 | company. |
| 550 | (f) Decertification of a certified capital company for |
| 551 | failure to meet all requirements for continued certification |
| 552 | under paragraph (5)(a) may cause the recapture of premium tax |
| 553 | credits previously claimed by such company and the forfeiture of |
| 554 | future premium tax credits to be claimed by certified investors |
| 555 | with respect to such certified capital company, as follows: |
| 556 | 1. Decertification of a certified capital company within 3 |
| 557 | years after its certification date shall cause the recapture of |
| 558 | all premium tax credits previously claimed by such company and |
| 559 | the forfeiture of all future premium tax credits to be claimed |
| 560 | by certified investors with respect to such company. |
| 561 | 2. When a certified capital company meets all requirements |
| 562 | for continued certification under subparagraph (5)(a)1. and |
| 563 | subsequently fails to meet the requirements for continued |
| 564 | certification under subparagraph (5)(a)2., the premium tax |
| 565 | credits that have been or will be taken by certified investors |
| 566 | within 3 years after the certification date of the certified |
| 567 | capital company are not subject to recapture or forfeiture; |
| 568 | however, all premium tax credits that have been or will be taken |
| 569 | by certified investors after the third anniversary of the |
| 570 | certification date of the certified capital company are subject |
| 571 | to recapture or forfeiture. |
| 572 | 3. When a certified capital company meets all requirements |
| 573 | for continued certification under subparagraphs (5)(a)1. and 2. |
| 574 | and subsequently fails to meet the requirements for continued |
| 575 | certification under subparagraph (5)(a)3., the premium tax |
| 576 | credits that have been or will be taken by certified investors |
| 577 | within 4 years after the certification date of the certified |
| 578 | capital company are not subject to recapture or forfeiture; |
| 579 | however, all premium tax credits that have been or will be taken |
| 580 | by certified investors after the fourth anniversary of the |
| 581 | certification date of the certified capital company are subject |
| 582 | to recapture and forfeiture. |
| 583 | 4. If a certified capital company has met all requirements |
| 584 | for continued certification under paragraph (5)(a), but the |
| 585 | company is subsequently decertified, the premium tax credits |
| 586 | that have been or will be taken by certified investors within 5 |
| 587 | years after the certification date of the company are not |
| 588 | subject to recapture or forfeiture. Premium tax credits to be |
| 589 | taken after the 5th year of certification are subject to |
| 590 | forfeiture only if the certified capital company is decertified |
| 591 | within 5 years after its certification date. |
| 592 | 5. If a certified capital company has invested an amount |
| 593 | cumulatively equal to 100 percent of its certified capital in |
| 594 | investments in qualified port businesses, all premium tax |
| 595 | credits claimed or to be claimed by its certified investors are |
| 596 | not subject to recapture or forfeiture. |
| 597 | (g) Decertification of a certified capital company |
| 598 | pursuant to subsection (4) or this subsection does not affect |
| 599 | the ability of certified investors in such certified capital |
| 600 | company to continue to claim future premium tax credits earned |
| 601 | as an investment in the certified capital company during the |
| 602 | period in which it was duly certified. |
| 603 | (h) The office shall send written notice to the address of |
| 604 | each certified investor whose premium tax credit has been |
| 605 | subject to recapture or forfeiture, using the address last shown |
| 606 | on the last premium tax filing. |
| 607 | (i) The certified investor is responsible for returning to |
| 608 | the Department of Revenue any forfeited insurance premium tax |
| 609 | credits, and such funds shall be paid into the General Revenue |
| 610 | Fund. |
| 611 | (j) The certified investor shall file with the Department |
| 612 | of Revenue an amended return or such other report as the |
| 613 | department may prescribe by rule and pay any required tax, not |
| 614 | later than 60 days after the decertification has been agreed to |
| 615 | or finally determined, whichever shall first occur. |
| 616 | (k) A notice of deficiency may be issued: |
| 617 | 1. At any time within 5 years after the date such |
| 618 | notification is given; or |
| 619 | 2. At any time if a certified investor fails to notify the |
| 620 | Department of Revenue. |
| 621 |
|
| 622 | In either case, the amount of any proposed assessment set forth |
| 623 | in such notice shall be limited to the amount of any deficiency |
| 624 | resulting under this section from the recomputation of the |
| 625 | certified investor's insurance premium tax and, if applicable, |
| 626 | its retaliatory tax for the taxable year giving effect only to |
| 627 | the item or items reflected in the decertification adjustment. |
| 628 | (l) Any certified investor who fails to report and timely |
| 629 | pay any tax due as a result of the forfeiture of its insurance |
| 630 | premium tax credit is in violation of this subsection and is |
| 631 | subject to a penalty of 10 percent of any underpayment or |
| 632 | delinquent taxes due and payable. |
| 633 | (m) When any taxpayer fails to pay any amount due as a |
| 634 | result of the forfeiture of its insurance premium tax credit as |
| 635 | provided for in this subsection, on or before the due date as |
| 636 | specified in this subsection, interest shall be due on any |
| 637 | insurance premium or retaliatory tax deficiency resulting from |
| 638 | such forfeiture, at the rate of 12 percent per year from the due |
| 639 | date of such amended return until paid. |
| 640 | (11) TRANSFERABILITY.-The claim of a transferee of a |
| 641 | certified investor's unused premium tax credit shall be |
| 642 | permitted in the same manner and subject to the same provisions |
| 643 | and limitations of this section as the original certified |
| 644 | investor. The term "transferee" means any person who: |
| 645 | (a) Through the voluntary sale, assignment, or other |
| 646 | transfer of the business or control of the business of the |
| 647 | certified investor, including the sale or other transfer of |
| 648 | stocks or assets by merger, consolidation, or dissolution, |
| 649 | succeeds to all or substantially all of the business and |
| 650 | property of the certified investor; |
| 651 | (b) Becomes by operation of law or otherwise the parent |
| 652 | company of the certified investor; |
| 653 | (c) Directly or indirectly owns, whether through rights, |
| 654 | options, convertible interests, or otherwise, controls, or holds |
| 655 | power to vote 10 percent or more of the outstanding voting |
| 656 | securities or other ownership interest of the certified |
| 657 | investor; |
| 658 | (d) Is a subsidiary of the certified investor or has 10 |
| 659 | percent or more of its outstanding voting securities or other |
| 660 | ownership interests directly or indirectly owned, whether |
| 661 | through rights, options, convertible interests, or otherwise, by |
| 662 | the certified investor; or |
| 663 | (e) Directly or indirectly controls, is controlled by, or |
| 664 | is under common control with the certified investor. |
| 665 | (12) REPORTING REQUIREMENTS.-The office shall report on an |
| 666 | annual basis to the Governor, the President of the Senate, and |
| 667 | the Speaker of the House of Representatives on or before April |
| 668 | 1: |
| 669 | (a) The total dollar amount each certified capital company |
| 670 | received from all certified investors and any other investor, |
| 671 | the identity of the certified investors, and the total amount of |
| 672 | premium tax credit used by each certified investor for the |
| 673 | previous calendar year. |
| 674 | (b) The total dollar amount invested by each certified |
| 675 | capital company and that portion invested in qualified port |
| 676 | businesses, the identity and location of those businesses, the |
| 677 | amount invested in each qualified port business, and the total |
| 678 | number of permanent, full-time jobs created or retained by each |
| 679 | qualified port business. |
| 680 | (c) The return for the state as a result of the certified |
| 681 | capital company investments in qualified port businesses, |
| 682 | including the extent to which: |
| 683 | 1. Certified capital company investments have contributed |
| 684 | to employment growth. |
| 685 | 2. The wage level of businesses in which certified capital |
| 686 | companies have invested exceeds the average wage for the county |
| 687 | in which the jobs are located. |
| 688 | 3. The investments of the certified capital companies in |
| 689 | qualified port businesses have contributed to expanding or |
| 690 | diversifying the economic base of the state. |
| 691 | (13) FEES.-All fees and charges of any nature collected by |
| 692 | the department under this section shall be paid into the State |
| 693 | Treasury and credited to the General Revenue Fund. |
| 694 | (14) RULEMAKING AUTHORITY.- |
| 695 | (a) The Department of Revenue may by rule prescribe forms |
| 696 | and procedures for the tax credit filings, audits, and |
| 697 | forfeiture of premium tax credits described in this section, and |
| 698 | for certified capital company payments under paragraph (9)(b). |
| 699 | (b) The office may adopt any rules necessary to carry out |
| 700 | its respective duties, obligations, and powers related to the |
| 701 | administration, review, and reporting provisions of this section |
| 702 | and may perform any other acts necessary for the proper |
| 703 | administration and enforcement of such duties, obligations, and |
| 704 | powers. |
| 705 | Section 2. This act shall take effect July 1, 2010. |