2012 New York Consolidated Laws
TAX - Tax
Article 1 - (1 - 37) SHORT TITLE; DEFINITIONS; MISCELLANEOUS
24 - Empire state film production credit.

 
    §  24.  Empire  state  film  production  credit.  (a) (1) Allowance of
  credit. A taxpayer which is a qualified film production  company,  or  a
  qualified  independent  film  production  company,  or  which  is a sole
  proprietor of or a member of a partnership which  is  a  qualified  film
  production  company  or a qualified independent film production company,
  and which is subject to tax under articles nine-A or twenty-two of  this
  chapter,  shall  be  allowed  a credit against such tax, pursuant to the
  provisions referenced in subdivision (c) of this section, to be computed
  as hereinafter provided.
    (2) The amount of the credit shall be the product (or pro  rata  share
  of  the  product,  in  the  case of a member of a partnership) of thirty
  percent and the qualified production  costs  paid  or  incurred  in  the
  production  of  a  qualified  film,  provided  that:  (i)  the qualified
  production costs (excluding post  production  costs)  paid  or  incurred
  which   are  attributable  to  the  use  of  tangible  property  or  the
  performance of services at a qualified film production facility  in  the
  production  of  such qualified film equal or exceed seventy-five percent
  of the production  costs  (excluding  post  production  costs)  paid  or
  incurred  which  are attributable to the use of tangible property or the
  performance of services at  any  film  production  facility  within  and
  without  the  state  in  the production of such qualified film, and (ii)
  except with respect to a qualified independent film  production  company
  or  pilot,  at  least  ten  percent  of  the total principal photography
  shooting days spent in the production of such  qualified  film  must  be
  spent at a qualified film production facility. However, if the qualified
  production   costs   (excluding   post   production   costs)  which  are
  attributable to the use of  tangible  property  or  the  performance  of
  services  at  a  qualified film production facility in the production of
  such qualified film is less than three million dollars, then the portion
  of the qualified production costs attributable to the  use  of  tangible
  property  or  the  performance  of  services  in  the production of such
  qualified film outside of a qualified film production facility shall  be
  allowed  only  if  the shooting days spent in New York outside of a film
  production facility in the production of such qualified  film  equal  or
  exceed  seventy-five percent of the total shooting days spent within and
  without New York outside of a film production facility in the production
  of such qualified film. The credit shall be allowed for the taxable year
  in which the production of such qualified film is completed. However, in
  the case of a qualified film that receives funds from additional pool 2,
  no credit shall be claimed before the later of (1) the taxable year  the
  production  of  the  qualified film is complete, or (2) the taxable year
  immediately following the allocation year for which the  film  has  been
  allocated  credit  by  the  governor's  office  for  motion  picture and
  television development. If the amount of the  credit  is  at  least  one
  million  dollars but less than five million dollars, the credit shall be
  claimed over a two year period beginning in the first  taxable  year  in
  which the credit may be claimed and in the next succeeding taxable year,
  with  one-half  of  the  amount  of credit allowed being claimed in each
  year. If the amount of the credit is at least five million dollars,  the
  credit  shall be claimed over a three year period beginning in the first
  taxable year in which the credit may be claimed  and  in  the  next  two
  succeeding  taxable  years,  with  one-third of the amount of the credit
  allowed being claimed in each year.
    (3) No qualified production costs used by a  taxpayer  either  as  the
  basis for the allowance of the credit provided for under this section or
  used  in  the  calculation of the credit provided for under this section
  shall be used by  such  taxpayer  to  claim  any  other  credit  allowed
  pursuant to this chapter.

    (4)  Notwithstanding  the  foregoing provisions of this subdivision, a
  qualified  film  production  company  or  qualified   independent   film
  production  company, that has applied for credit under the provisions of
  this section, agrees as a condition for the granting of the credit:  (i)
  to include in each qualified film distributed by DVD, or other media for
  the  secondary  market,  a  New  York  promotional video approved by the
  governor's office of motion picture and  television  development  or  to
  include  in  the  end  credits  of  each qualified film "Filmed With the
  Support of the New York State Governor's Office of  Motion  Picture  and
  Television  Development" and a logo provided by the governor's office of
  motion picture and television development, and (ii) to certify  that  it
  will  purchase  taxable  tangible  property  and  services,  defined  as
  qualified production costs pursuant to paragraph one of subdivision  (b)
  of  this  section,  only  from companies registered to collect and remit
  state and local sales and use taxes pursuant  to  articles  twenty-eight
  and twenty-nine of this chapter.
    (b)  Definitions.  As  used in this section, the following terms shall
  have the following meanings:
    (1) "Qualified production costs" means production costs  only  to  the
  extent  such  costs  are attributable to the use of tangible property or
  the performance of services within the state directly and  predominantly
  in  the  production  (including pre-production and post production) of a
  qualified film, provided, however, that qualified production costs shall
  not include post  production  costs  unless  the  portion  of  the  post
  production  costs  paid  or  incurred that is attributable to the use of
  tangible property or the performance of services  in  New  York  in  the
  production of such qualified film equals or exceeds seventy-five percent
  of  the total post production costs spent within and without New York in
  the production of such qualified film.
    (2) "Production costs" means any costs for tangible property used  and
  services   performed   directly  and  predominantly  in  the  production
  (including pre-production and post  production)  of  a  qualified  film.
  "Production  costs"  shall  not include (i) costs for a story, script or
  scenario to be used for a qualified film and (ii) wages or  salaries  or
  other  compensation  for  writers, directors, including music directors,
  producers and performers (other than background actors with no  scripted
  lines).   "Production   costs"  generally  include  technical  and  crew
  production costs, such as expenditures for film  production  facilities,
  or  any  part thereof, props, makeup, wardrobe, film processing, camera,
  sound recording,  set  construction,  lighting,  shooting,  editing  and
  meals.
    (3)  "Qualified  film"  means  a feature-length film, television film,
  television pilot and/or each episode of a television series,  regardless
  of the medium by means of which the film, pilot or episode is created or
  conveyed.  "Qualified  film"  shall  not include (i) a documentary film,
  news or current affairs program, interview  or  talk  program,  "how-to"
  (i.e.,  instructional)  film  or  program,  film  or  program consisting
  primarily of stock footage, sporting event  or  sporting  program,  game
  show, award ceremony, film or program intended primarily for industrial,
  corporate  or  institutional  end-users,  fundraising  film  or program,
  daytime drama (i.e., daytime "soap opera"), commercials, music videos or
  "reality" program, or (ii) a production for which records  are  required
  under  section  2257  of  title 18, United States code, to be maintained
  with respect to any performer in such production  (reporting  of  books,
  films, etc. with respect to sexually explicit conduct).
    (4) "Film production facility" shall mean a building and/or complex of
  buildings  and  their improvements and associated back-lot facilities in
  which films are or are intended  to  be  regularly  produced  and  which

  contain  at  least  one  sound  stage, provided, however, that an armory
  owned by the state or city of New York located in the city of  New  York
  shall  not  be  considered  to be a "film production facility" unless it
  meets  the  criteria  contained in paragraph five of this subdivision or
  unless such facility is used by a qualified independent film  production
  company.
    (5)  "Qualified film production facility" shall mean a film production
  facility in the state, which contains at least one sound stage having  a
  minimum  of  seven  thousand square feet of contiguous production space,
  provided,  however,  that  except  with  respect  to  a  qualified  film
  production   facility   being  used  by  a  qualified  independent  film
  production company: (i) a film production facility in the  city  of  New
  York  must  contain  at  least one sound stage having a minimum of seven
  thousand square feet of contiguous production space that is sound  proof
  with a Noise Criteria ("NC") of 30 or better, has sufficient heating and
  air  conditioning  for shooting without the need for supplemental units,
  incorporates a permanent grid and sufficient built-in  electric  service
  for  shooting without the need for generators, and is column-free with a
  clear height of at least sixteen feet under the permanent grid; and (ii)
  an armory owned by the state or city of New York located in the city  of
  New  York that does not satisfy the criteria of subparagraph (i) of this
  paragraph shall be treated as a qualified film production facility  upon
  certification  by the governor's office of motion picture and television
  development of a petition submitted to that office by a  qualified  film
  production  company  establishing  that  no  qualified  film  production
  facility is available in the city of  New  York  that  has  stage  space
  available  for  shooting  such  company's  film.  Such petition shall be
  submitted no later than ninety days prior  to  the  start  of  principal
  photography  for  the qualified film and the governor's office of motion
  picture and television development shall have ten  days  to  certify  or
  reject the petition. A stage will be deemed unavailable if consideration
  has  been paid for its use or such stage is currently under an agreement
  with an option for use and, in either circumstance, such period  of  use
  includes the petitioner's estimated start date of principal photography.
    (6) "Qualified film production company" is a corporation, partnership,
  limited  partnership,  or  other  entity  or  individual which or who is
  principally engaged in the production of a qualified film  and  controls
  the qualified film during production.
    (7)  "Qualified independent film production company" is a corporation,
  partnership, limited partnership, or other entity or individual, that or
  who (i) is principally engaged in the production  of  a  qualified  film
  with  a maximum budget of fifteen million dollars, and (ii) controls the
  qualified film during production, and (iii) either  is  not  a  publicly
  traded  entity, or no more than five percent of the beneficial ownership
  of which is owned, directly or indirectly, by a publicly traded entity.
    (c) Cross-references. For application of the credit  provided  for  in
  this section, see the following provisions of this chapter:
    (1) article 9-A: section 210: subdivision 36.
    (2) article 22: section 606: subsection (gg).
    (d)  Notwithstanding  any  provision  of  this  chapter, employees and
  officers of the governor's  office  of  motion  picture  and  television
  development  and  the  department  shall  be allowed and are directed to
  share and  exchange  information  regarding  the  credits  applied  for,
  allowed,  or  claimed  pursuant  to  this  section and taxpayers who are
  applying for credits or who are claiming credits, including  information
  contained  in  or  derived  from  credit  claim  forms  submitted to the
  department and applications  for  credit  submitted  to  the  governor's
  office of motion picture and television development.

    (e)  Allocation  of  credit.  (1)  The aggregate amount of tax credits
  allowed under  this  section,  subdivision  thirty-six  of  section  two
  hundred  ten  and  subsection  (gg)  of  section six hundred six of this
  chapter in any calendar year shall be twenty-five million dollars in two
  thousand  four  and  two  thousand  five,  sixty  million dollars in two
  thousand six and two thousand seven, sixty-five million dollars  in  two
  thousand  eight,  seventy-five  million  dollars  in  two thousand nine,
  eighty-five million dollars in two thousand ten, ninety million  dollars
  in  two  thousand  eleven  and  two thousand twelve, and one hundred ten
  million dollars in two  thousand  thirteen.  Such  aggregate  amount  of
  credits  shall  be allocated by the governor's office for motion picture
  and television development among taxpayers in order  of  priority  based
  upon the date of filing an application for allocation of film production
  credit  with  such  office.  If  the  total  amount of allocated credits
  applied for in any particular year exceeds the aggregate amount  of  tax
  credits  allowed  for such year under this section, such excess shall be
  treated as having been applied for on the first day  of  the  subsequent
  year.
    (2)  The  aggregate  amount  of  tax  credits  allowed pursuant to the
  authority of subdivision (b) of section twelve  hundred  one-a  of  this
  chapter  in  any  calendar  year  shall  be  twelve million five hundred
  thousand dollars in two thousand four and two thousand five  and  thirty
  million  dollars  in  two thousand six through two thousand eleven. Such
  aggregate amount of credits shall be allocated by the mayor's office  of
  film,  theater  and  broadcasting  among  taxpayers in order of priority
  based upon the date of filing an  application  for  allocation  of  film
  production  credit  with  such  office. If the total amount of allocated
  credits applied for in any particular year exceeds the aggregate  amount
  of  tax  credits  allowed  for such year under this section, such excess
  shall be treated as having been applied for on  the  first  day  of  the
  subsequent year.
    (3) Additional pool 1 - The aggregate amount of tax credits allowed in
  subdivision  (a)  of  this  section  shall be increased by an additional
  three  hundred  fifty  million  dollars  in  two  thousand  nine.   This
  additional amount shall be allocated by the governor's office for motion
  picture  and  television  development among taxpayers in accordance with
  subdivision (a) of this section.
    (4) Additional pool 2 - The aggregate amount of tax credits allowed in
  subdivision (a) of this section shall be increased by an  addition  four
  hundred  twenty million dollars in two thousand ten, four hundred twenty
  million dollars in two thousand  eleven,  four  hundred  twenty  million
  dollars  in  two thousand twelve, four hundred twenty million dollars in
  two thousand thirteen and four hundred twenty  million  dollars  in  two
  thousand  fourteen provided however, seven million dollars of the annual
  allocation shall be available for the empire state film post  production
  credit pursuant to section thirty-one of this chapter. This amount shall
  be  allocated by the governor's office for motion picture and television
  development among taxpayers in accordance with subdivision (a)  of  this
  section. If the director of the governor's office for motion picture and
  television  development  determines  that  the  aggregate  amount of tax
  credits available from additional pool  2  for  the  empire  state  film
  production  tax  credit  have  been previously allocated, and determines
  that the pending applications from  eligible  applicants  for  the  post
  production  tax credit pursuant to section thirty-one of this chapter is
  insufficient to utilize the balance of unallocated post  production  tax
  credits  from  such pool, the remainder, after such pending applications
  are considered, shall be made available for  allocation  in  the  empire
  state  film  tax credit pursuant to this section, subdivision thirty-six

  of section two hundred ten and subsection (gg) of  section  six  hundred
  six  of  this  chapter.  The  governor's  office  for motion picture and
  television development must notify taxpayers of  their  allocation  year
  and  include  the  allocation  year  on  the  certificate of tax credit.
  Taxpayers eligible to claim a credit must  report  the  allocation  year
  directly  on their empire state film production credit tax form for each
  year a credit is claimed and include a  copy  of  the  certificate  with
  their  tax  return.  In the case of a qualified film that receives funds
  from additional pool 2, no empire state film production credit shall  be
  claimed  before  the  later  of  the  taxable year the production of the
  qualified film is complete, or the taxable  year  immediately  following
  the  allocation year for which the film has been allocated credit by the
  governor's office for motion picture and television development.