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The 192nd General Court of the Commonwealth of Massachusetts

Section 3D: Awarding of tax credits available pursuant to Sec. 6 of chapter 62 or Sec. 38N of chapter 63; refundable tax credits; limitations; execution of EDIP contract; finality of EACC decisions

[Text of section effective for tax years beginning on or after January 1, 2017. See 2016, 219, Sec. 139.]

Section 3D. (a) The EACC may award to the controlling business of a certified project or to its affiliate tax credits available pursuant to subsection (g) of section 6 of chapter 62 or pursuant to section 38N of chapter 63. The amount of any such credits awarded and the schedule on which those credits may be claimed shall be determined by the EACC based on: (i) the degree to which the certified project is expected to increase employment opportunities for residents of the commonwealth, with consideration given to the number of new full-time jobs to be created, the number of full-time jobs to be retained, the salary or other compensation that will be paid to the employees and the amount of new state income tax to be generated; (ii) the timeframe within which new jobs will be created and the commitment of the controlling business for how long they will be maintained, with preference given to certified projects in which a significant portion of the new jobs shall be created within 2 years; (iii) the amount of capital to be invested by the controlling business in the certified project; (iv) the degree to which the certified project is expected to generate net new economic activity within the commonwealth by generating substantial sales from outside of the commonwealth; (v) the extent to which the certified project is expected to contribute to the economic revitalization of a gateway municipality or increase employment opportunities to residents of a gateway municipality; (vi) the economic need of the municipality or region in which the certified project is to be located as determined by income levels, employment levels or educational attainment levels; and (vii) commitments, if any, made by the controlling business to use Massachusetts firms, suppliers and vendors or to retain women or minority-owned businesses during the construction of the certified project.

The EACC shall have discretion as to how to weigh and apply these criteria. When making an award of tax credits pursuant to subsection (g) of section 6 of chapter 62 or pursuant to section 38N of chapter 63, the EACC may, at its sole discretion: (i) limit the award to a specific dollar amount; (ii) specify the schedule on which the tax credits may be claimed; and (iii) limit or restrict the right of the controlling business to carry unused tax credits forward to subsequent tax years. When a controlling business expects that new jobs will be created over a period of multiple years, the EACC, in awarding tax credits, may allocate and make such credits available to the taxpayer on a schedule that ensures that the tax credits are claimed on or after the date that the jobs are created.

(b) The EACC may grant refundable tax credits to a certified project; provided, however, that the EACC shall not authorize more than $5,000,000 in refundable tax credits for any single calendar year.

(c) The total amount of tax credits that may be authorized by the EACC under this section for any calendar year shall not exceed $30,000,000 which shall be calculated in accordance with the relevant provisions of subsection (g) of section 6 of chapter 62 and section 38N of chapter 63. The EACC may authorize an award of tax credits to a controlling business that spans multiple years if the total amount of credits due to be taken in any single calendar year does not exceed the applicable cap.

(d) The MOBD shall require the recipient of tax credits awarded pursuant to this section to execute an EDIP contract after the EACC awards tax credits under this section.

(e) The decision by the EACC to certify or deny certification of a proposed project pursuant to section 3C and the decision by the EACC to award or deny tax credits to the controlling business of a certified project pursuant to this section, including without limitation the amount of such award, and any conditions or limitations on such award, shall be decisions that are within the sole discretion of the EACC. Such decisions by the EACC shall be final and shall not be subject to administrative appeal or judicial review pursuant to chapter 30A or give rise to any other cause of action or legal or equitable claim or remedy.