Sec. 192.1. Claiming credits

(a) A participant must submit evidence of achieving the applicable job and investment requirements to the department in order to receive benefits under the program.

(b) Such evidence may include, but not be limited to, submission of the NYS-45 form and, where applicable, submission of receipts specifically documenting research and development expenditures and/or qualified investments as such terms are defined in section 352 of the Economic Development Law. This evidence will serve to demonstrate that the participant has satisfied all applicable eligibility requirements and form the basis for the tax credit components.

(c) If a participant fails to demonstrate that it has satisfied the eligibility requirements set forth in section 191.2(h) of this Title, the department shall not issue such participant a certificate of tax credit. If a participant certified as a regionally significant project fails to demonstrate that it has satisfied the eligibility requirements set forth in section 191.2(h) of this Title, the department shall not issue such participant a certificate of tax credit. Provided, however, if the participant fails to fully satisfy the job creation projections in the preliminary schedule of benefits, the commissioner shall reduce the tax credits to an amount in proportion to the percentage of the job creation achieved. If the participant fails to create at least 75 percent of the job creation projections, the commissioner shall not issue such participant a certificate of tax credit.

(d) If a participant certified pursuant to section 191.2(d) of this Title fails to demonstrate that it has 25 full-time job equivalents or, if such business is a business entity operating predominantly in manufacturing, 10 full-time job equivalents or fails to demonstrate that it has a benefit-cost ratio of at least 10 to 1, the department shall not issue such participant a tax credit.

(e) After reviewing such evidence and finding it sufficient, the department shall calculate the appropriate amount of tax credit and issue a certificate of tax credit for one taxable year. The certificate shall specify the exact amount of each of the tax credit components that a participant may claim pursuant to Part 193 of this Title, and shall specify the taxable year in which such credit may be claimed. The tax credit components may only be claimed on tax returns for the tax year indicated on the certificate. If the participant is a business entity that passes through the tax credit components to its owners (such as partners in a partnership or members in a limited liability company), such owners can only claim their share of the credit components on the tax return that corresponds to the tax year indicated on the certificate issued to the participant. In order 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 sections 353 and 354(2) of the Economic Development Law. If such eligibility criteria are met, a participant can receive tax credits based on the interim job, investment or research and development milestones indicated in the preliminary schedule of benefits in accordance with subdivision (c) of this section.

(f) 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 regulation. However, if the participant's expenditures are less than the estimated amounts, the credit component shall be less than the estimate.

(g) No costs used by an entertainment company as the basis for the allowance of a tax credit described in this Part shall be used by such entertainment company to claim any other credit allowed pursuant to the Tax Law.