TAA 22C1-001 Determination of Income
QUESTION: Taxpayer requests a written agreement between themselves and the Florida Department of Revenue, concerning the method by which income generated by or arising out of a “qualified capital investment project” shall be determined for purposes of the Florida Capital Investment Tax Credit under s. 220.191, F.S.
ANSWER: The Department is inclined to concur with Taxpayer’s suggested calculation for the income generated by or arising out of the qualifying project. However, Taxpayer was reminded that should the facts provided in its request be determined to be substantially different, this TAA would not apply and the methodology may be deemed inappropriate.
February 7, 2022
Technical Assistance Advisement – 22C1-001
Request for Revision to Written Agreement for Determination of Income
Sections 220.11, 220.13, 220.15, 220.191, Florida Statutes (“F.S.”)
Rule 12C-1.0191, Florida Administrative Code (“F.A.C.”)
XXXXX (“Taxpayer”)
FEIN: XXXXX
XXXXX (“Corporation C”)
XXXXX (“Corporation D”)
XXXXX (“Corporation E”)
Project ID: XXXXX
Dear XXXXX:
This letter is in response to your letter of XXXXX, requesting a Technical Assistance Advisement to address restructuring changes within the affiliated group that effect the computation of income arising out of the capital investment tax credit project. This response constitutes a Technical Assistance Advisement (“TAA”) under Chapter 12-11, Florida Administrative Code, and is issued to you under the authority of section 213.22, Florida Statutes.
ISSUE PRESENTED
How should Taxpayer compute its income arising out of the qualifying project as it exists within Taxpayer’s reorganized structure?
FACTS SUPPLIED BY TAXPAYER
Taxpayer is located in Florida and is a member of a worldwide affiliated group that is one of the leading manufacturers XXXXX in the world. The qualifying project consists primarily of an XXXXX in XXXXX, Florida.
On XXXXX, the Office of Tourism, Trade, and Economic Development (OTTED) certified the Taxpayer as eligible to receive tax credits under s. 220.191, F.S. The Department of Revenue, having received said certification, and request for a TAA, issued a TAA on February 2, 2012, TAA 12C1-004.
On XXXXX, in response to Taxpayer’s request to amend the commencement of operations date and job creation schedule, the Department of Economic Opportunity (“DEO”) issued an amended and restated letter approving Taxpayer’s project for participation in Florida’s CITC program, and indicated in its letter that the qualifying project will be located in a High Impact Performance Incentive Sector pursuant to s. 288.108, F.S.
The certification approval entitles the project to eligibility for an annual tax credit against the corporate income tax imposed if certain criteria are met, in an amount equal to the lesser of the following for up to twenty years, not to exceed $10,000,000 against certain corporate income tax and premium tax liabilities, beginning with the commencement of operations:
1. Five (5) percent of the cumulative capital investment which must be at least $25 million;
2. Fifty (50%), seventy-five (75%), or one hundred percent (100%) of the annual corporate income tax liability generated by or arising out of the qualifying project, depending on the level of cumulative capital investment; or
3. The tax due on the Florida corporate income tax return of Taxpayer prior to the application of this credit that includes the income generated by or arising out of the qualifying project.
DEO has confirmed Taxpayer has created and maintained a total of XXXXX net new jobs and $XXXXX in eligible capital investment at the project location for its 2019 Annual Credit Year Verification.
TAA 12C1-004 provided that all of the qualifying project’s business activities fall completely within the separate corporate entity, Corporation C, and only the income generated at the new facility would be included in the computation of project income. Corporation C would compute its separate company Florida taxable income in accordance with the Internal Revenue Code and Chapter 220, F.S., based on its federal pro forma income tax return. It would then apportion the project’s income using only Corporation C’s property, payroll, and sales.
Prior to 2019, the Project was housed in Corporation C. In 2019 and 2020, Taxpayer began a restructuring of its affiliated group XXXXX. Activities unrelated to the qualifying project were moved into Corporation C.
- During 2019, Taxpayer transferred its employees and support function activities to Corporation C.
- During 2020, Corporation D, a single member LLC of Taxpayer was dissolved, and its manufacturing operations were transferred to Corporation C. Corporation D was not a member of Taxpayer’s affiliated group at the time TAA 12C1-004 was issued. Taxpayer maintains separate financial reporting for the transferred activity as a separate cost center.
- Corporation E, a single member LLC of Taxpayer was formed in 2019 and then dissolved in 2020. Taxpayer transferred a small amount of assets and liabilities from Corporation E to Corporation C prior to the liquidation of Corporation E. Taxpayer maintains separate financial reporting for the transferred activity as a separate cost center.
- Taxpayer and Corporation C continue to exist and operate as separate legal entities.
Given the consequences of the restructuring, Taxpayer is proposing a revision to the method income generated by or arising from the qualifying project is determined as provided in TAA 12C1-004.
Taxpayer proposes that Corporation C will maintain separate financial accounting records for the income, expenses, assets, liabilities, and equity of the qualifying project in accordance with U.S. Generally Accepted Accounting Principles. It will separately compute both federal taxable income and adjusted federal taxable income as defined in s. 220.13(1), F.S., for the qualifying project on a pro forma basis, based on the separate financial accounting records for the Project. Using the Project’s federal pro forma, it will compute Florida net income on a pro forma basis.
The business operations and activities transferred to Corporation C due to restructuring will be excluded from Corporation C’s computation of income arising from the Project for the purposes of the CITC.
LEGAL AUTHORITY
Section 220.11, F.S., states in part:
(1) A tax measured by net income is hereby imposed on every taxpayer for each taxable year commencing on or after January 1, 1972, and for each taxable year which begins before and ends after January 1, 1972, for the privilege of conducting business, earning or receiving income in this state, or being a resident or citizen of this state. Such tax shall be in addition to all other occupation, excise, privilege, and property taxes imposed by this state or by any political subdivision thereof, including any municipality or other district, jurisdiction, or authority of this state….
Section 220.13, F.S., states in part:
(1) The term “adjusted federal income” means an amount equal to the taxpayer’s taxable income as defined in subsection (2), or such taxable income of more than one taxpayer as provided in s. 220.131, for the taxable year, adjusted as follows: …
Section 220.15, F.S., states in part:
(1) Except as provided in ss. 220.151, 220.152, and 220.153, adjusted federal income as defined in s. 220.13 shall be apportioned to this state by taxpayers doing business within and without this state by multiplying it by an apportionment fraction composed of a sales factor representing 50 percent of the fraction, a property factor representing 25 percent of the fraction, and a payroll factor representing 25 percent of the fraction. …
Section 220.191, F.S., states in part:
(1) DEFINITIONS.—For purposes of this section:
(a) “Commencement of operations” means the beginning of active operations by a qualifying business of the principal function for which a qualifying project was constructed.
(b) “Cumulative capital investment” means the total capital investment in land, buildings, and equipment made in connection with a qualifying project during the period from the beginning of construction of the project to the commencement of operations.
(c) “Eligible capital costs” means all expenses incurred by a qualifying business in connection with the acquisition, construction, installation, and equipping of a qualifying project during the period from the beginning of construction of the project to the commencement of operations, including, but not limited to: …
(d) “Income generated by or arising out of the qualifying project” means the qualifying project’s annual taxable income as determined by generally accepted accounting principles and under s. 220.13.
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(f) “Qualifying business” means a business which establishes a qualifying project in this state and which is certified by the Department of Economic Opportunity to receive tax credits pursuant to this section.
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(2)(a) An annual credit against the tax imposed by this chapter shall be granted to any qualifying business in an amount equal to 5 percent of the eligible capital costs generated by a qualifying project, for a period not to exceed 20 years beginning with the commencement of operations of the project. …The annual tax credit granted under this section shall not exceed the following percentages of the annual corporate income tax liability or the premium tax liability generated by or arising out of a qualifying project:
1. One hundred percent for a qualifying project which results in a cumulative capital investment of at least $100 million.
2. Seventy-five percent for a qualifying project which results in a cumulative capital investment of at least $50 million but less than $100 million.
3. Fifty percent for a qualifying project which results in a cumulative capital investment of at least $25 million but less than $50 million.
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(d) If the credit granted under subparagraph (a)1. is not fully used in any one year because of insufficient tax liability on the part of the qualifying business, the unused amounts may be used in any one year or years beginning with the 21st year after the commencement of operations of the project and ending the 30th year after the commencement of operations of the project.
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(4) Prior to receiving tax credits pursuant to this section, a qualifying business must achieve and maintain the minimum employment goals beginning with the commencement of operations at a qualifying project and continuing each year thereafter during which tax credits are available pursuant to this section.
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(8) The Department of Revenue may specify by rule the methods by which a project’s pro forma annual taxable income is determined.
DISCUSSION
The Department agrees with Taxpayer’s proposed revised method to determine the income generated by or arising out of the Project for tax years beginning after December 28, 2020. The proposed method will exclude the business operations and activities transferred to Corporation C from the computation of project income. Taxpayer must apply generally accepted accounting principles and the provisions of s. 220.13, F.S., in computing the income of the qualifying project. The Project’s taxable income would then be multiplied by the applicable tax rate. The allowable CITC will be limited to the lesser of the limitations stated below.
The allowable CITC will be in an amount equal to the lesser of the following for up to twenty years, not to exceed $10,000,000, beginning with the commencement of operations:
1. Five (5) percent of the cumulative capital investment, which must be at least $25 million,
2. Fifty (50%), seventy-five (75%), or one hundred percent (100%) of the annual corporate income tax liability generated by or arising out of the qualifying project, depending on the level of investment; or
3. The tax due on the consolidated Florida corporate income tax returns of the affiliated group prior to application of this credit that includes the income generated by or arising out of the qualifying project.
DEO has required that the qualifying project meet certain criteria by the commencement of operations. The “commencement of operations” (as defined in s. 220.191, F.S.) will not be deemed to occur unless Taxpayer has provided DEO with evidence that it has met the following criteria:
1. Capital investment of at least $25 million has been made at the project’s location in XXXXX, Florida; and
2. Creation of at least XXXXX net new-to-Florida full-time equivalent jobs paying at least the project wage at the project’s location in XXXXX, Florida.
No annual CITC may be claimed without a letter from DEO stating that the appropriate annual requirements have been satisfied or maintained.
Taxpayer will be required to provide with its Florida corporate income tax return the Project’s pro forma returns and allowable CITC.
CONCLUSION
Given the specific circumstances involved in this case, and based on the representation of the Taxpayer, the Department concurs with Taxpayer’s revised calculation for the income generated by or arising out of the qualifying project based upon s. 220.191, F.S., and Rule 12C1.0191, F.A.C. However, Taxpayer is reminded that should the facts provided in its request of XXXXX, be determined to be incorrect or changed, the computation for the income generated by or arising out of the project could be substantially different from what has been agreed upon in this TAA.
This response constitutes a Technical Assistance Advisement under section 213.22, F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice as specified in section 213.22, F.S. Our response is based on those facts and specific situation summarized above. You are advised that subsequent statutory or administrative rule changes or judicial interpretations of the statutes or rules upon this advice is based may subject future transactions to a different treatment than expressed in this response.
You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of section 213.22, F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for Technical Assistance Advisement, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the taxpayer. Your response should be received by the Department within 15 days of the date of this letter.
Susan R Coxwell
Revenue Program Administrator
Technical Assistance and Dispute Resolution