N.Y. Comp. Codes R. & Regs. tit. 5 § 180.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 180.2 - Definitions

As used in this regulation, the following terms shall have the following meanings:

(a)Advertisement means an openly and identifiably sponsored public promotion or announcement of goods, services, companies or ideas. For the purposes of this definition, advertisement shall not include music videos or "infomercials."

(b)Applicant means a qualified commercial production company or a sole proprietor of a qualified commercial production company which is subject to tax or the partners or members of which are subject to tax under article 9-A or 22 of the Tax Law.

(c)Application means a document created by the department and submitted by an applicant after it has completed a year of production of qualified commercials. Such application shall include, but not be limited to: actual data with regard to each individual qualified commercial's total budget, the actual costs incurred within the metropolitan commuter transportation district and the actual costs incurred outside such district and any other information the department determines is necessary to properly evaluate the application.

(d)Certificate of tax credit means a certificate issued by the department which states the amount of the Empire State commercial production credit that the applicant has qualified for, based on the department's analysis under section 28 of the Tax Law and the provisions of this Part. Such certificate shall include, but not be limited to, the following information: name and address of the applicant, the amount of the tax credit to be received by the applicant and a designation of which component program the money has been allotted from pursuant to section 28 (a)(i) or (ii) of the Tax Law.

(e)Component program means one of the two tax credit programs (the downstate credit or the upstate credit) established pursuant to section 28 (a)(2)(i) and (ii) of the Tax Law and section 180.5 of this Part.

(f)Commissioner means the commissioner of the department.

(g)Downstate program means the tax credit component program established in section 28 (a)(2)(i) of the Tax Law which applies to eligible production companies who film or record qualified commercials within the metropolitan commuter transportation district.

(h)Metropolitan commuter transportation district means the area of New York State defined in section 1262 of the Public Authorities Law.

(i)Department means the New York State Department of Economic Development.

(j)Post-production costs means any includes costs associated with the production of original content for a qualified commercial employing techniques traditionally used in post-production for visual effects, graphic design, animation and musical composition including, but not limited to, editing, sound editing, special effects, graphics, and color timing costs. Post-production costs shall not include:

(1) the editing of previously produced content for a qualified commercial or payments not made directly by a qualified commercial production company.

(k)Production costs means any costs for tangible property used and services performed directly and predominantly in the production (including pre-production and post-production) of a qualified commercial. Production costs shall not include:

(1) costs for a story, script or scenario to be used for a qualified commercial; and

(2) wages or salaries or other compensation for writers, directors, including music directors, producers and performers (other than background actors with no scripted lines who are employed by a qualified company and musicians).

Production costs generally include technical and crew production costs, such as expenditures for commercial production facilities and/or locations costs, or any part thereof, film, audiotape, videotape or digital medium, props, makeup, wardrobe, commercial processing, camera, sound recording, set construction, lighting, shooting, editing and meals.

(l)Qualified commercial means an advertisement of any length that is recorded on film, audiotape, videotape or digital medium in New York for multi-market distribution by way of radio, television networks, cable, satellite, motion picture theaters or internet. Qualified commercial shall not include:

(1) news or current affairs program, interview or talk program, network promos i.e., commercials promoting television series or movies, "how-to" (i.e., instructional) commercial or program, commercial or program consisting entirely of stock footage, trailers promoting theatrical films, sporting event or sporting program, game show, award ceremony, daytime drama (i.e., daytime "soap opera") or "reality" program;

(2) a production involving sexually explicit conduct subject to the recordkeeping requirements of section 2257 of title 18 of the United States Code.

For the purpose of this definition the term qualified commercial shall include a package of commercials which includes two or more commercials which are bid and produced under a single agency/client contract in which a specified number of deliverables are produced together within a defined timeframe by a qualified commercial production company.

(m)Qualified commercial production company means a corporation, partnership, limited partnership or other entity or individual which or who:

(1) is responsible for the direct payment of production expenses and is a signatory to the qualified commercial's contracts with its payroll company and facility operators; and

(2) is not the distributor, or the contracting entity for production of such commercial, nor is a variable interest entity of such distributor or contracting entity.

(n)Qualified production costs means production costs only to the extent such costs are attributable to the use of tangible property or the performance of services within New York State directly and predominantly in the production (including pre-production and post-production) of a qualified commercial. For the purpose of this definition, "attributable to the use of tangible property or the performance of services within New York State" shall include only pro rata portions of costs which are incurred directly in New York State.

(o)Upstate program means the tax credit component program established in section 28 (a)(2)(ii) of the Tax Law which applies to eligible production companies who film or record qualified commercials outside the metropolitan commuter transportation district but within the State of New York.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 180.2

Amended New York State Register January 22, 2020/Volume XLII, Issue 03, eff. 1/22/2020