§ 354. Application and approval process. 1. A business enterprise must submit a completed application as prescribed by the commissioner. An application made by an entertainment company must be submitted by June first, two thousand fifteen, except for an application made by an entertainment company that is eligible to participate in the excelsior jobs program based upon creating net new jobs pursuant to paragraph (a) of subdivision twelve of section three hundred fifty-two of this article. An application may be recommended by entities, including but not limited to, those created pursuant to subdivision (e) of section nine hundred fifty-seven of the general municipal law. 2. As part of such application, each business enterprise must:(a) Agree to allow the department of taxation and finance to share its tax information with the department. However, any information shared as a result of this agreement shall not be available for disclosure or inspection under the state freedom of information law.
(b) Agree to allow the department of labor to share its tax and employer information with the department. However, any information shared as a result of this agreement shall not be available for disclosure or inspection under the state freedom of information law.
(c) Allow the department and its agents access to any and all books and records the department may require to monitor compliance.
(d) Agree to be permanently disqualified for empire zone benefits at any location or locations that qualify for excelsior jobs program benefits if admitted into the excelsior jobs program.
(e) Provide the following information to the department upon request:
(i) a plan outlining the schedule for meeting the job and investment requirements as set forth in subdivisions three and four of section three hundred fifty-three of this article. Such plan must include details on job titles and expected salaries;
(ii) the prior three years of federal and state income or franchise tax returns, unemployment insurance quarterly returns, real property tax bills and audited financial statements;
(iii) the amount and description of projected qualified investments for which it plans to claim the excelsior investment tax credit;
(iv) an estimate of the portion of any federal research and development tax credits, attributable to research and development activities conducted in New York state, that it anticipates claiming for the years it expects to claim the excelsior research and development credit; and
(v) the employer identification or social security numbers for all related persons to the applicant, including those of any members of a limited liability company or partners in a partnership.
(f) Provide a clear and detailed presentation of all related persons to the applicant to assure the department that jobs are not being shifted within the state.
(g) Certify, under penalty of perjury, that it is in substantial compliance with all environmental, worker protection, and local, state, and federal tax laws. 3. (a) After reviewing a business enterprise's completed application and determining that the business enterprise will meet the conditions set forth in subdivisions three and four of section three hundred fifty-three of this article, the department may admit the applicant into the program and provide the applicant with a certificate of eligibility and a preliminary schedule of benefits by year based on the applicant's projections as set forth in its application. This preliminary schedule of benefits delineates the maximum possible benefits an applicant may receive.
(b) Notwithstanding the requirements of this subdivision, an existing participant in the excelsior jobs program may be eligible for an enhanced investment tax credit on projects for child care services and the excelsior child care services tax credit component, provided:
(i) the participant is in compliance with the requirements of this article;
(ii) the participant is not, at the time of application to the department for either the enhanced investment tax credit on projects for child care services or the excelsior child care tax credit component, either operating a child care facility or sponsoring child care services for its employees; and
(iii) the participant is seeking to provide such services on condition of receipt of additional tax credits attributable to child care services. Such existing participant may apply to the department for the benefit as defined in section three hundred fifty-five of this article. In no circumstances shall the benefit term for child care services exceed the existing participant's existing benefit term in its preliminary schedule of benefits. 4. In order to become a participant in the program, an applicant must submit evidence that it satisfies the eligibility criteria specified in section three hundred fifty-three of this article and subdivision two of this section in such form as the commissioner may prescribe. After reviewing such evidence and finding it sufficient, the department shall certify the applicant as a participant and issue to that participant a certificate of tax credit for one taxable year. To receive a certificate of tax credit for subsequent taxable years, the participant must submit to the department a performance report demonstrating that the participant continues to satisfy the eligibility criteria specified in section three hundred fifty-three of this article and subdivision two of this section. If such eligibility criteria is met, a participant can receive tax credits based on interim job, investment or research and development milestones. A participant's increase in employment, qualified investment, or federal research and development tax credit attributable to research and development activities in New York state above its projections listed in its application shall not result in an increase in tax benefits under this article. However, if the participant's expenditures are less than the estimated amounts, the credit shall be less than the estimate. 5. A participant may claim tax benefits commencing in the first taxable year that the business enterprise receives a certificate of tax credit or the first taxable year listed on its preliminary schedule of benefits, whichever is later. A participant may claim such benefits for the next nine consecutive taxable years, provided that the participant demonstrates to the department that it continues to satisfy the eligibility criteria specified in section three hundred fifty-three of this article and subdivision two of this section in each of those taxable years, and provided that no tax credits may be allowed for taxable years beginning on or after January first, two thousand forty. If, in any given year, a participant who has satisfied the eligibility criteria specified in section three hundred fifty-three of this article realizes job creation less than the estimated amount, the credit shall be reduced by the proportion of actual job creation to the estimated amount, provided the proportion is at least seventy-five percent of the jobs estimated.
