376.30781 Tax credits for rehabilitation of drycleaning-solvent-contaminated sites and brownfield sites in designated brownfield areas; application process; rulemaking authority; revocation authority. - Florida Statutes

376.30781 Tax credits for rehabilitation of drycleaning-solvent-contaminated sites and brownfield sites in designated brownfield areas; application process; rulemaking authority; revocation authority.

   (1) The Legislature finds that:

   (a) To facilitate property transactions and economic growth and development, it is in the state’s interest to encourage the cleanup, at the earliest possible time, of drycleaning-solvent-contaminated sites and brownfield sites in designated brownfield areas.

   (b) It is the intent of the Legislature to encourage the voluntary cleanup of drycleaning-solvent-contaminated sites and brownfield sites in designated brownfield areas by providing a tax credit for the restoration of such property in specified circumstances.

   (2) Notwithstanding the requirements of subsection (5), tax credits allowed pursuant to s. 220.1845 are available for site rehabilitation or solid waste removal conducted during the calendar year in which the applicable voluntary cleanup agreement or brownfield site rehabilitation agreement is executed, even if the site rehabilitation or solid waste removal is conducted prior to the execution of that agreement or the designation of the brownfield area.

   (3)(a) A credit in the amount of 50 percent of the costs of voluntary cleanup activity that is integral to site rehabilitation at the following sites is allowed pursuant to s. 220.1845:

   1. A drycleaning-solvent-contaminated site eligible for state-funded site rehabilitation under s. 376.3078(3);

   2. A drycleaning-solvent-contaminated site at which site rehabilitation is undertaken by the real property owner pursuant to s. 376.3078(11), if the real property owner is not also, and has never been, the owner or operator of the drycleaning facility where the contamination exists; or

   3. A brownfield site in a designated brownfield area under s. 376.80.

   (b) A tax credit applicant, or multiple tax credit applicants working jointly to clean up a single site, may not receive more than $500,000 per year in tax credits for each site voluntarily rehabilitated. Multiple tax credit applicants shall be granted tax credits in the same proportion as each applicant’s contribution to payment of site rehabilitation costs. Tax credits are available only for site rehabilitation conducted during the calendar year for which the tax credit application is submitted. For purposes of this section, the term “integral to site rehabilitation” means work that is necessary to implement the requirements of chapter 62-785 or chapter 62-782, Florida Administrative Code.

   (c) In order to encourage completion of site rehabilitation at contaminated sites that are being voluntarily cleaned up and that are eligible for a tax credit under this section, the tax credit applicant may claim an additional 25 percent of the total site rehabilitation costs, not to exceed $500,000, in the final year of cleanup as evidenced by the Department of Environmental Protection issuing a “No Further Action” order for that site.

   (d) In order to encourage the construction of housing that meets the definition of affordable provided in s. 420.0004, an applicant for the tax credit may claim an additional 25 percent of the total site rehabilitation costs that are eligible for tax credits under this section, not to exceed $500,000. To receive this additional tax credit, the applicant must provide a certification letter from the Florida Housing Finance Corporation, the local housing authority, or other governmental agency that is a party to the use agreement indicating that the construction on the brownfield site has received a certificate of occupancy and the brownfield site has a properly recorded instrument that limits the use of the property to housing. Notwithstanding that only one application may be submitted each year for each site, an application for the additional credit provided for in this paragraph shall be submitted after all requirements to obtain the additional tax credit have been met.

   (e) In order to encourage the redevelopment of a brownfield site, as defined in the brownfield site rehabilitation agreement, that is hindered by the presence of solid waste, as defined in s. 403.703, costs related to solid waste removal may also be claimed under this section. A tax credit applicant, or multiple tax credit applicants working jointly to clean up a single brownfield site, may also claim costs to address the solid waste removal as defined in this paragraph in accordance with department rules. Multiple tax credit applicants shall be granted tax credits in the same proportion as each applicant’s contribution to payment of solid waste removal costs. These costs are eligible for a tax credit provided the applicant submits an affidavit stating that, after consultation with appropriate local government officials and the department, to the best of the applicant’s knowledge based upon such consultation and available historical records, the brownfield site was never operated as a permitted solid waste disposal area or was never operated for monetary compensation, and the applicant submits all other documentation and certifications required by this section. In this section, where reference is made to “site rehabilitation,” the department shall instead consider whether the costs claimed are for solid waste removal. Tax credit applications claiming costs pursuant to this paragraph shall not be subject to the calendar-year limitation and January 31 annual application deadline, and the department shall accept a one-time application filed subsequent to the completion by the tax credit applicant of the applicable requirements listed in this subsection. A tax credit applicant may claim 50 percent of the costs for solid waste removal, not to exceed $500,000, after the applicant has determined solid waste removal is completed for the brownfield site. A solid waste removal tax credit application may be filed only once per brownfield site. For the purposes of this section, the term:

   1. “Solid waste disposal area” means a landfill, dump, or other area where solid waste has been disposed.

   2. “Monetary compensation” means the fees that were charged or the assessments that were levied for the disposal of solid waste at a solid waste disposal area.

   3. “Solid waste removal” means removal of solid waste from the land surface or excavation of solid waste from below the land surface and removal of the solid waste from the brownfield site. The term also includes:

   a. Transportation of solid waste to a licensed or exempt solid waste management facility or to a temporary storage area.

   b. Sorting or screening of solid waste prior to removal from the site.

   c. Deposition of solid waste at a permitted or exempt solid waste management facility, whether the solid waste is disposed of or recycled.

   (f) In order to encourage the construction and operation of a new health care facility or a health care provider, as defined in s. 408.032, s. 408.07, or s. 408.7056, on a brownfield site, an applicant for a tax credit may claim an additional 25 percent of the total site rehabilitation costs, not to exceed $500,000, if the applicant meets the requirements of this paragraph. In order to receive this additional tax credit, the applicant must provide documentation indicating that the construction of the health care facility or health care provider by the applicant on the brownfield site has received a certificate of occupancy or a license or certificate has been issued for the operation of the health care facility or health care provider.

   (4) The Department of Environmental Protection is responsible for allocating the tax credits provided for in s. 220.1845, which may not exceed a total of $2 million in tax credits annually.

   (5) To claim the credit for site rehabilitation or solid waste removal, each tax credit applicant must apply to the Department of Environmental Protection for an allocation of the $2 million annual credit by filing a tax credit application with the Division of Waste Management on a form developed by the Department of Environmental Protection in cooperation with the Department of Revenue. The form shall include an affidavit from each tax credit applicant certifying that all information contained in the application, including all records of costs incurred and claimed in the tax credit application, are true and correct. If the application is submitted pursuant to subparagraph (3)(a)2., the form must include an affidavit signed by the real property owner stating that it is not, and has never been, the owner or operator of the drycleaning facility where the contamination exists. Approval of tax credits must be accomplished on a first-come, first-served basis based upon the date and time complete applications are received by the Division of Waste Management, subject to the limitations of subsection (14). To be eligible for a tax credit, the tax credit applicant must:

   (a) For site rehabilitation tax credits, have entered into a voluntary cleanup agreement with the Department of Environmental Protection for a drycleaning-solvent-contaminated site or a Brownfield Site Rehabilitation Agreement, as applicable, and have paid all deductibles pursuant to s. 376.3078(3)(e) for eligible drycleaning-solvent-cleanup program sites, as applicable. A site rehabilitation tax credit applicant must submit only a single completed application per site for each calendar year’s site rehabilitation costs. A site rehabilitation application must be received by the Division of Waste Management of the Department of Environmental Protection by January 31 of the year after the calendar year for which site rehabilitation costs are being claimed in a tax credit application. All site rehabilitation costs claimed must have been for work conducted between January 1 and December 31 of the year for which the application is being submitted. All payment requests must have been received and all costs must have been paid prior to submittal of the tax credit application, but no later than January 31 of the year after the calendar year for which site rehabilitation costs are being claimed.

   (b) For solid waste removal tax credits, have entered into a brownfield site rehabilitation agreement with the Department of Environmental Protection. A solid waste removal tax credit applicant must submit only a single complete application per brownfield site, as defined in the brownfield site rehabilitation agreement, for solid waste removal costs. A solid waste removal tax credit application must be received by the Division of Waste Management of the Department of Environmental Protection subsequent to the completion of the requirements listed in paragraph (3)(e).

   (6) To obtain the tax credit certificate, the tax credit applicant must provide all pertinent information requested on the tax credit application form, including, at a minimum, the name and address of the tax credit applicant and the address and tracking identification number of the eligible site. Along with the tax credit application form, the tax credit applicant must submit the following:

   (a) A nonrefundable review fee of $250 made payable to the Water Quality Assurance Trust Fund to cover the administrative costs associated with the department’s review of the tax credit application;

   (b) Copies of documents that describe the goods or services and associated costs being claimed that were integral to site rehabilitation as defined in s. 376.301 or s. 376.79 or were for solid waste removal as defined in this section during the time period covered by the application. Such documents must include contractual records that describe the scope of work performed, payment requests that describe the goods or services provided, and payment records involving actual costs incurred and paid. Such documentation must be sufficient to demonstrate a link between the contractual records, the payment requests, and the payment records for the time period covered by the application;

   (c) Proof that the documentation submitted pursuant to paragraph (b) has been reviewed and verified by an independent certified public accountant in accordance with standards established by the American Institute of Certified Public Accountants. Specifically, a certified public accountant’s report must be submitted and the certified public accountant must attest to the accuracy and validity of the costs claimed in the application by conducting an independent review of the data presented by the tax credit applicant. Accuracy and validity of costs incurred and paid shall be determined after the level of effort is certified by an appropriate professional registered in this state in each contributing technical discipline. The certified public accountant’s report must also attest that the costs included in the application form are not duplicated within the application, that all payment requests were received and all costs were paid prior to submittal of the tax credit application, and, for site rehabilitation tax credits, that all costs claimed are for work conducted between January 1 and December 31 of the year for which the application is being submitted. A copy of the accountant’s report shall be submitted to the Department of Environmental Protection in addition to the accountant’s certification form in the tax credit application; and

   (d) A certification form stating that activities associated with the documentation submitted pursuant to paragraph (b) have been conducted under the observation of, and related technical documents have been signed and sealed by, an appropriate professional registered in this state in each contributing technical discipline. The certification form shall be signed and sealed by the appropriate registered professionals stating that the costs incurred were integral, necessary, and required for site rehabilitation, as that term is defined in ss. 376.301 and 376.79. If the scope of solid waste removal activities does not require oversight by a registered technical professional in this state, such certification form is not required as part of the tax credit application.

   (7) The certified public accountant and appropriate registered professionals submitting forms as part of a tax credit application must verify such forms by completing and signing the appropriate certifications included as part of the application form. Verification shall be accomplished as provided in s. 92.525(1)(b) and subject to s. 92.525(3).

   (8) The Department of Environmental Protection shall review the tax credit application and any supplemental documentation that the tax credit applicant may submit prior to the annual application deadline, if applicable, for completeness and eligibility, as follows:

   (a) To be considered complete, the review must verify that the tax credit applicant has met the appropriate qualifying criteria in subsections (3) and (5), has submitted a completed application form, and has addressed each of the categories of submittals listed in subsection (6). Upon verification that the tax credit applicant has met such completeness requirements, the tax credit application secures a place in the first-come, first-served application line. If the department determines that an application is incomplete, the department shall notify the applicant in writing and the applicant shall have 30 days after receiving such notification to correct any deficiency. Upon timely correction of any deficiencies, the tax credit application secures a place in the first-come, first-served application line. Tax credit applications may not be altered to claim additional costs during this time.

   (b) In order to have costs considered eligible, the review of the complete application shall be performed to verify that the work claimed was integral to site rehabilitation or was for solid waste removal, that the work claimed was performed in the applicable timeframe, and that the costs claimed were properly documented. Upon verification, the department shall issue a written decision granting eligibility for tax credits (a tax credit certificate). Complete tax credit applications shall be reviewed for eligible costs in conjunction with the report of the certified public accountant and the certifications from the appropriate registered technical professionals, as applicable.

   (9) On or before May 1, the Department of Environmental Protection shall inform each tax credit applicant that is subject to the January 31 annual application deadline of the applicant’s eligibility status and the amount of any tax credit due. The department shall provide each eligible tax credit applicant with a tax credit certificate that must be submitted with its tax return to the Department of Revenue to claim the tax credit or be transferred pursuant to s. 220.1845(2)(g). The May 1 deadline for annual site rehabilitation tax credit certificate awards shall not apply to any tax credit application for which the department has issued a notice of deficiency pursuant to subsection (8). The department shall respond within 90 days after receiving a response from the tax credit applicant to such a notice of deficiency. Credits may not result in the payment of refunds if total credits exceed the amount of tax owed.

   (10) For solid waste removal, new health care facility or health care provider, and affordable housing tax credit applications, the Department of Environmental Protection shall inform the applicant of the department’s determination within 90 days after the application is deemed complete. Each eligible tax credit applicant shall be informed of the amount of its tax credit and provided with a tax credit certificate that must be submitted with its tax return to the Department of Revenue to claim the tax credit or be transferred pursuant to s. 220.1845(2)(g). Credits may not result in the payment of refunds if total credits exceed the amount of tax owed.

   (11) If a tax credit applicant does not receive a tax credit allocation due to an exhaustion of the 2 million annual tax credit authorization, such application will then be included in the same first-come, first-served order in the next year’s annual tax credit allocation, if any, based on the prior year application.

   (12) The Department of Environmental Protection may adopt rules to prescribe the necessary forms required to claim tax credits under this section and to provide the administrative guidelines and procedures required to administer this section.

   (13) The Department of Environmental Protection may revoke or modify any written decision granting eligibility for tax credits under this section if it is discovered that the tax credit applicant submitted any false statement, representation, or certification in any application, record, report, plan, or other document filed in an attempt to receive tax credits under this section. The Department of Environmental Protection shall immediately notify the Department of Revenue of any revoked or modified orders affecting previously granted partial tax credits. Additionally, the tax credit applicant must notify the Department of Revenue of any change in its tax credit claimed.

   (14)(a) A tax credit applicant who receives state-funded site rehabilitation under s. 376.3078(3) for rehabilitation of a drycleaning-solvent-contaminated site is ineligible to receive a tax credit under s. 220.1845 for costs incurred by the tax credit applicant in conjunction with the rehabilitation of that site during the same time period that state-administered site rehabilitation was underway.

   (b) Tax credits for site rehabilitation awarded pursuant to paragraphs (3)(b)-(d) and (f) are additive, but at no time shall the total tax credit award for site rehabilitation exceed 100 percent of the costs incurred and paid by an applicant.

   (c) A single brownfield site may receive tax credits for both eligible site rehabilitation costs and eligible solid waste removal costs provided the costs for any given activity are not claimed for both site rehabilitation and solid waste removal such that the same costs are claimed twice.

   (d) For purposes of this subsection, costs incurred that are not considered integral to site rehabilitation include, but are not limited to, brownfield area designation costs and tax credit application preparation and submittal costs.

   (e) If the department notifies an applicant pursuant to subsection (9) that any claimed costs are ineligible, those costs may not be allocated and applied to the annual tax credit authorization, and any disputed costs may not delay the application processing or award for subsequent eligible tax credit applicants in the first-come, first-served application line. However, if the department subsequently agrees to award tax credits on any amount that was disputed, the department shall do so based upon the first-come, first-served application line determined by the applicant’s original completeness date and time, provided there is any tax credit authorization available. If a tax credit applicant does not receive an award for the disputed costs due to an exhaustion of the annual tax credit authorization, such subsequent tax credit award shall be included in the same first-come, first-served order in the next year’s annual tax credit allocation, if any, based upon the applicant’s original completeness date and time.

History. s. 4, ch. 98-189; s. 181, ch. 99-13; s. 4, ch. 2003-173; s. 3, ch. 2003-276; s. 3, ch. 2006-291; s. 22, ch. 2006-312; s. 64, ch. 2007-5; s. 3, ch. 2008-239; s. 60, ch. 2010-205.