Sec. 5-2.6. Elective treatment of certain property which qualifies for the investment tax credit

Tax Law, § 210(12)(c) and (f)

(a) A taxpayer may elect to take the investment tax credit on qualified property (see section 5-2.2 of this Subpart) in lieu of the elective deduction or credit for facilities which qualify as:

(1) an air or water pollution control facility, or an air or water pollution-controlled process facility (see Tax Law section 208[9] [g]);

(2) an eligible business facility (see Subpart 5-1 of this Part); or

(3) a research and development facility (see section 4-8.7 of this Title—Research and development deduction).

(b) Where a taxpayer elected to deduct the expenditures for an air or water pollution control facility or a research and development facility, it may not claim an investment tax credit on such facility.

(c) Where a taxpayer claimed an eligible business facility credit on property which qualified for such credit, it may not claim the investment tax credit on the same property. The taxpayer may take the investment tax credit on qualified property (see section 5-2.2 of this Subpart) which does not qualify for inclusion as eligible business facility property. The investment tax credit may be claimed on qualified property (see section 5-2.2 of this Subpart) acquired, constructed, reconstructed or erected during the period in which the facility fails to qualify as an eligible business facility.

(d) Where qualified property (see section 5-2.2 of this Subpart) was ordered on or before December 31, 1968, and no expenditure was paid or incurred up to and including that date, the taxpayer may elect to take either the optional depreciation deduction (see section 4-8.6 of this Title—Optional depreciation) or the investment tax credit on the property if it qualifies for the optional depreciation deduction under either clause (A), (B) or (C) of section 210, subdivision 3(e)(3) of the Tax Law.