HOUSE TAXATION AND REVENUE COMMITTEE SUBSTITUTE FOR
HOUSE BILL 379
51st legislature - STATE OF NEW MEXICO - first session, 2013
AN ACT
RELATING TO TAXATION; AMENDING SECTIONS OF THE FILM PRODUCTION TAX CREDIT ACT TO PROVIDE FOR AN INCREASED FILM PRODUCTION TAX CREDIT; PROVIDING FOR THE CARRYFORWARD OF FILM PRODUCTION TAX CREDITS TO FUTURE YEARS; PROVIDING FOR THE TRANSFER OF FILM PRODUCTION TAX CREDITS; RECONCILING MULTIPLE AMENDMENTS TO SECTIONS OF LAW IN LAWS 2011; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 7-2F-1 NMSA 1978 (being Laws 2002, Chapter 36, Section 1, as amended by Laws 2011, Chapter 165, Section 1 and by Laws 2011, Chapter 177, Section 2) is amended to read:
"7-2F-1. FILM PRODUCTION TAX CREDIT.--
A. The tax credit created by this section may be referred to as the "film production tax credit". An eligible film production company may apply for, and the taxation and revenue department may allow, subject to the limitation in [Subsection D of] this section, a tax credit in an amount equal to the percentage specified in Subsection B of this section of:
(1) direct production expenditures made in New Mexico that:
(a) are directly attributable to the production in New Mexico of a film or commercial audiovisual product;
(b) are subject to taxation by the state of New Mexico;
(c) exclude direct production expenditures for which another taxpayer claims the film production tax credit; and
(d) do not exceed the usual and customary cost of the goods or services acquired when purchased by unrelated parties. The secretary of taxation and revenue may determine the value of the goods or services for purposes of this section when the buyer and seller are affiliated persons or the sale or purchase is not an arm's length transaction; and
(2) postproduction expenditures made in New Mexico that:
(a) are directly attributable to the production of a commercial film or audiovisual product;
(b) are for services performed in New Mexico;
(c) are subject to taxation by the state of New Mexico;
(d) exclude postproduction expenditures for which another taxpayer claims the film production tax credit; and
(e) do not exceed the usual and customary cost of the goods or services acquired when purchased by unrelated parties. The secretary of taxation and revenue may determine the value of the goods or services for purposes of this section when the buyer and seller are affiliated persons or the sale or purchase is not an arm's length transaction.
B. Except as otherwise provided in [Subsections C and P of] this section, the percentage to be applied in calculating the amount of the film production tax credit is twenty-five percent.
C. With respect to expenditures attributable to a production for which the film production company receives a tax credit pursuant to the federal new markets tax credit program, the percentage to be applied in calculating the film production tax credit is twenty percent.
D. In addition to the twenty-five percent credit stipulated in Subsection B of this section, another five percent credit shall be applied to qualified direct New Mexico production expenditures:
(1) on series television production intended for commercial distribution with an order for at least six episodes in a single season; or
(2) on a production with a total budget of less than thirty million dollars ($30,000,000) that shoots at least ten principal photography days at a qualified production facility in New Mexico, or on a production with a total budget of more than thirty million dollars ($30,000,000) that shoots at least fifteen principal photography days at a qualified production facility in New Mexico; provided that this additional credit shall only apply to New Mexico resident crew expenses.
[D.] E. A claim for film production tax credits shall be filed as part of a return filed pursuant to the Income Tax Act or the Corporate Income and Franchise Tax Act. [The date a credit claim is received by the department shall determine the order that a credit claim is authorized for payment by the department.] The aggregate amount of the film production tax credit claims that may be authorized for payment in any fiscal year is fifty million dollars ($50,000,000) with respect to the direct production expenditures or postproduction expenditures made on film or commercial audiovisual products. In a fiscal year in which the amount of total credit claims authorized for payment is less than fifty million dollars ($50,000,000), credit claims authorized for payment pursuant to Subsection E of this section in the subsequent twelve or twenty-four months from the date of first payment may be paid pursuant to the Tax Administration Act and the Film Production Tax Credit Act to a taxpayer pursuant to the provisions of the Film Production Tax Credit Act; provided that the aggregate amount of authorized payments in any one fiscal year shall not exceed fifty million dollars ($50,000,000). Any amounts unexpended in any fiscal year under the fifty-million-dollar ($50,000,000) annual limit shall be carried forward for expenditure against film production tax credit claims in subsequent fiscal years; provided that the amounts carried forward shall not count against subsequent years' fifty-million-dollar ($50,000,000) annual limitation. A film production company that submits a claim for a film production tax credit that is unable to receive the tax credit because the claims for the fiscal year exceed the limitation in this subsection shall be placed for the subsequent fiscal year at the front of a queue of film production tax credit claimants submitting claims in the subsequent fiscal year in the order of the date on which the credit was authorized for payment.
[E.] F. Credit claims authorized for payment pursuant to the Film Production Tax Credit Act shall be paid pursuant to provisions of the Tax Administration Act to the taxpayer as follows:
(1) a credit claim amount of less than two million dollars ($2,000,000) per taxable year shall be paid immediately upon authorization for payment of the credit claim;
(2) a credit claim amount of two million dollars ($2,000,000) or more but less than five million dollars ($5,000,000) per taxable year shall be divided into two equal payments, with the first payment to be made immediately upon authorization of the payment of the credit claim and the second payment to be made twelve months following the date of the first payment; and
(3) a credit claim amount of five million dollars ($5,000,000) or more per taxable year shall be divided into three equal payments, with the first payment to be made immediately upon authorization of payment of the credit claim, the second payment to be made twelve months following the date of the first payment and the third payment to be made twenty-four months following the date of the first payment.
[F.] G. Any amount of a credit claim that is carried forward pursuant to [Subsection E of] this section shall be subject to the limit on the aggregate amount of credit claims that may be authorized for payment pursuant to Subsection [D] E of this section in the fiscal year in which that amount is paid.
[G.] H. A credit claim shall only be considered received by the department if the credit claim is made on a complete tax return filed timely after the close of the taxable year. All direct production expenditures and postproduction expenditures incurred during the taxable year by a film production company shall be submitted as part of the same income tax return and paid pursuant to this section. A credit claim shall not be divided and submitted with multiple returns or in multiple years.
[H.] I. For purposes of determining the payment of credit claims pursuant to [Subsection E of] this section, the secretary of taxation and revenue may require that credit claims of affiliated persons be combined into one claim if necessary to accurately reflect closely integrated activities of affiliated persons.
[I.] J. The film production tax credit shall not be claimed with respect to direct production expenditures or postproduction expenditures for which the film production company has delivered a nontaxable transaction certificate pursuant to Section 7-9-86 NMSA 1978.
[J. A long-form narrative film] K. A production for which the film production tax credit is claimed pursuant to Paragraph (1) of Subsection A of this section shall contain an acknowledgment that the production was filmed in New Mexico in the end screen credits, and a state logo provided by the
division shall be included in the end screen credits of long-form narrative film productions, unless otherwise agreed upon in writing by the film production company and the division.
[K.] L. To be eligible for the film production tax credit, a film production company shall submit to the division information required by the division to demonstrate conformity with the requirements of the Film Production Tax Credit Act, including detailed information on each direct production expenditure and each postproduction expenditure. A film production company shall make reasonable efforts, as determined
by the division, to contract with vendors that have a physical presence in New Mexico and that provide goods, inventory or services directly related to that vendor's ordinary course of business. A film production company shall provide to the division a projection of the film production tax credit claim the film production company plans to submit in the fiscal year. In addition, the film production company shall agree in writing:
(1) to pay all obligations the film production company has incurred in New Mexico;
(2) to post a notice at completion of principal photography on the web site of the division that:
(a) contains production company information, including the name of the production, the address of the production company and contact information that includes a working phone number, fax number and email address for both the local production office and the permanent production office to notify the public of the need to file creditor claims against the film production company; and
(b) remains posted on the web site until all financial obligations incurred in the state by the film production company have been paid;
(3) that outstanding obligations are not waived should a creditor fail to file;
(4) to delay filing of a claim for the film production tax credit until the division delivers written notification to the taxation and revenue department that the film production company has fulfilled all requirements for the credit; and
(5) to submit a completed application for the film production tax credit and supporting documentation to the division within one year of making the final expenditures in New Mexico that are included in the credit claim.
[L.] M. The division shall determine the eligibility of the company and shall report this information to the taxation and revenue department in a manner and at times the economic development department and the taxation and revenue department shall agree upon. The division shall also post on its web site all information provided by the film production company that does not reveal revenue, income or other information that may jeopardize the confidentiality of income tax returns, including that the division shall report monthly the projected amount of credit claims for the fiscal year.
[M.] N. To provide guidance to film production companies regarding the amount of credit capacity remaining in the fiscal year, the taxation and revenue department shall post monthly on that department's web site the aggregate amount of credits claimed and processed for the fiscal year.
[N.] O. To receive a film production tax credit, a film production company shall apply to the taxation and revenue department on forms and in the manner the department may prescribe. The application shall include a certification of the amount of direct production expenditures or postproduction expenditures made in New Mexico with respect to the film production for which the film production company is seeking the film production tax credit; provided that for the film production tax credit, the application shall be submitted within one year of the date of the last direct production expenditure in New Mexico or the last postproduction expenditure in New Mexico. If the amount of the requested tax credit exceeds five million dollars ($5,000,000), the application shall also include the results of an audit, conducted by a certified public accountant licensed to practice in New Mexico, verifying that the expenditures have been made in compliance with the requirements of this section. If the requirements of this section have been complied with, subject to the provisions of Subsection [D] E of this section, the taxation and revenue department shall approve the film production tax credit and issue a document granting the tax credit.
[O.] P. The film production company may apply all or a portion of the film production tax credit granted against personal income tax liability or corporate income tax liability. If the amount of the film production tax credit claimed exceeds the film production company's tax liability for the taxable year in which the credit is being claimed, the excess shall be refunded. Upon application to the taxation and revenue department, the film production company may assign all of the refunds due under this section to an assignee on a one-time basis that may not be further assigned. The film production company shall identify the assignee, and the assignee shall sign the application to claim the refund.
[P.] Q. As applied to direct production expenditures for the services of performing artists, the film production tax credit authorized by this section shall not exceed five million dollars ($5,000,000) for services rendered by all performing artists in a production for which the film production tax credit is claimed."
SECTION 2. Section 7-2F-2 NMSA 1978 (being Laws 2003, Chapter 127, Section 2, as amended by Laws 2011, Chapter 165, Section 3 and by Laws 2011, Chapter 177, Section 4) is amended to read:
"7-2F-2. DEFINITIONS.--As used in the Film Production Tax Credit Act:
A. "affiliated person" means a person who directly or indirectly owns or controls, is owned or controlled by or is under common ownership or control with another person through ownership of voting securities or other ownership interests representing a majority of the total voting power of the entity;
B. "commercial audiovisual product" means a film or a videogame intended for commercial exploitation;
C. "direct production expenditure":
(1) except as provided in Paragraph (2) of this subsection, means a transaction that is subject to taxation in New Mexico, including:
(a) payment of wages, fringe benefits or fees for talent, management or labor to a person who is a New Mexico resident;
(b) payment to a personal services business or the direct hire of a performing artist, for the services of a performing artist if: 1) the personal services business [1)] or that performing artist pays gross receipts tax in New Mexico on the portion of those payments qualifying for the tax credit; and 2) [deducts and remits withheld income tax pursuant to Subsection I of Section 7-3A-3 NMSA 1978] the film production company deducts and remits, or causes to be deducted and remitted, income tax at the maximum rate in New Mexico
pursuant to Subsection I of Section 7-3A-3 NMSA 1978 on the portion of those payments qualifying for the tax credit paid to a personal services business where the performing artist is a full or part owner of that business or subcontracts with a personal services business where the performing artist is a full or part owner of that business; and
(c) any of the following provided by a vendor: 1) the story and scenario to be used for a film; 2) set construction and operations, wardrobe, accessories and related services; 3) photography, sound synchronization, lighting and related services; 4) editing and related services; 5) rental of facilities and equipment; 6) leasing of vehicles, not including the chartering of aircraft for out-of-state transportation; however, New Mexico-based chartered aircraft for in-state transportation directly attributable to the production shall be considered a direct production expenditure; provided that only the first one hundred dollars ($100) of the daily expense of leasing a vehicle for passenger transportation on roadways in the state may be claimed as a direct production expenditure; 7) food or lodging; provided that only the first one hundred fifty dollars ($150) of lodging per individual per day is eligible to be claimed as a direct production expenditure; 8) commercial airfare if purchased through a New Mexico-based travel agency or travel company for travel to and from New Mexico or within New Mexico that is directly attributable to the production; 9) insurance coverage and bonding if purchased through a New Mexico-based insurance agent, broker or bonding agent; and 10) other direct costs of producing a film in accordance with generally accepted entertainment industry practice; and
(2) does not include an expenditure for:
(a) a gift with a value greater than twenty-five dollars ($25.00);
(b) artwork or jewelry, except that a work of art or a piece of jewelry may be a direct production expenditure if: 1) it is used in the film production; and 2) the expenditure is less than two thousand five hundred dollars ($2,500); [or]
(c) entertainment, amusement or recreation;
(d) subcontracted goods or services provided by a vendor with a physical presence in New Mexico when subcontractors are not subject to state taxation, such as equipment and locations provided by the military, government and religious organizations; or
(e) nonresidents providing services and responsibilities related to off-camera industry job positions where it is the standard entertainment industry practice for the film production company to employ these individuals, except when a nonresident is hired or subcontracted by a vendor with a physical presence in New Mexico and the film production company, as determined by the division and when applicable in consultation with industry, provides: 1) reasonable efforts to hire resident crew; and 2) financial or in-kind contributions toward education or work force development efforts that shall include at least one of the following: a pre-approved workshop; on-set shadowing per each approved position; or ten percent of the portion of the tax credit calculated from the payment of services to the nonresidents by the vendor in the approved positions, which equates to two-and-one-half percent of the respective total direct production expenditure, and allocated to New Mexico public education institutions that administer at least one industry-recognized film or multimedia program;
D. "division" means the New Mexico film division of the economic development department;
E. "federal new markets tax credit program" means the tax credit program codified as Section 45D of the United States Internal Revenue Code of 1986, as amended;
F. "film" means a single medium or multimedia program, excluding advertising messages other than national or regional advertising messages intended for exhibition, that:
(1) is fixed on film, digital medium, videotape, computer disc, laser disc or other similar delivery medium;
(2) can be viewed or reproduced;
(3) is not intended to and does not violate a provision of Chapter 30, Article 37 NMSA 1978; and
(4) is intended for reasonable commercial exploitation for the delivery medium used;
G. "film production company" means a person that produces one or more films or any part of a film;
H. "fiscal year" means the state fiscal year beginning on July 1;
I. "New Mexico resident" means an individual who is domiciled in this state during any part of the taxable year or an individual who is physically present in this state for one hundred eighty-five days or more during the taxable year; but any individual, other than someone who was physically present in the state for one hundred eighty-five days or more during the taxable year and who, on or before the last day of the taxable year, changed the individual's place of abode to a place without this state with the bona fide intention of continuing actually to abide permanently without this state is not a resident for the purposes of the Film Production Tax Credit Act for periods after that change of abode;
J. "personal services business" means a business organization that receives payments for the services of a performing artist;
K. "physical presence" means a physical address in New Mexico [but does not include a post office box or other mail drop enterprise unless the physical presence is for a business and the business is providing mail services to a film production company] from which a vendor conducts business, stores inventory or otherwise creates, assembles or offers for sale the product purchased or leased by a film production company;
L. "postproduction expenditure" means an expenditure for editing, Foley recording, automatic dialogue replacement, sound editing, special effects, including computer-generated imagery or other effects, scoring and music editing, beginning and end credits, negative cutting, soundtrack production, dubbing, subtitling or addition of sound or visual effects; but not including an expenditure for advertising, marketing, distribution or expense payments; [and]
M. "qualified production facility" means a building or complex of buildings and their improvements and associated back-lot facilities in which films are or are intended to be regularly produced and that contain at least one sound stage with contiguous, clear-span floor space of at least seven thousand square feet and a ceiling height of no less than twenty-one feet; and
[M.] N. "vendor" means a person selling goods or services that has a physical presence in New Mexico and is subject to gross receipts tax pursuant to the Gross Receipts and Compensating Tax Act and income tax pursuant to the Income Tax Act or corporate income tax pursuant to the Corporate Income and Franchise Tax Act, but excludes services provided by nonresidents hired or subcontracted if:
(1) the tasks and responsibilities are associated with the standard industry job position of:
(a) a director;
(b) a writer;
(c) a producer;
(d) an associate producer;
(e) a co-producer;
(f) an executive producer;
(g) a production supervisor;
(h) a director of photography;
(i) a motion picture driver whose sole responsibility is driving;
(j) a production or personal assistant; or
(k) a carpenter and utility technician at an entry level; and
(2) tasks and responsibilities are associated with nonstandard industry job positions and personal support services."
SECTION 3. REPEAL.--Laws 2011, Chapter 165, Section 3 is
repealed.
SECTION 4. APPLICABILITY.--The provisions of Subsection E of Section 7-2F-1 NMSA 1978 apply to fiscal year 2013 and subsequent fiscal years.
SECTION 5. EMERGENCY.--It is necessary for the public
peace, health and safety that this act take effect immediately.
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