Bill Text: CA AB1572 | 2021-2022 | Regular Session | Amended

California Assembly Bill 1572 (Prior Session Legislation)

Bill Title: Personal income taxes: corporation taxes: credits: California New Markets Tax Credit.

Spectrum: Committee Bill

Status: (Failed) 2022-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1572 Detail]

Download: California-2021-AB1572-Amended.html

Amended IN Assembly January 03, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 1572

Introduced by Committee on Jobs, Economic Development, and the Economy

March 04, 2021

An act to add Section 18410.3 to, and to add and repeal Sections 17053.9 and 23622.9 of, the Revenue and Taxation Code, relating to taxation, to take effect immediately, tax levy.

LEGISLATIVE COUNSEL'S DIGEST

AB 1572, as amended, Committee on Jobs, Economic Development, and the Economy. Personal income taxes: corporation taxes: credits: California New Markets Tax Credit.

Existing federal law allows a New Markets Tax Credit to a taxpayer holding a qualified equity investment in an amount equal to the applicable percentage of the amount paid to the qualified community development entity for investment in low-income communities. The state Personal Income Tax Law and the Corporation Tax Law allow various credits against the taxes imposed by those laws.

This bill would allow a California New Markets Tax Credit under the Personal Income Tax Law and the Corporation Tax Law, in modified conformity with the federal New Markets Tax Credit, for taxable years beginning on or after January 1, ~~2023, and before January 1, 2028,~~ 2024, and before January 1, 2029, in a specified amount for ~~investments~~ designated qualified equity investments, as defined, in low-income communities. The bill would limit the total annual amount of credit allowed pursuant to these provisions to $100,000,000 per calendar year. The bill would impose specified duties on the Governor’s Office of Business and Economic Development (GO-Biz) with regard to the application for, and allocation of, the credit. The bill would require GO-Biz to establish and impose reasonable fees upon entities that apply for the allocation of the credit, to be deposited in the California New Markets Tax Credit Account established by the bill within the California Economic Development Fund, and use the revenue, upon annual appropriation by the Legislature, to defray the cost of applying to and administering the credits, as specified. The bill would only authorize the ~~allocation for these credits for~~ designation of a qualified equity investment in those taxable years for which moneys are appropriated to GO-Biz to administer these credits for those taxable years.

Existing law requires any bill authorizing a new personal income tax or corporation tax credit to contain, among other things, specific goals, purposes, and objectives that the tax credit will achieve, detailed performance indicators, and data collection requirements, as provided.

This bill would also include that additional information required for any bill authorizing a new personal or corporation income tax credit.

The bill would provide that its provisions are severable.

This bill would take effect immediately as a tax levy.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares the following:

(a) Initially enacted in 2000, the federal government established the New Markets Tax Credit (NMTC) Program, which uses a market-based approach for expanding capital and technical assistance to businesses in lower income communities. The federal program is jointly administered by the Community Development Financial Institutions Fund (CDFI Fund) and the Internal Revenue Service. The NMTC Program allocates federal tax incentives to community development entities (CDEs) and community development financial institutions (CDFIs), which they then use to attract private investors who contribute funds that can be used to finance and invest in businesses and develop real estate in low-income communities.

(b) Through 14 application rounds (2003 to 2017, inclusive) of the NMTC Program, the CDFI Fund has made 1,105 awards, allocating a total of $54 billion in tax credit authority to CDEs through a competitive application process, including $3 billion in American Recovery and Reinvestment Act of 2009 awards and $1 billion of special allocation authority to be used for the recovery and redevelopment of the Gulf Opportunity Zone. Since its inception, the CDFI Fund has allocated tax credit authority to 413 CDEs headquartered in 45 states, the District of Columbia, Puerto Rico, and Guam. Of the qualified equity investments deployed, more than 75 percent were in severely distressed areas and 55 percent with unemployment rates 150 percent above the statewide average.

(c) Based on program activities reported through Fiscal Year 2016, CDEs and CDFIs disbursed a total of $44,421,718,023 in qualified equity investment proceeds toward 5,333 projects. Since 2003, the NMTC Program has created or retained an estimated 197,585 jobs nationally. It has also supported the construction of 32.4 million square feet of manufacturing space, 74.8 million square feet of office space, and 57.5 million square feet of retail space. The United States Department of the Treasury reports that a secondary benefit is that as these communities develop, they become more attractive to investors, catalyzing a ripple effect that spurs further investments and revitalization.

(d) For every $1 invested by the federal government, the NMTC Program generates over $8 of private investment. The NMTC Program catalyzes investment in the most economically challenged areas of the state. Over 75 percent of New Markets Tax Credit investments have been made in highly distressed areas, meaning the household income was less than 60 percent of statewide median income and the poverty rate was higher than 30 percent.

(e) The federal NMTC totals 39 percent of the original investment amount in the CDE and is claimed over a period of seven years (5 percent for each of the first three years and 6 percent for each of the remaining four years). Any investment by any taxpayer in the CDE redeemed before the end of the seven-year period will be recaptured.

(f) ~~Twelve~~ Over a dozen states in the United States have adopted state programs using the NMTC model including Alabama, Florida, Illinois, Nevada, and Oregon. While some of the programs substantially mirror the federal program, others vary in both the percentage of the credit and some of the policies that form the foundation of the credit. One of the reasons cited for establishing state-level programs is to make a state more attractive to CDEs, which results in increasing the amount of federal NMTCs being utilized in a state. Further, several studies, including a January 1, 2011, case study by Pacific Community Ventures, showed that for every dollar of forgone tax revenue, the federal NMTC leverages twelve dollars ($12) to fourteen dollars ($14) of private investment.

SEC. 2.

Section 17053.9 is added to the Revenue and Taxation Code, to read:

17053.9.

(a) There is hereby created the California New Markets Tax Credit Program as provided in this section and Section 23622.9. The purpose of this program is to stimulate private sector investment in lower income communities by providing a tax incentive to community and economic development entities that can be leveraged by the entity to attract private sector investment that in turn will be deployed by providing financing and technical assistance to small- and medium-sized businesses and the development of commercial, industrial, and community development projects, including, but not limited to, facilities for nonprofit service organizations, light manufacturing, and mixed-use and transit-oriented development. GO-Biz shall administer this program as provided in this section and Section 23622.9.

(b) (1) For taxable years beginning on or after January 1, ~~2023, and before January 1, 2028,~~ 2024, and before January 1, 2029, and subject to subdivision (k), there shall be allowed as a credit against the “net tax,” as defined in Section 17039, in an amount determined in accordance with Section 45D of the Internal Revenue Code, relating to the new markets tax credit, as modified in this section.

(2) For the purposes of this section, “GO-Biz” means the Governor’s Office of Business and Economic Development.

(1) Section 45D(a)(2) of the Internal Revenue Code, relating to applicable percentage, is modified by substituting for “(A) 5 percent with respect to the first 3 credit allowance dates, and (B) 6 percent with respect to the remainder of the credit allowance dates” with the following:

(A) Nine percent with respect to the first credit allowance date.

(B) Five percent with respect to the remainder of the credit allowance dates.

(2) The term “qualified active low-income community business,” as defined in Section 45D(d)(2) of the Internal Revenue Code, is modified as follows:

(A) By substituting “any low-income community in California” for “any low-income community” every place it appears in Section 45D of the Internal Revenue Code.

(B) A qualified active low-income community business shall not include any business that derives, or projects to derive, 15 percent or more of its annual revenue from the rental or sale of real estate. This exclusion does not apply to a business that is controlled by, or under common control with, another business if the second business: (i) does not derive or project to derive 15 percent or more of its annual revenue from the rental or sale of real estate; and (ii) is the primary tenant of the real estate leased from the first business.

(C) (i) Subject to clause (ii), a qualified active low-income community business shall only include a business that, at the time the initial investment is made, has 250 or fewer employees and is located in one or more California low-income communities. The operating business shall meet all other conditions of a qualified active low-income community business, except as modified by this paragraph.

(ii) The requirement specified in clause (i) does not apply to a business that is located in a tribal trust land held communally by a federally recognized tribe and managed by the tribal government.

(D) A qualified active low-income community business shall only include a business located in census tracts with a poverty rate greater than 30 percent, or census tracts, if located within a nonmetropolitan area, with a median family income that does not exceed 60 percent of median family income for this state, or census tracts, if located within a metropolitan area, with a median family income that does not exceed 60 percent of the greater of the California median family income or the metropolitan area median family income, or census tracts with unemployment rates at least 1.5 times the national average.

(E) A qualified active low-income community business shall not include any business that operates or derives revenues from the operation of a country club, gaming establishment, massage business or establishment, or liquor store.

(F) A qualified active low-income community business shall not include any business that operates or derives revenues from the operation of a sexually oriented business. A “sexually oriented business” means a commercial enterprise that provides, or has provided in the 24 months prior to the date of the submission of an application described in subdivision (d) by the taxpayer, for an audience of two or more individuals live nude entertainment or live nude performances where the nudity is a function of everyday business operations and where nudity is a planned and intentional part of the entertainment or performance. “Nude” means clothed in a manner that leaves uncovered or visible, through less than fully opaque clothing, any portion of the genitals or, in the case of a female, any portion of the breasts below the top of the areola of the breasts.

(G) A qualified active low-income community business shall not include a charter school.

(3) Section 45D(f) of the Internal Revenue Code, relating to national limitation on amount of investments designated, is modified as follows:

(A) The following shall apply in lieu of the provisions of Section 45D(f)(1) of the Internal Revenue Code: Subject to paragraph (3) of subdivision (d), the aggregate amount of qualified equity investments that may be allocated in any calendar year for purposes of this section and Section 23622.9 shall be one hundred million dollars ($100,000,000) per calendar year. The allocation of any undesignated qualified equity investments shall be returned to GO-Biz by March 1 of the year following allocation and the value of the undesignated qualified equity investment shall be available for allocation in the following calendar years in accordance with the application process. Any qualified equity investment attributable to recaptured credits shall be available to GO-Biz on March 1 of the year following recapture and shall be available for allocation in the following calendar years in accordance with subparagraph (B) of paragraph (4). ~~Reallocated qualified equity investments attributable to recapture credits shall not count against the annual or the cumulative limit.~~

(B) The references to “the Secretary” in Section 45D(f)(2) of the Internal Revenue Code, relating to allocation of limitation, are modified to read “GO-Biz.”

(C) The last sentence of Section 45D(f)(3) of the Internal Revenue Code, relating to carryover of unused limitation, shall not apply.

(4) Section ~~45D(g)(3)~~ 45D(g) of the Internal Revenue Code, relating to recapture event, is modified to add the following:

(A) GO-Biz shall establish a process, in consultation with the Franchise Tax Board, for the recapture of credits allowed under this section from the entity that claimed the credit on a return. If, at any time during the seven years beginning on the date of the original issue of a qualified equity investment to the community development entity, there is a recapture event with respect to the investment, then the tax imposed for the taxable year in which the recapture event occurs shall be increased by the state credit recapture amount. The state credit recapture amount shall be determined consistent with the federal requirements of Section 45D(g) of the Internal Revenue Code. No deduction shall be allowed for interest paid as a result of a recaptured credit.

(B) Recaptured qualified equity investments revert back to GO-Biz and shall be reissued. The reissue shall not count toward the annual or cumulative allocation limitation.

(d) (1) GO-Biz shall adopt guidelines necessary or appropriate to carry out its responsibilities with respect to the allocation, monitoring, and management of the tax credit program authorized by this section.

(2) (A) GO-Biz shall establish and impose reasonable fees upon entities that apply for the allocation pursuant to this subdivision that in the aggregate defray the cost of reviewing applications for the program. GO-Biz may impose other reasonable fees upon entities that receive the allocation pursuant to this subdivision that in the aggregate defray the cost of administering the program.

(B) The fees collected shall be deposited in the California New Markets Tax Credit Account established in Section 18410.3.

(3) In developing guidelines, GO-Biz shall adopt an allocation process that does all of the following:

(A) Creates an equitable distribution process that ensures that low-income community populations across the state have an opportunity to benefit from the program.

(B) Sets minimum organizational capacity standards that applicants are required to meet in order to receive an allocation of authority to designate qualified equity investments, including, but not limited to, its business strategy, targeted community outcomes, capitalization strategy, and management capacity.

(C) Considers the qualified community development entity’s prior qualified low-income community investments under Section 45D of the Internal Revenue Code and other similar programs, as determined by GO-Biz.

(D) Gives priority to both of the following:

(i) Applications that commit to addressing the hardest to serve and undercapitalized lower income populations.

(ii) Applications that support neighborhood revitalization strategies driven by local grassroots stakeholders.

(4) Subject to subdivision (k), GO-Biz shall begin accepting applications on or before October 15, ~~2022,~~ 2023, and shall award authority to designate qualified equity investments annually through ~~2027.~~ 2028.

(5) In the instance where GO-Biz determines that an application has a minor, nonsubstantive error or omission, the qualified community development entity shall be given five business days to correct the deficiency or provide the omitted information.

(6) A member of the review committee, established to review applications pursuant to this section, shall not have a financial interest, which includes, but is not limited to, asking, consenting, or agreeing to receive any commission, emolument, gratuity, money, property, or thing of value for their own use, benefit, or personal advantage for procuring or endeavoring to procure for any person, partnership, joint venture, association, or corporation any qualified equity investment or other assistance from any applicant.

(e) An approved applicant may transfer all or a portion of its certified qualified equity investment authority to its controlling entity or any subsidiary qualified community development entity of the controlling entity, provided that the applicant and the transferee notify GO-Biz within 30 calendar days of such transfer and include the information required in the application with respect to such transferee with such notice. The transferee shall be subject to the same rules, requirements, and limitations applicable to the transferor.

(f) Within 200 calendar days of GO-Biz sending notice of certification, the qualified community development entity or any transferee, under subdivision (e), shall issue the qualified equity investment and receive cash in the amount of the certified amount. The qualified community development entity or transferee, under subdivision (e), shall provide GO-Biz with evidence of the receipt of the cash investment within 205 calendar days of the applicant receiving notice of certification. If the qualified community development entity or any transferee, under subdivision (e), does not receive the cash investment and issue the qualified equity investment within 200 calendar days of GO-Biz sending the certification notice, the certification shall lapse and the entity may not issue the qualified equity investment without reapplying to GO-Biz for certification. Lapsed certifications revert back to GO-Biz and shall be reissued in accordance with the application process.

(g) A qualified community development entity that issues qualified equity investments shall notify GO-Biz of the ~~names~~ names, addresses, and California corporation numbers, federal employer identification numbers, social security numbers or individual taxpayer identification numbers of taxpayers that are eligible to utilize tax credits pursuant to this section and any transfer of a qualified equity investment. GO-Biz shall provide the Franchise Tax Board with the information provided by the qualified community development entity.

(h) (1) A qualified community development entity that issues qualified equity investments shall submit a report to GO-Biz that provides documentation as to the investment of at least 85 percent of the funds being deployed within one year of issuance in qualified low-income community investments in qualified active low-income community businesses located in California.

(2) The qualified community development entity shall submit an annual report to GO-Biz during the seven years following submittal of the report, pursuant to paragraph (1). No annual report shall be due prior to the first anniversary of the initial credit allowance date. The report shall include, but is not limited to, the following:

(A) The social, environmental, and economic impact the credit had on the low-income community during the report period and cumulatively.

(B) The amount of moneys used for qualified low-income investments in qualified low-income community businesses.

(C) The number of employment positions created and retained as a result of qualified low-income community investments and the average annual salary of such positions.

(D) The number of operating businesses assisted as a result of qualified low-income community investments, by industry and number of employees.

(E) Number of owner-occupied real estate projects.

(F) Location of each qualified low-income community business assisted by a qualified low-income community investment.

(G) Documentation that demonstrates the investment of the funds being deployed within the reporting period in qualified low-income community investments in qualified low-income community businesses located in California.

(H) Any other information requested by ~~GO-Biz.~~ GO-Biz, including, but not limited to, data related to meeting the requirements of Section 41.

(i) (1) In the case where the credit allowed by this section exceeds the “net tax,” the excess may be carried over to reduce the “net tax” in the following year, and the six succeeding years if necessary, until the credit is exhausted.

(2) A taxpayer allowed a credit under this section for a qualified equity investment shall not be eligible for any other credit or deduction under this part with respect to that investment.

(3) The credit allowed under this section may be in addition to any credit allowed under Section 45D of the Internal Revenue Code.

(j) GO-Biz shall annually report on its internet website the information provided by low-income community development entities and on the geographic distribution of the qualified active low-income community businesses assisted.

(k) (1) The ~~credit authorized by~~ authority to designate a qualified equity investment pursuant to this section shall only be allocated by GO-Biz ~~for~~ in those taxable years for which moneys are appropriated to GO-Biz to administer the California New Markets Tax Credit pursuant to ~~18410.3 for that taxable year. The appropriation shall specifically identify the California New Markets Tax Credit.~~ Section 18410.3. The Department of Finance shall annually notify GO-Biz about whether the state budget provides sufficient authority for another California New Markets Tax Credit application round.

(2) For those taxable years for which those moneys are appropriated pursuant to paragraph (1), GO-Biz shall post notice of the appropriation on the homepage of its internet website and send notice of such appropriation to the Secretary of State and the Legislative Counsel.

(l) The Franchise Tax Board shall prescribe ~~any~~ rules or regulations that may be necessary or appropriate to implement the program authorized by this section and Section 23622.9. The Franchise Tax Board shall have access to any documentation held by GO-Biz relative to the taxpayers who are authorized to apply the credits, as well as the application and reporting of the qualified community development entity.

(m) Notwithstanding Section 19542, the Franchise Tax Board may disclose information to GO-Biz and GO-Biz may disclose information to the Franchise Tax Board as necessary to implement the tax credit program created by this section.
(n) The Franchise Tax Board shall annually provide to the Joint Legislative Budget Committee, by no later than March 1, a report of the total dollar amount of the credits claimed under this section with respect to the relevant fiscal year. A copy of this report shall be posted on the website of the Franchise Tax Board.
~~(m)~~

(o) This section shall be repealed on December 1, ~~2028.~~ 2029.

SEC. 3.

Section 18410.3 is added to the Revenue and Taxation Code, to read:

18410.3.

(a) The California New Markets Tax Credit Account is hereby established in the California Economic Development Fund created pursuant to Section 13997.6 of the Government Code.

(b) Upon annual appropriation, moneys in the fund shall be used for the purposes described in subdivision (d) of Section 17053.9 and subdivision (d) of Section 23622.9.

SEC. 4.

Section 23622.9 is added to the Revenue and Taxation Code, to read:

23622.9.

(a) There is hereby created the California New Markets Tax Credit Program as provided in this section and Section 17053.9. The purpose of this program is to stimulate private sector investment in lower income communities by providing a tax incentive to community and economic development entities that can be leveraged by the entity to attract private sector investment that in turn will be deployed by providing financing and technical assistance to small- and medium-sized businesses and the development of commercial, industrial, and community development projects, including, but not limited to, facilities for nonprofit service organizations, light manufacturing, and mixed-use and transit-oriented development. GO-Biz shall administer this program as provided in this section and Section 17053.9.

(b) (1) For taxable years beginning on or after January 1, ~~2023, and before January 1, 2028,~~ 2024, and before January 1, 2029, and subject to subdivision (k), there shall be allowed as a credit against the “tax,” as defined in Section 23036, in an amount determined in accordance with Section 45D of the Internal Revenue Code, relating to the new markets tax credit, as modified in this section.