New York Codes, Rules and Regulations › Title 5 - DEPARTMENT OF ECONOMIC DEVELOPMENT › Chapter XXII - Start-Up NY Program › Part 220 - Suny Tax-free Areas To Revitalize And Transform Upstate New York (start-up Ny) Program › Section 220.10 - Businesses locating in tax-free NY areas

Current through Register Vol. 46, No. 28, July 10, 2024
(a) To participate in START-UP NY, an
				eligible business must submit a complete application, as prescribed by the
				commissioner, on or before December 31, 2020.
(b) For purposes of encouraging eligible
				businesses to locate in a tax-free NY area and participate in the program,
				sponsors are permitted to solicit and accept application from eligible
				businesses pursuant to the provisions of this Part and article 21 of the
				EDL.
(c) A sponsor shall not accept
				any application to locate in a tax-free NY area from a business that would
				compete with other businesses in the same community but outside the tax-free NY
				area.
(d) As part of such
				application, a business applicant must:
(1)
				agree to allow the Department of Taxation and Finance to share its tax
				information with the department. The form created by the department to
				effectuate this information transfer shall be executed only by a person with
				authority to act on the business entity's behalf in this regard. Any tax
				information shared as a result of this agreement shall be exempt from
				disclosure or inspection in accordance with the Freedom of Information Law,
				article 6 of the Public Officers Law;
(2) agree to allow the Department of Labor to
				share its tax and employer information with the department. The form created by
				the department to effectuate this information transfer shall be executed only
				by a person with authority to act on the business entity's behalf in this
				regard. Any tax and employment information shared as a result of this agreement
				shall be exempt from disclosure or inspection in accordance with the Freedom of
				Information Law, article 6 of the Public Officers Law;
(3) allow the department and its agents
				access to any and all books and records deemed relevant by the department to
				monitor compliance with the requirements of the program;
(4) provide, upon request by the department,
				all of the following information:
(i) the
				name, address, and employer identification number of the business;
(ii) identification of any parent, subsidiary
				and affiliated businesses, if any;
(iii) a description of the nature of the
				business,
i.e.,
identification of any goods produced or
				manufactured, or services to be rendered;
(iv) a description of the land or space the
				business will use, the terms of the lease agreement, if applicable, between the
				sponsor and the business, and whether or not the land or space being used by
				the business is being transferred or sublet to the business from some other
				business;
(v) description of any
				investment to be made in the tax-free NY area including, but not limited to,
				any plans for construction, rehabilitation or renovation; purchase or lease of
				equipment; estimated costs of investments; estimated schedule for the
				completion of any investment;
(vi)
				description of how the business plans to recruit employees from the local
				workforce;
(vii) certification by
				the business that it meets the eligibility criteria pursuant to this Part and
				article 21 of the EDL and will align with or further the academic mission of
				the sponsor;
(viii) certification
				of efforts to ascertain that, at the time of application, the business would
				not compete with any other business in the same community but outside the
				tax-free NY area, which certification shall include:
(a) an attestation by the sponsor that a
				review of 6-digit NAICS codes of businesses in the same community identifies no
				businesses in the same community with the same NAICS code;
(b) an affidavit of publication obtained by
				the sponsor from a daily print or online newspaper in the county where the
				applicable tax-free NY area is located that affirms that a notice regarding the
				application was published in such newspaper for no less than five consecutive
				days and an attestation by the sponsor that the published notice yielded no
				responses from businesses identifying themselves as competitors in the same
				community. Such notice shall include a detailed description of the applicant's
				proposed products or services and shall also include appropriate contact
				information for the university or college representative responsible for
				receiving START-UP NY business applications and all other information as
				determined by the commissioner;
(c)
				an attestation by the applicant that it does not compete with other businesses
				in the same community but outside the tax-free NY area;
(d) in the event that a potential competitor
				is identified, the sponsor must seek a letter from the commissioner determining
				whether the applicant business would compete with other businesses in the same
				community but outside the tax-free NY area. In such case, the commissioner
				shall conduct a review of available information and make a final determination
				as to whether the applicant has a competitor in the same community. Such review
				shall include, but not be limited to, a comparison of the products and/or
				services proposed to be provided by the business applicant and the products
				and/or services provided by the potential competitor or competitors. The
				commissioner will make the final determination about whether the business
				applicant will compete with other existing businesses in the same community but
				outside the tax-free NY area.
(ix) certification that the business's
				participation in the START-UP NY Program will have positive community and
				economic benefits;
(x) 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;
(xi) the employer
				identification or social security numbers for all related persons to the
				business, including those of any members of a limited liability company or
				partners in a partnership;
(xii) a
				list and description of all related persons to the business and certification
				that jobs are not being shifted within the State;
(xiii) certification, under penalty of
				perjury, that the applicant is in substantial compliance with all
				environmental, worker protection, and local, State and Federal tax
				laws;
(xiv) whether the business
				has previously applied for acceptance to locate into a tax-free NY area and the
				status of that application;
(5) include a statement of performance
				benchmarks, identifying the number of net new jobs that must be created, the
				schedule forecasting a five-year plan or projection for creating those jobs,
				and details on job titles and expected salaries. This statement of performance
				benchmarks must also indicate the maximum number of net new jobs eligible for
				the personal income tax benefit described in section
				39 (e) of the Tax Law to be
				created;
(6) include a statement of
				consequences for the failure to meet performance benchmarks, as determined by
				the business applicant and the sponsor, which shall include one or more of the
				following:
(i) suspension of such business's
				participation in the START-UP NY Program for one or more tax years as specified
				in such application;
(ii)
				termination of such business's participation in the START-UP NY Program;
				or
(iii) proportional recovery of
				tax benefits awarded under the START-UP NY Program as specified in section
				39 of the Tax Law.
(a) In the event that the business chooses
				proportional recovery of tax benefits as a consequence of realizing job
				creation less than the estimated amount, and the number of net new jobs created
				is at least 75 percent of the number of net new jobs promised, then the tax
				benefits shall be reduced by the percentage by which the business failed to
				meet its performance benchmark, calculated as the ratio of the difference
				between new net jobs promised and actual net new jobs created divided by the
				net new jobs promised. For purposes of example, if the business promised to
				create 100 net new jobs but created only 90 net new jobs, the difference is 10
				net new jobs. Dividing those 10 jobs not created by the 100 jobs promised shows
				that the number of jobs created is 10 percent less than the number of jobs
				promised. The business's tax benefits would therefore be reduced by 10
				percent.
(b) In the event that the
				business chooses proportional recovery of tax benefits as a consequence of
				realizing job creation less than the estimated amount, and the number of net
				new jobs created is less than 75 percent of the number of net new jobs promised
				in any three years during the 10-year job creation schedule, then:
(1) in the first year that the business does
				not meet the 75 percent threshold, there shall be a proportional recovery of
				tax benefits;
(2) in the second
				year that the business does not meet the 75 percent threshold, such business's
				participation in the START-UP NY Program will be suspended; and
(3) in the third year that the business does
				not meet the 75 percent threshold, such business's participation in the
				START-UP NY Program may be terminated;
(7) in accordance with section
				89
				(5) of the Public Officers Law, identify with
				specificity any information in the application that the applicant deems to be a
				trade secret or otherwise exempt from disclosure under the Freedom of
				Information Law, article 6 of the Public Officers Law.