N.Y. Tax Law § 21 — Brownfield redevelopment tax credit

* § 21. Brownfield redevelopment tax credit. (a) Allowance of credit.\n(1) General. A taxpayer subject to tax under article nine, nine-A,\ntwenty-two or thirty-three of this chapter shall be allowed a credit\nagainst such tax, pursuant to the provisions referenced in subdivision\n(f) of this section. Such credit shall be allowed with respect to a\nqualified site, as such term is defined in paragraph one of subdivision\n(b) of this section. The amount of the credit in a taxable year shall be\nthe sum of the credit components specified in paragraphs two, three and\nfour of this subdivision applicable in such year.\n (2) Site preparation credit component. The site preparation credit\ncomponent shall be equal to the applicable percentage of the site\npreparation costs paid or incurred by the taxpayer with respect to a\nqualified site. The credit component amount so determined with respect\nto a site's qualification for a certificate of completion shall be\nallowed for the taxable year in which the effective date of the\ncertificate of completion occurs. The credit component amount determined\nother than with respect to such qualification shall be allowed for the\ntaxable year in which the improvement to which the applicable costs\napply is placed in service for up to five taxable years after the\nissuance of such certificate of completion; provided, however, that for\nany qualified site to which a certificate of completion is issued on or\nafter July first, two thousand fifteen but on or before June\ntwenty-fourth, two thousand twenty-one, the site preparation credit\ncomponent for such costs shall be allowed for up to seven taxable years\nafter the issuance of such certificate of completion; and provided\nfurther, however, that for any qualified site located in cities with a\npopulation greater than two hundred five thousand and less than two\nhundred fifteen thousand in counties with a population greater than one\nmillion but less than one million ten thousand based on the latest\nfederal decennial census for which the department of environmental\nconservation has issued a certificate of completion to the taxpayer on\nor after January first, two thousand seventeen and before December\nthirty-first, two thousand seventeen, the site preparation credit\ncomponent for such costs shall be allowed for up to fifteen taxable\nyears after the issuance of such certificate of completion.\n (3) Tangible property credit component.\n (i) The tangible property credit component shall be equal to the\napplicable percentage of the cost or other basis for federal income tax\npurposes of tangible personal property and other tangible property,\nincluding buildings and structural components of buildings, which\nconstitute qualified tangible property and may include any related party\nservice fee paid; provided that in determining the cost or other basis\nof such property, the taxpayer shall exclude the acquisition cost of any\nitem of property with respect to which a credit under this section was\nallowable to another taxpayer; and provided further that for the\npurposes of this section, starting with taxable year two thousand\ntwenty-two, on sites that comply with the track one remediation\nstandards promulgated pursuant to subdivision four of section 27-1415 of\nthe environmental conservation law, stadiums, baseball parks, basketball\ncourts and other athletic facilities shall be considered buildings, and\nthat components of stadiums, baseball parks, basketball courts, and\nother athletic facilities constructed on such sites, including sports\nfield turf, site lighting, sidewalks, access and entry ways, and other\nimprovements added to land, shall be considered structural components of\nbuildings under the internal revenue code, and shall be included in the\ndefinition of tangible property for the purposes of this section. A\nrelated party service fee shall be allowed only in the calculation of\nthe tangible property credit component and shall not be allowed in the\ncalculation of the site preparation credit component or the on-site\ngroundwater remediation credit component. The portion of the tangible\nproperty credit component which is attributable to related party service\nfees shall be allowed only as follows: (A) in the taxable year in which\nthe qualified tangible property described in subparagraph (iii) of this\nparagraph is placed in service, for that portion of the related party\nservice fees which have been earned and actually paid to the related\nparty on or before the last day of such taxable year; and (B) with\nrespect to any other taxable year for which the tangible property credit\ncomponent may be claimed under this subparagraph and in which the amount\nof any additional related party service fees are actually paid by the\ntaxpayer to the related party, the tangible property credit component\nfor such amount shall be allowed in such taxable year. The credit\ncomponent amount so determined shall be allowed for the taxable year in\nwhich such qualified tangible property is first placed in service on a\nqualified site with respect to which a certificate of completion has\nbeen issued to the taxpayer, or for the taxable year in which the\ncertificate of completion is issued if the qualified tangible property\nis placed in service prior to the issuance of the certificate of\ncompletion. This credit component shall only be allowed for up to one\nhundred twenty months after the date of the issuance of such certificate\nof completion, provided, however, that for qualified sites to which a\ncertificate of completion is issued on or after March twentieth, two\nthousand ten, but prior to January first, two thousand twelve, the\ncommissioner may extend the credit component for up to one hundred\nforty-four months after the date of such issuance, if the commissioner,\nin consultation with the commissioner of environmental conservation,\ndetermines that the requirements for the credit would have been met if\nnot for the restrictions related to the state disaster emergency\ndeclared pursuant to executive order 202 of 2020 or any extension\nthereof or subsequent executive order issued in response to the novel\ncoronavirus (COVID-19) pandemic; provided, however, with respect to any\nqualified site for which the department of environmental conservation\nhas issued a certificate of completion to the taxpayer on or after March\ntwentieth, two thousand ten and before December thirty-first, two\nthousand fifteen, this credit component shall be allowed for up to one\nhundred eighty months after the date of the issuance of such certificate\nof completion; and provided further, with respect to any qualified site\nlocated in cities with a population greater than two hundred five\nthousand and less than two hundred fifteen thousand in counties with a\npopulation greater than one million but less than one million ten\nthousand based on the latest federal decennial census for which the\ndepartment of environmental conservation has issued a certificate of\ncompletion to the taxpayer on or after January first, two thousand\nseventeen and before December thirty-first, two thousand seventeen, this\ncredit component shall be allowed for up to one hundred eighty months\nafter the date of the issuance of such certificate of completion.\n (ii) The tangible property credit component shall be allowed with\nrespect to property leased to a second party only if such second party\nis either (A) not a party responsible for the disposal of hazardous\nwaste or the discharge of petroleum at the site according to applicable\nprinciples of statutory or common law liability, or (B) a party\nresponsible according to applicable principles of statutory or common\nlaw liability if such party's liability arises solely from operation of\nthe site subsequent to the disposal of hazardous waste or the discharge\nof petroleum, and is so certified by the commissioner of environmental\nconservation at the request of the taxpayer, pursuant to section 27-1419\nof the environmental conservation law. Notwithstanding any other\nprovision of law to the contrary, in the case of allowance of credit\nunder this section to such a lessor, the commissioner shall have the\nauthority to reveal to such lessor any information, with respect to the\nissue of qualified use of property by the lessee, which is the basis for\nthe denial in whole or in part, or for the recapture, of the credit\nclaimed by such lessor. For purposes of the tangible property credit\ncomponent allowed under this section the taxpayer to whom the\ncertificate of completion is issued, as provided for under subdivision\nfive of section 27-1419 of the environmental conservation law, may\ntransfer the benefits and burdens of the certificate of completion,\nwhich run with the land and to the applicant's successors or assigns\nupon transfer or sale of all or any portion of an interest or estate in\nthe qualified site. However, the taxpayer to whom certificate's benefits\nand burdens are transferred shall not include the cost of acquiring all\nor any portion of an interest or estate in the site and the amounts\nincluded in the cost or other basis for federal income tax purposes of\nqualified tangible property already claimed by the previous taxpayer\npursuant to this section.\n (iii) The term "related party service fee" shall mean any fee or other\nmonetary compensation earned by a related party and calculated as a\npercentage of project and/or acquisition costs, in consideration of\nservices rendered to or for the benefit of the taxpayer placing\nqualified tangible property in service in connection with the\nacquisition and development of such property. For purposes of this\nsubparagraph, "related party" shall have the same meaning as related\nperson as defined in subparagraph (c) of paragraph three of subdivision\n(b) of section four hundred sixty-five of the internal revenue code.\n (iv) Eligible costs for the tangible property credit component are\nlimited to costs for tangible property that has a depreciable life for\nfederal income tax purposes of fifteen years or more, costs associated\nwith demolition and excavation on the site and the foundation of any\nbuildings constructed as part of the site cover that are not properly\nincluded in the site preparation component and costs associated with\nnon-portable equipment, machinery and associated fixtures and\nappurtenances used exclusively on the site, whether or not such property\nhas a depreciable life for federal income tax purposes of fifteen years\nor more.\n (v) With respect to any qualified site for which the department of\nenvironmental conservation has issued a notice to the taxpayer on or\nafter July first, two thousand fifteen or the date of publication in the\nstate register of proposed regulations defining "underutilized" as\nprovided in subdivision thirty of section 27-1405 of the environmental\nconservation law, whichever shall be later, that its request for\nparticipation has been accepted under subdivision six of section 27-1407\nof the environmental conservation law, and the site is eligible for the\ntangible property credit component because it is an affordable housing\nproject pursuant to subdivision one-a of section 27-1407 of the\nenvironmental conservation law, the portion of eligible costs to be\nincluded in the calculation of the tangible property credit component\nwill be determined by multiplying the total costs qualified for the\ntangible property credit component by a fraction, the numerator of which\nshall be the square footage of space of the affordable housing units\ndedicated to residential occupancy and the denominator of which shall be\nthe total square footage of the building.\n (3-a) (A) Notwithstanding any other provision of law to the contrary,\nthe tangible property credit component available for any qualified site\npursuant to paragraph three of this subdivision shall not exceed\nthirty-five million dollars or three times the sum of the costs included\nin the calculation of the site preparation credit component and the\non-site groundwater remediation credit component under paragraphs two\nand four, respectively, of this subdivision, and the costs that would\nhave been included in the calculation of such components if not treated\nas an expense and deducted pursuant to section one hundred ninety-eight\nof the internal revenue code, whichever is less; provided, however,\nthat: (1) in the case of a qualified site to be used primarily for\nmanufacturing activities, the tangible property credit component\navailable for any qualified site pursuant to paragraph three of this\nsubdivision shall not exceed forty-five million dollars or six times the\nsum of the costs included in the calculation of the site preparation\ncredit component and the on-site groundwater remediation credit\ncomponent under paragraphs two and four, respectively, of this\nsubdivision, and the costs that would have been included in the\ncalculation of such components if not treated as an expense and deducted\npursuant to section one hundred ninety-eight of the internal revenue\ncode, whichever is less; and (2) the provisions of this paragraph shall\nnot apply to any qualified site for which the department of\nenvironmental conservation has issued a notice to the taxpayer before\nJune twenty-third, two thousand eight that its request for participation\nhas been accepted under subdivision six of section 27-1407 of the\nenvironmental conservation law.\n (B) For the purposes of this paragraph, the term "manufacturing\nactivities" means the production of goods by manufacturing, processing,\nassembling, refining, mining, extracting, farming, agriculture,\nhorticulture, floriculture, viticulture or commercial fishing; provided\nhowever, that the generation and distribution of electricity, the\ndistribution of natural gas, and the production of steam associated with\nthe generation of electricity, shall not constitute manufacturing\nactivities.\n (C) In order to properly administer the credits set forth in this\nsubdivision, the department may disclose information about the\ncalculation and the amounts of the credits claimed under this\nsubdivision on a taxpayer's return to the department of environmental\nconservation and other taxpayers claiming tax credits under this section\nwith respect to the same qualifying site.\n (D) With respect to any qualified site for which the department of\nenvironmental conservation has issued a notice to the taxpayer before\nJuly first, two thousand fifteen or the date of publication in the state\nregister of proposed regulations defining "underutilized" as provided in\nsubdivision thirty of section 27-1405 of the environmental conservation\nlaw, whichever shall be later, that its request for participation has\nbeen accepted under subdivision six of section 27-1407 of the\nenvironmental conservation law, or where the taxpayer has either been\nissued or received a certificate of completion from another taxpayer\nunder section 27-1419 of the environmental conservation law before July\nfirst, two thousand fifteen or the date of publication in the state\nregister of proposed regulations defining "underutilized" as provided in\nsubdivision thirty of section 27-1405 of the environmental conservation\nlaw, whichever shall be later, if the qualifying site is located in a\nbrownfield opportunity area and is developed in conformance with the\ngoals and priorities established for that applicable brownfield\nopportunity area as designated pursuant to section nine hundred\nseventy-r of the general municipal law, the applicable percentage of the\ntangible property credit component will be increased by two percent.\n (4) On-site groundwater remediation credit component. The on-site\ngroundwater remediation credit component shall be equal to the\napplicable percentage of the on-site groundwater remediation costs paid\nor incurred by the taxpayer with respect to a qualified site (to the\nextent that such groundwater remediation costs are not included in the\ndetermination of the site preparation credit or the cost or other basis\nincluded in the determination of the tangible property credit). The\ncredit component so determined for costs incurred and paid with respect\nto and prior to the issuance of a certificate of completion shall be\nallowed for the taxable year in which the effective date of the issuance\nof a certificate of completion occurs. The credit component amount\ndetermined in taxable years after the effective date of the issuance of\na certificate of completion shall be allowed in the taxable year such\nqualified costs are incurred and paid for up to five taxable years after\nthe issuance of such certificate of completion; provided, however, that\nwith respect to any qualified site for which a certificate of completion\nhas been issued on or after July first, two thousand fifteen but on or\nbefore June twenty-fourth, two thousand twenty-one, the credit component\namount determined in taxable years after the effective date of the\nissuance of a certificate of completion shall be allowed in the taxable\nyear such qualified costs are incurred and paid for up to seven taxable\nyears after the issuance of such certificate of completion.\n (5) Applicable percentage. (A) For purposes of computing the site\npreparation and on-site groundwater remediation credit components\npursuant to paragraphs two and four of this subdivision, with respect to\nsuch qualified sites for which the department of environmental\nconservation has issued a notice to the taxpayer before June\ntwenty-third, two thousand eight that its request for participation has\nbeen accepted under subdivision six of section 27-1407 of the\nenvironmental conservation law, or where the taxpayer has either been\nissued or received a certificate of completion from another taxpayer\nunder section 27-1419 of the environmental conservation law for such a\nsite, and, for purposes of computing the tangible property component\npursuant to paragraph three of this subdivision with respect to such\nqualified sites for which the department of environmental conservation\nhas issued a notice to the taxpayer before July first, two thousand\nfifteen or the date of publication in the state register of proposed\nregulations defining "underutilized" as provided in subdivision thirty\nof section 27-1405 of the environmental conservation law, whichever\nshall be later, that its request for participation has been accepted\nunder subdivision six of section 27-1407 of the environmental\nconservation law, or where the taxpayer has either been issued or\nreceived a certificate of completion from another taxpayer under section\n27-1419 of the environmental conservation law for such a site, the\napplicable percentage shall be twelve percent in the case of credits\nclaimed under article nine, nine-A or thirty-three of this chapter, and\nten percent in the case of credits claimed under article twenty-two of\nthis chapter, except that where at least fifty percent of the area of\nthe qualified site relating to the credit provided for in this section\nis located in an environmental zone as defined in paragraph six of\nsubdivision (b) of this section, the applicable percentage shall be\nincreased by an additional eight percent. Provided, however, as afforded\nin section 27-1419 of the environmental conservation law, if the\ncertificate of completion indicates that the qualified site has been\nremediated to Track 1 as that term is described in subdivision four of\nsection 27-1415 of the environmental conservation law, the applicable\npercentage set forth in the first sentence of this paragraph shall be\nincreased by an additional two percent.\n (B) With respect to such qualified site for which the department of\nenvironmental conservation has issued a notice to the taxpayer on or\nafter July first, two thousand fifteen, that its request for\nparticipation has been accepted under subdivision six of section 27-1407\nof the environmental conservation law, the applicable percentage for the\ntangible property credit component of the brownfield redevelopment tax\ncredit pursuant to paragraph three of this subdivision shall be the sum\nof ten percent and the following additional percentages, provided that\nif the sum is greater than twenty-four percent, the total percentage of\nthe tangible property credit component shall be twenty-four percent and\nis otherwise subject to the limitations set forth in paragraphs three\nand three-a of this subdivision:\n (i) five percent for a site which:\n (1) is located within an environmental zone; or\n (2) is in a disadvantaged community as that term is defined in section\n27-1405 of the environmental conservation law for which the department\nof environmental conservation has issued a notice to the taxpayer on or\nafter January first, two thousand twenty-three that its request for\nparticipation has been accepted under subdivision six of section 27-1407\nof the environmental conservation law;\n (ii) five percent for a site located within a designated brownfield\nopportunity area and is developed in conformance with the goals and\npriorities established for that applicable brownfield opportunity area\nand meets the conformance determinations pursuant to subdivision ten of\nsection nine hundred seventy-r of the general municipal law;\n (iii) five percent for a site developed as affordable housing, as\ndefined in section 27-1405 of the environmental conservation law;\n (iv) five percent for a site to be used primarily for manufacturing\nactivities as such term is defined in subparagraph (B) of paragraph\nthree-a of this subdivision;\n (v) five percent for sites remediated to Track 1 as that term is\ndefined in subdivision four of section 27-1415 of the environmental\nconservation law; and\n (vi) for a qualified site for which the department of environmental\nconservation has issued a notice to the taxpayer on or after January\nfirst, two thousand twenty-three that its request for participation has\nbeen accepted under subdivision six of section 27-1407 of the\nenvironmental conservation law, five percent for sites developed as\nrenewable energy facility sites as defined in section 27-1405 of the\nenvironmental conservation law.\n (C) The taxpayer shall submit, in the manner prescribed by the\ncommissioner, information sufficient to demonstrate that the site\nqualifies for any credit components available under subparagraph (B) of\nthis paragraph. If the site is receiving the credit component authorized\npursuant to clause (ii) of subparagraph (B) of this paragraph for being\nlocated within a designated brownfield opportunity area, the taxpayer\nshall submit a certification from the secretary of state that the\ndevelopment is in conformance with such brownfield opportunity area plan\npursuant to section nine hundred seventy-r of the general municipal law.\n (6) Site preparation costs and on-site groundwater remediation costs\npaid or incurred by the taxpayer with respect to a qualified site and\nthe cost or other basis for federal income tax purposes of tangible\npersonal property and other tangible property, including buildings and\nstructural components of buildings, which constitute qualified tangible\nproperty shall only include costs paid or incurred by the taxpayer on or\nafter the date of the brownfield site cleanup agreement executed by the\ntaxpayer and the department of environmental conservation pursuant to\nsection 27-1409 of the environmental conservation law.\n (7) The amount of any grant received from the federal, state or a\nlocal government or an instrumentality or public benefit corporation\nthereof received by the taxpayer and used to pay for any of the costs\ndescribed in paragraphs two, three and four of this subdivision, which\nwas not included in the federal gross income of the taxpayer, shall be\nsubtracted in computing the credit components under this section.\n (b) Definitions. As used in this section, the following terms shall\nhave the following meanings:\n (1) Qualified site. A "qualified site" is a site with respect to which\na certificate of completion has been issued to the taxpayer by the\ncommissioner of environmental conservation pursuant to section 27-1419\nof the environmental conservation law.\n (2) Site preparation costs. The term "site preparation costs" shall\nmean all amounts properly chargeable to a capital account, which are\npaid or incurred which are necessary to implement a site's\ninvestigation, remediation, or qualification for a certificate of\ncompletion, and shall include costs of: excavation; demolition;\nactivities undertaken under the oversight of the department of labor or\nin accordance with standards established by the department of health to\nremediate and dispose of regulated materials including asbestos, lead or\npolychlorinated biphenyls; environmental consulting; engineering; legal\ncosts; transportation, disposal, treatment or containment of\ncontaminated soil; remediation measures taken to address contaminated\nsoil vapor; cover systems consistent with applicable regulations;\nphysical support of excavation; dewatering and other work to facilitate\nor enable remediation activities; sheeting, shoring, and other\nengineering controls required to prevent off-site migration of\ncontamination from the qualified site or migrating onto the qualified\nsite; and the costs of fencing, temporary electric wiring, scaffolding,\nand security facilities until such time as the certificate of completion\nhas been issued. Site preparation shall include all costs paid or\nincurred within sixty months after the last day of the tax year in which\nthe certificate of completion is issued that are necessary for\ncompliance with the certificate of completion or subsequent\nmodifications thereof, or the remedial program defined in such\ncertificate of completion including but not limited to institutional\ncontrols, engineering controls, an approved site management plan, and an\nenvironmental easement with respect to the qualified site; provided,\nhowever, with respect to any qualified site for which a certificate of\ncompletion was issued on or after July first, two thousand fifteen but\non or before June twenty-fourth, two thousand twenty-one, site\npreparation shall include all costs paid or incurred within eighty-four\nmonths after the last day of the tax year in which the certificate of\ncompletion is issued that are necessary for compliance with the\ncertificate of completion or subsequent modifications thereof, or the\nremedial program defined in such certificate of completion including but\nnot limited to institutional controls, engineering controls, an approved\nsite management plan, and an environmental easement with respect to the\nqualified site, provided, however, with respect to any qualified site\nlocated in cities with a population greater than two hundred five\nthousand and less than two hundred fifteen thousand in counties with a\npopulation greater than one million but less than one million ten\nthousand based on the latest federal decennial census for which the\ndepartment of environmental conservation has issued a certificate of\ncompletion to the taxpayer on or after January first, two thousand\nseventeen and before December thirty-first, two thousand seventeen, this\ncredit component shall be allowed for up to one hundred eighty months\nafter the date of the issuance of such certificate of completion. Site\npreparation cost shall not include the costs of foundation systems that\nexceed the cover system requirements in the regulations applicable to\nthe qualified site.\n (3) Qualified tangible property. "Qualified tangible property" is\nproperty described in either subparagraph (A) or (B) of this paragraph\nwhich:\n (A) (i) is depreciable pursuant to section one hundred sixty-seven of\nthe internal revenue code,\n (ii) has a useful life of four years or more,\n (iii) has been acquired by purchase as defined in section one hundred\nseventy-nine (d) of the internal revenue code,\n (iv) has a situs on a qualified site in this state, and\n (v) is principally used by the taxpayer for industrial, commercial,\nrecreational or environmental conservation purposes (including the\ncommercial development of residential housing); or\n (B) (i) is, or when occupied becomes, part of a dwelling whose primary\nownership structure is covered under either article nine-B of the real\nproperty law or meets the requirements of section 216 (b)(1) of the\nInternal Revenue Code or is part of an affordable housing project as\ndefined in subdivision twenty-nine of section 27-1405 of the\nenvironmental conservation law, where units are sold as single family\nhomes or multiple family dwellings;\n (ii) has been acquired by purchase (as defined in section one hundred\nseventy-nine (d) of the Internal Revenue Code);\n (iii) has a situs on a qualified site in this state; and\n (iv) for purposes of this subparagraph only, and notwithstanding any\nother section of law to the contrary, property qualifying under this\nsubparagraph shall be deemed to be qualified tangible property for the\npurposes of paragraph one of subdivision (d) of this section; and in\naddition, for the purposes of this subdivision only, property qualifying\nunder this subparagraph shall be deemed to have been placed in service\nfor the purposes of paragraph three of subdivision (a) of this section\nwhen a certificate of occupancy is issued for such property.\n (4) On-site groundwater remediation costs. The term "on-site\ngroundwater remediation costs" shall mean all amounts properly\nchargeable to a capital account, which are paid or incurred which are\nnecessary to implement a site's groundwater investigation, remediation,\nor qualification for a certificate of completion not already covered\nunder site preparation costs, and shall include costs of: environmental\nconsulting; engineering; legal costs; transportation, disposal,\ntreatment or containment of contaminated groundwater; sheeting, shoring,\nand other engineering controls required to prevent off-site migration of\ngroundwater contamination from the qualified site or migrating onto the\nqualified site; and the costs of fencing, temporary electric wiring and\nsecurity facilities until such time as the certificate of completion is\nissued. On-site groundwater remediation costs shall include all costs\npaid or incurred within sixty months after the last day of the tax year\nin which the certificate of completion is issued that are necessary for\ncompliance with the certificate of completion or subsequent\nmodifications thereof, or the groundwater remedial program defined in\nsuch certificate of completion including but not limited to\ninstitutional controls, engineering controls, an approved site\nmanagement plan specific to on-site groundwater remediation, and an\nenvironmental easement with respect to the qualified site. Provided,\nhowever, with respect to any qualified site for which a certificate of\ncompletion has been issued on or after July first, two thousand fifteen\nbut on or before June twenty-fourth, two thousand twenty-one, on-site\ngroundwater remediation costs shall include all such costs paid or\nincurred within eighty-four months after the last day of the tax year in\nwhich the certificate of completion is issued.\n (5) Certificate of completion. A "certificate of completion" issued by\nthe commissioner of environmental conservation pursuant to section\n27-1419 of the environmental conservation law.\n (6) Environmental zones (EN-Zones). An "environmental zone" shall mean\nan area designated as such by the commissioner of labor. Such areas\nshall be census tracts that satisfy either of the following criteria:\n (A) areas that have both:\n (i) a poverty rate of at least twenty percent based on the most recent\nfive year American Community Survey; and\n (ii) an unemployment rate of at least one and one-quarter times the\nstatewide unemployment rate based on the most recent five year American\nCommunity Survey, or;\n (B) areas that have a poverty rate of at least two times the poverty\nrate for the county in which the areas are located based on the most\nrecent five year American Community Survey.\n Such designation shall be made and a list of all such environmental\nzones shall be established by the commissioner of labor based on the two\nthousand nine through two thousand thirteen American Community Survey\nestimate. Upon request of the commissioner of environmental\nconservation, the commissioner of labor shall update such designation\nbased on the most recent American Community Survey, or its successor.\n The determination of whether a site is located in an environmental\nzone shall be based on the date the department of environmental\nconservation issued a notice to the taxpayer that its request for\nparticipation in the brownfield cleanup program has been deemed complete\npursuant to subdivision three of section 27-1407 of the environmental\nconservation law.\n (c) Qualifying property. Property which qualifies for the credit\nprovided for under this section and also for a credit provided for (1)\nunder either subdivision one or subdivision three of section two hundred\nten-B of this chapter, or both, or (2) subsection (a) or subsection (j)\nof section six hundred six of this chapter, or both may be the basis for\neither the credit provided for under this section or one of the credits\nenumerated in paragraph one or two of this subdivision, but not both.\n (d) Depreciable property. (1) With respect to qualified tangible\nproperty which is depreciable pursuant to section one hundred\nsixty-seven of the internal revenue code but is not subject to the\nprovisions of section one hundred sixty-eight of such code and which\nceases to be in qualified use prior to the end of the taxable year in\nwhich the credit is to be taken, the amount of the credit shall be that\nportion of the credit provided for in this subdivision which represents\nthe ratio which the months of qualified use bear to the months of useful\nlife. If property on which credit has been taken ceases to be in\nqualified use prior to the end of its useful life, the difference\nbetween the credit taken and the credit allowed for actual use must be\nadded back in the year in which the property ceased to be in qualified\nuse. Provided, however, if such property ceases to be in qualified use\nafter it has been in qualified use for more than twelve consecutive\nyears, it shall not be necessary to add back the credit as provided in\nthis paragraph. The amount of credit allowed for actual use shall be\ndetermined by multiplying the original credit by the ratio which the\nmonths of qualified use bear to the months of useful life. For purposes\nof this paragraph, the useful life of property shall be the same as the\ntaxpayer uses for depreciation purposes when computing its federal\nincome tax liability.\n (2) Except with respect to that property to which paragraph four of\nthis subdivision applies, with respect to qualified tangible property\nwhich is three-year property, as defined in subsection (e) of section\none hundred sixty-eight of the internal revenue code, which ceases to be\nin qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to thirty-six. If property on which\ncredit has been taken ceases to be in qualified use prior to the end of\nthirty-six months, the difference between the credit taken and the\ncredit allowed for actual use must be added back in the year in which\nthe property ceased to be in qualified use. The amount of credit allowed\nfor actual use shall be determined by multiplying the original credit by\nthe ratio which the months of qualified use bear to thirty-six.\n (3) Except with respect to that property to which paragraph four of\nthis subdivision applies, with respect to qualified tangible property\nwhich is subject to the provisions of section one hundred sixty-eight of\nthe internal revenue code other than three-year property as defined in\nsubsection (e) of such section one hundred sixty-eight which ceases to\nbe in qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to sixty. If property on which credit\nhas been taken ceases to be in qualified use prior to the end of sixty\nmonths, the difference between the credit taken and the credit allowed\nfor actual use must be added back in the year in which the property\nceased to be in qualified use. The amount of credit allowed for actual\nuse shall be determined by multiplying the original credit by the ratio\nwhich the months of qualified use bear to sixty.\n (4) With respect to any qualified tangible property to which section\none hundred sixty-eight of the internal revenue code applies, which is a\nbuilding or a structural component of a building and which ceases to be\nin qualified use prior to the end of the taxable year in which the\ncredit is to be taken, the amount of the credit shall be that portion of\nthe credit provided for in this section which represents the ratio which\nthe months of qualified use bear to the total number of months over\nwhich the taxpayer chooses to deduct the property under the internal\nrevenue code. If property on which credit has been taken ceases to be in\nqualified use prior to the end of the period over which the taxpayer\nchooses to deduct the property under the internal revenue code, the\ndifference between the credit taken and the credit allowed for actual\nuse must be added back in the year in which the property ceased to be in\nqualified use. Provided, however, if such property ceases to be in\nqualified use after it has been in qualified use for more than twelve\nconsecutive years, it shall not be necessary to add back the credit as\nprovided in this paragraph. The amount of credit allowed for actual use\nshall be determined by multiplying the original credit by the ratio\nwhich the months of qualified use bear to the total number of months\nover which the taxpayer chooses to deduct the property under the\ninternal revenue code.\n (e) If the certificate of completion issued to the taxpayer with\nrespect to a qualified site is revoked by a determination issued\npursuant to section 27-1419 of the environmental conservation law, the\namount of any credit allowed by this section shall be added back in the\ntaxable year in which such determination is final and no longer subject\nto judicial review.\n (f) Cross-references. For application of the credit provided for in\nthis section, see the following provisions of this chapter:\n (1) Article 9: Section 187-g\n (2) Article 9-A: Section 210-B, subdivision 17\n (3) Article 22: Section 606, subsections (i) and (dd)\n (4) Article 33: Section 1511, subdivision (u).\n * NB There are 2 § 21's\n