2023 New York Laws › COM - Economic Development Law › Article 17 - Excelsior Jobs Program Act › 354 - Application and Approval Process.

§ 354. Application and approval process. 1. A business enterprise must
submit  a  completed  application  as prescribed by the commissioner. An
application made by an entertainment company must be submitted  by  June
first,  two  thousand  fifteen,  except  for  an  application made by an
entertainment company that is eligible to participate in  the  excelsior
jobs  program based upon creating net new jobs pursuant to paragraph (a)
of subdivision  twelve  of  section  three  hundred  fifty-two  of  this
article.  An  application  may be recommended by entities, including but
not limited to, those created pursuant to  subdivision  (e)  of  section
nine hundred fifty-seven of the general municipal law.
2. As part of such application, each business enterprise must:
(a) Agree to allow the department of taxation and finance to share its
tax  information with the department. However, any information shared as
a result of this agreement shall not  be  available  for  disclosure  or
inspection under the state freedom of information law.
(b)  Agree  to  allow  the  department  of  labor to share its tax and
employer information  with  the  department.  However,  any  information
shared  as  a  result  of  this  agreement  shall  not  be available for
disclosure or inspection under the state freedom of information law.
(c) Allow the department and its agents access to any  and  all  books
and records the department may require to monitor compliance.
(d)  Agree  to be permanently disqualified for empire zone benefits at
any location or  locations  that  qualify  for  excelsior  jobs  program
benefits if admitted into the excelsior jobs program.
(e) Provide the following information to the department upon request:
(i)  a  plan outlining the schedule for meeting the job and investment
requirements as set forth in subdivisions  three  and  four  of  section
three  hundred  fifty-three  of  this  article.  Such  plan must include
details on job titles and expected salaries;
(ii) the prior three years of federal and state  income  or  franchise
tax returns, unemployment insurance quarterly returns, real property tax
bills and audited financial statements;
(iii)  the  amount  and description of projected qualified investments
for which it plans to claim the excelsior investment tax credit;
(iv)  an  estimate  of  the  portion  of  any  federal  research   and
development  tax  credits,  attributable  to  research  and  development
activities conducted in New York state, that it anticipates claiming for
the years it expects to claim the  excelsior  research  and  development
credit; and
(v)  the  employer  identification  or social security numbers for all
related persons to the applicant, including those of any  members  of  a
limited liability company or partners in a partnership.
(f)  Provide  a clear and detailed presentation of all related persons
to the applicant to assure  the  department  that  jobs  are  not  being
shifted within the state.
(g)  Certify,  under  penalty  of  perjury,  that it is in substantial
compliance with all environmental, worker protection, and local,  state,
and federal tax laws.
3.  (a)  After reviewing a business enterprise's completed application
and determining that the business enterprise will  meet  the  conditions
set  forth  in  subdivisions  three  and  four  of section three hundred
fifty-three of this article, the department may admit the applicant into
the program and provide the applicant with a certificate of  eligibility
and  a preliminary schedule of benefits by year based on the applicant's
projections as set forth in its application. This  preliminary  schedule
of  benefits  delineates  the maximum possible benefits an applicant may
receive.
(b) Notwithstanding the requirements of this subdivision, an  existing
participant  in  the  excelsior  jobs  program  may  be  eligible for an
enhanced investment tax credit on projects for child care  services  and
the excelsior child care services tax credit component, provided:
(i)  the  participant  is  in compliance with the requirements of this
article;
(ii) the participant is  not,  at  the  time  of  application  to  the
department for either the enhanced investment tax credit on projects for
child  care  services  or the excelsior child care tax credit component,
either operating a child care facility or sponsoring child care services
for its employees; and
(iii) the participant is seeking to provide such services on condition
of  receipt  of  additional  tax  credits  attributable  to  child  care
services.  Such existing participant may apply to the department for the
benefit as defined in section three hundred fifty-five of this  article.
In  no  circumstances  shall  the  benefit  term for child care services
exceed  the  existing  participant's  existing  benefit  term   in   its
preliminary schedule of benefits.
4.  In order to become a participant in the program, an applicant must
submit evidence that it satisfies the eligibility criteria specified  in
section three hundred fifty-three of this article and subdivision two of
this  section  in  such  form  as  the commissioner may prescribe. After
reviewing such evidence and finding it sufficient, the department  shall
certify  the  applicant as a participant and issue to that participant a
certificate of tax credit for one taxable year. To receive a certificate
of tax credit for subsequent taxable years, the participant must  submit
to   the   department   a  performance  report  demonstrating  that  the
participant continues to satisfy the eligibility criteria  specified  in
section three hundred fifty-three of this article and subdivision two of
this  section.  If  such  eligibility criteria is met, a participant can
receive tax credits based on interim job,  investment  or  research  and
development   milestones.   A   participant's  increase  in  employment,
qualified investment, or federal research  and  development  tax  credit
attributable  to  research  and development activities in New York state
above its projections listed in its application shall not result  in  an
increase   in   tax   benefits  under  this  article.  However,  if  the
participant's expenditures are less  than  the  estimated  amounts,  the
credit shall be less than the estimate.
5.  A  participant  may  claim  tax  benefits  commencing in the first
taxable year that the business enterprise receives a certificate of  tax
credit  or  the first taxable year listed on its preliminary schedule of
benefits, whichever is later. A participant may claim such benefits  for
the  next  nine consecutive taxable years, provided that the participant
demonstrates  to  the  department  that  it  continues  to  satisfy  the
eligibility  criteria  specified in section three hundred fifty-three of
this article and subdivision two  of  this  section  in  each  of  those
taxable  years,  and  provided  that  no  tax credits may be allowed for
taxable years beginning on or after January first, two  thousand  forty.
If,  in  any given year, a participant who has satisfied the eligibility
criteria specified in section three hundred fifty-three of this  article
realizes  job  creation less than the estimated amount, the credit shall
be reduced by the proportion of actual job  creation  to  the  estimated
amount,  provided the proportion is at least seventy-five percent of the
jobs estimated.