Sec. 400.5. Receipt and allocation of certified investments

(a) After certification pursuant to section 11(b)(7) of the Tax Law, the certified capital company may receive an investment of certified capital or an irrevocable funding commitment subject only to the receipt of an allocation pursuant to section 11(h) of the Tax Law.

(b) Tax credits shall be allocated among certified investors in certified capital companies in the order that the information required pursuant to section 11(c)(6)(A) of the Tax Law is received by the department from certified capital companies, subject to the provisions of subdivision (c) of this section. Each filing by a certified capital company required by section 11(c)(6)(A) for an allocation described in section 11(h) shall be stamped as to date of receipt. All complete filings made on the same day shall be treated as having been made contemporaneously.

(c) Allocation requests by certified capital companies on behalf of their certified investors as specified in section 11(c)(6)(A) which are received by the department on or before May 1, 1998 shall be treated as having been received on May 1, 1998 for tax credits to be utilized in 1999 and, if satisfactory, shall be given equal priority for allocation.

(d) For purposes of section 11(h) of the Tax Law and this Part, an irrevocable funding commitment subject only to the receipt of an allocation will be deemed to constitute “an investment of certified capital” if a certified investor prepares and forwards to a certified capital company for filing with the department the information required by section 11(c)(6)(A) of the Tax Law, including an affidavit of the certified investor pursuant to which such investor shall become legally bound to transfer funds in the amount allocated up to the maximum investment set forth in its submission made pursuant to section 11(c)(6)(A) within five business days after the date of transmittal of notice of an allocation by the superintendent. The certified capital company shall, upon receipt of an investment of certified capital in cash pursuant to such allocation, submit to the department, no later than one business day thereafter, evidence acceptable to the department that the cash was received. Such evidence may, in the case of wire transfer, be a certification from the financial institution that administered the transfer certifying that such transfer was completed. If the department has not received the evidence as required that the funds have been received within the five-day period, the allocation shall expire to the extent that funds are not received. In the event that the allocation has expired as a result of the department not receiving evidence that funds have been received by a certified capital company within the five-day period, then the allocation of tax credits shall be redistributed to other certified investors proportionately.

(e) In the event that, on the same date, the department receives from two or more certified capital companies, on behalf of their respective certified investors, the documentation specified in section 11(c)(6)(A) requesting an allocation of tax credits, and the amount of such investments of certified capital in all certified capital companies results in a request for allocation of credits that exceeds in the aggregate the available tax credits as provided in section 400.4(a) of this Part, the amount of tax credits approved shall be allocated among such certified investors in proportion to the amounts of tax credits requested. The aggregate amount of tax credits requested by a certified capital company and its affiliate or affiliates shall not exceed the aggregate tax credits available for such year, and any aggregate amount of tax credits requested by such certified capital company and its affiliate or affiliates in excess of the aggregate limit available for such year shall be excluded in calculating the proportion of tax credits allocated to certified investors in such certified capital companies. Once the proportions are established, an amount up to $50 million shall be allocated to respective certified investors in such certified capital companies for tax credits to be utilized beginning in 1999. Once proportions for the year 2000 are established, the amount of tax credits available as described in section 400.4(a)(2) and (3) of this Part shall be allocated to respective certified investors in such certified capital companies for tax credits to be utilized beginning in 2000.

(f) In the event a certified investor makes an investment of certified capital in a certified capital company and such certified capital is not eligible for tax credits due to the limitations of section 11(h), the certified investor may:

(1) withdraw such certified capital to the extent that the cash invested in the certified capital company exceeds the amount eligible for tax credits; or

(2) reduce its irrevocable funding commitment by the amount which is not eligible for tax credits, whichever is applicable.