SB1173 - 501R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 43-1074, Arizona Revised Statutes, is amended to read:

START_STATUTE43-1074. Credit for increased employment in enterprise zones; definitions

A. A credit is allowed against the taxes imposed by this title for net increases in qualified employment positions of residents of this state by a business located in an enterprise zone established under title 41, chapter 10, article 2, except employment positions at a zone location where more than ten per cent of the business conducted at the location consists of retail sales of tangible personal property, measured by either the number of employees assigned to retail sales or the square footage of the facility used for retail sales activities at the location in the zone. Retail sales and retail sales activities do not include:

1. Food and beverage for consumption on the premises solely by employees and occasional guests of employees at the location.

2. Promotional products not available for sale and displaying the company logo or trademark.

3. Products sold to company employees.

B. Subject to subsection E of this section, the amount of the credit is equal to:

1. One‑fourth of the taxable wages paid to an employee in a qualified employment position, not to exceed five hundred dollars, in the first year or partial year of employment.

2. One‑third of the taxable wages paid to an employee in a qualified employment position, not to exceed one thousand dollars per qualified employment position, in the second year of continuous employment.

3. One‑half of the taxable wages paid to an employee in a qualified employment position, not to exceed one thousand five hundred dollars per qualified employment position, in the third year of continuous employment.

C. To qualify for a credit under this section:

1. All of the employees with respect to whom a credit is claimed must reside in this state.

2. Thirty‑five per cent of the employees with respect to whom a credit is claimed for the first year of employment must reside on the date of employment in an enterprise zone that is located in the same county in which the business is located. If an employee for whom a credit was allowed in the first year of employment leaves employment during the second or third year, the taxpayer may substitute another employee who meets the requirements of paragraph 3 of this subsection and who was hired during the same year as the original employee. If the original employee was counted toward the residency requirement under this paragraph, the substitute employee must also have resided in a zone at the time the substitute was hired.

3. A qualified employment position must meet all of the following requirements:

(a) The position must be a minimum of one thousand seven hundred fifty hours per year of full‑time and permanent employment.

(b) The job duties must be performed primarily at the zone locations of the business. If an eligible employee in a qualified employment position is transferred or assigned to work in the taxpayer's workplace at a different location that is also located in an enterprise zone and qualifies as a zone location, it may be considered to be continuous employment if it continues to meet all qualified employment position requirements.

(c) The employment must include health insurance coverage for the employee for which the employer pays at least fifty per cent of the premium or membership cost. If the taxpayer is self‑insured, the taxpayer must pay at least fifty per cent of a predetermined fixed cost per employee for an insurance program that is payable whether or not the employee has filed claims.

(d) The employer must pay compensation at least equal to the wage offer by county as computed annually by the department of economic security research administration division.

(e) The employee must have been employed for at least ninety days during the first taxable year. An employee who is hired during the last ninety days of the taxable year shall be considered a new employee during the next taxable year. A qualified employment position that is filled during the last ninety days of the taxable year is considered to be a new qualified employment position for the next taxable year.

(f) The employee must not have been previously employed by the taxpayer within twelve months before the current date of hire.

D. A credit is allowed for employment in the second and third year only for qualified employment positions for which a credit was allowed and claimed by the taxpayer on the original first and second year tax returns. For the purposes of this subsection, the requirement to claim the credit on the original tax return does not apply to qualified employment positions created before January 1, 2002 and certified to the department of commerce.

E. The net increase in the number of qualified employment positions is the lesser of the total number of filled qualified employment positions created in the zone during the tax year or the difference between the average number of full‑time employees in the zone in the current tax year and the average number of full‑time employees during the immediately preceding taxable year. The net increase in the number of qualified employment positions computed under this subsection shall not exceed two hundred qualified employment positions per taxpayer each year.

F. A taxpayer who claims a credit under section 43‑1077, 43‑1079 or 43-1083.01 shall not claim a credit under this section with respect to the same employment positions.

G. If the allowable tax credit exceeds the income taxes otherwise due on the claimant's income, or if there are no state income taxes due on the claimant's income, the amount of the claim not used as an offset against income taxes may be carried forward as a tax credit against subsequent taxable years' income tax liability, not to exceed five taxable years, provided the business remains in an enterprise zone.

H. Co‑owners of a business, including partners in a partnership, trusts and beneficiaries of a trust and shareholders of an S corporation, as defined in section 1361 of the internal revenue code, may each claim only the pro rata share of the credit allowed under this section based on the ownership interest. The total of the credits allowed all such owners of the business may not exceed the amount that would have been allowed for a sole owner of the business.

I. If a person purchases a business in a zone or changes ownership through reorganization, stock purchase or merger, the new taxpayer may claim first year credits only for one or more qualified employment positions that it created and filled with an eligible employee after the purchase or reorganization was complete. If a person purchases a taxpayer that had qualified for first or second year credits or changes ownership through reorganization, stock purchase or merger, the new taxpayer may claim the second or third year credits if it meets other eligibility requirements of this section. Credits for which a taxpayer qualified before the changes described in this subsection are terminated and lost at the time the changes are implemented.

J. A failure to timely report and certify to the department of commerce and the department of revenue the information prescribed by section 41‑1525, subsection B, paragraphs 1, 2 and 3 and in the manner prescribed by section 41‑1525, subsection C disqualifies the taxpayer from the credit under this section. The department of revenue shall require written evidence of the timely report to the department of commerce.

K. The termination of an enterprise zone does not affect the credit under this section with respect to:

1. Taxpayers who have employees in the second and third years of employment in qualified employment positions under subsections A, B and C of this section if the business remains in the location that was in the enterprise zone.

2. Amounts carried forward into subsequent taxable years under subsection G of this section.

L. The department may adopt rules necessary for the administration of this section.

M. For the purposes of this section:

1. "Assigned to retail" means working more than twenty‑five per cent of an employee's time in one or more retail sales activities.

2. "Retail sales" means the sale of tangible personal property to an ultimate consumer.

3. "Retail sales activities" means all activities persons operating a retail business normally engage in, including taking orders, filling orders, billing orders, receiving and processing payment and shipping, stocking and delivering tangible personal property to the ultimate consumer, except drop shipments by a company acting on behalf of an unrelated company that has made a sale to a final consumer.

4. "Zone location" means a single parcel or contiguous parcels of owned or leased land, the structures and personal property contained on the land or any part of the structures occupied by a taxpayer. END_STATUTE

Sec. 2. Section 43-1161, Arizona Revised Statutes, is amended to read:

START_STATUTE43-1161. Credit for increased employment in enterprise zones; definitions

1. Food and beverage for consumption on the premises solely by employees and occasional guests of employees at the location.

2. Promotional products not available for sale and displaying the company logo or trademark.

3. Products sold to company employees.

B. Subject to subsection E of this section, the amount of the credit is equal to:

1. One‑fourth of the taxable wages paid to an employee in a qualified employment position, not to exceed five hundred dollars, in the first year or partial year of employment.

C. To qualify for a credit under this section:

1. All of the employees with respect to whom a credit is claimed must reside in this state.

2. Thirty‑five per cent of the employees with respect to whom a credit is claimed for the first year of employment must reside on the date of hire in an enterprise zone that is located in the same county in which the business is located. If an employee for whom a credit was allowed in the first year of employment leaves employment during the second or third year, the taxpayer may substitute another employee who meets the requirements of paragraph 3 of this subsection and who was hired during the same year as the original employee. If the original employee was counted toward the residency requirement under this paragraph, the substitute employee must also have resided in a zone at the time the substitute was hired.

3. A qualified employment position must meet all of the following requirements:

(a) The position must be a minimum of one thousand seven hundred fifty hours per year of full‑time and permanent employment.

(d) The employer must pay compensation at least equal to the wage offer by county as computed annually by the department of economic security research administration division.

(f) The employee must not have been previously employed by the taxpayer within twelve months before the current date of hire.

E. The net increase in the number of qualified employment positions is the lesser of the total number of filled qualified employment positions created in the zone during the tax year or the difference between the average number of full‑time employees in the zone in the current tax year and the average number of full‑time employees during the immediately preceding taxable year. The net increase in the number of qualified employment positions computed under this subsection may not exceed two hundred qualified employment positions per taxpayer each year.

F. A taxpayer who claims a credit under section 43‑1164.01, 43‑1165 or 43‑1167 may not claim a credit under this section with respect to the same employment positions.

G. If the allowable tax credit exceeds the income taxes otherwise due on the claimant's income, or if there are no state income taxes due on the claimant's income, the amount of the claim not used as an offset against income taxes may be carried forward as a tax credit against subsequent years' income tax liability for the period, not to exceed five taxable years, provided the business remains in an enterprise zone.

H. Co‑owners of a business, including partners in a partnership, trusts and beneficiaries of a trust, may each claim only the pro rata share of the credit allowed under this section based on the ownership interest. The total of the credits allowed all such owners of the business may not exceed the amount that would have been allowed for a sole owner of the business.

K. The termination of an enterprise zone does not affect the credit under this section with respect to:

1. Taxpayers that have employees in the second and third years of employment in qualified employment positions under subsections A, B and C of this section if the business remains in the location that was in the enterprise zone.

2. Amounts carried forward into subsequent taxable years under subsection G of this section.

L. The department may adopt rules necessary for the administration of this section.

M. For the purposes of this section:

1. "Assigned to retail" means working more than twenty‑five per cent of an employee's time in one or more retail sales activities.

2. "Retail sales" means the sale of tangible personal property to an ultimate consumer.

Sec. 3. Retroactivity; amended returns

A. This act applies retroactively to taxable years beginning from and after December 31, 2008.

B. The requirement under section 41-1525, subsection B, paragraph 3, subdivision (e), Arizona Revised Statutes, section 43-1074, subsection D, Arizona Revised Statutes and section 43-1161, subsection D, Arizona Revised Statutes, to claim an income tax credit on an original income tax return does not apply to amended returns filed within sixty after the effective date of this act.

Sec. 4. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.