2023 New York Laws › TAX - Tax › Article 1 - Short Title; Definitions; Miscellaneous › 21 - Brownfield Redevelopment Tax Credit.

* §  21. Brownfield redevelopment tax credit. (a) Allowance of credit.
(1) General. A taxpayer subject  to  tax  under  article  nine,  nine-A,
twenty-two  or  thirty-three  of  this chapter shall be allowed a credit
against such tax, pursuant to the provisions referenced  in  subdivision
(f)  of  this  section.  Such  credit shall be allowed with respect to a
qualified site, as such term is defined in paragraph one of  subdivision
(b) of this section. The amount of the credit in a taxable year shall be
the  sum of the credit components specified in paragraphs two, three and
four of this subdivision applicable in such year.
(2) Site preparation credit component.  The  site  preparation  credit
component  shall  be  equal  to  the  applicable  percentage of the site
preparation costs paid or incurred by the taxpayer  with  respect  to  a
qualified  site.  The credit component amount so determined with respect
to a site's qualification for  a  certificate  of  completion  shall  be
allowed  for  the  taxable  year  in  which  the  effective  date of the
certificate of completion occurs. The credit component amount determined
other than with respect to such qualification shall be allowed  for  the
taxable  year  in  which  the  improvement to which the applicable costs
apply is placed in service for  up  to  five  taxable  years  after  the
issuance  of such certificate of completion; provided, however, that for
any qualified site to which a certificate of completion is issued on  or
after   July   first,  two  thousand  fifteen  but  on  or  before  June
twenty-fourth, two thousand  twenty-one,  the  site  preparation  credit
component  for such costs shall be allowed for up to seven taxable years
after the issuance of  such  certificate  of  completion;  and  provided
further,  however,  that for any qualified site located in cities with a
population greater than two hundred five  thousand  and  less  than  two
hundred  fifteen thousand in counties with a population greater than one
million but less than one million  ten  thousand  based  on  the  latest
federal  decennial  census  for  which  the  department of environmental
conservation has issued a certificate of completion to the  taxpayer  on
or  after  January  first,  two  thousand  seventeen and before December
thirty-first,  two  thousand  seventeen,  the  site  preparation  credit
component  for  such  costs  shall  be allowed for up to fifteen taxable
years after the issuance of such certificate of completion.
(3) Tangible property credit component.
(i) The tangible property credit  component  shall  be  equal  to  the
applicable  percentage of the cost or other basis for federal income tax
purposes of tangible personal  property  and  other  tangible  property,
including  buildings  and  structural  components  of  buildings,  which
constitute qualified tangible property and may include any related party
service fee paid; provided that in determining the cost or  other  basis
of such property, the taxpayer shall exclude the acquisition cost of any
item  of  property with respect to which a credit under this section was
allowable to  another  taxpayer;  and  provided  further  that  for  the
purposes  of  this  section,  starting  with  taxable  year two thousand
twenty-two,  on  sites  that  comply  with  the  track  one  remediation
standards promulgated pursuant to subdivision four of section 27-1415 of
the environmental conservation law, stadiums, baseball parks, basketball
courts  and other athletic facilities shall be considered buildings, and
that components of stadiums,  baseball  parks,  basketball  courts,  and
other  athletic  facilities  constructed on such sites, including sports
field turf, site lighting, sidewalks, access and entry ways,  and  other
improvements added to land, shall be considered structural components of
buildings  under the internal revenue code, and shall be included in the
definition of tangible property for the  purposes  of  this  section.  A
related  party  service  fee shall be allowed only in the calculation of
the tangible property credit component and shall not be allowed  in  the

calculation  of  the  site  preparation  credit component or the on-site
groundwater remediation credit component. The portion  of  the  tangible
property credit component which is attributable to related party service
fees  shall be allowed only as follows: (A) in the taxable year in which
the qualified tangible property described in subparagraph (iii) of  this
paragraph  is  placed  in service, for that portion of the related party
service fees which have been earned and actually  paid  to  the  related
party  on  or  before  the  last  day of such taxable year; and (B) with
respect to any other taxable year for which the tangible property credit
component may be claimed under this subparagraph and in which the amount
of any additional related party service fees are actually  paid  by  the
taxpayer  to  the  related party, the tangible property credit component
for such amount shall be  allowed  in  such  taxable  year.  The  credit
component  amount so determined shall be allowed for the taxable year in
which such qualified tangible property is first placed in service  on  a
qualified  site  with  respect  to which a certificate of completion has
been issued to the taxpayer, or  for  the  taxable  year  in  which  the
certificate  of  completion is issued if the qualified tangible property
is placed in service  prior  to  the  issuance  of  the  certificate  of
completion.  This  credit  component shall only be allowed for up to one
hundred twenty months after the date of the issuance of such certificate
of completion, provided, however, that for qualified sites  to  which  a
certificate  of  completion  is  issued on or after March twentieth, two
thousand ten, but prior to  January  first,  two  thousand  twelve,  the
commissioner  may  extend  the  credit  component  for up to one hundred
forty-four months after the date of such issuance, if the  commissioner,
in  consultation  with  the  commissioner of environmental conservation,
determines that the requirements for the credit would have been  met  if
not  for  the  restrictions  related  to  the  state  disaster emergency
declared pursuant to executive  order  202  of  2020  or  any  extension
thereof  or  subsequent  executive order issued in response to the novel
coronavirus (COVID-19) pandemic; provided, however, with respect to  any
qualified  site  for  which the department of environmental conservation
has issued a certificate of completion to the taxpayer on or after March
twentieth, two  thousand  ten  and  before  December  thirty-first,  two
thousand  fifteen,  this credit component shall be allowed for up to one
hundred eighty months after the date of the issuance of such certificate
of completion; and provided further, with respect to any qualified  site
located  in  cities  with  a  population  greater  than two hundred five
thousand and less than two hundred fifteen thousand in counties  with  a
population  greater  than  one  million  but  less  than one million ten
thousand based on the latest federal  decennial  census  for  which  the
department  of  environmental  conservation  has issued a certificate of
completion to the taxpayer on  or  after  January  first,  two  thousand
seventeen and before December thirty-first, two thousand seventeen, this
credit  component  shall  be allowed for up to one hundred eighty months
after the date of the issuance of such certificate of completion.
(ii) The tangible property credit  component  shall  be  allowed  with
respect  to  property leased to a second party only if such second party
is either (A) not a party responsible  for  the  disposal  of  hazardous
waste  or the discharge of petroleum at the site according to applicable
principles of  statutory  or  common  law  liability,  or  (B)  a  party
responsible  according  to  applicable principles of statutory or common
law liability if such party's liability arises solely from operation  of
the  site subsequent to the disposal of hazardous waste or the discharge
of petroleum, and is so certified by the commissioner  of  environmental
conservation at the request of the taxpayer, pursuant to section 27-1419
of   the  environmental  conservation  law.  Notwithstanding  any  other

provision of law to the contrary, in the case  of  allowance  of  credit
under  this  section  to  such a lessor, the commissioner shall have the
authority to reveal to such lessor any information, with respect to  the
issue of qualified use of property by the lessee, which is the basis for
the  denial  in  whole  or  in part, or for the recapture, of the credit
claimed by such lessor. For purposes of  the  tangible  property  credit
component   allowed   under  this  section  the  taxpayer  to  whom  the
certificate of completion is issued, as provided for  under  subdivision
five  of  section  27-1419  of  the  environmental conservation law, may
transfer the benefits and burdens  of  the  certificate  of  completion,
which  run  with  the  land and to the applicant's successors or assigns
upon transfer or sale of all or any portion of an interest or estate  in
the qualified site. However, the taxpayer to whom certificate's benefits
and  burdens are transferred shall not include the cost of acquiring all
or any portion of an interest or estate in  the  site  and  the  amounts
included  in  the cost or other basis for federal income tax purposes of
qualified tangible property already claimed  by  the  previous  taxpayer
pursuant to this section.
(iii) The term "related party service fee" shall mean any fee or other
monetary  compensation  earned  by  a  related party and calculated as a
percentage of project and/or  acquisition  costs,  in  consideration  of
services  rendered  to  or  for  the  benefit  of  the  taxpayer placing
qualified  tangible  property  in  service  in   connection   with   the
acquisition  and  development  of  such  property.  For purposes of this
subparagraph, "related party" shall have the  same  meaning  as  related
person  as defined in subparagraph (c) of paragraph three of subdivision
(b) of section four hundred sixty-five of the internal revenue code.
(iv) Eligible costs for the tangible  property  credit  component  are
limited  to  costs for tangible property that has a depreciable life for
federal income tax purposes of fifteen years or more,  costs  associated
with  demolition  and  excavation  on the site and the foundation of any
buildings constructed as part of the site cover that  are  not  properly
included  in  the  site  preparation component and costs associated with
non-portable  equipment,   machinery   and   associated   fixtures   and
appurtenances used exclusively on the site, whether or not such property
has  a depreciable life for federal income tax purposes of fifteen years
or more.
(v) With respect to any qualified site for  which  the  department  of
environmental  conservation  has  issued  a notice to the taxpayer on or
after July first, two thousand fifteen or the date of publication in the
state register  of  proposed  regulations  defining  "underutilized"  as
provided  in  subdivision thirty of section 27-1405 of the environmental
conservation law,  whichever  shall  be  later,  that  its  request  for
participation has been accepted under subdivision six of section 27-1407
of  the environmental conservation law, and the site is eligible for the
tangible property credit component because it is an  affordable  housing
project  pursuant  to  subdivision  one-a  of  section  27-1407  of  the
environmental conservation law, the portion  of  eligible  costs  to  be
included  in  the  calculation of the tangible property credit component
will be determined by multiplying the  total  costs  qualified  for  the
tangible property credit component by a fraction, the numerator of which
shall  be  the  square  footage of space of the affordable housing units
dedicated to residential occupancy and the denominator of which shall be
the total square footage of the building.
(3-a) (A) Notwithstanding any other provision of law to the  contrary,
the  tangible property credit component available for any qualified site
pursuant to  paragraph  three  of  this  subdivision  shall  not  exceed
thirty-five million dollars or three times the sum of the costs included

in  the  calculation  of  the  site preparation credit component and the
on-site groundwater remediation credit component  under  paragraphs  two
and  four,  respectively,  of this subdivision, and the costs that would
have  been included in the calculation of such components if not treated
as an expense and deducted pursuant to section one hundred  ninety-eight
of  the  internal  revenue  code,  whichever is less; provided, however,
that: (1) in the case of a qualified  site  to  be  used  primarily  for
manufacturing   activities,   the  tangible  property  credit  component
available for any qualified site pursuant to  paragraph  three  of  this
subdivision shall not exceed forty-five million dollars or six times the
sum  of  the  costs  included in the calculation of the site preparation
credit  component  and  the  on-site  groundwater   remediation   credit
component   under   paragraphs  two  and  four,  respectively,  of  this
subdivision, and  the  costs  that  would  have  been  included  in  the
calculation of such components if not treated as an expense and deducted
pursuant  to  section  one  hundred ninety-eight of the internal revenue
code, whichever is less; and (2) the provisions of this paragraph  shall
not   apply   to   any  qualified  site  for  which  the  department  of
environmental conservation has issued a notice to  the  taxpayer  before
June twenty-third, two thousand eight that its request for participation
has  been  accepted  under  subdivision  six  of  section 27-1407 of the
environmental conservation law.
(B) For the  purposes  of  this  paragraph,  the  term  "manufacturing
activities"  means the production of goods by manufacturing, processing,
assembling,  refining,   mining,   extracting,   farming,   agriculture,
horticulture,  floriculture, viticulture or commercial fishing; provided
however, that  the  generation  and  distribution  of  electricity,  the
distribution of natural gas, and the production of steam associated with
the  generation  of  electricity,  shall  not  constitute  manufacturing
activities.
(C) In order to properly administer the  credits  set  forth  in  this
subdivision,   the   department   may  disclose  information  about  the
calculation  and  the  amounts  of  the  credits  claimed   under   this
subdivision  on  a  taxpayer's return to the department of environmental
conservation and other taxpayers claiming tax credits under this section
with respect to the same qualifying site.
(D) With respect to any qualified site for  which  the  department  of
environmental  conservation  has  issued a notice to the taxpayer before
July first, two thousand fifteen or the date of publication in the state
register of proposed regulations defining "underutilized" as provided in
subdivision thirty of section 27-1405 of the environmental  conservation
law,  whichever  shall  be later, that its request for participation has
been  accepted  under  subdivision  six  of  section  27-1407   of   the
environmental  conservation  law,  or where the taxpayer has either been
issued or received a certificate of  completion  from  another  taxpayer
under  section 27-1419 of the environmental conservation law before July
first, two thousand fifteen or the date  of  publication  in  the  state
register of proposed regulations defining "underutilized" as provided in
subdivision  thirty of section 27-1405 of the environmental conservation
law, whichever shall be later, if the qualifying site is  located  in  a
brownfield  opportunity  area  and  is developed in conformance with the
goals  and  priorities  established  for  that   applicable   brownfield
opportunity   area  as  designated  pursuant  to  section  nine  hundred
seventy-r of the general municipal law, the applicable percentage of the
tangible property credit component will be increased by two percent.
(4) On-site groundwater  remediation  credit  component.  The  on-site
groundwater   remediation   credit  component  shall  be  equal  to  the
applicable percentage of the on-site groundwater remediation costs  paid

or  incurred  by  the  taxpayer with respect to a qualified site (to the
extent that such groundwater remediation costs are not included  in  the
determination  of the site preparation credit or the cost or other basis
included  in  the  determination  of  the tangible property credit). The
credit component so determined for costs incurred and paid with  respect
to  and  prior  to  the issuance of a certificate of completion shall be
allowed for the taxable year in which the effective date of the issuance
of a certificate of  completion  occurs.  The  credit  component  amount
determined  in taxable years after the effective date of the issuance of
a certificate of completion shall be allowed in the  taxable  year  such
qualified costs are incurred and paid for up to five taxable years after
the  issuance of such certificate of completion; provided, however, that
with respect to any qualified site for which a certificate of completion
has been issued on or after July first, two thousand fifteen but  on  or
before June twenty-fourth, two thousand twenty-one, the credit component
amount  determined  in  taxable  years  after  the effective date of the
issuance of a certificate of completion shall be allowed in the  taxable
year  such qualified costs are incurred and paid for up to seven taxable
years after the issuance of such certificate of completion.
(5) Applicable percentage. (A) For  purposes  of  computing  the  site
preparation   and  on-site  groundwater  remediation  credit  components
pursuant to paragraphs two and four of this subdivision, with respect to
such  qualified  sites  for  which  the  department   of   environmental
conservation   has   issued   a  notice  to  the  taxpayer  before  June
twenty-third, two thousand eight that its request for participation  has
been   accepted   under  subdivision  six  of  section  27-1407  of  the
environmental conservation law, or where the taxpayer  has  either  been
issued  or  received  a  certificate of completion from another taxpayer
under section 27-1419 of the environmental conservation law for  such  a
site,  and,  for  purposes  of computing the tangible property component
pursuant to paragraph three of this subdivision  with  respect  to  such
qualified  sites  for which the department of environmental conservation
has issued a notice to the taxpayer  before  July  first,  two  thousand
fifteen  or  the  date  of publication in the state register of proposed
regulations defining "underutilized" as provided in  subdivision  thirty
of  section  27-1405  of  the  environmental conservation law, whichever
shall be later, that its request for  participation  has  been  accepted
under   subdivision   six   of  section  27-1407  of  the  environmental
conservation law, or where  the  taxpayer  has  either  been  issued  or
received a certificate of completion from another taxpayer under section
27-1419  of  the  environmental  conservation  law  for such a site, the
applicable percentage shall be twelve percent in  the  case  of  credits
claimed  under article nine, nine-A or thirty-three of this chapter, and
ten percent in the case of credits claimed under article  twenty-two  of
this  chapter,  except  that where at least fifty percent of the area of
the qualified site relating to the credit provided for in  this  section
is  located  in  an  environmental  zone  as defined in paragraph six of
subdivision (b) of this section,  the  applicable  percentage  shall  be
increased by an additional eight percent. Provided, however, as afforded
in  section  27-1419  of  the  environmental  conservation  law,  if the
certificate of completion indicates that the  qualified  site  has  been
remediated  to  Track 1 as that term is described in subdivision four of
section 27-1415 of the environmental conservation  law,  the  applicable
percentage  set  forth  in the first sentence of this paragraph shall be
increased by an additional two percent.
(B) With respect to such qualified site for which  the  department  of
environmental  conservation  has  issued  a notice to the taxpayer on or
after  July  first,  two  thousand  fifteen,  that   its   request   for

participation has been accepted under subdivision six of section 27-1407
of the environmental conservation law, the applicable percentage for the
tangible  property  credit component of the brownfield redevelopment tax
credit  pursuant to paragraph three of this subdivision shall be the sum
of ten percent and the following additional percentages,  provided  that
if  the sum is greater than twenty-four percent, the total percentage of
the tangible property credit component shall be twenty-four percent  and
is  otherwise  subject  to the limitations set forth in paragraphs three
and three-a of this subdivision:
(i) five percent for a site which:
(1) is located within an environmental zone; or
(2) is in a disadvantaged community as that term is defined in section
27-1405 of the environmental conservation law for which  the  department
of  environmental conservation has issued a notice to the taxpayer on or
after January first, two thousand  twenty-three  that  its  request  for
participation has been accepted under subdivision six of section 27-1407
of the environmental conservation law;
(ii)  five  percent  for a site located within a designated brownfield
opportunity area and is developed in  conformance  with  the  goals  and
priorities  established  for that applicable brownfield opportunity area
and meets the conformance determinations pursuant to subdivision ten  of
section nine hundred seventy-r of the general municipal law;
(iii)  five  percent  for  a  site developed as affordable housing, as
defined in section 27-1405 of the environmental conservation law;
(iv) five percent for a site to be used  primarily  for  manufacturing
activities  as  such  term  is  defined in subparagraph (B) of paragraph
three-a of this subdivision;
(v) five percent for sites remediated to  Track  1  as  that  term  is
defined  in  subdivision  four  of  section 27-1415 of the environmental
conservation law; and
(vi) for a qualified site for which the  department  of  environmental
conservation  has  issued  a  notice to the taxpayer on or after January
first, two thousand twenty-three that its request for participation  has
been   accepted   under  subdivision  six  of  section  27-1407  of  the
environmental conservation law, five  percent  for  sites  developed  as
renewable  energy  facility  sites  as defined in section 27-1405 of the
environmental conservation law.
(C) The taxpayer  shall  submit,  in  the  manner  prescribed  by  the
commissioner,  information  sufficient  to  demonstrate  that  the  site
qualifies for any credit components available under subparagraph (B)  of
this paragraph. If the site is receiving the credit component authorized
pursuant  to clause (ii) of subparagraph (B) of this paragraph for being
located within a designated brownfield opportunity  area,  the  taxpayer
shall  submit  a  certification  from  the  secretary  of state that the
development is in conformance with such brownfield opportunity area plan
pursuant to section nine hundred seventy-r of the general municipal law.
(6) Site preparation costs and on-site groundwater  remediation  costs
paid  or  incurred  by the taxpayer with respect to a qualified site and
the cost or other basis for federal  income  tax  purposes  of  tangible
personal  property  and other tangible property, including buildings and
structural components of buildings, which constitute qualified  tangible
property shall only include costs paid or incurred by the taxpayer on or
after  the date of the brownfield site cleanup agreement executed by the
taxpayer and the department of environmental  conservation  pursuant  to
section 27-1409 of the environmental conservation law.
(7)  The  amount  of  any  grant received from the federal, state or a
local government or an instrumentality  or  public  benefit  corporation
thereof  received  by  the taxpayer and used to pay for any of the costs

described in paragraphs two, three and four of this  subdivision,  which
was  not  included in the federal gross income of the taxpayer, shall be
subtracted in computing the credit components under this section.
(b)  Definitions.  As  used in this section, the following terms shall
have the following meanings:
(1) Qualified site. A "qualified site" is a site with respect to which
a certificate of completion has been  issued  to  the  taxpayer  by  the
commissioner  of  environmental conservation pursuant to section 27-1419
of the environmental conservation law.
(2) Site preparation costs. The term "site  preparation  costs"  shall
mean  all  amounts  properly  chargeable to a capital account, which are
paid  or  incurred  which  are   necessary   to   implement   a   site's
investigation,  remediation,  or  qualification  for  a  certificate  of
completion,  and  shall  include  costs  of:   excavation;   demolition;
activities  undertaken under the oversight of the department of labor or
in accordance with standards established by the department of health  to
remediate and dispose of regulated materials including asbestos, lead or
polychlorinated  biphenyls; environmental consulting; engineering; legal
costs;   transportation,   disposal,   treatment   or   containment   of
contaminated  soil;  remediation  measures taken to address contaminated
soil  vapor;  cover  systems  consistent  with  applicable  regulations;
physical  support of excavation; dewatering and other work to facilitate
or  enable  remediation  activities;  sheeting,   shoring,   and   other
engineering   controls   required   to  prevent  off-site  migration  of
contamination from the qualified site or migrating  onto  the  qualified
site;  and the costs of fencing, temporary electric wiring, scaffolding,
and security facilities until such time as the certificate of completion
has been issued. Site  preparation  shall  include  all  costs  paid  or
incurred within sixty months after the last day of the tax year in which
the   certificate  of  completion  is  issued  that  are  necessary  for
compliance  with   the   certificate   of   completion   or   subsequent
modifications   thereof,   or  the  remedial  program  defined  in  such
certificate of completion including but  not  limited  to  institutional
controls, engineering controls, an approved site management plan, and an
environmental  easement  with  respect  to the qualified site; provided,
however, with respect to any qualified site for which a  certificate  of
completion  was  issued on or after July first, two thousand fifteen but
on  or  before  June  twenty-fourth,  two  thousand   twenty-one,   site
preparation  shall include all costs paid or incurred within eighty-four
months after the last day of the tax year in which  the  certificate  of
completion  is  issued  that  are  necessary  for  compliance  with  the
certificate of completion or subsequent modifications  thereof,  or  the
remedial program defined in such certificate of completion including but
not limited to institutional controls, engineering controls, an approved
site  management plan, and an environmental easement with respect to the
qualified site, provided, however, with respect to  any  qualified  site
located  in  cities  with  a  population  greater  than two hundred five
thousand and less than two hundred fifteen thousand in counties  with  a
population  greater  than  one  million  but  less  than one million ten
thousand based on the latest federal  decennial  census  for  which  the
department  of  environmental  conservation  has issued a certificate of
completion to the taxpayer on  or  after  January  first,  two  thousand
seventeen and before December thirty-first, two thousand seventeen, this
credit  component  shall  be allowed for up to one hundred eighty months
after the date of the issuance of such certificate of  completion.  Site
preparation  cost shall not include the costs of foundation systems that
exceed the cover system requirements in the  regulations  applicable  to
the qualified site.
(3)  Qualified  tangible  property.  "Qualified  tangible property" is
property described in either subparagraph (A) or (B) of  this  paragraph
which:
(A)  (i) is depreciable pursuant to section one hundred sixty-seven of
the internal revenue code,
(ii) has a useful life of four years or more,
(iii) has been acquired by purchase as defined in section one  hundred
seventy-nine (d) of the internal revenue code,
(iv) has a situs on a qualified site in this state, and
(v)  is  principally  used by the taxpayer for industrial, commercial,
recreational  or  environmental  conservation  purposes  (including  the
commercial development of residential housing); or
(B) (i) is, or when occupied becomes, part of a dwelling whose primary
ownership  structure  is covered under either article nine-B of the real
property law or meets the requirements of  section  216  (b)(1)  of  the
Internal  Revenue  Code  or  is part of an affordable housing project as
defined  in  subdivision  twenty-nine  of   section   27-1405   of   the
environmental  conservation  law,  where units are sold as single family
homes or multiple family dwellings;
(ii) has been acquired by purchase (as defined in section one  hundred
seventy-nine (d) of the Internal Revenue Code);
(iii) has a situs on a qualified site in this state; and
(iv)  for  purposes of this subparagraph only, and notwithstanding any
other section of law to the contrary,  property  qualifying  under  this
subparagraph  shall  be deemed to be qualified tangible property for the
purposes of paragraph one of subdivision (d) of  this  section;  and  in
addition, for the purposes of this subdivision only, property qualifying
under  this  subparagraph shall be deemed to have been placed in service
for the purposes of paragraph three of subdivision (a) of  this  section
when a certificate of occupancy is issued for such property.
(4)   On-site   groundwater   remediation  costs.  The  term  "on-site
groundwater  remediation  costs"  shall  mean   all   amounts   properly
chargeable  to  a  capital account, which are paid or incurred which are
necessary to implement a site's groundwater investigation,  remediation,
or  qualification  for  a  certificate of completion not already covered
under site preparation costs, and shall include costs of:  environmental
consulting;   engineering;   legal   costs;   transportation,  disposal,
treatment or containment of contaminated groundwater; sheeting, shoring,
and other engineering controls required to prevent off-site migration of
groundwater contamination from the qualified site or migrating onto  the
qualified  site; and the costs of fencing, temporary electric wiring and
security facilities until such time as the certificate of completion  is
issued.  On-site  groundwater  remediation costs shall include all costs
paid or incurred within sixty months after the last day of the tax  year
in  which the certificate of completion is issued that are necessary for
compliance  with   the   certificate   of   completion   or   subsequent
modifications  thereof,  or  the groundwater remedial program defined in
such  certificate  of  completion   including   but   not   limited   to
institutional   controls,   engineering   controls,   an  approved  site
management plan specific to  on-site  groundwater  remediation,  and  an
environmental  easement  with  respect  to the qualified site. Provided,
however, with respect to any qualified site for which a  certificate  of
completion  has been issued on or after July first, two thousand fifteen
but on or before June twenty-fourth, two  thousand  twenty-one,  on-site
groundwater  remediation  costs  shall  include  all  such costs paid or
incurred within eighty-four months after the last day of the tax year in
which the certificate of completion is issued.
(5) Certificate of completion. A "certificate of completion" issued by
the commissioner  of  environmental  conservation  pursuant  to  section
27-1419 of the environmental conservation law.
(6) Environmental zones (EN-Zones). An "environmental zone" shall mean
an  area  designated  as  such  by the commissioner of labor. Such areas
shall be census tracts that satisfy either of the following criteria:
(A) areas that have both:
(i) a poverty rate of at least twenty percent based on the most recent
five year American Community Survey; and
(ii) an unemployment rate of at least one and  one-quarter  times  the
statewide  unemployment rate based on the most recent five year American
Community Survey, or;
(B) areas that have a poverty rate of at least two times  the  poverty
rate  for  the  county  in which the areas are located based on the most
recent five year American Community Survey.
Such designation shall be made and a list of  all  such  environmental
zones shall be established by the commissioner of labor based on the two
thousand  nine  through  two thousand thirteen American Community Survey
estimate.  Upon   request   of   the   commissioner   of   environmental
conservation,  the  commissioner  of labor shall update such designation
based on the most recent American Community Survey, or its successor.
The determination of whether a site is  located  in  an  environmental
zone  shall  be  based  on  the  date  the  department  of environmental
conservation issued a notice  to  the  taxpayer  that  its  request  for
participation in the brownfield cleanup program has been deemed complete
pursuant  to  subdivision  three of section 27-1407 of the environmental
conservation law.
(c) Qualifying property.  Property  which  qualifies  for  the  credit
provided  for  under this section and also for a credit provided for (1)
under either subdivision one or subdivision three of section two hundred
ten-B of this chapter, or both, or (2) subsection (a) or subsection  (j)
of section six hundred six of this chapter, or both may be the basis for
either  the credit provided for under this section or one of the credits
enumerated in paragraph one or two of this subdivision, but not both.
(d) Depreciable property.  (1)  With  respect  to  qualified  tangible
property   which   is   depreciable  pursuant  to  section  one  hundred
sixty-seven of the internal revenue code  but  is  not  subject  to  the
provisions  of  section  one  hundred sixty-eight of such code and which
ceases to be in qualified use prior to the end of the  taxable  year  in
which  the credit is to be taken, the amount of the credit shall be that
portion of the credit provided for in this subdivision which  represents
the ratio which the months of qualified use bear to the months of useful
life.  If  property  on  which  credit  has  been  taken ceases to be in
qualified use prior to the  end  of  its  useful  life,  the  difference
between  the  credit taken and the credit allowed for actual use must be
added back in the year in which the property ceased to be  in  qualified
use.  Provided,  however, if such property ceases to be in qualified use
after it has been in qualified use  for  more  than  twelve  consecutive
years,  it  shall not be necessary to add back the credit as provided in
this paragraph. The amount of credit allowed for  actual  use  shall  be
determined  by  multiplying  the  original credit by the ratio which the
months of qualified use bear to the months of useful life. For  purposes
of  this paragraph, the useful life of property shall be the same as the
taxpayer uses for  depreciation  purposes  when  computing  its  federal
income tax liability.
(2)  Except  with  respect to that property to which paragraph four of
this subdivision applies, with respect to  qualified  tangible  property
which  is  three-year  property, as defined in subsection (e) of section

one hundred sixty-eight of the internal revenue code, which ceases to be
in qualified use prior to the end of  the  taxable  year  in  which  the
credit is to be taken, the amount of the credit shall be that portion of
the credit provided for in this section which represents the ratio which
the  months  of  qualified  use bear to thirty-six. If property on which
credit has been taken ceases to be in qualified use prior to the end  of
thirty-six  months,  the  difference  between  the  credit taken and the
credit allowed for actual use must be added back in the  year  in  which
the property ceased to be in qualified use. The amount of credit allowed
for actual use shall be determined by multiplying the original credit by
the ratio which the months of qualified use bear to thirty-six.
(3)  Except  with  respect to that property to which paragraph four of
this subdivision applies, with respect to  qualified  tangible  property
which is subject to the provisions of section one hundred sixty-eight of
the  internal  revenue code other than three-year property as defined in
subsection (e) of such section one hundred sixty-eight which  ceases  to
be  in  qualified  use prior to the end of the taxable year in which the
credit is to be taken, the amount of the credit shall be that portion of
the credit provided for in this section which represents the ratio which
the months of qualified use bear to sixty. If property on  which  credit
has  been  taken ceases to be in qualified use prior to the end of sixty
months, the difference between the credit taken and the  credit  allowed
for  actual  use  must  be  added back in the year in which the property
ceased to be in qualified use. The amount of credit allowed  for  actual
use  shall be determined by multiplying the original credit by the ratio
which the months of qualified use bear to sixty.
(4) With respect to any qualified tangible property to  which  section
one hundred sixty-eight of the internal revenue code applies, which is a
building  or a structural component of a building and which ceases to be
in qualified use prior to the end of  the  taxable  year  in  which  the
credit is to be taken, the amount of the credit shall be that portion of
the credit provided for in this section which represents the ratio which
the  months  of  qualified  use  bear to the total number of months over
which the taxpayer chooses to deduct the  property  under  the  internal
revenue code. If property on which credit has been taken ceases to be in
qualified  use  prior  to  the end of the period over which the taxpayer
chooses to deduct the property under  the  internal  revenue  code,  the
difference  between  the  credit taken and the credit allowed for actual
use must be added back in the year in which the property ceased to be in
qualified use. Provided, however, if  such  property  ceases  to  be  in
qualified  use  after  it has been in qualified use for more than twelve
consecutive years, it shall not be necessary to add back the  credit  as
provided  in this paragraph. The amount of credit allowed for actual use
shall be determined by multiplying the  original  credit  by  the  ratio
which  the  months  of  qualified use bear to the total number of months
over which the  taxpayer  chooses  to  deduct  the  property  under  the
internal revenue code.
(e)  If  the  certificate  of  completion  issued to the taxpayer with
respect to a  qualified  site  is  revoked  by  a  determination  issued
pursuant  to  section 27-1419 of the environmental conservation law, the
amount of any credit allowed by this section shall be added back in  the
taxable  year in which such determination is final and no longer subject
to judicial review.
(f) Cross-references. For application of the credit  provided  for  in
this section, see the following provisions of this chapter:
(1) Article 9: Section 187-g
(2) Article 9-A: Section 210-B, subdivision 17
(3) Article 22: Section 606, subsections (i) and (dd)
(4) Article 33: Section 1511, subdivision (u).
* NB There are 2 § 21's