79S32034 KLA-F

By:  Brimer                                                       S.B. No. 48 


A BILL TO BE ENTITLED
AN ACT
relating to authority of certain enterprise projects to receive franchise tax credits for job creation and capital investment. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. The heading to Section 2303.504, Government Code, is amended to read as follows: Sec. 2303.504. STATE TAX REFUNDS AND CREDITS; REPORT. SECTION 2. Section 2303.504, Government Code, is amended by adding Subsection (a-1) and amending Subsection (c) to read as follows: (a-1) Subject to Section 2303.516, an enterprise project is entitled to a franchise tax credit under Subchapter P-1 or Q-1, Chapter 171, Tax Code, but only if the enterprise project: (1) is owned by a corporation that was obligated to pay the franchise tax under Chapter 171, Tax Code, as that chapter existed on December 31, 2004; (2) is not located in an enterprise zone; (3) was designated as an enterprise project on or after September 1, 2004; and (4) was approved as a triple jumbo enterprise project as described by Section 2303.407 on or after September 1, 2004, and on or before November 30, 2004. (c) Not later than the 60th day after the last day of each fiscal year, the comptroller shall report to the bank the statewide total of actual jobs created, actual jobs retained, and the tax refunds and credits made under this section during that fiscal year. SECTION 3. Chapter 171, Tax Code, is amended by adding Subchapters P-1 and Q-1 to read as follows:
SUBCHAPTER P-1. TAX CREDITS FOR ENTERPRISE PROJECTS FOR CERTAIN JOB CREATION ACTIVITIES
Sec. 171.781. DEFINITIONS. In this subchapter: (1) "Enterprise project" means a person designated as an enterprise project under Chapter 2303, Government Code. (2) "Qualified business" means an establishment that: (A) is owned by a corporation that was obligated to pay the franchise tax under this chapter as it existed on December 31, 2004; (B) is not located in an enterprise zone; (C) was designated as an enterprise project on or after September 1, 2004; and (D) was approved as a triple jumbo enterprise project as described by Section 2303.407, Government Code, on or after September 1, 2004, and on or before November 30, 2004. (3) "Qualifying job" means a new permanent full-time job created by an enterprise project. Sec. 171.7811. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to an enterprise project that: (1) is owned by a corporation that was obligated to pay the franchise tax under this chapter as it existed on December 31, 2004; (2) is not located in an enterprise zone; (3) was designated as an enterprise project on or after September 1, 2004; and (4) was approved as a triple jumbo enterprise project as described by Section 2303.407, Government Code, on or after September 1, 2004, and on or before November 30, 2004. Sec. 171.782. ELIGIBILITY. An enterprise project is eligible for a credit against the tax imposed under this chapter if the enterprise project is a qualified business as defined in Section 171.781. Sec. 171.783. CALCULATION OF CREDIT. (a) An enterprise project that is eligible for a credit under this subchapter may establish a credit equal to 25 percent of the total wages and salaries paid or to be paid by the enterprise project for qualifying jobs created during the period beginning on the date the project is designated as an enterprise project through December 31, 2009. (b) Subject to Sections 171.784 and 171.785, the enterprise project may claim: (1) the entire amount of the credit established under Subsection (a) on the first report originally due on or after September 1, 2006; or (2) an equal portion of the total credit established under Subsection (a) on each report originally due on or after September 1, 2006, and before December 31, 2010. (c) An enterprise project that is eligible for and establishes the credit authorized by Subsection (a) shall provide to the comptroller an estimate of the total wages and salaries on which the enterprise project establishes the credit. The enterprise project shall provide the estimate on the first report originally due on or after September 1, 2006. Sec. 171.784. LIMITATIONS. (a) The total credit claimed under this subchapter for a report, including the amount of any carryforward credit under Section 171.785, may not exceed 50 percent of the amount of franchise tax due for the report before any other applicable tax credits. (b) The total credit claimed under this subchapter and Subchapter Q-1 for a report, including the amount of any carryforward credits, may not exceed the amount of franchise tax due for the report after any other applicable credits. Sec. 171.785. CARRYFORWARD. (a) If an enterprise project is eligible for a credit that exceeds the limitations under Section 171.784, the enterprise project may carry the unused credit forward for not more than five consecutive reports. (b) A carryforward is considered the remaining portion of a credit that cannot be claimed in the current year because of a tax limitation under Section 171.784. A carryforward is added to the next year's credit in determining the tax limitation for that year. A credit carryforward from a previous report is considered to be used before the current year credit. Sec. 171.786. CERTIFICATION OF ELIGIBILITY. (a) For the initial and each succeeding report in which a credit is claimed under this subchapter, the enterprise project shall file with its report, on a form provided by the comptroller, information that sufficiently demonstrates that the enterprise project is eligible for the credit and is in compliance with Section 171.782. (b) The burden of establishing entitlement to and the value of the credit is on the enterprise project. Sec. 171.787. ASSIGNMENT PROHIBITED. An enterprise project may not convey, assign, or transfer the credit allowed under this subchapter to another entity unless all of the assets of the enterprise project are conveyed, assigned, or transferred in the same transaction. Sec. 171.788. BIENNIAL REPORT BY COMPTROLLER. (a) Before the beginning of each regular session of the legislature, the comptroller shall submit to the governor, the lieutenant governor, and the speaker of the house of representatives a report that states: (1) the total number of jobs created by enterprise projects that claim a credit under this subchapter and the average and median annual wages of those jobs; (2) the total amount of credits applied against the tax under this chapter and the amount of unused credits including: (A) the total amount of franchise tax due by enterprise projects claiming a credit under this subchapter before and after the application of the credit; (B) the average percentage reduction in franchise tax due by enterprise projects claiming a credit under this subchapter; and (C) the percentage of tax credits that were awarded to enterprise projects with fewer than 100 employees; (3) a breakdown of the two-digit standard industrial classification of enterprise projects claiming a credit under this subchapter; (4) the geographical distribution of the credits claimed under this subchapter; and (5) the impact of the credit provided under this subchapter on employment, personal income, and capital investment in this state and on state tax revenues. (b) The final report issued before the expiration of this subchapter shall include historical information on the credit authorized under this subchapter. (c) The comptroller may not include in the report information that is confidential by law. (d) For purposes of this section, the comptroller may require an enterprise project that claims a credit under this subchapter to submit information, on a form provided by the comptroller, on the location of the enterprise project's job creation in this state and any other information necessary to complete the report required under this section. (e) The comptroller shall provide notice to the members of the legislature that the report required under this section is available on request. Sec. 171.789. COMPTROLLER POWERS AND DUTIES. The comptroller shall adopt rules and forms necessary to implement this subchapter. Sec. 171.790. EXPIRATION. (a) This subchapter expires December 31, 2009. (b) The expiration of this subchapter does not affect the carryforward of a credit under Section 171.785 or those credits for which an enterprise project is eligible before the date this subchapter expires. An enterprise project may not, under any circumstances, obtain a greater benefit than the benefit to which the enterprise project would have been entitled if this subchapter did not expire.
SUBCHAPTER Q-1. TAX CREDITS FOR ENTERPRISE PROJECTS
FOR CERTAIN CAPITAL INVESTMENTS
Sec. 171.815. DEFINITIONS. In this subchapter: (1) "Enterprise project" has the meaning assigned by Section 171.781. (2) "Qualified business" has the meaning assigned by Section 171.781. (3) "Qualified capital investment" means tangible personal property first placed in service by an enterprise project that is described in Section 1245(a), Internal Revenue Code, such as engines, machinery, tools, and implements used in a trade or business or held for investment and subject to an allowance for depreciation, cost recovery under the accelerated cost recovery system, or amortization. The term does not include real property or buildings and their structural components. Property that is leased under a capitalized lease is considered a qualified capital investment, but property that is leased under an operating lease is not considered a qualified capital investment. Property expensed under Section 179, Internal Revenue Code, is not considered a qualified capital investment. Sec. 171.8151. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to an enterprise project that: (1) is owned by a corporation that was obligated to pay the franchise tax under this chapter as it existed on December 31, 2004; (2) is not located in an enterprise zone; (3) was designated as an enterprise project on or after September 1, 2004; and (4) was approved as a triple jumbo enterprise project as described by Section 2303.407, Government Code, on or after September 1, 2004, and on or before November 30, 2004. Sec. 171.816. TANGIBLE PERSONAL PROPERTY FIRST PLACED IN SERVICE BY AN ENTERPRISE PROJECT. For purposes of determining whether an investment is a qualified capital investment under Section 171.815, "tangible personal property first placed in service by an enterprise project" includes tangible personal property: (1) purchased by an enterprise project for placement in an incomplete improvement that is under active construction or other physical preparation; (2) identified by a purchase order, invoice, billing, sales slip, or contract; and (3) physically present at the enterprise project's qualified business site, as defined by Section 2303.003(6-a), Government Code, and in use by the enterprise project on the original due date of the report on which the credit is taken. Sec. 171.817. ELIGIBILITY. (a) An enterprise project that is a qualified business as defined in Section 171.781 is eligible for a credit against the tax imposed under this chapter in the amount and under the conditions and limitations provided by this subchapter. (b) An enterprise project that is eligible for a credit under this subchapter may claim a credit or take a carryforward credit without regard to whether the enterprise zone in which it made the qualified capital investment subsequently loses its designation as an enterprise zone, if applicable. Sec. 171.818. CALCULATION OF CREDIT. An enterprise project that is eligible for a credit under this subchapter may, beginning on the date the project is designated, establish a credit equal to 7.5 percent of the qualified capital investment. Sec. 171.819. LENGTH OF CREDIT. An enterprise project that is eligible for a credit under this subchapter may: (1) claim a credit established under this subchapter in five equal installments of one-fifth the credit amount over the five consecutive reports beginning with the report based on the period during which the qualified capital investment was made; or (2) claim the entire credit earned on a report originally due on or after September 1, 2006, and before December 31, 2009, subject to Section 171.820. Sec. 171.820. LIMITATIONS. (a) The total credit claimed under this subchapter for a report, including the amount of any carryforward credit under Section 171.821, may not exceed 50 percent of the amount of franchise tax due for the report before any other applicable tax credits. (b) The total credit claimed under this subchapter and Subchapter P-1 for a report, including the amount of any carryforward credits, may not exceed the amount of franchise tax due for the report after any other applicable tax credits. Sec. 171.821. CARRYFORWARD. (a) If an enterprise project is eligible for a credit from an installment that exceeds a limitation under Section 171.820, the enterprise project may carry the unused credit forward for not more than five consecutive reports. (b) A carryforward is considered the remaining portion of an installment that cannot be claimed in the current year because of a tax limitation under Section 171.820. A carryforward is added to the next year's installment of the credit in determining the tax limitation for that year. A credit carryforward from a previous report is considered to be used before the current year installment. Sec. 171.822. CERTIFICATION OF ELIGIBILITY. (a) For the initial and each succeeding report in which a credit is claimed under this subchapter, the enterprise project shall file with its report, on a form provided by the comptroller, information that sufficiently demonstrates that the enterprise project is eligible for the credit. (b) The burden of establishing entitlement to and the value of the credit is on the enterprise project. (c) A credit expires under this subchapter and the enterprise project may not take any remaining installment of the credit if in one of the five years in which the installment of a credit accrues, the enterprise project: (1) disposes of the qualified capital investment; (2) takes the qualified capital investment out of service; or (3) moves the qualified capital investment out of this state. (d) Notwithstanding Subsection (c), the enterprise project may take the portion of an installment that accrued in a previous year and was carried forward to the extent permitted under Section 171.821. Sec. 171.823. ASSIGNMENT PROHIBITED. An enterprise project may not convey, assign, or transfer the credit allowed under this subchapter to another entity unless all of the assets of the enterprise project are conveyed, assigned, or transferred in the same transaction. Sec. 171.824. BIENNIAL REPORT BY COMPTROLLER. (a) Before the beginning of each regular session of the legislature, the comptroller shall submit to the governor, the lieutenant governor, and the speaker of the house of representatives a report that states: (1) the total amount of qualified capital investments made by enterprise projects that claim a credit under this subchapter and the average and median wages paid by those enterprise projects; (2) the total amount of credits applied against the tax under this chapter and the amount of unused credits, including: (A) the total amount of franchise tax due by enterprise projects claiming a credit under this subchapter before and after the application of the credit; (B) the average percentage reduction in franchise tax due by enterprise projects claiming a credit under this subchapter; (C) the percentage of tax credits that were awarded to enterprise projects with fewer than 100 employees; and (D) the two-digit standard industrial classification of enterprise projects claiming a credit under this subchapter; (3) the geographical distribution of the qualified capital investments on which tax credit claims are made under this subchapter; and (4) the impact of the credit provided under this subchapter on employment, capital investment, personal income, and state tax revenues. (b) The final report issued before the expiration of this subchapter shall include historical information on the credit authorized under this subchapter. (c) The comptroller may not include in the report information that is confidential by law. (d) For purposes of this section, the comptroller may require an enterprise project that claims a credit under this subchapter to submit information, on a form provided by the comptroller, on the location of the enterprise project's capital investment in this state and any other information necessary to complete the report required under this section. (e) The comptroller shall provide notice to the members of the legislature that the report required under this section is available on request. Sec. 171.825. COMPTROLLER POWERS AND DUTIES. The comptroller shall adopt rules and forms necessary to implement this subchapter. Sec. 171.826. EXPIRATION. (a) This subchapter expires December 31, 2009. (b) The expiration of this subchapter does not affect the carryforward of a credit under Section 171.821 or those credits for which an enterprise project is eligible before the date this subchapter expires. An enterprise project may not, under any circumstances, obtain a greater benefit than the benefit to which the enterprise project would have been entitled if this subchapter did not expire. SECTION 4. This Act takes effect September 1, 2006, and applies only to a report originally due on or after that date.