Mississippi Code 1972 (2023) › Title 57 - PLANNING, RESEARCH AND DEVELOPMENT (§§ 57-NEW-001 — 57-123-55) › Chapter 114 - MISSISSIPPI FLEXIBLE TAX INCENTIVE ACT (§§ 57-114-1 — 57-114-21) › Section 57-114-3 - Definitions

For purposes of this chapter, the following words shall have the meanings ascribed herein unless the context otherwise requires:
(a)
"Affiliate" means, with respect to a specified entity, (i) another person or entity that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the specified person or entity, where the term "control" means the ownership or possession, directly or indirectly, of the power to direct more than fifty percent (50%) of the voting equity securities or a similar ownership interest in the specified controlled entity, or (ii) any member of an affiliated group of corporations, of which the specified entity is also a member, which are each subject to income taxation in Mississippi and may elect to file a combined Mississippi income tax return in accordance with state law.
(b)
"Authority" means the Mississippi Development Authority.
(c)
"Annual report" means the report described in Section
57-114-13
.
(d)
"Applicable accounting rules" shall mean the accounting principles generally recognized as applicable to a qualified business or industry and pursuant to which such qualified business or industry regularly prepares and maintains its financial and accounting books and records, and which specifically incorporate Generally Accepted Accounting Principles or International Financial Reporting Standards, as appropriate.
(e)
"Applicant" means any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof that applies to the authority, in the manner prescribed by this chapter, seeking (i) certification by the authority that such applicant is a qualified business or industry and that its proposed new project or expansion of an existing business or industrial operation is a qualified economic development project, and (ii) an award in connection therewith of an mFlex tax incentive.
(f)
"Average state or county wage" shall mean, as of the project certification date, the lesser of the most recently published average annual wage per person as determined and published by the Mississippi Department of Employment Security for the state or the county in which the qualified project is or will be located; provided that, if a qualified project is or will be located in two (2) or more counties, the average state or county wage, as used in this chapter, shall mean, as of the project certification date, only the most recently published average annual wage per person as determined and published by the Mississippi Department of Employment Security for the state.
(g)
"Average employer wage" means the qualified annual payroll for all new full-time jobs created in the State of Mississippi by a qualified business or industry divided by the number of new full-time jobs thereof for which such qualified annual payroll was paid or is otherwise payable.
(h)
"Base full-time job" means a job (i) for which an employee was already hired by the qualified business or industry before, and is employed as of, the project certification date; (ii) that offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for a normal four (4) consecutive quarter period of the qualified business or industry's operations or a job for which the employee was hired before, and is employed as of, the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after hiring, elects to take unpaid time off or is on short-term or long-term disability); and (iii) the employee holding such job receives salary or wages subject to state income tax withholdings. The term "base full-time job" also means a base-leased employee. Part-time jobs may not be combined to add up to a base full-time job.
(i)
"Base-leased employee" means a nontemporary employee:
(i)
Who was leased by the qualified business or industry before the project certification date from another business or enterprise that is 1. in the business of leasing employees, and 2. is registered with the Office of the Secretary of State and qualified to do business in the state;
(ii)
Who is leased as of the project certification date;
(iii)
Who is not otherwise an employee of such qualified business or industry;
(iv)
Who, as of the project certification date, was already performing services for, and under the supervision of, the qualified business or industry pursuant to a leasing agreement between the qualified business or industry and such other employee leasing firm;
(v)
Whose job-performing services for the qualified business or industry offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is leased before the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after being leased, elects to take unpaid time off or is on short-term or long-term disability); and
(vi)
Whose job receives salary or wages subject to state income tax withholdings. Individuals employed by an independent contractor performing one or more services for the qualified business or industry pursuant to a services or management agreement (e.g., security services, landscaping services, and cafeteria management and food services) shall not be considered as base-leased employees.
(j)
"Contractor tax" shall mean the tax levied by Section
27-65-21
, except for the tax upon the sale of manufacturing or processing machinery for a manufacturer or custom processor.
(k)
"Construction contract" shall mean any contract or portion of any contract for any one or more of the activities described in Section
27-65-21
for which the contractor tax applies and is payable by the contractor that is party thereto.
(l)
"Manufacturing machinery," as used in this chapter, shall have the same meaning ascribed to such term in Section
27-65-11
, as interpreted by any regulations promulgated by the Department of Revenue with respect to such section.
(m)
"mFlex agreement" means the written agreement entered into between a qualified business or industry and the authority in accordance with Section
57-114-7(4)(c)
.
(n)
"mFlex tax incentive" means the tax incentive authorized by this chapter to be calculated and awarded by the authority, and thereafter applied as a credit to offset state taxes, in accordance with, and subject to, this chapter.
(o)
"Minimum job creation requirement" means the creation by the qualified business or industry, following the project certification date, of at least ten (10) new full-time jobs in the state.
(p)
"Minimum qualified investment" means a qualified investment of not less than Two Million Five Hundred Thousand Dollars ($2,500,000.00).
(q)
"New full-time job" means a job:
(i)
For which an employee is hired by the qualified business or industry after the project certification date;
(ii)
That offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for a normal four (4) consecutive quarter period of the qualified business or industry's operations or a job for which the employee is hired after the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after hiring, elects to take unpaid time off or is on short-term or long-term disability); and
(iii)
The employee holding such job receives salary or wages subject to state income tax withholdings. The term "new full-time job" also means new-leased employee. Part-time jobs may not be combined to add up to a new full-time job.
(r)
"New-leased employee" means a nontemporary employee:
(i)
Who is leased by the qualified business or industry after the project certification date from another business or enterprise that is 1. in the business of leasing employees, and 2. is registered with the Office of the Secretary of State and qualified to do business in the state;
(ii)
Who is not otherwise an employee of such qualified business or industry;
(iii)
Who performs services for the qualified business or industry pursuant to a leasing agreement between the qualified business or industry and such other employee-leasing firm;
(iv)
Whose job-performing services for the qualified business or industry offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is leased after the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after being leased, elects to take unpaid time off or is on short-term or long-term disability); and
(v)
Whose job receives salary or wages subject to state income tax withholdings. Individuals employed by an independent contractor performing one or more services for the qualified business or industry pursuant to a services or management agreement (e.g., security services, landscaping services, and cafeteria management and food services) shall not be considered as new-leased employees.
(s)
"Nonmanufacturing equipment" means all tangible personal property that is not manufacturing machinery, including, but not limited to, office furniture, fixtures, office computers and communications equipment, and warehouse equipment such as racking and shelving.
(t)
"Part-time job" means a job (i) for which an employee is hired by the qualified business or industry that requires fewer than one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., requires fewer than thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is hired and is compensated based on fewer than one thousand eight hundred twenty (1,820) hours for such annual period; and (iii) for which the employee holding such job receives salary or wages subject to state income tax withholdings.
(u)
"Project certification date" means the actual date of the authority's certification, or the effective date of certification determined and prescribed by the authority, of the qualified business or industry and its qualified economic development project as eligible for the state tax credits determined and awarded by the authority, as authorized by, and in accordance with, this chapter.
(v)
"Qualified annual payroll" means the sum of the annual salary and wages for new full-time jobs of the qualified business or industry, excluding the amount or value of any benefits that are not subject to state income taxes.
(w)
"Qualified business or industry" means any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof, which makes or causes to be made the minimum qualified investment in, and/or satisfies or causes to be satisfied the minimum job creation requirement for, a qualified economic development project.
(x)
"Qualified economic development project" or "qualified project" means the location in the state of one or more of the following enumerated enterprises for which a corporation, limited liability company, partnership, sole proprietorship, business trust or other legal entity, or subunit or affiliate thereof, makes or causes to be made the minimum qualified investment and/or satisfies or causes to be satisfied the minimum job creation requirement:
(i)
A new warehouse and/or distribution enterprise or an expansion of an existing warehouse and/or distribution enterprise; provided that, in any such instance, such warehouse and/or distribution enterprise or expansion thereof is certified by the authority to qualify as such;
(ii)
A new manufacturing, remanufacturing, assembly, processing and/or refinery enterprise or an expansion of an existing manufacturing, remanufacturing, assembly, processing and/or refinery enterprise; provided that, in any such instance, such manufacturing, remanufacturing, assembly, processing and/or refinery enterprise or expansion thereof is certified by the authority to qualify as such;
(iii)
A new research or research and development enterprise or an expansion of an existing research or research and development enterprise; provided that, in any such instance, such research and development enterprise or an expansion thereof is certified by the authority to qualify as such;
(iv)
A new regional or national headquarters of the qualified business or industry or an expansion of an existing regional or national headquarters of the qualified business or industry; provided that, in any such instance, such regional or national headquarters or expansion thereof is certified by the authority to qualify as such;
(v)
An air transportation, repair and/or maintenance enterprise or an expansion of an existing air transportation, repair and/or maintenance enterprise; provided that, in either instance, such air transportation, repair and/or maintenance enterprise or expansion thereof is certified by the authority to qualify as such;
(vi)
A ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise or an expansion of an existing ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise; provided that, in either instance, the ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise or expansion thereof is certified by the authority to qualify as such;
(vii)
A new data/information processing enterprise or an expansion of an existing new data/information processing enterprise; provided that, in any such instance such data/information processing enterprise or expansion thereof is certified by the authority to qualify as such;
(viii)
A new technology intensive enterprise or an expansion of an existing technology intensive enterprise; provided that, in either instance, the technology intensive enterprise or expansion thereof is certified by the authority to qualify as such; provided further, that a business or enterprise primarily engaged in creating computer programming codes to develop applications, websites and/or software shall qualify as a technology intensive enterprise;
(ix)
A new telecommunications enterprise principally engaged in the creation, display, management, storage, processing, transmission and/or distribution, for compensation, of images, text, voice, video or data by wire or by wireless means, or engaged in the construction, design, development, manufacture, maintenance or distribution for compensation of devices, products, software or structures used in the above activities, or an expansion of an existing telecommunications enterprise as herein described; provided that, in any such instance, any such telecommunications enterprise or expansion thereof is certified by the authority to qualify as such; provided further, that commercial broadcast radio stations, television stations or news organizations primarily serving in-state markets shall not be included within the definition of the term "telecommunications enterprise";
(x)
A new data center enterprise principally engaged in the utilization of hardware, software, technology, infrastructure and/or workforce, to store, manage or manipulate digital data, or an expansion of an existing data center enterprise as herein described; provided that, in such instance, any such data center enterprise or expansion thereof is certified by the authority to qualify as such.
(y)
"Qualified investment" means any expenditures made or caused to be made by the qualified business or industry following the project certification date for construction, installation, equipping and operation of a qualified economic development project from any source or combination of sources, excluding any funds contributed by the state or any agency or other political subdivision thereof, or by any local government or any agency or other political subdivision thereof, to the extent such expenditures can be capitalized under applicable accounting rules or otherwise by the Internal Revenue Code, whether or not the qualified business or industry elects to capitalize the same, as reflected in its financial statements, including, but not limited to, all costs associated with the acquisition, installation and/or construction of, or capital leasehold interest in, any buildings and other real property improvements, fixtures, equipment, machinery, landscaping, fire protection, depreciable fixed assets, engineering and design costs.
(z)
"Reporting year" means the twelve-month period ending on the last day of the month during which the annual anniversary of a project certification date occurs, and for which an annual report must be filed with the authority by a qualified business or industry in accordance with Section
57-114-13
.
(aa)
"State" means the State of Mississippi.
(bb)
"State tax" means:
(i)
Any sales and use tax imposed on, and payable directly to the Department of Revenue by, the qualified business or industry in accordance with state law, except for contractor's tax and the taxes levied by Section
27-65-24(1)(b)
;
(ii)
All income tax imposed pursuant to law on income earned by the qualified business or industry pursuant to state law;
(iii)
Franchise tax imposed pursuant to state law on the value of capital used, invested or employed by the business enterprise certified by the Mississippi Development Authority; and
(iv)
Withholding tax required to be deducted and withheld from employee wages pursuant to Section
27-7-301
et seq.
Amended by Laws, 2024, ch. 337, SB 2830,§ 1, eff. 4/15/2024.
Added by Laws, 2022, ch. 462, SB 2159,§ 2, eff. 7/1/2022.