Bill Text: MI SB0539 | 2009-2010 | 95th Legislature | Engrossed

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Bill Title: Michigan business tax; credit; hire Michigan first requirements in the qualified film and digital media infrastructure projects credit; include. Amends sec. 457 of 2007 PA 36 (MCL 208.1457).

Spectrum: Partisan Bill (Republican 4-0)

Status: (Engrossed - Dead) 2009-06-10 - Referred To Second Reading [SB0539 Detail]

Download: Michigan-2009-SB0539-Engrossed.html

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SB-0539, As Passed Senate, May 12, 2009

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 539

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 2007 PA 36, entitled

 

"Michigan business tax act,"

 

by amending section 457 (MCL 208.1457), as added by 2008 PA 86.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 457. (1) Until September 30, 2015, the Michigan film

 

office, with the concurrence of the state treasurer, may enter into

 

an agreement with a taxpayer providing the taxpayer with a credit

 

against the tax imposed by this act for an investment in a

 

qualified film and digital media infrastructure project, as

 

provided under this section. To qualify for the credit under this

 

section, a taxpayer shall meet all of the following requirements:

 

     (a) Before January 1, 2009, invest and expend at least

 

$100,000.00 for a qualified film and digital media infrastructure

 

project in this state; after December 31, 2008, invest and expend

 

at least $250,000.00 for a qualified film and digital media

 

infrastructure project in this state.

 

     (b) Enter into an agreement as provided in this section.

 

     (c) Receive an investment expenditure certificate from the

 

office under subsection (5).

 

     (d) Submit the investment expenditure certificate issued by

 

the office under subsection (5) to the department under subsection

 

(7).

 

     (e) Shall not be delinquent in a tax or other obligation owed

 

to this state or be owned or under common control of an entity that

 

is delinquent in a tax or other obligation owed to this state.

 

     (2) For investment expenditures made by a taxpayer for all

 

qualified film and digital media infrastructure projects in this

 

state, an agreement under this section may provide for the taxpayer

 

to claim a tax credit equal to 25% of the taxpayer's base

 

investment. The credit under this section shall be reduced by any

 

credit claimed by the taxpayer under section 437 for the same base

 

investment. No more than $20,000,000.00 in total credits under this

 

section shall be authorized in a tax year. If all or a portion of a

 

qualified film and digital media infrastructure project is a

 

facility that may be used for purposes unrelated to production or

 

postproduction activities, then the project is eligible for the

 

credit only if the department determines that the facility will

 

support and be necessary to secure production or postproduction

 

activity for the production and postproduction facility and the

 

taxpayer agrees to both of the following:

 

     (a) The facility will be used as a state of the art production

 

or postproduction facility or as support and component of the

 

facility for the useful life of the facility.

 

     (b) A credit will not be claimed under this section until the

 

facility is complete.

 

     (3) A taxpayer seeking a credit under this section may submit

 

an application to enter into an agreement under this section to the

 

Michigan film office. The application shall be submitted in a form

 

prescribed by the Michigan film office and shall be accompanied by

 

a $100.00 application fee and all of the information and records

 

requested by the office. An application fee received by the office

 

under this subsection shall be deposited in the Michigan film

 

promotion fund. The office shall not process the application until

 

it is complete. If the office, with the concurrence of the state

 

treasurer, determines to enter into an agreement under this

 

section, the agreement shall provide for all of the following:

 

     (a) A requirement that construction on the qualified film and

 

digital media infrastructure project commence within 180 days of

 

the date of the agreement or else the agreement shall expire.

 

However, upon request submitted by the taxpayer based on good

 

cause, the office may extend the period for commencement of work

 

for up to an additional 90 days.

 

     (b) A unique number assigned to the qualified film and digital

 

media infrastructure project.

 

     (c) A detailed description of the qualified film and digital

 

media infrastructure project.

 

     (d) A detailed business plan and market analysis for the

 

qualified film and digital media infrastructure project.

 

     (e) A projected budget for the qualified film and digital

 

media infrastructure project.

 

     (f) Estimated start date and completion date for the qualified

 

film and digital media infrastructure project.

 

     (g) A requirement that the taxpayer not file a claim for the

 

credit under this section until at least 25% of the base investment

 

in the qualified film and digital media infrastructure project

 

identified in the agreement has been expended.

 

     (h) A requirement that the taxpayer provide the office with

 

the information and independent certification the office and the

 

department deem necessary to verify investment expenditures and

 

eligibility for the credit under this section.

 

     (i) A requirement that if the cost of tangible assets

 

described in subsection (11)(a) (12)(a) was paid or accrued in a

 

tax year beginning after December 31, 2007, the taxpayer shall

 

repay an amount equal to 25% of the gross proceeds or benefit

 

derived from the sale or other disposition of the tangible assets

 

minus the gain, multiplied by the apportionment factor for the

 

taxable year as prescribed in chapter 3, and plus the loss,

 

multiplied by the apportionment factor for the taxable year as

 

prescribed in chapter 3 from the sale or other disposition

 

reflected in federal taxable income and minus the gain from the

 

sale or other disposition added to the business income tax base in

 

section 201.

 

     (j) Beginning July 1, 2009, a requirement that the taxpayer

 

will not knowingly hire or contract with any business entity that

 

knowingly hires an individual who is not authorized under federal

Senate Bill No. 539 as amended May 12, 2009

 

law to work in the United States.

 

     (4) In determining whether to enter into an agreement under

 

this section, the Michigan film office and the state treasurer

 

shall consider all of the following:

 

     (a) The potential that in the absence of the credit the

 

qualified film and digital media infrastructure project will be

 

constructed in a location other than this state.

 

     (b) The extent to which the qualified film and digital media

 

infrastructure project may have the effect of promoting economic

 

development or job creation in this state.

 

     (c) The extent to which the credit will attract private

 

investment for the production of motion pictures, videos,

 

television programs, and digital media in this state.

 

     (d) The extent to which the credit will encourage the

 

development of film, video, television, and digital media

 

production and postproduction facilities in this state.

 

     (e) Beginning July 1, 2009, if all other considerations are

 

equal, the Michigan film office and the state treasurer shall give

 

preference to a taxpayer that agrees, in writing, to do all of the

 

following:

 

     (i) Hire only residents of this state or individuals who plan

 

on becoming residents of this state <<within 90 days after commencement

of the qualified film and digital media infrastructure project>> to construct, rehabilitate,

 

develop, or renovate a qualified film and digital media

 

infrastructure project that is a facility unless the Michigan film

 

office and the state treasurer determine that the qualified film

 

and digital media infrastructure project cannot be completed by

 

using only residents of this state or individuals who plan on

Senate Bill No. 539 as amended May 12, 2009

 

becoming residents of this state <<within 90 days after commencement of

the qualified film and digital media infrastructure project>> for 1 or

more of the following:

 

     (A) To the extent necessary to comply with federal law or

 

regulation concerning the use of federal funds.

 

     (B) To the extent that key management personnel or individuals

 

with special skills, who are not residents of this state, are

 

needed.

 

     (C) However, for qualified film and digital media

 

infrastructure projects located in a county that borders on another

 

state, if the Michigan film office and the state treasurer

 

determine that the use of nonresidents for the construction,

 

rehabilitation, development, or renovation will not have a

 

significant adverse effect on the employment of residents in this

 

state.

 

     (ii) Contract with businesses that agree to hire only residents

 

of this state or individuals who plan on becoming residents of this

 

state <<within 90 days after commencement of the qualified film and

digital media infrastructure project>> to construct, rehabilitate,

develop, or renovate a qualified

 

film and digital media infrastructure project that is a facility

 

unless the Michigan film office and the state treasurer determine

 

that the qualified film and digital media infrastructure project

 

cannot be completed by using only residents of this state or

 

individuals who plan on becoming residents of this state <<within 90 days

after commencement of the qualified film and digital media infrastructure

project>> for 1 or

more of the following:

 

     (A) To the extent necessary to comply with federal law or

 

regulation concerning the use of federal funds.

 

     (B) To the extent that key management personnel or individuals

 

with special skills, who are not residents of this state, are

 

needed.

 

     (C) However, for qualified film and digital media

 

infrastructure projects located in a county that borders on another

 

state, if the Michigan film office and the state treasurer

 

determine that the use of nonresidents for the construction,

 

rehabilitation, development, or renovation will not have a

 

significant adverse effect on the employment of residents in this

 

state.

 

     (5) If the Michigan film office determines that a taxpayer has

 

complied with the terms of an agreement entered into under this

 

section, the office shall issue an investment expenditure

 

certificate to the taxpayer. The taxpayer shall submit a request to

 

the office for an investment expenditure certificate on a form

 

prescribed by the office, along with any information or independent

 

certification the office or the department deems necessary. The

 

office shall process each request within 60 days after the request

 

is complete. However, the office may request additional information

 

or independent certification before issuing an investment

 

expenditure certificate and need not issue the investment

 

expenditure certificate until satisfied that investment

 

expenditures and eligibility are adequately established. The

 

additional information requested may include a report of

 

expenditures audited and certified by an independent certified

 

public accountant. Each investment expenditure certificate shall be

 

signed by the Michigan film commissioner and shall include the

 

following information:

 

     (a) The name of the taxpayer.

 

     (b) A description of the qualified film and digital media

 

infrastructure project.

 

     (c) The taxpayer's eligible investment expenditures for the

 

qualified film and digital media infrastructure project.

 

     (d) The unique number assigned to the qualified film and

 

digital media infrastructure project by the office under subsection

 

(3).

 

     (e) The taxpayer's federal employer identification number or

 

Michigan treasury number.

 

     (f) Any independent certification required by the department

 

or the Michigan film office.

 

     (6) Information, records, or other data received, prepared,

 

used, or retained by the Michigan film office under this section

 

that are submitted by an eligible production company and considered

 

by the taxpayer and acknowledged by the office as confidential

 

shall not be subject to the disclosure requirements of the freedom

 

of information act, 1976 PA 442, MCL 15.231 to 15.246. Information,

 

records, or other data shall only be considered confidential to the

 

extent that the information or records describe the commercial and

 

financial operations or intellectual property of the company, the

 

information or records have not been publicly disseminated at any

 

time, and disclosure of the information or records may put the

 

company at a competitive disadvantage.

 

     (7) To claim a credit under this section, a taxpayer shall

 

submit an investment expenditure certificate issued under

 

subsection (5) to the department. If the credit allowed under this

 

section exceeds the amount of taxes owed by the taxpayer under this

 

act for a tax year, that portion of the credit that exceeds the tax

 

liability of the taxpayer for the tax year shall not be refunded

 

but may be carried forward to offset tax liability under this act

 

in subsequent tax years for a period not to exceed 10 tax years or

 

until used up, whichever occurs first.

 

     (8) The credit under this section shall be claimed after all

 

other credits under this act. A taxpayer eligible to claim a credit

 

under this section may assign all or a portion of a credit under

 

this section to any assignee. An assignee may subsequently assign a

 

credit or any portion of a credit assigned under this subsection to

 

1 or more assignees. A taxpayer may claim a portion of a credit and

 

assign the remaining credit amount. A credit assignment under this

 

subsection is irrevocable. The credit assignment under this

 

subsection shall be made on a form prescribed by the department. A

 

taxpayer claiming a credit under this section shall send a copy of

 

the completed assignment form to the department in the tax year in

 

which the assignment is made and shall attach a copy of the form to

 

the return on which the credit is claimed.

 

     (9) The amount of the credit under this section shall be

 

reduced by a credit application and redemption fee equal to 0.5% of

 

the credit claimed, which shall be deducted from the credit

 

otherwise payable to the taxpayer claiming the credit and be

 

deposited by the department in the Michigan film promotion fund.

 

     (10) A taxpayer that willfully submits information under this

 

section that the taxpayer knows to be fraudulent or false shall, in

 

addition to any other penalties provided by law, be liable for a

 

civil penalty equal to the amount of the taxpayer's credit under

 

this section. A penalty collected under this section shall be

Senate Bill No. 539 as amended May 12, 2009

 

deposited in the Michigan film production promotion fund.

 

     (11) The Michigan film office shall report to <<the governor, the

 

president of the Michigan strategic fund, the chairperson of the senate

finance committee, and the chairperson of the house tax policy committee

by March 1, 2010>> and March 1 each year

 

after <<2010>> regarding agreements under this section entered into on

 

and after July 1, 2009. The report shall include, but is not

 

limited to, the following:

 

     (a) The number of Michigan residents employed in jobs created

 

by the construction, rehabilitation, development, or renovation of

 

qualified film and digital media infrastructure projects in the

 

immediately preceding year.

 

     (b) The total number of jobs created by the construction,

 

rehabilitation, development, or renovation of qualified film and

 

digital media infrastructure projects in the immediately preceding

 

year.

 

     (c) The specific reasons for each determination of exemption

 

from the provisions of subsection (4)(e)(i) or (ii) made by the

 

Michigan film office and the state treasurer and the number of jobs

 

related to each determination.

 

     (12) (11) As used in this section:

 

     (a) "Base investment" means the cost, including fabrication

 

and installation, paid or accrued in the taxable year of tangible

 

assets of a type that are, or under the internal revenue code will

 

become, eligible for depreciation, amortization, or accelerated

 

capital cost recovery for federal income tax purposes, provided

 

that the assets are physically located in this state for use in a

 

business activity in this state and are not mobile tangible assets

 

expended by a person in the development of a qualified film and

 

digital media infrastructure project. Base investment does not

 

include a direct production expenditure or qualified personnel

 

expenditure eligible for a credit under section 455.

 

     (b) "Michigan film office" or "office" means the Michigan film

 

office created under chapter 2A of the Michigan strategic fund act,

 

1984 PA 270, MCL 125.2029 to 125.2029g.

 

     (c) "Michigan film promotion fund" means the fund created

 

under chapter 2A of the Michigan strategic fund act, 1984 PA 270,

 

MCL 125.2029 to 125.2029g.

 

     (d) "Qualified film and digital media infrastructure project"

 

means a film, video, television, or digital media production and

 

postproduction facility located in this state, movable and

 

immovable property and equipment related to the facility, and any

 

other facility that is a necessary component of the primary

 

facility. A qualified film and digital media infrastructure project

 

does not include a movie theater or other commercial exhibition

 

facility, a facility used to produce obscene matter or an obscene

 

performance as described in 1984 PA 343, MCL 752.361 to 752.374, or

 

a facility used for a production for which records are required to

 

be maintained with respect to any performer in the production under

 

18 USC 2257.