N.Y. Tax Law § 21

* § 21. Brownfield redevelopment tax credit. (a) Allowance of credit.\n** (1) General. A taxpayer subject to tax under article nine, nine-A,\ntwenty-two, thirty-two or thirty-three of this chapter shall be allowed\na credit against such tax, pursuant to the provisions referenced in\nsubdivision (f) of this section. Such credit shall be allowed with\nrespect to a qualified site, as such term is defined in paragraph one of\nsubdivision (b) of this section. The amount of the credit in a taxable\nyear shall be the sum of the credit components specified in paragraphs\ntwo, three and four of this subdivision applicable in such year.\n ** NB Effective until January 1, 2015\n ** (1) General. A taxpayer subject to tax under article nine, nine-A,\ntwenty-two or thirty-three of this chapter shall be allowed a credit\nagainst such tax, pursuant to the provisions referenced in subdivision\n(f) of this section. Such credit shall be allowed with respect to a\nqualified site, as such term is defined in paragraph one of subdivision\n(b) of this section. The amount of the credit in a taxable year shall be\nthe sum of the credit components specified in paragraphs two, three and\nfour of this subdivision applicable in such year.\n ** NB Effective January 1, 2015\n (2) Site preparation credit component. The site preparation credit\ncomponent shall be equal to the applicable percentage of the site\npreparation costs paid or incurred by the taxpayer with respect to a\nqualified site. The credit component amount so determined with respect\nto a site's qualification for a certificate of completion shall be\nallowed for the taxable year in which the effective date of the\ncertificate of completion occurs. The credit component amount determined\nother than with respect to such qualification shall be allowed for the\ntaxable year in which the improvement to which the applicable costs\napply is placed in service for up to five taxable years after the\nissuance of such certificate of completion.\n (3) Tangible property credit component. The tangible property credit\ncomponent shall be equal to the applicable percentage of the cost or\nother basis for federal income tax purposes of tangible personal\nproperty and other tangible property, including buildings and structural\ncomponents of buildings, which constitute qualified tangible property;\nprovided, however, that in determining the cost or other basis of such\nproperty, the taxpayer shall exclude the acquisition cost of any item of\nproperty with respect to which a credit under this section was allowable\nto another taxpayer. The credit component amount so determined shall be\nallowed for the taxable year in which such qualified tangible property\nis placed in service on a qualified site with respect to which a\ncertificate of completion has been issued to the taxpayer for up to ten\ntaxable years after the date of the issuance of such certificate of\ncompletion. The tangible property credit component shall be allowed with\nrespect to property leased to a second party only if such second party\nis either (i) not a party responsible for the disposal of hazardous\nwaste or the discharge of petroleum at the site according to applicable\nprinciples of statutory or common law liability, or (ii) a party\nresponsible according to applicable principles of statutory or common\nlaw liability if such party's liability arises solely from operation of\nthe site subsequent to the disposal of hazardous waste or the discharge\nof petroleum, and is so certified by the commissioner of environmental\nconservation at the request of the taxpayer, pursuant to section 27-1419\nof the environmental conservation law. Notwithstanding any other\nprovision of law to the contrary, in the case of allowance of credit\nunder this section to such a lessor, the commissioner shall have the\nauthority to reveal to such lessor any information, with respect to the\nissue of qualified use of property by the lessee, which is the basis for\nthe denial in whole or in part, or for the recapture, of the credit\nclaimed by such lessor. For purposes of the tangible property credit\ncomponent allowed under this section the taxpayer to whom the\ncertificate of completion is issued, as provided for under subdivision\nfive of section 27-1419 of the environmental conservation law, may\ntransfer the benefits and burdens of the certificate of completion,\nwhich run with the land and to the applicant's successors or assigns\nupon transfer or sale of all or any portion of an interest or estate in\nthe qualified site. However, the taxpayer to whom certificate's benefits\nand burdens are transferred shall not include the cost of acquiring all\nor any portion of an interest or estate in the site and the amounts\nincluded in the cost or other basis for federal income tax purposes of\nqualified tangible property already claimed by the previous taxpayer\npursuant to this section.\n (3-a) (A) Notwithstanding any other provision of law to the contrary,\nthe tangible property credit component available for any qualified site\npursuant to paragraph three of this subdivision shall not exceed\nthirty-five million dollars or three times the costs included in the\ncalculation of the site preparation credit component and the on-site\ngroundwater remediation credit component under paragraphs two and four,\nrespectively, of this subdivision, whichever is less; provided, however,\nthat: (1) in the case of a qualified site to be used primarily for\nmanufacturing activities, the tangible property credit component\navailable for any qualified site pursuant to paragraph three of this\nsubdivision shall not exceed forty-five million dollars or six times the\ncosts included in the calculation of the site preparation credit\ncomponent and the on-site groundwater remediation credit component under\nparagraphs two and four, respectively, of this subdivision, whichever is\nless; and (2) the provisions of this paragraph shall not apply to any\nqualified site for which the department of environmental conservation\nhas issued a notice to the taxpayer before June twenty-third, two\nthousand eight that its request for participation has been accepted\nunder subdivision six of section 27-1407 of the environmental\nconservation law.\n (B) For the purposes of this paragraph, the term "manufacturing\nactivities" means the production of goods by manufacturing, processing,\nassembling, refining, mining, extracting, farming, agriculture,\nhorticulture, floriculture, viticulture or commercial fishing, and shall\nalso include the activities of a qualified emerging technology company\nas defined in paragraph (c) of subdivision one of section thirty-one\nhundred two-e of the public authorities law regardless of the ten\nmillion dollar limitation expressed in subparagraph one of such\nparagraph; provided however, that the generation and distribution of\nelectricity, the distribution of natural gas, and the production of\nsteam associated with the generation of electricity, shall not\nconstitute manufacturing activities.\n (C) In order to properly administer the credit set forth in paragraph\nthree of this subdivision, the department may disclose information about\nthe calculation and the amounts of the credits claimed under paragraph\nthree of this subdivision on a taxpayer's return to the department of\nenvironmental conservation and other taxpayers claiming tax credits\nunder this section with respect to the same qualifying site.\n (D) If the qualifying site is located in a brownfield opportunity area\nand is developed in conformance with the goals and priorities\nestablished for that applicable brownfield opportunity area as\ndesignated pursuant to section nine hundred seventy-r of the general\nmunicipal law, the applicable percentage of the tangible property credit\ncomponent will be increased by two percent.\n (4) On-site groundwater remediation credit component. The on-site\ngroundwater remediation credit component shall be equal to the\napplicable percentage of the on-site groundwater remediation costs paid\nor incurred by the taxpayer with respect to a qualified site (to the\nextent that such groundwater remediation costs are not included in the\ndetermination of the site preparation credit or the cost or other basis\nincluded in the determination of the tangible property credit). The\ncredit component so determined for costs incurred and paid with respect\nto and prior to the issuance of a certificate of completion shall be\nallowed for the taxable year in which the effective date of the issuance\nof a certificate of completion occurs. The credit component amount\ndetermined in taxable years after the effective date of the issuance of\na certificate of completion shall be allowed in the taxable year such\nqualified costs are incurred and paid for up to five taxable years after\nthe issuance of such certificate of completion.\n ** (5) Applicable percentage. For purposes of paragraphs two, three\nand four of this subdivision, the applicable percentage shall be twelve\npercent in the case of credits claimed under article nine, nine-A,\nthirty-two or thirty-three of this chapter, and ten percent in the case\nof credits claimed under article twenty-two of this chapter, except that\nwhere at least fifty percent of the area of the qualified site relating\nto the credit provided for in this section is located in an\nenvironmental zone as defined in paragraph six of subdivision (b) of\nthis section, the applicable percentage shall be increased by an\nadditional eight percent. Provided, however, as afforded in section\n27-1419 of the environmental conservation law, if the certificate of\ncompletion indicates that the qualified site has been remediated to\nTrack 1 as that term is described in subdivision four of section 27-1415\nof the environmental conservation law, the applicable percentage set\nforth in the first sentence of this paragraph shall be increased by an\nadditional two percent.\n ** NB Effective until January 1, 2015\n ** (5) Applicable percentage. For purposes of paragraphs two, three\nand four of this subdivision, the applicable percentage shall be twelve\npercent in the case of credits claimed under article nine, nine-A or\nthirty-three of this chapter, and ten percent in the case of credits\nclaimed under article twenty-two of this chapter, except that where at\nleast fifty percent of the area of the qualified site relating to the\ncredit provided for in this section is located in an environmental zone\nas defined in paragraph six of subdivision (b) of this section, the\napplicable percentage shall be increased by an additional eight percent.\nProvided, however, as afforded in section 27-1419 of the environmental\nconservation law, if the certificate of completion indicates that the\nqualified site has been remediated to Track 1 as that term is described\nin subdivision four of section 27-1415 of the environmental conservation\nlaw, the applicable percentage set forth in the first sentence of this\nparagraph shall be increased by an additional two percent.\n ** NB Effective January 1, 2015\n (6) Site preparation costs and on-site groundwater remediation costs\npaid or incurred by the taxpayer with respect to a qualified site and\nthe cost or other basis for federal income tax purposes of tangible\npersonal property and other tangible property, including buildings and\nstructural components of buildings, which constitute qualified tangible\nproperty shall only include costs paid or incurred by the taxpayer on or\nafter the date of the brownfield site cleanup agreement executed by the\ntaxpayer and the department of environmental conservation pursuant to\nsection 27-1409 of the environmental conservation law.\n (7) The amount of any grant received from the federal, state or a\nlocal government or an instrumentality or public benefit corporation\nthereof received by the taxpayer and used to pay for any of the costs\ndescribed in paragraphs two, three and four of this subdivision, which\nwas not included in the federal gross income of the taxpayer, shall be\nsubtracted in computing the credit components under this section.\n (b) Definitions. As used in this section, the following terms shall\nhave the following meanings:\n (1) Qualified site. A "qualified site" is a site with respect to which\na certificate of completion has been issued to the taxpayer by the\ncommissioner of environmental conservation pursuant to section 27-1419\nof the environmental conservation law.\n (2) Site preparation costs. The term "site preparation costs" shall\nmean all amounts properly chargeable to a capital account, (i) which are\npaid or incurred in connection with a site's qualification for a\ncertificate of completion, and (ii) all other site preparation costs\npaid or incurred in connection with preparing a site for the erection of\na building or a component of a building, or otherwise to establish a\nsite as usable for its industrial, commercial (including the commercial\ndevelopment of residential housing), recreational or conservation\npurposes. Site preparation costs shall include, but not be limited to,\nthe costs of excavation, temporary electric wiring, scaffolding,\ndemolition costs, and the costs of fencing and security facilities. Site\npreparation costs shall not include the cost of acquiring the site and\nshall not include amounts included in the cost or other basis for\nfederal income tax purposes of qualified tangible property, as described\nin paragraph three of this subdivision.\n (3) Qualified tangible property. "Qualified tangible property" is\nproperty described in either subparagraph (A) or (B) of this paragraph\nwhich:\n (A) (i) is depreciable pursuant to section one hundred sixty-seven of\nthe internal revenue code,\n (ii) has a useful life of four years or more,\n (iii) has been acquired by purchase as defined in section one hundred\nseventy-nine (d) of the internal revenue code,\n (iv) has a situs on a qualified site in this state, and\n (v) is principally used by the taxpayer for industrial, commercial,\nrecreational or environmental conservation purposes (including the\ncommercial development of residential housing); or\n (B)(i) is, or when occupied becomes, part of a dwelling whose primary\nownership structure is covered under either article nine-B of the real\nproperty law or meets the requirements of section 216 (b)(1) of the\nInternal Revenue Code;\n (ii) has been acquired by purchase (as defined in section one hundred\nseventy-nine (d) of the Internal Revenue Code);\n (iii) has a situs on a qualified site in this state; and\n (iv) for purposes of this subparagraph only, and notwithstanding any\nother section of law to the contrary, property qualifying under this\nsubparagraph shall be deemed to be qualified tangible property for the\npurposes of paragraph one of subdivision (d) of this section; and in\naddition, for the purposes of this subdivision only, property qualifying\nunder this subparagraph shall be deemed to have been placed in service\nfor the purposes of paragraph three of subdivision (a) of this section\nwhen a certificate of occupancy is issued for such property.\n (4) On-site groundwater remediation costs. The term "on-site\ngroundwater remediation costs" shall mean all amounts properly\nchargeable to a capital account, (i) which are paid or incurred in\nconnection with a site's qualification for a certificate of completion,\nand (ii) include costs which are paid or incurred in connection with the\nremediation of on-site groundwater contamination and incurred to\nimplement a requirement of the remedial work plan or an interim remedial\nmeasure work plan for a qualified site which are imposed pursuant to\nsubdivisions two and three of section 27-1411 of the environmental\nconservation law.\n (5) Certificate of completion. A "certificate of completion" issued by\nthe commissioner of environmental conservation pursuant to section\n27-1419 of the environmental conservation law.\n (6) Environmental zones (EN-Zones). An "environmental zone" shall mean\nan area designated as such by the commissioner of economic development.\nSuch areas so designated are areas which are census tracts and block\nnumbering areas which, as of the two thousand census, satisfy either of\nthe following criteria:\n (A) areas that have both:\n (i) a poverty rate of at least twenty percent for the year to which\nthe data relate; and\n (ii) an unemployment rate of at least one and one-quarter times the\nstatewide unemployment rate for the year to which the data relate, or;\n (B) areas that have a poverty rate of at least two times the poverty\nrate for the county in which the areas are located for the year to which\nthe data relate provided, however, that a qualified site shall only be\ndeemed to be located in an environmental zone under this subparagraph\n(B) if such site was the subject of a brownfield site cleanup agreement\npursuant to section 27-1409 of the environmental conservation law that\nwas entered into prior to September first, two thousand ten.\n Such designation shall be made and a list of all such environmental\nzones shall be established by the commissioner of economic development\nno later than December thirty-first, two thousand four provided,\nhowever, that a qualified site shall only be deemed to be located in an\nenvironmental zone under subparagraph (B) of this paragraph if such site\nwas the subject of a brownfield site cleanup agreement pursuant to\nsection 27-1409 of the environmental conservation law that was entered\ninto prior to September first, two thousand ten.\n ** (c) Qualifying property. Property which qualifies for the credit\nprovided for under this section and also for a credit provided for (1)\nunder either subdivision twelve or subdivision twelve-B of section two\nhundred ten of this chapter, or both, (2) subsection (a) or subsection\n(j) of section six hundred six of this chapter, or both, (3) the credit\nprovided for under subsection (i) of section fourteen hundred fifty-six\nof this chapter, or (4) the credit provided under subdivision (q) of\nsection fifteen hundred eleven of this chapter may be the basis for\neither the credit provided for under this section or one of the credits\nenumerated in paragraph one, two, three or four of this subdivision, but\nnot both.\n ** NB Effective until January 1, 2015\n ** (c) Qualifying property. Property which qualifies for the credit\nprovided for under this section and also for a credit provided for (1)\nunder either subdivision one or subdivision three of section two hundred\nten-B of this chapter, or both, or (2) subsection (a) or subsection (j)\nof section six hundred six of this chapter, or both may be the basis for\neither the credit provided for under this section or one of the credits\nenumerated in paragraph one or two of this subdivision, but not both.\n ** NB Effective January 1, 2015\n (d) Depreciable property. (1) With respect to qualified tangible\nproperty which is depreciable pursuant to section one hundred\nsixty-seven of the internal revenue code but is not subject to the\nprovisions of section one hundred sixty-eight of such code and which\nceases to be in qualified use prior to the end of the taxable year in\nwhich the credit is to be taken, the amount of the credit shall be that\nportion of the credit provided for in this subdivision which represents\nthe ratio which the months of qualified use bear to the months of useful\nlife. If property on which credit has been taken ceases to be in\nqualified use prior to the end of its useful life, the difference\nbetween the credit taken and the credit allowed for actual use must be\nadded back in the year in which the property ceased to be in qualified\nuse. Provided, however, if such property ceases to be in qualified use\nafter it has been in qualified use for more than twelve consecutive\nyears, it shall not be necessary to add back the credit as provided in\nthis paragraph. The amount of credit allowed for actual use shall be\ndetermined by multiplying the original credit by the ratio which the\nmonths of qualified use bear to the months of useful life. For purposes\nof this paragraph, the useful life of property shall be the same as the\ntaxpayer uses for depreciation purposes when computing its federal\nincome tax liability.\n (2) Except with respect to that property to which paragraph four of\nthis subdivision applies, with respect to qualified tangible property\nwhich is three-year property, as defined in subsection (e) of section\none hundred sixty-eight of the internal revenue code, which ceases to be\nin qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to thirty-six. If property on which\ncredit has been taken ceases to be in qualified use prior to the end of\nthirty-six months, the difference between the credit taken and the\ncredit allowed for actual use must be added back in the year in which\nthe property ceased to be in qualified use. The amount of credit allowed\nfor actual use shall be determined by multiplying the original credit by\nthe ratio which the months of qualified use bear to thirty-six.\n (3) Except with respect to that property to which paragraph four of\nthis subdivision applies, with respect to qualified tangible property\nwhich is subject to the provisions of section one hundred sixty-eight of\nthe internal revenue code other than three-year property as defined in\nsubsection (e) of such section one hundred sixty-eight which ceases to\nbe in qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to sixty. If property on which credit\nhas been taken ceases to be in qualified use prior to the end of sixty\nmonths, the difference between the credit taken and the credit allowed\nfor actual use must be added back in the year in which the property\nceased to be in qualified use. The amount of credit allowed for actual\nuse shall be determined by multiplying the original credit by the ratio\nwhich the months of qualified use bear to sixty.\n (4) With respect to any qualified tangible property to which section\none hundred sixty-eight of the internal revenue code applies, which is a\nbuilding or a structural component of a building and which ceases to be\nin qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to the total number of months over\nwhich the taxpayer chooses to deduct the property under the internal\nrevenue code. If property on which credit has been taken ceases to be in\nqualified use prior to the end of the period over which the taxpayer\nchooses to deduct the property under the internal revenue code, the\ndifference between the credit taken and the credit allowed for actual\nuse must be added back in the year in which the property ceased to be in\nqualified use. Provided, however, if such property ceases to be in\nqualified use after it has been in qualified use for more than twelve\nconsecutive years, it shall not be necessary to add back the credit as\nprovided in this paragraph. The amount of credit allowed for actual use\nshall be determined by multiplying the original credit by the ratio\nwhich the months of qualified use bear to the total number of months\nover which the taxpayer chooses to deduct the property under the\ninternal revenue code.\n (e) If the certificate of completion issued to the taxpayer with\nrespect to a qualified site is revoked by a determination issued\npursuant to section 27-1419 of the environmental conservation law, the\namount of any credit allowed by this section shall be added back in the\ntaxable year in which such determination is final and no longer subject\nto judicial review.\n ** (f) Cross-references. For application of the credit provided for in\nthis section, see the following provisions of this chapter:\n (1) Article 9: Section 187-g\n (2) Article 9-A: Section 210, subdivision 33\n (3) Article 22: Section 606, subsections (i) and (dd)\n (4) Article 32: Section 1456, subsection (q)\n (5) Article 33: Section 1511, subdivision (u).\n ** NB Effective until January 1, 2015\n ** (f) Cross-references. For application of the credit provided for in\nthis section, see the following provisions of this chapter:\n (1) Article 9: Section 187-g\n (2) Article 9-A: Section 210-B, subdivision 17\n (3) Article 22: Section 606, subsections (i) and (dd)\n (4) Article 33: Section 1511, subdivision (u).\n ** NB Effective January 1, 2015\n * NB There are 2 § 21's\n