2023 New York Laws › TAX - Tax › Article 1 - Short Title; Definitions; Miscellaneous › 22 - Tax Credit for Remediated Brownfields.

§ 22. Tax credit for remediated brownfields.  (a) Definitions. As used
in this section the following terms shall have the following meanings:
(1) Certificate of completion. A "certificate of completion" issued by
the  commissioner  of  environmental  conservation  pursuant  to section
27-1419 of the environmental conservation law.
(2) Qualified site. For purposes of this section, a  "qualified  site"
is  a  site  with  respect to which a certificate of completion has been
issued by the commissioner of  environmental  conservation  pursuant  to
section 27-1419 of the environmental conservation law.
(3)  Developer.  (i)  A  "developer" is a taxpayer under article nine,
nine-A, twenty-two or thirty-three of this chapter who or  which  either
(I)  has  been  issued  a  certificate  of  completion with respect to a
qualified site or (II) has purchased  or  in  any  other  way  has  been
conveyed  all  or any portion of a qualified site from a taxpayer or any
other party who or which has been issued  a  certificate  of  completion
with  respect  to such site provided, such purchase or conveyance occurs
within  seven  years  of  the  effective  date  of  the  certificate  of
completion issued with respect to such qualified site. Provided further,
that  the  taxpayer  who  or which is purchasing all or any portion of a
qualified site and the taxpayer or any other party who or which has been
issued a certificate of completion with respect to such site may not  be
related  persons,  as  such  term  is  defined  in  subparagraph  (C) of
paragraph three of subsection (b) of section four hundred sixty-five  of
the internal revenue code.
(ii)  Where  the  entity  to whom a certificate of completion has been
issued is a partnership, or where the entity which has purchased all  or
any  portion  of  a qualified site from a taxpayer who or which has been
issued a certificate of completion with respect to such site within  the
applicable  time limit is a partnership, any partner in such partnership
who or which is  taxable  under  article  nine,  nine-A,  twenty-two  or
thirty-three  of this chapter shall be a developer under this paragraph.
Where the entity to whom a certificate of completion has been issued  is
a New York S corporation, or where the entity which has purchased all or
any  portion  of  a qualified site from a taxpayer who or which has been
issued a certificate of completion with respect to such site within  the
applicable  time  limit  is a New York S corporation, any shareholder in
such New York S corporation shall be a developer under this paragraph.
(4) Cessation of status. A taxpayer shall cease to be a  developer  on
the  first  day  of  the  taxable  year  during  which revocation of its
certificate of completion under section  27-1419  of  the  environmental
conservation  law is final and no longer subject to judicial review, and
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.
(5) Environmental zones (EN-Zones). An "environmental zone" shall mean
an area designated as such by the commissioner of economic  development.
Such  areas  so  designated  are areas which are census tracts and block
numbering areas which, as of the two thousand census, satisfy either  of
the following criteria:
(A) areas that have both:
(i)  a  poverty  rate of at least twenty percent for the year to which
the data relate;
(ii) an unemployment rate of at least one and  one-quarter  times  the
statewide unemployment rate for the year to which the data relate, 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 for the year to which
the data relate, provided, however, that a qualified site shall only  be
deemed  to  be  located in an environmental zone under this subparagraph

(B) if such site was the subject of a brownfield site cleanup  agreement
pursuant  to  section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten.
Such  designation  shall  be made and a list of all such environmental
zones shall be established by the commissioner of  economic  development
no  later  than  December  thirty-first,  two  thousand  four  provided,
however, that a qualified site shall only be deemed to be located in  an
environmental zone under subparagraph (B) of this paragraph if such site
was  the  subject  of  a  brownfield  site cleanup agreement pursuant to
section 27-1409 of the environmental conservation law that  was  entered
into prior to September first, two thousand ten.
(b) Remediated brownfield credit for real property taxes for qualified
sites.   (1) Allowance of credit. A developer of a qualified site who or
which is 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  paragraph  nine  of  this
subdivision, for eligible real property taxes imposed on such site.
(2)  Amount  of  credit. The amount of the credit shall be twenty-five
percent of the product of  (i)  the  benefit  period  factor,  (ii)  the
employment  number  factor,  and  (iii) the eligible real property taxes
paid or incurred by the developer  of  the  qualified  site  during  the
taxable  year  (or  the  pro  rata  share of such taxes in the case of a
partner in a partnership or a shareholder in a New York S  corporation),
except  that  if  the  real  property which is the subject of the credit
provided for under this  section  is  attributed  to  a  qualified  site
located  in  an  environmental  zone  as  defined  in  paragraph five of
subdivision (a) of this section, the amount of the credit shall  be  the
product  of the factors and taxes referred to in subparagraphs (i), (ii)
and (iii) of this paragraph. However, the amount of the credit  may  not
exceed  the  credit  limitation  set  forth  in  paragraph seven of this
subdivision.
(3) Benefit period factor. The benefit period factor  is  a  numerical
value  corresponding  with  a  benefit period of ten consecutive taxable
years commencing  in  the  taxpayer's  taxable  year  during  which  the
certificate  of  completion  is  issued  for  the  qualified site or the
taxpayer's first taxable year commencing on or after  April  first,  two
thousand  five,  whichever  is later. The benefit period factors are set
forth in the following table:
Taxable year of benefit period:     Benefit period factor:
1-10                                1.0
(4) Employment number factor. (i) The employment  number  factors  are
set forth in the following table:
Average number of full-time                  Employment number factor:
employees employed by the
developer of a qualified site, plus
the average number of full-time
employees employed by a lessee
or lessees
of a portion of such qualified
site, where such employees are
employed at such site
during the taxable year:
At least 25 but less than 50                    .25
At least 50 but less than 75                    .50
At least 75 but less than 100                   .75
At least 100                                   1.00
(ii)  For  purposes of this paragraph, the average number of full-time
employees, excluding general executive officers, employed by a developer

and a lessee at  a  qualified  site  during  a  taxable  year  or  other
applicable  period, shall be computed by ascertaining the number of such
employees employed by the developer and such lessee on the  thirty-first
day  of March, the thirtieth day of June, the thirtieth day of September
and the thirty-first day of December during each taxable year  or  other
applicable  period,  by  adding  together the number of such individuals
ascertained on each of such dates and dividing the sum  so  obtained  by
the  number  of  such  dates occurring within such taxable year or other
applicable period. Where the developer is a partner in a partnership  or
a  shareholder  in  a  New  York  S corporation, the number of full-time
employees of the partnership or the New York S corporation respectively,
at such qualified site, shall be used for purposes of this calculation.
(5) Eligible real property taxes. The  term  "eligible  real  property
taxes"  means  taxes  imposed  on  real  property  which  consists  of a
qualified site owned by the developer, provided such taxes become a lien
on the real property in a period during which the  real  property  is  a
qualified  site.  In  addition,  the term "eligible real property taxes"
includes payments in lieu of taxes by the developer, with respect  to  a
qualified  site,  to  the  state,  a  municipal  corporation or a public
benefit corporation pursuant to a written agreement entered into between
the developer and the state, a municipal corporation or a public benefit
corporation. Provided, however, such a payment in lieu  of  taxes  shall
not  constitute  eligible real property taxes in any taxable year to the
extent that such payment exceeds the product of (A) the greater  of  (i)
the  basis  for  federal income tax purposes, determined on the date the
taxpayer becomes a developer as defined  under  this  section,  of  real
property,  including  buildings  and structural components of buildings,
owned by the developer and located on a qualified site with  respect  to
which  the taxpayer is a developer, or (ii) the basis for federal income
tax purposes of such real property  described  in  clause  (i)  of  this
subparagraph  on the last day of the taxable year, and (B) the estimated
effective full value tax rate within the county in which  such  property
is  located,  as  most  recently  calculated  by  the  commissioner. The
commissioner shall annually calculate estimated and effective full value
tax rates within each county  for  this  purpose  based  upon  the  most
current information available to him or her in relation to county, city,
town,  village  and  school  district taxes. Provided further, where the
amount of the credit determined under paragraph two of this  subdivision
is  the total product of the factors and tax specified therein, the term
"eligible real property taxes" under this paragraph shall apply only  to
taxes  imposed  on real property which is attributed to a qualified site
located in an environmental zone. Where the developer is a partner in  a
partnership  or  a  shareholder  in  a New York S corporation, such real
property  shall  be  owned  by  the  partnership  or  the  New  York   S
corporation, respectively.
(6) Credit recapture. Where a developer's eligible real property taxes
which  were the basis for the allowance of the credit provided for under
this subdivision are subsequently reduced as a result of a  final  order
in  any  proceeding  under article seven of the real property tax law or
other provision of law, the taxpayer shall add back, in the taxable year
in which such final order is issued, the excess of  (i)  the  amount  of
credit  originally  allowed  for  a taxable year over (ii) the amount of
credit determined based upon the reduced eligible real  property  taxes.
If  such final order reduces real property taxes for more than one year,
the taxpayer must determine how much of such reduction  is  attributable
to  each  year  covered  by such final order and calculate the amount of
credit which is required by this paragraph to  be  recaptured  for  each
year based on such reduction.
(7)  Credit  limitation. The credit limitation shall be the product of
(i) ten thousand dollars  and  (ii)  the  average  number  of  full-time
employees  employed by the developer of a qualified site and a lessee or
lessees of a portion of such qualified site during the taxable year,  as
such  average  is  computed under subparagraph (ii) of paragraph four of
this subdivision.
(8) Credit option. If the qualified site is located  in  whole  or  in
part  in  an  area  designated  as  an  empire  zone pursuant to article
eighteen-B of the general  municipal  law,  and  a  taxpayer  meets  the
eligibility  requirements  for  both  the credit provided for under this
section and the QEZE credit for real property taxes provided  for  under
section  fifteen  of  this  article, with respect to all or part of such
site, such taxpayer shall not be allowed to claim both such credits. The
taxpayer shall be required, in the first taxable year such  taxpayer  is
allowed  to claim a credit under this section, to elect whether to claim
the credit provided for under this section or the  credit  provided  for
under  section fifteen of this article. Such election shall be made with
the filing of the return or report required under article nine,  nine-A,
twenty-two,  thirty-two  or  thirty-three  of this chapter, whichever is
applicable, for such taxable year. Such election shall apply to  and  be
binding  in  each  subsequent  taxable  year  applicable  to  the credit
provided for under either  this  section  or  section  fifteen  of  this
article. A taxpayer who or which has been allowed a credit under section
fifteen  of  this article, in a taxable year preceding the first taxable
year such taxpayer is allowed to claim  a  credit  under  this  section,
shall  not  be  precluded  from making the election provided for in this
paragraph.
(9) Cross-references. For application of the credit  provided  for  in
this subdivision, see the following provisions of this chapter:
(i) Article 9: Section 187-h.
(ii) Article 9-A: Section 210-B: subdivision 18.
(iii) Article 22: Section 606: subsections (i) and (ee).
(iv) Article 33: Section 1511: subdivision (v).