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The Florida Senate

2010 Florida Statutes

Florida renewable energy production credit.
F.S. 220.193

Florida renewable energy production credit.


The purpose of this section is to encourage the development and expansion of facilities that produce renewable energy in Florida.


As used in this section, the term:


“Commission” shall mean the Public Service Commission.


“Department” shall mean the Department of Revenue.


“Expanded facility” shall mean a Florida renewable energy facility that increases its electrical production and sale by more than 5 percent above the facility’s electrical production and sale during the 2005 calendar year.


“Florida renewable energy facility” shall mean a facility in the state that produces electricity for sale from renewable energy, as defined in s. 377.803.


“New facility” shall mean a Florida renewable energy facility that is operationally placed in service after May 1, 2006.


“Sale” or “sold” includes the use of electricity by the producer of such electricity which decreases the amount of electricity that the producer would otherwise have to purchase.


“Taxpayer” includes a general partnership, limited partnership, limited liability company, trust, or other artificial entity in which a corporation, as defined in s. 220.03(1)(e), owns an interest and is taxed as a partnership or is disregarded as a separate entity from the corporation under this chapter.


An annual credit against the tax imposed by this section shall be allowed to a taxpayer, based on the taxpayer’s production and sale of electricity from a new or expanded Florida renewable energy facility. For a new facility, the credit shall be based on the taxpayer’s sale of the facility’s entire electrical production. For an expanded facility, the credit shall be based on the increases in the facility’s electrical production that are achieved after May 1, 2006.


The credit shall be $0.01 for each kilowatt-hour of electricity produced and sold by the taxpayer to an unrelated party during a given tax year.


The credit may be claimed for electricity produced and sold on or after January 1, 2007. Beginning in 2008 and continuing until 2011, each taxpayer claiming a credit under this section must first apply to the department by February 1 of each year for an allocation of available credit. The department, in consultation with the commission, shall develop an application form. The application form shall, at a minimum, require a sworn affidavit from each taxpayer certifying the increase in production and sales that form the basis of the application and certifying that all information contained in the application is true and correct.


If the amount of credits applied for each year exceeds $5 million, the department shall award to each applicant a prorated amount based on each applicant’s increased production and sales and the increased production and sales of all applicants.


If the credit granted pursuant to this section is not fully used in one year because of insufficient tax liability on the part of the taxpayer, the unused amount may be carried forward for a period not to exceed 5 years. The carryover credit may be used in a subsequent year when the tax imposed by this chapter for such year exceeds the credit for such year, after applying the other credits and unused credit carryovers in the order provided in s. 220.02(8).


A taxpayer that files a consolidated return in this state as a member of an affiliated group under s. 220.131(1) may be allowed the credit on a consolidated return basis up to the amount of tax imposed upon the consolidated group.


Tax credits that may be available under this section to an entity eligible under this section may be transferred after a merger or acquisition to the surviving or acquiring entity and used in the same manner with the same limitations.


The entity or its surviving or acquiring entity as described in subparagraph 1. may transfer any unused credit in whole or in units of no less than 25 percent of the remaining credit. The entity acquiring such credit may use it in the same manner and with the same limitations under this section. Such transferred credits may not be transferred again although they may succeed to a surviving or acquiring entity subject to the same conditions and limitations as described in this section.


In the event the credit provided for under this section is reduced as a result of an examination or audit by the department, such tax deficiency shall be recovered from the first entity or the surviving or acquiring entity to have claimed such credit up to the amount of credit taken. Any subsequent deficiencies shall be assessed against any entity acquiring and claiming such credit, or in the case of multiple succeeding entities in the order of credit succession.


Notwithstanding any other provision of this section, credits for the production and sale of electricity from a new or expanded Florida renewable energy facility may be earned between January 1, 2007, and June 30, 2010. The combined total amount of tax credits which may be granted for all taxpayers under this section is limited to $5 million per state fiscal year.


A taxpayer claiming a credit under this section shall be required to add back to net income that portion of its business deductions claimed on its federal return paid or incurred for the taxable year which is equal to the amount of the credit allowable for the taxable year under this section.


A taxpayer claiming credit under this section may not claim a credit under s. 220.192. A taxpayer claiming credit under s. 220.192 may not claim a credit under this section.


When an entity treated as a partnership or a disregarded entity under this chapter produces and sells electricity from a new or expanded renewable energy facility, the credit earned by such entity shall pass through in the same manner as items of income and expense pass through for federal income tax purposes. When an entity applies for the credit and the entity has received the credit by a pass-through, the application must identify the taxpayer that passed the credit through, all taxpayers that received the credit, and the percentage of the credit that passes through to each recipient and must provide other information that the department requires.


A taxpayer’s use of the credit granted pursuant to this section does not reduce the amount of any credit available to such taxpayer under s. 220.186.


The department may adopt rules to implement and administer this section, including rules prescribing forms, the documentation needed to substantiate a claim for the tax credit, and the specific procedures and guidelines for claiming the credit.


This section shall take effect upon becoming law and shall apply to tax years beginning on and after January 1, 2007.


s. 13, ch. 2006-230; s. 12, ch. 2008-227.