1     
HIGH COST INFRASTRUCTURE TAX CREDITS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ralph Okerlund

5     
House Sponsor: Jon Cox

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to tax credits for infrastructure development
10     projects.
11     Highlighted Provisions:
12          This bill:
13          ▸     directs the Office of Energy Development to issue a tax credit certificate to an entity
14     developing a high cost infrastructure project under certain circumstances; and
15          ▸     provides tax credit eligibility criteria for an entity developing a high cost
16     infrastructure project.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          This bill provides a special effective date.
21     Utah Code Sections Affected:
22     AMENDS:
23          63M-4-401, as last amended by Laws of Utah 2012, Chapters 37 and 410
24     ENACTS:
25          59-7-618, Utah Code Annotated 1953
26          59-10-1033, Utah Code Annotated 1953
27          63M-4-601, Utah Code Annotated 1953
28          63M-4-602, Utah Code Annotated 1953
29          63M-4-603, Utah Code Annotated 1953

30          63M-4-604, Utah Code Annotated 1953
31          63M-4-605, Utah Code Annotated 1953
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 59-7-618 is enacted to read:
35          59-7-618. Nonrefundable high cost infrastructure development tax credit.
36          (1) As used in this section:
37          (a) "High cost infrastructure project" means the same as that term is defined in Section
38     63M-4-602.
39          (b) "Infrastructure cost-burdened entity" means the same as that term is defined in
40     Section 63M-4-602.
41          (c) "Infrastructure-related revenue" means the same as that term is defined in Section
42     63M-4-602.
43          (d) "Office" means the Office of Energy Development created in Section 63M-4-401.
44          (2) Subject to the other provisions of this section, a corporation that is an infrastructure
45     cost-burdened entity may claim a nonrefundable tax credit for development of a high cost
46     infrastructure project as provided in this section.
47          (3) The tax credit under this section is the amount listed as the tax credit amount on a
48     tax credit certificate that the office issues under Title 63M, Chapter 4, Part 6, High Cost
49     Infrastructure Development Tax Credit Act, to the infrastructure cost-burdened entity for the
50     taxable year.
51          (4) An infrastructure cost-burdened entity may carry forward a tax credit under this
52     section for a period that does not exceed the next seven taxable years if:
53          (a) the infrastructure cost-burdened entity is allowed to claim a tax credit under this
54     section for a taxable year; and
55          (b) the amount of the tax credit exceeds the infrastructure cost-burdened entity's tax
56     liability under this chapter for that taxable year.
57          (5) (a) On or before October 1, 2020, and every five years after October 1, 2020, the

58     Revenue and Taxation Interim Committee shall study the tax credit allowed by this section and
59     make recommendations to the Legislative Management Committee concerning whether the tax
60     credit should be continued, modified, or repealed.
61          (b) For purposes of the study required by this Subsection (5), the office shall provide
62     the following information to the Revenue and Taxation Interim Committee:
63          (i) the amount of tax credit that the office grants to each infrastructure cost-burdened
64     entity for each taxable year;
65          (ii) the infrastructure-related revenue generated by each high cost infrastructure project;
66          (iii) the information contained in the office's latest report to the Legislature under
67     Section 63M-4-505; and
68          (iv) any other information that the Revenue and Taxation Interim Committee requests.
69          (c) The Revenue and Taxation Interim Committee shall ensure that the Revenue and
70     Taxation Interim Committee's recommendations under Subsection (5)(a) include an evaluation
71     of:
72          (i) the cost of the tax credit to the state;
73          (ii) the purpose and effectiveness of the tax credit; and
74          (iii) the extent to which the state benefits from the tax credit.
75          Section 2. Section 59-10-1033 is enacted to read:
76          59-10-1033. Nonrefundable high cost infrastructure development tax credit.
77          (1) As used in this section:
78          (a) "High cost infrastructure project" means the same as that term is defined in Section
79     63M-4-602.
80          (b) "Infrastructure cost-burdened entity" means the same as that term is defined in
81     Section 63M-4-602.
82          (c) "Infrastructure-related revenue" means the same as that term is defined in Section
83     63M-4-602.
84          (d) "Office" means the Office of Energy Development created in Section 63M-4-401.
85          (2) Subject to the other provisions of this section, a claimant, estate, or trust that is an

86     infrastructure cost-burdened entity may claim a nonrefundable tax credit for development of a
87     high cost infrastructure project as provided in this section.
88          (3) The tax credit under this section is the amount listed as the tax credit amount on a
89     tax credit certificate that the office issues under Title 63M, Chapter 4, Part 6, High Cost
90     Infrastructure Development Tax Credit Act, to the infrastructure cost-burdened entity for the
91     taxable year.
92          (4) An infrastructure cost-burdened entity may carry forward a tax credit under this
93     section for a period that does not exceed the next seven taxable years if:
94          (a) the infrastructure cost-burdened entity is allowed to claim a tax credit under this
95     section for a taxable year; and
96          (b) the amount of the tax credit exceeds the infrastructure cost-burdened entity's tax
97     liability under this chapter for that taxable year.
98          (5) (a) On or before October 1, 2020, and every five years after October 1, 2020, the
99     Revenue and Taxation Interim Committee shall study the tax credit allowed by this section and
100     make recommendations to the Legislative Management Committee concerning whether the tax
101     credit should be continued, modified, or repealed.
102          (b) For purposes of the study required by this Subsection (5), the office shall provide
103     the following information to the Revenue and Taxation Interim Committee:
104          (i) the amount of tax credit that the office grants to each infrastructure cost-burdened
105     entity for each taxable year;
106          (ii) the infrastructure-related revenue generated by each high cost infrastructure project;
107          (iii) the information contained in the office's latest report to the Legislature under
108     Section 63M-4-505; and
109          (iv) any other information that the Revenue and Taxation Interim Committee requests.
110          (c) The Revenue and Taxation Interim Committee shall ensure that the Revenue and
111     Taxation Interim Committee's recommendations under Subsection (5)(a) include an evaluation
112     of:
113          (i) the cost of the tax credit to the state;

114          (ii) the purpose and effectiveness of the tax credit; and
115          (iii) the extent to which the state benefits from the tax credit.
116          Section 3. Section 63M-4-401 is amended to read:
117          63M-4-401. Creation of Office of Energy Development -- Director -- Purpose --
118     Rulemaking regarding confidential information.
119          (1) There is created an Office of Energy Development.
120          (2) (a) The governor's energy advisor shall appoint a director of the office.
121          (b) The director shall report to the governor's energy advisor and may appoint staff as
122     funding within existing budgets allows.
123          (c) The office may consolidate energy staff and functions existing in the State Energy
124     Program.
125          (3) The purposes of the office are to:
126          (a) serve as the primary resource for advancing energy development in the state; and
127          (b) implement:
128          (i) the state energy policy under Section 63M-4-301; and
129          (ii) the governor's energy goals and objectives.
130          (4) By following the procedures and requirements of Title 63J, Chapter 5, Federal
131     Funds Procedures Act, the office may:
132          (a) seek federal grants or loans;
133          (b) seek to participate in federal programs; and
134          (c) in accordance with applicable federal program guidelines, administer federally
135     funded state energy programs.
136          (5) The office shall perform the duties required by Sections 59-7-614.7 [and],
137     59-10-1029 [and], Part 5, Alternative Energy Development Tax Credit Act, and Part 6, High
138     Cost Infrastructure Development Tax Credit Act.
139          (6) (a) For purposes of administering this section, the office may make rules, by
140     following the procedures and requirements of Title 63G, Chapter 3, Utah Administrative
141     Rulemaking Act, to maintain as confidential, and not as a public record, information that the

142     office receives from any source.
143          (b) The office shall maintain information the office receives from any source at the
144     level of confidentiality assigned by the source.
145          Section 4. Section 63M-4-601 is enacted to read:
146     
Part 6. High Cost Infrastructure Development Tax Credit Act

147          63M-4-601. Title.
148          This part is known as the "High Cost Infrastructure Development Tax Credit Act."
149          Section 5. Section 63M-4-602 is enacted to read:
150          63M-4-602. Definitions.
151          As used in this part:
152          (1) "Applicant" means a person that conducts business in the state and that applies for a
153     tax credit under this part.
154          (2) "Fuel standard compliance project" means a project designed to retrofit a fuel
155     refinery in order to make the refinery capable of producing fuel that complies with the United
156     States Environmental Protection Agency's Tier 3 gasoline sulfur standard described in 40
157     C.F.R. Sec. 79.54.
158          (3) "High cost infrastructure project" means:
159          (a) (i) a project that expands or creates new industrial, mining, manufacturing, or
160     agriculture activity in the state, not including a retail business; or
161          (ii) new investment of at least $50,000,000 in an existing industrial, mining,
162     manufacturing, or agriculture entity, by the entity;
163          (b) that requires or is directly facilitated by infrastructure construction; and
164          (c) for which the cost of infrastructure construction to the entity creating the project is
165     greater than:
166          (i) 10% of the total cost of the project; or
167          (ii) $10,000,000.
168          (4) "Infrastructure" means:
169          (a) an energy delivery project as defined in Section 63H-2-102;

170          (b) a railroad as defined in Section 54-2-1;
171          (c) a fuel standard compliance project;
172          (d) a road improvement project;
173          (e) a water self-supply project;
174          (f) a water removal system project; or
175          (g) a project that is designed to:
176          (i) increase the capacity for water delivery to a water user in the state; or
177          (ii) increase the capability of an existing water delivery system or related facility to
178     deliver water to a water user in the state.
179          (5) (a) "Infrastructure cost-burdened entity" means an applicant that enters into an
180     agreement with the office that qualifies the applicant to receive a tax credit as provided in this
181     part.
182          (b) "Infrastructure cost-burdened entity" includes a pass-through entity taxpayer, as
183     defined in Section 59-10-1402, of a person described in Subsection (5)(a).
184          (6) "Infrastructure-related revenue" means an amount of tax revenue, for an entity
185     creating a high cost infrastructure project, in a taxable year, that is directly attributable to a high
186     cost infrastructure project, under:
187          (a) Title 59, Chapter 7, Corporate Franchise and Income Taxes;
188          (b) Title 59, Chapter 10, Individual Income Tax Act; and
189          (c) Title 59, Chapter 12, Sales and Use Tax Act.
190          (7) "Office" means the Office of Energy Development created in Section 63M-4-401.
191          (8) "Tax credit" means a tax credit under Section 59-7-618 or 59-10-1033.
192          (9) "Tax credit certificate" means a certificate issued by the office to an infrastructure
193     cost-burdened entity that:
194          (a) lists the name of the infrastructure cost-burdened entity;
195          (b) lists the infrastructure cost-burdened entity's taxpayer identification number;
196          (c) lists, for a taxable year, the amount of the tax credit authorized for the infrastructure
197     cost-burdened entity under this part; and

198          (d) includes other information as determined by the office.
199          Section 6. Section 63M-4-603 is enacted to read:
200          63M-4-603. Tax credit -- Amount -- Eligibility -- Reporting.
201          (1) Before the office enters into an agreement described in Subsection (3) with an
202     applicant regarding a project, the office, in consultation with the Utah Energy Infrastructure
203     Authority Board created in Section 63H-2-202, and other state agencies as necessary, shall, in
204     accordance with the procedures described in Section 63M-4-604, certify:
205          (a) that the project meets the definition of a high cost infrastructure project under this
206     part;
207          (b) that the high cost infrastructure project will generate infrastructure-related revenue;
208          (c) the economic life of the high cost infrastructure project; and
209          (d) that the applicant has received a certificate of good standing from the Division of
210     Corporations and Commercial Code.
211          (2) (a) Before the office enters into an agreement described in Subsection (3) with an
212     applicant regarding a project, the Utah Energy Infrastructure Authority Board shall evaluate the
213     project's benefit to the state, based on whether the project:
214          (i) is likely to increase the property tax revenue for the municipality or county where
215     the project will be located;
216          (ii) would provide new infrastructure for an area where the type of infrastructure the
217     project would create is underdeveloped;
218          (iii) would have a positive environmental impact on the state;
219          (iv) would upgrade or improve an existing entity in order to ensure the entity's
220     continued operation and economic viability; and
221          (v) is less likely to be completed without a tax credit issued to the applicant under this
222     part.
223          (b) The Utah Energy Infrastructure Authority Board may recommend that the office
224     deny an applicant a tax credit if the applicant's project does not, as determined by the Utah
225     Energy Infrastructure Authority Board, sufficiently benefit the state based on the criteria

226     described in Subsection (2)(a).
227          (3) Subject to the procedures described in Section 63M-4-604, if an applicant meets the
228     requirements of Subsection (1) to receive a tax credit, and the applicant's project receives a
229     favorable recommendation from the Utah Energy Infrastructure Authority Board under
230     Subsection (2), the office shall enter into an agreement with the applicant to authorize the tax
231     credit in accordance with this part.
232          (4) The office shall grant a tax credit to an infrastructure cost-burdened entity, for a
233     high cost infrastructure project, under an agreement described in Subsection (3):
234          (a) for the lesser of:
235          (i) the economic life of the high cost infrastructure project;
236          (ii) 20 years; or
237          (iii) a time period, the first taxable year of which is the taxable year when the
238     construction of the high cost infrastructure project begins and the last taxable year of which is
239     the taxable year in which the infrastructure cost-burdened entity has recovered, through the tax
240     credit, an amount equal to:
241          (A) 50% of the cost of the infrastructure construction associated with the high cost
242     infrastructure project; or
243          (B) if the high cost infrastructure project is a fuel standard compliance project, 30% of
244     the cost of the infrastructure construction associated with the high cost infrastructure project.
245          (b) except as provided in Subsections (4)(a) and (d), in a total amount equal to 30% of
246     the high cost infrastructure project's total infrastructure-related revenue over the time period
247     described in Subsection (4)(a);
248          (c) for a taxable year, in an amount that does not exceed the high cost infrastructure
249     project's infrastructure-related revenue during that taxable year; and
250          (d) if the high cost infrastructure project is a fuel standard compliance project, in a total
251     amount that is:
252          (i) determined by the Utah Energy Infrastructure Authority Board, based on:
253          (A) the applicant's likelihood of completing the high cost infrastructure project without

254     a tax credit; and
255          (B) how soon the applicant plans to complete the high cost infrastructure project; and
256          (ii) equal to or less than 30% of the high cost infrastructure project's total
257     infrastructure-related revenue over the time period described in Subsection (4)(a).
258          (5) An infrastructure cost-burdened entity shall, for each taxable year:
259          (a) file a report with the office showing the high cost infrastructure project's
260     infrastructure-related revenue during the taxable year;
261          (b) subject to Subsection (7), file a report with the office that is prepared by an
262     independent certified public accountant that verifies the infrastructure-related revenue
263     described in Subsection (5)(a); and
264          (c) provide the office with information required by the office to certify the economic
265     life of the high cost infrastructure project.
266          (6) An infrastructure cost-burdened entity shall retain records supporting a claim for a
267     tax credit for the same period of time during which a person is required to keep books and
268     records under Section 59-1-1406.
269          (7) An infrastructure cost-burdened entity for which a report is prepared under
270     Subsection (5)(b) shall pay the costs of preparing the report.
271          (8) The office shall certify, for each taxable year, the infrastructure-related revenue
272     generated by an infrastructure cost-burdened entity.
273          Section 7. Section 63M-4-604 is enacted to read:
274          63M-4-604. Tax credit -- Application procedure.
275          (1) An applicant shall provide the office with:
276          (a) an application for a tax credit certificate;
277          (b) documentation that the applicant meets the requirements described in Subsection
278     63M-4-603(1), to the satisfaction of the office, for the taxable year for which the applicant
279     seeks to claim a tax credit; and
280          (c) documentation that expressly directs and authorizes the State Tax Commission to
281     disclose to the office the applicant's returns and other information concerning the applicant that

282     would otherwise be subject to confidentiality under Section 59-1-403 or Section 6103, Internal
283     Revenue Code.
284          (2) (a) The office shall, for an applicant, submit the documentation described in
285     Subsection (1)(c) to the State Tax Commission.
286          (b) Upon receipt of the documentation described in Subsection (1)(c), the State Tax
287     Commission shall provide the office with the documentation described in Subsection (1)(c).
288          (3) If, after the office reviews the documentation from the State Tax Commission
289     under Subsection (2)(b) and the information the applicant submits to the office under Section
290     63M-4-603, the office, in consultation with the Utah Energy Infrastructure Authority Board
291     created in Section 63H-2-202, determines that the applicant is not eligible for the tax credit
292     under Section 63M-4-603, or that the applicant's documentation is inadequate, the office shall:
293          (a) deny the tax credit; or
294          (b) inform the applicant that the documentation supporting the applicant's claim for a
295     tax credit was inadequate and request that the applicant supplement the applicant's
296     documentation.
297          (4) Except as provided in Subsection (5), if, after the office reviews the documentation
298     described in Subsection (2)(b) and the information described in Subsection 63M-4-603(6), the
299     office, in consultation with the Utah Energy Infrastructure Authority Board created in Section
300     63H-2-202, determines that the documentation supporting an applicant's claim for a tax credit
301     adequately demonstrates that the applicant is eligible for the tax credit under Section
302     63M-4-603, the office shall, on the basis of the documentation:
303          (a) enter, with the applicant, into the agreement described in Subsection 63M-4-603(3);
304          (b) issue a tax credit certificate to the applicant; and
305          (c) provide a duplicate copy of the tax credit certificate described in Subsection (4)(b)
306     to the State Tax Commission.
307          (5) The office may deny an applicant a tax credit based on the recommendation of the
308     Utah Energy Infrastructure Authority Board, as provided in Subsection 63M-4-603(2).
309          (6) An infrastructure cost-burdened entity may not claim a tax credit under Section

310     59-7-618 or 59-10-1033 unless the infrastructure cost-burdened entity receives a tax credit
311     certificate from the office.
312          (7) An infrastructure cost-burdened entity that claims a tax credit shall retain the tax
313     credit certificate in accordance with Subsection 63M-4-603(7).
314          (8) Except for the information that is necessary for the office to disclose in order to
315     make the report described in Section 63M-4-605, the office shall treat a document an applicant
316     or infrastructure cost-burdened entity provides to the office as a protected record under Section
317     63G-2-305.
318          Section 8. Section 63M-4-605 is enacted to read:
319          63M-4-605. Report to the Legislature.
320          The office shall report annually to the Public Utilities and Technology Interim
321     Committee and the Revenue and Taxation Interim Committee describing:
322          (1) the office's success in attracting high cost infrastructure projects to the state and the
323     resulting increase in infrastructure-related revenue under this part;
324          (2) the amount of tax credits the office has granted or will grant and the time period
325     during which the tax credits have been or will be granted; and
326          (3) the economic impact on the state by comparing infrastructure-related revenue to tax
327     credits that have been or will be granted under this part.
328          Section 9. Effective date.
329          (1) Except as provided in Subsection (2), this bill takes effect on May 12, 2015.
330          (2) The actions affecting the following sections take effect for a taxable year beginning
331     on or after January 1, 2016:
332          (a) Section 59-7-618; and
333          (b) Section 59-10-1033.