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2016 Florida Statutes
Contaminated site rehabilitation tax credit.
Contaminated site rehabilitation tax credit.
220.1845 Contaminated site rehabilitation tax credit.—
(1) APPLICATION FOR TAX CREDIT.—A site rehabilitation application must be received by the Division of Waste Management of the Department of Environmental Protection by January 31 of the year after the calendar year for which site rehabilitation costs are being claimed in a tax credit application. All site rehabilitation costs claimed must have been for work conducted between January 1 and December 31 of the year for which the application is being submitted. All payment requests must have been received and all costs must have been paid prior to submittal of the tax credit application, but no later than January 31 of the year after the calendar year for which site rehabilitation costs are being claimed.
(2) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.—
(a) A credit in the amount of 50 percent of the costs of voluntary cleanup activity that is integral to site rehabilitation at the following sites is available against any tax due for a taxable year under this chapter:
1. A drycleaning-solvent-contaminated site eligible for state-funded site rehabilitation under s. 376.3078(3);
2. A drycleaning-solvent-contaminated site at which site rehabilitation is undertaken by the real property owner pursuant to s. 376.3078(11), if the real property owner is not also, and has never been, the owner or operator of the drycleaning facility where the contamination exists; or
3. A brownfield site in a designated brownfield area under s. 376.80.
(b) A tax credit applicant, or multiple tax credit applicants working jointly to clean up a single site, may not be granted more than $500,000 per year in tax credits for each site voluntarily rehabilitated. Multiple tax credit applicants shall be granted tax credits in the same proportion as their contribution to payment of cleanup costs. Subject to the same conditions and limitations as provided in this section, a municipality, county, or other tax credit applicant which voluntarily rehabilitates a site may receive not more than $500,000 per year in tax credits which it can subsequently transfer subject to the provisions in paragraph (g).
(c) If the credit granted under this section is not fully used in any one year because of insufficient tax liability on the part of the corporation, the unused amount may be carried forward for up to 5 years. The carryover credit may be used in a subsequent year if the tax imposed by this chapter for that year exceeds the credit for which the corporation is eligible in that year after applying the other credits and unused carryovers in the order provided by s. 220.02(8). If during the 5-year period the credit is transferred, in whole or in part, pursuant to paragraph (g), each transferee has 5 years after the date of transfer to use its credit.
(d) 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.
(e) A tax credit applicant that receives state-funded site rehabilitation under s. 376.3078(3) for rehabilitation of a drycleaning-solvent-contaminated site is ineligible to receive credit under this section for costs incurred by the tax credit applicant in conjunction with the rehabilitation of that site during the same time period that state-administered site rehabilitation was underway.
1(f) The total amount of the tax credits which may be granted under this section is $21.6 million in the 2015-2016 fiscal year and $5 million annually thereafter.
(g)1. Tax credits that may be available under this section to an entity eligible under s. 376.30781 may be transferred after a merger or acquisition to the surviving or acquiring entity and used in the same manner and with the same limitations.
2. The entity or its surviving or acquiring entity as described in subparagraph 1., may transfer any unused credit in whole or in units of at least 25 percent of the remaining credit. The entity acquiring such credit may use it in the same manner and with the same limitation as described in 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.
3. If the credit is reduced due to a determination by the Department of Environmental Protection or an examination or audit by the Department of Revenue, the tax deficiency shall be recovered from the first entity, or the surviving or acquiring entity that claimed the credit up to the amount of credit taken. Any subsequent deficiencies shall be assessed against the entity acquiring and claiming the credit, or in the case of multiple succeeding entities in the order of credit succession.
(h) In order to encourage completion of site rehabilitation at contaminated sites being voluntarily cleaned up and eligible for a tax credit under this section, the tax credit applicant may claim an additional 25 percent of the total cleanup costs, not to exceed $500,000, in the final year of cleanup as evidenced by the Department of Environmental Protection issuing a “No Further Action” order for that site.
(i) In order to encourage the construction of housing that meets the definition of affordable provided in s. 420.0004, an applicant for the tax credit may claim an additional 25 percent of the total site rehabilitation costs that are eligible for tax credits under this section, not to exceed $500,000. In order to receive this additional tax credit, the applicant must provide a certification letter from the Florida Housing Finance Corporation, the local housing authority, or other governmental agency that is a party to the use agreement indicating that the construction on the brownfield site has received a certificate of occupancy and the brownfield site has a properly recorded instrument that limits the use of the property to housing that meets the definition of affordable provided in s. 420.0004.
(j) In order to encourage the redevelopment of a brownfield site, as defined in the brownfield site rehabilitation agreement, that is hindered by the presence of solid waste, as defined in s. 403.703, a tax credit applicant, or multiple tax credit applicants working jointly to clean up a single brownfield site, may also claim costs required to address solid waste removal as defined in this paragraph in accordance with rules of the Department of Environmental Protection. Multiple tax credit applicants shall be granted tax credits in the same proportion as each applicant’s contribution to payment of solid waste removal costs. These costs are eligible for a tax credit provided the applicant submits an affidavit stating that, after consultation with appropriate local government officials and the Department of Environmental Protection, to the best of the applicant’s knowledge according to such consultation and available historical records, the brownfield site was never operated as a permitted solid waste disposal area or was never operated for monetary compensation and the applicant submits all other documentation and certifications required by this section. Under this section, wherever reference is made to “site rehabilitation,” the Department of Environmental Protection shall instead consider whether or not the costs claimed are for solid waste removal. Tax credit applications claiming costs pursuant to this paragraph shall not be subject to the calendar-year limitation and January 31 annual application deadline, and the Department of Environmental Protection shall accept a one-time application filed subsequent to the completion by the tax credit applicant of the applicable requirements listed in this section. A tax credit applicant may claim 50 percent of the cost for solid waste removal, not to exceed $500,000, after the applicant has determined solid waste removal is completed for the brownfield site. A solid waste removal tax credit application may be filed only once per brownfield site. For the purposes of this section, the term:
1. “Solid waste disposal area” means a landfill, dump, or other area where solid waste has been disposed of.
2. “Monetary compensation” means the fees that were charged or the assessments that were levied for the disposal of solid waste at a solid waste disposal area.
3. “Solid waste removal” means removal of solid waste from the land surface or excavation of solid waste from below the land surface and removal of the solid waste from the brownfield site. The term also includes:
a. Transportation of solid waste to a licensed or exempt solid waste management facility or to a temporary storage area.
b. Sorting or screening of solid waste prior to removal from the site.
c. Deposition of solid waste at a permitted or exempt solid waste management facility, whether the solid waste is disposed of or recycled.
(k) In order to encourage the construction and operation of a new health care facility as defined in s. 408.032 or s. 408.07, or a health care provider as defined in s. 408.07 or s. 408.7056, on a brownfield site, an applicant for a tax credit may claim an additional 25 percent of the total site rehabilitation costs, not to exceed $500,000, if the applicant meets the requirements of this paragraph. In order to receive this additional tax credit, the applicant must provide documentation indicating that the construction of the health care facility or health care provider by the applicant on the brownfield site has received a certificate of occupancy or a license or certificate has been issued for the operation of the health care facility or health care provider.
(3) FILING REQUIREMENTS.—Any corporation that wishes to obtain credit under this section must submit with its return a tax credit certificate approving tax credits issued by the Department of Environmental Protection under s. 376.30781.
(4) ADMINISTRATION; AUDIT AUTHORITY; TAX CREDIT FORFEITURE.—
(a) The Department of Revenue may adopt rules to prescribe any necessary forms required to claim a tax credit under this section and to provide the administrative guidelines and procedures required to administer this section.
(b) In addition to its existing audit and investigation authority relating to this chapter, the Department of Revenue may perform any additional financial and technical audits and investigations, including examining the accounts, books, or records of the tax credit applicant, which are necessary to verify the site rehabilitation costs included in a tax credit return and to ensure compliance with this section. The Department of Environmental Protection shall provide technical assistance, when requested by the Department of Revenue, on any technical audits performed pursuant to this section.
(c) It is grounds for forfeiture of previously claimed and received tax credits if the Department of Revenue determines, as a result of either an audit or information received from the Department of Environmental Protection, that a taxpayer received tax credits pursuant to this section to which the taxpayer was not entitled. In the case of fraud, the taxpayer shall be prohibited from claiming any future tax credits under this section.
1. The taxpayer is responsible for returning forfeited tax credits to the Department of Revenue, and such funds shall be paid into the General Revenue Fund of the state.
2. The taxpayer shall file with the Department of Revenue an amended tax return or such other report as the Department of Revenue prescribes by rule and shall pay any required tax within 60 days after the taxpayer receives notification from the Department of Environmental Protection pursuant to s. 376.30781 that previously approved tax credits have been revoked or modified, if uncontested, or within 60 days after a final order is issued following proceedings involving a contested revocation or modification order.
3. A notice of deficiency may be issued by the Department of Revenue at any time within 5 years after the date the taxpayer receives notification from the Department of Environmental Protection pursuant to s. 376.30781 that previously approved tax credits have been revoked or modified. If a taxpayer fails to notify the Department of Revenue of any change in its tax credit claimed, a notice of deficiency may be issued at any time. In either case, the amount of any proposed assessment set forth in such notice of deficiency shall be limited to the amount of any deficiency resulting under this section from the recomputation of the taxpayer’s tax for the taxable year.
4. Any taxpayer that fails to report and timely pay any tax due as a result of the forfeiture of its tax credit is in violation of this section and is subject to applicable penalty and interest.
History.—s. 3, ch. 98-189; s. 34, ch. 2000-210; s. 3, ch. 2003-173; s. 2, ch. 2006-291; s. 21, ch. 2006-312; s. 2, ch. 2008-239; s. 59, ch. 2010-205; s. 12, ch. 2011-76; s. 20, ch. 2015-221.
1Note.—Section 35, ch. 2011-76, provides that:
“(1) The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4), Florida Statutes, for the purpose of implementing this act.
“(2) Notwithstanding any other provision of law, such emergency rules shall remain in effect for 6 months after the date adopted and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.”