There is a newer version of the New York Consolidated Laws
2012 New York Consolidated Laws
TAX - Tax
Article 1 - (1 - 37) SHORT TITLE; DEFINITIONS; MISCELLANEOUS
19 - Green building credit.
NY Tax L § 19 (2012) What's This?
§ 19. Green building credit. (a) Allowance of credit. (1) General. (A)
Green building credit. A taxpayer subject to tax under article nine,
nine-A, twenty-two, thirty-two or thirty-three of this chapter shall be
allowed a green building credit against such tax, pursuant to the
provisions referenced in subdivision (f) of this section. Provided,
however, no credit shall be allowed under this section unless the
taxpayer has complied with the applicable requirements of paragraph two
of subdivision (d) of this section (relating to reports to DEC). The
amount of the credit shall be the sum of the credit components specified
in paragraphs two through seven of this subdivision. Provided, however,
the amount of each such credit component shall not exceed the limit set
forth in the initial credit component certificate obtained pursuant to
subdivision (c) of this section. In the determination of such credit
components, no cost paid or incurred by the taxpayer shall be the basis
for more than one such component.
(B) Credit to successor owner. If a credit is allowed to a building
owner pursuant to this subdivision with respect to property, and such
property (or an interest therein) is sold, the credit for the period
after the sale which would have been allowable under this subdivision to
the prior owner had the property not been sold shall be allowable to the
new owner. Credit for the year of sale shall be allocated between the
parties on the basis of the number of days during such year that the
property or interest was held by each.
(C) Credit to successor tenant. If a credit is allowed to a tenant
pursuant to this subdivision with respect to property, and if such
tenancy is terminated but such property remains in use in the building
by a successor tenant, the credit for the period after such termination
which would have been allowable under this subdivision to the prior
tenant had the tenancy not been terminated shall be allowable to the
successor tenant. Credit for the year of termination shall be allocated
between the parties on the basis of the number of days during such year
that the property was used by each.
(D) Notwithstanding any other provision of law to the contrary, in the
case of allowance of credit under this section to a successor owner or
tenant, as provided in subparagraph (B) or (C) of this paragraph, the
commissioner shall have the authority to reveal to the successor owner
or tenant any information, with respect to the credit of the prior owner
or tenant, which is the basis for the denial in whole or in part of the
credit claimed by such successor owner or tenant.
(2) Green whole-building credit component. The green whole-building
credit component shall be equal to the applicable percentage of the
allowable costs paid or incurred by the taxpayer (whether owner or
tenant), for either the construction of a green building or the
rehabilitation of a building which is not a green building to be a green
building. Provided, however, the credit component shall not exceed the
maximum amount specified in the initial credit component certificate.
The applicable percentage shall be 1.4 percent, except that if the
building is located in an economic development area, the applicable
percentage shall be 1.6 percent. The credit component amount so
determined shall be allowed for the credit allowance year, but only if
(A) the taxpayer has obtained and filed both an initial credit component
certificate and an eligibility certificate issued pursuant to
subdivision (c) of this section, (B) a certificate of occupancy for the
building has been issued and (C) where the credit allowance year is a
year described in subparagraph (B) of paragraph two-a of subdivision (b)
of this section, the green building or rehabilitation remains in service
during such year. Such credit component amount shall be allowed also for
each of the next four succeeding taxable years with respect to which the
taxpayer has obtained and filed an eligibility certificate pursuant to
subdivision (c) of this section. Provided, further, the allowable costs
may not exceed, in the aggregate, one hundred fifty dollars per square
foot with respect to the portion of the building which comprises the
base building and seventy-five dollars per square foot with respect to
the portion of the building which comprises the tenant space.
(3) Green base building credit component. The green base building
credit component shall be equal to the applicable percentage of the
allowable costs paid or incurred by the taxpayer, if the owner, for
either the construction of a green base building or for the
rehabilitation of a base building which is not a green base building to
be a green base building. Provided, however, the credit component shall
not exceed the maximum amount specified in the initial credit component
certificate. The applicable percentage shall be one percent, except
that if the building is located in an economic development area, the
applicable percentage shall be 1.2 percent. The credit component amount
so determined shall be allowed for the credit allowance year, but only
if (A) the taxpayer has obtained and filed both an initial credit
component certificate and an eligibility certificate issued pursuant to
subdivision (c) of this section, (B) a certificate of occupancy for the
building has been issued and (C) where the credit allowance year is a
year described in subparagraph (B) of paragraph two-a of subdivision (b)
of this section, the green base building or rehabilitation of a base
building remains in service during such year. Such credit component
amount shall be allowed also for each of the next four succeeding
taxable years with respect to which the taxpayer has obtained and filed
an eligibility certificate pursuant to subdivision (c) of this section.
Provided, further, the allowable costs for the base building may not
exceed, in the aggregate, one hundred fifty dollars per square foot.
(4) Green tenant space credit component. The green tenant space credit
component shall be equal to the applicable percentage of allowable costs
for tenant improvements paid or incurred by the taxpayer (whether owner
or tenant) in constructing (including completing) tenant space, or
rehabilitating tenant space which is not green tenant space to be green
tenant space. Provided, however, the credit component shall not exceed
the maximum amount specified in the initial credit component
certificate. The applicable percentage shall be one percent, except that
if the building is located in an economic development area the
applicable percentage shall be 1.2 percent. Provided, however, that the
owner, or a tenant who occupies fewer than ten thousand square feet,
shall qualify for such green tenant space credit component only in the
event that the base building is a green base building. The credit
component amount so determined shall be allowed for the credit allowance
year, but only if (A) the taxpayer has obtained and filed an initial
credit component certificate and an eligibility certificate issued
pursuant to subdivision (c) of this section and (B) where the credit
allowance year is a year described in subparagraph (B) of paragraph
two-a of subdivision (b) of this section, the construction, completion
or rehabilitation remains in service during such year. Such credit
component amount shall be allowed also for each of the next four
succeeding taxable years with respect to which the taxpayer has obtained
and filed an eligibility certificate pursuant to subdivision (c) of this
section. Provided, however, the allowable costs for tenant space shall
not exceed, in the aggregate, seventy-five dollars per square foot. In
the event that both an owner and tenant incur such costs for tenant
space with respect to the same tenant space and such costs in the
aggregate exceed seventy-five dollars per square foot, the owner shall
have priority as to costs constituting the basis for the green tenant
space credit component.
(5) Fuel cell credit component. A fuel cell credit component shall be
allowed for the installation of a fuel cell which is a qualifying
alternate energy source, installed to serve a green building, green base
building or green tenant space. The amount of the credit component shall
be six percent of the sum of the capitalized costs paid or incurred by
the taxpayer with respect to each fuel cell installed to serve such
building or space, including the cost of the foundation or platform and
the labor cost associated with installation, such capitalized costs not
to exceed one thousand dollars per kilowatt of installed DC rated
capacity. Provided, however, the credit component shall not exceed the
maximum amount specified in the initial credit component certificate.
The fuel cell credit component amount so determined shall be allowed for
the credit allowance year, but only if (A) the taxpayer has obtained and
filed an initial credit component certificate and an eligibility
certificate issued pursuant to subdivision (c) of this section and (B)
where the credit allowance year is a year described in subparagraph (B)
of paragraph two-a of subdivision (b) of this section, the fuel cell
remains in service during such year. Such credit component amount shall
be allowed also with respect to each of the four taxable years next
following during which the fuel cell remains in service. Provided,
however, that the amount of any federal, state or local grant received
by the taxpayer and used for the purchase and/or installation of such
fuel cell and which was not included in the federal gross income of the
taxpayer shall be subtracted from the amount of such cost.
(6) Photovoltaic module credit component. A photovoltaic module credit
component shall be allowed for the installation of photovoltaic modules
which constitute a qualifying alternate energy source installed to serve
a green building, green base building or green tenant space. The amount
of the credit component shall be twenty percent of the incremental cost
paid or incurred by the taxpayer for building-integrated photovoltaic
modules and five percent of the cost of non-building-integrated
photovoltaic modules, in either case such cost not to exceed the product
of (i) three dollars and (ii) the number of watts included in the DC
rated capacity of the photovoltaic modules. Provided, however, the
credit component shall not exceed the maximum amount specified in the
initial credit component certificate. The credit component amount so
determined shall be allowed for the credit allowance year, but only if
(A) the taxpayer has obtained and filed an initial credit component
certificate and an eligibility certificate issued pursuant to
subdivision (c) of this section and (B) where the credit allowance year
is a year described in subparagraph (B) of paragraph two-a of
subdivision (b) of this section, the modules remain in service during
such year. Such credit amount shall be allowed also for the four taxable
years next following during which the modules remain in service.
Provided, however, that the amount of any federal, state or local grant
received by the taxpayer and used for the purchase and/or installation
of such photovoltaic equipment and which was not included in the federal
gross income of the taxpayer shall be subtracted from the amount of such
cost.
(7) Green refrigerant component. A green refrigerant component shall
be allowed for new air conditioning equipment (including chillers and
absorption chillers, water or air cooled unitary equipment, water-cooled
heat pumps, packaged terminal heat pumps, air conditioners, and other
similar air conditioning equipment) that uses an EPA-approved non-ozone
depleting refrigerant installed to serve a green building, green base
building or green tenant space. The amount of the credit component shall
be two percent of the cost of such air conditioning equipment. The
commissioner of environmental conservation, in consultation with
NYSERDA, shall promulgate regulations concerning the eligibility of
other EPA-approved refrigerants to receive a credit pursuant to this
paragraph. Provided, however, the credit component shall not exceed the
maximum amount specified in the initial credit component certificate.
The green refrigerant component amount so determined shall be allowed
for the credit allowance year, but only if (A) the taxpayer has obtained
and filed an initial credit component certificate and an eligibility
certificate issued pursuant to subdivision (c) of this section, and (B)
where the credit allowance year is a year described in subparagraph (B)
of paragraph two-a of subdivision (b) of this section, the air
conditioning equipment remains in service. Such credit component amount
shall be allowed also with respect to each of the four taxable years
next following during which the air conditioning equipment remains in
service.
(b) Definitions. As used in this section, the following terms shall
have the following meanings:
(1) "Allowable costs" means amounts properly chargeable to capital
account (other than for land), which are paid or incurred on or after
June first, nineteen hundred ninety-nine, for: construction or
rehabilitation; commissioning costs; interest paid or incurred during
the construction or rehabilitation period; legal, architectural,
engineering and other professional fees allocable to construction or
rehabilitation; closing costs for construction, rehabilitation or
mortgage loans; recording taxes and filing fees incurred with respect to
construction or rehabilitation; site costs (such as temporary electric
wiring, scaffolding, demolition costs, and fencing and security
facilities); and costs of furniture, carpeting, partitions, walls and
wall coverings, ceilings, drapes, blinds, lighting, plumbing, electrical
wiring and ventilation; provided that such costs shall not include the
cost of telephone systems and computers (other than electrical wiring
costs) and shall not include the cost of fuel cells or photovoltaic
modules (including installation) or the cost of new air conditioning
equipment using an EPA-approved non-ozone depleting refrigerant or other
EPA-approved refrigerant approved by the commissioner of environmental
conservation (excluding installation).
(2) "Base building" means all areas of a building not intended for
occupancy by a tenant or owner, including but not limited to the
structural components of the building, exterior walls, floors, windows,
roofs, foundations, chimneys and stacks, parking areas, mechanical rooms
and mechanical systems, and owner-controlled and/or operated service
spaces, sidewalks, main lobby, shafts and vertical transportation
mechanisms, stairways and corridors.
(2-a) "Credit allowance year" means the later of (A) the taxable year
during which the property, construction, completion or rehabilitation
referred to in paragraphs two through seven of subdivision (a) of this
section has been placed in service or has received a final certificate
of occupancy or (B) the first taxable year with respect to which the
credit may be claimed pursuant to the initial credit component
certificate issued pursuant to subdivision (c) of this section.
(3) "Commissioning" means the testing and fine-tuning of heat,
ventilating and air conditioning and other systems to assure proper
functioning and adherence to design criteria and the preparation of
system operation manuals and instruction of maintenance personnel.
(4) "DEC" means the New York state department of environmental
conservation. "DOH" means the New York state department of health. "EPA"
means the United States environmental protection agency.
(5) "Economic development area" means an area which is designated (A)
an empire zone pursuant to article eighteen-B of the general municipal
law or (B) an empowerment zone or enterprise community pursuant to
section 1391 of the Internal Revenue Code.
(6) "Eligible building" means a building located in this state which
is :
(A) classified B2, B3, B4, C1, C2, C5, or C6 for purposes of the New
York state uniform fire prevention and building code or similarly
classified under any subsequent code; provided that any such building
contains at least twenty thousand square feet of interior space, or
(B) a residential multi-family building with at least twelve dwelling
units that contain at least twenty thousand square feet of interior
space, or
(C) one or more residential multi-family buildings with at least two
dwelling units that are part of a single or phased construction project
that contains, in the aggregate, at least twenty thousand square feet of
interior space; provided that in any single phase of such project at
least ten thousand square feet of interior space is under construction
or rehabilitation, or
(D) any combination of buildings described in subparagraphs (A), (B)
and (C) of this paragraph, and
(E) is not a building located on freshwater wetlands or tidal wetlands
the construction of which requires a permit under section 24-0701 or
25-0403, respectively, of the environmental conservation law, or on
wetlands such that the construction thereof requires a permit pursuant
to section 404 of the federal clean water act (33 U.S.C. § 1344).
(7) "Energy code" means the New York state energy conservation
construction code.
(8) "Fuel cell" means a device that produces electricity directly from
hydrogen or hydrocarbon fuel through a non-combustive electro-chemical
process.
(9) "Green base building" means a base building which is part of an
eligible building and which meets the following standards:
(A) Energy and energy efficiency. (i) Energy use is no more than
sixty-five percent (in the case of new construction of a base building)
or seventy-five percent (in the case of rehabilitation of a base
building) of the use permitted under the energy code or, in the event
such standard is revised or superseded, energy use shall meet such other
energy efficiency standards that DEC, in consultation with NYSERDA,
shall establish in regulations promulgated pursuant to paragraph one of
subdivision (e) of this section, in effect at the time the base building
or rehabilitation thereof is placed in service.
(ii) All appliances and any heating, cooling and water heating
equipment used in the base building and subject to the regulations
promulgated by DEC, in consultation with NYSERDA, pursuant to paragraph
one of subdivision (e) of this section, shall meet the standards
established by such regulations in effect at the time the base building
or rehabilitation thereof is placed in service.
(B) Zoning, indoor air quality, building materials, finishes and
furnishings. (i) The base building shall comply with all applicable
zoning, land use and erosion control requirements, stormwater management
ordinances, building code requirements and environmental regulations. In
the case of the rehabilitation of an existing building, all existing
environmental hazards shall be identified and managed in accordance with
applicable laws, regulations and industry guidelines.
(ii) Buildings classified B2, B3, B4, C1, C2, C5, or C6, for purposes
of the New York state uniform fire prevention and building code, or
similarly classified under any subsequent code, shall meet the following
indoor air quality requirements:
(I) ventilation and exchange of indoor/outdoor air shall meet the
standards established by regulations promulgated by DEC, in consultation
with DOH and NYSERDA, pursuant to paragraph two of subdivision (e) of
this section;
(II) if smoking is permitted in specific areas of the building,
separate air ventilation and circulation shall be provided for smoking
and non-smoking areas;
(III) the ventilation system shall include an air purging system that
is capable of replacing one hundred percent of the air on any floor, on
a minimum of two floors at a time. The air shall be purged for a period
of one week on every floor immediately prior to initial occupancy and on
any floor that undergoes renovation immediately prior to re-occupancy;
provided that, if a taxpayer obtains certification from a licensed
architect, engineer, certified industrial hygienist, or other licensed
or certified professional whom the commissioner of environmental
conservation shall approve, pursuant to regulations, verifying that
off-gassing and any other contamination can be reduced to comparable
levels in less than one week, the period of purging may be shortened.
The taxpayer shall maintain a copy of such certification in accordance
with the provisions of subdivision (d) of this section.
(C) Building fresh air intake shall be located a minimum of
twenty-five feet away from loading areas, building exhaust fans, cooling
towers and other point sources of contamination.
(D) During construction or rehabilitation, the ventilation system
components and pathways shall be protected from contamination in
accordance with an indoor air quality management plan for the
construction or rehabilitation process that meets the standards
established in regulations promulgated by DEC, in consultation with DOH
and NYSERDA, pursuant to paragraph two of subdivision (e) of this
section. In the event that such areas are not protected from
contamination in accordance with such standards, they shall be cleaned
prior to occupancy.
(E) A licensed engineer, certified industrial hygienist, or other
licensed or certified professional whom the commissioner of
environmental conservation shall approve, pursuant to regulations, shall
conduct indoor air quality testing with respect to the entire building
immediately following occupancy, if any, and on an annual basis, to
monitor supply and return air and ambient air for carbon monoxide,
carbon dioxide, total volatile organic compounds, radon, and particulate
matter. Provided, however, once radon measurements have been found to be
satisfactory, subsequent annual testing is not required. The taxpayer
shall record baseline readings immediately following occupancy, if any,
and annually thereafter. In the event that the taxpayer does not
establish that during a taxable year during which any part of the
building is occupied, indoor air quality met the standards established
in regulations promulgated by DEC, in consultation with DOH and NYSERDA,
pursuant to paragraph two of subdivision (e) of this section, the base
building shall not constitute a green base building.
(F) The mechanical plant of the building shall be commissioned in
accordance with the standards established in regulations promulgated by
DEC, in consultation with NYSERDA, pursuant to subparagraph (D) of
paragraph one of subdivision (e) of this section, which standards shall
be informed by documents such as ASHRAE G-1 and the United States
general services administration "Model Commissioning Plan and Guide
Specifications". For purposes of this subparagraph the term "ASHRAE"
means the American society of heating, refrigerating and air
conditioning engineers.
(G) Separate waste disposal chutes or a carousel compactor system for
recyclable materials shall be provided for the recycling of waste by
occupants, or recycling shall be otherwise facilitated by, at a minimum,
providing a readily accessible designated collection area or areas with
sufficient space to store recyclable materials separately between
collection dates.
(H) All plumbing fixtures in the public areas of the building shall
meet the plumbing fixture requirements of the energy policy act of 1992
or any successor provision in effect at the time the building or
rehabilitation is placed in service.
(I) Prior to initial occupancy and upon request, the owner of the
building shall provide each tenant with (1) written notification of the
opportunity to apply for a tax credit pursuant to this section and (2)
written guidelines regarding opportunities to improve the energy
efficiency and air quality of tenant space and to reduce and recycle
waste streams.
(J) All building materials, finishes and furnishings used in the base
building and subject to the regulations promulgated by DEC, in
consultation with NYSERDA, pursuant to subparagraph (A) of paragraph
three of subdivision (e) of this section, shall meet the standards
established by such regulations in effect at the time the building or
rehabilitation is placed in service; provided further that with respect
to furnishings, this requirement shall apply only to newly purchased
items.
(K) All tenant space in the building occupied by the owner must be
green tenant space.
(10) "Green building" means a building wherein the base building is a
green base building and all tenant space is green tenant space.
(11) "Green tenant space" means tenant space in a building if such
building is an eligible building and if such tenant space complies with
the following requirements:
(A) Energy and energy efficiency. (i) Energy use for tenant space is
no more than sixty-five percent (in the case of new construction) or
seventy-five percent (in the case of rehabilitation) of the use
permitted under the energy code or, in the event such standard is
revised or superseded, energy use shall meet such other energy
efficiency standards that DEC, in consultation with NYSERDA, shall
establish in regulations promulgated pursuant to paragraph one of
subdivision (e) of this section, in effect at the time the improvements
with respect to which a tax credit is claimed are placed in service.
(ii) All appliances and any heating, cooling and water heating
equipment used in the tenant space and subject to the regulations
promulgated by DEC, in consultation with NYSERDA, pursuant to paragraph
one of subdivision (e) of this section shall meet the standards
established by such regulations or, in the event that such standards are
revised, the standards in effect at the time the improvements with
respect to which a tax credit is claimed are placed in service.
(B) Code requirements, indoor air quality, building materials,
finishes and furnishings. (i) The tenant space shall comply with all
applicable building code requirements and environmental regulations and,
with respect to projects other than new construction, all existing
environmental hazards shall be identified and managed in accordance with
applicable laws, regulations and industry guidelines.
(ii) In the case of buildings classified B2, B3, B4, C1, C2, C5, or
C6, for purposes of the New York state uniform fire prevention and
building code, or similarly classified under any subsequent code,
ventilation and exchange of indoor/outdoor air shall meet the standards
established in regulations promulgated by DEC, in consultation with DOH
and NYSERDA, pursuant to paragraph two of subdivision (e) of this
section.
(iii) For buildings in which smoking is permitted, the taxpayer shall
ensure that, if smoking is permitted in the tenant space, it is
permitted only in areas in which the air ventilation and circulation is
separate from that for non-smoking areas.
(iv) During construction or rehabilitation, the ventilation system
components and pathways shall be protected from contamination in
accordance with an indoor air quality management plan for the
construction or rehabilitation process that meets the standards
established in regulations promulgated by DEC, in consultation with DOH
and NYSERDA, pursuant to paragraph two of subdivision (e) of this
section. In the event that such areas are not protected from
contamination in accordance with such standards, they shall be cleaned
prior to occupancy.
(v) A licensed engineer, certified industrial hygienist, or other
licensed or certified professional whom the commissioner of
environmental conservation shall approve, pursuant to regulations, shall
conduct indoor air quality testing with respect to the tenant space
immediately following occupancy, if any, and on an annual basis, to
monitor supply and return air and ambient air for carbon monoxide,
carbon dioxide, total volatile organic compounds, radon, and particulate
matter. Provided, however, once radon measurements have been found to be
satisfactory, subsequent annual testing is not required. The taxpayer
shall record baseline readings immediately following occupancy, if any,
and annually thereafter. In the event that the taxpayer does not
establish that during a taxable year during which the tenant space is
occupied, indoor air quality met the standards established in
regulations promulgated by DEC, in consultation with DOH and NYSERDA,
pursuant to paragraph two of subdivision (e) of this section, the tenant
space shall not constitute green tenant space.
(vi) All plumbing fixtures in the tenant space shall meet the plumbing
fixture requirements of the energy policy act of 1992 or successor
provision in effect at the time the improvements with respect to which a
tax credit is claimed are placed in service.
(vii) All building materials, finishes and furnishings selected for
use in the tenant space and subject to the regulations promulgated by
DEC, in consultation with NYSERDA, pursuant to subparagraph (A) of
paragraph three of subdivision (e) of this section, shall meet the
standards established by such regulations or, in the event that such
standards are revised, the standards in effect at the time the
improvements with respect to which a tax credit is claimed are placed in
service, provided that, with respect to furnishings, this requirement
shall apply only to newly purchased items.
(12) "Incremental cost of building-integrated photovoltaic modules"
means:
(A) the cost of building-integrated photovoltaic modules and any
associated inverter, additional wiring or other electrical equipment or
additional mounting or structural materials, less the cost of spandrel
glass or other building material that would have been used in the event
that building-integrated photovoltaic modules were not installed,
(B) incremental labor costs properly allocable to on-site preparation,
assembly and original installation of photovoltaic modules, and
(C) incremental architectural and engineering services and designs and
plans directly related to the construction or installation of
photovoltaic modules.
(13) "NYSERDA" means the New York state energy research and
development authority.
(14) "Qualifying alternate energy sources" means building-integrated
and non-building-integrated photovoltaic modules and fuel cells
installed to serve the base building or tenant space which have the
capability to monitor their AC output, and which are validated upon
installation, and annually thereafter, to ensure that such systems meet
their design specifications.
(15) "Tenant improvements" means improvements which are necessary or
appropriate to support or conduct the business of a tenant or occupying
owner.
(16) "Tenant space" means the portion of a building intended for
occupancy by a tenant or occupying owner.
(c) Certifications. (1) Initial credit component certificate. Upon
application by a taxpayer, DEC shall issue an initial credit component
certificate where the taxpayer has made a showing that the taxpayer is
likely within a reasonable time to place in service property which would
warrant the allowance of a credit under this section. Such certificate
shall state the first taxable year for which the credit may be claimed
and an expiration date, and shall apply only to property placed in
service by such expiration date. Such expiration date may be extended at
the discretion of DEC, in order to avoid unwarranted hardship. Such
certificates shall state the maximum amount of credit component
allowable for each of the five taxable years for which the credit
component is allowed, under paragraphs two through seven of subdivision
(a) of this section.
(a) Period one. Initial credit component certificates for period one
may be issued in years 2000-2004. Such certificates for period one shall
not be issued, in the aggregate, for more than twenty-five million
dollars worth of credit components. In addition, such certificates for
period one shall be limited in their applicability, as follows:
Credit components in the aggregate With respect to taxable
shall not be allowed for more than: years beginning in:
$ 1 million 2001
$ 2 million 2002
$ 3 million 2003
$ 4 million 2004
$ 5 million 2005
$ 4 million 2006
$ 3 million 2007
$ 2 million 2008
$ 1 million 2009
Provided, however, that if as of the end of a calendar year,
certificates for credit component amounts totalling less than the amount
permitted with respect to taxable years commencing in such calendar year
have been issued, then the amount permitted with respect to taxable
years commencing in the subsequent calendar year shall be augmented by
the amount of such shortfall.
(b) Period two. Initial credit component certificates for period two
may be issued in years 2005-2009. Such certificates for period two shall
not be issued, in the aggregate, for more than twenty-five million
dollars worth of credit components. The total amount of credit component
allowable for the five taxable years for which the credit components are
allowed, as set forth on any one initial credit component certificate,
shall be limited to two million dollars. However, a taxpayer that is the
owner or tenant of more than one building that qualifies for the credits
provided for under this section may be issued initial credit component
certificates with respect to each such building with the aggregate
amount of credit components permitted for each such certificate being
two million dollars. Provided further, a taxpayer that is the owner or
tenant of a building for which an initial credit component certificate
was issued for period one, shall not be issued an initial credit
component certificate with respect to such building for period two. In
addition, such certificates for period two shall be limited in their
applicability, as follows:
Credit components in the aggregate With respect to taxable
shall not be allowed for more than: years beginning in:
$ 1 million 2006
$ 2 million 2007
$ 3 million 2008
$ 4 million 2009
$ 5 million 2010
$ 4 million 2011
$ 3 million 2012
$ 2 million 2013
$ 1 million 2014
Provided, however, that if as of the end of a calendar year,
certificates for credit component amounts totaling less than the amount
permitted with respect to taxable years commencing in such calendar year
have been issued, then the amount permitted with respect to taxable
years commencing in the subsequent calendar year shall be augmented by
the amount of such shortfall. Provided, further, that if at the end of
calendar year two thousand nine, certificates for credit component
amounts issued by the DEC have totaled less than twenty-five million
dollars for calendar years 2005-2009, then the period to issue initial
credit component certificates shall be extended to the end of calendar
year two thousand ten and the DEC shall be permitted to issue in two
thousand ten initial credit component certificates for amounts that
equal the difference between the amounts issued for calendar years
2005-2009 and twenty-five million dollars.
(c) For purposes of either period one or two, if a taxpayer who is
issued an initial credit component certificate is unable to claim as a
credit any amount of credit component (i) such amount of unclaimed
credit component may be allocated to another taxpayer that has already
been issued an initial credit component certificate with such
certificate being reissued to reflect the amount so allocated, provided
that such other taxpayer applied for and would have qualified for such
additional amount, and with respect to period two the initial credit
component certificate of such other taxpayer as augmented does not
exceed the two million dollar limit, or as an alternative (ii) the DEC
may issue to other applicants new initial credit component certificates
which include such amounts of unclaimed credit components. If a taxpayer
is unable to claim all or a portion of the amount of credit components
after the close of the last calendar year for which initial credit
component certificates may be issued, the DEC shall have twelve months
to accept applications for and issue initial credit component
certificates for such amount of unclaimed credit components.
(2) Eligibility certificate. For each taxable year for which a
taxpayer claims a credit under this section with respect to a green
building, green base building or green tenant space, a fuel cell, or
photovoltaic modules, or air conditioning equipment using an
EPA-approved non-ozone depleting refrigerant or other EPA-approved
refrigerant approved by the commissioner of environmental conservation,
the taxpayer shall obtain from an architect or professional engineer
licensed to practice in this state an eligibility certificate. Such
certificate shall consist of a certification, under the seal of such
architect or engineer, that the building, base building or tenant space
with respect to which the credit is claimed is a green building, green
base building or green tenant space, respectively, that the fuel cell or
photovoltaic modules constitute qualifying alternate energy sources and
that the air conditioning equipment uses an EPA-approved non-ozone
depleting refrigerant or other EPA-approved refrigerant approved by the
commissioner of environmental conservation and remains in service. Such
certification shall be made in accordance with the standards and
guidelines in effect at the time the property which is the basis for the
credit was placed in service. Such certification shall set forth the
specific findings upon which the certification was based. The taxpayer
shall file such certificate, and the associated initial credit component
certificate, with the claim for credit and shall file duplicate copies
with DEC. Such certificate shall include sufficient information to
identify each building or space, and such other information as DEC and
the commissioner shall prescribe.
(3) Wrongful certification. If DEC has reason to believe that an
architect or professional engineer, in making any certification under
this subdivision, engaged in professional misconduct, then DEC shall so
inform the education department.
(d) Other requirements; miscellaneous. (1) Record keeping. Each
taxpayer shall, for any taxable year for which the green building credit
provided for under this section is claimed, maintain records of the
following information:
(A) annual energy consumption for building, base building or tenant
space;
(B) annual results of air monitoring;
(C) annual confirmation that the building, base building or tenant
space continues to meet requirements regarding smoking areas, if
provided;
(D) tenant guidelines referred to in subparagraph (I) of paragraph
nine of subdivision (b) of this section, if applicable;
(E) all written notification of tenants and requests to remedy any
indoor air quality problems;
(F) initial and annual (by month) results of validation of performance
of photovoltaic modules and fuel cells; and
(G) certifications as to off-gassing and other contamination, as
prescribed in subclause (III) of clause (ii) of subparagraph (B) of
paragraph nine of subdivision (b) of this section, where applicable.
(2) Reporting to DEC. Each taxpayer shall also provide to DEC the
information described in paragraph one of this subdivision, in the form
and at the time prescribed by DEC, such time to be determined in
consultation with the commissioner. Such information shall be provided
to DEC with respect to each taxable year with respect to which the
taxpayer claims a credit under this section.
(3) Regulations. The commissioner, the commissioner of environmental
conservation and the commissioner of education are hereby authorized to
promulgate and adopt regulations necessary to the implementation of this
section. Such regulations shall construe the provisions of this section
in such a manner as to encourage the development of green buildings,
green base buildings and green tenant space and to maintain high but
commercially reasonable standards for obtaining tax credits hereunder.
Such regulations shall establish a reasonable time or period of time for
submission of applications, and shall establish a method for allocating
initial credit component certificates among eligible applicants.
Regulations, standards or requirements adopted pursuant to this section
shall apply only to a "green base building" as defined in paragraph nine
of subdivision (b) of this section, a "green building" as defined in
paragraph ten of subdivision (b) or "green tenant space" as defined in
paragraph eleven of subdivision (b) of this section.
(4) Report. For period one, on or before April first, two thousand
eleven, the commissioner and the commissioner of DEC, jointly and in
consultation with NYSERDA, shall submit a written report regarding the
number of certifications and taxpayers claiming the credit provided for
under this section; the amount of the credits claimed, the geographical
distribution of the credits claimed; and any other such available
information DEC may deem meaningful and appropriate. A preliminary
version of such report for period one shall be so issued by April first,
two thousand five. For period two, on or before April first, two
thousand sixteen the commissioner and the commissioner of DEC, jointly
and in consultation with NYSERDA, shall submit a written report
regarding the number of certificates and taxpayers claiming the credit
provided for under this section; the amount of the credits claimed, the
geographical distribution of the credits claimed; and any other such
available information DEC may deem meaningful and appropriate. A
preliminary version of such report for period two shall be issued by
April first, two thousand ten. The commissioner and the commissioner of
DEC shall ensure that the information is presented and/or classified in
a manner consistent with the secrecy requirements of this chapter. DEC
shall also make recommendations regarding the establishment of a
permanent green building tax credit program. Recommendations may include
methods to enhance the effectiveness, simplicity or other aspects of the
program. The report shall be submitted to the governor, the temporary
president of the senate, the speaker of the assembly, the chairman of
the senate finance committee and the chairman of the assembly ways and
means committee.
(e) Standards and regulations. (1) Energy standards: base buildings.
Within six months of the effective date of this section, DEC, in
consultation with NYSERDA, shall promulgate the following, with respect
to base buildings:
(A) regulations establishing standards for energy use for eligible
buildings. DEC, in consultation with NYSERDA shall review and update
such regulations if deemed necessary at least every two years from the
date on which such regulations are promulgated.
(B) regulations establishing standards for appliances and heating,
cooling and water heating equipment that, on the effective date of this
section, are covered by specifications from organizations such as the
United States department of energy or environmental protection agency.
The development of such regulations shall be informed by such
specifications. DEC, in consultation with NYSERDA shall review and
update such regulations if deemed necessary at least every two years
from the date on which such regulations are promulgated.
(C) regulations indicating the methodology by which a taxpayer shall
demonstrate compliance with subparagraph (A) of paragraph nine of
subdivision (b) of this section. Such regulations shall include, at a
minimum, a requirement to conduct hourly computer modeling for one full
year.
(D) regulations establishing standards for the commissioning of
buildings.
(2) Indoor air standards: base buildings. Within six months of the
effective date of this section, DEC, in consultation with DOH and
NYSERDA, shall promulgate regulations establishing standards, with
respect to base buildings, for (A) ventilation and exchange of
indoor/outdoor air, (B) indoor air quality management plans for the
construction or rehabilitation process, and (C) indoor air quality with
respect to levels of carbon monoxide, carbon dioxide and total volatile
organic compounds, radon and particulate matter.
(3) Standards for materials, water conservation, drainage: base
buildings. Within one year of the effective date of this section, DEC,
in consultation with NYSERDA, shall promulgate the following, with
regard to base buildings:
(A) regulations establishing standards for building materials,
finishes and furnishings regarding minimum percentages of recycled
content and renewable source material and maximum levels of toxicity and
volatile organic compounds and any other standards that the DEC deems
appropriate. Standards shall be developed for building materials,
finishes and furnishings, including but not limited to concrete and
concrete masonry units; wood and wood products; millwork substrates;
insulation; ceramic, ceramic/glass and cementitious tiles; ceiling tiles
and panels; flooring and carpet; paints, coatings, sealants and
adhesives; and furniture. The development of such standards shall be
informed by the LEED rating system. The DEC shall review and update such
regulations if deemed necessary at least every two years from the date
on which such regulations are promulgated. For purposes of this clause,
"LEED rating system" means the leadership in energy and environmental
design green building rating system criteria being developed by the
United States green building council.
(B) regulations establishing standards for buildings located in areas
where water use is not metered, which regulations shall require, at a
minimum, that the building include one of the following features:
(i) a gray water system that recovers non-sewage waste water or uses
roof or ground storm water collection systems, or recovers ground water
from sump pumps;
(ii) for buildings with a cooling tower system, such system shall be
designed with delimiters to reduce drift and evaporation; or
(iii) for buildings with exterior plants, all such plants shall be
tolerant of climate, soils and natural water availability and shall not
receive watering from municipal potable water after a period of
establishment is complete.
(C) regulations establishing standards for buildings located in areas
that do not have sewers or that have designated storm sewers, which
regulations shall require, at a minimum, that the building shall include
one of the following features:
(i) an oil grit separator or water quality pond for pretreatment of
runoff from any surface parking areas; or
(ii) at least fifty percent of nonlandscaped areas (including
roadways, surface parking, plazas and pathways), if any, shall be
comprised of pervious paving materials.
(D) regulations indicating the methodology by which taxpayers shall
demonstrate compliance with subparagraphs (B) and (C) of paragraph nine
of subdivision (b) of this section.
(4) Energy standards: tenant space. Within six months of the effective
date of this section, DEC, in consultation with NYSERDA, shall
promulgate regulations, with respect to tenant space, indicating the
methodology by which taxpayers shall demonstrate compliance with
subparagraph (A) of paragraph eleven of subdivision (b) of this section.
(5) Standards for indoor air quality, building materials, finishes and
furnishings: tenant space. Within one year of the effective date of this
section, DEC, in consultation with DOH and NYSERDA, shall promulgate
regulations, with respect to tenant space, indicating the methodology by
which taxpayers shall demonstrate compliance with subparagraph (B) of
paragraph eleven of subdivision (b) of this section.
(f) Cross-references. For application of the credit provided for in
this section, see the following provisions of this chapter:
(1) Article nine: Section one hundred eighty-seven-d;
(2) Article nine-A: Subdivision thirty-one of section two hundred ten;
(3) Article twenty-two: Subsections (i) and (y) of section six hundred
six;
(4) Article thirty-two: Subsection (m) of section fourteen hundred
fifty-six;
(5) Article thirty-three: Subdivision (o) of section fifteen hundred
eleven.
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