N.Y.
Economic Development Law Section 436
Businesses locating in tax-free NY areas
1.
A campus, university or college that has sponsored a tax-free NY area (including any strategic state asset affiliated with the campus, university or college) shall solicit and accept applications from businesses to locate in such area that are consistent with the plan of such campus, university or college or strategic state asset that has been approved pursuant to § 435 (Approval of tax-free NY areas)section four hundred thirty-five of this article. Any business that wants to locate in a tax-free NY area must submit an application to the campus, university or college which is sponsoring the tax-free NY area by December thirty-first, two thousand twenty-five. Prior to such date, the commissioner shall prepare an evaluation on the effectiveness of the START-UP NY program and deliver it to the governor and the legislature to determine continued eligibility for application submissions.2.
(a) The sponsoring campus, university or college shall provide the application and all supporting documentation of any business it decides to accept into its tax-free NY area to the commissioner for review. Such application shall be in a form prescribed by the commissioner and shall contain all information the commissioner determines is necessary to properly evaluate the business’s application, including, but not limited to, the name, address, and employer identification number of the business; a description of the land or space the business will use, the terms of the lease agreement, if applicable, between the sponsoring campus, university or college and the business, and whether or not the land or space being used by the business is being transferred or sublet to the business from some other business. The application must include a certification by the business that it meets the eligibility criteria specified in § 433 (Eligibility criteria for businesses)section four hundred thirty-three of this article and will align with or further the academic mission of the sponsoring campus, college or university, and that the business’s participation in the START-UP NY program will have positive community and economic benefits. The application must also describe whether or not the business competes with other businesses in the same community but outside the tax-free NY area. In addition, the application must include a description of how the business plans to recruit employees from the local workforce.(b)
The commissioner shall review such application and documentation within sixty days and may reject such application upon a determination that the business does not meet the eligibility criteria in § 433 (Eligibility criteria for businesses)section four hundred thirty-three of this article, has submitted an incomplete application, has failed to comply with subdivision three of this section, or has failed to demonstrate that the business’s participation in the START-UP NY program will have positive community and economic benefits, which shall be evaluated based on factors including but not limited to whether or not the business competes with other businesses in the same community but outside the tax-free NY area as prohibited by § 440 (Prohibition of anti-competitive behavior)section four hundred forty of this article. If the commissioner rejects such application, it shall provide notice of such rejection to the sponsoring campus, university or college and business. If the commissioner does not reject such application within sixty days, such business is accepted to locate in such tax-free NY area, and the application of such business shall constitute a contract between such business and the sponsoring campus, university or college. The sponsoring campus, university or college must provide accepted businesses with documentation of their acceptances in such form as prescribed by the commissioner of taxation and finance which will be used to demonstrate such business’s eligibility for the tax benefits specified in Tax Law § 39 (Tax benefits for businesses located in tax-free NY areas and employees of such businesses)section thirty-nine of the tax law.(c)
If a state university campus proposes to enter into a lease with a business for eligible land in a tax-free NY area with a term greater than forty years, including any options to renew, or for eligible land in a tax-free NY area of one million or more square feet, the state university campus, at the same time as the application is provided to the commissioner, also must submit the lease for review to the START-UP NY approval board. If the board does not disapprove of the lease terms within thirty days, the lease is deemed approved. If the board disapproves the lease terms, the state university campus must submit modified lease terms to the commissioner for review. The commissioner’s sixty day review period is suspended while the board is reviewing the lease and during the time it takes for the state university campus to modify the lease terms.(d)
Except as otherwise provided in this article, proprietary information or supporting documentation submitted by a business to a sponsoring campus, university or college shall only be utilized for the purpose of evaluating such business’s application or compliance with the provisions of this article and shall not be otherwise disclosed. Any person who willfully discloses such information to a third party for any other purpose whatsoever shall be guilty of a misdemeanor.3.
The business submitting the application, as part of the application, must:(a)
agree to allow the department of taxation and finance to share its tax information with the department and the sponsoring campus, university or college;(b)
agree to allow the department of labor to share its tax and employer information with the department and the sponsoring campus, university or college;(c)
allow the department and its agents and the sponsoring campus, university or college access to any and all books and records the department or sponsoring campus, university or college may require to monitor compliance;(d)
include performance benchmarks, including the number of net new jobs that must be created, the schedule for creating those jobs, and details on job titles and expected salaries. The application must specify the consequences for failure to meet such benchmarks, as determined by the business and the sponsoring campus, university or college:(i)
suspension of such business’s participation in the START-UP NY program for one or more tax years as specified in such application;(ii)
termination of such business’s participation in the START-UP NY program; and/or (iii) proportional recovery of tax benefits awarded under the START-UP NY program as specified in Tax Law § 39 (Tax benefits for businesses located in tax-free NY areas and employees of such businesses)section thirty-nine of the tax law;(e)
provide the following information to the department and sponsoring campus, university or college upon request:(i)
the prior three years of federal and state income or franchise tax returns, unemployment insurance quarterly returns, real property tax bills and audited financial statements;(ii)
the employer identification or social security numbers for all related persons to the business, including those of any members of a limited liability company or partners in a partnership;(f)
provide a clear and detailed presentation of all related persons to the business to assure the department that jobs are not being shifted within the state; and(g)
certify, under penalty of perjury, that it is in substantial compliance with all environmental, worker protection, and local, state, and federal tax laws, and that it satisfies all the eligibility requirements to participate in the START-UP NY program.4.
(a) At the conclusion of the lease term of a lease by the sponsoring campus, university or college to a business of land or space in a tax-free NY area owned by the sponsoring campus, university or college, the leased land or space and any improvements thereon shall revert to the sponsoring campus, university or college, unless the lease is renewed.(b)
If, at any time, the sponsoring campus, university or college or the commissioner determines that a business no longer satisfies any of the eligibility criteria specified in § 433 (Eligibility criteria for businesses)section four hundred thirty-three of this article, the sponsoring campus, university or college shall recommend to the commissioner that the commissioner terminate or the commissioner on his or her own initiative shall immediately terminate such business’s participation in the START-UP NY program. Such business shall be notified of such termination by a method which allows for verification of receipt of such termination notice. A copy of such termination notice shall be sent to the commissioner of taxation and finance. Upon such termination, such business shall not be eligible for the tax benefits specified in Tax Law § 39 (Tax benefits for businesses located in tax-free NY areas and employees of such businesses)section thirty-nine of the tax law for that or any future taxable year, calendar quarter or sales tax quarter, although employees of such business may continue to claim the tax benefit for their wages during the remainder of that taxable year. Further, such lease or contract between the sponsoring campus, university or college and such business shall be rescinded, effective on the thirtieth day after the commissioner mailed such termination notice to such business and the land or space and any improvements thereon shall revert to the sponsoring campus, university or college.5.
The commissioner shall promulgate regulations to effectuate the purposes of this section, including, but not limited to, establishing the process for the evaluation and possible rejection of applications, the eligibility criteria that will be applied in evaluating those applications, and the process for terminations from the START-UP NY program and administrative appeals of such terminations.
Source:
Section 436 — Businesses locating in tax-free NY areas, https://www.nysenate.gov/legislation/laws/COM/436 (updated Apr. 17, 2020; accessed Oct. 26, 2024).
