Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. SB 1470
Barcode 604438
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/22/2011 .
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The Committee on Commerce and Tourism (Ring) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (r) of subsection (5) of section
6 212.08, Florida Statutes, is created to read:
7 (r) Capital investment tax credit; authorization;
8 eligibility for credits.—The credit against the state sales and
9 use tax granted pursuant to s. 220.191(2)(d) shall be deducted
10 from any sales and use tax remitted by the dealer to the
11 department by electronic funds transfer and may only be deducted
12 on a sales and use tax return initiated through electronic data
13 interchange. The dealer shall separately state the credit on the
14 electronic return. The net amount of tax due and payable must be
15 remitted by electronic funds transfer. If the credit is larger
16 than the amount owed on the sales and use tax return, the unused
17 portion may be carried forward to a succeeding reporting period
18 within the 12-month period immediately following the first
19 return approved by the department that the dealer may claim. The
20 credit expires at the end of the 12-month period approved by the
21 department and may not be claimed on a sales and use tax return
22 filed with the department after the end of the 12-month period.
23 Section 2. Section 220.191, Florida Statutes, is amended to
24 read:
25 220.191 Capital investment tax credit.—
26 (1) DEFINITIONS.—As used in For purposes of this section,
27 the term:
28 (a) “Commencement of operations” means the beginning of
29 active operations by a qualifying business of the principal
30 function for which a qualifying project was constructed.
31 (b) “Cumulative capital investment” means the total capital
32 investment in land, buildings, and equipment made in connection
33 with a qualifying project during the period from the beginning
34 of construction of the project to the commencement of
35 operations.
36 (c) “Eligible capital costs” means all expenses incurred by
37 a qualifying business in connection with the acquisition,
38 construction, installation, and equipping of a qualifying
39 project during the period from the beginning of construction of
40 the project to the commencement of operations, including, but
41 not limited to:
42 1. The costs of acquiring, constructing, installing,
43 equipping, and financing a qualifying project, including all
44 obligations incurred for labor and obligations to contractors,
45 subcontractors, builders, and materialmen.
46 2. The costs of acquiring land or rights to land and any
47 cost incidental thereto, including recording fees.
48 3. The costs of architectural and engineering services,
49 including test borings, surveys, estimates, plans and
50 specifications, preliminary investigations, environmental
51 mitigation, and supervision of construction, as well as the
52 performance of all duties required by or consequent to the
53 acquisition, construction, installation, and equipping of a
54 qualifying project.
55 4. The costs associated with the installation of fixtures
56 and equipment; surveys, including archaeological and
57 environmental surveys; site tests and inspections; subsurface
58 site work and excavation; removal of structures, roadways, and
59 other surface obstructions; filling, grading, paving, and
60 provisions for drainage, storm water retention, and installation
61 of utilities, including water, sewer, sewage treatment, gas,
62 electricity, communications, and similar facilities; and offsite
63 construction of utility extensions to the boundaries of the
64 property.
65
66 The term does eligible capital costs shall not include the cost
67 of any property previously owned or leased by the qualifying
68 business.
69 (d) “Income generated by or arising out of the qualifying
70 project” means the qualifying project’s annual taxable income as
71 determined by generally accepted accounting principles and under
72 s. 220.13.
73 (e) “Jobs” means full-time equivalent positions, as that
74 term is consistent with terms used by the Agency for Workforce
75 Innovation and the United States Department of Labor for
76 purposes of unemployment tax administration and employment
77 estimation, resulting directly from a project in this state. The
78 term does not include temporary construction jobs involved in
79 the construction of the project facility.
80 (f) “Office” means the Office of Tourism, Trade, and
81 Economic Development.
82 (g) “Qualifying business” means a business which
83 establishes a qualifying project in this state and which is
84 certified by the office to receive tax credits pursuant to this
85 section.
86 (h) “Qualifying project” means:
87 1. A new or expanding facility in this state which creates
88 at least 100 new jobs in this state and is in one of the high
89 impact sectors identified by Enterprise Florida, Inc., and
90 certified by the office pursuant to s. 288.108(6), including,
91 but not limited to, aviation, aerospace, automotive, and silicon
92 technology industries;
93 2. A new or expanded facility in this state which is
94 engaged in a target industry designated pursuant to the
95 procedure specified in s. 288.106(2)(t) and which is induced by
96 this credit to create or retain at least 1,000 jobs in this
97 state, provided that at least 100 of those jobs are new, pay an
98 annual average wage of at least 130 percent of the average
99 private sector wage in the area as defined in s. 288.106(2), and
100 make a cumulative capital investment of at least $100 million
101 after July 1, 2005. Jobs may be considered retained only if
102 there is significant evidence that the loss of jobs is imminent.
103 Notwithstanding subsection (2), annual credits against the tax
104 imposed by this chapter may shall not exceed 50 percent of the
105 increased annual corporate income tax liability or the premium
106 tax liability generated by or arising out of a project
107 qualifying under this subparagraph. A facility that qualifies
108 under this subparagraph for an annual credit against the tax
109 imposed by this chapter may take the tax credit for a period not
110 to exceed 5 years; or
111 3. A new or expanded headquarters facility in this state
112 which locates in an enterprise zone and brownfield area and is
113 induced by this credit to create at least 1,500 jobs which on
114 average pay at least 200 percent of the statewide average annual
115 private sector wage, as published by the Agency for Workforce
116 Innovation or its successor, and which new or expanded
117 headquarters facility makes a cumulative capital investment in
118 this state of at least $250 million.
119 (2)(a) An annual credit against the tax imposed by this
120 chapter shall be granted to any qualifying business in an amount
121 equal to 5 percent of the eligible capital costs generated by a
122 qualifying project, for a period not to exceed 20 years
123 beginning with the commencement of operations of the project.
124 Unless assigned as described in this subsection, the tax credit
125 shall be granted against only the corporate income tax liability
126 or the premium tax liability generated by or arising out of the
127 qualifying project, and the sum of all tax credits provided
128 pursuant to this section may shall not exceed 100 percent of the
129 eligible capital costs of the project. Except as provided in
130 paragraph (d), a In no event may any credit granted under this
131 section may not be carried forward or backward by any qualifying
132 business with respect to a subsequent or prior year. The annual
133 tax credit granted under this section may shall not exceed the
134 following percentages of the annual corporate income tax
135 liability or the premium tax liability generated by or arising
136 out of a qualifying project:
137 1. One hundred percent for a qualifying project which
138 results in a cumulative capital investment of at least $100
139 million.
140 2. Seventy-five percent for a qualifying project which
141 results in a cumulative capital investment of at least $50
142 million but less than $100 million.
143 3. Fifty percent for a qualifying project which results in
144 a cumulative capital investment of at least $25 million but less
145 than $50 million.
146 (b) A qualifying project that which results in a cumulative
147 capital investment of less than $25 million is not eligible for
148 the capital investment tax credit. An insurance company claiming
149 a credit against premium tax liability under this program is
150 shall not be required to pay any additional retaliatory tax
151 levied pursuant to s. 624.5091 as a result of claiming such
152 credit. Because credits under this section are available to an
153 insurance company, s. 624.5091 does not limit such credit in any
154 manner.
155 (c) A qualifying business that establishes a qualifying
156 project that includes locating a new solar panel manufacturing
157 facility in this state that generates a minimum of 400 jobs
158 within 6 months after commencement of operations with an average
159 salary of at least $50,000 may assign or transfer the annual
160 credit, or any portion thereof, granted under this section to
161 any other business. However, the amount of the tax credit that
162 may be transferred in any year is shall be the lesser of the
163 qualifying business’s state corporate income tax liability for
164 that year, as limited by the percentages applicable under
165 paragraph (a) and as calculated before prior to taking any
166 credit pursuant to this section, or the credit amount granted
167 for that year. A business receiving the transferred or assigned
168 credits may use the credits only in the year received, and the
169 credits may not be carried forward or backward. To perfect the
170 transfer, the transferor must shall provide the department with
171 a written transfer statement notifying the department of the
172 transferor’s intent to transfer the tax credits to the
173 transferee; the date the transfer is effective; the transferee’s
174 name, address, and federal taxpayer identification number; the
175 tax period; and the amount of tax credits to be transferred. The
176 department shall, upon receipt of a transfer statement
177 conforming to the requirements of this paragraph, provide the
178 transferee with a certificate reflecting the tax credit amounts
179 transferred. A copy of the certificate must be attached to each
180 tax return for which the transferee seeks to apply such tax
181 credits.
182 (d) For taxable years beginning on or after January 1,
183 2011, if a credit granted under this subsection is not fully
184 used in a taxable year going forward because of insufficient tax
185 liability on the part of the qualifying business, the qualifying
186 business is entitled to a sales and use tax credit against its
187 state sales and use tax liability in an amount equal to the
188 corporate income or insurance premium tax credit that could not
189 be used in that tax year because of insufficient tax liability
190 arising out of the project. The sales and use tax credit shall
191 be granted against state sales and use taxes collected,
192 reported, and remitted pursuant to chapter 212 during the 12
193 month period beginning on the date that the qualifying business
194 files its corporate income tax return for the year in which the
195 credit granted under this subsection is not fully used.
196 1. The sales and use tax credit granted under this
197 paragraph is subject to the following:
198 a. A qualifying business that applies its sales and use tax
199 credit against its sales and use tax liability must make capital
200 investments in Florida, in addition to its cumulative capital
201 investment, in an amount equal to or greater than the applied
202 credit within 5 years after the date that the qualifying
203 business first applied the sales and use tax credit to its sales
204 and use tax return.
205 b. A qualifying business must annually provide to the
206 office, the President of the Senate, and the Speaker of the
207 House of Representatives a report listing the capital
208 investments made in each tax year of the business in which the
209 business claims a sales and use tax credit pursuant to this
210 paragraph and must provide a final summary report of all capital
211 investments made pursuant to requirements of this paragraph.
212 c. If the qualifying business fails to make the capital
213 investments pursuant to subparagraph (a)1. or if the business
214 fails to report its capital investments pursuant to subparagraph
215 (a)2., the qualifying business shall repay to the department the
216 difference between the sales and use tax credits received and
217 the amount of capital investments accounted for, plus interest
218 as provided for delinquent taxes under chapter 212.
219 d. To be eligible for the sales and use tax credit, a
220 qualifying business must have its headquarters in this state;
221 qualify for the capital investment tax credit pursuant to
222 subparagraph (a)1.; and between January 1, 2006, and December
223 31, 2008, signed an agreement with the department for the
224 determination of income generated by or arising out of the
225 qualifying project.
226 e. The qualifying business must notify the department of
227 its intent to apply the credit against its state sales and use
228 taxes and the amount it is entitled to claim prior to claiming
229 the credit as provided in s. 212.08(5)(r). The department will
230 send written instructions to the taxpayer on how to claim the
231 credit on a sales and use tax return initiated through
232 electronic data exchange.
233 2. The maximum amount of tax credits that any one
234 qualifying business may claim as a state sales and use tax
235 credit under this section on sales and use tax returns due
236 during any state fiscal year is $5 million.
237 3. The office and the department may adopt rules to
238 administer this paragraph.
239 (3)(a) Notwithstanding subsection (2), an annual credit
240 against the tax imposed by this chapter shall be granted to a
241 qualifying business which establishes a qualifying project
242 pursuant to subparagraph (1)(h)3., in an amount equal to the
243 lesser of $15 million or 5 percent of the eligible capital costs
244 made in connection with a qualifying project, for a period not
245 to exceed 20 years beginning with the commencement of operations
246 of the project. The tax credit shall be granted against the
247 corporate income tax liability of the qualifying business and as
248 further provided in paragraph (c). The total tax credit provided
249 pursuant to this subsection shall be equal to no more than 100
250 percent of the eligible capital costs of the qualifying project.
251 (b) If the credit granted under this subsection is not
252 fully used in any one year because of insufficient tax liability
253 on the part of the qualifying business, the unused amount may be
254 carried forward for a period not to exceed 20 years after the
255 commencement of operations of the project. The carryover credit
256 may be used in a subsequent year when the tax imposed by this
257 chapter for that year exceeds the credit for which the
258 qualifying business is eligible in that year under this
259 subsection after applying the other credits and unused
260 carryovers in the order provided by s. 220.02(8).
261 (c) The credit granted under this subsection may be used in
262 whole or in part by the qualifying business or any corporation
263 that is either a member of that qualifying business’s affiliated
264 group of corporations, is a related entity taxable as a
265 cooperative under subchapter T of the Internal Revenue Code, or,
266 if the qualifying business is an entity taxable as a cooperative
267 under subchapter T of the Internal Revenue Code, is related to
268 the qualifying business. Any entity related to the qualifying
269 business may continue to file as a member of a Florida-nexus
270 consolidated group pursuant to a prior election made under s.
271 220.131(1), Florida Statutes (1985), even if the parent of the
272 group changes due to a direct or indirect acquisition of the
273 former common parent of the group. Any credit can be used by any
274 of the affiliated companies or related entities referenced in
275 this paragraph to the same extent as it could have been used by
276 the qualifying business. However, any such use shall not operate
277 to increase the amount of the credit or extend the period within
278 which the credit must be used.
279 (4) Before Prior to receiving tax credits pursuant to this
280 section, a qualifying business must achieve and maintain the
281 minimum employment goals beginning with the commencement of
282 operations at a qualifying project and continuing each year
283 thereafter during which tax credits are available pursuant to
284 this section.
285 (5) Applications shall be reviewed and certified pursuant
286 to s. 288.061. The office, upon a recommendation by Enterprise
287 Florida, Inc., shall first certify a business as eligible to
288 receive tax credits pursuant to this section prior to the
289 commencement of operations of a qualifying project, and such
290 certification shall be transmitted to the Department of Revenue.
291 Upon receipt of the certification, the Department of Revenue
292 shall enter into a written agreement with the qualifying
293 business specifying, at a minimum, the method by which income
294 generated by or arising out of the qualifying project will be
295 determined.
296 (6) The office, in consultation with Enterprise Florida,
297 Inc., is authorized to develop the necessary guidelines and
298 application materials for the certification process described in
299 subsection (5).
300 (7) It shall be the responsibility of The qualifying
301 business has the responsibility to affirmatively demonstrate to
302 the satisfaction of the Department of Revenue that such business
303 meets the job creation and capital investment requirements of
304 this section.
305 (8) The Department of Revenue may specify by rule the
306 methods by which a project’s pro forma annual taxable income is
307 determined.
308 Section 3. This act shall take effect July 1, 2011.
309
310
311 ================= T I T L E A M E N D M E N T ================
312 And the title is amended as follows:
313 Delete everything before the enacting clause
314 and insert:
315 A bill to be entitled
316 An act relating to the capital investment tax credit;
317 amending s. 212.08, F.S.; specifying procedures to claim a sales
318 and use tax credit; amending s. 220.191, F.S.; authorizing a
319 qualifying business that has insufficient corporate income tax
320 liability to fully claim a capital investment tax credit to
321 apply the credit against its liability for sales and use taxes
322 to be collected, reported, and remitted to the Department of
323 Revenue; requiring a qualifying business that receives a credit
324 against its sales and use tax liability to make additional
325 capital investments; requiring a qualifying business to annually
326 report its capital investments to the Office of Tourism, Trade,
327 and Economic Development, the President of the Senate, and the
328 Speaker of the House of Representatives; requiring a qualifying
329 business that fails to make the required capital investments to
330 repay the amount of the sales and use tax credit claimed with
331 interest; limiting the availability of the sales and use tax
332 credit to certain businesses that have their headquarters in
333 this state, that qualify for the capital investment tax credit
334 under certain circumstances, and that entered in an agreement
335 with the Department of Revenue during a certain period; limiting
336 the annual amount of tax credits that may be approved for each
337 eligible qualifying business; authorizing the Office of Tourism,
338 Trade, and Economic Development and the Department of Revenue to
339 adopt rules; providing an effective date.