N.Y. Tax Law § 24

§ 24. Empire state film production credit. (a) (1) Allowance of\ncredit. A taxpayer which is a qualified film production company, or a\nqualified independent film production company, or which is a sole\nproprietor of or a member of a partnership which is a qualified film\nproduction company or a qualified independent film production company,\nand which is subject to tax under articles nine-A or twenty-two of this\nchapter, shall be allowed a credit against such tax, pursuant to the\nprovisions referenced in subdivision (c) of this section, to be computed\nas hereinafter provided.\n (2) The amount of the credit shall be the product (or pro rata share\nof the product, in the case of a member of a partnership) of thirty\npercent and the qualified production costs paid or incurred in the\nproduction of a qualified film, provided that: (i) the qualified\nproduction costs (excluding post production costs) paid or incurred\nwhich are attributable to the use of tangible property or the\nperformance of services at a qualified film production facility in the\nproduction of such qualified film equal or exceed seventy-five percent\nof the production costs (excluding post production costs) paid or\nincurred which are attributable to the use of tangible property or the\nperformance of services at any film production facility within and\nwithout the state in the production of such qualified film, and (ii)\nexcept with respect to a qualified independent film production company\nor pilot, at least ten percent of the total principal photography\nshooting days spent in the production of such qualified film must be\nspent at a qualified film production facility. However, if the qualified\nproduction costs (excluding post production costs) which are\nattributable to the use of tangible property or the performance of\nservices at a qualified film production facility in the production of\nsuch qualified film is less than three million dollars, then the portion\nof the qualified production costs attributable to the use of tangible\nproperty or the performance of services in the production of such\nqualified film outside of a qualified film production facility shall be\nallowed only if the shooting days spent in New York outside of a film\nproduction facility in the production of such qualified film equal or\nexceed seventy-five percent of the total shooting days spent within and\nwithout New York outside of a film production facility in the production\nof such qualified film. The credit shall be allowed for the taxable year\nin which the production of such qualified film is completed. However, in\nthe case of a qualified film that receives funds from additional pool 2,\nno credit shall be claimed before the later of (1) the taxable year the\nproduction of the qualified film is complete, or (2) the taxable year\nimmediately following the allocation year for which the film has been\nallocated credit by the governor's office for motion picture and\ntelevision development. If the amount of the credit is at least one\nmillion dollars but less than five million dollars, the credit shall be\nclaimed over a two year period beginning in the first taxable year in\nwhich the credit may be claimed and in the next succeeding taxable year,\nwith one-half of the amount of credit allowed being claimed in each\nyear. If the amount of the credit is at least five million dollars, the\ncredit shall be claimed over a three year period beginning in the first\ntaxable year in which the credit may be claimed and in the next two\nsucceeding taxable years, with one-third of the amount of the credit\nallowed being claimed in each year.\n (3) No qualified production costs used by a taxpayer either as the\nbasis for the allowance of the credit provided for under this section or\nused in the calculation of the credit provided for under this section\nshall be used by such taxpayer to claim any other credit allowed\npursuant to this chapter.\n (4) Notwithstanding the foregoing provisions of this subdivision, a\nqualified film production company or qualified independent film\nproduction company, that has applied for credit under the provisions of\nthis section, agrees as a condition for the granting of the credit: (i)\nto include in each qualified film distributed by DVD, or other media for\nthe secondary market, a New York promotional video approved by the\ngovernor's office of motion picture and television development or to\ninclude in the end credits of each qualified film "Filmed With the\nSupport of the New York State Governor's Office of Motion Picture and\nTelevision Development" and a logo provided by the governor's office of\nmotion picture and television development, and (ii) to certify that it\nwill purchase taxable tangible property and services, defined as\nqualified production costs pursuant to paragraph one of subdivision (b)\nof this section, only from companies registered to collect and remit\nstate and local sales and use taxes pursuant to articles twenty-eight\nand twenty-nine of this chapter.\n (5) For the period two thousand fifteen through two thousand nineteen,\nin addition to the amount of credit established in paragraph two of this\nsubdivision, a taxpayer shall be allowed a credit equal to the product\n(or pro rata share of the product, in the case of a member of a\npartnership) of ten percent and the amount of wages or salaries paid to\nindividuals directly employed (excluding those employed as writers,\ndirectors, music directors, producers and performers, including\nbackground actors with no scripted lines) by a qualified film production\ncompany or a qualified independent film production company for services\nperformed by those individuals in one of the counties specified in this\nparagraph in connection with a qualified film with a minimum budget of\nfive hundred thousand dollars. For purposes of this additional credit,\nthe services must be performed in one or more of the following counties:\nAlbany, Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung,\nChenango, Clinton, Cortland, Delaware, Erie, Essex, Franklin, Fulton,\nGenesee, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison,\nMonroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego,\nOtsego, Schenectady, Schoharie, Schuyler, Seneca, St. Lawrence, Steuben,\nTioga, Tompkins, Wayne, Wyoming, or Yates. The aggregate amount of tax\ncredits allowed pursuant to the authority of this paragraph shall be\nfive million dollars each year during the period two thousand fifteen\nthrough two thousand nineteen of the annual allocation made available to\nthe program pursuant to paragraph four of subdivision (e) of this\nsection. Such aggregate amount of credits shall be allocated by the\ngovernor's office for motion picture and television development among\ntaxpayers in order of priority based upon the date of filing an\napplication for allocation of film production credit with such office.\nIf the total amount of allocated credits applied for under this\nparagraph in any year exceeds the aggregate amount of tax credits\nallowed for such year under this paragraph, such excess shall be treated\nas having been applied for on the first day of the next year. If the\ntotal amount of allocated tax credits applied for under this paragraph\nat the conclusion of any year is less than five million dollars, the\nremainder shall be treated as part of the annual allocation made\navailable to the program pursuant to paragraph four of subdivision (e)\nof this section. However, in no event may the total of the credits\nallocated under this paragraph and the credits allocated under paragraph\nfive of subdivision (a) of section thirty-one of this article exceed\nfive million dollars in any year during the period two thousand fifteen\nthrough two thousand nineteen.\n (b) Definitions. As used in this section, the following terms shall\nhave the following meanings:\n (1) "Qualified production costs" means production costs only to the\nextent such costs are attributable to the use of tangible property or\nthe performance of services within the state directly and predominantly\nin the production (including pre-production and post production) of a\nqualified film.\n (2) "Production costs" means any costs for tangible property used and\nservices performed directly and predominantly in the production\n(including pre-production and post production) of a qualified film.\n"Production costs" shall not include (i) costs for a story, script or\nscenario to be used for a qualified film and (ii) wages or salaries or\nother compensation for writers, directors, including music directors,\nproducers and performers (other than background actors with no scripted\nlines). "Production costs" generally include technical and crew\nproduction costs, such as expenditures for film production facilities,\nor any part thereof, props, makeup, wardrobe, film processing, camera,\nsound recording, set construction, lighting, shooting, editing and\nmeals.\n (3) "Qualified film" means a feature-length film, television film,\nrelocated television production, television pilot and/or each episode of\na television series, regardless of the medium by means of which the\nfilm, pilot or episode is created or conveyed. "Qualified film" shall\nnot include (i) a documentary film, news or current affairs program,\ninterview or talk program, "how-to" (i.e., instructional) film or\nprogram, film or program consisting primarily of stock footage, sporting\nevent or sporting program, game show, award ceremony, film or program\nintended primarily for industrial, corporate or institutional end-users,\nfundraising film or program, daytime drama (i.e., daytime "soap opera"),\ncommercials, music videos or "reality" program, or (ii) a production for\nwhich records are required under section 2257 of title 18, United States\ncode, to be maintained with respect to any performer in such production\n(reporting of books, films, etc. with respect to sexually explicit\nconduct).\n (4) "Film production facility" shall mean a building and/or complex of\nbuildings and their improvements and associated back-lot facilities in\nwhich films are or are intended to be regularly produced and which\ncontain at least one sound stage, provided, however, that an armory\nowned by the state or city of New York located in the city of New York\nshall not be considered to be a "film production facility" unless it\nmeets the criteria contained in paragraph five of this subdivision or\nunless such facility is used by a qualified independent film production\ncompany.\n (5) "Qualified film production facility" shall mean a film production\nfacility in the state, which contains at least one sound stage having a\nminimum of seven thousand square feet of contiguous production space,\nprovided, however, that except with respect to a qualified film\nproduction facility being used by a qualified independent film\nproduction company: (i) a film production facility in the city of New\nYork must contain at least one sound stage having a minimum of seven\nthousand square feet of contiguous production space that is sound proof\nwith a Noise Criteria ("NC") of 30 or better, has sufficient heating and\nair conditioning for shooting without the need for supplemental units,\nincorporates a permanent grid and sufficient built-in electric service\nfor shooting without the need for generators, and is column-free with a\nclear height of at least sixteen feet under the permanent grid; and (ii)\nan armory owned by the state or city of New York located in the city of\nNew York that does not satisfy the criteria of subparagraph (i) of this\nparagraph shall be treated as a qualified film production facility upon\ncertification by the governor's office of motion picture and television\ndevelopment of a petition submitted to that office by a qualified film\nproduction company establishing that no qualified film production\nfacility is available in the city of New York that has stage space\navailable for shooting such company's film. Such petition shall be\nsubmitted no later than ninety days prior to the start of principal\nphotography for the qualified film and the governor's office of motion\npicture and television development shall have ten days to certify or\nreject the petition. A stage will be deemed unavailable if consideration\nhas been paid for its use or such stage is currently under an agreement\nwith an option for use and, in either circumstance, such period of use\nincludes the petitioner's estimated start date of principal photography.\n (6) "Qualified film production company" is a corporation, partnership,\nlimited partnership, or other entity or individual which or who is\nprincipally engaged in the production of a qualified film and controls\nthe qualified film during production.\n (7) "Qualified independent film production company" is a corporation,\npartnership, limited partnership, or other entity or individual, that or\nwho (i) is principally engaged in the production of a qualified film\nwith a maximum budget of fifteen million dollars, and (ii) controls the\nqualified film during production, and (iii) either is not a publicly\ntraded entity, or no more than five percent of the beneficial ownership\nof which is owned, directly or indirectly, by a publicly traded entity.\n (8) "Relocated television production" shall mean, notwithstanding the\nlimitations in subparagraph (i) of paragraph three of this subdivision,\na television production that is a talk or variety program that filmed at\nleast five seasons outside the state prior to its first relocated season\nin New York, the episodes are filmed before a studio audience of two\nhundred or more, and the relocated television production incurs (i) at\nleast thirty million dollars in annual production costs in the state, or\n(ii) at least ten million dollars in capital expenditures at a qualified\nproduction facility in the state.\n (c) Cross-references. For application of the credit provided for in\nthis section, see the following provisions of this chapter:\n (1) article 9-A: section 210: subdivision 36.\n (2) article 22: section 606: subsection (gg).\n (d) Notwithstanding any provision of this chapter, employees and\nofficers of the governor's office of motion picture and television\ndevelopment and the department shall be allowed and are directed to\nshare and exchange information regarding the credits applied for,\nallowed, or claimed pursuant to this section and taxpayers who are\napplying for credits or who are claiming credits, including information\ncontained in or derived from credit claim forms submitted to the\ndepartment and applications for credit submitted to the governor's\noffice of motion picture and television development.\n (e) Allocation of credit. (1) The aggregate amount of tax credits\nallowed under this section, subdivision thirty-six of section two\nhundred ten and subsection (gg) of section six hundred six of this\nchapter in any calendar year shall be twenty-five million dollars in two\nthousand four and two thousand five, sixty million dollars in two\nthousand six and two thousand seven, sixty-five million dollars in two\nthousand eight, seventy-five million dollars in two thousand nine,\neighty-five million dollars in two thousand ten, ninety million dollars\nin two thousand eleven and two thousand twelve, and one hundred ten\nmillion dollars in two thousand thirteen. Such aggregate amount of\ncredits shall be allocated by the governor's office for motion picture\nand television development among taxpayers in order of priority based\nupon the date of filing an application for allocation of film production\ncredit with such office. If the total amount of allocated credits\napplied for in any particular year exceeds the aggregate amount of tax\ncredits allowed for such year under this section, such excess shall be\ntreated as having been applied for on the first day of the subsequent\nyear.\n (2) The aggregate amount of tax credits allowed pursuant to the\nauthority of subdivision (b) of section twelve hundred one-a of this\nchapter in any calendar year shall be twelve million five hundred\nthousand dollars in two thousand four and two thousand five and thirty\nmillion dollars in two thousand six through two thousand eleven. Such\naggregate amount of credits shall be allocated by the mayor's office of\nfilm, theater and broadcasting among taxpayers in order of priority\nbased upon the date of filing an application for allocation of film\nproduction credit with such office. If the total amount of allocated\ncredits applied for in any particular year exceeds the aggregate amount\nof tax credits allowed for such year under this section, such excess\nshall be treated as having been applied for on the first day of the\nsubsequent year.\n (3) Additional pool 1 - The aggregate amount of tax credits allowed in\nsubdivision (a) of this section shall be increased by an additional\nthree hundred fifty million dollars in two thousand nine. This\nadditional amount shall be allocated by the governor's office for motion\npicture and television development among taxpayers in accordance with\nsubdivision (a) of this section.\n (4) Additional pool 2 - The aggregate amount of tax credits allowed in\nsubdivision (a) of this section shall be increased by an additional four\nhundred twenty million dollars in each year starting in two thousand ten\nthrough two thousand nineteen provided however, seven million dollars of\nthe annual allocation shall be available for the empire state film post\nproduction credit pursuant to section thirty-one of this article in two\nthousand thirteen and two thousand fourteen and twenty-five million\ndollars of the annual allocation shall be available for the empire state\nfilm post production credit pursuant to section thirty-one of this\narticle in each year starting in two thousand fifteen through two\nthousand nineteen. This amount shall be allocated by the governor's\noffice for motion picture and television development among taxpayers in\naccordance with subdivision (a) of this section. If the commissioner of\neconomic development determines that the aggregate amount of tax credits\navailable from additional pool 2 for the empire state film production\ntax credit have been previously allocated, and determines that the\npending applications from eligible applicants for the empire state film\npost production tax credit pursuant to section thirty-one of this\narticle is insufficient to utilize the balance of unallocated empire\nstate film post production tax credits from such pool, the remainder,\nafter such pending applications are considered, shall be made available\nfor allocation in the empire state film tax credit pursuant to this\nsection, subdivision thirty-six of section two hundred ten and\nsubsection (gg) of section six hundred six of this chapter. Also, if the\ncommissioner of economic development determines that the aggregate\namount of tax credits available from additional pool 2 for the empire\nstate film post production tax credit have been previously allocated,\nand determines that the pending applications from eligible applicants\nfor the empire state film production tax credit pursuant to this section\nis insufficient to utilize the balance of unallocated film production\ntax credits from such pool, then all or part of the remainder, after\nsuch pending applications are considered, shall be made available for\nallocation for the empire state film post production credit pursuant to\nthis section, subdivision forty-one of section two hundred ten and\nsubsection (gg) of section six hundred six of this chapter. The\ngovernor's office for motion picture and television development must\nnotify taxpayers of their allocation year and include the allocation\nyear on the certificate of tax credit. Taxpayers eligible to claim a\ncredit must report the allocation year directly on their empire state\nfilm production credit tax form for each year a credit is claimed and\ninclude a copy of the certificate with their tax return. In the case of\na qualified film that receives funds from additional pool 2, no empire\nstate film production credit shall be claimed before the later of the\ntaxable year the production of the qualified film is complete, or the\ntaxable year immediately following the allocation year for which the\nfilm has been allocated credit by the governor's office for motion\npicture and television development.\n