HB0346

HOUSE BILL 346

54th legislature - STATE OF NEW MEXICO - second session, 2020

INTRODUCED BY

Rod Montoya and Gregg Schmedes and David M. Gallegos and

James R.J. Strickler

AN ACT

RELATING TO TAXATION; ENACTING THE EQUAL EDUCATIONAL ACCESS SCHOLARSHIP ACT; PROVIDING FOR TUITION SCHOLARSHIP ORGANIZATIONS TO GRANT EDUCATIONAL SCHOLARSHIPS TO LOW-INCOME STUDENTS TO ATTEND NONPUBLIC SCHOOLS; CREATING INCOME TAX AND CORPORATE INCOME TAX CREDITS FOR CONTRIBUTIONS TO TUITION SCHOLARSHIP ORGANIZATIONS THAT PROVIDE EDUCATIONAL SCHOLARSHIPS FOR LOW-INCOME STUDENTS TO ATTEND NONPUBLIC SCHOOLS OF THE STUDENT'S PARENTS' CHOICE.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Equal Educational Access Scholarship Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Equal Educational Access Scholarship Act:

A. "certification document" means the document issued by the department to an organization verifying that the organization is a tuition scholarship organization and contributions to that organization for equal educational access scholarships may be claimed as an equal educational access scholarship tax credit;

B. "contribution receipt" means a document developed by the taxation and revenue department pursuant to the Equal Educational Access Scholarship Act and provided to a tuition scholarship organization that in turn provides the document to an individual or corporate contributor that is a taxpayer that intends to claim an equal educational access scholarship tax credit as a receipt for a contribution to the tuition scholarship organization;

C. "department" means the public education department;

D. "educational scholarship" means a tuition grant or other grant of funds to an eligible student to cover all or part of the costs of that student at a qualified school, including transportation costs;

E. "eligible student" means a student who:

(1) is a member of a household for which the total annual income does not exceed an amount used to qualify for a reduced-price lunch through the federal school lunch programs established pursuant to 42 USCA Sections 1751 through 1769, as amended; provided that once a student receives a scholarship pursuant to the Equal Educational Access Scholarship Act, the student shall remain eligible regardless of household income until the student graduates from high school or reaches twenty-one years of age;

(2) attended a New Mexico public school for a full school year prior to first receiving an educational scholarship pursuant to the Equal Educational Access Scholarship Act or is starting school in New Mexico for the first time; and

(3) resides in New Mexico while receiving a scholarship from a tuition scholarship organization;

F. "equal educational access scholarship tax credit" means the equal educational access scholarship income tax credit provided in the Income Tax Act and the equal educational access scholarship corporate income tax credit provided in the Corporate Income and Franchise Tax Act;

G. "home school" means the operation by the parent of a school-age person of a home study program of instruction that provides a basic academic educational program, including reading, language arts, mathematics, social studies and science;

H. "parent" means a guardian, custodian or other person with authority to act on behalf of a child;

I. "qualified school" means a nonpublic elementary, middle or secondary school located in New Mexico to which a parent has chosen to send an eligible student. "Qualified school" does not include a home school;

J. "relative" means a person related by affinity or consanguinity to the third degree;

K. "tuition grant" means a grant of funds for the purpose of covering the costs of tuition for a qualified school; and

L. "tuition scholarship organization" means an organization that provides educational scholarships to students attending qualified schools of their parents' choice and that meets the criteria established in the Equal Educational Access Scholarship Act.

SECTION 3. [NEW MATERIAL] TUITION SCHOLARSHIP ORGANIZATION--CERTIFICATION.--

A. An organization may seek certification from the department as a tuition scholarship organization by submitting an application for certification to the department.

B. To be certified as a tuition scholarship organization by the department, the organization shall provide documentation as deemed appropriate by the department to verify that:

(1) the tuition scholarship organization has been granted an exemption from federal income tax as an organization described in Section 501(c)(3) of the federal Internal Revenue Code of 1986, as that section may be amended or renumbered;

(2) the tuition scholarship organization has awarded or intends to award educational scholarships to eligible students who are attending or plan to attend qualified schools;

(3) the scholarships are funded from contributions that the tuition scholarship organization has received in or prior to the current calendar year or anticipates receiving during the remainder of the calendar year and:

(a) at least ninety percent of the contributions received during a calendar year for which the tuition scholarship organization issues a contribution receipt to an individual or a corporate taxpayer for purposes of obtaining an equal educational access scholarship tax credit is awarded by the organization as educational scholarships and all revenue from interest or investments is expended solely on educational scholarships in the same calendar year; and

(b) the average annual scholarship award to eligible students shall not exceed eighty percent of the three-year rolling average of the final unit value multiplied by the quotient of the final membership units divided by the total membership used to determine the prior year final unit value;

(4) the tuition scholarship organization distributes scholarship payments each semester as checks that are mailed to the qualified school in which the eligible student is enrolled and that require the endorsement of the parent and the qualified school prior to deposit of the check;

(5) educational scholarships awarded by the tuition scholarship organization are portable during the school year and can be used at any qualified school that accepts the eligible student according to a parent's wishes; provided that the scholarship shall be prorated between schools based on the number of days attended at each school by the eligible student;

(6) criminal background checks on all of the tuition scholarship organization's employees and board members have been conducted by the organization, with the understanding that individuals who might reasonably pose a risk to the sound fiscal management of the funds of the organization shall be excluded from employment or governance, and all pertinent findings on employees and board members have been provided to the department for review and approval; and

(7) the tuition scholarship organization has in place systems to provide for financial accountability, including independent annual audits that shall be submitted to the department in the form of a financial information report that complies with generally accepted accounting procedures as specified by the department and is certified to be free of material misstatements by the certified public accountant who performed the audit.

SECTION 4. [NEW MATERIAL] TUITION SCHOLARSHIP ORGANIZATION--DUTIES.--

A. No later than thirty days prior to the start of a new school year or the start of a new semester, a tuition scholarship organization shall provide to the department the names of eligible students who received scholarships and the students' previous school district or charter school affiliation. The tuition scholarship organization shall provide verification that the qualified students have been awarded a tuition scholarship and have enrolled in a nonpublic school for the new school year or the new semester.

B. A tuition scholarship organization shall ensure that a school participating in the tuition scholarship organization's scholarship program certifies that the school:

(1) is in compliance with all health and safety laws or rules that apply to schools;

(2) does not discriminate in admissions on the basis of race, color or national origin;

(3) ensures that every school employee with unsupervised access to students has undergone a background check as described in Subsection B of Section 22-10A-5 NMSA 1978;

(4) has no paid staff or board members who are also staff or board members of the tuition scholarship organization or who are relatives of the staff or board members of the tuition scholarship organization;

(5) gives enrollment preference to eligible students who were enrolled at the school in the prior year and to siblings of eligible students already admitted to or attending the school; and

(6) is a qualified school and, if the school has more applications for educational scholarships from eligible students than positions available for students receiving scholarships, the school fills the available scholarship positions only by using a random selection process.

C. By June 1 of each year beginning in 2021, a tuition scholarship organization shall report the following information to the department and the taxation and revenue department:

(1) the name and address of the tuition scholarship organization;

(2) the total number and dollar amount of contributions received for which contribution receipts were issued during the calendar year ending on December 31 of the prior year;

(3) the total number and dollar amount of all educational scholarships awarded during the calendar year ending on December 31 of the prior year; and

(4) the total number and dollar amount of educational scholarships awarded to eligible students during the calendar year ending on December 31 of the prior year.

D. A tuition scholarship organization shall:

(1) provide to each individual and corporate contributor of funds dedicated for educational scholarships a contribution receipt that shall be completed according to taxation and revenue department requirements;

(2) maintain a list by the sequential number on the contribution receipt identifying to whom each copy is issued, the amount and date of the contribution and any other information deemed necessary by the taxation and revenue department to allow the contributor to receive an equal educational access scholarship tax credit;

(3) account for all copies of contribution receipts damaged, destroyed, lost or otherwise unusable; and

(4) engage an auditor to conduct a financial and program unit audit of a tuition scholarship organization, at the expense of the tuition scholarship organization, on an annual basis.

SECTION 5. [NEW MATERIAL] DEPARTMENT--DUTIES.--

A. The department shall administer the Equal Educational Access Scholarship Act.

B. The department shall:

(1) provide the name of each certified tuition scholarship organization to the taxation and revenue department by no later than thirty days after issuing the certification document to the tuition scholarship organization;

(2) upon notification by the tuition scholarship organization, calculate the associated program units by multiplying the prior year final unit value by the quotient derived by dividing the final membership units by the total membership used to determine the prior year final unit value;

(3) if an eligible student receiving an educational scholarship withdraws prior to the start of a new school year, deduct the amount calculated pursuant to Paragraph (2) of this subsection from the student's previous school district or charter school state equalization guarantee distribution allocation prior to distribution;

(4) if an eligible student receiving an educational scholarship withdraws between semesters, make a reduction equal to the amount calculated pursuant to Paragraph (2) of this subsection in the school district's or charter school's distribution for the remainder of the school year and not distribute the funds attributed to the adjustments, which shall remain undistributed and shall revert to the general fund at the end of the fiscal year;

(5) deny, suspend or revoke the certification of a tuition scholarship organization for purposes of the equal educational access scholarship tax credit if the department determines that the organization has intentionally and substantially failed to comply with the requirements of the Equal Educational Access Scholarship Act; and

(6) notify the taxation and revenue department if the certification of an organization as a tuition scholarship organization is denied, suspended or revoked within ten days of the denial, suspension or revocation.

SECTION 6. A new section of the Income Tax Act is enacted to read:

"[NEW MATERIAL] EQUAL EDUCATIONAL ACCESS SCHOLARSHIP INCOME TAX CREDIT.--

A. A taxpayer who files a New Mexico income tax return, is not a dependent of another taxpayer and makes a contribution to a tuition scholarship organization pursuant to this section may apply for, and the department may allow, a tax credit against the taxpayer's liabilities imposed pursuant to the Income Tax Act. The tax credit provided by this section may be referred to as the "equal educational access scholarship income tax credit".

B. The amount of an equal educational access scholarship income tax credit shall equal the total contributions made by a taxpayer to a tuition scholarship organization in a taxable year. If the total amount of equal educational access scholarship income tax credits exceeds the taxpayer's liabilities imposed pursuant to the Income Tax Act for the taxable year in which a contribution was made, the excess may be carried forward for three consecutive taxable years.

C. To receive an equal educational access scholarship income tax credit, a taxpayer shall apply to the department on forms and in the manner prescribed by the department. The application shall include a numbered copy of the contribution receipt provided by the tuition scholarship organization to the taxpayer pursuant to Subsection E of this section.

D. To ensure that the department receives the information needed to allow an equal educational access scholarship income tax credit, the department shall develop a contribution receipt that requests all of the information needed by the department to determine if a credit may be allowed. The contribution receipts shall be sequentially numbered.

E. Upon receiving notice from the public education department that an organization has been certified as a tuition scholarship organization, the taxation and revenue department shall provide sequentially numbered copies of contribution receipts to the tuition scholarship organization to be distributed by the tuition scholarship organization to its contributors to indicate the recipient, date and value of a contribution to the tuition scholarship organization and other information required by the taxation and revenue department.

F. The equal educational access scholarship income tax credit shall not be allowed for a contribution that is included for the taxable year in the taxpayer's itemized deductions, as defined in Section 63 of the Internal Revenue Code.

G. Married individuals who file separate returns for a taxable year in which they could have filed a joint return may each claim only one-half of the equal educational access scholarship income tax credit that would have been allowed on a joint return.

H. A taxpayer may be allocated the right to claim an equal educational access scholarship income tax credit in proportion to the taxpayer's ownership interest if the taxpayer owns an interest in a business entity that is taxed for federal income tax purposes as a partnership or limited liability company and that business entity has met all of the requirements to be eligible for the credit.

I. A taxpayer allowed a tax credit pursuant to this section shall report the amount of the credit to the department in a manner required by the department.

J. The department shall compile an annual report on the equal educational access scholarship income tax credit that shall include the number of taxpayers approved by the department to receive the credit, the aggregate amount of credits approved and any other information necessary to evaluate the credit. The department shall present the report to the revenue stabilization and tax policy committee and the legislative finance committee with an analysis of the credit.

K. As used in this section:

(1) "eligible student" means a student who:

(a) is a member of a household for which the total annual income does not exceed an amount used to qualify for a reduced-price lunch through the federal school lunch programs established pursuant to 42 USCA Sections 1751 through 1769, as amended; provided that once a student receives a scholarship pursuant to the Equal Educational Access Scholarship Act, the student shall remain eligible regardless of household income until the student graduates from high school or reaches twenty-one years of age;

(b) attended a New Mexico public school for a full school year prior to first receiving an educational scholarship pursuant to the Equal Educational Access Scholarship Act or is starting school in New Mexico for the first time; and

(2) "parent" means a guardian, custodian or other person with authority to act on behalf of a child; and

(3) "tuition scholarship organization" means an organization that provides educational scholarships to students attending qualified schools of their parents' choice and that meets the requirements of the Equal Educational Access Scholarship Act."

SECTION 7. A new section of the Corporate Income and Franchise Tax Act is enacted to read:

"[NEW MATERIAL] EQUAL EDUCATIONAL ACCESS SCHOLARSHIP CORPORATE INCOME TAX CREDIT.--

A. A taxpayer that files a New Mexico corporate income tax return and makes a contribution to a tuition scholarship organization pursuant to this section may apply for, and the department may allow, a tax credit against the taxpayer's liabilities imposed pursuant to the Corporate Income and Franchise Tax Act. The tax credit provided by this section may be referred to as the "equal educational access scholarship corporate income tax credit".

B. The amount of an equal educational access scholarship corporate income tax credit shall equal the total contributions made by a taxpayer in a taxable year to a tuition scholarship organization in a taxable year. If the total amount of equal educational access scholarship corporate income tax credits exceeds the taxpayer's liabilities imposed pursuant to the Corporate Income and Franchise Tax Act for the taxable year in which a contribution was made, the excess may be carried forward for three consecutive taxable years.

C. To receive an equal educational access scholarship corporate income tax credit, a taxpayer shall apply to the department on forms and in the manner prescribed by the department. The application shall include a numbered copy of the contribution receipt provided by the tuition scholarship organization to the taxpayer pursuant to Subsection E of this section.

D. To ensure that the department receives the information needed to allow an equal educational access scholarship corporate income tax credit, the department shall develop a contribution receipt that requests all of the information needed by the department to determine if a credit may be allowed. The contribution receipts shall be sequentially numbered.

E. Upon receiving notice from the public education department that an organization has been certified as a tuition scholarship organization, the taxation and revenue department shall provide sequentially numbered copies of contribution receipts to a tuition scholarship organization to be distributed by the tuition scholarship organization to its contributors to indicate the recipient, date and value of a contribution to the tuition scholarship organization and other information required by the taxation and revenue department.

F. The equal educational access scholarship corporate income tax credit shall not be allowed for a contribution that is included for the taxable year in the taxpayer's itemized deductions, as defined in Section 63 of the Internal Revenue Code.

G. A taxpayer allowed a tax credit pursuant to this section shall report the amount of the credit to the department in a manner required by the department.

H. The department shall compile an annual report on the equal educational access scholarship corporate income tax credit that shall include the number of taxpayers approved by the department to receive the credit, the aggregate amount of credits approved and any other information necessary to evaluate the credit. The department shall present the report to the revenue stabilization and tax policy committee and the legislative finance committee with an analysis of the credit.

I. As used in this section:

(1) "eligible student" means a student who:

(2) "parent" means a guardian, custodian or other person with authority to act on behalf of a child; and

(3) "tuition scholarship organization" means an organization that provides educational scholarships to students attending qualified schools of their parents' choice pursuant to the Equal Educational Access Scholarship Act."

SECTION 8. APPLICABILITY.--The provisions of Sections 6 and 7 of this act apply to taxable years beginning on or after January 1, 2020.

SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2020.

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