House Bill 58, Alabama Jobs Act, Gives State Jobs Tax Credit and Capital Investment Credit

by Bradley Arant Boult Cummings LLP
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HB58, one of five bills that constitute what has been described as the most significant overhaul of Alabama economic development since Mercedes-Benz came to the state, became law on Friday, April 3 (effective July 2). The Alabama Jobs Act, Act 2015-27 (the “Act”), gives Alabama a jobs tax credit, putting it in line with its neighboring states, and also creates a transferable capital investment credit to replace the existing capital credit.

Overview

The Act creates two distinct credits which are available to qualifying projects on a discretionary basis: The first is a jobs credit in the amount of up to 3 percent of the previous year’s annual wages of eligible employees. The second is a capital investment credit in the amount of up to 1.5 percent of qualified annual capital investment. Each credit is available for up to the first 10 years of a project. Qualifying projects can claim one or both of the credits if both are offered to the project by the Governor upon the recommendation of the Department of Commerce.

Requirements

In order to receive one or both of the credits, the Department of Commerce must find that a project meets several requirements, each of which are described in more detail below. First, the project must be a qualifying project. Second, the qualifying project must create the requisite number of jobs filled by Alabama residents. Third, the company proposing the project must be an approved company. Fourth, there must be a project agreement between the Governor and the approved company. Fifth, prior to claiming the credit, the company must provide proof of the wages paid or investment made.

I. Qualifying Project

A project must fall within certain NAICS codes to qualify. The Act keeps the qualifying NAICS codes of existing Alabama incentive law. However, the Act makes several important additions. It adds national security, electric power generation, pipeline and related industries, motion picture and record production, internet publishing, financial transaction processing, engineering and drafting services, and a variety of other industries.

II. Jobs

Projects must also create a “significant” number of new jobs filled by Alabama residents for the geographic area in which the qualifying project will be located. The Act provides that, absent a finding by the Secretary of Commerce of “extraordinary circumstances,” the requirement will be fulfilled through creation of at least 50 new jobs. Importantly, the requirement of a “significant” number of new jobs can potentially be met by “any number” of new jobs for projects in the chemical manufacturing, data center, engineering, design, research, metal/machining technology, or toolmaking industries.

III. Approved Company

In order to be an approved company, the Secretary of Commerce must make several findings: First, that the project is a qualifying project. Second, that the project under evaluation would not decrease Alabama exports directly or indirectly. Third, that a cost-benefit analysis shows that the benefit to the state, through anticipated tax revenues, exceeds the cost of the project incentives.

IV. Project Agreement

The approved company and the Governor must sign a project agreement which includes, among other items, the following: The incentives to be granted and the order in which they will be claimed, the capital investment to be made and the time period in which it will be made, the number of eligible employees, the dates or conditions that start the incentive period, the length of the incentive period(s) for the project, annual and/or aggregate limitations on the credit amount(s), recapture provisions, and whether the project agreement is assignable.

V. Proof

Prior to claiming any credit, the approved company will submit annual certifications of jobs created, wages paid, and capital investment made, as applicable, to the Department of Commerce. The Act provides that these filings will be treated as tax returns and thus subject to the enforcement mechanisms of the Department of Revenue.

Mechanics

The jobs credit may be claimed against the company’s utility taxes paid, and includes a five-year carryforward of unused credit. Alternatively, the company may elect to have the credit paid out of utility taxes paid to the state generally (without regard to how much utility tax the company has actually incurred and paid).

The capital investment credit can be claimed against the income tax (or as a credit toward estimated payments of the tax), financial institution excise tax, insurance premium tax (or as a credit toward estimated payments of the tax), utility tax, or some combination thereof.

Importantly, the investment credit is transferable for the first three years of a project. The credit must be sold at a minimum of 85 percent of face value. The transferee is free of recapture obligations unless the transfer was fraudulent.

The credits of the Act replace the existing capital credit, the Made in Alabama Act of 2012 credits, and the tariff credit. Companies that wish to seek the existing capital credit can file Form INT-1 by January 2, 2016 (within six months of the effective date of the Act) to claim it. However, a project electing to proceed under the existing capital credit must forgo incentives under the Act.

Governance Provisions

The Act contains a variety of measures designed to help Alabama be a good steward of public resources. The structure of the Act’s incentives means that the construction activity of a project as well as payment of withholding taxes, sales taxes, property taxes, and other taxes and fees will occur before the credit is utilized. This creates a pay-as-you-go system. The Act also provides that the project agreement can place annual and/or aggregate limits on the credits and caps the aggregate outstanding incentives under the Act at $850 million, unless that limit is waived by a joint resolution of both houses of the Alabama Legislature.

The Governor continues to have the final say over whether a company is approved for the credits. The Governor can also reduce incentive amounts and durations so that the economic benefit to the state exceeds their cost.

The Department of Commerce and other relevant state agencies are still working out the implementation of the Act, so expect some additional guidance in the near future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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