123-600-0130 Final Certification (1) Facility Completion. To qualify for a final certificate, the facility shall be completed as described in the preliminary certificate, and in accordance with the performance agreement and these rules. Any changes to the preliminary certificate and/or application for preliminary certification shall be made through the amendment process outlined in these rules and shall be completed prior to the project completion date. Failure to obtain approval through the amendment process may result in denial of the application for final certification. (2) Application and Review. (a) Applicants with completed facilities must have a valid preliminary certificate for a Manufacturing BETC in accordance with ORS 285C.547(5) in order to complete final certification including all transactions associated with the pass-through option described in 123-600-0135. (b) The application shall be considered received for the purposes of ORS 285C.557 on the date marked received by the Department, unless the application is incomplete. If the application for final certification is not complete, the date marked received by the Department on the complete application containing all of the required information shall be considered the received date. (c) Review of the application for final certification shall include a determination by the Director that the proposed erection, construction, installation or acquisition is technically feasible and should operate in accordance with the representations made by the Applicant, and is in accordance with the provisions of ORS 285C.540 to 285C.559 and any applicable rules or standards adopted by the Director, including but not limited to: (A) Evidence in a form acceptable to the Department that the conditions of the preliminary certification and performance agreement have been complied with; (B) Evidence of the costs of the facility. If the actual cost of the facility is less than $50,000, copies of receipts for purchase and installation of the facility; or if the actual cost of the facility is $50,000 or more, certified to by a certified public accountant who is not an employee of the Applicant. The certified public accountant shall: (i) Complete a written review of costs paid or incurred to be reported in the Final Application, related to the facility as described in the Preliminary Application and Preliminary Certificate, based on canceled checks, invoices, or receipts, a binding contract or agreement, or other documentation as may be required under these rules and certify that such costs were properly paid or incurred and represent eligible costs under these rules indicating exceptions as applicable. (ii) Conduct the review in the form of an agreed-upon procedures engagement that is in accordance with AT Section 201, Agreed-Upon Procedure Engagements (Statements on Standards for Attestation Engagements 10, as amended) of the American Institute of Certified Public Accountants. (iii) Conduct any sampling of costs in accordance with procedures in the Statement on Auditing Standards in the AICPA Guidelines. (iv) Review sufficient information if an applicant has an outstanding binding contract or loan agreement, to become satisfied that accounts directly related to the facility are not in default in order to include such costs as eligible costs. (C) The amount of the credit under ORS 315.341 that is to be claimed and that the costs have not previously received preliminary or final certification; (D) Information sufficient to demonstrate the number and type of jobs created and maintained by the operation and maintenance of the facility over the five-year period beginning with the year of preliminary certification under ORS 285C.551 and information on the benefits of the facility with regard to overall economic activity in this state will be met; (E) Information sufficient to demonstrate that the facility shall remain in operation for at least five years, unless the Director by rule specifies a shorter period of operation; (F) Documentation of compliance with applicable state and local laws and regulations and licensing and permitting requirements as defined by the Department; and (G) A statement that the Applicant or the principal, director, officer, owner, majority shareholder or member of the Applicant, or the manager of the Applicant if the Applicant is a limited liability company, is not in arrears for payments owed to any government agency while in any capacity with direct or indirect control over a business. (H) Any other information determined by the Department to be necessary prior to issuance of a final certificate, including inspection of the facility by the Department. (b) After an application for final certification is received, the Department shall determine whether the application is complete. An application is incomplete if it does not include information needed to demonstrate substantive compliance with the provisions of ORS 285C.540 to 285C.559 and any applicable rules or standards and preliminary certification conditions adopted by the Director. If it is not complete, the Applicant shall be provided a written explanation describing deficiencies. If it is complete, the Department shall process the application. Within 60 days after a completed application for final certification is received the Department shall either approve or deny the application. (c) If the Department approves the application; the Director shall issue a certified amount letter, which shall state the amount of certified costs, reduced as applicable by any federal grants received, and the amount of the tax credit approved. The certified amount letter may contain additional criteria and conditions that shall be met in order to retain tax credit benefits or the tax credit certificate issued to the Applicant may be subject to revocation. If the facility fails to meet any of the criteria, conditions and requirements established in final certification, the Applicant shall notify the Department within 30 days. (d) When an Applicant chooses to transfer the tax credit under ORS 285C.549, the Department may hold the application for final certification until pass-through partner(s) information is received by the Department. (3) Final Certificate. A certificate issued under ORS 285C.553 is required for purposes of obtaining tax credits in accordance with ORS 315.341. Such certification shall be granted for a period not to exceed five years. Unless transferred to a pass-through partner under ORS 285C.549, the five-year period shall begin with the tax year of the Applicant during which the completed application for final certification of the facility under ORS 285C.553 is received by the Department. (a) If the original owner of the certificate uses any portion of the credit, the certificate becomes nontransferable. (b) After the Director issues a final certificate, an Applicant shall notify the Department in writing within 30 days of any of the following conditions: (A) The facility has been moved; (B) Title to the facility has been conveyed; (C) The facility is subject to or part of a bankruptcy proceeding; (D) The facility is not operating; or (E) The term of a leased facility has ended. (4)(a) Basis for Denying Tax Credit Benefits. The Department may deny final certification if any of the following conditions exist: (A) Final certification is not complete before 1,825 days (5 years) after the preliminary certificate was issued. (B) The Applicant does not provide information about the facility in a reasonable time after the Department requests it; (C) The facility is significantly different than the proposed facility for which the preliminary certificate was issued; (D) The Applicant misrepresents or fails to construct or operate the facility; (E) The Applicant fails to demonstrate that the facility described in the application is separate and distinct from previous or current applications reviewed by the Department; (F) The facility does not meet all of the conditions and requirements contained in the preliminary certificate or performance agreement; or (G) The Applicant is unable to demonstrate that the facility complies with all applicable provisions of ORS Chapter 285C.540 to 285C.559 and these rules. (b) If the Department does not approve the application, the Department shall provide written notice of the action, including a statement of the findings and reasons for the denial by regular and certified mail. (c) An application for final certification that is denied can be submitted again. An application for final certification can be amended or withdrawn by the Applicant. If an application is submitted again or amended, the time for review of the application for final certification starts over. (d) If the Director does not issue a certified amount letter for final certified cost or a final certificate within 60 days after an application is filed, the application is denied pursuant to ORS 285C.553 (4). (5)(a) Basis for Revoking Tax Credit Benefits. The Director shall revoke certificates as provided in ORS 285C.559 and 315.341 (4)(a) if the Director finds that: (A) The certification was obtained by fraud or misrepresentation. For the purposes of this section, “fraud or misrepresentation” means any misrepresentation made by an Applicant for a preliminary or final certification, including but not limited to, misrepresentations as to the Applicant’s financial viability, facility construction and operation, or any other information provided as part of an application for a preliminary or final certification; (B) The holder of the certificate or the operator of the facility has failed to construct or operate the facility in compliance with the plans, specifications and procedures in the certificate or the performance agreement; or (C) The facility is no longer in operation. (b) If all or a part of the tax credit certificate has been transferred to a pass-through partner under ORS 285C.549, the certificate is not considered revoked as to the pass-through partner, but the Applicant is liable for the amount of tax credits claimed or that could be claimed. (6)(a) Sale or Disposition of the Facility After Final Certification. Pursuant to ORS 315.341(4)(a), upon receiving notice that the facility has been sold or otherwise transferred, the Director shall revoke the final certificate, as of the date of the disposition of the facility, unless the Manufacturing BETC for the facility has already been transferred under ORS 285C.549. (b) The new owner or new or renewed lessee of a facility may apply for a final certificate. The request shall comply with ORS 285C.540 through 285C.559 and these rules and include information to allow the Department to determine the amount of tax credit not claimed by the former owner or former lessee. If the facility continues to comply with the requirements set out in these rules and any applicable conditions imposed by the Department, the Director shall issue a new final certificate consistent with the provisions of ORS 315.341 (4)(a). (7) Request for Reconsideration. No later than 60 days after the Director issues an order on preliminary certification, final certification, or canceling or revoking a preliminary or final certificate under these rules, the Applicant may request reconsideration in writing. (8) Inspections. After an application is filed under ORS 285C.547 or 285C.553 or a tax credit is claimed under these rules, the Department may inspect the facility. The Department shall schedule the inspection during normal working hours, following reasonable notice to the facility operator. Statutory/Other Authority: ORS 285C.540 - 285C.559, ORS 315.341, OL 2011 & Ch. 474 HB2523 Statutes/Other Implemented: ORS 285C.540-559, 315.341, OL 2011, Ch. 474 HB2523, OL 2012 & Ch. 45 HB 4079 History: OBDD 8-2012, f. & cert. ef. 6-1-12