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a. First building permit. For purposes of these rules, the first building permit is the permit that would allow the construction work that is the subject of the ICAP application to proceed, even though:
(i) such permit was granted before submission of completed plans and specifications for the entire building; or
(ii) such permit shall have expired by limitation of time or otherwise become invalid; or
(iii) another permit is issued for the same project on the basis of same or similar plans, subject to the provisions of 19 RCNY § 36-05(a).
c. A demolition permit will not be considered to be a first building permit, except as set forth in 19 RCNY § 36-06(d).
(Added City Record 2/10/2017, eff. 3/12/2017)
a. A project will be deemed a new project if one of the following conditions applies:
(1) a building permit was previously issued for the project and an applicant has shown that there is a change in the project for which a new building permit is issued which meets at least one of the following criteria:
(i) change in the total estimated cost of the project of at least 10 percent as certified by the applicant; or
(ii) change in the total floor area of the project of at least 10 percent; or
(iii) change in use.
For purposes of the requirements of filing a preliminary application pursuant to 19 RCNY § 36-03(b), the previously issued building permit will be deemed to be the first building permit for a project that meets the requirements specified in this paragraph but does not meet the requirements specified in Paragraph (2) of this subdivision.
(2) a building permit was previously issued for the project and an applicant has shown that there is a change in the project which meets at least one of the following criteria:
(i) the current project will require an estimated expenditure at least twice as great as the project for which a building permit was previously issued, where the estimated expenditures of the project for which a building permit was previously issued and of the current project are each measured as if construction commenced on the date of each such project's preliminary application as certified by the applicant; or
(ii) the current project will enclose floor area to be used for industrial or commercial purposes that is at least twice as great as the floor are of the project for which the prior permit was issued.
For purposes of the requirements of filing a preliminary application pursuant to 19 RCNY § 36-03(b), a new building permit will be deemed to be the first building permit for a project that meets the requirements specified in this paragraph.
(3) the application for the project is made either:
(i) more than four years after issuance of the building permit for the prior completed project; or
(ii) for a new project in a discrete, separate part of the building than the project that was the subject of the prior building permit.
(4) the project consists of alteration work that is not specified in a previously issued building permit or associated plan and for which a preliminary application was not previously filed.
b. A project will be deemed abandoned where the applicant establishes that either (i) construction work was commenced by an applicant and has ceased for at least two continuous years at the time a preliminary application is filed for the new project or (ii) that construction work was not commenced pursuant to the previously issued building permit and at least two years have passed between the issuance of such previously issued building permit and the time a preliminary application is filed for the project.
For purposes of the requirements of filing a preliminary application pursuant to 19 RCNY § 36-03(b), a subsequent building permit will be deemed to be the first building permit for a project that meets the requirements specified in this paragraph.
(Added City Record 2/10/2017, eff. 3/12/2017)
a. For purposes of determining the minimum required expenditure, the abatement base and all other purposes, construction work will be eligible for tax abatement benefits under this program if the work is:
(1) A permanent capital improvement to real property with a useful life of at least three years;
(2) Described or integrally related to work described in the approved plans or narrative description submitted as part of the application;
(3) Performed during the construction period which is five years after issuance of the first building permit, or if no permit was required, after the commencement of construction; and
(4) Not rendered ineligible by any provision of law or these rules, or by any agreement made as part of the application.
b. Renovations. Renovations that are eligible construction work for abatement benefits include, but are not limited to, the following, provided that such renovations are deemed to enhance the value of the property:
(1) Renovations that increase the square footage or cubic content of an existing building; or
(2) Modernization of core facilities including:
(i) Upgrading of electrical and plumbing systems;
(ii) Installation of new elevators and elevator banks;
(iii) Renovation or new installation of the exterior of a structure;
(iv) Major upgrading of lobby space;
(v) Reconfiguration of multi-tenant floor space to single tenant space;
(vi) Installation of central HVAC systems;
(vii) Major abatement of asbestos contamination;
(viii) Conversion of obsolete office space into functional space; or
(ix) Major conversion of a building's use involving structural changes.
c. Work not deemed to be eligible construction work. Construction work that is not eligible for tax abatement benefits pursuant to this section includes:
(1) Ordinary repairs, replacements or redecoration;
(2) Placement of personal property that remains personal property;
(3) Extension of streets, sewers, water or utility systems to a site not provided with such services; or
(4) Installation of satellite dishes, billboards, or cellular and microwave antennae.
d. Earthwork or partial demolition. Earthwork or partial demolition will be included in the construction work on a project if the following two conditions are met:
(1) the earthwork or partial demolition is integrally related to the other construction work on the project and is commenced not more than one year after the date that a preliminary application was filed; and
(2) the applicant requests inclusion of the earthwork or partial demolition in the preliminary application or a subsequent notice filed at least 15 business days before the commencement of the earthwork or partial demolition and before a permit for the earthwork or partial demolition is issued.
e. In the case of an abandoned project, only construction work that is the subject of a newly issued or renewal permit will be eligible for abatement benefits. Eligible construction for an abandoned project will qualify for benefits only if it is the subject of a preliminary application filed prior to the date on which the new or renewal permit was issued.
f. Construction work that is part of a project which is the subject of an approved application may not be considered eligible construction work for a future application for tax abatement benefits for the same property, building or structure under this chapter.
g. (1) No ICAP benefits will be granted for residential construction work, or for work on a structure or building where 20 percent or more of the rentable square footage of such property is or will be dedicated to residential purposes, provided however that where less than 5 percent of a property's rentable square footage is or will be dedicated to residential purposes, that use will be considered negligible and will not be considered in determining ICAP benefits.
(2) Notwithstanding Paragraph (1) of this subdivision, where a building or structure is owned in condominium form, and an application for benefits under this chapter includes more than one property in the same condominium, then for purposes of this paragraph, the 5 percent and 20 percent of the rentable square footage shall be determined based upon the aggregate usage of all such properties.
h. Notwithstanding the foregoing, for purposes of determining whether a project is completed within the time required to secure the inflation protection benefits described in 19 RCNY § 36-10(l), eligible construction work may include construction work done more than four years, but not more than five years, from the date of the issuance of the first building permit or from the start of construction if no permit was required.
(Added City Record 2/10/2017, eff. 3/12/2017)
a. The minimum required expenditure is based on a percentage of the property's final taxable assessed value, without regard to any exemptions, for the tax year with a taxable status date immediately preceding the issuance of the first building permit, or if no permit was required, the commencement of construction. For commercial construction work the minimum required expenditure is 30 percent. Expenditures for residential construction work or construction work on portions of property to be used for restricted activities will not be included in the minimum required expenditure. For the additional industrial construction abatement set forth in 19 RCNY § 36-11, the minimum required expenditure is 40 percent.
b. Eligible expenditures. Expenditures include but are not limited to those made for:
(1) construction contracts;
(2) materials, labor, equipment rental, insurance, permit fees and other direct expenses of construction;
(3) installation of partitions and other tenant work by or for the tenant or occupant of new or substantially renovated space;
(4) architectural, engineering, construction management, legal, accounting and other professional services rendered in connection with the construction work to the extent that the total of all such fees do not exceed 10 percent of the expenses incurred for direct construction costs;
(5) site preparation, such as the erection of partitions, fences, barricades, scaffolding, temporary walkways, removal of debris or any similar work allocable to the project; and
(6) fees for connection to existing sewer, water or utility lines.
c. Ineligible expenditures. The following are ineligible expenditures:
(1) the costs of selecting or acquiring the site;
(2) the costs of determining the feasibility of the project;
(3) the costs of moving or installing machinery or equipment, except the cost of installing equipment that is real property and installed as part of the project;
(4) charges to any reserve, contingency or sinking fund;
(5) the costs of earthwork or demolition except as provided in 19 RCNY § 36-06(d);
(6) the costs or payments for the extension of streets, sewers, water lines or other public utilities to a site not provided with these services; and
(7) the cost or payments associated with vacating the site or existing buildings such as terminating existing leases or tenancies.
d. Expenditures for construction work for mixed use properties related to the common areas and systems of such property will be allocated, if applicable, between the residential, nonresidential and retail portions of the property based on a pro rata square footage basis.
e. No later than 60 days after the minimum required expenditure must be made – four years from the date of the first building permit, or from the start of construction if no permit was required – the applicant must submit to the department a certified statement that the applicant has made the minimum required expenditure as required by this chapter.
(Added City Record 2/10/2017, eff. 3/12/2017)
a. No benefits will be granted under ICAP for property that is concurrently receiving any other exemptions or abatements except for exemptions pursuant to Real Property Tax Law Sections 420(a) or (b) or 459(b), or for any other exemptions granted to the primary residence of the applicant.
b. If the property is currently receiving ICIP benefits, it will not be eligible for ICAP benefits unless the applicant can show, through documents such as permits, plans and other documentation, that the new ICAP project is a new separate project in a discrete, separate part of the building which is different from the ICIP project. If the new ICAP project is not deemed by the department to be a separate project in a discrete separate part of the building, the applicant may submit a new ICAP application for approval while they are receiving ICIP benefits but will not be eligible to receive ICAP benefits until the current ICIP benefits have expired. An approved ICAP applicant will not receive ICAP benefits for such period of ineligibility though the schedule for such benefits will begin upon ICAP approval. ICAP benefits will be based on the tax year that such benefits commence. For example, if the ICIP benefits expire in tax year 2018 and if ICAP benefits would have otherwise commenced in tax year 2016, the ICAP benefits for tax year 2016 and tax year 2017 will not be granted and the ICAP benefits will begin in tax year 2018 in accordance with the ICAP schedule for tax year 3. However, if the Department deems the new ICAP project to be a separate project in a discrete separate part of the building, the applicant may submit a new ICAP application for approval while they are receiving ICIP benefits and will be eligible to receive ICAP benefits while the current ICIP benefits are in effect.
c. No ICAP benefits will be granted for any property unless required income and expenses statements are filed for the tax year for the assessment roll with a taxable status date immediately preceding the first building permit or if no permit was required, the commencement of construction. ICAP benefits will also not be granted for any property, unless income and expense statements are filed for all subsequent tax years, up to and including the tax year with a taxable status date immediately following the earlier of the completion of construction or four years from the date of issuance of the first building permit, or if no permit was required, the commencement of construction.
d. As a condition of eligibility for benefits under this program, there must be no arrears in real property taxes or other charges imposed by the City of New York on the property for all years prior to the post-completion year unless such arrears are subject to an installment agreement with the department and all installments that have come due under the agreement have been paid. The post completion year is the tax year with the first taxable status date where the applicant is otherwise eligible to receive ICAP abatement benefits.
(Added City Record 2/10/2017, eff. 3/12/2017)
Upon approval by the department of a final application for benefits, the first year of the abatement shall be the tax year with the first taxable status date that follows the earlier of (a) completion of construction, or (b) four years from the date the first building permit was issued, or if no permit was required, the commencement of construction.
(Added City Record 2/10/2017, eff. 3/12/2017)
a. Abatement amount. The abatement amount is equal to the product of the abatement base times the percentage for the applicable year indicated in the applicable schedule set forth in 19 RCNY § 36-12.
b. Abatement base. The abatement base is the amount that the post completion tax liability exceeds 115% of the initial tax liability for each type of abatement except for the additional industrial abatement as defined in 19 RCNY § 36-11.
c. The calculation of initial and post completion tax liability is based on the lower of the actual or transitional assessed value of the building.
d. The initial tax liability is the liability for the building or structure on the tax roll with a taxable status date preceding the first building permit or commencement of construction if no permit is required.
e. Calculation of initial tax liability. The product of the taxable assessed value ("AV") for the building or structure (without regard to any tax exemption that may be applicable to the property) for the assessment roll with a taxable status date preceding the first building permit or commencement of construction if no permit is required is multiplied by the initial tax rate. The initial tax rate is the final tax rate applicable to the assessment roll with a taxable status date immediately preceding the issuance of the first building permit. If no building permit was required, the initial tax rate shall be determined based on the assessment roll with a status date immediately preceding the commencement of construction.
f. If the initial tax or the post-completion tax attributable to a mixed-use property must be apportioned to determine the tax attributable to a particular use for any purpose under these rules, the tax will be apportioned using the same method used by the department to value property for tax and assessment. This includes, but is not limited to, determining the abatement base or the minimum required expenditure, or if the tax must be apportioned among newly apportioned tax lots, Methods that may be considered, individually or in combination include:
(1) the land area of each portion;
(2) the square footage of the building or structure used or dedicated to each purpose;
(3) the market value of the building situated on each portion;
(4) the location of each portion on the lot;
(5) the topography of the lot;
(6) zoning and other land use restrictions applicable to the lot or portion thereof;
(7) analyses of income factors relating to each portion;
(8) analyses of cost factors; and
(9) other relevant factors.
If any tax lot included in a project that is the subject of a pending or approved final application for ICAP benefits is subdivided, the applicant must file an amendment to the final application designating the tax lots that constitute the property that is the subject of the application. The Department shall allocate the initial and, if applicable, the post construction assessed values based on the allocation of the historical assessments made pursuant to Subdivision 5 of Section 1805 of the real property tax law.
g. At no time during the abatement benefit period may the abatement reduce the amount of taxes imposed on the land portion of the assessment, nor may it reduce the initial tax liability imposed on the building or structure, except for the additional industrial abatement as described in 19 RCNY § 36-11.
Example: Commercial construction work outside of a special commercial abatement area. Preliminary application filed 7/1/2008; first building permit issued 8/1/2008. Project consists of commercial construction work to renovate and modernize the building.
In this case, the initial tax liability is based on the FY2008/09 tax liability (assessment roll with a taxable status date preceding the first building permit)
Section 1805 of the real property tax law requires that certain changes to assessed valuation ("AV") be phased in over a number of years rather than one year. This is transitional AV.
Actual AV | Transitional AV | |
Total AV | $1,100,000 | $900,000 |
Land AV | $400,000 | $300,000 |
Building AV | $700,000* | $600,000* |
Initial Tax Liability | $60,000** | $600,000 x 0.10 |
* The initial tax liability will be based on the lower of the building actual AV or building transitional AV.
** FY 2008/09 Tax Rate Assume an initial tax rate of 10% for 2008/09 for illustrative purposes
h. The post-completion tax liability is the tax liability for the building or structure on the tax roll with a taxable status date immediately following the earlier of completion of construction, or four years from the date of issuance of the first building permit or commencement of construction, if no building permit was required, multiplied by the initial tax rate.
Example: In this case, the construction was completed by November 2011; therefore, the post completion tax is based on the 2012/13 AV roll (taxable status date January 5, 2012). The AV for the building on that assessment roll was:
Actual AV | Transitional AV | |
Building AV | $1,100,000 | $1,000,000 |
FY 2008/09 Tax Rate of 10% | .10 | .10 |
Post Completion Tax | $110,000* | $100,000* |
* Post completion tax is based on the lower of the actual AV or transitional AV.
The abatement base is equal to the post-completion tax liability less 115% of the initial tax liability.
Post Completion Tax Liability | $100,000 |
Initial Tax Liability | $60,000 |
115% of Initial Tax Liability | $69,000 |
Abatement Base | $31,000 |
i. Abatement benefits will not in any year exceed the property taxes imposed on such property.
j. If a tax lot has multiple structures with both eligible and non-eligible uses, the initial tax will be apportioned and only the eligible portion will receive the abatement.
k. (1) The availability of ICAP benefits for retail use is limited in the following cases:
(i) No more than 10 percent of gross square footage in industrial and commercial buildings in special commercial abatement areas used for retail purposes is eligible to receive a 25 year abatement benefit. If more than 10 percent of the property is used for retail purposes, the portion exceeding the 10 percent retail use will be eligible for a 15 year abatement benefit.
(ii) For renovation areas in Manhattan, any retail use in excess of 5 percent of the building(s) gross square footage will be ineligible for ICAP benefits, except in the Lower Manhattan renovation area, as set forth in 19 RCNY § 36-02(c)(1), where there will be no limit on portion of gross square footage dedicated to retail use.
(2) The determination of the percent of gross square footage used for retail purposes shall be based on the gross square footage of the entire building in all cases, including those where the ICAP application relates to one or more condominium units in the building.
(3) In a building in which at least 10% of the gross square footage is dedicated exclusively to industrial or commercial purposes other than retail purposes, the gross square footage of retail space shall not include space used for common building mechanical equipment, maintenance or circulation.
l. Inflation Protection.
(1) Inflation protection for industrial construction projects. Inflation protection is available during years 2 through 13 of the abatement period if in such year there is an increase in the tax over the immediately preceding year resulting from an increase in the property's total taxable assessed value. The new increase in tax liability, based upon the increase in taxable assessed value, will be added to the abatement base using the initial tax rate.
For industrial construction projects the inflation protection is the full amount of the increase in taxes based upon the initial tax rate, unless there is a physical change from the immediately preceding year and the increase in taxable assessed value due to such physical change is more than 5 percent of the taxable assessed value for the immediately preceding year. Under such circumstances, none of the increase in tax liability, whether the increase in taxable assessed value is solely the result of a physical change or a combination of physical change and non-physical change, may be added to the abatement base. For industrial projects the percentage of retail use does not have any impact on eligibility for inflation protection.
(2) Inflation protection for commercial projects in special commercial abatement areas. Inflation protection is available during years 2 through 13 of the abatement period if in any such year there is an increase in taxable assessed value of more than 5 percent of the initial tax rate. The increase in tax liability based upon the increase in taxable assessed value that is more than 5 percent calculated using the initial tax rate will be added to the abatement base.
However, no inflation protection will be provided for commercial projects in special commercial abatement areas where there is a physical change from the immediately preceding year and the increase in taxable assessed value due to such physical change is more than 5 percent of the taxable assessed value for the immediately preceding year. Under such circumstances, none of the increase in tax liability, whether the increase in taxable assessed value is solely the result of a physical improvement or a combination of physical improvement and equalization, may be added to the abatement base. For commercial projects in special commercial areas the percentage of retail use does not have any impact on eligibility for inflation protection. If the building is currently receiving inflation protection for one ICAP project and any additional ICAP projects are approved that qualify for inflation protection, the inflation protection for the current ICAP project will be terminated and inflation protection benefits for the most recently approved ICAP project will commence upon such termination.
Hotels located in special commercial abatement areas are eligible for the inflation protection set forth in this paragraph.
Examples: In the examples below, inflation protection is provided on the calculation of total abatement base for commercial construction projects in a special commercial abatement area when the retail portion of the square footage of the project is not more than 10% (Example 1), as well as when the retail portion is more than 10% of the square footage of the project (Example 2).
Example 1: Commercial construction in special commercial abatement area – retail not more than 10% of square footage (equalization increases in taxable assessed value).
Percent Increase in Taxable Assessed Value | Benefit Period | Post Completion Tax Liability | Initial Tax Rate | Addition to Abatement Base Due to Inflation Protection | Total Abatement Base | Yearly Abatement Percentage |
Percent Increase in Taxable Assessed Value | Benefit Period | Post Completion Tax Liability | Initial Tax Rate | Addition to Abatement Base Due to Inflation Protection | Total Abatement Base | Yearly Abatement Percentage |
YR 1 | 100,000 | 10% | 31,000 | 100% | ||
3% | YR 2 | 103,000 | 10% | 31,000 | 100% | |
6% | YR 3 | 109,180 | 10% | 1,030 | 32,030 | 100% |
6% | YR 4 | 115,731 | 10% | 1,092 | 33,122 | 100% |
4% | YR 5 | 120,360 | 10% | 33,122 | 100% | |
3% | YR 6 | 123,971 | 10% | 33,122 | 100% | |
2% | YR 7 | 126,450 | 10% | 33,122 | 100% | |
6% | YR 8 | 134,037 | 10% | 1,265 | 34,387 | 100% |
3% | YR 9 | 138,058 | 10% | 34,387 | 100% | |
1% | YR 10 | 139,439 | 10% | 34,387 | 100% | |
1% | YR 11 | 140,833 | 10% | 34,387 | 100% | |
2% | YR 12 | 143,650 | 10% | 34,387 | 100% | |
3% | YR 13 | 147,960 | 10% | 34,387 | 100% | |
4% | YR 14 | 153,878 | 10% | 34,387 | 100% | |
2% | YR 15 | 156,956 | 10% | 34,387 | 100% | |
4% | YR 16 | 163,234 | 10% | 34,387 | 100% | |
3% | YR 17 | 168,131 | 10% | 34,387 | 90% | |
2% | YR 18 | 171,494 | 10% | 34,387 | 80% | |
4% | YR 19 | 178,354 | 10% | 34,387 | 70% | |
5% | YR 20 | 187,272 | 10% | 34,387 | 60% | |
6% | YR 21 | 198,508 | 10% | 34,387 | 50% | |
3% | YR 22 | 204,463 | 10% | 34,387 | 40% | |
2% | YR 23 | 208,552 | 10% | 34,387 | 30% | |
1% | YR 24 | 210,638 | 10% | 34,387 | 20% | |
2% | YR 25 | 214,851 | 10% | 34,387 | 10% | |
Example 2: Commercial construction in special commercial abatement area – retail more than 10% of square footage (equalization increases in taxable assessed value). The retail space is 25% of square footage.
Percent Increase in Taxable Assessed Value | Benefit Period | Post Completion Tax Liability | Initial Tax Rate | Addition to Abatement Base Due to Inflation Protection | Total Abatement Base | Abatement Base for Commercial Plus 10% Retail | Yearly Abatement Percentage | Abatement Base for Retail over 10% | Yearly Abatement Percentage |
Percent Increase in Taxable Assessed Value | Benefit Period | Post Completion Tax Liability | Initial Tax Rate | Addition to Abatement Base Due to Inflation Protection | Total Abatement Base | Abatement Base for Commercial Plus 10% Retail | Yearly Abatement Percentage | Abatement Base for Retail over 10% | Yearly Abatement Percentage |
YR 1 | 100,00 0 | 10% | 31,000 | 26,350 | 100% | 4,650 | 100% | ||
3% | YR 2 | 103,00 0 | 10% | 31,000 | 26,350 | 100% | 4,650 | 100% | |
6% | YR 3 | 109,18 0 | 10% | 1,030 | 32,030 | 27,226 | 100% | 4,804 | 100% |
6% | YR 4 | 115,73 1 | 10% | 1,092 | 33,122 | 28,154 | 100% | 4,968 | 100% |
4% | YR 5 | 120,36 0 | 10% | 33,122 | 28,154 | 100% | 4,968 | 100% | |
3% | YR 6 | 123,97 1 | 10% | 33,122 | 28,154 | 100% | 4,968 | 100% | |
2% | YR 7 | 126,45 0 | 10% | 33,122 | 28,154 | 100% | 4,968 | 100% | |
6% | YR 8 | 134,03 7 | 10% | 1,265 | 34,387 | 29,229 | 100% | 5,158 | 100% |
3% | YR 9 | 138,05 8 | 10% | 34,387 | 29,229 | 100% | 5,158 | 100% | |
1% | YR 10 | 139,43 9 | 10% | 34,387 | 29,229 | 100% | 5,158 | 100% | |
1% | YR 11 | 140,83 3 | 10% | 34,387 | 29,229 | 100% | 5,158 | 100% | |
2% | YR 12 | 143,65 0 | 10% | 34,387 | 29,229 | 80% | 5,158 | 80% | |
3% | YR 13 | 147,96 0 | 10% | 34,387 | 29,229 | 60% | 5,158 | 60% | |
4% | YR 14 | 153,87 8 | 10% | 34,387 | 29,229 | 40% | 5,158 | 40% | |
2% | YR 15 | 156,95 6 | 10% | 34,387 | 29,229 | 20% | 5,158 | 20% | |
(3) Industrial construction work on a peaking unit will have the same inflation protection as other industrial construction projects.
(4) A property receiving abatement benefits for both industrial and commercial construction is eligible for the inflation protection provided under this section based upon the predominant use of the property as determined by the department.
(5) Time limit for completion of construction. Construction of buildings or structures must be completed no later than five years from the date of issuance of the first building permit, or if no permit was required, the commencement of construction. Failure to meet this requirement will result in the termination of any inflation protection provided under this subdivision for any tax year that begins following the date by which completion of construction is required.
(Added City Record 2/10/2017, eff. 3/12/2017)
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