HOUSE BILL 21

47th legislature - STATE OF NEW MEXICO - second session, 2006

INTRODUCED BY

Peter Wirth

AN ACT

RELATING TO TAXATION; PROVIDING FOR THE SALE, EXCHANGE OR TRANSFER OF THE INCOME TAX CREDIT AND THE CORPORATE INCOME TAX CREDIT THAT MAY BE CLAIMED FOR CERTAIN CONVEYANCES OF REAL PROPERTY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 7-2-18.10 NMSA 1978 (being Laws 2003, Chapter 331, Section 7) is amended to read:

     "7-2-18.10. TAX CREDIT [AVAILABLE]--CERTAIN CONVEYANCES OF REAL PROPERTY.--

          A. There shall be allowed as a credit against the tax liability imposed by the Income Tax Act, an amount equal to fifty percent of the fair market value of land or interest in land that is conveyed for the purpose of open space, natural resource or biodiversity conservation, agricultural preservation or watershed or historic preservation as an unconditional donation in perpetuity by the landowner or taxpayer to a public or private conservation agency eligible to hold the land and interests therein for conservation or preservation purposes. The fair market value of qualified donations made pursuant to this section shall be substantiated by a "qualified appraisal" prepared by a "qualified appraiser", as those terms are defined under applicable federal laws and regulations governing charitable contributions.

          B. The amount of the credit that may be claimed by a taxpayer shall not exceed one hundred thousand dollars ($100,000). In addition, in a taxable year the credit used may not exceed the amount of individual income tax otherwise due. [A portion of the credit that is unused in a taxable year may be carried over for a maximum of twenty consecutive taxable years following the taxable year in which the credit originated until fully expended.] A taxpayer may claim only one tax credit per taxable year.

          C. Qualified donations shall include the conveyance in perpetuity of a fee interest in real property or a less-than-fee interest in real property, such as a conservation restriction, preservation restriction, agricultural preservation restriction or watershed preservation restriction, pursuant to the Land Use Easement Act and provided that the less-than-fee interest qualifies as a charitable contribution deduction under Section 170(h) of the Internal Revenue Code. Dedications of land for open space for the purpose of fulfilling density requirements to obtain subdivision or building permits shall not be considered as qualified donations pursuant to the Land Conservation Incentives Act.

          D. Qualified donations shall be eligible for the tax credit if the donations are made to the state of New Mexico, a political subdivision thereof or a charitable organization described in Section 501(c)(3) of the Internal Revenue Code and that meets the requirements of Section 170(h)(3) of that code.

           E. To be eligible for treatment as qualified donations under this section, land or interests in lands must be certified by the secretary of energy, minerals and natural resources as fulfilling the purposes as set forth in Section [2 of the Land Conservation Incentives Act] 75-9-2 NMSA 1978. The use and protection of the lands, or interests therein, for open space, natural area protection, biodiversity habitat conservation, land preservation, agricultural preservation, historic preservation or similar use or purpose of the property shall be assured in perpetuity.

          F. To receive a credit pursuant to this section, a person shall apply to the taxation and revenue department on forms and in the manner prescribed by the department. The application shall include a certification made pursuant to Subsection E of this section. If all of the requirements of this section have been complied with, the department may issue to the applicant a document granting the tax credit. The document shall be numbered for identification and declare its date of issuance and the amount of the tax credit allowed for the qualified donation made pursuant to this section. A document issued pursuant to this subsection may be sold, exchanged or otherwise transferred, and the tax credit may be carried forward for a period of twenty taxable years following the taxable year in which the credit originated until fully expended. The parties to such a transaction shall notify the department of the sale, exchange or transfer within ten days of the sale, exchange or transfer."

     Section 2. Section 7-2A-8.9 NMSA 1978 (being Laws 2003, Chapter 331, Section 8) is amended to read:

     "7-2A-8.9. TAX CREDIT [AVAILABLE]--CERTAIN CONVEYANCES OF REAL PROPERTY.--

          A. There shall be allowed as a credit against the tax liability imposed by the Corporate Income and Franchise Tax Act an amount equal to fifty percent of the fair market value of land or interest in land that is conveyed for the purpose of open space, natural resource or biodiversity conservation, agricultural preservation or watershed or historic preservation as an unconditional donation in perpetuity by the landowner or taxpayer to a public or private conservation agency eligible to hold the land and interests therein for conservation or preservation purposes. The fair market value of qualified donations made pursuant to this section shall be substantiated by a "qualified appraisal" prepared by a "qualified appraiser", as those terms are defined under applicable federal laws and regulations governing charitable contributions.

          B. The amount of the credit that may be claimed by a taxpayer shall not exceed one hundred thousand dollars ($100,000). In addition, in a taxable year the credit used may not exceed the amount of corporate income tax otherwise due. [A portion of the credit that is unused in a taxable year may be carried over for a maximum of twenty consecutive taxable years following the taxable year in which the credit originated until fully expended.] A taxpayer may claim only one tax credit per taxable year.

          C. Qualified donations shall include the conveyance in perpetuity of a fee interest in real property or a less-than-fee interest in real property, such as a conservation restriction, preservation restriction, agricultural preservation restriction or watershed preservation restriction, pursuant to the Land Use Easement Act; provided that the less-than-fee interest qualifies as a charitable contribution deduction under Section 170(h) of the Internal Revenue Code. Dedications of land for open space for the purpose of fulfilling density requirements to obtain subdivision or building permits shall not be considered as qualified donations pursuant to the Land Conservation Incentives Act.

          D. Qualified donations shall be eligible for the tax credit if the donations are made to the state of New Mexico, a political subdivision thereof or a charitable organization described in Section 501(c)(3) of the Internal Revenue Code and that meets the requirements of Section 170(h)(3) of that code.

           E. To be eligible for treatment as qualified donations under this section, land or interests in lands must be certified by the secretary of energy, minerals and natural resources as fulfilling the purposes as set forth in Section [2 of the Land Conservation Incentives Act] 75-9-2 NMSA 1978. The use and protection of the lands, or interests therein, for open space, natural area protection, biodiversity habitat conservation, land preservation, agricultural preservation, historic preservation or similar use or purpose of the property shall be assured in perpetuity.

          F. To receive a credit pursuant to this section, a person shall apply to the taxation and revenue department on forms and in the manner prescribed by the department. The application shall include a certification made pursuant to Subsection E of this section. If all of the requirements of this section have been complied with, the department may issue to the applicant a document granting the tax credit. The document shall be numbered for identification and declare its date of issuance and the amount of the tax credit allowed for the qualified donation made pursuant to this section. A document issued pursuant to this subsection may be sold, exchanged or otherwise transferred, and the tax credit may be carried forward for a period of twenty taxable years following the taxable year in which the credit originated until fully expended. The parties to such a transaction shall notify the department of the sale, exchange or transfer within ten days of the sale, exchange or transfer."

     Section 3. APPLICABILITY.--The provisions of this act apply to taxable years beginning on or after January 1, 2006.

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