Tax credit for sustainable aviation fuel production facility - tax preference performance statement - legislative declaration - definitions - repeal

# (1)

# (a)

In accordance with section 39-21-304 (1), which requires each bill that creates a new tax expenditure to include a tax preference performance statement as part of a statutory legislative declaration, the general assembly finds and declares that the purpose of this tax expenditure is to induce certain designated behavior by taxpayers, specifically the construction of sustainable aviation fuel production facilities in the state, by providing tax relief for certain businesses and individuals that construct or operate these facilities in the state.

# (b)

The general assembly and the state auditor shall measure the effectiveness of the credit in achieving the purposes specified in subsection (1)(a) of this section based on the information required by and reported to the department pursuant to subsection (7) of this section.

# (2)

As used in this section, unless the context otherwise requires:

# (a)

Colorado energy office or office means the Colorado energy office created in section 24-38.5-101.

# (b)

Department means the department of revenue.

# (c)

Qualified taxpayer means a taxpayer that is an aviation business, a sustainable aviation fuel producer, or an airport.

# (d)

Sustainable aviation fuel has the same meaning as set forth in section 40B (d) of the internal revenue code.

# (e)

Sustainable aviation fuel production facility means: (I) A facility which produces sustainable aviation fuel; or (II) A facility directly related to enabling the production or distribution of sustainable aviation fuel as determined under the standards established by the office.

# (f)

Taxpayer means a person subject to tax pursuant to this article 22.

# (3)

# (a)

For tax years commencing on or after January 1, 2024, but before January 1, 2033, a qualified taxpayer is allowed a credit against the income tax imposed under this article 22 for an amount of the actual cost paid to construct, reconstruct, or erect a sustainable aviation fuel production facility in the state equal to: (I) Thirty percent for a facility for which construction begins on or after January 1, 2024, but before January 1, 2027; (II) Twenty-four percent for a facility for which construction begins on or after January 1, 2027, but before January 1, 2028; (III) Eighteen percent for a facility for which construction begins on or after January 1, 2028, but before January 1, 2029; and (IV) Twelve percent for a facility for which construction begins on or after January 1, 2029, but before January 1, 2033.

# (b)

The credit allowed by subsection (3)(a) of this section is allowed for the tax year in which the sustainable aviation fuel production facility is placed in service.

# (4)

# (a)

A qualified taxpayer shall submit an application to the office for a tax credit certificate to claim the credit allowed by this section on a form and in a manner prescribed by the office. The application must include information to allow the office to make a determination that the applicant is a qualified taxpayer and that the amount for which the tax credit certificate is applied is the actual cost paid to construct, reconstruct, or erect a sustainable aviation fuel production facility in the state for which a credit is allowed by this section.

# (b)

The aggregate amount of all tax credit certificates issued by the office pursuant to this subsection (4) must not exceed one million dollars for the 2024 income tax year, two million dollars per year for the 2025 and 2026 income tax years, and three million dollars per year for income tax years 2027 through 2032.

# (c)

The office shall, in a sufficiently timely manner to allow the department to process returns claiming the income tax credit allowed in this section, provide the department with an electronic report of each qualified taxpayer that the office approved for the income tax credit allowed in this section for the preceding calendar year that includes the following information: (I) The taxpayer's name; (II) The taxpayer's social security number or the taxpayer's Colorado account number and federal employer identification number; and (III) The amount of the tax credit certificate.

# (5)

# (a)

The office shall develop standards for the approval of qualified taxpayers for which a tax credit under this section is allowed.

# (b)

The office shall develop standards for the approval of the construction, reconstruction, or erection of a sustainable aviation fuel production facility in the state and for reviewing the cost certification for the costs related to the construction, reconstruction, or erection of the sustainable aviation fuel production facility. In the standards, the office shall determine the manner in which a taxpayer will demonstrate actual costs for purposes of calculating the amount of the tax credit set forth in the tax credit certificate issued by the office to the taxpayer; except that actual costs must not include legal fees, land cost, or design costs.

# (c)

The standards developed by the office under this subsection (5) must be posted on the office's website.

# (6)

# (a)

A qualified taxpayer shall submit a report to the office by the end of the first month after the end of any income tax year in which the qualified taxpayer received a tax credit under this section and shall annually submit a report for three years thereafter reporting sustainable aviation fuel production and total fuel production for the facility.

# (b)

If the sustainable aviation fuel production of a facility for which a qualified taxpayer was allowed a credit under this section comprises less than sixty percent of the total fuel production of the facility in any of the three taxable years immediately following the taxable year in which the facility was placed in service, the office shall notify the department in writing that the credit allowed in this section must be disallowed for that qualified taxpayer. The qualified taxpayer shall add the amount of the disallowed credit to its return as a recaptured credit for the tax year in which the credit is disallowed pursuant to this subsection (6).

# (7)

Notwithstanding the requirement in section 24-1-136 (11)(a)(I), for the purpose of providing data that allows the general assembly and the state auditor to measure the effectiveness of the credit created in subsection (3) of this section pursuant to section 39-21-304 (3), the office on or before January 1, 2026, and on or before January 1 of each year thereafter until January 1, 2034, shall submit to the general assembly and the state auditor a report detailing the construction, reconstruction, and erection of sustainable aviation fuel production facilities as reported by qualified taxpayers claiming the credit in this section. The tax credit meets its purpose if the construction, reconstruction, and erection of sustainable aviation fuel production facilities in the state increase significantly in tax years for which the credit is allowed.

# (8)

If the credit authorized by this section exceeds the income tax due on the income of the qualified taxpayer for the taxable year, the excess credit may not be carried forward and must be refunded to the qualified taxpayer.

# (9)

This section is repealed, effective December 31, 2038. Source: L. 2023: Entire section added, (HB 23-1272), ch. 167, p. 804, § 10, effective May 11. Cross references: For the legislative declaration in HB 23-1272, see section 1 of chapter 167, Session Laws of Colorado 2023.