2023 New York Laws › TAX - Tax › Article 1 - Short Title; Definitions; Miscellaneous › 42-A - Farm Employer Overtime Credit.

§ 42-a. Farm employer overtime credit. (a) Notwithstanding subdivision
(f)  of  section  forty-two  of  this article, a taxpayer that is a farm
employer or an owner of a farm employer shall be eligible for  a  credit
against  the  tax  imposed  under  article  nine-A or twenty-two of this
chapter, pursuant to the provisions referenced  in  subdivision  (i)  of
this section.
(b)  A  farm  employer  is  a  corporation  (including  a  New  York S
corporation), a sole proprietorship, a limited liability  company  or  a
partnership that is an eligible farmer.
(c)  For  purposes of this section, the term "eligible farmer" means a
taxpayer  whose  federal  gross  income  from  farming  as  defined   in
subsection  (n)  of  section  six  hundred  six  of this chapter for the
taxable year is at least two-thirds  of  excess  federal  gross  income.
Excess  federal  gross  income  means the amount of federal gross income
from all sources for the taxable  year  in  excess  of  thirty  thousand
dollars.  For  purposes  of  this  section,  payments  from  the state's
farmland  protection  program,  administered  by   the   department   of
agriculture  and markets, shall be included as federal gross income from
farming for otherwise eligible farmers.
(d)  An  eligible  farm  employee  is  an  individual  who  meets  the
definition of a "farm laborer" under section two of the labor law who is
employed  by  a  farm  employer in New York state, but excluding general
executive officers of the farm employer.
(e) Eligible overtime  is  the  aggregate  number  of  hours  of  work
performed  during  the taxable year by an eligible farm employee that in
any calendar week  exceeds  the  overtime  work  threshold  set  by  the
commissioner  of  labor  pursuant  to  the  recommendation  of  the farm
laborers wage board, provided that work performed in such calendar  week
in excess of sixty hours shall not be included.
(f)  Special  rules.  If  more  than  fifty  percent  of such eligible
farmer's federal gross income from farming is from the sale of wine from
a licensed farm winery as provided for in article six of  the  alcoholic
beverage  control  law,  or  from the sale of cider from a licensed farm
cidery as  provided  for  in  section  fifty-eight-c  of  the  alcoholic
beverage  control  law,  then an eligible farm employee of such eligible
farmer shall be included for  purposes  of  calculating  the  amount  of
credit allowed under this section only if such eligible farm employee is
employed  by  such eligible farmer on qualified agricultural property as
defined in paragraph four of subsection (n) of section six  hundred  six
of this chapter.
(g) The amount of the credit allowed under this section shall be equal
to  the  aggregate  amount  of  such  credit  allowed  per eligible farm
employee, as follows. The amount of the credit allowed per eligible farm
employee shall be equal to one hundred eighteen percent of  the  product
of  (1)  the  eligible  overtime  worked  during the taxable year by the
eligible farm employee and (2)  the  overtime  rate  paid  by  the  farm
employer to the eligible farm employee less such employee's regular rate
of pay.
(h)(1)  Taxpayers  shall have the option to request an advance payment
of the portion of the amount of tax credit they are allowed  under  this
section  for the amount of eligible overtime that the farm employer paid
from January first through July thirty-first. To  be  eligible  for  the
advance  payment, the farm employer must submit by September thirtieth a
properly completed application to  the  department  of  agriculture  and
markets,  in  a  form  prescribed by the commissioner of agriculture and
markets, that demonstrates how much the farm employer paid  in  eligible
overtime during that period. After reviewing a farm employer's completed
application  for  the  advance payment of a portion of the amount of tax

credit allowed under this section, the  department  of  agriculture  and
markets may issue to that farm employer a certificate of tax credit that
specifies  the  exact amount of the tax credit under this article that a
taxpayer may claim as an advance payment pursuant to this subdivision.
(2)  A  taxpayer must submit a request to the department in the manner
prescribed by the commissioner after it has been issued a certificate of
tax credit by the department of  agriculture  and  markets  pursuant  to
paragraph  one  of this subdivision (or such certificate has been issued
to a partnership, limited liability company or subchapter S  corporation
in which it is a partner, member or shareholder, respectively, that is a
farm  employer),  but  such  request  must  be  submitted  no later than
November first of the  taxable  year  for  which  the  credit  is  being
claimed.  For  those taxpayers who have requested an advance payment and
for whom the commissioner has determined to be eligible for this credit,
the commissioner shall advance a payment of the portion of the amount of
tax credit allowed to the taxpayer.  The  taxpayer  will  claim  on  the
taxpayers'  return for the taxable year the portion of the amount of tax
credit allowed for eligible overtime paid  by  the  farm  employer  from
August  first  through December thirty-first. The taxpayer must properly
reconcile  the  advance  payment  of  tax  credit  allowed  under   this
subdivision on the taxpayer's return.
(3)  If  a  taxpayer  that  has  received an advance payment is not an
eligible farmer for the taxable year for which it  received  an  advance
payment, the taxpayer shall be required to add back as tax the amount of
advance payment the taxpayer received during the taxable year.
(4)  Notwithstanding  any  provision of this chapter, employees of the
department of agriculture  and  markets  and  the  department  shall  be
allowed to share and exchange:
(i)  information  derived from tax returns or reports that is relevant
to a taxpayer's eligibility for the credit allowed by this section;
(ii) information regarding the credit applied for, allowed or  claimed
pursuant  to  this section and regarding taxpayers that are applying for
the credit or that are claiming the credit; and
(iii) information collected  by  the  department  of  agriculture  and
markets  and exchanged between the department of agriculture and markets
and the department pursuant to this section  shall  not  be  subject  to
disclosure or inspection under the state's freedom of information law.
(i)  Cross  references: For application of the credit provided in this
section, see the following provisions of this chapter:
(1) Article 9-A: Section 210-B, subdivision 58.
(2) Article 22: Section 606, subsection (nnn).