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148.546 Application for motion picture or entertainment production tax incentives
-- Tax incentive agreement -- Required terms -- Administrative fee -- Review -Verification of expenditure reports -- Annual reports.
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An eligible company shall, at least thirty (30) days prior to incurring any
expenditure for which recovery will be sought, file an application for tax incentives
with the office. The application shall include:
(a) The name and address of the applicant;
(b) Verification that the applicant is a Kentucky-based company;
(c) The production script or a detailed synopsis of the script;
(d) The locations where the filming or production will occur;
(e) The anticipated date on which filming or production shall begin;
(f) The anticipated date on which the production will be completed;
(g) The total anticipated qualifying expenditures;
(h) The total anticipated qualifying payroll expenditures for resident and
nonresident above-the-line crew by county;
(i) The total anticipated qualifying payroll expenditures for resident and
nonresident below-the-line crew by county;
(j) The address of a Kentucky location at which records of the production will be
kept;
(k) An affirmation that if not for the incentive offered under KRS 148.542 to
148.546, the eligible company would not film or produce the production in the
Commonwealth; and
(l) Any other information the office may require.
The office shall notify the eligible company within thirty (30) days after receiving
the application of its status.
(a) Upon review of the application and any additional information submitted, the
office shall present the application and its recommendation to the Tourism
Development Finance Authority established by KRS 148.850 which may, by
resolution, authorize the execution of a tax incentive agreement between the
Tourism Development Finance Authority and the approved company.
(b) 1.
The total amount of tax credits authorized by the Tourism Development
Finance Authority during fiscal year 2010-2011 shall not exceed five
million dollars ($5,000,000).
2.
The total amount of tax credits authorized by the Tourism Development
Finance Authority during the fiscal year 2011-2012 shall not exceed
seven million five hundred thousand dollars ($7,500,000).
The tax incentive agreement shall include the following provisions:
(a) The duties and responsibilities of the parties;
(b) A detailed description of the motion picture or entertainment production for
which incentives are requested;
(c) The anticipated qualifying expenditures and qualifying payroll expenditures
for resident and nonresident above-the-line and below-the-line crews by
county;
(d) The minimum combined total of qualifying expenditures and qualifying
payroll expenditures necessary for the approved company to qualify for
incentives;
(e) That the approved company shall have no more than two (2) years from the
date the tax incentive agreement is executed to start the motion picture or
entertainment production;
(f) That the approved company shall have no more than four (4) years from the
execution of the tax incentive agreement to complete the motion picture or
entertainment production;
(g) That the motion picture or entertainment production shall not include obscene
materials and shall not negatively impact the economy or the tourism industry
of the Commonwealth;
(h) That the execution of the agreement is not a guarantee of tax incentives and
that actual receipt of the incentives shall be contingent upon the approved
company meeting the requirements established by the tax incentive
agreement;
(i) That the approved company shall submit to the office within one hundred
eighty (180) days of the completion of the motion picture or entertainment
production a detailed cost report of the qualifying expenditures, qualifying
payroll expenditures, and final script;
(j) That the approved company shall provide the office with documentation that
the approved company has withheld income tax as required by KRS 141.310
on all qualified payroll expenditures for which an incentive under KRS
141.383 and 148.544 is sought;
(k) That, if the office determines that the approved company has failed to comply
with any of its obligations under the tax incentive agreement:
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The office may deny the incentives available to the approved company;
2.
Both the office and the cabinet may pursue any remedy provided under
the tax incentive agreement;
3.
The office may terminate the tax incentive agreement; and
4.
Both the office and the cabinet may pursue any other remedy at law to
which it may be entitled;
(l) That the office shall monitor the tax incentive agreement;
(m) That the approved company shall provide to the office and the cabinet all
information necessary to monitor the tax incentive agreement;
(n) That the office may share information with the cabinet or any other entity the
office determines is necessary for the purposes of monitoring and enforcing
the terms of the tax incentive agreement;
(o) That the motion picture or entertainment production shall contain an
acknowledgment that the motion picture or entertainment production was
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produced or filmed in the Commonwealth of Kentucky;
(p) That the approved company shall include screen credits in its final production
that:
1.
Indicate that the approved company received tax incentives from the
Commonwealth of Kentucky; and
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Display the "Unbridled Spirit" logo;
(q) Terms of default;
(r) The method and procedures by which the approved company shall request and
receive the incentive provided under KRS 141.383 and 148.544;
(s) That the approved company may be required to pay an administrative fee as
authorized under subsection (5) of this section; and
(t) Any other provisions deemed necessary or appropriate by the parties to the tax
incentive agreement.
The office may require the approved company to pay an administrative fee, the
amount of which shall be established by administrative regulation promulgated in
accordance with KRS Chapter 13A. The administrative fee shall not exceed onehalf of one percent (0.5%) of the estimated amount of tax incentive sought or five
hundred dollars ($500), whichever is greater.
Prior to commencement of activity as provided in a tax incentive agreement, the tax
incentive agreement shall be submitted to the Government Contract Review
Committee established by KRS 45A.705 for review, as provided in KRS 45A.695,
45A.705, and 45A.725.
The office shall notify the cabinet upon approval of an approved company. The
notification shall include the name of the approved company, the name of the
motion picture or entertainment production, the estimated amount of qualifying
expenditures, the estimated date on which the approved company will complete
filming or production, and any other information required by the cabinet.
Within one hundred eighty days (180) days of completion of the motion picture or
entertainment production, the approved company shall submit to the office a
detailed cost report of:
(a) Qualifying expenditures;
(b) Qualifying payroll expenditures for resident and nonresident above-the-line
crew by county;
(c) Qualifying payroll expenditures for resident and nonresident below-the-line
crew by county; and
(d) The final script.
(a) The office, together with the secretary, shall review all information submitted
for accuracy and shall confirm that all relevant provisions of the tax incentive
agreement have been met.
(b) Upon confirmation that all requirements of the tax incentive agreement have
been met, the office, and the secretary shall review the final script, and if they
determine that the motion picture or entertainment production does not:
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Contain visual or implied scenes that are obscene; or
Negatively impact the economy or the tourism industry of the
Commonwealth;
the office shall forward the detailed cost report to the cabinet for calculation
of the refundable credit.
(10) The cabinet shall verify that the approved company withheld the proper amount of
income tax on qualifying payroll expenditures, and the cabinet shall notify the
office of the total amount of refundable credit available on qualifying expenditures
and qualifying payroll expenditures.
(11) On or before October 1, 2010, and on or before each October 1 thereafter, for the
immediately preceding fiscal year, the office shall report to the Tourism
Development Finance Authority:
(a) The number of tax incentive agreements that have been executed;
(b) The estimated amount of tax incentives that have been requested under KRS
141.383 and 148.542 to 148.546; and
(c) The amount of tax incentives approved under KRS 139.538, 141.383, and
148.542 to 148.546.
(12) (a) By November 1 of each year, the authority shall file an annual report with the
Governor and the Legislative Research Commission. The report shall be
submitted in cooperation with the Cabinet for Economic Development and
included in the single annual report required in KRS 154.12-2035. The report
shall also be available on the Tourism, Arts and Heritage Cabinet's Web site.
(b) The report shall include information for all motion picture or entertainment
production projects approved.
(c) The report shall include the following information:
1.
For each approved motion picture or entertainment production project:
a.
The name of the approved company and a brief description of the
project;
b.
The amount of approved costs included in the agreement; and
c.
The total amount recovered under the tax incentive agreement;
2.
The number of applications for projects submitted during the prior fiscal
year;
3.
The number of projects finally approved during the prior fiscal year; and
4.
The total dollar amount approved for recovery for all projects approved
during the prior fiscal year, and cumulatively under KRS 141.383 and
148.542 to 148.546 since its inception, by year of approval.
(d) The information required to be reported under this section shall not be
considered confidential taxpayer information and shall not be subject to KRS
Chapter 131 or any other provisions of the Kentucky Revised Statutes
prohibiting disclosure or reporting of information.
Effective: June 24, 2015
History: Amended 2015 Ky. Acts ch. 74, sec. 3, effective June 24, 2015. -- Amended
2014 Ky. Acts ch. 134, sec. 2, effective July 15, 2014. -- Amended 2010 (1st Extra.
Sess.) Ky. Acts ch. 2, sec. 7, effective June 4, 2010. -- Created 2009 (1st Extra.
Sess.) Ky. Acts ch. 1, sec. 45, effective June 26, 2009.
Legislative Research Commission Note (6/24/2015). 2015 Ky. Acts ch. 74, sec. 4
provides that the amendments made to this statute in that Act apply to taxable periods
beginning on or after January 1, 2015.
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