2012 New York Consolidated Laws
TAX - Tax
Article 1 - (1 - 37) SHORT TITLE; DEFINITIONS; MISCELLANEOUS
21 - Brownfield redevelopment tax credit.

 
    * §  21. Brownfield redevelopment tax credit. (a) Allowance of credit.
  (1) General. A taxpayer subject  to  tax  under  article  nine,  nine-A,
  twenty-two,  thirty-two or thirty-three of this chapter shall be allowed
  a credit against such tax, pursuant  to  the  provisions  referenced  in
  subdivision  (f)  of  this  section.  Such  credit shall be allowed with
  respect to a qualified site, as such term is defined in paragraph one of
  subdivision (b) of this section. The amount of the credit in  a  taxable
  year  shall  be the sum of the credit components specified in paragraphs
  two, three and four of this subdivision applicable in such year.
    (2) Site preparation credit component.  The  site  preparation  credit
  component  shall  be  equal  to  the  applicable  percentage of the site
  preparation costs paid or incurred by the taxpayer  with  respect  to  a
  qualified  site.  The credit component amount so determined with respect
  to a site's qualification for  a  certificate  of  completion  shall  be
  allowed  for  the  taxable  year  in  which  the  effective  date of the
  certificate of completion occurs. The credit component amount determined
  other than with respect to such qualification shall be allowed  for  the
  taxable  year  in  which  the  improvement to which the applicable costs
  apply is placed in service for  up  to  five  taxable  years  after  the
  issuance of such certificate of completion.
    (3)  Tangible  property credit component. The tangible property credit
  component shall be equal to the applicable percentage  of  the  cost  or
  other  basis  for  federal  income  tax  purposes  of  tangible personal
  property and other tangible property, including buildings and structural
  components of buildings, which constitute qualified  tangible  property;
  provided,  however,  that in determining the cost or other basis of such
  property, the taxpayer shall exclude the acquisition cost of any item of
  property with respect to which a credit under this section was allowable
  to another taxpayer. The credit component amount so determined shall  be
  allowed  for  the taxable year in which such qualified tangible property
  is placed in service on  a  qualified  site  with  respect  to  which  a
  certificate  of completion has been issued to the taxpayer for up to ten
  taxable years after the date of the  issuance  of  such  certificate  of
  completion. The tangible property credit component shall be allowed with
  respect  to  property leased to a second party only if such second party
  is either (i) not a party responsible  for  the  disposal  of  hazardous
  waste  or the discharge of petroleum at the site according to applicable
  principles of statutory  or  common  law  liability,  or  (ii)  a  party
  responsible  according  to  applicable principles of statutory or common
  law liability if such party's liability arises solely from operation  of
  the  site subsequent to the disposal of hazardous waste or the discharge
  of petroleum, and is so certified by the commissioner  of  environmental
  conservation at the request of the taxpayer, pursuant to section 27-1419
  of   the  environmental  conservation  law.  Notwithstanding  any  other
  provision of law to the contrary, in the case  of  allowance  of  credit
  under  this  section  to  such a lessor, the commissioner shall have the
  authority to reveal to such lessor any information, with respect to  the
  issue of qualified use of property by the lessee, which is the basis for
  the  denial  in  whole  or  in part, or for the recapture, of the credit
  claimed by such lessor. For purposes of  the  tangible  property  credit
  component   allowed   under  this  section  the  taxpayer  to  whom  the
  certificate of completion is issued, as provided for  under  subdivision
  five  of  section  27-1419  of  the  environmental conservation law, may
  transfer the benefits and burdens  of  the  certificate  of  completion,
  which  run  with  the  land and to the applicant's successors or assigns
  upon transfer or sale of all or any portion of an interest or estate  in
  the qualified site. However, the taxpayer to whom certificate's benefits
  and  burdens are transferred shall not include the cost of acquiring all

  or any portion of an interest or estate in  the  site  and  the  amounts
  included  in  the cost or other basis for federal income tax purposes of
  qualified tangible property already claimed  by  the  previous  taxpayer
  pursuant to this section.
    (3-a)  (A) Notwithstanding any other provision of law to the contrary,
  the tangible property credit component available for any qualified  site
  pursuant  to  paragraph  three  of  this  subdivision  shall  not exceed
  thirty-five million dollars or three times the  costs  included  in  the
  calculation  of  the  site  preparation credit component and the on-site
  groundwater remediation credit component under paragraphs two and  four,
  respectively, of this subdivision, whichever is less; provided, however,
  that:  (1)  in  the  case  of  a qualified site to be used primarily for
  manufacturing  activities,  the  tangible  property   credit   component
  available  for  any  qualified  site pursuant to paragraph three of this
  subdivision shall not exceed forty-five million dollars or six times the
  costs included  in  the  calculation  of  the  site  preparation  credit
  component and the on-site groundwater remediation credit component under
  paragraphs two and four, respectively, of this subdivision, whichever is
  less;  and  (2)  the provisions of this paragraph shall not apply to any
  qualified site for which the department  of  environmental  conservation
  has  issued  a  notice  to  the  taxpayer  before June twenty-third, two
  thousand eight that its request  for  participation  has  been  accepted
  under   subdivision   six   of  section  27-1407  of  the  environmental
  conservation law.
    (B) For the  purposes  of  this  paragraph,  the  term  "manufacturing
  activities"  means the production of goods by manufacturing, processing,
  assembling,  refining,   mining,   extracting,   farming,   agriculture,
  horticulture, floriculture, viticulture or commercial fishing, and shall
  also  include  the activities of a qualified emerging technology company
  as defined in paragraph (c) of subdivision  one  of  section  thirty-one
  hundred  two-e  of  the  public  authorities  law  regardless of the ten
  million  dollar  limitation  expressed  in  subparagraph  one  of   such
  paragraph;  provided  however,  that  the generation and distribution of
  electricity, the distribution of natural  gas,  and  the  production  of
  steam   associated   with  the  generation  of  electricity,  shall  not
  constitute manufacturing activities.
    (C) In order to properly administer the credit set forth in  paragraph
  three of this subdivision, the department may disclose information about
  the  calculation  and the amounts of the credits claimed under paragraph
  three of this subdivision on a taxpayer's return to  the  department  of
  environmental  conservation  and  other  taxpayers  claiming tax credits
  under this section with respect to the same qualifying site.
    (D) If the qualifying site is located in a brownfield opportunity area
  and  is  developed  in  conformance  with  the  goals   and   priorities
  established   for   that   applicable  brownfield  opportunity  area  as
  designated pursuant to section nine hundred  seventy-r  of  the  general
  municipal law, the applicable percentage of the tangible property credit
  component will be increased by two percent.
    (4)  On-site  groundwater  remediation  credit  component. The on-site
  groundwater  remediation  credit  component  shall  be  equal   to   the
  applicable  percentage of the on-site groundwater remediation costs paid
  or incurred by the taxpayer with respect to a  qualified  site  (to  the
  extent  that  such groundwater remediation costs are not included in the
  determination of the site preparation credit or the cost or other  basis
  included  in  the  determination  of  the tangible property credit). The
  credit component so determined for costs incurred and paid with  respect
  to  and  prior  to  the issuance of a certificate of completion shall be
  allowed for the taxable year in which the effective date of the issuance

  of a certificate of  completion  occurs.  The  credit  component  amount
  determined  in taxable years after the effective date of the issuance of
  a certificate of completion shall be allowed in the  taxable  year  such
  qualified costs are incurred and paid for up to five taxable years after
  the issuance of such certificate of completion.
    (5)  Applicable  percentage. For purposes of paragraphs two, three and
  four of this subdivision, the  applicable  percentage  shall  be  twelve
  percent  in  the  case  of  credits  claimed under article nine, nine-A,
  thirty-two or thirty-three of this chapter, and ten percent in the  case
  of credits claimed under article twenty-two of this chapter, except that
  where  at least fifty percent of the area of the qualified site relating
  to  the  credit  provided  for  in  this  section  is  located   in   an
  environmental  zone  as  defined  in paragraph six of subdivision (b) of
  this section,  the  applicable  percentage  shall  be  increased  by  an
  additional  eight  percent.  Provided,  however,  as afforded in section
  27-1419 of the environmental conservation law,  if  the  certificate  of
  completion  indicates  that  the  qualified  site has been remediated to
  Track 1 as that term is described in subdivision four of section 27-1415
  of the environmental conservation law,  the  applicable  percentage  set
  forth  in  the first sentence of this paragraph shall be increased by an
  additional two percent.
    (6) Site preparation costs and on-site groundwater  remediation  costs
  paid  or  incurred  by the taxpayer with respect to a qualified site and
  the cost or other basis for federal  income  tax  purposes  of  tangible
  personal  property  and other tangible property, including buildings and
  structural components of buildings, which constitute qualified  tangible
  property shall only include costs paid or incurred by the taxpayer on or
  after  the date of the brownfield site cleanup agreement executed by the
  taxpayer and the department of environmental  conservation  pursuant  to
  section 27-1409 of the environmental conservation law.
    (7)  The  amount  of  any  grant received from the federal, state or a
  local government or an instrumentality  or  public  benefit  corporation
  thereof  received  by  the taxpayer and used to pay for any of the costs
  described in paragraphs two, three and four of this  subdivision,  which
  was  not  included in the federal gross income of the taxpayer, shall be
  subtracted in computing the credit components under this section.
    (b) Definitions. As used in this section, the  following  terms  shall
  have the following meanings:
    (1) Qualified site. A "qualified site" is a site with respect to which
  a  certificate  of  completion  has  been  issued to the taxpayer by the
  commissioner of environmental conservation pursuant to  section  27-1419
  of the environmental conservation law.
    (2)  Site  preparation  costs. The term "site preparation costs" shall
  mean all amounts properly chargeable to a capital account, (i) which are
  paid or incurred  in  connection  with  a  site's  qualification  for  a
  certificate  of  completion,  and  (ii) all other site preparation costs
  paid or incurred in connection with preparing a site for the erection of
  a building or a component of a building, or  otherwise  to  establish  a
  site  as usable for its industrial, commercial (including the commercial
  development  of  residential  housing),  recreational  or   conservation
  purposes.  Site  preparation costs shall include, but not be limited to,
  the  costs  of  excavation,  temporary  electric  wiring,   scaffolding,
  demolition costs, and the costs of fencing and security facilities. Site
  preparation  costs  shall not include the cost of acquiring the site and
  shall not include amounts included  in  the  cost  or  other  basis  for
  federal income tax purposes of qualified tangible property, as described
  in paragraph three of this subdivision.

    (3)  Qualified  tangible  property.  "Qualified  tangible property" is
  property described in either subparagraph (A) or (B) of  this  paragraph
  which:
    (A)  (i) is depreciable pursuant to section one hundred sixty-seven of
  the internal revenue code,
    (ii) has a useful life of four years or more,
    (iii) has been acquired by purchase as defined in section one  hundred
  seventy-nine (d) of the internal revenue code,
    (iv) has a situs on a qualified site in this state, and
    (v)  is  principally  used by the taxpayer for industrial, commercial,
  recreational  or  environmental  conservation  purposes  (including  the
  commercial development of residential housing); or
    (B)(i)  is, or when occupied becomes, part of a dwelling whose primary
  ownership structure is covered under either article nine-B of  the  real
  property  law  or  meets  the  requirements of section 216 (b)(1) of the
  Internal Revenue Code;
    (ii) has been acquired by purchase (as defined in section one  hundred
  seventy-nine (d) of the Internal Revenue Code);
    (iii) has a situs on a qualified site in this state; and
    (iv)  for  purposes of this subparagraph only, and notwithstanding any
  other section of law to the contrary,  property  qualifying  under  this
  subparagraph  shall  be deemed to be qualified tangible property for the
  purposes of paragraph one of subdivision (d) of  this  section;  and  in
  addition, for the purposes of this subdivision only, property qualifying
  under  this  subparagraph shall be deemed to have been placed in service
  for the purposes of paragraph three of subdivision (a) of  this  section
  when a certificate of occupancy is issued for such property.
    (4)   On-site   groundwater   remediation  costs.  The  term  "on-site
  groundwater  remediation  costs"  shall  mean   all   amounts   properly
  chargeable  to  a  capital  account,  (i)  which are paid or incurred in
  connection with a site's qualification for a certificate of  completion,
  and (ii) include costs which are paid or incurred in connection with the
  remediation   of  on-site  groundwater  contamination  and  incurred  to
  implement a requirement of the remedial work plan or an interim remedial
  measure work plan for a qualified site which  are  imposed  pursuant  to
  subdivisions  two  and  three  of  section  27-1411 of the environmental
  conservation law.
    (5) Certificate of completion. A "certificate of completion" issued by
  the commissioner  of  environmental  conservation  pursuant  to  section
  27-1419 of the environmental conservation law.
    (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
  an  area designated as such by the commissioner of economic development.
  Such areas so designated are areas which are  census  tracts  and  block
  numbering  areas which, as of the two thousand census, satisfy either of
  the following criteria:
    (A) areas that have both:
    (i) a poverty rate of at least twenty percent for the  year  to  which
  the data relate; and
    (ii)  an  unemployment  rate of at least one and one-quarter times the
  statewide unemployment rate for the year to which the data relate, or;
    (B) areas that have a poverty rate of at least two times  the  poverty
  rate for the county in which the areas are located for the year to which
  the  data  relate provided, however, that a qualified site shall only be
  deemed to be located in an environmental zone  under  this  subparagraph
  (B)  if such site was the subject of a brownfield site cleanup agreement
  pursuant to section 27-1409 of the environmental conservation  law  that
  was entered into prior to September first, two thousand ten.

    Such  designation  shall  be made and a list of all such environmental
  zones shall be established by the commissioner of  economic  development
  no  later  than  December  thirty-first,  two  thousand  four  provided,
  however, that a qualified site shall only be deemed to be located in  an
  environmental zone under subparagraph (B) of this paragraph if such site
  was  the  subject  of  a  brownfield  site cleanup agreement pursuant to
  section 27-1409 of the environmental conservation law that  was  entered
  into prior to September first, two thousand ten.
    (c)  Qualifying  property.  Property  which  qualifies  for the credit
  provided for under this section and also for a credit provided  for  (1)
  under  either  subdivision twelve or subdivision twelve-B of section two
  hundred ten of this chapter, or both, (2) subsection (a)  or  subsection
  (j)  of section six hundred six of this chapter, or both, (3) the credit
  provided for under subsection (i) of section fourteen hundred  fifty-six
  of  this  chapter,  or  (4) the credit provided under subdivision (q) of
  section fifteen hundred eleven of this chapter  may  be  the  basis  for
  either  the credit provided for under this section or one of the credits
  enumerated in paragraph one, two, three or four of this subdivision, but
  not both.
    (d) Depreciable property.  (1)  With  respect  to  qualified  tangible
  property   which   is   depreciable  pursuant  to  section  one  hundred
  sixty-seven of the internal revenue code  but  is  not  subject  to  the
  provisions  of  section  one  hundred sixty-eight of such code and which
  ceases to be in qualified use prior to the end of the  taxable  year  in
  which  the credit is to be taken, the amount of the credit shall be that
  portion of the credit provided for in this subdivision which  represents
  the ratio which the months of qualified use bear to the months of useful
  life.  If  property  on  which  credit  has  been  taken ceases to be in
  qualified use prior to the  end  of  its  useful  life,  the  difference
  between  the  credit taken and the credit allowed for actual use must be
  added back in the year in which the property ceased to be  in  qualified
  use.  Provided,  however, if such property ceases to be in qualified use
  after it has been in qualified use  for  more  than  twelve  consecutive
  years,  it  shall not be necessary to add back the credit as provided in
  this paragraph. The amount of credit allowed for  actual  use  shall  be
  determined  by  multiplying  the  original credit by the ratio which the
  months of qualified use bear to the months of useful life. For  purposes
  of  this paragraph, the useful life of property shall be the same as the
  taxpayer uses for  depreciation  purposes  when  computing  its  federal
  income tax liability.
    (2)  Except  with  respect to that property to which paragraph four of
  this subdivision applies, with respect to  qualified  tangible  property
  which  is  three-year  property, as defined in subsection (e) of section
  one hundred sixty-eight of the internal revenue code, which ceases to be
  in qualified use prior to the end of  the  taxable  year  in  which  the
  credit is to be taken, the amount of the credit shall be that portion of
  the credit provided for in this section which represents the ratio which
  the  months  of  qualified  use bear to thirty-six. If property on which
  credit has been taken ceases to be in qualified use prior to the end  of
  thirty-six  months,  the  difference  between  the  credit taken and the
  credit allowed for actual use must be added back in the  year  in  which
  the property ceased to be in qualified use. The amount of credit allowed
  for actual use shall be determined by multiplying the original credit by
  the ratio which the months of qualified use bear to thirty-six.
    (3)  Except  with  respect to that property to which paragraph four of
  this subdivision applies, with respect to  qualified  tangible  property
  which is subject to the provisions of section one hundred sixty-eight of
  the  internal  revenue code other than three-year property as defined in

  subsection (e) of such section one hundred sixty-eight which  ceases  to
  be  in  qualified  use prior to the end of the taxable year in which the
  credit is to be taken, the amount of the credit shall be that portion of
  the credit provided for in this section which represents the ratio which
  the  months  of qualified use bear to sixty. If property on which credit
  has been taken ceases to be in qualified use prior to the end  of  sixty
  months,  the  difference between the credit taken and the credit allowed
  for actual use must be added back in the  year  in  which  the  property
  ceased  to  be in qualified use. The amount of credit allowed for actual
  use shall be determined by multiplying the original credit by the  ratio
  which the months of qualified use bear to sixty.
    (4)  With  respect to any qualified tangible property to which section
  one hundred sixty-eight of the internal revenue code applies, which is a
  building or a structural component of a building and which ceases to  be
  in  qualified  use  prior  to  the  end of the taxable year in which the
  credit is to be taken, the amount of the credit shall be that portion of
  the credit provided for in this section which represents the ratio which
  the months of qualified use bear to the  total  number  of  months  over
  which  the  taxpayer  chooses  to deduct the property under the internal
  revenue code. If property on which credit has been taken ceases to be in
  qualified use prior to the end of the period  over  which  the  taxpayer
  chooses  to  deduct  the  property  under the internal revenue code, the
  difference between the credit taken and the credit  allowed  for  actual
  use must be added back in the year in which the property ceased to be in
  qualified  use.  Provided,  however,  if  such  property ceases to be in
  qualified use after it has been in qualified use for  more  than  twelve
  consecutive  years,  it shall not be necessary to add back the credit as
  provided in this paragraph. The amount of credit allowed for actual  use
  shall  be  determined  by  multiplying  the original credit by the ratio
  which the months of qualified use bear to the  total  number  of  months
  over  which  the  taxpayer  chooses  to  deduct  the  property under the
  internal revenue code.
    (e) If the certificate of  completion  issued  to  the  taxpayer  with
  respect  to  a  qualified  site  is  revoked  by  a determination issued
  pursuant to section 27-1419 of the environmental conservation  law,  the
  amount  of any credit allowed by this section shall be added back in the
  taxable year in which such determination is final and no longer  subject
  to judicial review.
    (f)  Cross-references.  For  application of the credit provided for in
  this section, see the following provisions of this chapter:
    (1) Article 9: Section 187-g
    (2) Article 9-A: Section 210, subdivision 33
    (3) Article 22: Section 606, subsections (i) and (dd)
    (4) Article 32: Section 1456, subsection (q)
    (5) Article 33: Section 1511, subdivision (u).
    * NB There are 2 § 21's