Revision: Feb. 6, 2017, 8:02 a.m.
SB 205-FN-A - AS INTRODUCED
2017 SESSION
17-0139
10/01
SENATE BILL 205-FN-A
AN ACT establishing the small business jobs fund and tax credit.
SPONSORS: Sen. Bradley, Dist 3; Sen. Innis, Dist 24; Sen. Daniels, Dist 11; Sen. D'Allesandro, Dist 20; Sen. Giuda, Dist 2; Sen. Avard, Dist 12; Rep. Abrami, Rock. 19; Rep. Hinch, Hills. 21
COMMITTEE: Ways and Means
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This bill establishes the small business jobs fund act and tax credit administered by the department of resources and economic development.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
17-0139
10/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seventeen
AN ACT establishing the small business jobs fund and tax credit.
Be it Enacted by the Senate and House of Representatives in General Court convened:
I. The general court finds that across the nation, small businesses account for up to 66 percent of all new jobs created annually. The New Hampshire economy is no different. Consequently, a need exists for a small business jobs program that complements existing traditional lending and investment sources to fill the widening gap of financing largely unavailable to the state’s many small businesses and startups. Through the establishment of the small business jobs fund, New Hampshire will attract private investment dollars for “Main Street” small businesses and stimulate growth across a breadth of industries including but not limited to advanced manufacturing, plant sciences, agribusiness, mining, clean energy, cybersecurity, information technology, defense, life sciences, and biotechnology.
II. Small and startup businesses in this state have found it difficult to attract capital necessary to make investments that would stimulate economic development activity and create new jobs for the citizens of the state. Consequently, a need exists to attract capital that promotes the retention and expansion of existing jobs, stimulates the creation of new jobs, attracts new business and industry to the state, and stimulates growth in businesses that are prepared to make meaningful investments and foster job creation.
III. Through the establishment of a small business jobs fund tax credit program, New Hampshire can take steps to attract capital to stimulate venture, growth, and expansion-stage investment; retain and attract new business and industry to the state; create good-paying jobs; and stimulate growth in startup businesses and other businesses that are poised for growth.
2 Short Title. This act, establishing RSA 162-S, shall be known and may be cited as the “small business jobs fund act.”
3 New Chapter; Small Business Jobs Fund. Amend RSA by inserting after chapter 162-R the following new chapter:
CHAPTER 162-S
SMALL BUSINESS JOBS FUND
162-S:1 Definitions. In this chapter:
I. “Affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with another entity. For the purposes of this chapter, an entity is “controlled by” another entity if the controlling person holds, directly or indirectly, the majority voting or ownership interest in the controlled person or has control over the day-to-day operations of the controlled person by contract or by law.
II. “Closing date” means the date on which a small business jobs fund has collected all of the amounts specified in RSA 162-S:2.
III. "Credit available for use" means any credit awarded under this chapter for a tax period but not applied against a tax due. It shall also include any unused credit from a prior tax period.
IV. “Credit-eligible capital contribution” means an investment of cash by a person subject to tax under RSA 400-A, RSA 77-E, or RSA 77-A in a small business jobs fund that equals the amount specified on a tax credit certificate issued by the department under RSA 162-S:2, V. The investment shall purchase an equity interest in the small business jobs fund or purchase, at par value or premium, a debt instrument issued by the small business jobs fund that has a maturity date at least 6 years from the closing date.
V. “Department” means the department of resources and economic development.
VI. “Growth business” means a business that, at the time of the initial investment in the company by a small business jobs fund:
(a) Has less than 250 employees and not more than $10,000,000 in net income for the preceding taxable year;
(b) Has its principal business operations in the state; and
(c) Is engaged in industries related to manufacturing, plant sciences, agribusiness, mining, clean energy, cybersecurity, information technology, defense, life sciences, biotechnology or, if not engaged in such industries, the department makes a determination that the investment will be highly beneficial to the economic growth of the state.
VII. "Growth investment” means an investment of equity capital or debt capital, with a stated maturity at least one year after the date of issuance, in a growth business after the effective date of this chapter. However, the term does not include debt that is secured by a mortgage, security agreement, or other agreement or document that establishes a collateral or security position for the small business jobs fund that is senior to all collateral or security interests of other lenders to the growth business, unless the growth business provides a sworn affidavit to the small business jobs fund that the growth business applied for and was denied similar financing from a federally insured depository institution prior to the date of issuance of the growth investment.
VIII. “Investment authority” means the amount stated on the notice issued under RSA 162-S:2, V certifying the small business jobs fund. At least 60 percent of a small business jobs fund's investment authority shall be comprised of credit-eligible capital contributions.
IX. “Principal business operations” of a business are located at the place or places where at least 60 percent of its employees work or where employees that are paid at least 60 percent of its payroll work. An out-of-state business that has agreed to relocate employees using the proceeds of a growth investment to establish its principal business operations in the state shall be deemed to have its principal business operations in this new location provided it satisfies this definition within 180 days after receiving the growth investment, unless the department agrees to a later date.
X. “Revenue impact assessment” means projection of the impact on the state’s gross domestic product, as well as state and local tax revenue, prepared by a nationally recognized third-party independent economic forecasting firm using a dynamic economic forecasting model, of an applicant’s proposed growth investments over a 10-year period, which shall include a projected number of jobs created and retained as a result of such investments.
XI. “Small business jobs fund” means an entity certified by the department under RSA 162-S:2.
162-S:2 Application, Approval and Allocations.
I. Beginning not more than 90 days after the effective date of this chapter, which shall be set by the department within 30 days of the effective date of this chapter, the department shall accept applications for approval as a small business jobs fund. The application shall include all of the following:
(a) The total investment authority sought by the applicant under the business plan;
(b) The following documents:
(1) A copy of the applicant's or an affiliate of the applicant’s license as a rural business investment company under 7 U.S.C. section 2009cc, or as a small business investment company under 15 U.S.C. section 681.
(2) Evidence that as of the date the application is submitted, the applicant or affiliates of the applicant have invested at least $100,000,000 in non-public companies.
(3) Evidence in the form of audited financial statements of the applicant or affiliates of the applicant evidencing investments in excess of such amount accompanied by a certification of the president or similar officer of such applicant or affiliate the portion of such investments that were made in non-public companies;
(c) An estimate of the number of annual full-time job equivalents (or job-years) that will be created or retained in this state as a result of the applicant's growth investments;
(d) A revenue impact assessment that analyzes the applicant's business plan;
(e) A signed affidavit from each investor stating the amount of credit-eligible capital contributions each taxpayer commits to make; and
(f) A nonrefundable application fee of $5,000.
II. The department shall make an application determination within 30 days of receipt in the order in which the applications are received. The department shall deem applications received on the same day to have been received simultaneously. The department shall not approve more than $100,000,000 in investment authority and not more than $60,000,000 in credit-eligible capital contributions under this section. If requests for investment authority exceed this limitation, the department shall proportionally reduce the investment authority and the credit-eligible capital contributions for each approved application as necessary to avoid exceeding the limit.
III. The department shall deny an application submitted under this section only if any of the following are true:
(a) The application is incomplete or the application fee is not paid in full;
(b) The applicant does not satisfy all the criteria described in subparagraph I(b);
(c) The revenue impact assessment submitted under subparagraph I(d) does not demonstrate that the applicant's business plan will result in a positive impact on this state’s economy over a 10-year period that exceeds the cumulative amount of tax credits that would be issued to the applicant’s investors under RSA 162-S:3 if the application were approved;
(d) The credit-eligible capital contributions described in affidavits submitted under subparagraph I(e) do not equal at least 60 percent of the total amount of investment authority sought under the applicant's business plan; or
(e) The department has already approved the maximum amount of investment authority and credit-eligible capital contributions allowed under paragraph II.
IV. If the department denies an application, the applicant may provide additional information to the department to complete, clarify, or cure defects in the application identified by the department within 15 days of the notice of denial for reconsideration and determination. The department shall review and reconsider such applications within 30 days and before any pending application submitted after the original submission date of the reconsidered application.
V. The department shall not deny a small business jobs fund application or reduce the requested investment authority for reasons other than those described in paragraphs II and III. Upon approval of an application, the department shall provide a written approval to the applicant as a small business jobs fund specifying the amount of the applicant’s investment authority and a tax credit certificate to each investor whose affidavit was included in the application specifying the amount of the investor’s credit-eligible capital contribution.
VI. After receiving the approval issued under paragraph V, a small business jobs fund shall:
(a) Within 60 days:
(1) Collect the credit-eligible capital contributions from each taxpayer issued a tax credit certificate under paragraph V; and
(2) Collect one or more investments of cash that, when added to the contributions collected under subparagraph (1), equal the small business jobs fund's investment authority. At least 10 percent of the small business jobs fund's investment authority shall be comprised of equity investments contributed by affiliates of the small business jobs fund, including employees, officers, and directors of such affiliates.
(b) Within 65 days, send to the department documentation sufficient to prove that the amounts described in subparagraph (a) have been collected.
VII. If the small business jobs fund fails to fully comply with paragraph VI, the small business jobs fund's approval shall lapse and the corresponding investment authority and credit-eligible capital contributions under this section will not count toward the limits on the program size prescribed by paragraph II. The department shall first award lapsed investment authority pro rata to each small business jobs fund that was awarded less than the requested investment authority under paragraph II which a small business jobs fund may allocate to its investors in its discretion. Any remaining investment authority may be awarded by the department to new applicants.
VIII. Application fees submitted to the department pursuant to subparagraph I(f) shall be credited to the small business jobs fund account, which is hereby created, and used by the department to administer this chapter.
162-S:3 Tax Credit Established.
I. There is hereby allowed a nonrefundable tax credit for taxpayers that made a credit-eligible capital contribution to a small business jobs fund and were issued a tax credit certificate under RSA 162-S:2, V. The credit may be claimed against the taxes imposed by RSA 400-A, RSA 77-A, and RSA 77-E. The credit may not be sold, transferred, or allocated to any other entity other than an affiliate subject to the taxes imposed by RSA 400-A, RSA 77-E and RSA 77-A.
II. On the closing date, the taxpayer shall earn a vested credit equal to the amount of the taxpayer's credit-eligible capital contribution to the small business jobs fund as specified on the tax credit certificate. The taxpayer may claim up to 1/4 of the credit authorized under this section for each of the taxable years that includes the third through sixth anniversaries of the closing date, exclusive of amounts carried forward pursuant to paragraph III.
III. If the amount of the credit for a taxable year exceeds the tax otherwise due for that year, the excess shall be carried forward to ensuing taxable years until fully used. A taxpayer claiming a credit under this section shall submit a copy of the tax credit certificate with the taxpayer's return for each taxable year for which the credit is claimed.
162-S:4 Small Business Jobs Fund Tax Credit. The small business jobs fund tax credit shall be treated as follows:
I. If the small business jobs fund tax credit is applied to the business enterprise tax RSA 77-E, it shall be treated as taxes paid for the purpose of insurance premium taxes under RSA 400-A and business profits taxes under RSA 77-A.
II. If the small business jobs fund tax credit is applied to insurance premium taxes under RSA 400-A, it shall be treated as taxes paid for the purpose of the business profits tax under RSA 77-A.
III. Nothing in this section shall result in any refund being made of small business jobs fund tax credit.
162-S:5 Revocation of Tax Credit Certificates and Exit.
I. The department shall revoke a tax credit certificate issued under RSA 162-S:2 if any of the following occur with respect to a small business jobs fund before it exits the program in accordance with paragraph IV:
(a) The small business jobs fund in which the credit-eligible capital contribution was made does not invest 100 percent of its investment authority in growth investments in this state within 2 years of the closing date;
(b) The small business jobs fund, after satisfying subparagraph (a), fails to maintain growth investments equal to 100 percent of its investment authority until the sixth anniversary of the closing date. For the purposes of this division, an investment is maintained even if the investment is sold or repaid if the small business jobs fund reinvests an amount equal to the capital returned or recovered by the fund from the original investment, exclusive of any profits realized, in other growth investments in this state within 12 months of the receipt of such capital. Amounts received periodically by a small business jobs fund shall be treated as continually invested in growth investments if the amounts are reinvested in one or more growth investments by the end of the following calendar year. A small business jobs fund is not required to reinvest capital returned from growth investments in the 6 months immediately preceding the sixth anniversary of the closing date, and such growth investments shall be considered held continuously by the small business jobs fund through the sixth anniversary of the closing date;
(c) The small business jobs fund, before exiting the program in accordance with paragraph IV, makes a distribution or payment that results in the small business jobs fund having less than 100 per cent of its investment authority invested in growth investments in this state or available for investment in growth investments and held in cash and other marketable securities;
(d) The small business jobs fund invests, on a net basis, more than the greater of 20 percent of its investment authority or $5,000,000 in the same growth business, including amounts invested in affiliates of the growth business; or
(e) The small business jobs fund makes a growth investment in a growth business that directly or indirectly through an affiliate owns, has the right to acquire an ownership interest, makes a loan to, or makes an investment in the small business jobs fund, an affiliate of the small business jobs fund, or an investor in the small business jobs fund. This subparagraph shall not apply to investments in publicly traded securities by a growth business or an owner or affiliate of such business. For purposes of this subparagraph, a small business jobs fund shall not be considered an affiliate of a growth business solely as a result of its growth investment.
II. Before revoking one or more tax credit certificates under this section, the department shall notify the small business jobs fund of the reasons for the pending revocation. The small business jobs fund shall have 90 days from the date the notice was dispatched to correct any violation outlined in the notice to the satisfaction of the department and avoid revocation of the tax credit certificate; provided that no extension shall be granted for violations of paragraph I(e).
III. If tax credit certificates are revoked under this section, the associated investment authority and credit-eligible capital contributions shall not count toward the limit on total investment authority and credit-eligible capital contributions described by RSA 162-S:2, II. The department shall first award reverted authority pro rata to each small business jobs fund that was awarded less than the requested investment authority under RSA 162-S:2, V. The department may award any remaining investment authority to new applicants.
IV. On or after the sixth anniversary of the closing date, a small business jobs fund may apply to the department to exit the program and no longer be subject to regulation hereunder. The department shall respond to the application within 30 days of receipt. In evaluating the application, the fact that no tax credit certificates have been revoked and that the small business jobs fund has not received a notice of revocation that has not been cured under pursuant to paragraph II shall be sufficient evidence to prove that the small business jobs fund is eligible for exit. The department shall not unreasonably deny an application submitted under this section. If the application is denied, the notice shall include the reasons for the determination.
V. If the number of jobs created or retained by the growth businesses that received growth investments from the small business jobs fund is:
(a) Less than 60 percent of the amount projected in the approved small business jobs fund's business plan filed as part of its application for certification under RSA 162-S:2, then the state shall receive 30 percent of any distribution or payment to an equity holder in an approved small business jobs fund in excess of the sum of the amount of equity capital invested in the fund by such equity holder and an amount equal to any projected increase in the equity holder's federal or state tax liability, including penalties and interest, related to the equity holder's ownership, management, or operation of the fund; or
(b) Greater than 60 percent but less than 100 percent of the amount projected in the approved small business jobs fund's business plan filed as part of its application for certification under RSA 162-S:2, then the state shall receive 15 percent of any distribution or payment to an equity holder in an approved small business jobs fund in excess of the sum of the amount of equity capital invested in the fund by such equity holder and an amount equal to any projected increase in the equity holder's federal or state tax liability, including penalties and interest, related to the equity holder's ownership, management, or operation of the fund.
VI. The department shall not revoke a tax credit certificate after the small business jobs fund’s exit from the program.
162-S:6 Request for Determination. A small business jobs fund, before making a growth investment, may request from the department a written opinion as to whether the business in which it proposed to invest is a growth business. The department, not later than the fifteenth business day after the date of receipt of the request, shall notify the small business jobs fund of its determination. If the department fails to notify the small business jobs fund by the fifteenth business day of its determination, the business in which the small business jobs fund proposes to invest shall be considered a growth business.
162-S:7 Reporting Obligations.
I. Each small business jobs fund shall submit a report to the department on or before the fifth business day after the second anniversary of the closing date. The report shall provide documentation as to the small business jobs fund’s growth investments and include:
(a) A bank statement evidencing each growth investment;
(b) The name, location, and industry of each business receiving a growth investment, including either the determination letter set forth in RSA 162-S:6 or evidence that the business qualified as a growth business at the time the investment was made; and
(c) The number of employment positions created or retained as a result of the small business jobs fund's growth investments as of the last day of the preceding calendar year.
II. On or before the last day of February of each year following the year in which the report required under paragraph II is due, the small business jobs fund shall submit an annual report to the department including the following:
(a) The number of employment positions created or retained as a result of the small business jobs fund's growth investments as of the last day of the preceding calendar year;
(b) The average annual salary of the positions described in subparagraph (a); and
(c) The follow-on capital investment that has occurred along with or after the small business jobs fund’s investment as of the last day of the preceding calendar year.
4 New Section; Business Enterprise Tax; Small Business Jobs Fund Credit. Amend RSA 77-E by inserting after section 3-d the following new section:
77-E:3-e Credit for Small Business Jobs Fund. The small business jobs fund credit under RSA 162-S shall be allowed against the tax due under this chapter.
5 New Section; Insurance Premium Tax; Small Business Jobs Fund Credit. Amend RSA 400-A by inserting after section 34-a the following new section:
400-A:34-b Credit for Small Business Jobs Fund. The small business jobs fund tax credit available for use under RSA 162-S and applied to taxes under RSA 77-E shall be treated as taxes paid for the purpose of this chapter. The provisions of RSA 400-A:34-a shall also govern the treatment of this credit.
6 Business Profits Tax; Credits. Amend RSA 77-A:5, X to read as follows:
X. Taxes paid pursuant to RSA 77-E. Such credit shall be applied in accordance with RSA 77-E:13. No amount of tax paid pursuant to RSA 77-E and used as a credit against the taxes due under RSA 400-A shall be allowed as a credit under this paragraph except as provided in RSA 400-A:34-a and RSA 400-A:34-b. Any unused portion of the credit allowed under this paragraph from taxable periods ending on or after December 31, 2014 may be carried forward and allowed against the tax due under this chapter for 10 taxable periods from the taxable period in which the tax was paid.
7 New Paragraph; Business Profits Tax; Small Business Jobs Fund Tax Credit. Amend RSA 77-A:5 by inserting after paragraph XV the following new paragraph:
XVI. The small business jobs fund credit available for use under RSA 162-S.
8 New Subparagraph; Treasury; Application of Receipts. Amend RSA 612:12, I(b) by inserting after subparagraph (333) the following new paragraph:
(334) Application fees credited to the small business jobs fund account established in RSA 162-S:2, VIII.
9 Effective Date. This act shall take effect July 1, 2017.
17-0139
Revised 2/6/17
SB 205-FN-A- FISCAL NOTE
AS INTRODUCED
AN ACT establishing the small business jobs fund and tax credit.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | ||||
STATE: | FY 2018 | FY 2019 | FY 2020 | FY 2021 | |
Appropriation | $0 | $0 | $0 | $0 | |
Revenue | $0 | $0 | $0 | Indeterminable Decrease | |
Expenditures | $140,000 | $120,000 | $121,000 | $123,000 | |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Small Business Jobs Fund account | ||||
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METHODOLOGY:
This bill establishes the Small Business Jobs Fund Act and Tax Credit to be used against the Business Profits Tax, Business Enterprise Tax and the Insurance Premium Tax. If the credit is applied to the Insurance Premium Tax, it shall be treated as taxes paid for the purpose of the BPT. The nonrefundable tax credit is available to taxpayers that make a credit eligible capital contribution to a small business jobs fund and are issued a tax credit certificate from the NH Department of Resources and Economic Development (DRED). The aggregate tax credit eligible capital contributions approved by DRED shall not exceed $60,000,000. A taxpayer entitled to a tax credit pursuant to this program shall utilize ¼ of the total credit amount equally in each of the tax years that includes the third through sixth anniversaries of receipt. If the tax credit cannot be fully utilized in years three through six, it may be carried forward. The tax credits may be revoked and require repayment of a stated percentage of the tax credit if certain employment thresholds are not met and maintained. Because the taxpayer cannot begin utilizing the awarded tax credit until the third anniversary of receiving the tax credit certificate, the fiscal impact of the proposed tax credit cannot occur until at least FY 2021 The Department of Revenue Administration is not able to determine the total future value of credit eligible capital contributions made under this proposed legislation, or when the tax credits awarded would be utilized by the taxpayer, therefore the Department is not able to determine the specific decrease in revenue resulting from this credit. The Department can administer this bill without any additional costs that could not be absorbed in the Department's operating budget.
This bill also establishes the small business jobs fund account where the $5,000 application fee shall be deposited and used by DRED to administer the program. In instances where tax credits are revoked and repayment is required, repayment shall also be made to the small business jobs fund.
DRED anticipates it will need at least one staff person to manage the program. DRED also expects that since this is a new program, there would need to be an aggressive startup campaign with sustained marketing throughout the life of the program, including publication and digital promotion. DRED estimates salary, benefits, and marketing costs to be $140,000 in FY 2018, $120,000 in FY 2019, $121,000 in FY 2020, and $123,000 in FY 2021. It is assumed the general fund and the small business jobs fund account will be used for any expenditures. If the program is successful DRED states it may need another position; however, DRED does not include this position in its estimated expenditures.
AGENCIES CONTACTED:
Department of Revenue Administration and Department of Resources and Economic Development