Guidelines for Article 3A Tax Credits
Tax Year 2002

I. Purpose

This document sets out guidelines for the tax credits in Article 3A of Chapter 105 of the General Statutes, also known as the William S. Lee Quality Jobs and Business Expansion Act. The document applies to tax years beginning on or after January 1, 2002. Article 3A has been amended each year since its enactment. This document does not attempt to review the law in effect prior to January 1, 2002.

This document is published by the North Carolina Department of Revenue and is updated periodically as issues arise that require clarification. The publication date of the document is set out at the bottom of each page. The first publication date of the document was June 2002. That publication applied to tax years beginning on or after January 1, 2001 and before January 1, 2002.

II. Overview

The Article 3A tax credits are designed to attract certain types of new businesses to North Carolina and to foster expansions of certain types of businesses in North Carolina. The credits are based on a system that divides the State into five enterprise tiers, with tier one being the most economically distressed and tier five being the least economically distressed. Eligibility requirements are easier to meet and credits are increased for business expansion occurring in the lower tiers. Each county is assigned a tier designation by the Secretary of Commerce on or before December 31st of each year. Generally, a designation applies only to the calendar year following the designation. A tier one or tier two area, however, may not be redesignated as a higher-numbered enterprise tier area until it has been in its designated enterprise tier area for at least two consecutive years. The Department of Commerce publishes a list of the counties and their respective tier designations.

Within each tier, there may be designated development zones. These designations recognize defined areas of economic need within a tier. For purposes of the wage standard requirement, the credit for investing in machinery and equipment, and the credit for worker training, a development zone is considered an enterprise tier one area. Additionally, credits for creating jobs are increased by $4,000 per job for jobs located within a development zone. Upon the request of a taxpayer or a local government, the Secretary of Commerce will determine whether an area is in a development zone. The determination is based on various economic factors. If an area is designated as a development zone, the designation is effective for 24 months following the date of the designation. The Department of Commerce publishes annually a list of all development zones with a description of their boundaries.

For tax years beginning on or after January 1, 2003, a parcel of property that is partially in a development zone is considered to be entirely within the development zone if all of the following conditions are met:

  • At least fifty percent of the parcel is located within the development zone.
  • The parcel was in existence and under common ownership prior to the most recent federal decennial census.
  • The parcel is a portion of land made up of one or more tracts or tax parcels of land that is surrounded by a continuous perimeter boundary.

III. Credits Available

For tax years beginning on or after January 1, 2002, credits are available for:

  1. Creating jobs
  2. Investing in machinery and equipment
  3. Technology commercialization
  4. Research and development
  5. Worker training
  6. Investing in central office or aircraft facility property
  7. Development zone projects
  8. Substantial investment in other property

IV. Substantiation (G.S. 105-129.7)

To claim a credit, the taxpayer must provide any information considered necessary by the Secretary of Revenue to determine and verify the amount of the credit to which the taxpayer is entitled. The burden of proving eligibility for the credit and the amount of the credit rests upon the taxpayer. The taxpayer must submit a portion of the qualifying information with the tax return. That information is reported on the Department of Revenue NC-478 form series. The taxpayer must maintain additional documentation needed to substantiate the credit and make it available for inspection by the Secretary of Revenue.

V. General Eligibility Requirements (G.S. 105-129.4)

The taxpayer must satisfy all general eligibility requirements in order to qualify for any of the credits listed in Section III, except the credit for development zone projects. If a taxpayer is uncertain about its eligibility for a credit, the taxpayer may request specific advice in writing from the Secretary of Revenue.

The general eligibility requirements are listed below, followed by a description of each specific requirement:

  • Be an eligible business type
  • Meet the wage standard specified for the credit
  • Provide health insurance for employees as specified for the credit
  • Have a good environmental record
  • Have a good Occupational Safety and Health Act (OSHA) record

VI. Eligible Business Types (G.S. 105-129.4(a))

Types

Article 3A allows tax credits only to certain types of businesses. Under the Article, the taxpayer must meet one of the following descriptions to be eligible for a credit. For definitions of the business types described below, see G.S. 105-129.2.
  1. Central Office or Aircraft Facility. -- The taxpayer operates a central office or aircraft facility that creates at least 40 new jobs and the jobs, investment, and activity with respect to which a credit is claimed are used in that office or facility. Generally, 40 new jobs are created if the taxpayer hires at least 40 additional full-time employees to fill new positions at the office within 12 months after the taxpayer first uses the property as a central office or aircraft facility. If a taxpayer uses temporary space, however, for the central office or aircraft facility functions during completion of the central office or aircraft facility property, the jobs must be created during the period starting 24 months before and ending 12 months after the completion of the property.
  2. Air Courier Services or Data Processing. -- The primary business of the taxpayer is one of the following and the jobs, investment, and activity with respect to which a credit is claimed are used in that business:
    1. Air courier services
    2. Data processing
  3. Manufacturing, Warehousing, or Wholesale Trade. -- The primary business of the taxpayer is one of the following and the jobs, investment, and activity with respect to which a credit is claimed are used in any of the listed businesses:
    1. Manufacturing
    2. Warehousing
    3. Wholesale trade
  4. Computer Services or Electronic Mail Order House. -- The primary business of the taxpayer or the primary activity of an establishment of the taxpayer is one of the following and the jobs, investment, and activity with respect to which a credit is claimed are used in that business:
    1. Computer services
    2. An electronic mail order house that creates at least 250 new jobs and is located in an enterprise tier one, tier two, or tier three area.
  5. Customer Service Center. -- The taxpayer operates a customer service center and meets all of the following conditions:
    1. The taxpayer's primary business is a telecommunications or financial services company as defined by NAICS
    2. The primary activity of an establishment of the taxpayer is a customer service center located in an enterprise tier one, tier two, or tier three area
    3. The jobs, investment, and activity with respect to which a credit is claimed are used in the operation of the customer service center.
  6. Warehousing at Establishment. -- The primary activity of an establishment of the taxpayer is warehousing and the taxpayer meets both of the following conditions:
    1. The warehousing establishment is located in an enterprise tier one, tier two, or tier three area and serves 25 or more establishments of the taxpayer in at least five different counties in one or more states
    2. The jobs, investment, and activity with respect to which a credit is claimed are used in the warehousing establishment.

Determining Primary Business

For most of the eligible business types, the law specifies that the taxpayer's primary business must be a designated business. To claim a credit as a taxpayer that provides air courier services or data processing services, for example, the provision of these services must be the primary business of the taxpayer and not just the taxpayer's primary activity at one establishment. Similarly, to claim a credit as a customer service center, the taxpayer's primary business must be telecommunications or financial services.

The determination of whether an activity of a company is its primary business is based on the principal product or group of products the taxpayer produces or distributes or the principal services the taxpayer provides. The relative share of production costs and capital investment reflects the principal product or service. The activities at all the taxpayer's establishments are considered in determining the taxpayer's primary business.

Determining Primary Activity at an Establishment

For a few of the eligible business types, the law only requires the taxpayer's primary activity at an establishment to be a designated business. The eligible business types for providing computer services, operating an electronic mail order house, and engaging in warehousing, for example, set requirements for the taxpayer's primary business activity at an establishment but not the taxpayer's primary business taken overall. The credit for a customer service center sets requirements for the taxpayer's primary business activity at an establishment and sets a different requirement for the taxpayer's primary business.

The determination of whether an activity at an establishment is the primary business activity is based on the proper classification of the establishment under the NAICS Code. If more than one activity is conducted at the same establishment, the primary activity of the establishment is determined based on the same factors used in determining the taxpayer's primary business.

Determining What Jobs, Investment, and Activity Qualify for Credits

All the eligible business types require jobs, investment, and activity to be used in a specified aspect of the taxpayer's business. To satisfy this requirement, that aspect must be the primary activity of the taxpayer at the establishment where the credits are claimed.

For some eligible business types, the jobs, investment, and activity that qualify for the credit must be used in the taxpayer's primary business. For these eligible business types, the taxpayer's primary business must be one of the eligible business types and, if the taxpayer has more than one business establishment, the primary activity at the taxpayer's establishment where the credits are claimed must be the same as the taxpayer's primary business. When these conditions are met, the jobs, investment, and activity at the establishment are considered to be part of the taxpayer's primary business and to satisfy the requirement of being used in that business. The eligible business types for air courier services, data processing, manufacturing, warehousing, wholesale trade, computer services, and electronic mail order house fall into this category. The last five of these also fall into other categories due to alternative ways to qualify for the credits.

Some eligible business types have different requirements for primary business and primary business activity at an establishment. For these eligible business types, the taxpayer's primary business must be the specified type of business, the taxpayer must have more than one business establishment, the taxpayer's primary activity at the establishment where the credits are claimed must be the specified type of activity, and the taxpayer's primary business and the primary business activity at the establishment must be different. When these conditions are met, the jobs, investment, and activity at the establishment are considered to be part of the taxpayer's primary business activity at the establishment and to satisfy the requirement of being used in that specified business activity. The eligible business types for manufacturing, warehousing, wholesale trade, computer services, electronic mail order house, and customer service center fall into this category. The first five of these also fall into other categories due to alternative ways to qualify for the credits.

Some eligible business types set no requirements on the taxpayer's primary business and, instead, set requirements only on the primary business activity at an establishment. For these credits, the primary business activity at the establishment where the credits are claimed must be the specified type of activity. This activity may also be the taxpayer's primary business, but it does not matter if the primary business activity at the establishment and the taxpayer's primary business are the same or are different. If they are different, however, the taxpayer must have more than one establishment. At the establishment, if the primary business activity is the specified type of activity, then the jobs, investment, and activity at the establishment are considered to be part of the primary business activity and to satisfy the requirement of being used in that primary business activity. The eligible business types for computer services, electronic mail order house, and warehousing at an establishment fall into this category. The eligible business types for computer services and electronic mail order house also fall into another category due to alternative ways to qualify for the credits.

Two eligible business types set requirements for a business function of the taxpayer rather than for primary business or primary business activity at an establishment. These two eligible business types are for a central office or an aircraft facility. For these eligible business types, the jobs, investment, and activity must be used in the central office function or the aircraft facility function. In most cases, the establishment where the central office or the aircraft facility is located will have a NAICS Code reflecting a central office or aircraft facility, but a central office or aircraft facility can be located in a building that includes various functions.

In summary, except for the eligible business types for a central office or an aircraft facility, the determination of whether jobs, investment, and activity qualify turns on the primary business activity at an establishment plus, for some eligible business types, the primary business of the taxpayer. When these conditions are met, all the jobs, investment, and activity at the establishment are considered to be used in the qualifying business, even though they may be part of a support function at the establishment.

The following examples illustrate when jobs, investment, and activity satisfy the requirement of being used in a business:

  1. ABC Manufacturing Company

    ABC's primary business is manufacturing. In the 2002 tax year, ABC constructs and begins operating a North Carolina manufacturing facility. The new jobs, investment, and activity at the North Carolina manufacturing facility are eligible for credits, subject to the other requirements of Article 3A. This is because ABC's primary business of manufacturing is an eligible business type and its primary business activity at the North Carolina facility is the same as its primary business. The jobs, investment, and activity at the North Carolina establishment therefore satisfy the requirement of being used in the manufacturing business.
  2. EFG Manufacturing Company

    EFG's primary business is manufacturing. All of EFG's manufacturing plants are located outside North Carolina. In the 2002 tax year, EFG constructs and begins operating a North Carolina warehouse facility. The new jobs, investment, and activity at the North Carolina warehouse facility are eligible for credits, subject to the other requirements of the Act. This is because EFG's primary business is manufacturing, and the jobs, investment, and activity are used in the warehousing business.
  3. XYZ Manufacturing Company

    XYZ's primary business is manufacturing. XYZ has one manufacturing plant located in the State. XYZ has previously qualified for credits for new jobs, investment, and activity used in the manufacturing business. During the 2002 tax year, XYZ purchases a facility in North Carolina that conducts marketing, customer service, and product repairs. Additionally, a retail outlet is on site at the newly purchased facility. The new jobs investment, and activity at the newly purchased facility are not eligible for credits. This is because the primary business activity at the facility is not manufacturing, wholesale trade, or warehousing.

VII. Wage Standard Test (G.S. 105-129.4(b))

For tax year 2002, the taxpayer must satisfy a wage standard test with respect to each potential credit. The test is performed by comparing the applicable wage standard for the taxpayer to the wage standard for the relevant county. The county wage standard is obtained from the Department of Commerce. If the taxpayer’s tax year is other than a calendar year, the taxpayer must use the wage standard for the calendar year in which the taxpayer’s tax year begins. If the county is located in an enterprise tier one area, the taxpayer's wage standard must equal or exceed 100% of the county wage standard. If the county is located in an enterprise tier two, three, four, or five area, the taxpayer's wage standard must equal or exceed 110% of the county wage standard.

For tax years beginning on or after January 1, 2003, the taxpayer does not have to satisfy a wage standard test with respect to the worker training credit and the credit for substantial investment in other property. The wage standard test also does not apply to any credit in a tier one or tier two area or in a development zone.

The wage standard test that applies depends on the credit, as explained below.

Credit for Creating Jobs

For tax years beginning on or after January 1, 2002, the test is a two-part test. The first part requires the combined average weekly wage of the jobs for which the credit is claimed to meet the wage standard. The second part requires the combined average weekly wage of all jobs at the location with respect to which a credit is claimed to meet the wage standard. The average wage for both parts of the test is determined for the tax year in which the activity that qualifies for the credit occurs, even if the taxpayer’s tax year is not a calendar year. For part-time employees, a full-time equivalency factor must be used. However, all part-time jobs for which the taxpayer provides health insurance, as described in G.S. 105-129.4(b2), are considered to meet the wage standard, regardless of the actual wages for the job. If there are potential credits at more than one location, both tests must be applied separately at each location. No credits are allowed with respect to jobs at a location unless both tests are met.

The following example demonstrates the calculation of the wage standard test when new jobs are created during the year at multiple locations. Assume that the taxpayer meets all the other eligibility requirements in Article 3A.

Taxpayer creates 75 new jobs at location one during the year and 50 new jobs at location two. The combined average weekly wage of the 75 jobs created at location one meets the wage standard and the combined average weekly wage of the 50 jobs created at location two meets the wage standard. The jobs at both locations therefore meet the first part of the test.

The combined average weekly wage of all the jobs at location one meets the wage standard. However, the combined average weekly wage of all the jobs at location two does not meet the wage standard. Consequently, the taxpayer is eligible to claim a credit for the 75 jobs created at location one, but not the 50 jobs created at location two. This is because the jobs at location one meet the second part of the test and the jobs at location two do not.

Credit for Worker Training

For tax year 2002. the test is the same two-part test as the test for the credit for creating jobs. For tax years beginning on or after January 1, 2003, the credit for worker training is not subject to a wage standard test.

All Other Credits

For tax years beginning on or after January 1, 2002, only the second part of the wage standard test for the jobs credit and the worker training credit apply to the other credits. The other credits are the credit for investing in machinery and equipment, the credit for research and development, the credit for investing in real property for a central office or an aircraft facility, and the credit for substantial investment in other property. The credit for substantial investment in other property is not subject to the wage standard test for tax years beginning on or after January 1, 2003. The taxpayer is eligible for these credits if the combined average weekly wage of all jobs at the location with respect to which the credit is claimed meets the wage standard. The average wages of the jobs at the location are determined for the tax year in which the activity that qualifies for the credit occurs, even if the taxpayer’s tax year is not a calendar year. For part-time employees, a full-time equivalency factor must be used.

VIII. Health Insurance (G.S. 105-129.4(b2))

Article 3A makes the provision of health insurance a condition for qualifying for the credits. The reason for this is to ensure that the credits are allowed only for quality jobs.

A taxpayer provides health insurance if it pays at least 50% of the premiums for health care coverage that equals or exceeds the minimum provisions of the basic health care plan of coverage recommended by the Small Employer Carrier Committee pursuant to G.S. 58-50-125. The specific health insurance requirements for each credit are described below.

Credit for Creating Jobs and Credit for Worker Training

A taxpayer is eligible for a credit for creating jobs or for worker training if the taxpayer provides health insurance for the jobs for which a credit is claimed. The insurance must be provided at the time the jobs are created or the workers are trained and must be maintained in each year the taxpayer claims an installment or a carryforward of the credit. To ensure that a taxpayer satisfies this requirement, the taxpayer must provide with the tax return a certification that the taxpayer provides health insurance for the affected jobs. This applies to the return on which the taxpayer qualifies for the credit, a return claiming an installment of the credit, and a return claiming a carryforward of the credit.

All Other Credits

The health insurance requirement for the jobs credit and the worker training credit differs from the requirement for all the other credits. The other credits are the credit for investing in machinery and equipment, the credit for research and development, the credit for investing in real property for a central office or an aircraft facility, and the credit for substantial investment in other property. The taxpayer is eligible for these credits if the taxpayer provides health insurance for all of the full-time positions at the location with respect to which a credit is claimed. The insurance must be provided at the time of the activity that qualifies for the credit and must be maintained. The taxpayer must provide with the tax return a certification that the taxpayer provides health insurance for all the full-time positions at the location. This applies to the return on which a taxpayer qualifies for the credit and a return claiming an installment or carryforward of the credit.

IX. Environmental Impact (G.S. 105-129.4(b3))

Article 3A requires recipients of credits to have good environmental records. The environmental requirements are the same for all credits. A taxpayer is eligible for a credit only if the taxpayer certifies that, at the time the taxpayer first claims the credit, the taxpayer has no pending administrative, civil, or criminal enforcement action based on alleged significant violations of any program implemented by an agency of the Department of Environment and Natural Resources, and has had no final determination of responsibility for any significant administrative, civil, or criminal violation of any program implemented by an agency of the Department of Environment and Natural Resources within the last five years. A significant violation is a violation or an alleged violation that does not satisfy any of the conditions of G.S. 143-215.6B(d).

The Department of Revenue receives notification from the Department of Environment and Natural Resources annually of every person that currently has any of these pending actions and every person that has had any of these final determinations within the last five years. The Department of Revenue uses this information when reviewing eligibility for the credits.

The time the taxpayer first claims a credit is the date the taxpayer first files a tax return concerning the credit. The first tax return concerning the credit is the tax return for the year in which the taxpayer engaged in the qualifying activity.

X. Occupational Safety and Health Programs (OSHA) (G.S. 105-129.4(b4))

Article 3A requires recipients of credits to have good occupational safety and health (OSHA) records. The OSHA requirements are the same for all credits. A taxpayer is eligible for a credit only if the taxpayer certifies that, at the business location with respect to which the credit is claimed, the taxpayer has had no citations under the Occupational Safety and Health Act that have become a final order within the past three years for willful serious violations or for failing to abate serious violations. The certification must be made at the time the taxpayer first claims the credit. A "serious violation" is defined in G.S. 95-127.

The Department of Revenue receives notification from the Department of Labor annually of all employers with citations that have become final orders within the past three years. The Department of Revenue uses this information when reviewing eligibility for the credits.

The time the taxpayer first claims a credit is the date the taxpayer first files a tax return concerning the credit. The first tax return concerning the credit is the tax return for the year in which the taxpayer engaged in the qualifying activity.

XI. General Administration

    1. Expiration (G.S. 105-129.4(a2) and (b2))

      This section addresses general expiration provisions applying to all credits based on failure to continue to meet general eligibility requirements. In addition, there are expiration provisions that apply specifically to each credit. The specific provisions are discussed in the sections devoted to each credit. The general expiration provisions are listed below. When a credit expires, the taxpayer may not take any remaining installments of the credit.

      The expiration of a credit may also affect the taxpayer's ability to take carryforwards of a credit. Under the first two circumstances described below, the taxpayer may continue to claim carryforwards of previous installments when a credit expires. Under the third circumstance, the carryforwards as well as the installments expire. See the section on Carryforwards of Unused Credits for additional information.

      Circumstances That Result in Expiration of a Credit
      1. During the period that installments of a credit accrue, the taxpayer no longer meets one of the conditions for an eligible business type.
      2. During the period that installments of a credit accrue, the number of jobs of an eligible business falls below the minimum number required. When this happens, any credit associated with that business expires; the expiration is not limited to the jobs tax credit.
      3. The taxpayer ceases to provide health insurance for its employees.

    2. Forfeiture (G.S. 105-129.4(d))

      A taxpayer that forfeits a credit is liable for all past taxes avoided as a result of the credit plus interest at the rate established under G.S. 105-241.1(i), computed from the date the taxes would have been due if the credit had not been allowed. The past taxes and interest are due 30 days after the date the credit is forfeited. A taxpayer that fails to pay the past taxes and interest by the due date is subject to the penalties provided in G.S. 105-236. Forfeiture provisions are listed below.

      All Credits
      A taxpayer forfeits a credit allowed if the taxpayer was not eligible for the credit for the calendar year in which the taxpayer engaged in the activity for which the credit was claimed.

      Worker Training
      If a taxpayer forfeits the credit for creating jobs, the technology commercialization credit, or the credit for investing in machinery and equipment, it also forfeits any credit for worker training claimed for the jobs for which the credit for creating jobs was claimed or the jobs at the location with respect to which the technology commercialization credit or the credit for investing in machinery and equipment was claimed.

      Substantial Investment in Other Property
      A taxpayer forfeits the credit for substantial investment in other property if it fails to timely make the required level of investment or fails to timely create the required number of new jobs.

      Technology Commercialization Credit
      A taxpayer forfeits the technology commercialization credit if it fails to timely make the required level of investment or if it fails to meet the terms of its licensing agreement with a research university. If a taxpayer claimed a 20% technology commercialization credit and fails to make the required level of investment for the 20% credit, but does make the required level of investment for the 15% credit, the taxpayer forfeits one-fourth of the 20% credit.

      Large Investment Enhancements
      A taxpayer forfeits a large investment enhancement of a tax credit if it fails to timely make the required level of investment.

    3. Change in Ownership of Business (G.S. 105-129.4(e))

      The sale, merger, consolidation, conversion, acquisition, or bankruptcy of a business, or any transaction by which an existing business reformulates itself as another business does not create new eligibility in a succeeding business with respect to credits for which the predecessor was not eligible. A successor business may, however, take any installment of or carried-over portion of a credit that its predecessor could have taken if it had a tax liability. The acquisition of a business is a new investment that creates new eligibility in the acquiring taxpayer under Article 3A if any of the following conditions are met:
      1. The business closed before it was acquired.
      2. The business was required to file a notice of plant closing or mass layoff under the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2102, before it was acquired.
      3. The business was acquired by its employees through an employee stock option transaction or another similar transaction.

      The term "business" means a taxpayer or an establishment. For example, a taxpayer that purchases one of five plants from an unrelated entity has acquired a business, and must meet one of the three conditions described above in order to create new eligibility for its investment.
    4. Tax Election (G.S. 105-129.5)

      The credits are allowed against the franchise tax, the income tax, or the gross premiums tax. The taxpayer elects the tax against which a credit will be claimed when filing the return on which the first installment of the credit is claimed. This election is binding on all future installments and carryforwards of that credit. A special election is provided for the technology commercialization credit. A general election applies to all other credits.

      Technology commercialization credit
      The technology commercialization credit may be divided between the taxes against which it is allowed. The taxpayer elects the percentage of the credit that will be taken against each tax when filing the return on which the credit is first taken. This election is binding. The percentage of the credit elected to be taken against each tax may be carried forward only against the same tax.

      All Other Credits
      The taxpayer must take a credit against only one of the taxes against which it is allowed.

    5. 50% Cap on Credits (G.S. 105-129.5(b))

      The total of all credits may not exceed 50% of the tax against which they are claimed for the taxable year, reduced by the sum of all other credits allowed against that tax, except tax payments made by or on behalf of the taxpayer.

    6. Carryforward of Unused Credit (G.S. 105-129.5(c))

      Generally, any unused portion of a credit may be carried forward for the succeeding five years. Several credits have longer carryforward periods, however. Those credits and their carryforward periods are listed below.

      20-Year Carryforward
      Any unused portion of the following credits may be carried forward for 20 years:
      • Technology commercialization.
      • Substantial investment in other property.
      • Credits concerning a "large investment" ($150,000,000). A taxpayer is eligible for the large investment enhancement if the Secretary of Commerce makes a written determination that the taxpayer is expected to purchase or lease, and place in service in connection with the eligible business within a two-year period (seven years for interstate air couriers), at least $150,000,000 worth of one or more of the following: real property, machinery and equipment, or central office or aircraft facility property. If the taxpayer fails to make the required level of investment within the two-year period (seven years for interstate air couriers), the taxpayer forfeits the longer carryforward period.

      15-Year Carryforward for Research and Development
      For tax years 2002 and later, any unused portion of a research and development credit may be carried forward for the succeeding 15 years. This extended carryforward applies to qualifying research and development activity conducted during taxable years beginning on or after January 1, 2002.

      10-Year Carryforward for $50,000,000 Investment
      Any unused portion of a credit may be carried forward for the succeeding 10 years if the taxpayer is expected to purchase or lease, and place in service in connection with the eligible business within a two-year period (seven years for interstate air couriers), at least $50,000,000 worth of one or more of the following: real property, machinery and equipment, or central office or aircraft facility property. The Secretary of Commerce must issue a written determination that the required investment is expected to be made in order for this extended carryforward period to apply. If the taxpayer fails to make the required level of investment within the two-year period (seven years for interstate air couriers), the taxpayer forfeits the longer carryforward period.

    7. Advisory Ruling (G.S. 105-129.4(g))

      A taxpayer may request in writing from the Secretary of Revenue specific advice regarding eligibility for a credit. G.S. 105-264 governs the effect of this advice.

    8. Statute of Limitations (G.S. 105-129.4(d))

      A taxpayer must claim a credit within six months after the date set by statute for the filing of the return that coincides with the year that the taxpayer qualified for the credit, including any extensions of that date. The following example illustrates this requirement:
      A calendar year taxpayer creates 10 new qualifying jobs in 2002. The taxpayer files a timely extension on March 15, 2003, which extends the due date of the tax return to October 15, 2003. Applying the six-month statute of limitations, the taxpayer has until April 15, 2004 to file the NC-478A and report the 2002 credit for creating jobs. If the taxpayer had not filed a timely extension by March 15, 2003, the NC-478A would have had to be filed by September 15, 2003.
    9. Application (G.S. 105-129.6)

      For business activities occurring before January 1, 2002, taxpayers were required to file an application with and to pay any required fee to the Department of Commerce. The Department of Commerce marked “paid” on the application to indicate that the fee had been paid and returned the application to the taxpayer.

      The taxpayer must attach a copy of the application marked "paid" to the appropriate NC 478 Department of Revenue forms and submit this information with the relevant tax return. The relevant tax return is the first return on which the credit is claimed if that return is an amended return. In all other cases, the relevant return is the return for the year in which the taxpayer engaged in the activity that qualifies for the credit.

      Effective January 1, 2003, the Department of Commerce will no longer accept applications or the required fees. For business activities occurring on or after January 1, 2002, or for business activities occurring before January 1, 2002 for which no application has been filed with the Department of Commerce as of January 1, 2003, the taxpayer is not required to file an application. Instead, the taxpayer pays any required fee to the Department of Revenue with the relevant tax return. The fee is due at the same time as the tax return and the credit will not be allowed until the fee is paid.

    10. Fees (G.S. 105-129.6)

      The fee is $500.00 for each credit the taxpayer intends to claim with respect to a location that is in an enterprise tier three, four, or five area, subject to a maximum fee of $1,500.00. There is no fee for a credit in an enterprise tier one or tier two area. There is also no fee for a credit with respect to a location that is in a development zone. If the taxpayer intends to claim a credit that relates to locations in more than one enterprise tier area, the fee is based on the highest-numbered enterprise tier area.

    11. Forms

      The Form NC-478 series is used to calculate and report tax credits, including the Article 3A tax credits, that are limited to 50% of the taxpayer's tax less the sum of all other credits that the taxpayer claims. Forms NC-478A through NC-478H are used to calculate the specific credits without regard to the 50% limitation. Form NC-478 is used to total the specific credits, to determine if the 50% limitation applies, and, if so, to allocate the limited total credit among the specific credits. Form NC-478V is used to report the fee that is due.

      The table below lists the tax credits that are subject to the 50% of tax limitation and the NC-478 series form on which the credit is reported. The table also indicates if the credit is an Article 3A credit.


      Credit File Form NC-478 plus Form: Article 3A?
      Creating Jobs NC-478A Yes
      Investing in Machinery and Equipment NC-478B Yes
      Research and Development NC-478C Yes
      Worker Training NC-478D Yes
      Investing in Central Office or Aircraft Facility Property NC-478E Yes
      Investing in Business Property (Note – this credit expired for investments made after December 31, 2001; however, remaining installments and carryforwards may still be taken) NC-478F No; in Art. 3B.
      Investing in Renewable Energy Property NC-478G No; in Art. 3B.
      Low-income Housing NC-478H No; in Art. 3E.
      Contributing to Development Zone Projects No additional form. Use NC-478, line 11 Yes
      Technology Commercialization No additional form. Use NC-478, line 9. Yes
      Investing in Non-hazardous Dry-cleaning Equipment No additional form. Use NC-478, line 10. No; in Art. 3B.
      Use of North Carolina Ports No additional form. Use NC-478, line 11. No; in Art. 4.
      Renewable Energy Equipment Facility - Article 4 No additional form. Use NC-478, line, 11 No; in Art. 4.
      Manufacturing Cigarettes for Export No additional form. Use NC-478, line, 11 No; in Art. 4.

      Both Form NC-478 and any applicable Form NC-478 series form must be filed for any taxable year in which the taxpayer is eligible to claim a credit or an installment of a credit against the taxpayer's tax liability for that year. This requirement applies even if the taxpayer's tax liability for that year is not large enough for the taxpayer to benefit from the credit. If the taxpayer engages in activities that qualify for the credit for creating jobs, the credit for investing in machinery and equipment, or the credit for investing in central office or aircraft facility property, the taxpayer must complete Part 1 of Form NC-478A, Form NC-478B, or Form NC-478E and file the form with the taxpayer's return for the taxable year in which the taxpayer engages in the activity, even though the first installment of the credit will not be claimed until the following year.

      For further information about the Form NC-478 series, see Form NC-478 INST, Instructions for 2001 Form NC-478 Series.
    12. Overdue Tax Debts (G.S. 105-129.4(b6)

      For tax years beginning on or after January 1, 2003, a taxpayer is ineligible for an Article 3A tax credit if the taxpayer has an overdue tax debt at the time the taxpayer claims an installment or carryforward of a credit. An overdue tax debt is defined in G.S. 105-243.1(a)(1) as “[a]ny part of a tax debit that remains unpaid 90 days or more after the notice of final assessment was mailed to the taxpayer. The term does not include a tax debt, however, if the taxpayer entered into an installment agreement for the tax debt under G.S. 105-237 within 90 days after the notice of final assessment was mailed and has not failed to make any payments due under the installment agreement.”

XII. CREDIT FOR CREATING JOBS (G.S. 105-129.8)

    1. Eligibility

      To be eligible for a credit for creating jobs, a taxpayer must meet the following conditions:
      1. Meet all general eligibility requirements described in Section V.
      2. Have five or more full-time employees.
      3. Hire an additional full-time employee during the year to fill a position located in this State.

    2. Terms Used

      Creating a new full-time job. -- A taxpayer creates a new full-time job if the taxpayer has an additional full-time employee in this State at the end of the current tax year when compared to the end of the previous year.

      Full-time job. -- A position that requires at least 1,600 hours of work per year and is intended to be held by one employee during the entire year.

      Location of a job. -- A job is located in an area if more than fifty percent of the employee's duties are performed in the area.

    3. Credit Amount

      The amount of credit allowed is based upon the enterprise tier of the area in which the position is located as shown below:

      Area Enterprise Tier Amount of Credit for Each Job
      Tier One $12,500
      Tier Two 4,000
      Tier Three 3,000
      Tier Four 1,000
      Tier Five 500
      Development Zone in Any Tier $4,000 plus the amount for the Tier

    4. Taking the Credit

      The credit is taken in four equal installments over the four-year period beginning the year after the taxpayer qualifies for the credit. If a taxpayer is required to file more than one tax return during a year, each return constitutes a year for purposes of taking installments of the credit.

    5. Expiration

      If, in one of the four years in which an installment accrues, the number of the taxpayer's full-time employees falls below the number of full-time employees the taxpayer had in the year in which the taxpayer qualified for the credit, the credit expires and the taxpayer may not take any remaining installments of the credit. This calculation is illustrated by the following example:

      Taxpayer is claiming a credit for forty jobs in tier 4 at $1,000 per job. The installments are $10,000 each over four years. During the year that the third installment of the credit accrues, the taxpayer loses twelve jobs. The third and fourth installments must be recalculated to recognize the loss of the jobs. After the recalculation, the third and fourth installments that remain to be taken are $7,000 each, rather than $10,000 each, computed as follows:

      (40 - 12) x $1,000
                    4

      If the taxpayer has carryforwards from the first and second installments attributable to the 12 lost jobs, the taxpayer can continue to take the carryforwards for these even though the installments have expired. When a credit expires, the taxpayer can still take the portion of an installment that accrued in a previous year and was carried forward.

    6. Movement of Jobs

      Jobs transferred from one area in the State to another area are not considered new jobs. If a job qualifies for the credit in one tier, but is moved to another enterprise tier, the credit is recomputed as if the job had been created initially in the area to which it was moved.
    7. Planned Expansion

      A taxpayer that signs a letter of commitment with the Department of Commerce to create at least 20 new full-time jobs in a specific area within two years (seven years for interstate air couriers) of the date the letter is signed qualifies for the credit in the amount allowed based on the area's enterprise tier and development zone designation for that year even though the employees are not hired that year. The credit is available in the taxable year after at least 20 employees have been hired if the hirings are within the two-year (seven years for interstate air couriers) commitment period. If the taxpayer does not hire the employees within the two-year (seven years for interstate air couriers) period, the taxpayer does not get the benefit of the letter of commitment.

XIII. Credit for Investing in Machinery and Equipment (G.S. 105-129.9)

    1. Eligibility
      To be eligible for a credit for investing in machinery and equipment, a taxpayer must:
      1. Meet all general eligibility requirements described in Section V.
      2. Purchase or lease eligible machinery and equipment.
      3. Place the eligible machinery and equipment in service during the taxable year.

    2. Terms Used

      Cost. -- In the case of property owned by the taxpayer, cost is determined pursuant to regulations adopted under section 1012 of the Internal Revenue Code. In the case of property the taxpayer leases from another, cost is valued at eight times the net annual rental rate as described in G.S. 105-130.4(j)(2).

      Eligible machinery and equipment (G.S. 105-129.2(10)). -- Machinery and equipment are eligible if they are capitalized by the taxpayer for tax purposes under the Internal Revenue Code and are not leased to another party. Property expensed under Section 179 of the Code is not eligible. In the case of a qualifying large investment, machinery and equipment that are not capitalized by the taxpayer are eligible if the taxpayer leases them from another party.

      Machinery and equipment. -- Engines, machinery, equipment, tools, and implements used or designed to be used in the business for which the credit is claimed. The term does not include real property as defined in G.S. 105-273 or rolling stock as defined in G.S. 105-333."

    3. Credit Amount

      For tax year 2002, the credit is 7% of the excess of the eligible investment amount over the applicable threshold. For tax years beginning on or after January 1, 2003, the credit is 7% if the investment is placed in service in a tier one or tier two area, 6% for tier three, 5% for tier four, and 4% for tier five. The decrease in credit percentage does not apply to business activities subject to a letter of commitment applied for before January 1, 2003.

      The eligible investment amount is the lesser of the following:
      • The cost of the machinery and equipment.
      • The amount by which the cost of all of the taxpayer's machinery and equipment that is in service in North Carolina on the last day of the taxable year exceeds the cost of all of the taxpayer's machinery and equipment that was in service in North Carolina on the last day of the base year. The base year is that year, of the three immediately preceding taxable years, in which the taxpayer had the most machinery and equipment in service in North Carolina.

      The threshold is based on the enterprise tier of the area where the machinery and equipment are placed in service during the taxable year. For tax year 2002, thresholds for Tier One through Tier Five are as follows:

      Enterprise Tier Area Threshold
      Tier One $-0-
      Tier Two 100,000
      Tier Three 200,000
      Tier Four 500,000
      Tier Five 1,000,000

      For tax years beginning on or after January 1, 2003, the threshold for tier four is increased to $1,000,000 and the threshold for tier five is increased to $2,000,000. The threshold increases do not apply to business activities subject to a letter of commitment applied for before January 1, 2003. If the taxpayer places eligible machinery and equipment in service in an area over the course of a two-year period, the applicable threshold for the second taxable year is reduced by the eligible investment amount for the previous taxable year.

      For tax years beginning on or after January 1, 2002, if machinery and equipment are placed in service at two or more establishments within the same tier during the taxable year, the threshold must be applied to each establishment.

    4. Taking the Credit

      The credit is taken in seven equal installments beginning the year after the taxpayer qualifies for the credit. If a taxpayer is required to file more than one tax return during a year, each return constitutes a year for purposes of taking installments of the credit.

    5. Expiration

      Generally, if machinery and equipment are disposed of, taken out of service, or moved out of North Carolina prior to the end of the seven-year period in which the credit is claimed, the amount of credit that relates to the machinery and equipment no longer in service expires and a taxpayer may not take any remaining installment related to this machinery and equipment. However, a taxpayer that replaces or otherwise disposes of machinery and equipment for which a credit was claimed can continue to take the remaining installments of the credit that relate to the machinery and equipment no longer in service if the net reduction in the cost of the taxpayer's eligible machinery and equipment in the enterprise tier does not exceed 20% of the cost of the disposed property. If the net reduction exceeds 20%, the remaining installments of the credit expire. If a taxpayer places machinery and equipment in service during the taxable year and claims a credit for the machinery and equipment under Article 3B, Business and Energy Tax Credits, the taxpayer must exclude the cost of this property from this calculation. If during a single tax year the taxpayer disposes of machinery and equipment with respect to two or more credits in the same tier, costs are calculated based on all credits affected.

      The "net investment reduction" calculation is illustrated by the following example:
      • Taxpayer has $10,000,000 of eligible machinery and equipment in service in Tier 1.
      • During the tax year, a piece of equipment with a cost of $2,500,000 is taken out of service.
      • There are remaining installments of a credit related to the equipment taken out of service.
      • Replacement equipment is placed into service during the same tax year at a cost of $1,500,000.
      • Total cost of eligible equipment at the end of the tax year is $9,000,000.
      • No Article 3B credits are being claimed.

      The net investment reduction in Tier 1 is $1,000,000 ($10 million - $9 million). Twenty percent of the cost of the equipment taken out of service is $500,000 ($2,500,000 x .20). The net reduction in total eligible equipment ($1 million) is greater than 20% of the cost of the equipment taken out of service ($500,000). Therefore, the installments related to the $2,500,000 piece of equipment expire.

      If a taxpayer disposes of a portion of the machinery and equipment for which a credit is claimed, and the taxpayer is not entitled to continue taking the installments of the credit in accordance with the "net investment reduction" calculation illustrated above, the amount of the credit associated with the machinery and equipment no longer in service expires. This calculation is illustrated by the following example:

      • Taxpayer has $10,000,000 of eligible machinery and equipment in service in tier 1 where the threshold is $0.
      • Taxpayer is claiming a credit of $700,000 at $100,000 per installment based on its $10,000,000 investment.
      • During the year that the third installment of the credit accrues, a piece of equipment for which the credit is claimed with a cost of $2,500,000 is taken out of service.

        The remaining installments beginning in year three are $75,000 each, computed as follows:
        $10,000,000 - $2,500,000 x .07
                                  7
      When a credit expires, a taxpayer can still take a portion of an installment that is related to the machinery and equipment no longer in service and accrued in a previous year and was carried forward.

    6. Movement to Higher Tier (G.S. 105-129.9(d))

      If machinery and equipment for which a credit has been claimed is later moved to a higher-numbered tier, the credit is recomputed as if the machinery and equipment had been placed originally in the area to which it was moved.

    7. Planned Expansion (G.S. 105-129.9(e))

      A taxpayer that signs a letter of commitment with the Department of Commerce to place specific eligible machinery and equipment in service in an area within two years (seven years for interstate air couriers) after the date the letter is signed may, in the year the eligible machinery and equipment are placed in service in that area, calculate the credit for which the taxpayer qualifies based on the area's enterprise tier and development zone designation for the year the letter was signed. If the taxpayer does not place part or all of the specified eligible machinery and equipment in service within the two-year (seven years for interstate air couriers) period, the taxpayer does not qualify for the benefit of the letter of commitment with respect to the machinery and equipment not placed in service within the two-year (seven years for interstate air couriers) period.

XIV. Credit for Technology Commercialization (G.S. 105-129.9A)

The credit for technology commercialization is similar to the credit for investing in machinery and equipment, but with higher rates of credit, and with more difficult eligibility requirements. Consequently, except as provided in this section, the provisions that apply to the credit for investing in machinery and equipment also apply to the technology commercialization credit. A taxpayer cannot take the machinery and equipment credit and the technology commercialization credit with respect to the same asset.

    1. Eligibility

      To be eligible for a technology commercialization credit, the taxpayer must meet all of the requirements for the credit for investing in machinery and equipment. In addition, the taxpayer must meet all of the conditions listed below:

      1. The eligible machinery and equipment must be directly related to production based on technology developed by and licensed from a research university; or be used to produce resources essential to the taxpayer's production based on technology developed by and licensed from a research university.
      2. The eligible machinery and equipment must be placed in service in a tier one, two, or three enterprise area.
      3. The eligible investment amount must be at least $10,000,000 for the taxable year.
      4. If qualifying for a 20% credit, the taxpayer must invest at least $150 million in eligible machinery and equipment by the end of the fourth year after the year in which eligible machinery and equipment are first placed in service in the area.
      5. If qualifying for a 15% credit, the taxpayer must invest at least $100 million in eligible machinery and equipment by the end of the fourth year after the year in which eligible machinery and equipment are first placed in service in the area.
      6. No more than nine years has passed since the first taxable year the taxpayer claimed a technology commercialization credit with respect to the same location.

    2. Terms Used

      Eligible machinery and equipment. -- Unlike the requirement for the credit for investing in machinery and equipment, a leased piece of machinery and equipment does not have to be capitalized in order to be "eligible" for this credit.

      Research university. -- An institution of higher education classified as a Research I university or a Research II university in the most recent edition of "A Classification of Institutions of Higher Education," the official report of The Carnegie Foundation for the Advancement of Teaching.

    3. Credit Amount

      The credit is a percentage of the excess of the eligible investment amount over the applicable threshold for the tax year. For a taxpayer whose level of investment is at least $100 million, the percentage is 15%. If the level of investment is at least $150 million, the percentage is 20%.

      In calculating the eligible investment amount, machinery and equipment that were transferred to another taxpayer or were taken out of service during the three years preceding the tax year may be considered the taxpayer's machinery and equipment if certain conditions are met. See G.S. 105-129.9A(b) for the conditions. If the taxpayer wants to include machinery and equipment under the exception in G.S. 105-129.9A(b)(2), the taxpayer must first request a ruling by the Department of Revenue as to whether the taxpayer meets the conditions.

    4. Taking the Credit

      The credit is taken for the taxable year in which the machinery and equipment are placed in service. The credit is not taken in installments.

XV. Credit for Research and Development (G.S. 105-129.10)

    1. Eligibility

      To be eligible for a credit for research and development, a taxpayer must:
      1. Meet all general eligibility requirements described in Section V.
      2. Claim for the taxable year the federal income tax credit for research and development under section 41(a) or section 41(c)(4) of the Internal Revenue Code.

    2. Terms Used

      Base amount and qualified research expenses. -- Defined under section 41 of the Code.

      Code. -- The Internal Revenue Code enacted as of January 1, 1999.

    3. Credit Amount

      General Research and Development Credit
      A taxpayer that claims for the taxable year a federal income tax credit under section 41(a) of the Code for increasing research activities is allowed a credit of 5% of the State's apportioned share of the taxpayer's expenditures for increasing research activities. The State's apportioned share of a taxpayer's expenditures for increasing research activities is the excess of the taxpayer's qualified research expenses for the taxable year over the base amount, multiplied by a percentage equal to the ratio of the taxpayer's qualified research expenses in this State for the taxable year to the taxpayer's total qualified research expenses for the taxable year.

      Alternative Research and Development Credit
      A taxpayer that claims the alternative incremental credit under section 41(c)(4) of the Code for increasing research activities is allowed a credit equal to 25% of the State's apportioned share of the federal credit claimed. The State's apportioned share of the federal credit claimed is the amount of the alternative incremental credit the taxpayer claimed under section 41(c)(4) of the Code for the taxable year multiplied by a percentage equal to the ratio of the taxpayer's qualified research expenses in this State for the taxable year to the taxpayer's total qualified research expenses for the taxable year. The amount of the alternative incremental credit claimed by a taxpayer is determined without regard to any reduction elected under section 280C(c) of the Code.

    4. Taking the Credit

      The credit is taken for the taxable year in which the taxpayer qualifies for the credit. The credit is not taken in installments.

XVI. CREDIT FOR WORKER TRAINING (G.S. 105-129.11)

    1. Eligibility

      To be eligible for a credit for worker training, a taxpayer must:
      1. Meet all general eligibility requirements described in Section V.
      2. Provide worker training for five or more of its eligible employees during the taxable year.

    2. Terms Used

      Eligible employee. -- An employee who is in a full-time position classified as non-exempt under the Fair Labor Standards Act and who meets one or more of the following conditions:

      1. Meet all general eligibility requirements described in Section V.
      2. Provide worker training for five or more of its eligible employees during the taxable year.

      Location of a job. -- A job is located in an area if more than 50% of the employee's duties are performed in the area.

    3. Credit Amount

      The credit is equal to the wages paid to the eligible employees during the training. Wages paid to an employee performing his or her job while being trained are not eligible for the credit. For positions located in an enterprise tier one area, the credit may not exceed $1,000 per employee trained during the taxable year. For positions located in other tiers, the credit may not exceed $500 per employee trained during the taxable year.

    4. Taking the Credit

      The credit is taken during the taxable year the wages are paid to the eligible employees during training. The credit is not taken in installments.

XVII. CREDIT FOR INVESTING IN CENTRAL OFFICE OR AIRCRAFT FACILITY PROPERTY (G.S. 105-129.12)

    1. Eligibility

      To be eligible for the credit, a taxpayer must:
      1. Meet all of the general eligibility requirements described in section V.
      2. Purchase or lease real property in North Carolina.
      3. Begin to use the property as a central office or an aircraft facility during the taxable year.

    2. Terms Used

      Cost. -- In the case of property owned by the taxpayer, cost is determined pursuant to regulations adopted under section 1012 of the Code. In the case of leased property, cost is considered to be the taxpayer's lease payments over a seven-year period, plus any expenditures made by the taxpayer to improve the property before it is used as the taxpayer's central office or aircraft facility if the expenditures are not reimbursed or credited by the lessor.

    3. Credit Amount

      The credit is 7% of the eligible investment amount. The eligible investment amount is the lesser of the following:

      1. The cost of the property.
      2. The amount by which the cost of all the property the taxpayer is using in North Carolina as central offices or aircraft facilities on the last day of the taxable year exceeds the cost of all the property the taxpayer was using in North Carolina as central offices or aircraft facilities on the last day of the base year. The base year is that year, of the three immediately preceding taxable years, in which the taxpayer was using the most property in North Carolina as central offices or aircraft facilities.

      The maximum credit is $500,000 per taxpayer. The basis in any real property for which a credit is allowed must be reduced by the amount of credit allowable.

    4. Mixed Use Property

      If the property is used for more than one purpose, the credit is allowed only with respect to the portion of the property that is used as a central office or aircraft facility. This determination is made using the following fraction:

      square footage of the property used as central office or aircraft facility
                                total square footage of the property

    5. Taking the Credit

      The credit is taken in seven equal installments beginning the year after the taxpayer qualifies for the credit. If a taxpayer is required to file more than one tax return during a year, each return constitutes a year for purposes of taking installments of the credit.

    6. Expiration

      The credit expires in the following circumstances:

      1. When the property for which the credit is claimed is no longer used as a central office or an aircraft facility.
      2. When the total number of employees the taxpayer employs at all of its central offices or aircraft facilities in North Carolina drops below 40.
      3. When a portion of the property for which the credit is claimed is no longer used as a central office or an aircraft facility. In this circumstance, the amount of the credit associated with the portion no longer used as a central office or an aircraft facility expires. The remaining installments are computed by multiplying the total credit times the fraction described above for mixed-use property.

      When a credit expires, the taxpayer can still take the portion of an installment that accrued in a previous year and was carried forward.

XVIII. CREDIT FOR SUBSTANTIAL INVESMENT IN OTHER PROPERTY (G.S. 105-129.12A.)

    1. Eligibility

      This credit is effective for taxable years beginning on or after January 1, 2002. It applies to property that is first used in an eligible business on or after that date.

      To be eligible for the credit, the taxpayer must receive a written determination from the Secretary of Commerce that the Secretary expects the taxpayer to purchase or lease and use in an eligible business at a specific location within a three-year period at least $10,000,000 of real property, and to create 200 new jobs at that location within two years of the time that the property is first used in an eligible business. This requirement is set out in G.S. 105-129.4(b5). Additionally, the taxpayer must meet all of the eligibility requirements listed below:
      1. Meet all of the general eligibility requirements described in section V.
      2. Purchase or lease real property in an enterprise tier one or two area.
      3. Begin to use the property in an eligible business during the taxable year.

    2. Terms Used

      Cost. -- In the case of property owned by the taxpayer, cost is determined pursuant to regulations adopted under section 1012 of the Internal Revenue Code. In the case of leased property, cost is considered to be the taxpayer's lease payments over a seven-year period, plus any expenditures made by the taxpayer to improve the property before the taxpayer uses it if the expenditures are not reimbursed or credited by the lessor.

      Property located in an enterprise tier one or two area. -- Property is located in an enterprise tier one or two area if the area is designated as tier one or two at the time the taxpayer requests the required written determination from the Secretary of Commerce regarding its expected investment.

    3. Credit Amount

      The credit is 30% of the eligible investment amount. The eligible investment amount is the lesser of the following:

      1. The cost of the property.
      2. The amount by which the cost of all of the real property the taxpayer is using in this State in an eligible business on the last day of the taxable year exceeds the cost of all of the real property the taxpayer was using in this State in an eligible business on the last day of the base year. The base year is that year, of the three immediately preceding taxable years, in which the taxpayer was using the most real property in this State in an eligible business.

      When an investment is phased in over the course of more than one tax year, the taxpayer may claim a credit in each year based on the eligible investment amount of the property that is first used in an eligible business for the current tax year. The basis in any real property for which a credit is allowed must be reduced by the amount of credit allowable.

    4. Mixed Use Property

      If the property is used for more than one purpose, the credit is allowed only with respect to the portion of the property that is used as a central office or aircraft facility. This determination is made using the following fraction:

      square footage of the property used as central office or aircraft facility
                                total square footage of the property

    5. Taking the Credit

      The credit is taken in seven equal installments beginning the year after the taxpayer qualifies for the credit. If a taxpayer is required to file more than one tax return during a year, each return constitutes a year for purposes of taking installments of the credit.

    6. Expiration

      The credit expires in the following circumstances:

      1. When the property for which the credit is claimed is no longer used in an eligible business.
      2. When the total number of employees at the property with respect to which the credit is claimed drops below 200.
      3. When a portion of the property for which the credit is claimed is no longer used in an eligible business. In this circumstance, only the amount of the credit associated with the portion no longer used in an eligible business expires. The remaining installments are computed by multiplying the total credit times the fraction described above for mixed-use property.

      When a credit expires, the taxpayer may not take any remaining installments of the credit. The taxpayer can still take the portion of an installment that accrued in a previous year and was carried forward.

XIX. CREDIT FOR DEVELOPMENT ZONE PROJECTS (G.S. 105-129.13)

    1. Eligibility

      The general eligibility requirements do not apply to this credit. To be eligible for a credit for a development zone project, the taxpayer must meet the following requirements:
      1. Contribute cash or property to a development zone agency for an improvement project in a development zone.
      2. Not control, be controlled by, or be under common control with an affiliate of the development zone agency. The taxpayer may not have one of the relationships defined in section 267(b) of the Internal Revenue Code with the development zone agency.
      3. File an application with the Department of Revenue on or before April 15 of the year following the calendar year in which the contribution was made. The Secretary may grant an extension for filing the application if a taxpayer makes a timely request for an extension. An extension allows the taxpayer to file the application by the following September 15.
      4. Include with an application submitted a certified appraisal of the value of the property contributed, if the contribution was of property rather than cash.
    2. Terms Used

      Control. -- A person controls an entity if the person owns, directly or indirectly, more than 10% of the voting securities of that entity. The term "voting security" means a security that confers upon the holder the right to vote for the election of members of the board of directors or similar governing body of the business or is convertible into, or entitles the holder to receive upon its exercise, a security that confers such a right to vote. A general partnership interest is a voting security.

      Development zone agency. -- Any of the following agencies that the Department of Commerce certifies will undertake an improvement project in a development zone will qualify:
      • A community-based development organization qualified under 24 C.F.R. section 570.204.
      • A community action agency that has been officially designated as such pursuant to section 210 of the Economic Act of 1964, Public Law 88-452, 78 Stat. 508.
      • A community development corporation.
      • A community development financial institution certified by the United States Department of the Treasury under the Community Development Banking and Financial Institutions Act of 1994, 12 U.S.C. section 4701.
      • A community housing development organization qualified under the HOME Investment Partnerships Act, 42 U.S.C. section 12701 and 12704, and 24 C.F.R. section 92.2.
      • A local housing authority created under Article 1 of Chapter 157 of the General Statutes.

      Improvement project. -- A project to construct or improve real property for community development purposes or to acquire real property and convert it for community development purposes. Construction or improvement includes services provided by a development zone agency directly related to the construction or improvement, and project development fees charged by a developer for the construction or improvement.

    3. Credit Amount

      The credit is equal to 25% of the value of the contribution of cash or property to a development zone agency for an improvement project in a development zone. A contribution is for an improvement project if the agency receiving the contribution contracts in writing to use the contribution for the project and agrees in the contract to repay to the taxpayer, with interest, any part of the contribution not used for the project.

    4. Taking the Credit

      The credit may not be taken in the year in which the contribution is made. Instead, the credit must be taken for the taxable year beginning during the calendar year in which the application to the Department of Revenue for the credit becomes effective.

    5. Ceiling

      The total amount of all credits for contributions made in a calendar year may not exceed $4,000,000. If the total amount of credits claimed exceeds $4,000,000, the Secretary of Revenue must allocate the $4,000,000 in tax credits in proportion to the size of the credit claimed by each taxpayer. If a credit is reduced because of this ceiling, the Secretary must notify the taxpayer of the amount of the reduction of the credit on or before December 31 of the year the application was filed.

    6. Forfeiture

      A taxpayer forfeits the credit to the extent the development zone agency uses the taxpayer's contribution for any purpose other than an improvement project.