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July 17, 2009

Senate Acts on Empire Zone Changes

The New York State Senate, in a late night session held on Thursday, July 16, 2009, by a vote of 57 - 0, passed changes to the Empire Zones legislation enacted in April.

The changes can be summarized as follows:

  • Effective Date of Decertification. The effective date shall not be earlier than the first day of the taxable year beginning on or after January 1, 2009.
  • Certification in Multiple Zones. In its review of Qualified Empire Zone Enterprises ("QEZE") for purposes of the cost benefit analysis, the Department of Economic Development will consider investment made and wages paid by a QEZE at all its certified locations combined, rather than analyzing investment made and wages paid at each location separately. 
  • Aggregated Analysis. QEZEs which have different federal identification numbers, but which are related as defined by the Internal Revenue Code, can elect to be reviewed in the aggregate. 
  • Entities Certified before August 1, 2002. An entity that was certified prior to August 1, 2002, and which transferred employees or property from a related entity will not be decertified if:
    • the business enterprise has provided economic returns to the state in the form of total remuneration to its employees and investments in its facility greater in value than the tax benefits the business enterprise used and had refunded to it; AND
    • the business enterprise has paid wages and benefits to its employees who were never employed within the state by a related person to the QEZE and made capital investments in its facilities in zone locations, and the total amount of such wages, benefits and capital investment is either a) greater than the total tax benefits it used and had refunded to it, OR b) more than $30 million. 
  • Change of Ownership. A business enterprise that has changed ownership will only be decertified if the change resulted in the business enterprise having a different federal tax identification number.

In order for these changes to have any impact on certified entities, the legislation must also be passed by the New York State Assembly and signed by the Governor. We have been informed that there is a possibility that the Assembly may return in September; what they will address at that time is still uncertain. We will continue to monitor the situation, and alert you of any changes.

Even with the passage of this bill, it is still necessary that any business which received a Notice of Decertification file a Notice of Appeal within 15 business days of the date of the decertification letter, and further, file the full appeal with the Zone Designation Board within 60 days of the date of the decertification letter.

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