NY Econ Dev L § 352 (2021)
2021 New York Laws COM - Economic Development Law Article 17 - Excelsior Jobs Program Act 352 - Definitions.

§ 352. Definitions. For the purposes of this article:   1.  "Agriculture"  means  both agricultural production (establishments performing  the  complete  farm  or  ranch  operation,  such   as   farm owner-operators,   tenant   farm   operators,   and  sharecroppers)  and agricultural support (establishments that perform one or more activities associated with farm operation,  such  as  soil  preparation,  planting, harvesting, and management, on a contract or fee basis).   2. "Back office operations" means a business function that may include one  or  more of the following activities: customer service, information technology and data processing, human resources, accounting and  related administrative functions.   3. "Benefit-cost ratio" means the following calculation: the numerator is the sum of (i) the value of all remuneration projected to be paid for all  net new jobs during the period of participation in the program, and (ii) the value of  capital  investments  to  be  made  by  the  business enterprise  during  the  period of participation in the program, and the denominator is the amount of total tax benefits under this article  that will be used and refunded.   4.  "Certificate  of  eligibility"  means  the  document issued by the department to an applicant that  has  completed  an  application  to  be admitted  into the excelsior jobs program and has been accepted into the program by the department. Possession of a  certificate  of  eligibility does not by itself guarantee the eligibility to claim the tax credit.   5.  "Certificate  of  tax  credit"  means  the  document  issued  to a participant by the department, after the department  has  verified  that the  participant  has  met  all  applicable eligibility criteria in this article. The certificate shall be issued annually if such  criteria  are satisfied  and  shall specify the exact amount of each of the tax credit components under this article that a participant may claim, pursuant  to section  three hundred fifty-five of this article, and shall specify the taxable year in which such credit may be claimed.   5-a.  "Child  care  services"  means  those  services  undertaken   or sponsored  by  a participant in this program meeting the requirements of "child day care" as defined in  paragraph  (a)  of  subdivision  one  of section  three  hundred  ninety  of the social services law or any child care services in the city of New York whereby a permit to  operate  such child  care services is required pursuant to the health code of the city of New York.   6. "Distribution  center"  means  a  large  scale  facility  involving processing,  repackaging  and/or  movement  of finished or semi-finished goods to retail locations across a multi-state area.   7. "Entertainment company" means a corporation,  partnership,  limited partnership,  or  other  entity principally engaged in the production or post  production  of  (i)   motion   pictures,   which   shall   include feature-length  films  and  television films, (ii) instructional videos, (iii)  televised  commercial  advertisements,  (iv)  animated  films  or cartoons,  (v)  music  videos,  (vi)  television  programs,  which shall include, but not be limited to, television  series,  television  pilots, and single television episodes, or (vii) programs primarily intended for radio broadcast. "Entertainment company" shall not include an entity (i) principally  engaged  in  the live performance of events, including, but not limited to, theatrical productions, concerts, circuses, and sporting events, (ii) principally engaged in the production of  content  intended primarily  for  industrial,  corporate or institutional end-users, (iii) principally engaged in the production of fundraising films or  programs, or  (iv)  engaged  in  the  production  of content for which records are required under section 2257 of title  18,  United  States  code,  to  be maintained with respect to any performer in such production.    8.  "Financial  services  data  centers or financial services customer back office  operations"  means  operations  that  manage  the  data  or accounts of existing customers or provide product or service information and  support  to  customers  of  financial services companies, including banks,  other  lenders,  securities and commodities brokers and dealers, investment banks,  portfolio  managers,  trust  offices,  and  insurance companies.   8-a.  "Green  project"  means  a project deemed by the commissioner to make products or  develop  technologies  that  are  primarily  aimed  at reducing  greenhouse gas emissions or supporting the use of clean energy in accordance with goals described in chapter one  hundred  six  of  the laws of two thousand nineteen. "Green project" shall include, but not be limited  to,  the manufacture or development of products or technologies or supply chain components primarily for  renewable  energy  systems  as defined  in section sixty-six-p of the public service law, vehicles that use non-hydrocarbon fuels and produce zero or near zero emissions,  heat pumps,  energy  efficiency, clean energy storage and other products that significantly  reduce  greenhouse  gas  emissions  by   minimizing   the utilization   of   depletable   resources  or  by  improving  industrial efficiency. "Green  project"  shall  not  include  a  project  primarily composed  of  (i)  necessarily local activities such as retail, building construction, or the installation, deployment or  adoption  of  a  clean energy  product  or  technology  at  an  end  user's  site,  or (ii) the production of products or development of technologies that would produce only marginal and incremental energy savings or  environmental  benefits ancillary to the core function of the product or technology.   9. "Investment zone" shall mean an area within the state that had been designated under paragraph (i) of subdivision (a) and subdivision (d) of section  nine  hundred fifty-eight of the general municipal law that was wholly contained within up to  four  distinct  and  separate  contiguous areas  as  of the date immediately preceding the date the designation of such area expired pursuant to section nine  hundred  sixty-nine  of  the general municipal law.   10.  "Life  sciences"  means  agricultural biotechnology, biogenerics, bioinformatics,  biomedical  engineering,  biopharmaceuticals,  academic medical    centers,   biotechnology,   chemical   synthesis,   chemistry technology,  medical  diagnostics,  genomics,  medical  image  analysis, marine biology, medical devices, medical nanotechnology, natural product pharmaceuticals,  proteomics,  regenerative  medicine, RNA interference, stem cell research, medical and  neurological  clinical  trials,  health robotics and veterinary science.   11. "Life sciences company" means a business entity or an organization or  institution  that devotes the majority of its efforts in the various stages   of   research,    development,    technology    transfer    and commercialization related to any life sciences field.   12.  "Manufacturing"  means  the process of working raw materials into products suitable for use or which gives new shapes, new quality or  new combinations  to  matter  which has already gone through some artificial process by the use of machinery, tools,  appliances,  or  other  similar equipment.  "Manufacturing"  does not include an operation that involves only the assembly of components,  provided,  however,  the  assembly  of motor  vehicles  or  other high value-added products shall be considered manufacturing.   13. "Music production" means the process of creating sound  recordings of  at  least  eight  minutes,  recorded  in professional sound studios, intended for commercial release. "Music  production"  does  not  include recording of live concerts, or recordings that are primarily spoken word  or  wildlife  or  nature  sounds,  or  produced for instructional use or advertising or promotional purposes.   13-a. "Net new child care services expenditures" means the calculation of  new,  annual participant expenditures on child care services whether internal or provided by a third party (including coverage  for  full  or partial  discount of employee rates), minus any revenues received by the participant through a  third-party  operator  (i.e.  rent  paid  to  the participant  by the child care provider) or employees and may be further defined by the commissioner in regulations. For  the  purposes  of  this definition,  expenditures for child care services that a participant has incurred prior to admission to this program shall not  be  eligible  for the credit.   14. "Net new jobs" means:  (a) jobs created in this state that (i) are new to the state,  (ii)  have  not been transferred from employment with another business located in this state including from a related person in this state,  (iii) are  either  full-time  wage-paying  jobs  or  equivalent  to  a full-time wage-paying job requiring at least thirty-five hours per week, and  (iv) are filled for more than six months; or  (b)  jobs  obtained by an entertainment company in this state (i) as a result  of  the  termination  of  a  licensing  agreement  with  another entertainment  company,  (ii)  that the commissioner determines to be at risk of leaving the state as a direct result of the  termination,  (iii) that  are either full-time wage-paying jobs or equivalent to a full-time wage-paying job requiring at least thirty-five hours per week, and  (iv) that are filled for more than six months.   15. "Participant" means a business entity that:  (a)  has  completed  an application prescribed by the department to be admitted into the program;  (b) has been issued a certificate of eligibility by the department;  (c) has demonstrated that it meets the eligibility criteria in section three hundred fifty-three and subdivision two of section  three  hundred fifty-four of this article; and  (d) has been certified as a participant by the commissioner.   16.  "Preliminary  schedule  of  benefits" means the maximum aggregate amount of each component of the tax credit that  a  participant  in  the excelsior  jobs program is eligible to receive pursuant to this article. The schedule shall indicate the annual amount of each component  of  the credit  a participant may claim in each of its ten years of eligibility. The preliminary schedule of benefits shall be issued by  the  department when  the  department  approves  the  application for admission into the program. The commissioner may amend that  schedule,  provided  that  the commissioner  complies  with  the  credit  caps in section three hundred fifty-nine of this article.   17. "Qualified investment" means an investment  in  tangible  property (including  a building or a structural component of a building) owned by a business enterprise which:  (a) is depreciable pursuant to section one hundred sixty-seven of  the internal revenue code;  (b) has a useful life of four years or more;  (c)  is  acquired  by  purchase  as  defined  in  section  one hundred seventy-nine (d) of the internal revenue code;  (d) has a situs in this state; and  (e) is placed in service in  the  state  on  or  after  the  date  the certificate of eligibility is issued to the business enterprise.   18. "Regionally significant project" means (a) a manufacturer creating at  least  ten  net new jobs in the state and making significant capital  investment in the state; (b) a business creating at least  ten  net  new jobs  in  agriculture  in  the  state  and  making  significant  capital investment in the state, (c) a  financial  services  firm,  distribution center,  or  back office operation creating at least one hundred net new jobs in the state and  making  significant  capital  investment  in  the state,  (d) a scientific research and development firm creating at least ten net new jobs in the state, and making significant capital investment in the state, (e) a life sciences company creating at least  twenty  net new  jobs  in the state and making significant capital investment in the state or (f) an entertainment company creating or obtaining at least two hundred net new  jobs  in  the  state  and  making  significant  capital investment  in the state. Other businesses creating one hundred fifty or more net new jobs in the state and making significant capital investment in the state may be considered  eligible  as  a  regionally  significant project  by  the commissioner as well. The commissioner shall promulgate regulations pursuant to section three hundred fifty-six of this  article to  determine  what  additional  criteria  a  business  must  meet to be eligible as a regionally significant project, including, but not limited to, whether a business exports a substantial portion of its products  or services  outside  of the state or outside of a metropolitan statistical area or county within the state.   19. "Related person" means a "related person" pursuant to subparagraph (c) of paragraph  three  of  subsection  (b)  of  section  four  hundred sixty-five of the internal revenue code.   20.  "Remuneration"  means wages and benefits paid to an employee by a participant in the excelsior jobs program.   20-a. "Significant capital investment" means a project which  will  be either  a newly constructed facility or a newly constructed addition to, expansion of or  improvement  of  a  facility,  consisting  of  tangible personal  property  and other tangible property, including buildings and structural components of buildings, that  are  depreciable  pursuant  to section  one  hundred  sixty-seven  of the internal revenue code, have a useful life of four years or more, are acquired by purchase  as  defined in  section  one  hundred seventy-nine (d) of the internal revenue code, and that  is  equal  to  or  exceeds  (a)  one  million  dollars  for  a manufacturer;  (b) two hundred fifty thousand dollars for an agriculture business; (c) three million dollars for a  financial  services  firm  or back  office  operation;  (d) fifteen million dollars for a distribution center;  (e)  three  million  dollars  for  a  scientific  research  and development firm; or (f) three million dollars for other businesses.   21.  "Research  and development expenditures" mean the expenses of the business enterprise that  are  qualified  research  expenses  under  the federal  research  and development credit under section forty-one of the internal revenue code and are attributable to  activities  conducted  in the  state.  If the federal research and development credit has expired, then the research and development expenditures shall be calculated as if the federal research and development credit structure and definition  in effect in federal tax year two thousand nine were still in effect.   22.  "Scientific  research  and development" means conducting research and experimental development in  the  physical,  engineering,  and  life sciences,   including  but  not  limited  to  agriculture,  electronics, environmental, biology,  botany,  biotechnology,  computers,  chemistry, food,   fisheries,  forests,  geology,  health,  mathematics,  medicine, oceanography, pharmacy, physics, veterinary, and other allied  subjects. For  the  purposes  of this article, scientific research and development does not include medical or veterinary laboratory testing facilities.   23. "Software  development"  means  the  creation  of  coded  computer instructions or production or post-production of video games, as defined  in  subdivision  one-a  of  section  six  hundred  eleven of the general business  law,  other  than  those  embedded  and  used  exclusively  in advertising,  promotional  websites or microsites, and also includes new media as defined by the commissioner in regulations.