Print Friendly HOUSE BILL NO. 261 – Income tax credit/invest technology
HOUSE BILL NO. 261
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H0261...............................................by REVENUE AND TAXATION
INCOME TAX CREDIT - Adds to existing law to provide an income tax credit
for technology investment; and to provide criteria to be eligible for the
03/02 House intro - 1st rdg - to printing
03/05 Rpt prt - to Rev/Tax
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 261
BY REVENUE AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO AN IDAHO TECHNOLOGY INVESTMENT TAX CREDIT; PROVIDING LEGISLATIVE
3 INTENT AND A SHORT TITLE; AMENDING CHAPTER 30, TITLE 63, IDAHO CODE, BY
4 THE ADDITION OF A NEW SECTION 63-3029L, IDAHO CODE, TO DEFINE TERMS, TO
5 PROVIDE CRITERIA TO BE ELIGIBLE TO RECEIVE A NONREFUNDABLE INCOME TAX
6 CREDIT, TO PROVIDE QUALIFICATION REQUIREMENTS, TO PROVIDE FOR DESIGNATION
7 OF A BUSINESS AS A QUALIFIED IDAHO BUSINESS, TO PROVIDE REQUIRED PROCE-
8 DURES AND INFORMATION, TO PROVIDE FOR THE PROCESS OF APPLYING FOR TAX
9 CREDIT CERTIFICATES, TO PROVIDE FOR APPROVAL OF CERTIFICATES, TO PROVIDE
10 FOR RESCISSION OR REVOCATION, TO PROVIDE FOR TRANSFERABILITY OF TAX CRE-
11 DITS BY THE TAX COMMISSION, AND TO PROVIDE FOR MEMBERSHIP OF THE IDAHO
12 TECHNOLOGY INVESTMENT TAX CREDIT CERTIFICATION COMMISSION, TO PROVIDE FOR
13 APPOINTMENT OF AN OVERSIGHT COMMITTEE AND TO PROVIDE FOR IMMUNITY FROM
14 LIABILITY FOR CERTAIN ACTS; DECLARING AN EMERGENCY, PROVIDING RETROACTIVE
15 APPLICATION, TO PROVIDE APPLICATION TO CERTAIN INVESTMENTS, AND TO PROVIDE
16 POWERS OF THE DEPARTMENT OF COMMERCE AND LABOR.
17 Be It Enacted by the Legislature of the State of Idaho:
18 SECTION 1. LEGISLATIVE INTENT -- SHORT TITLE. (1) The purpose of this act
19 is to attract new equity investment to develop strategic business infrastruc-
20 ture within Idaho's areas of core competency and to assist in the creation and
21 expansion of Idaho businesses that are job and wealth creating enterprises, by
22 granting tax credits against the Idaho income tax liability of investors
23 investing in these businesses. This act shall be administered by the Idaho
24 Department of Commerce and Labor along with the Idaho State Tax Commission and
25 the State Treasurer, with the primary goal of encouraging private investors to
26 provide high-risk financing for Idaho's emerging bioscience and technology
28 (2) This act shall be known and may be cited as the "Idaho Technology
29 Investment Tax Credit Act."
30 SECTION 2. That Chapter 30, Title 63, Idaho Code, be, and the same is
31 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
32 ignated as Section 63-3029L, Idaho Code, and to read as follows:
33 63-3029L. IDAHO TECHNOLOGY INVESTMENT TAX CREDIT. (1) As used in this
35 (a) "Certificate" means a technology investment tax credit certificate, a
36 physical certificate issued by the department that evidences an investor's
37 right to take a nonrefundable tax credit according to the provisions of
38 this section.
39 (b) "Commission" means the Idaho technology investment tax credit certi-
40 fication commission that reviews applicants and grants qualified status.
41 (c) "Committee" means the technology investment tax credit oversight com-
42 mittee that will review the performance of the investment tax credit and
1 its commission pursuant to this section.
2 (d) "Department" means the Idaho department of commerce and labor.
3 (e) "Effective date" is the date on which the qualified investment is
4 deemed to have been accepted by the qualified business.
5 (f) "Idaho business" means any business with its principal place of busi-
6 ness having at least fifty-one percent (51%) of its assets and fifty-one
7 percent (51%) of its employees located in Idaho.
8 (g) "Qualified Idaho business" means a business located in Idaho that is
9 approved and certified as a qualified Idaho business according to the pro-
10 visions of this section. A "qualified company" must be a research-based
11 company engaged in technology, bioscience or ag/ecosystems biotechnology.
12 (i) A "bioscience company" is a corporation, limited liability com-
13 pany, partnership or other business entity that is engaged in
14 research and development, manufacturing, marketing and licensing of
15 products and services relating to medical, bioengineering or other
16 life science based applications or applications of modern
17 biomechanical or bioinformatics technologies in the fields of human,
18 plant or animal health, aquaculture, agriculture, ecosystems,
19 defense, homeland security or the environment. The bioscience company
20 must also meet other requirements enumerated in this section.
21 (ii) A "technology company" is a corporation, limited liability com-
22 pany, partnership or other business entity that is engaged in at
23 least one (1) of the following: developing an innovative or propri-
24 etary new product or business or having a significant portion of its
25 operations involved in research and development activities. The tech-
26 nology company must also meet other requirements enumerated in this
28 (h) "Qualified investment" means money or money equivalent given in con-
29 sideration for qualified securities that are offered in compliance with
30 applicable Idaho statutes and rules and federal statutes and regulations.
31 (i) "Qualified investor" is a natural person or any corporation, partner-
32 ship, limited liability company or lawfully organized entity who invests
33 in a qualified Idaho company and who is eligible to make such investment
34 under accepted federal and state guidelines as an "accredited investor."
35 (j) "Qualified security" means any one (1) or more forms of securities
36 granted by qualified Idaho companies in return for investment capital that
37 have been approved in form and substance by the commission. Such forms of
38 investment include any form of equity such as a general or limited part-
39 nership interest; common stock; preferred stock, with or without voting
40 rights and without regard to seniority position or whether it is convert-
41 ible into common stock; interest in a limited liability company; and con-
42 vertible debt, which may include warrants or other means of equity conver-
43 sion so long as the equity instrument requires no repayment, no matter how
44 described, within five (5) years of the effective date of the initial
45 investment and the debt instrument is convertible into equity securities
46 of the issuer.
47 (k) "Qualified taxable year" is the calendar year plus the following six
48 (6) month period.
49 (2) (a) Only qualified investors may qualify to receive a nonrefundable
50 tax credit pursuant to this section.
51 (b) A nonrefundable credit against taxes imposed by section 63-3024,
52 Idaho Code, shall be allowed for qualified investments in the qualified
53 securities of a qualified Idaho business. The credit shall be in a total
54 amount equal to thirty-five percent (35%) of the investor's qualified
55 investment in the qualified securities of a qualified Idaho technology
1 business, or in the total amount of forty-five percent (45%) if the quali-
2 fied investment is made in the qualified securities of a qualified Idaho
3 bioscience business.
4 (c) Twenty-five percent (25%) of the total issued and nonrefundable tax
5 credit shall be vested and usable immediately and an additional twenty-
6 five percent (25%) shall vest at each of the three (3) subsequent anniver-
7 sary dates of the issuance of the original tax credit certificate.
8 (d) A vested tax credit may be used to offset future investor tax liabil-
9 ity and may be carried forward for fourteen (14) consecutive taxable years
10 from the anniversary date of the certificate or until exhausted, whichever
11 occurs first.
12 (e) A qualified investor and its affiliates, following an investment in
13 qualified securities of a qualified Idaho business, may not own more than
14 twenty-five percent (25%) of the outstanding equity interests in such
16 (f) The cumulative aggregate amount of the tax credits allowed by this
17 section shall not exceed fifty million dollars ($50,000,000). The total
18 aggregate amount of tax credits allowed to be used by this section shall
19 be up to ten million dollars ($10,000,000) per qualified taxable year.
20 (g) The investor tax credits for businesses that were qualified by the
21 commission during any calendar year must be issued by June 30 of the fol-
22 lowing year or the company must requalify. If the cumulative tax credits
23 are exhausted prior to a qualified business completing its approved
24 investment total, the business must reapply in another calendar year for
25 its investors to be eligible to participate in the tax credit pool for
26 such new year.
27 (h) The reasonable cost of the administration of this section, the review
28 of applications for certification as qualified Idaho businesses, the
29 review of investor tax credit certificate applications, and the issuance
30 of tax credit certificates may be reimbursed through fees paid by the
31 qualified Idaho businesses and investors according to a reasonable fee
32 schedule adopted by the commission.
33 (3) (a) Before an investor may be entitled to receive tax credits as
34 authorized by this section, such investor must have made a qualified
35 investment in a qualified security of a qualified Idaho business. The
36 business must have been approved by the commission as a qualified Idaho
37 business prior to the date on which the investment was made, except in the
38 circumstance provided as follows: investments made in the period between
39 January 1, 2007, and approval by the governor of this act may be eligible
40 for qualified status upon review by the commission pursuant to this sec-
41 tion; and applications for certification of investments made during this
42 time period must be made by June 30, 2007.
43 (b) To be designated as a qualified Idaho business, an Idaho business
44 must make application to the commission in each taxable year for which the
45 business desires certification. The application to the commission shall be
46 in the form and substance as required by the commission and at a minimum
48 (i) The name, address and taxpayer identification number of the
49 business and certified copies of the organizational documents of the
51 (ii) Business plan details, including a description of the business
52 and the management, product, market and financial plan of the busi-
54 (iii) A description of the business's innovative and proprietary
55 technology, product or service;
1 (iv) Evidence supporting the business's status as an Idaho
2 bioscience or technology business;
3 (v) Any related party compensation;
4 (vi) A statement of the potential economic impact of the enter-
5 prise, including the number, location and types of jobs expected to
6 be created;
7 (vii) A description of the qualified securities to be issued, the
8 consideration to be paid for the qualified securities, and the amount
9 of tax credits to be required;
10 (viii) A statement of the amount, timing and projected use of the
11 proceeds to be raised from the proposed sale of qualified securities;
13 (ix) Such other information as the commission may request, such as
14 the names, addresses and taxpayer identification numbers of all
15 investors who may qualify for the tax credit. Once the business has
16 been qualified, such list of investors who may qualify for the tax
17 credit shall be amended as newly qualified securities are sold and
18 the business will certify the effective date on which each investment
19 was deemed received.
20 (c) No business may be eligible for initial designation as a qualified
21 Idaho business unless the commission determines in its sole discretion
22 that the business meets all of the following criteria:
23 (i) The business must have had an annual gross revenue of less than
24 five million dollars ($5,000,000) in the most recent taxable year of
25 the business or a net book value of less than five million dollars
26 ($5,000,000), and have less than fifty (50) full-time employee equiv-
27 alents, at the end of the most recently completed fiscal year;
28 (ii) The business must be engaged in research and development, tech-
29 nology transfer or the innovative application of new technologies.
30 The business may not derive more than ten percent (10%) of its income
31 from passive investments, other than short-term interest-bearing
32 investments using the proceeds of qualified investments, pending
33 their use for general working capital purposes that generate inter-
34 est, dividends, royalties or capital gains or any business arrange-
35 ments, the effect of which is to immunize an investor from risk of
36 loss; distribute excessive capital to employees, board members,
37 related parties or other affiliates of the business unless such capi-
38 tal is the product of profitability exceeding the current commitments
39 of the business and any activity that is in violation of the law.
40 (iii) The business must satisfy all other requirements of the commis-
41 sion in administration of this section.
42 (d) The maximum amount of qualified investments in a single qualified
43 Idaho bioscience company cannot exceed an aggregate of two million dol-
44 lars ($2,000,000) in tax credit eligible funding for a single taxable year
45 and four million dollars ($4,000,000) under the period of this section;
46 and qualified investments in a single qualified Idaho technology company
47 cannot exceed an aggregate of one million dollars ($1,000,000) in tax
48 credit eligible funding for a single taxable year and two million dollars
49 ($2,000,000) under the period of this legislation.
50 (e) Business records, trade secrets and proprietary information submitted
51 to the commission or discussed by the commission in its proceedings shall
52 be maintained in a secure environment and shall be kept confidential
53 according to the provisions of chapter 3, title 9, Idaho Code, and chapter
54 47, title 67, Idaho Code.
55 (f) A business applying for designation as a qualified Idaho business
1 shall have the burden of proof to demonstrate to the commission the quali-
2 fications of the business under this section. Qualified Idaho businesses
3 shall notify the commission in a timely manner of any changes in the qual-
4 ifications of the business or in the eligibility of investors to claim a
5 tax credit for investments in a qualified security.
6 (4) The designation of a business as a qualified Idaho business shall be
7 made by the commission. A business shall be so designated if the commission
8 determines in its sole discretion, based upon the application submitted by the
9 business and any additional investigation the commission may make that the
10 following criteria have been or shall be satisfied:
11 (a) The Idaho business satisfies the criteria in subsection (3)(c) of
12 this section;
13 (b) The ability of investors in the business to receive tax credits for
14 qualified investments in qualified securities of the business is necessary
15 because funding otherwise available for the business is not available on
16 commercially reasonable terms;
17 (c) The business has the reasonable potential to succeed and to create
18 measurable employment within the state;
19 (d) The existing owners of the business and other founders have made or
20 are committed to make a substantial financial and time commitment to the
22 (e) The securities to be issued and purchased are qualified securities;
23 (f) The business commits to notify prospective investors of the stipula-
24 tions under which they may receive and retain tax credits under this sec-
25 tion; and
26 (g) Binding commitments have been made by the business to the department
27 for adequate reporting of financial data, including a requirement for a
28 timely annual report, the right of access to the financial records of the
29 business, and the right of the department to record and publish normal and
30 customary data and information related to the issuance of tax credits that
31 are not otherwise determined to be trade or business secrets.
32 (5) Each investor having made a qualified investment and who desires tax
33 credits shall submit a certificate application to the commission. The certifi-
34 cate application shall be in the form and substance as required by the commis-
35 sion and at a minimum shall include:
36 (a) The name, address and taxpayer identification number of the qualified
37 Idaho business;
38 (b) The name, address and taxpayer identification number of the investor;
39 (c) A description of the qualified securities issued, the consideration
40 paid for the qualified securities and the amount of any tax credits
42 (d) The effective date of the investment, certified by the business's
43 ranking individual;
44 (e) An acknowledgment by investors that they have read and understand the
45 stipulations of this section and the conditions under which the tax credit
46 certificate is granted, including the conditions of compliance which could
47 serve to disqualify the credit in whole or in part;
48 (f) A copy of the commission's notice of qualification that was duly
49 issued to the business receiving the investment.
50 (6) After the commission has notified a business that it has been deemed
51 qualified by the commission, the business and its investors may begin the
52 process of applying for tax credit certificates:
53 (a) The commission shall notify the qualified Idaho business, the inves-
54 tor and the Idaho state tax commission if the tax credit application is
55 approved, if issuable tax credits are available, and will then issue an
1 investor tax credit certificate to the investor, which will also contain
2 its effective, or anniversary date based on the date the qualified busi-
3 ness is deemed to have received the qualifying investment.
4 (b) If, during any calendar year, certificate applications are submitted
5 for more than issuable tax credits, the certificate applications shall be
6 evaluated on a first-come, first-served basis until the amount of issuable
7 tax credits have been exhausted and the commission shall issue a lack of
8 available credit notice to the applicant when there are insufficient issu-
9 able tax credits.
10 (c) If the commission determines in its sole discretion that there has
11 not been a qualified investment in a qualified security of a qualified
12 Idaho business by a qualified investor, the commission shall notify the
13 applicant of such determination. The certificate application shall be sus-
14 pended indefinitely until the applicant provides sufficient evidence to
15 the committee justifying, in the commission's sole discretion, the issu-
16 ance of a tax credit certificate.
17 (d) Any qualified designation, or any tax credits issued, even if vested,
18 may be rescinded by the commission if the company is found to have commit-
19 ted material illegal acts, knowingly provided false information to the
20 commission or committed other business fraud.
21 (e) Any violation or noncompliance of qualification requirements as
22 determined by the commission could result in revocation of unvested tax
23 credits including:
24 (i) The failure of a business to timely file annual statements
25 required by the commission;
26 (ii) Changes in a business originally qualified by the commission
27 that would serve to disqualify the business in subsequent years,
28 other than for exceeding gross revenue and net book value criteria;
29 (iii) A business becoming out of compliance due to redesignation out
30 of Idaho of the majority of its employees or business assets, in
31 addition to either the business's headquarters being moved out of
32 state or its Idaho presence being diminished since its qualification.
33 (7) (a) Each qualified Idaho business for which tax credits have been
34 issued pursuant to this section shall report to the commission annually:
35 (i) The name, address and taxpayer identification number of each
36 investor who has made a qualified investment in the qualified securi-
37 ties of a qualified Idaho business and has received tax credits for
38 this investment during the preceding year and all other preceding
40 (ii) The amounts of these investments by each investor and a
41 description of the qualified securities issued in consideration of
42 such investments; and
43 (iii) Any additional information the commission may require pursuant
44 to this section.
45 (b) The oversight committee shall report annually to the governor, the
46 senate and the house of representatives. The report shall specify:
47 (i) The manner in which the purpose, as described in this act, has
48 been carried out;
49 (ii) The total investments made for the purchase of qualified secu-
50 rities of qualified Idaho businesses during the preceding year and
51 cumulatively since the effective date of this section;
52 (iii) An estimate of jobs created and new economic activity gener-
54 (c) Any violation of the reporting requirements set forth in this section
55 shall be grounds for revocation of the tax credit certificate under this
2 (d) If the commission determines that a business is not in substantial
3 compliance with the requirements of this section to maintain its designa-
4 tion, the commission, by written notice, shall inform the qualified Idaho
5 business that such business will lose its designation as a qualified Idaho
6 business in sixty (60) calendar days from the date of mailing of the
7 notice unless such business corrects the deficiencies and is once again in
8 compliance with the requirements for designation.
9 (e) At the end of the sixty (60) day period, if the qualified Idaho busi-
10 ness is still not in substantial compliance, the commission shall cause to
11 be sent a notice of loss of designation to the business and to all known
12 investors in the business. Loss of designation of a qualified Idaho busi-
13 ness shall preclude the issuance of any additional tax credits with
14 respect to that business.
15 (f) Investors in a qualified Idaho business shall be entitled to keep all
16 vested tax credits issued under this section unless it is shown that there
17 have been material misstatements, false statements or knowledge of such,
18 upon which qualification was partially based. If such is shown, investors
19 could be required to repay tax credits to the state and any legal costs
20 incurred by the state.
21 (8) (a) Subject to the requirements of this subsection, a taxpayer who
22 earns and is entitled to the credit or to an unused portion of the credit
23 allowed by this section may transfer all or a portion of the unused credit
24 to another taxpayer required to file an Idaho state income tax return.
25 (b) In the event of such transfer, the transferee may claim the credit on
26 the transferee's income tax return originally filed during the calendar
27 year in which the transfer takes place and in the case of carryover of the
28 credit, on the transferee's returns for the number of years of carryover
29 available to the transferor at the time of the transfer unless earlier
31 (c) Before completing a transfer under this subsection, the transferor
32 shall notify the state tax commission of its intention to transfer the
33 credit and the identity of the transferee. The state tax commission shall
34 provide the transferor with a written statement of the amount of the
35 credit available under this section as then appearing in the commission's
36 records and the number of years the credit may be carried over based on
37 the effective date of the original certificate.
38 (d) The transferee shall attach a copy of the statement to any return in
39 regard to which the transferred credit is claimed.
40 (e) In the event that after the transfer the state tax commission deter-
41 mines that the amount of credit properly available under this section is
42 less than the amount claimed by the transferor of the credit or that the
43 credit is subject to recapture, the tax commission shall assess the amount
44 of overstated or recaptured credit as taxes due from the transferor and
45 not the transferee. The assessment shall be made in the manner provided
46 for a deficiency in taxes under this chapter. The credit cannot be trans-
47 ferred to a funded company under this section or any affiliated parties or
48 investors to the funded company.
49 (9) (a) The commission, which is hereby created, will be comprised of not
50 less than three (3) nor more than seven (7) individuals who collectively
51 represent credible and extensive business and investment experience as
52 well as specific knowledge of bioscience and technology businesses.
53 (b) Commission members shall be appointed annually by the director of the
54 department of commerce and labor.
55 (c) Not more than one-half (1/2) of the commissioners may be replaced in
1 any one (1) year.
2 (d) The commission shall meet monthly to review and certify companies
3 according to this section.
4 (e) The commission shall have the discretion, with approval by the over-
5 sight committee to make reasonable adjustments as necessary to achieve
6 program objectives in the certification and reporting processes for compa-
8 (f) Members of the commission shall be compensated as provided in section
9 59-509(c), Idaho Code.
10 (10) (a) An oversight committee is hereby created which shall consist of
11 the commission along with an appointee by the governor, the speaker of the
12 house of representatives and the president pro tempore of the senate.
13 (b) The oversight committee will meet at least once annually to review
14 the Idaho technology investment tax credit program and oversee a report
15 reviewing its effectiveness in encouraging investment in targeted compa-
17 (c) The oversight committee will provide testimony at the end of five (5)
18 years to assist in determining whether the program should be renewed for
19 an additional five (5) years.
20 (11) The state of Idaho, the commission, the commissioners, the depart-
21 ment, the state tax commission or their employees and agents shall not be lia-
22 ble for any trade secrets or other confidential information that may be dis-
23 seminated to third parties, for any decisions made regarding a business's sta-
24 tus as a qualified Idaho business, or for any damages to any person making an
25 investment pursuant to this section.
26 SECTION 3. An emergency existing therefor, which emergency is hereby
27 declared to exist, this act shall be in full force and effect on and after its
28 passage and approval, and retroactively to January 1, 2007. Investments made
29 in the period between January 1, 2007, and approval of this act by the gover-
30 nor may be eligible for qualified status upon review by the commission pursu-
31 ant to Section 2 of this act. Applications for certification of investments
32 made during this time period must be made by June 30, 2007. The Department of
33 Commerce and Labor may take necessary action to implement the provisions of
34 this act.
STATEMENT OF PURPOSE
This legislation is proposed as a result of the 2006 Bioscience Tax
Incentives Task Force to provide the State of Idaho with an efficient
tool to help attract pools of high-risk seed investment capital to help
build its early stage, research-based biotechnology and technology
company infrastructure in every part of the state. Idaho has had
measurable difficulty raising this critical capital. In 2006 the
National Association of Seed 16859 and Venture Funds reported no Idaho
seed or venture capital fund investments out of a US total of 312 for
$1.16 billion; and only 6 such investments over the past 10 years
totaling $18 million, or 0.14% of a US total of 3993 investments
totaling $13.19 billion. New investment in this important economic
growth sector provides new high paying jobs and a stream of new tax
revenues to the State. It encourages and stimulates valuable research
and development activities throughout our economy and education system
and will build efficiently upon Idaho's existing strengths in
technology, agriculture/ecosystem biotechnology and biomedical
The legislation uses the competitive incentive of state tax relief
to investors willing to make high-risk investments in young, research
based companies that have been prequalified by an experienced
commission working with the Department of Commerce and Labor. The
program provides a forty-five percent (45%) credit to investors in
qualified biotechnology companies and a thirty-five percent (35%)
credit to investors in qualified technology companies. While the state
receives investment capital immediately, the investment credits are
earned on a four tax year vesting schedule. A company must continue to
qualify its ongoing business activities in Idaho each year or the
vesting of credits stops. This method of granting incentives means
that the state should be in a positive, leveraged cash flow position in
each year of the program and is projected to directly provide several
thousand new jobs, along with significant new revenues, that will
continue into the future.
A maximum of ten million dollars ($10,000,000) of incentive is
offered per any calendar year for five (5) consecutive years beginning
in 2007. The vesting schedule would result in the following state tax
credit obligations if a full complement of investment is received in
each year and if all companies complete at least three years of
qualified business in Idaho:
Phil Syrdal, Co-chair Bioscience Tax Incentives Task Force
c/o Idaho Bioscience Association
Steve Simpson, Co-chair Bioscience Tax Incentives Task Force
c/o Kestrelink Inc.
STATEMENT OF PURPOSE/FISCAL NOTE H 261