5 CRR-NY 230.2NY-CRR

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 5. DEPARTMENT OF ECONOMIC DEVELOPMENT
CHAPTER XXIII. EMPIRE STATE POST PRODUCTION TAX CREDIT PROGRAM
PART 230. EMPIRE STATE POST PRODUCTION TAX CREDIT PROGRAM
5 CRR-NY 230.2
5 CRR-NY 230.2
230.2 Definitions.
As used in this Part, the following terms shall have the following meanings:
(a) Authorized applicant means a qualified film production company that is scheduled to begin post production on a qualified film no more than 180 days after submitting an initial application to the department.
(b) Certificate of conditional eligibility means a certificate issued by the department which states that the authorized applicant has met the criteria set forth in section 230.6(a) of this Part and is being considered for the Empire State Post Production Tax Credit, pending successful completion and approval of the final application. Such certificate shall include, but not be limited to, the following information: name and address of the authorized applicant, effective date, taxpayer identification number, a statement that the initial application meets the criteria for conditional eligibility under section 230.6(a)(1)-(9) of this Part and a disclaimer stating that actual receipt of the tax credit is subject to completion and approval of the final application.
(c) Certificate of tax credit means a certificate issued by the department which states the amount of the Empire State Post Production Tax Credit that an approved applicant has qualified for based on the department’s analysis under section 31 of the Tax Law and the provisions of this Part. Such certificate shall include, but not be limited to, the following information: name and address of the approved applicant, name of the qualified film to which the credit applies, the amount of the tax credit to be received by the approved applicant, allocation year of the tax credit earned, a disclaimer stating that the tax credit shall not be claimed before the later of either the taxable year the production of the qualified film is complete or the taxable year immediately following the allocation year for which the film has been allocated a credit and a disclaimer stating that actual receipt of the tax credit is subject to the statutory maximum amount of credits that are allocated for the program.
(d) Commissioner means the Commissioner of the New York State Department of Economic Development.
(e) Completeness of the application means that all questions on the application itself are fully addressed by the applicant and that any additional substantiating documents that are requested by the department are provided.
(f) Completion of a qualified film means that the process of post production of a qualified film has been finished and a cut negative, video master or other final locked form of the qualified film is ready for the striking of prints or electronic copies, and/or ready for broadcast or delivery to a distributor. All activities and expenses related to marketing and distribution, including, but not limited to, the making of release prints, video dupes or other forms of copies, promotional images, and poster art are considered to occur after the production of a qualified film is completed.
(g) Department means the New York State Department of Economic Development.
(h) End credit requirements means that a qualified film production company that has applied for credit under the provisions of this Part agrees, as a condition for the granting of the credit, either to include in the end credits of each qualified film the phrase “This Production Participated in the New York State Governor’s Office for Motion Picture & Television Development’s Post Production Credit Program” and a logo provided by the Governor's Office of Motion Picture and Television Development or to include in each qualified film distributed by dvd, or other media for the secondary market, a New York promotional video approved by the Governor's Office of Motion Picture and Television Development.
(i) Feature-length film means a production intended for commercial distribution to a motion picture theater or directly to the consumer viewing market that has a running time of at least 75 minutes in length.
(j) Final application means a document created by the department and submitted by an applicant after it has completed post production of a qualified film which contains information concerning actual post production expenditures regarding a qualified film that could make it eligible for the Empire State Post Production Tax Credit under section 31 of the Tax Law and the provisions of this Part. Such application shall include, but not be limited to: actual data with regard to the qualified film’s total post production budget, the total post production costs at post production facilities in and outside of New York and any other information the department determines is necessary.
(k) Initial application means a document created by the department and submitted by an authorized applicant which contains information concerning projected post production expenditures regarding a qualified film that could make it eligible for the Empire State Post Production Tax Credit under section 31 of the Tax Law and the provisions of this Part. Such application shall include, but is not limited to, the following information: the estimated total post production budget for the qualified film, estimates of post production expenditures at qualifying post production facilities, estimates of post production expenditures in New York State and outside of New York State and any other information the department determines is necessary.
(l) Principally engaged in the production and post production of a qualified film and controls the qualified film during production and post production means that the legal entity is responsible for payment of the direct production expenses (including pre- and post-production) and is a signatory to the qualified film’s contracts with its payroll company, post production facility operators and all vendors.
(m) Post production costs means costs for production of original content for a qualified film employing traditional, emerging and new workflow techniques used in post-production for picture, sound and music editorial, rerecording and mixing, visual effects, graphic design, original scoring, animation, and musical composition; but shall not include the editing of previously produced content for a qualified film or the salary of music composers. Post production costs shall not include:
(1) costs for a story, script or scenario to be used for a qualified film;
(2) licensing or rights associated with the production of a qualified film; and
(3) wages or salaries or other compensation for writers, directors, including music directors, producers and performers (other than background actors with no scripted lines).
(n) Post production facility means a building and/or complex of buildings and their improvements on which films are intended to be post produced.
(o) Premature application means an initial application in which the department reasonably determines that the applicant cannot commence post production within 180 days of the date the initial application was submitted. Such determination shall be based on, among other things, vagueness of the applicant’s answers on the initial application and during the initial interview and lack of documentation supporting an applicant’s initial application.
(p) Program means the Empire State Post Production Tax Credit Program.
(q) Qualified film means a feature-length film, television film, relocated television production, television pilot and/or each episode of a television series, regardless of the medium by means of which the film, pilot or episode is created or conveyed. Qualified film shall not include:
(1) a documentary film, news or current affairs program, interview or talk program (unless such talk program is a relocated television production pursuant to paragraph [8] of subdivision [b] of section 24 of the Tax Law), how-to (i.e., instructional) film or program, film or program consisting primarily of stock footage, sporting event or sporting program, game show, award ceremony, film or program intended primarily for industrial, corporate or institutional end-users, fund-raising film or program, daytime drama (i.e., daytime soap opera), commercials, music videos or “reality” program;
(2) a production for which records are required under section 2257 of title 18, United States Code, to be maintained with respect to any performer in such production (reporting of books, films, etc. with respect to sexually explicit conduct); or
(3) a compilation of short films or webisodes aggregated to meet either the definition of television film or television series under these regulations. Title 18, United States Code, is available for public inspection and copying at the following address: New York State Department of Economic Development, 625 Broadway, 8th Floor, Albany, NY 12245.
(r) Qualified film production company means a corporation, partnership, limited partnership, or other entity or individual which or who is principally engaged in the production of a qualified film and controls the qualified film during production.
(s) Qualified post production costs means post production costs only to the extent such costs are attributable to the use of tangible property or the performance of services within New York State directly and predominantly in the post production of a qualified film. For the purpose of this definition, “attributable to the use of tangible property or the performance of services within New York State” shall only include costs and their pro rata portions which are incurred directly in New York State.
(t) Qualified post production facility means a post production facility located in New York State, engaged in finishing a qualified film.
(u) Television pilot means the initial episode produced for a proposed television series. This category will include shorter formats which are known as television presentation, a production of at least 15 minutes in length, produced for the purposes of selling a proposed television series, but not intended for broadcast.
(v) Television series means a regularly occurring production intended to run in its initial broadcast, regardless of the medium or mode of its distribution, in a series of narrative and/or thematically related episodes that have a running time of at least 30 minutes in length each (inclusive of commercial advertisement and interstitial programming if any).
(w) Third party inspection means an inspection conducted by a qualified certified public accountant of an applicant’s final application using agreed upon procedures as prescribed by the department to verify that all criteria pursuant to section 230.6(b) of this Part have been met. Such agreed upon procedures shall be posted online.
5 CRR-NY 230.2
Current through March 31, 2021
End of Document