2014 -- H 7561

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LC004808

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO TAXATION - MUSICAL AND THEATRICAL PRODUCTION TAX

CREDITS

     Introduced By: Representatives Almeida, Williams, Marshall, O'Brien, and Carnevale

     Date Introduced: February 26, 2014

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 44-31.3-1 and 44-31.3-2 of the General Laws in Chapter 44-31.3

entitled "Musical and Theatrical Production Tax Credits" are hereby amended to read as follows:

     44-31.3-1. Declaration of purpose. -- The general assembly finds and declares that it is

Rhode Island's priority to reduce the state's unemployment rate by stimulating new industries that

have large employment growth potential by providing tax incentives and other means necessary

and therefore recognizes that such incentives should be created for the arts and entertainment

industry. The purpose of this chapter is to create economic incentives for the purpose of

stimulating the local economy and reducing unemployment in Rhode Island and to help develop

the performing arts in Rhode Island and the technical trades associated in the furtherance of the

arts and entertainment.

     44-31.3-2. Musical and Theatrical Production Tax Credits. -- (a) Definitions. - As

used in this chapter:

      (1) "Accredited theater production" means a for-profit or nonprofit live stage

presentation in a qualified production facility, as defined in this chapter that is either: (i) A Pre-

Broadway production, or (ii) A Post-Broadway production, (iii) An off-Broadway production,

(iv) A new work production; or (v) A tour technical production.

      (2) "Accredited theater production certificate" means a certificate issued by the film

office certifying that the production is an accredited theater production that meets the guidelines

of this chapter.

      (3) "Advertising and public relations expenditure" means costs incurred within the state

by the accredited theater productions for goods or services related to the national marketing,

public relations, creation and placement of print, electronic, television, billboards and other forms

of advertising to promote the accredited theater production.

      (4) "Payroll" means all salaries, wages, fees, and other compensation including related

benefits for services performed and costs incurred within Rhode Island.

      (5) "Pre-Broadway Production" means a live stage production that, in its original or

adaptive version, is performed in a qualified production facility having a presentation scheduled

for Broadway's theater district in New York City within (12) months after its Rhode Island

presentation.

      (6) "Post-Broadway production" means a live stage production that, in its original or

adaptive version, is performed in a qualified production facility and opens its US tour in Rhode

Island after a presentation scheduled for Broadway's theater district in New York City.

      (7) "Production and Performance Expenditures" means a contemporaneous exchange of

cash or cash equivalent for goods or services related to development, production, performance or

operating expenditures incurred in this state for a qualified theater production including, but not

limited to, expenditures for design, construction and operation, including sets, special and visual

effects, costumes, wardrobes, make-up, accessories, costs associated with sound, lighting,

staging, payroll, transportation expenditures, advertising and public relations expenditures,

facility expenses, rentals, per diems, accommodations and other related costs.

      (8) "Qualified Production Facility" means a facility located in the State of Rhode Island

in which live theatrical or musical productions are, or are intended to be, exclusively presented

that contains at least one stage, permanent or portable, a seating capacity of one thousand five

hundred (1,500) five hundred (500) or more seats, and dressing rooms, storage areas, and other

ancillary amenities necessary for the accredited theater production; provided, further, facilities

may be a temporary or a repurposed facility for purposes of this definition.

      (9) "Resident" or "Rhode Island resident" means for the purpose of determination of

eligibility for the tax incentives provided by this chapter, an individual who is domiciled in the

State of Rhode Island or who is not domiciled in this state but maintains a permanent place of

abode in this state and is in this state for an aggregate of more than one hundred eighty-three

(183) days of the taxable year, unless the individual is in the armed forces of the United States.

      (10) "Rhode Island film and television office" means the office within the department of

administration culture and tourism that has been established in order to promote and encourage

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the locating of film and television productions within the state of Rhode Island. The office is also

referred to as the "film office".

      (11) (i) "Transportation expenditures" means expenditures for the packaging, crating,

and transportation both to the state for use in a qualified theater production of sets, costumes, or

other tangible property constructed or manufactured out of state, and/or from the state after use in

a qualified theater production of sets, costumes, or other tangible property constructed or

manufactured in this state and the transportation of the cast and crew to and from the state. Such

term shall include the packaging, crating, and transporting of property and equipment used for

special and visual effects, sound, lighting, and staging, costumes, wardrobes, make-up and related

accessories and materials, as well as any other performance or production-related property and

equipment.

      (ii) Transportation expenditures shall not include any costs to transport property and

equipment to be used only for filming and not in a qualified theater production, any indirect costs,

and expenditures that are later reimbursed by a third party, or any amounts that are paid to

persons or entities as a result of their participation in profits from the exploitation of the

production.

     (12) "Off-Broadway" means a non-touring live stage production presented for an

audience in a qualified production facility.

     (13) "New work production" means an original, theatrical, musical, or reinterpreted work

developed and performed in a qualified production facility.

     (14) "Tour technical production" means a theatrical or musical work constructed and/or

assembled, and rehearsed for a tour that utilizes a qualified production facility.

      (b) Tax Credit.

      (1) Any person, firm, partnership, trust, estate or other entity that receives an accredited

theater production certificate shall be allowed a tax credit equal to twenty-five percent (25%)

thirty-five percent (35%) of the total production and performance expenditures and transportation

expenditures for the accredited theater production and to be computed as provided in this chapter

against a tax imposed by chapters 11, 12, 13, 14, 17 and 30 of this title. Said credit shall not

exceed five million dollars ($5,000,000) and shall be limited to certified production cost directly

attributable to activities in the state and transportation expenditures defined above. The total

production budget shall be a minimum of one hundred thousand dollars ($100,000), and for a

theatrical or musical performance or construction, the total production budget shall be fifty

thousand dollars ($50,000).

      (2) No more than fifteen million dollars ($15,000,000) thirty million dollars

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($30,000,000) in total may be issued for any tax year for motion picture tax credits pursuant to

chapter 31.2 of this title and/or musical and theatrical production tax credits pursuant to this

chapter. Said credits shall be equally available to motion picture productions and musical and

theatrical productions. No specific amount shall be set aside for either type of production.

      (3) The tax credit shall be allowed against the tax for the taxable period in which the

credit is earned and can be carried forward for not more than three (3) succeeding tax years.

      (4) Credits allowed to a company, which is a subchapter S corporation, partnership, or a

limited liability company that is taxed as a partnership, shall be passed through respectively to

persons designated as partners, members or owners on a pro rata basis or pursuant to an executed

agreement among such persons designated as subchapter S corporation shareholders, partners, or

members documenting an alternate distribution method without regard to their sharing of other

tax or economic attributes of such entity.

      (5) If the company has not claimed the tax credits in whole or part, taxpayers eligible for

the tax credits may assign, transfer or convey the tax credits, in whole or in part, by sale or

otherwise to any individual or entity and such assignee of the tax credits that have not claimed the

tax credits in whole or part may assign, transfer or convey the tax credits, in whole or in part, by

sale or otherwise to any individual or entity. The assignee of the tax credits may use acquired

credits to offset up to one hundred percent (100%) of the tax liabilities otherwise imposed

pursuant to chapter 11, 12, 13 (other than the tax imposed under section 44-13-13), 14, 17 or 30

of this title. The assignee may apply the tax credit against taxes imposed on the assignee for not

more than three (3) succeeding tax years. The assignor shall perfect the transfer by notifying the

state of Rhode Island division of taxation, in writing, within thirty (30) calendar days following

the effective date of the transfer and shall provide any information as may be required by the

division of taxation to administer and carry out the provisions of this section.

      (6) For purposes of this chapter, any assignment or sales proceeds received by the

assignor for its assignment or sale of the tax credits allowed pursuant to this section shall be

exempt from this title.

      (7) In the case of a corporation, this credit is only allowed against the tax of a

corporation included in a consolidated return that qualifies for the credit and not against the tax of

other corporations that may join in the filing of a consolidated tax return.

      (c) Certification and administration.

      (1) The applicant shall properly prepare, sign and submit to the film office an application

for initial certification of the theater production. The application shall include such information

and data as the film office deems reasonably necessary for the proper evaluation and

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administration of said application, including, but not limited to, any information about the theater

production company and a specific Rhode Island live theater or musical production. The film

office shall review the completed application and determine whether it meets the requisite criteria

and qualifications for the initial certification for the production. If the initial certification is

granted, the film office shall issue a notice of initial certification of the accredited theater

production to the theater production company and to the tax administrator. The notice shall state

that, after appropriate review, the initial application meets the appropriate criteria for conditional

eligibility. The notice of initial certification will provide a unique identification number for the

production and is only a statement of conditional eligibility for the production and, as such, does

not grant or convey any Rhode Island tax benefits.

      (2) Upon completion of an accredited theater production, the applicant shall properly

prepare, sign and submit to the film office an application for final certification of the accredited

theater production. The final application shall also contain a cost report and an "accountant's

certification." The film office and tax administrator may rely without independent investigation,

upon the accountant's certification, in the form of an opinion, confirming the accuracy of the

information included in the cost report. Upon review of a duly completed and filed application

and upon no later than thirty (30) days of submission thereof, the division of taxation will make a

determination pertaining to the final certification of the accredited theater production and the

resultant tax credits.

      (3) Upon determination that the company qualifies for final certification and the resultant

tax credits, the tax administrator of the division of taxation shall issue to the company: (i) An

Accredited Theater Production Certificate; and (ii) A tax credit certificate in an amount in

accordance with this section (b) hereof. A musical and theatrical production company is

prohibited from using state funds, state loans or state guaranteed loans to qualify for the motion

picture tax credit. All documents that are issued by the film office pursuant to this section shall

reference the identification number that was issued to the production as part of its initial

certification.

      (4) The director of the department of administration, in consultation as needed with the

tax administrator, shall promulgate such rules and regulations as are necessary to carry out the

intent and purposes of this chapter in accordance with the general guidelines provided herein for

the certification of the production and the resultant production credit.

      (5) If information comes to the attention of the film office that is materially inconsistent

with representations made in an application, the film office may deny the requested certification.

In the event that tax credits or a portion of tax credits are subject to recapture for ineligible costs

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and such tax credits have been transferred, assigned and/or allocated, the state will pursue its

recapture remedies and rights against the applicant of the theater production tax credits. No

redress shall be sought against assignees, sellers, transferees or allocates of such credits.

      (d) Information requests.

      (i) The director of the film office and his or her agents, for the purpose of ascertaining

the correctness of any credit claimed under the provisions of this chapter, may examine any

books, paper, records, or memoranda bearing upon the matters required to be included in the

return, report, or other statement, and may require the attendance of the person executing the

return, report, or other statement, or of any officer or employee of any taxpayer, or the attendance

of any other person, and may examine the person under oath respecting any matter which the

director or his or her agent deems pertinent or material in administration and application of this

chapter and where not inconsistent with other legal provisions, the director may request

information from the tax administrator.

      (ii) The tax administrator and his or her agents, for the purpose of ascertaining the

correctness of any credit claimed under the provisions of this chapter, may examine any books,

paper, records, or memoranda bearing upon the matters required to be included in the return,

report, or other statement, and may require the attendance of the person executing the return,

report, or other statement, or of any officer or employee of any taxpayer, or the attendance of any

other person, and may examine the person under oath respecting any matter which the tax

administrator or his or her agent deems pertinent or material in determining the eligibility for

credits claimed and may request information from the film office, and the film office shall

provide the information in all cases to the tax administrator.

      (e) The film office shall comply with the impact analysis and periodic reporting

provisions of section 44-31.2-6.1.

     SECTION 2. Section 44-31.3-4 of the General Laws in Chapter 44-31.3 entitled "Musical

and Theatrical Production Tax Credits" is hereby repealed.

     44-31.3-4. Sunset. -- No credits shall be issued on or after July 1, 2019 unless the

production has received initial certification under subsection 44-31.3-2(c) prior to July 1, 2019.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TAXATION - MUSICAL AND THEATRICAL PRODUCTION TAX

CREDITS

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     This act would add "the development of the performing arts and associated trades" to the

state musical and theatrical production tax credits and would define and add off-Broadway

production, new work productions and tour technical productions to the definition of an

"accredited theater production", and would further raise the amounts of the tax credits allowed,

and would amend the necessary minimum budget size for qualified productions, and lastly would

repeal the sunset provision.

     This act would take effect upon passage.

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