Bill Text: GA HB1001 | 2009-2010 | Regular Session | Comm Sub
Bill Title: Income tax; certain qualified investments; income tax credit; provisions
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2010-03-24 - House Committee Favorably Reported [HB1001 Detail]
Download: Georgia-2009-HB1001-Comm_Sub.html
10 LC 38 1140S
The House Special Committee on Small Business Development and Job Creation
offers the following substitute to HB 1001:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia
Annotated, relating to the imposition, rate, and computation of income tax, so
as to provide for an income tax credit for certain qualified investments for a
limited period of time; to provide for legislative findings and intent; to
provide for definitions; to provide for procedures, conditions, and limitations;
to provide for powers, duties, and authority of the state revenue commissioner
with respect to the foregoing; to provide for an effective date; to provide for
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating
to the imposition, rate, and computation of income tax, is amended by adding a
new Code Section to read as follows:
"48-7-40.29.
(a)
The General Assembly finds that entrepreneurial businesses significantly
contribute to the economy of the state. The intent of this Code section is to
achieve the following:
(1)
To encourage individual investors to invest in early stage, innovative,
wealth-creating businesses;
(2)
To enlarge the number of high quality, high paying jobs within the state both to
attract qualified individuals to move to and work within this state and to
retain young people educated in Georgia's universities and
colleges;
(3)
To expand the economy of Georgia by enlarging its base of wealth-creating
businesses; and
(4)
To support businesses seeking to commercialize technology invented in Georgia's
universities and colleges.
(b)
As used in this Code section, the term:
(1)
'Allowable credit' means the credit as it may be reduced pursuant to
subparagraph (3) of subsection (i) of this Code section.
(2)
'Headquarters' means the principal central administrative office of a business
located in this state which conducts significant operations of such
business.
(3)
'Net income tax liability' means income tax liability reduced by all other
credits allowed under this chapter.
(4)
'Pass-through entity' means a partnership, an S-corporation, or a limited
liability company taxed as a partnership.
(5)
'Professional services' means those services specified in paragraph (2) of Code
Section 14-7-2 or any service which requires as a condition precedent to the
rendering of such service the obtaining of a license from a state licensing
board pursuant to Title 43.
(6)
'Qualified business' means a registered business that:
(A)
Is either a corporation, limited liability company, or a general or limited
partnership located in this state;
(B)
Was organized no more than three years before the qualified investment was
made;
(C)
Has its headquarters located in this state at the time the investment was made
and has maintained such headquarters for the entire time the qualified business
benefitted from the tax credit provided for pursuant to this Code
section;
(D)
Employs 20 or fewer people in this state at the time it is registered as a
qualified business;
(E)
Has had in any complete fiscal year before registration gross annual revenue as
determined in accordance with the Internal Revenue Code of $500,000.00 or less
on a consolidated basis;
(F)
Has not obtained during its existence more than $1 million in aggregate gross
cash proceeds from the issuance of its equity or debt investments, not including
commercial loans from chartered banking or savings and loan
institutions;
(G)
Has not utilized the tax credit described in Code Section
48-7-40.26;
(H)
Is primarily engaged in manufacturing, processing, online and digital
warehousing, online and digital wholesaling, software development, information
technology services, research and development, or a business providing services
other than those described in subparagraph (I) of this paragraph;
and
(I)
Does not engage substantially in:
(i)
Retail sales;
(ii)
Real estate or construction;
(iii)
Professional services;
(iv)
Gambling;
(v)
Natural resource extraction;
(vi)
Financial, brokerage, or investment activities or insurance; or
(vii)
Entertainment, amusement, recreation, or athletic or fitness activity for which
an admission or membership is charged.
A
business shall be substantially engaged in one of the above activities if its
gross revenue from such activity exceeds 25 percent of its gross revenues in any
fiscal year or it is established pursuant to its articles of incorporation,
articles of organization, operating agreement or similar organizational
documents to engage as one of its primary purposes such activity.
(7)
'Qualified investment' means an investment by a qualified investor of cash in a
qualified business for common or preferred stock or an equity interest or a
purchase for cash of qualified subordinated debt in a qualified business;
provided, however, that funds constituting a qualified investment cannot have
been raised or be raised as a result of other tax incentive programs.
Furthermore, no investment of common or preferred stock or an equity interest or
purchase of subordinated debt shall qualify as a qualified investment if a
broker fee or commission or a similar remuneration is paid or given directly or
indirectly for soliciting such investment or purchase.
(8)
'Qualified investor' means an accredited investor as that term is defined by the
United States Securities and Exchange Commission who is:
(A)
An individual person who is a resident of this state or a nonresident who is
obligated to pay taxes imposed by this chapter; or
(B)
A pass-through entity which is formed for investment purposes, has no business
operations, has committed capital under management of equal to or less than $5
million, and is not capitalized with funds raised or pooled through private
placement memoranda directed to institutional investors. A venture capital fund
or commodity fund with institutional investors or a hedge fund shall not qualify
as a qualified investor.
(9)
'Qualified subordinated debt' means indebtedness that is not secured, that may
or may not be convertible into common or preferred stock or other equity
interest, and that is subordinated in payment to all other indebtedness of the
qualified business issued or to be issued for money borrowed and no part of
which has a maturity date less than five years after the date such indebtedness
was purchased.
(10)
'Registered' or 'registration' means that a business has been certified by the
commissioner as a qualified business at the time of application to the
commissioner.
(c)
A qualified business shall register with the commissioner for purposes of this
Code section. Approval of such registration shall constitute certification by
the commissioner for 12 months after being issued. A business shall be
permitted to renew its registration with the commissioner so long as, at the
time of renewal, the business remains a qualified business.
(d)
Any individual person making a qualified investment directly in a qualified
business in the 2011, 2012, or 2013 calendar year shall be allowed a tax credit
of 20 percent of the amount invested against the tax imposed by this chapter
commencing on January 1 of the second year following the year in which the
qualified investment was made as provided in this Code section.
(e)
Any pass-through entity making a qualified investment directly in a qualified
business in the 2011, 2012, or 2013 calendar year shall be allowed a tax credit
of 20 percent of the amount invested against the tax imposed by this chapter
commencing on January 1 of the second year following the year in which the
qualified investment was made as provided in this Code section. Each individual
who is a shareholder, partner, or member of an entity shall be allocated the
credit allowed the pass-through entity in an amount determined in the same
manner as the proportionate shares of income or loss of such pass-through entity
would be determined. If an individual's share of the pass-through entity's
credit is limited due to the maximum allowable credit under this Code section
for a taxable year, the pass-through entity and its owners may not reallocate
the unused credit among the other owners.
(f)
Tax credits claimed pursuant to this Code section shall be subject to the
following conditions and limitations:
(1)
The qualified investor is not eligible for the credit for the taxable year in
which the qualified investment is made but shall be eligible for the credit for
the second taxable year beginning after the qualified investment is made as
provided in subsection (d) or (e) of this Code section;
(2)
The aggregate amount of credit allowed an individual for one or more qualified
investments in a single taxable year under this Code section, whether made
directly or by a pass-through entity and allocated to such individual, shall not
exceed $30,000.00;
(3)
In no event shall the amount of the tax credit allowed an individual under this
Code section for a taxable year exceed such individual's net income tax
liability. Any unused credit amount shall be allowed to be carried forward for
five years from the close of the taxable year in which the qualified investment
was made. No such credit shall be allowed against prior years' tax
liability;
(4)
The qualified investor's basis in the common or preferred stock, equity
interest, or subordinated debt acquired as a result of the qualified investment
shall be reduced for purposes of this chapter by the amount of the allowable
credit;
(5)
The credit shall not be transferrable by the qualified investor except to the
heirs and legatees of the qualified investor upon his or her death and to his or
her spouse or incident to divorce; and
(6)
To be eligible for the credit provided in this Code section, the qualified
investor must file an application for the credit with the commissioner on or
before June 30 of the year following the calendar year in which the qualified
investment was made.
(g)
The registration of a business as a qualified business shall be subject to the
following conditions and limitations:
(1)
If the commissioner finds that any of the information contained in an
application of a business for registration under this Code section is false, the
commissioner shall revoke the registration of such business. The commissioner
shall not revoke the registration of a business solely because it ceases
business operations for an indefinite period of time, as long as the business
renews its registration;
(2)
A registration as a qualified business may not be sold or otherwise transferred,
except that, if a qualified business enters into a merger, conversion,
consolidation, or other similar transaction with another business and the
surviving company would otherwise meet the criteria for being a qualified
business, the surviving company retains the registration for the 12 month
registration period without further application to the commissioner. In such a
case, the qualified business must provide the commissioner with written notice
of the merger, conversion, consolidation, or similar transaction and such other
information as required by the commissioner; and
(3)
The commissioner shall report to the House Committee on Ways and Means and the
Senate Finance Committee each year all of the businesses that have registered
with the commissioner as a qualified business. The report shall include the
name and address of each business, the location of its headquarters, a
description of the types of business in which it engages, the number of jobs
created by the business during the period covered by the report, and the average
wages paid by these jobs.
(h)
Any credit claimed under this Code section shall be recaptured in the following
situations and shall be subject to the following conditions and
limitations:
(1)
If within two years after the qualified investment was made, the qualified
investor transfers any of the securities or subordinated debt received in the
qualified investment to another person or entity, other than a transfer
resulting from one of the following:
(A)
The death of the qualified investor;
(B)
A transfer to the spouse of the qualified investor or incident to divorce;
or
(C)
A merger, conversion, consolidation, sale of the qualified business's assets, or
similar transaction requiring approval by the owners of the qualified business
under applicable law, to the extent the qualified investor does not receive cash
or tangible property in such merger, conversion, consolidation, sale, or other
similar transaction;
(2)
Except as provided in paragraph (1) of this subsection, if within five years
after the qualified investment was made, the qualified business makes a
redemption with respect to the securities received or pays any principal of the
subordinated debt;
(3)
If within two years after the qualified investment was made, the qualified
investor participates in the operation of the qualified business. For the
purpose of this paragraph, a qualified investor participates in the operation of
a qualified business if the qualified investor, or the qualified investor's
spouse, parent, sibling, or child, or a business controlled by any of these
individuals, provides services of any nature to the qualified business for
compensation, whether as an employee, a contractor, or otherwise. However, a
person who provides uncompensated professional advice to a qualified business
whether as an officer, a member of the board of directors or managers or
otherwise or participates in a stock or membership option or stock or membership
plan, or both, shall be eligible for the credit;
(4)
The amount of the credit recaptured shall apply only to the qualified investment
in the particular qualified business in which the investment was
made;
(5)
The amount of the recaptured tax credit determined under this subsection shall
be added to the qualified investor's income tax liability for the taxable year
in which the recapture occurs under this subsection; and
(6)
In the event the credit is recaptured because the qualified business ceases
business operations, dissolves, or liquidates, the qualified investor may claim
either the credit authorized under this Code section or any capital loss the
qualified investor otherwise would be able to claim regarding that qualified
business, but shall not be authorized to claim and be allowed both.
(i)(1)
A qualified investor seeking to claim a tax credit provided for under this Code
section must submit an application to the commissioner for tentative approval of
such tax credit between September 1 and October 31 of the year for which the tax
credit is claimed or allowed. The commissioner shall promulgate the rules and
forms on which the application is to be submitted. Amounts specified on such
application shall not be changed by the qualified investor after the application
is approved by the commissioner. The commissioner shall review such application
and shall tentatively approve such application upon determining that it meets
the requirements of this Code section.
(2)
The commissioner shall provide tentative approval of the applications by the
date provided in paragraph (3) of this subsection as follows:
(A)
The total aggregate amount of all tax credits allowed to qualified investors or
pass-through entities for investments made in the 2011 calendar year and claimed
and allowed in the 2013 taxable year shall not exceed $3 million in such
year;
(B)
The total aggregate amount of all tax credits allowed to qualified investors or
pass-through entities for investments made in the 2012 calendar year and claimed
and allowed in the 2014 taxable year shall not exceed $3 million in such year;
and
(C)
The total aggregate amount of all tax credits allowed to qualified investors or
pass-through entities for investments made in the 2013 calendar year and claimed
and allowed in the 2015 taxable year shall not exceed $3 million in such
year.
(3)
The commissioner shall notify each qualified investor of the tax credits
tentatively approved and allocated to such qualified investor by December 31 of
the year in which the application was submitted. In the event that the credit
amounts on the tax credit applications filed with the commissioner exceed the
maximum aggregate limit of tax credits under this subsection, then the tax
credits shall be allocated among the qualified investors who filed a timely
application on a pro rata basis based upon the amounts otherwise allowed by this
Code section. Once the tax credit application has been approved and the amount
approved has been communicated to the applicant, the qualified investor may then
apply the amount of the approved tax credit to its tax liability for the tax
year for which the approved application applies.
(j)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this Code
section."
SECTION
2.
This
Act shall become effective on January 1, 2011.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.