N.Y.
Tax Law Section 42-A
Farm employer overtime credit
(a)
Notwithstanding subdivision (f) of § 42 (Farm workforce retention credit)section forty-two of this article, a taxpayer that is a farm employer or an owner of a farm employer shall be eligible for a credit against the tax imposed under article nine-A or twenty-two of this chapter, pursuant to the provisions referenced in subdivision (i) of this section.(b)
A farm employer is a corporation (including a New York S corporation), a sole proprietorship, a limited liability company or a partnership that is an eligible farmer.(c)
For purposes of this section, the term “eligible farmer” means a taxpayer whose federal gross income from farming as defined in subsection (n) of § 606 (Credits against tax)section six hundred six of this chapter for the taxable year is at least two-thirds of excess federal gross income. Excess federal gross income means the amount of federal gross income from all sources for the taxable year in excess of thirty thousand dollars. For purposes of this section, payments from the state’s farmland protection program, administered by the department of agriculture and markets, shall be included as federal gross income from farming for otherwise eligible farmers.(d)
An eligible farm employee is an individual who meets the definition of a “farm laborer” under Labor Law § 2 (Definitions)section two of the labor law who is employed by a farm employer in New York state, but excluding general executive officers of the farm employer.(e)
Eligible overtime is the aggregate number of hours of work performed during the taxable year by an eligible farm employee that in any calendar week exceeds the overtime work threshold set by the commissioner of labor pursuant to the recommendation of the farm laborers wage board, provided that work performed in such calendar week in excess of sixty hours shall not be included.(f)
Special rules. If more than fifty percent of such eligible farmer’s federal gross income from farming is from the sale of wine from a licensed farm winery as provided for in article six of the alcoholic beverage control law, or from the sale of cider from a licensed farm cidery as provided for in Alcoholic Beverage Control Law § 58-C (Farm cidery license)section fifty-eight-c of the alcoholic beverage control law, then an eligible farm employee of such eligible farmer shall be included for purposes of calculating the amount of credit allowed under this section only if such eligible farm employee is employed by such eligible farmer on qualified agricultural property as defined in paragraph four of subsection (n) of § 606 (Credits against tax)section six hundred six of this chapter.(g)
The amount of the credit allowed under this section shall be equal to the aggregate amount of such credit allowed per eligible farm employee, as follows. The amount of the credit allowed per eligible farm employee shall be equal to one hundred eighteen percent of the product of (1) the eligible overtime worked during the taxable year by the eligible farm employee and (2) the overtime rate paid by the farm employer to the eligible farm employee less such employee’s regular rate of pay.(h)
(1) Taxpayers shall have the option to request an advance payment of the portion of the amount of tax credit they are allowed under this section for the amount of eligible overtime that the farm employer paid from January first through July thirty-first. To be eligible for the advance payment, the farm employer must submit by September thirtieth a properly completed application to the department of agriculture and markets, in a form prescribed by the commissioner of agriculture and markets, that demonstrates how much the farm employer paid in eligible overtime during that period. After reviewing a farm employer’s completed application for the advance payment of a portion of the amount of tax credit allowed under this section, the department of agriculture and markets may issue to that farm employer a certificate of tax credit that specifies the exact amount of the tax credit under this article that a taxpayer may claim as an advance payment pursuant to this subdivision.(2)
A taxpayer must submit a request to the department in the manner prescribed by the commissioner after it has been issued a certificate of tax credit by the department of agriculture and markets pursuant to paragraph one of this subdivision (or such certificate has been issued to a partnership, limited liability company or subchapter S corporation in which it is a partner, member or shareholder, respectively, that is a farm employer), but such request must be submitted no later than November first of the taxable year for which the credit is being claimed. For those taxpayers who have requested an advance payment and for whom the commissioner has determined to be eligible for this credit, the commissioner shall advance a payment of the portion of the amount of tax credit allowed to the taxpayer. The taxpayer will claim on the taxpayers’ return for the taxable year the portion of the amount of tax credit allowed for eligible overtime paid by the farm employer from August first through December thirty-first. The taxpayer must properly reconcile the advance payment of tax credit allowed under this subdivision on the taxpayer’s return.(3)
If a taxpayer that has received an advance payment is not an eligible farmer for the taxable year for which it received an advance payment, the taxpayer shall be required to add back as tax the amount of advance payment the taxpayer received during the taxable year.(4)
Notwithstanding any provision of this chapter, employees of the department of agriculture and markets and the department shall be allowed to share and exchange:(i)
information derived from tax returns or reports that is relevant to a taxpayer’s eligibility for the credit allowed by this section;(ii)
information regarding the credit applied for, allowed or claimed pursuant to this section and regarding taxpayers that are applying for the credit or that are claiming the credit; and(iii)
information collected by the department of agriculture and markets and exchanged between the department of agriculture and markets and the department pursuant to this section shall not be subject to disclosure or inspection under the state’s freedom of information law.(i)
Cross references: For application of the credit provided in this section, see the following provisions of this chapter:(1)
Article 9-A: Section 210-B, subdivision 58.(2)
Article 22: Section 606, subsection (nnn).
Source:
Section 42-A — Farm employer overtime credit, https://www.nysenate.gov/legislation/laws/TAX/42-A (updated Apr. 22, 2022; accessed May 4, 2024).
