A4033

An Act concerning certain data centers and supplementing P.L.1974, c.80 (C.34:1B-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Authority” shall have the same meaning as provided in section 3 of P.L.1974, c.80 (C.34:1B-3).

“Capital investment” means an expenditure of funds made in this State to purchase or improve real property located in this State, to purchase personal property for use in a business, and to purchase business assets subject to depreciation pursuant to the provisions of section 167 of the federal Internal Revenue Code of 1986 (26 U.S.C. s.167).

"Director" means the Director of the Division of Taxation in the Department of the Treasury.

“Equipment” means a heating or cooling system; a fixture; an emergency generator; hardware or a distributed mainframe computer or server; a data storage device; a network connection; a rack, cabinet, or raised floor system; a peripheral computer component or system; software; or a mechanical or plumbing system. “Equipment” shall not include office equipment or supplies, or maintenance or janitorial supplies or equipment.

“Employee compensation expenses” means salaries, wages, commissions, fringe benefits, and any other form of remuneration paid to employees.

“Fringe benefits” means payments made for an employee's retirement, social security, health and dental insurance, workers’ compensation, and unemployment, disability and survivor’s insurance.

“Full-time employee" means a person employed by a qualified data center for at least 35 hours a week, or who renders any other standard of service generally accepted by custom or practice as full-time employment, or a person who is employed by a professional employer organization pursuant to an employee leasing agreement between the qualified data center and the professional employer organization, in accordance with P.L.2001, c.260 (C.34:8-67 et seq.) for at least 35 hours a week, or who renders any other standard of service generally accepted by custom or practice as full-time employment, and whose wages are subject to withholding as provided in the "New Jersey Gross Income Tax Act," N.J.S.54A:1-1 et seq., or who renders any other standard of service generally accepted by custom or practice as full-time employment, and whose distributive share of income, gain, loss, or deduction, or whose guaranteed payments, or any combination thereof, is subject to the payment of estimated taxes, as provided in the "New Jersey Gross Income Tax Act," N.J.S.54A:1-1 et seq.

"Qualified data center" means a business located in this State which meets the employment and capital expenditure requirements provided in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), and whose operations consist primarily of using computer servers and related equipment and support staff for the processing, storage, and distribution of electronic data, that is not a telecommunications provider, and which has an uninterruptible power source, backup power generator, a sophisticated fire suppression and prevention system, and enhanced physical security that includes restricted access, video surveillance, and electronic security systems.

2. a. The authority shall establish a program to provide tax credits and exemptions to qualified data centers for the purpose of encouraging qualified data centers to remain in, or relocate to the State.

b. (1) In order to be considered eligible by the authority as a qualified data center, a qualified data center shall submit to the authority proof that the qualified data center, either directly or in combination with a third party: placed one or more qualified data centers in service in this State; made a capital investment of not less than $50,000,000 in this State; and has hired not fewer than 10 full-time employees in this State after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

(2) In order to maintain its eligibility following the authority’s approval as a qualified data center, a qualified data center, either directly, or in combination with a third party, shall employ not fewer than 50 full-time employees in this State for a 36 month period following the month in which the full-time employment creation requirement provided in this subsection is first met. A qualified data center shall certify annually to the authority that the qualified data center employs at least 50 full-time employees in this State until the 36 month period is complete. A qualified data center’s failure to employ not fewer than 50 full-time employees in this State during the 36 month period shall result in the qualified data center’s ineligibility to receive tax credits or exemptions after the date that the authority determines a qualified data center is no longer. A qualified data center shall be ineligible to receive the tax credits or exemptions provided in P.L. , c. (C. ) (pending before the Legislature as this bill) after the completion of the 36 month period of qualification unless the qualified data center meets the eligibility requirements provided in paragraph 3 of this subsection.

(3) The authority shall award qualified data centers that meet the eligibility requirements in paragraphs (1) and (2) of this subsection tax credits and exemptions for a period of up to 20 years if the qualified data center redevelops and relocates to a commercial property that is vacant and abandoned, provided that the qualified data center continuously occupies the previously vacant and abandoned commercial property during the period in which the qualified data center is awarded tax credits and exemptions, and the qualified data center employs not fewer than 50 full-time employees in this State for a 60 month period .

3. Receipts from the sale or use of energy and utility service, as those terms are defined in section 2 of P.L.1966, c.30 (C.54:32B-2), to a qualified data center are exempt from the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.).

4. Receipts from the sale or use of equipment to a qualified data center are exempt from the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.).

5. a. A taxpayer shall be allowed a credit against the tax imposed pursuant to section 5 of P.L.1945, c.162 (C.54:10A-5), in an amount equal to 15 percent of the taxpayer’s employee compensation expenses related to meeting the employment criteria provided in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) during the privilege period that is allowed for each full-time employee during the privilege period. An unused credit may be carried forward, if necessary, for use in the seven privilege periods following the privilege period for which the credit is allowed.

b. The order of priority of the application of the credit allowed pursuant to this section and any other credits allowed by law shall be prescribed by the director. The amount of the credit applied under this section against the tax imposed pursuant to section 5 of P.L.1945, c.162 (C.54:10A-5) for a privilege period, together with any other credits allowed by law, shall not exceed 50 percent of the tax liability otherwise due and shall not reduce the tax liability to an amount less than the statutory minimum provided in subsection (e) of section 5 of P.L.1945, c.162 (C.54:10A-5). An amount of expense claimed as a credit pursuant to this section shall not be allowed as an amount calculated or claimed pursuant to any other credit against the tax imposed pursuant to section 5 of P.L.1945, c.162 (C.54:10A-5).

6. a. A taxpayer shall be allowed a credit for the taxable year against the tax otherwise due for the taxable year pursuant to the “New Jersey Gross Income Tax Act,” N.J.S.54A-1 et seq., in an amount equal to 15 percent of the taxpayer’s employee compensation expenses related to meeting the employment criteria provided in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) during the taxable year that is allowed for each full-time employee during the taxable year. An unused credit may be carried forward, if necessary, for use in the seven taxable years following the taxable year for which the credit is allowed.

b. The order of priority of the application of the credit allowed pursuant to this section and any other credits allowed by law shall be prescribed by the director. The amount of the credit applied under this section against the tax imposed pursuant to “New Jersey Gross Income Tax Act,” N.J.S.54A-1 et seq., for a taxable year together with any other credits allowed by law, shall not exceed 50 percent of the tax liability otherwise due. An amount of expense claimed as a credit pursuant to this section shall not be allowed as an amount calculated or claimed pursuant to any other credit against the tax imposed pursuant to “New Jersey Gross Income Tax Act,” N.J.S.54A-1 et seq.

A business entity classified as a partnership for federal income tax purposes shall not be allowed a credit directly under the tax imposed pursuant to “New Jersey Gross Income Tax Act,” N.J.S.54A-1 et seq., but the amount of credit of a taxpayer in respect of a distributive share of partnership income shall be determined by allocating to the taxpayer that proportion of the credit acquired by the partnership that is equal to the taxpayer's share, whether or not distributed, of the total distributive income or gain of the partnership for its taxable year ending within or with the taxpayer's taxable year.

A New Jersey S Corporation shall not be allowed a credit directly under the tax imposed pursuant to “New Jersey Gross Income Tax Act,” N.J.S.54A-1 et seq., but the amount of credit of a taxpayer in respect of a pro rata share of S Corporation income shall be determined by allocating to the taxpayer that proportion of the credit acquired by the New Jersey S Corporation that is equal to the taxpayer's share, whether or not distributed, of the total pro rata share of S Corporation income of the New Jersey S Corporation for its privilege period ending within or with the taxpayer's taxable year.

7. The authority shall adopt rules and regulations, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), including, but not limited to, establishing an application process and standards, pursuant to subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), for a qualified data center to apply for the tax credits and exemptions provided in P.L. , c. (C. ) (pending before the Legislature as this bill). A qualified data center shall use forms prescribed and furnished by the authority to apply for the qualified data center financial incentive program established pursuant to subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill.

8. This act shall take effect immediately.

STATEMENT

This bill provides that the New Jersey Economic Development Authority (EDA) is to establish a program to provide tax credits and exemptions to qualified data centers for the purpose of encouraging qualified data centers to remain in or relocate to the State.

Under the bill, a qualified data center means a business located in this State which meets the employment and capital expenditure requirements provided in the bill and whose operations consist primarily of using computer servers and related equipment and support staff for the processing, storage, and distribution of electronic data.

In order to be considered eligible by the EDA as a qualified data center, a qualified data center is to submit to the EDA proof that the qualified data center placed one or more qualified data centers in service in this State; has made a capital investment of not less than $50,000,000 in this State; and has hired not fewer than 10 full-time employees in this State after the bill’s effective date. In order to maintain eligibility as qualified data center, a qualified data center is to employ not fewer than 50 full-time employees in this State for a 36 month period following the month in which the full-time employment creation requirement is first met. A qualified data center is to certify annually to the EDA that the qualified data center employs not fewer than 50 full-time employees in this State until the 36 month period is complete. A qualified data center’s failure to employ not fewer than 50 full-time employees in this State during the 36 month period is to result in the qualified data center’s ineligibility to receive tax credits or exemptions after the date that the authority determines a qualified data center is no longer. A qualified data center is to be ineligible to receive tax credits or exemptions under the bill’s provisions after the completion of the 36 month period of qualification.

The bill provides that the EDA is to award qualified data centers tax credits and exemptions for a period of up to 20 years if the qualified data center redevelops and relocates to an abandoned commercial property and employs not fewer than 50 full-time employees in this State for a 60 month period.

Under the bill, receipts from the sale or use of energy and utility service to qualified data centers are exempt from the tax imposed under the State’s sales and use tax. Further, receipts from the sale or use of equipment to a qualified data center are exempt from the tax imposed under the State’s sales and use tax provided the equipment is necessary to the operation of a qualified data center as determined by the EDA. The bill also provides corporation business tax credits and gross income tax credits to qualified data centers. The credits are equal to 15 percent of the cost of employee compensation expenses related to meeting the employment criteria provided under the bill.