2023 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, shearing, animal and plant fiber processing, and management,
on a contract or fee basis).
1-a.   "Animal  and  plant  fiber  textile  manufacturing"  means  the
processes of harvesting, cleaning, spinning, knitting,  weaving,  dyeing
and  finishing  textiles  containing  animal  and  plant  fiber grown or
produced predominantly in New York state.
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.
3-a. "Green CHIPS benefit-cost ratio" means the following  calculation
with  respect  to Green CHIPS projects: the ratio where the numerator is
the sum of: (a) the value of all remuneration projected to be  paid  for
all  net new jobs during the period of participation in the program; (b)
the value of capital investments to be made by the  business  enterprise
during  the period of participation in the program; and (c) all research
and development expenditures by the participant in New York State 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 as well as any state grants provided to the participant.
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  or
agricultural  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 as applicable.
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,  animal  fiber,
electronics,  environmental,  biology, botany, biotechnology, computers,
chemistry,  food,  fisheries,  forests,  geology,  health,  mathematics,
medicine,  oceanography, pharmacy, physics, plant fiber, 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.
24. "Green CHIPS project" means a project meeting all of the following
criteria: (a) is within  the  semiconductor  manufacturing  and  related
equipment  and  material  supplier  sector;  (b) includes sustainability
measures to mitigate the project's greenhouse gas emissions impact  over
its  lifetime;  (c)  provides  for  the payment of not less than federal
prevailing  wage  rates  for  its  project   construction;   (d)   makes
commitments  to  worker  and  community  investment,  including  through
training and education benefits paid by the participant and programs  to
expand    employment    opportunity   for   economically   disadvantaged
individuals; (e) will create at least five hundred net new jobs and make
at least three billion dollars in  qualified  investment;  and  (f)  the
participant  undertaking  a  Green  CHIPS project shall maintain a Green
CHIPS benefit-cost ratio of at least fifteen to one. Such  projects  are
eligible  to  enter  into  a phase one of a Green CHIPS project ten-year
benefit term. Such projects, provided they are in good standing with all
requirements of this chapter, are also eligible to enter  into  a  phase
two  of  a  Green  CHIPS  project,  and  therefore to initiate a new and
separate ten-year schedule related to phase two, provided that phase two
will create at least five hundred net new jobs beyond those  created  in
phase  one,  and that phase two will make at least three billion dollars
in qualified investment beyond  the  investment  total  associated  with
phase  one.  For Green CHIPS projects, phase one and phase two terms may
overlap, depending on the time of initiation for both  projects.  In  no
event  shall  credits  be  awarded  for a Green CHIPS project beyond two
thousand fifty.