Florida Senate - 2011                                     SB 264
       
       
       
       By Senator Ring
       
       
       
       
       32-00217-11                                            2011264__
    1                        A bill to be entitled                      
    2         An act relating to economic development; providing
    3         legislative purpose to promote the commercialization
    4         of certain technologies by startup and early stage
    5         companies in this state; amending s. 213.053, F.S.;
    6         authorizing the Department of Revenue to share certain
    7         confidential information with the Office of Tourism,
    8         Trade, and Economic Development; amending s. 220.02,
    9         F.S.; adding the tax credits available under s.
   10         220.194, F.S., to the list of credits that may be
   11         taken against state corporate income tax; amending s.
   12         220.13, F.S.; redefining the term “adjusted federal
   13         income” in relation to net operating losses
   14         transferred and payments received for a certified tax
   15         credit pursuant to the Micro-Targeted Technology
   16         Commercialization Tax Credit Transfer Program;
   17         amending s. 220.16, F.S.; providing for the allocation
   18         of financial assistance pursuant to the Micro-Targeted
   19         Technology Commercialization Tax Credit Transfer
   20         Program as income in this state; creating s. 220.194,
   21         F.S.; creating the Micro-Targeted Technology
   22         Commercialization Tax Credit Transfer Program;
   23         providing a short title, intent, goals, and
   24         objectives; providing definitions; requiring that the
   25         Institute for the Commercialization of Public Research
   26         identify examples of micro-targeted technology and
   27         compile a list of the technology for the Office of
   28         Tourism, Trade, and Economic Development; requiring
   29         the office to certify eligible companies for the
   30         transfer of corporate income tax net operating loss
   31         amounts as certified credits; providing qualifications
   32         and an application process and requirements; requiring
   33         an application fee; providing for an application
   34         deadline; requiring the office to grant or deny an
   35         application within a specified time after receiving a
   36         completed application; providing for calculating the
   37         certified credit amount; providing a maximum amount
   38         that may be transferred; providing a penalty;
   39         requiring each certified company to file an annual
   40         report with the office; requiring the office and the
   41         Department of Revenue to adopt rules; providing an
   42         appropriation; providing for an allocation of the
   43         funds; providing for future repeal of the credit
   44         transfer program; providing an effective date.
   45  
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Legislative purpose.—The purpose of this act is
   49  to promote the commercialization of certain technologies by
   50  startup and early stage Florida companies, and to create high
   51  wage jobs in these industry sectors.
   52         Section 2. Paragraph (cc) is added to subsection (8) of
   53  section 213.053, Florida Statutes, to read:
   54         213.053 Confidentiality and information sharing.—
   55         (8) Notwithstanding any other provision of this section,
   56  the department may provide:
   57         (cc) Information relative to tax credits taken under s.
   58  220.194 to the Office of Tourism, Trade, and Economic
   59  Development.
   60  
   61  Disclosure of information under this subsection shall be
   62  pursuant to a written agreement between the executive director
   63  and the agency. Such agencies, governmental or nongovernmental,
   64  shall be bound by the same requirements of confidentiality as
   65  the Department of Revenue. Breach of confidentiality is a
   66  misdemeanor of the first degree, punishable as provided by s.
   67  775.082 or s. 775.083.
   68         Section 3. Subsection (8) of section 220.02, Florida
   69  Statutes, is amended to read:
   70         220.02 Legislative intent.—
   71         (8) It is the intent of the Legislature that credits
   72  against either the corporate income tax or the franchise tax be
   73  applied in the following order: those enumerated in s. 631.828,
   74  those enumerated in s. 220.191, those enumerated in s. 220.181,
   75  those enumerated in s. 220.183, those enumerated in s. 220.182,
   76  those enumerated in s. 220.1895, those enumerated in s. 221.02,
   77  those enumerated in s. 220.184, those enumerated in s. 220.186,
   78  those enumerated in s. 220.1845, those enumerated in s. 220.19,
   79  those enumerated in s. 220.185, those enumerated in s. 220.1875,
   80  those enumerated in s. 220.192, those enumerated in s. 220.193,
   81  those enumerated in s. 288.9916, those enumerated in s.
   82  220.1899, and those enumerated in s. 220.1896, and those
   83  enumerated in s. 220.194.
   84         Section 4. Paragraph (b) of subsection (1) of section
   85  220.13, Florida Statutes, is amended to read:
   86         220.13 “Adjusted federal income” defined.—
   87         (1) The term “adjusted federal income” means an amount
   88  equal to the taxpayer’s taxable income as defined in subsection
   89  (2), or such taxable income of more than one taxpayer as
   90  provided in s. 220.131, for the taxable year, adjusted as
   91  follows:
   92         (b) Subtractions.—
   93         1. There shall be subtracted from such taxable income:
   94         a. The net operating loss deduction allowable for federal
   95  income tax purposes under s. 172 of the Internal Revenue Code
   96  for the taxable year,
   97         b. The net capital loss allowable for federal income tax
   98  purposes under s. 1212 of the Internal Revenue Code for the
   99  taxable year,
  100         c. The excess charitable contribution deduction allowable
  101  for federal income tax purposes under s. 170(d)(2) of the
  102  Internal Revenue Code for the taxable year, and
  103         d. The excess contributions deductions allowable for
  104  federal income tax purposes under s. 404 of the Internal Revenue
  105  Code for the taxable year, except that any net operating loss
  106  transferred pursuant to s. 220.194 may not be deducted by the
  107  seller.
  108  
  109  However, a net operating loss and a capital loss shall never be
  110  carried back as a deduction to a prior taxable year, but all
  111  deductions attributable to such losses shall be deemed net
  112  operating loss carryovers and capital loss carryovers,
  113  respectively, and treated in the same manner, to the same
  114  extent, and for the same time periods as are prescribed for such
  115  carryovers in ss. 172 and 1212, respectively, of the Internal
  116  Revenue Code.
  117         2. There shall be subtracted from such taxable income any
  118  amount to the extent included therein the following:
  119         a. Dividends treated as received from sources without the
  120  United States, as determined under s. 862 of the Internal
  121  Revenue Code.
  122         b. All amounts included in taxable income under s. 78 or s.
  123  951 of the Internal Revenue Code.
  124  
  125  However, as to any amount subtracted under this subparagraph,
  126  there shall be added to such taxable income all expenses
  127  deducted on the taxpayer’s return for the taxable year which are
  128  attributable, directly or indirectly, to such subtracted amount.
  129  Further, no amount shall be subtracted with respect to dividends
  130  paid or deemed paid by a Domestic International Sales
  131  Corporation.
  132         3. In computing “adjusted federal income” for taxable years
  133  beginning after December 31, 1976, there shall be allowed as a
  134  deduction the amount of wages and salaries paid or incurred
  135  within this state for the taxable year for which no deduction is
  136  allowed pursuant to s. 280C(a) of the Internal Revenue Code
  137  (relating to credit for employment of certain new employees).
  138         4. There shall be subtracted from such taxable income any
  139  amount of nonbusiness income included therein, including
  140  payments received for a certified tax credit pursuant to s.
  141  220.194.
  142         5. There shall be subtracted any amount of taxes of foreign
  143  countries allowable as credits for taxable years beginning on or
  144  after September 1, 1985, under s. 901 of the Internal Revenue
  145  Code to any corporation which derived less than 20 percent of
  146  its gross income or loss for its taxable year ended in 1984 from
  147  sources within the United States, as described in s.
  148  861(a)(2)(A) of the Internal Revenue Code, not including credits
  149  allowed under ss. 902 and 960 of the Internal Revenue Code,
  150  withholding taxes on dividends within the meaning of sub
  151  subparagraph 2.a., and withholding taxes on royalties, interest,
  152  technical service fees, and capital gains.
  153         6. Notwithstanding any other provision of this code, except
  154  with respect to amounts subtracted pursuant to subparagraphs 1.
  155  and 3., any increment of any apportionment factor which is
  156  directly related to an increment of gross receipts or income
  157  which is deducted, subtracted, or otherwise excluded in
  158  determining adjusted federal income shall be excluded from both
  159  the numerator and denominator of such apportionment factor.
  160  Further, all valuations made for apportionment factor purposes
  161  shall be made on a basis consistent with the taxpayer’s method
  162  of accounting for federal income tax purposes.
  163         Section 5. Subsection (5) is added to section 220.16,
  164  Florida Statutes, to read:
  165         220.16 Allocation of nonbusiness income.—Nonbusiness income
  166  shall be allocated as follows:
  167         (5) The amount of financial assistance received in exchange
  168  for transferring a net operating loss as authorized by s.
  169  220.194 is allocable to this state.
  170         Section 6. Section 220.194, Florida Statutes, is created to
  171  read:
  172         220.194Micro-Targeted Technology Commercialization Tax
  173  Credit Transfer Program; transfer of net loss carryforward as a
  174  certified credit.—
  175         (1)This section may be cited as the “Micro-Targeted
  176  Technology Commercialization Act.
  177         (2) INTENT; GOALS AND OBJECTIVES.—It is the intent of the
  178  Legislature that the Micro-Targeted Technology Commercialization
  179  Tax Credit Transfer Program act as a catalyst for eligible
  180  companies to accelerate their revenue and job growth and their
  181  market penetration by monetizing their net operating losses into
  182  transferable credits. The program’s objectives include:
  183         (a)Accelerating the entry of new technology-based products
  184  into the marketplace;
  185         (b)Producing additional technology-based jobs for this
  186  state;
  187         (c)Accelerating commercialization of micro-targeted
  188  technologies in the biomedical and technical fields; and
  189         (d)Encouraging the growth of high-quality, high-wage
  190  biomedical and technology firms in this state.
  191         (2)DEFINITIONS.—As used in s. 220.194, the term:
  192         (a)“Certified credit” means the product of the net
  193  operating loss generated in the current year apportioned to
  194  Florida, multiplied by the corporate income tax rate imposed
  195  during the year in which the loss occurred.
  196         (b)“Certified micro-targeted technology company” means a
  197  business entity that is registered with the Secretary of State,
  198  is currently operating in this state, and is certified by the
  199  office to trade certified credits based on the company’s net
  200  operating losses, pursuant to this section.
  201         (c)“Department” means the Department of Revenue.
  202         (d)“Institute” means the Institute for the
  203  Commercialization of Public Research.
  204         (e)“Micro-targeted technology” means individual
  205  components, technology, or processes that are crucial to the
  206  development of larger or more complex biomedical or
  207  technological devices, processes, or information systems.
  208         (f)“Office” means the Office of Tourism, Trade, and
  209  Economic Development.
  210         (3)THE INSTITUTE FOR THE COMMERCIALIZATION OF PUBLIC
  211  RESEARCH.—The Institute for the Commercialization of Public
  212  Research or other Florida research-based consortium shall
  213  identify examples of micro-targeted technology and compile a
  214  list that is updated annually to add new technologies or delete
  215  those technologies that are no longer applicable. The office
  216  shall adopt this list as a rule.
  217         (4)QUALIFICATIONS FOR CERTIFICATION.—A company seeking to
  218  transfer a certified credit shall be certified as a micro
  219  targeted technology company by the office if it timely files a
  220  completed application and meets the requirements of this
  221  subsection. For purposes of this subsection, all conditions in
  222  paragraphs (a) through (g) must be met no later than the date
  223  the application is filed with the office. All other requirements
  224  in this subsection must be satisfied before the company received
  225  certified credits. In order to be certified, a micro-targeted
  226  technology company must demonstrate that it:
  227         (a)Is registered with the Secretary of State to operate in
  228  this state and is operating in Florida.
  229         (b)Is primarily engaged in developing, manufacturing,
  230  producing, or providing micro-targeted technology for commercial
  231  or public purposes.
  232         (c)Has fewer than 100 full-time employees worldwide,
  233  including full-time employees leased to the applicant, of which
  234  at least 75 percent work full time in this state at the time the
  235  transfer of certified credits is first allowed.
  236         (d)Has been audited by an independent certified public
  237  accountant, and:
  238         1.Has not had positive net income in any of the 2 previous
  239  years of ongoing operations;
  240         2.Has reported a net operating loss in any of the 2
  241  previous years of operation; and
  242         3.Is not at least 50 percent owned or controlled, directly
  243  or indirectly, by another corporation that has demonstrated
  244  positive net income in any of the 2 previous years of ongoing
  245  operations, or is not part of a consolidated group of affiliated
  246  corporations, as filed for federal income tax purposes, which in
  247  the aggregate demonstrated positive net income in any of the 2
  248  previous years of ongoing operations.
  249         (e)Has at least one active application for a patent under
  250  35 U.S.C. s. 111(a) on file with the United States Patent and
  251  Trademark Office.
  252         (f)Has received research grants from governmental
  253  entities, foundations, or other private entities, or received
  254  financial assistance from investors.
  255         (g)Has an established business plan that describes its
  256  commercialization strategy, a business-development plan that
  257  includes revenue projections and a strategy for becoming
  258  profitable, and a timeline for development which addresses
  259  revenue growth and job creation in this state.
  260         (h)Has certified that:
  261         1.It will not transfer a certified credit in exchange for
  262  private financial assistance in an amount that is less than 75
  263  percent of the certified credit;
  264         2.All proceeds from the transfer will be expended to
  265  support the operation or expansion of the company’s business
  266  activity in this state; and
  267         3.Upon transfer of a certified credit, it will notify the
  268  office of the amount within 30 days after each certified credit
  269  is transferred, the amount of the financial compensation for the
  270  credit received, and the identity of the purchaser of the
  271  certified credit.
  272         (5)APPLICATION FOR CERTIFICATION.—
  273         (a)A completed application must be filed with the office
  274  on or after 2 p.m., on the first business day of July commencing
  275  in 2011. The office may investigate the qualifications of each
  276  company applicant and may require by rule the applicant to
  277  provide such evidence of its qualification as is necessary to
  278  assure compliance with the requirements of this section,
  279  including, but not limited to, the state corporate income tax
  280  return supporting the request for certification of a certified
  281  credit, audited financial statements, federal tax returns, and
  282  state and federal employment filings.
  283         (b)The office shall require a nonrefundable application
  284  fee of $100 per application submitted. The department shall
  285  cooperate with the office in its review of the applications.
  286         (c)The office shall grant or deny an application in full
  287  or in part within 90 days after receiving a completed
  288  application containing the necessary information, including
  289  payment of the application fee. If the office denies any part of
  290  the application, it shall inform the applicant of the grounds
  291  for the denial.
  292         (d)This section does not create a presumption that a
  293  company applicant will be approved by the office to transfer its
  294  certified credits. However, the office may issue a nonbinding
  295  opinion letter, upon the request of a prospective applicant, as
  296  to its eligibility and the potential amount of certified credits
  297  available.
  298         (6)CALCULATION OF CERTIFIED CREDIT TRANSFER AMOUNT AND
  299  LIMITATIONS.—When submitting an application for certification, a
  300  company shall state the amount of the net operating loss,
  301  including any net operating loss carryover, it requests to be
  302  transferred as a certified credit. To the extent allowed as a
  303  deduction in this state, a reported net operating loss not
  304  otherwise taken may be certified by the office for transfer by a
  305  certified micro-targeted technology company in exchange for
  306  private financial assistance from a purchaser as follows:
  307         (a)The net operating loss shall be transferred as a
  308  certified credit.
  309         (b)The maximum amount of certified credits which a micro
  310  targeted technology company may transfer during its existence
  311  may not exceed $1 million.
  312         (c)Once the office has certified the transfer of total
  313  certified credits that may be claimed during a state fiscal year
  314  in a cumulative amount of $3 million, the office may not approve
  315  the transfer of any additional credits that may be taken in that
  316  state fiscal year.
  317         (d)The certified micro-targeted technology company is
  318  liable if, after a transfer, the net operating loss is adjusted
  319  by amendment or as a result of any other recomputation or
  320  redetermination of federal or Florida taxable income or loss.
  321  The certified micro-targeted technology company is also liable
  322  for a penalty equal to the amount of the credit transferred,
  323  reduced in proportion to the amount of the net operating loss
  324  certified for transfer over the amount of the certified net
  325  operating loss disallowed.
  326         (e)The applicant and its successors shall maintain all
  327  records necessary to support the reported amount of certified
  328  credits.
  329         (7)PURCHASE OF TRANSFERRED CERTIFIED CREDITS.—
  330         (a)The certified credit must be reported as a credit
  331  against tax due by the unaffiliated corporate purchaser on the
  332  next tax return due to be filed by the purchaser, but in no case
  333  may it be reported later than 1 year after the date of transfer.
  334         (b)If the certified credit is larger than the amount owed
  335  to the state on the tax return for the period in which the
  336  credit is claimed, after applying the other credits and unused
  337  credit carryovers in the order provided in s. 220.02(8), the
  338  amount of the credit for that period shall be the amount owed to
  339  the state on that tax return. Unused certified credit amounts
  340  remaining may not be carried forward.
  341         (c)The purchaser of a certified credit amount may not
  342  further sell, or otherwise transfer, the certified credit
  343  amount.
  344         (d)It is the responsibility of the certified micro
  345  targeted technology company that transferred the certified
  346  credit amount to notify the office, within 30 days after
  347  transfer, of the amount of each certified credit transferred,
  348  the amount of the financial assistance received, and the
  349  identity of the purchaser of the certified credit. The office
  350  shall certify to the department the same information within 14
  351  working days.
  352         (8)REPORTING REQUIREMENT.—Each company that is certified
  353  to transfer its certified credit must provide the office with an
  354  annual report on its development covering the year after it
  355  receives funds from transferring its certified credits. The
  356  report must include the company’s commercialization strategy;
  357  business development plan; timeline for development; actual
  358  revenue and revenue projections, both total and within Florida
  359  only; and actual employment and employment projections, both
  360  total and within Florida only. The report is due January 3 each
  361  applicable year.
  362         (9)RULEMAKING AUTHORITY.—
  363         (a)The office shall adopt rules to administer this
  364  section. The rules must establish the criteria for qualified
  365  technology research and experimental development, production, or
  366  provision of technology for commercial or public purposes; the
  367  format of application forms; and the procedures to implement the
  368  program.
  369         (b)The department may adopt rules to administer this
  370  section.
  371         Section 7. (1)The sum of $8 million is transferred from
  372  the Florida Opportunity Fund to the Economic Development Trust
  373  Fund for the purpose of funding the Micro-Targeted Technology
  374  Commercialization Credit Transfer Program. Notwithstanding s.
  375  216.301, Florida Statutes, and pursuant to s. 216.351, Florida
  376  Statutes, the unexpended balance of this appropriation at the
  377  end of the fiscal year shall remain in the trust fund and shall
  378  be available for carrying out the purposes of the programs in
  379  future years.
  380         (2)Of that amount:
  381         (a)The sum of $2 million is appropriated to the Institute
  382  for the Commercialization of Public Research for the 2011-2012
  383  fiscal year to support its operations.
  384         (b)The sum of $5.8 million shall be retained in the
  385  Economic Development Trust Fund to be used to reimburse the
  386  General Revenue Fund so as to defray the cost to the state of
  387  the net operating loss tax credits created in s. 220.194,
  388  Florida Statutes.
  389         (c)The sum of $200,000 shall be retained in the Economic
  390  Development Trust Fund to be drawn, as needed, to pay the
  391  administrative costs incurred by the Office of Tourism, Trade,
  392  and Economic Development associated with implementing the credit
  393  transfer program.
  394         Section 8. Section 220.194, Florida Statutes, is repealed
  395  effective June 30, 20l5, unless reviewed and saved from repeal
  396  through reenactment by the Legislature.
  397         Section 9. This act shall take effect upon becoming a law.