When used in this chapter the following terms shall have the following meanings:
(a) "Eligible Business." Any person subject to a tax imposed under chapter five, or subchapter two, three or three-A of chapter six, or chapter eleven, of title eleven of the code, that: (1) has been conducting substantial business operations at one or more business locations outside the eligible area for the twenty-four consecutive months immediately preceding the taxable year during which such eligible business relocates as defined in subdivision (j) of this section; and (2) on or after May twenty-seventh, nineteen hundred eighty-seven relocates as defined in subdivision (j) of this section all or part of such business operations; and (3) either (i) on or after May twenty-seventh, nineteen hundred eighty-seven first enters into a contract to purchase or lease the premises to which it relocates as defined in subdivision (j) of this section, or a parcel on which will be constructed such premises, or (ii) as of May twenty-seventh, nineteen hundred eighty-seven owns such parcel or premises and has not prior to such date made application for benefits pursuant to part four of subchapter two of chapter two of title eleven of the code.
(b) "Person." Includes any individual, partnership, association, joint-stock company, corporation, estate or trust, limited liability company, and any combination of the foregoing.
(c) "Retail activity." Any activity which consists predominantly of the sale, other than through the mail or by the telephone or by means of the internet, of tangible personal property to any person, for any purpose unrelated to the trade or business of such person, or which consists predominately of the selling of services to individuals which generally involve the physical, mental and/or spiritual care of such individuals, or the physical care of the personal property of any person unrelated to the trade or business of such person, or which consists predominately of the provision of retail banking services.
(d) "Hotel services." Any services which consist predominantly of the lodging of guests at a building or a portion thereof which is regularly used and kept open for such services. The term "hotel services" shall include the lodging of guests at an apartment hotel, a motel, boarding house or club, whether or not meals are served.
(e) "Eligible premises."
(1) Non-residential premises which are wholly contained in real property which is certified as eligible to receive benefits pursuant to part three or part four of subchapter two of chapter two of title eleven of the code, provided that such premises have been improved by construction or renovation, that expenditures have been made for improvements to such real property in excess of fifty per centum or, in the case of industrial property, in excess of twenty-five per centum, of the value at which such real property was assessed for tax purposes for the tax year in which such improvements commenced and such expenditures have been made within thirty-six months or, in the case of expenditures for such improvements to such real property in excess of fifty million dollars within seventy-two months from such commencement and, provided further, that such real property is located in the eligible area;
(2) non-residential premises which are: (i) wholly contained in or situated on real property which has been leased from the New York city industrial development agency established pursuant to article eighteen-A of the general municipal law, provided that such premises were constructed or renovated subsequent to the approval of such construction or renovation by such agency, or (ii) wholly contained in or situated on real property owned by the city, a lease for which was approved in accordance with the applicable provisions of the charter, provided that such premises were constructed or renovated subsequent to such approval, or (iii) wholly contained in or situated on real property which has been leased from the port authority of the state of New York and New Jersey or the New York state urban development corporation, or a subsidiary thereof, provided that such premises were constructed or renovated subsequent to the execution of such lease, or (iv) wholly contained in real property which would be eligible to receive benefits pursuant to part four of subchapter two of chapter two of title eleven of the code except that such property is exempt from real property taxation; provided that expenditures have been made for improvements to such real property in excess of fifty per centum or, in the case of industrial property, in excess of twenty-five per centum, of the value at which such real property was assessed for tax purposes for the tax year in which such improvements commenced and such expenditures have been made within thirty-six months or, in the case of expenditures for such improvements to such real property in excess of fifty million dollars within seventy-two months from the date of such commencement, and provided further that such real property is located in the eligible area; or
(3) in the case of a relocation, the date of which, as determined pursuant to subdivision (j) of this section, is on or after July first, two thousand three, non-residential premises, located in an eligible area, for which a minimum expenditure has been made after July first, two thousand three, for improvements in excess of twenty-five dollars per square foot, provided, however, that if such premises are leased, such lease shall have a term that does not expire until at least three years after the later of the date of relocation and the lease commencement date. The determination of whether premises meet the requirements for eligibility set forth in this subdivision shall be made as of the effective date of the certification of eligibility issued pursuant to section 22-622 of this chapter. Notwithstanding the provisions of paragraphs one and two of this subdivision, if, subsequent to such date, the property in which such premises are contained ceases to meet the requirements of paragraph one or two of this subdivision, such premises shall nonetheless remain eligible premises, provided that the eligible business continues to occupy such eligible premises; provided however that if, after such property ceases to meet the requirements of paragraph one or two, an eligible business first leases or purchases additional premises contained in such property, such additional premises shall not be considered eligible premises unless they meet the requirements of paragraph three of this subdivision.
(f) "Eligible area." The area of the city excluding that area lying south of the center line of 96th Street, in the borough of Manhattan.
(g) "Employment share." For each employee, partner or sole proprietor of an eligible business, the sum of: (1) the number of full-time work weeks worked by such employee, partner or sole proprietor during the eligible business' taxable year divided by the number of weeks in the taxable year, and (2) the number of part-time work weeks worked by such employee, partner or sole proprietor during the eligible business' taxable year divided by an amount equal to twice the number of weeks in the taxable year. For purposes of this subdivision, "full-time work week" shall mean a week during which at least thirty-five hours of gainful work has been performed by such employee, partner or sole proprietor and "part-time work week" shall mean a week during which at least fifteen but less than thirty-five hours of gainful work has been performed by such employee, partner or sole proprietor.
(h) "Aggregate employment shares." The sum of all employment shares maintained by an eligible business in a taxable year.
(i) "Eligible aggregate employment shares." The amount, if any, by which the number of aggregate employment shares maintained by an eligible business in the eligible area in the taxable year in which such eligible business claims a credit pursuant to section 22-622 of this chapter exceeds the number of aggregate employment shares maintained by an eligible business in the eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates as defined in subdivision (j) of this section. Provided, however, that such amount shall not exceed the lesser of: (1) in the case of particular premises to which an eligible business relocates before July first, two thousand three, the highest number of aggregate employment shares maintained by such eligible business in such premises in the taxable year during which such eligible business relocates to such premises or in any of the three immediately succeeding taxable years, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or in the case of particular premises to which an eligible business relocates on or after July first, two thousand three, the highest number of aggregate employment shares maintained by such eligible business in such premises in the taxable year during which such eligible business relocates to such premises or in any of the five immediately succeeding taxable years, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or (2) the number of aggregate employment shares maintained by such eligible business in such premises in the taxable year in which such eligible business claims a credit pursuant to such section 22-622, exclusive of any employment shares maintained by such eligible business in such premises in the taxable year immediately preceding the taxable year during which such eligible business relocates to such premises; or (3) in the case of an eligible business that has relocated as determined pursuant to subdivision (j) of this section before July first, two thousand three, and has not relocated on or after July first, two thousand three, twice the number of aggregate employment shares maintained by such eligible business outside the eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates or, in the case of an eligible business that has relocated as determined pursuant to subdivision (j) of this section on or after July first, two thousand three, the greater of one hundred aggregate employment shares and twice the number of aggregate employment shares maintained by such eligible business outside the eligible area in the taxable year immediately preceding the taxable year during which such eligible business first relocates. If an eligible business relocates to more than one particular premises, the amounts described in paragraphs one and two of this subdivision shall be determined separately with respect to each such particular premises, and in such case the total number of eligible aggregate employment shares for such eligible business shall not exceed the lesser of the amount determined pursuant to paragraph three of this subdivision or the sum of the lesser of the amounts determined pursuant to paragraphs one and two of this subdivision for each particular premises.
(j) "Relocate." To transfer pre-existing business operations to premises that are or will become eligible premises in accordance with subdivision (e) of this section, or to establish new business operations at such premises, provided that an eligible business shall not be deemed to have relocated unless at least one employee, partner or sole proprietor of the eligible business is transferred to such premises from pre-existing business operations conducted outside the eligible area. The date of relocation to any particular premises shall be any date elected by the eligible business on which an employee, partner or sole proprietor of the eligible business is transferred to the particular premises from pre-existing business operations conducted outside the eligible area and begins work at such premises, provided that such date is subsequent to the date of commencement of improvements to such premises the real property in which such premises are located, which improvements will meet the requirements of subdivision (e) of this section relating to expenditures for improvements, and provided further that such date is prior to the date of the issuance of a certification of eligibility pursuant to section 22-622 of this chapter. The year of relocation shall be the taxable year in which such date of relocation falls. The election provided for in this subdivision shall be made prior to the issuance of such certification of eligibility and shall be irrevocable. An eligible business may relocate only once to any particular premises.
(k) "Industrial construction work." The construction of a new building or structure or the modernization, rehabilitation, expansion or improvement of an existing building or structure for use as industrial property.
(l) "Industrial property." Nonresidential real property containing or which will contain after the completion of industrial construction work a building or structure wherein at least seventy-five percent of the total net square footage is used or immediately available and held out for use for manufacturing activities involving the assembly of goods or the fabrication or processing of raw materials.
(m) "Tax year" and "taxable year." For purposes of this chapter, in the case of taxpayers authorized to receive the credit allowed by section 22-622 of this chapter against the tax imposed by chapter eleven of title eleven of the code, calendar year.
(n) "Revitalization area" means any district in the city of New York that is zoned C4, C5, C6, M1, M2 or M3 in accordance with the zoning resolution of such city in any area of such city except the area lying south of the center line of 96th Street in the borough of Manhattan.
(o) "Total attributed eligible aggregate employment shares" means, for any relocation, the sum of the number of eligible aggregate employment shares apportioned to such relocation pursuant to paragraph one of this subdivision, less any excess shares determined with respect to such relocation pursuant to paragraph two of this subdivision, plus any excess shares attributed to such relocation pursuant to paragraph three of this subdivision. Except as provided in paragraph four of this subdivision, any eligible aggregate employment shares that are attributed to a relocation to particular premises pursuant to paragraph three of this subdivision shall be treated as eligible aggregate employment shares that are maintained with respect to such premises and shall be subject to all provisions of this chapter and the provisions for a credit against a tax imposed under chapter five or subchapter two, three or three-A of chapter six or chapter eleven of title eleven of the code as such provisions pertain to such relocation.
(1) In the case of a business that has relocated once, all eligible aggregate employment shares are apportioned to the premises to which the single relocation took place. In the case of a business that has relocated more than once, eligible aggregate employment shares are apportioned as follows:
(i) If in a taxable year, the sum for all eligible premises of the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for each particular eligible premises is equal to the total number of eligible aggregate employment shares determined pursuant to such subdivision (i), the number of shares apportioned to each particular eligible premises is the lesser of such amounts for each particular eligible premises;
(ii) If in a taxable year, the sum for all eligible premises of the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for each particular eligible premises is greater than the total number of eligible aggregate employment shares determined pursuant to such subdivision (i), the number of shares apportioned to a particular eligible premises shall be such total number of eligible aggregate employment shares multiplied by a fraction the numerator of which is the lesser of the amounts determined pursuant to paragraphs one and two of subdivision (i) of this section for such premises and the denominator of which is such sum.
(2) "Excess shares" shall mean eligible aggregate employment shares that are apportioned pursuant to paragraph one of this subdivision to a relocation in excess of the limitation amount defined in subparagraphs (i) and (ii) of this paragraph for such relocation.
(i) Subject to the provisions of subparagraph (ii) of this paragraph, for any taxable year in which an eligible business is claiming the credit allowed by section 22-622 of this chapter, the "limitation amount" shall mean:
(A) for one or more relocations in an eligible business' latest year of relocation as determined pursuant to subdivision (j) of this section, the amount, if any, by which the number of aggregate employment shares maintained by the eligible business in the eligible area in the taxable year in which it is claiming the credit authorized by this article exceeds the number of aggregate employment shares maintained by it in the eligible area in the taxable year immediately preceding such year of relocation; or
(B) for one or more relocations in a specified year of relocation that is not the latest such year of relocation by an eligible business, the amount, if any, by which the number of aggregate employment shares maintained by the eligible business in the eligible area in the taxable year in which it is claiming the credit authorized by this chapter exceeds the sum of (I) the number of total attributed eligible aggregate employment shares that are attributed in the taxable year in which the credit is claimed to relocations that took place in years of relocation later than the specified year of relocation and (II) the number of aggregate employment shares maintained by it in the eligible area in the taxable year immediately preceding such specified year of relocation.
(ii) In the case of an eligible business that has relocated more than once in the same taxable year, the limitation amount determined in accordance with subparagraph (i) of this paragraph shall be applied to such relocations in the same proportion as the eligible aggregate employment shares apportioned to such relocations pursuant to paragraph one of this subdivision.
(3) (i) In any taxable year in which there are excess shares, such excess shares, or a portion thereof, from a relocation or relocations that took place in a specified year of relocation shall be attributed in reverse chronological order to any relocations that took place in earlier years of relocation.
(ii) Notwithstanding subparagraph (i) of this paragraph,
(A) no excess shares may be attributed to a relocation unless the number of eligible aggregate employment shares apportioned pursuant to paragraph one of this subdivision to such relocation for the taxable year in which the credit is claimed is less than the highest number of total attributed eligible aggregate employment shares pertaining to such relocation in any taxable year prior to the taxable year in which the credit is claimed;
(B) the sum of the number of shares attributed to such relocation pursuant to subparagraph (i) of this paragraph and the eligible aggregate employment shares apportioned to any such relocation pursuant to paragraph one of this subdivision may not exceed such highest number of total attributed eligible aggregate employment shares; and
(C) such sum may not exceed the limitation amount for such relocation defined in paragraph two of this subdivision.
(4) Notwithstanding the provisions of other paragraphs of this subdivision, any excess shares that are apportioned pursuant to paragraph one of this subdivision to a relocation to particular eligible premises that are not located in a revitalization area as defined in subdivision (n) of this section, but are attributed pursuant to paragraph three of this subdivision to particular eligible premises that are located in such a revitalization area, shall be treated as if such premises to which they are attributed were not in such a revitalization area.
(p) "Particular premises" means all premises occupied by an eligible business within a single building. "Particular eligible premises" means the portion of such particular premises that meets the requirements for eligible premises specified in subdivision (e) of this section.
(q) "Designated additional or replacement premises" means nonresidential premises in the eligible area that (i) are owned or leased by an eligible business that has been certified pursuant to subdivision (b) of section 22-622 of this chapter to receive the credit provided for in this chapter, and (ii) with regard to which such eligible business obtains the certification provided for in subdivision (e) of section 22-622 of this chapter.
(a) An eligible business that relocates as defined in subdivision (j) of section 22-621 of the code shall be allowed to receive a credit against a tax imposed by chapter five, or subchapter two, three or three-A of chapter six, or chapter eleven, of title eleven of the code, as described in subdivision (i) of section 11-503, subdivision seventeen of section 11-604, subdivision seventeen of section 11-654, section 11-643.7 and section 11-1105.2 of the code, and a reduction in base rent subject to tax as described in subdivision f of section 11-704 of the code, provided, however, notwithstanding any other provision of law to the contrary, no such credit shall be allowed against the tax imposed under such chapter eleven for a relocation taking place prior to January first, nineteen hundred ninety-nine.
(b) No eligible business shall be authorized to receive a credit against tax or a reduction in base rent subject to tax under the provisions of this chapter, and of title eleven of the code as described in subdivision (a) of this section, until the premises with respect to which it is claiming the credit meet the requirements in the definition of eligible premises and until it has obtained a certification of eligibility from the mayor or an agency designated by the mayor, and an annual certification from the mayor or an agency designated by the mayor as to the number of eligible aggregate employment shares maintained by such eligible business that may qualify for obtaining a tax credit for the eligible business' taxable year. Any written documentation submitted to the mayor or such agency or agencies in order to obtain any such certification shall be deemed a written instrument for purposes of section 175.00 of the penal law. Application fees for such certifications shall be determined by the mayor or such agency or agencies. No certification of eligibility shall be issued to an eligible business on or after July 31 first, two thousand twenty-five unless:
(1) prior to such date such business has purchased, leased or entered into a contract to purchase or lease particular premises or a parcel on which will be constructed such premises or already owned such premises or parcel;
(2) prior to such date improvements have been commenced on such premises or parcel which improvements will meet the requirements of subdivision (e) of section 22-621 of this chapter relating to expenditures for improvements;
(3) prior to such date such business submits a preliminary application for a certification of eligibility to such mayor or such agency or agencies with respect to a proposed relocation to such particular premises; and
(4) such business relocates to such particular premises not later than thirty-six months or, in a case in which the expenditures made for improvements specified in paragraph two of this subdivision are in excess of fifty million dollars within seventy-two months from the date of submission of such preliminary application.
(c) The mayor or an agency or agencies designated by the mayor shall be authorized to promulgate rules and regulations to administer and assure compliance with the provisions of this chapter, including but not limited to rules and regulations to provide for alternative methods to measure employment shares in instances where an eligible business is not required by law to maintain weekly records of full-time work weeks and part-time work weeks of employees, partners or sole proprietors as defined in subdivision (g) of section 22-621 of this chapter.
(d) An eligible business other than a utility company subject to the supervision of the department of public service shall not be authorized to receive a credit against the gross receipts tax imposed under chapter eleven of title eleven of the code, unless such eligible business elects to take the credit authorized by this section against the tax imposed by such chapter on an application filed with respect to the first relocation of such business that qualifies or will qualify under this section, with the mayor or the agency designated by such mayor pursuant to subdivision (b) of this section. The election authorized by this subdivision may not be withdrawn after the issuance of such certification of eligibility. No taxpayer that has previously received a certification of eligibility to receive such credit against any tax imposed by chapter five or subchapter two, three or three-A of chapter six of title eleven of the code may make the election authorized by this subdivision. No taxpayer that makes the election provided in this subdivision shall be authorized to take such credit against any tax imposed by chapter five or subchapter two, three or three-A of chapter six of title eleven of the code.
(e) Notwithstanding other provisions of this chapter, an eligible business that has obtained pursuant to subdivision (b) of this section a certification of eligibility for a relocation to particular eligible premises may apply to the mayor of such city or an agency designated by such mayor to have premises in a building, other than the building in which such particular eligible premises are located, certified as designated additional or replacement premises as defined in subdivision (q) of section 22-621 of this chapter. After the certification provided for in this subdivision has been obtained, any aggregate employment shares maintained by the eligible business in such premises shall be treated as if such employment shares were maintained in the particular premises to which the eligible business relocated. No such certification shall be issued after the end of the period during which the credit may be taken with regard to the relocation to such particular eligible premises, and the issuance of such certification shall not extend such period. Provided, however, (i) no premises shall be certified as designated additional or replacement premises if the eligible business maintained employment shares in such premises prior to the application for certification provided for in this subdivision, (ii) no premises shall be certified as designated additional or replacement premises unless such premises meet the requirements for eligible premises in subdivision (e) of section 22-621 of this chapter, and (iii) if the particular premises to which the eligible business relocated are in a revitalization zone, no premises shall be certified as designated additional or replacement premises with regard to such relocation unless such designated additional or replacement premises are located in a revitalization zone.
(f) (1) (i) Notwithstanding the provisions of subdivision (i) of section 22-621 of this chapter, in the case of an eligible business meeting the criteria in subparagraphs (ii) and (iii) of this paragraph, the mayor or his or her designee, in his or her discretion, may for any taxable year in which such business is eligible to receive the credit provided for in this section, determine the number of eligible aggregate employment shares as provided in paragraph two of this subdivision, and such number shall be deemed to be the number of eligible aggregate employment shares determined pursuant to such subdivision (i) of section 22-621 for the purpose of attributing shares pursuant to subdivision (o) of section 22-621 of this chapter to relocations as defined in subdivision (j) of such section 22-621 occurring after July first, two thousand three:
(ii) in the case of a relocation before July first, two thousand five, in the taxable year prior to its first relocation after July first, two thousand three (such prior year being hereafter referred to as the "base year"), such eligible business maintained more than one hundred aggregate employment shares in the eligible Lower Manhattan area as defined in subdivision (f) of section 22-623 of this title, provided that in the case of a relocation after June thirtieth, two thousand five, in the taxable year prior to its first relocation after such date (such prior year being hereafter referred to as the "base year"), such eligible business maintained one or more aggregate employment shares in such eligible Lower Manhattan area, and
(iii) in the case of a relocation before July first, two thousand five, in the taxable year subsequent to the base year for which the determination of eligible aggregate employment shares is being made, the number of aggregate employment shares in the eligible Lower Manhattan area maintained by the eligible business is less than the number of aggregate employment shares it maintained in such area in the base year reduced by one hundred, provided that in the case of a relocation after June thirtieth, two thousand five, in the taxable year subsequent to the base year for which the determination of eligible aggregate employment shares is being made, the number of aggregate employment shares in the eligible Lower Manhattan area maintained by the eligible business is less than the number of aggregate employment shares it maintained in such area in the base year.
(2) The number of eligible aggregate employment shares determined under this paragraph shall be the number of eligible aggregate employment shares determined pursuant to subdivision (i) of section 22-621 of this chapter without regard to paragraphs one and three of such subdivision (i), less the reduction amount provided for in paragraph three of this subdivision.
(3) For any taxable year, the reduction amount shall be the excess of (i) the number of aggregate employment shares maintained by the eligible business in the eligible Lower Manhattan area in the base year, over (ii) the number of aggregate employment shares maintained by the eligible business in the eligible Lower Manhattan area in the taxable year.
(4) Notwithstanding anything herein to the contrary, the number of eligible aggregate employment shares may be determined pursuant to paragraph two of this subdivision only if the number of such shares determined pursuant to such paragraph two is less than the number of such shares determined pursuant to subdivision (i) of section 22-621 of this chapter.
(5) The mayor, or his or her designee, may exercise the discretion provided for in paragraph one of this subdivision if he or she determines it to be in the best interests of the city, taking into account whether the credit provided for in this section caused the reduction in the number of jobs maintained by the eligible business in the eligible Lower Manhattan area.
(g) For the duration of the benefit period, the recipient of benefits shall file annually, along with the aforementioned original and annual certificates of eligibility, the average wage and benefits offered to the applicable relocated employees used in determining eligible aggregate employment shares, pursuant to subdivision (i) of section 22-621 of this chapter. The department shall have the authority to require that statements filed under this subdivision be certified.
(Am. 2015 N.Y. Laws Ch. 20 Pt. A § 37, 6/26/2015, eff. 6/26/2015; Am. 2017 N.Y. Laws Ch. 61, 6/29/2017, eff. 6/29/2017; Am. 2020 N.Y. Laws Ch. 56, 4/3/2020, eff. 4/3/2020)