8/19/15 N.Y. St. Reg. EDV-03-15-00001-A
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 230 to Title 5 NYCRR.
Statutory authority:
L. 2010, ch. 57 as amended by L. 2013, ch. 59
Subject:
Empire State Post Production Tax Credit Program.
Purpose:
Establish application procedure for the Empire State Post Production Tax Credit Program.
Text or summary was published
in the January 21, 2015 issue of the Register, I.D. No. EDV-03-15-00001-P.
Final rule as compared with last published rule:
No changes.
Revised rule making(s) were previously published in the State Register on
June 10, 2015.
Text of rule and any required statements and analyses may be obtained from:
Thomas Regan, New York State Department of Economic Development, 625 Broadway, 8th Floor, Albany, NY 12207, (518) 292-5123, email:
Thomas.Regan@esd.ny.govInitial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Evaluation and Process of the Initial Application
Comment: In order to determine eligibility to participate in the program, initial applications should be evaluated based upon whether projected total qualified production costs attributable to the use of tangible property or the performance of services at a qualified post production facility equal or exceed 75% of total qualified production costs, rather than 75% of total post production costs. This change will ensure that significant costs, such as compensation to composers and fees for music licenses, which cannot be incurred in a post qualified production facility do not prevent post production projects from reaching the 75% threshold.
Answer: The existing language mirrors the language of the statute. In addition, costs for compensation of composers and music licenses are already excluded from the definition of post production costs pursuant to section 230.2(m).
Comment: Section 230.4(a)(4) of the regulations should be changed to indicate that the Department “will issue a certificate of conditional eligibility” rather than that the Department “may issue a certificate of conditional eligibility.” This change will reflect that eligibility for the program is as of right, and not subject to the Department’s discretion.
Answer: The existing language reflects the Department’s administrative process with respect to the generation of certificates of conditional eligibility, not discretion on the part of the Department as to whether an applicant is eligible to participate in the program. Accordingly, this change will not be made.
Comment: The term “qualified film” should be changed to “qualified film and television productions.”
Answer: The definition of the term “qualified film” already includes television productions pursuant to section 230.2(q). Therefore, this proposed change is unnecessary.
