Sec. 240.2. Definitions

As used in this regulation, the following terms shall have the following meanings:

(a) Authorized applicant means a qualified musical and theatrical production company that is scheduled to begin the technical period for a qualified musical and theatrical production after submitting an initial application to the department.

(b) Certificate of conditional eligibility means a notification by the department to the authorized applicant indicating that the applicant appears to be a qualified musical and theatrical production company scheduled to complete a qualified touring production. Such notification may include, but is not limited to, the following information: name and address of the authorized applicant, taxpayer identification number, a statement that the authorized applicant appears to be scheduled to complete a qualified touring production, and a disclaimer stating that actual receipt of the tax credit is subject to completion and approval of the final application.

(c) Certificate of tax credit means a certificate issued by the department which states the amount of the Empire State Musical and Theatrical Production Tax Credit that the approved applicant has qualified for based on the department’s analysis under section 24-a of the Tax Law and the provisions of this Part. Such certificate shall include, but not be limited to, the following information: name and address of the approved applicant, name of the qualified musical or theatrical production to which the credit applies, the amount of the tax credit to be received by the approved applicant, the allocation year of the tax credit, a disclaimer stating that the tax credit shall not be claimed before the later of either the taxable year the production of the qualified musical or theatrical production is complete or the taxable year immediately following the allocation year for which the musical or theatrical production has been allocated credit, and a disclaimer stating that actual receipt of the tax credit is subject to the statutory maximum amount of credits that are allocated for the program.

(d) Commissioner means the Commissioner of the New York State Department of Economic Development.

(e) Completeness of the application means that all questions on the application itself were fully addressed by the applicant and that any additional substantiating documents that were requested by the department were provided.

(f) Completion of a qualified touring production means that a qualified musical or theatrical production company has completed a qualified touring production, consisting of at least eight shows in three or more localities.

(g) Department means the New York State Department of Economic Development.

(h) Final application means a document created by the department and submitted by an approved applicant which contains information concerning actual production expenditures regarding a qualified musical or theatrical production that could make it eligible for the Empire State Musical and Theatrical Production Tax Credit under section 24-a of the Tax Law and the provisions of this Part. Such application shall include, but not be limited to: actual data with regard to the qualified musical or theatrical production’s total production budget, the total musical and theatrical production costs at musical and theatrical production facilities in and outside of New York, and any other information the department determines is necessary.

(i) Initial application means a document created by the department and submitted by an authorized applicant which contains information concerning projected musical and theatrical production expenditures regarding a qualified musical or theatrical production that could make it eligible for the Empire State Musical and Theatrical Production Tax Credit under section 24-a of the Tax Law and the provisions of this Part. Such application shall include, but is not limited to, the following information: the number of shows scheduled to be performed and the venues in which these shows will be performed, the estimated total production budget for the qualified musical or theatrical production, estimates of musical and theatrical production expenditures at qualifying musical and theatrical production facilities, estimates of musical and theatrical production expenditures in New York State and outside of New York State, and any other information the department determines is necessary.

(j) Program means the Empire State Musical and Theatrical Production Tax Credit Program.

(k) Qualified musical and theatrical production means a for-profit live, dramatic stage presentation in a qualified production facility, certified pursuant to this Part, as a qualified touring production.

(l) Qualified musical and theatrical production company means a corporation, partnership, limited partnership, or other entity or individual which or who is principally engaged in the production of a qualified musical or theatrical production and performs in a qualified production facility.

(m) Qualified production expenditure means any costs for tangible property used and services performed directly and predominantly in the production of a qualified musical and theatrical production within the state including:

(1) expenditures for design, construction and operation, including sets, special and visual effects, costumes, wardrobes, make-up, accessories and costs associated with sound, lighting, and staging;

(2) all salaries, wages, fees, per diems, payroll tax expenditures, fees for workers’ compensation insurance, and other compensation including related benefits for services performed of which the total allowable expense shall not exceed $200,000 per week; and

(3) technical and crew production costs, such as expenditures for qualified production facilities, or any part thereof, props, make-up, wardrobe, costumes, equipment used for special and visual effects, sound recording, set construction, and lighting.

Production expenditures for certain assets not destroyed during the production of a qualified musical and theatrical production are to be discounted when applied towards a tax credit under this Part in accordance with guidance to be provided by the department. Expenditures associated with the performance of a show before a paying audience shall be deemed to be directly and predominantly in the production of a qualified musical and theatrical production only when the show is performed in a qualified production facility and the show has not been performed in any facility, other than a qualified production facility, subsequent to the completion of the technical period in a qualified production facility. Expenditures not directly and predominantly in the production of a qualified musical and theatrical production include, but are not limited to, expenditures for advertising, marketing, and publicity, and any expenditures for the technical period of the musical and theatrical production incurred at a location other than a qualified production facility.

(n) Qualified production facility means a facility located in the State but outside the City of New York:

(1) in which live theatrical productions are or are intended to be primarily presented;

(2) that contains at least one stage, a seating capacity of 1,000 or more seats, and dressing rooms, storage areas, and other ancillary amenities necessary for the qualified musical and theatrical production;

(3) for which receipts attributable to ticket sales constitute 75 percent or more of gross receipts of the facility; and

(4) which is not a licensee, or affiliated with a licensee, of the New York State Gaming Commission under the Racing, Pari-Mutuel Wagering and Breeding Law.

(o) Qualified touring production means a live, dramatic stage production that, in its original or adaptive version, is performed in a qualified production facility, and has begun or will begin a tour, consisting of eight or more shows in three or more localities. A production is performed in a qualified production facility when the activities comprising the technical period for the production are conducted therein prior to the commencement of a tour.

(p) Show means a live performance of a dramatic musical or theatrical presentation.

(q) Technical period means those activities, as determined by the department, performed by technical personnel of a qualified touring production prior to the commencement of a qualified touring production, including, but not limited to, those personnel responsible for lighting, sound, wardrobe, and props.

(r) Transportation expenditures means transportation expenditures incurred and paid directly and predominantly in the production of a qualified musical and theatrical production. Such expenditures shall include the packaging, crating, and transportation within the State for use in a qualified musical and theatrical production of sets, costumes, or other tangible property constructed or manufactured in and out of State, and the transportation of the cast and crew within the State, including hotel costs for the cast and crew. Such term shall include the packaging, crating, and transporting within the State of property and equipment used for special and visual effects, sound, lighting and staging, costumes, wardrobes, make-up and related accessories and materials, as well as any other performance or production-related property and equipment. Transportation expenditures shall not include any costs to transport property and equipment to be used only for filming and not in a qualified theater production, any indirect costs, and expenditures that are later reimbursed by a third party, or any amounts that are paid to persons or entities as a result of their participation in profits from the exploitation of the production.