1 | 1 | | 25 LC 50 0946 |
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2 | 2 | | House Bill 8 |
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3 | 3 | | By: Representative Kendrick of the 95 |
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4 | 4 | | th |
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5 | 5 | | |
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6 | 6 | | A BILL TO BE ENTITLED |
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7 | 7 | | AN ACT |
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8 | 8 | | To amend Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to |
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9 | 9 | | 1 |
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10 | 10 | | income taxes, so as to renew and revise an income tax credit for certain investments in2 |
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11 | 11 | | qualified businesses; to remove the requirement that the investment be made by a qualified3 |
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12 | 12 | | investor; to provide for an aggregate cap; to allow such credit to be transferred; to provide4 |
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13 | 13 | | a reporting requirement; to provide for definitions; to provide for sunset; to provide for an5 |
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14 | 14 | | effective date and applicability; to provide for related matters; to repeal conflicting laws; and6 |
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15 | 15 | | for other purposes.7 |
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16 | 16 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8 |
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17 | 17 | | SECTION 1.9 |
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18 | 18 | | Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating to income taxes,10 |
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19 | 19 | | is amended by revising Code Section 48-7-40.30, relating to tax credits for certain qualified11 |
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20 | 20 | | investments for limited period of time, as follows:12 |
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21 | 21 | | "48-7-40.30.13 |
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22 | 22 | | (a) The General Assembly finds that entrepreneurial businesses significantly contribute14 |
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23 | 23 | | to the economy of this state. The intent of this Code section is to achieve the following:15 |
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24 | 24 | | H. B. 8 |
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25 | 25 | | - 1 - 25 LC 50 0946 |
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26 | 26 | | (1) To encourage individual investors to invest in early stage, innovative, wealth-creating |
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27 | 27 | | 16 |
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28 | 28 | | businesses;17 |
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29 | 29 | | (2) To enlarge the number of high quality, high paying |
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30 | 30 | | high-paying jobs within this state18 |
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31 | 31 | | both to attract qualified individuals to move to and work within this state and to retain19 |
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32 | 32 | | young people educated in Georgia's universities and colleges;20 |
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33 | 33 | | (3) To expand the economy of Georgia by enlarging its base of wealth-creating21 |
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34 | 34 | | businesses; and22 |
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35 | 35 | | (4) To support high-growth business and other businesses seeking to commercialize23 |
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36 | 36 | | technology invented in Georgia's universities and colleges.24 |
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37 | 37 | | (b) As used in this Code section, the term:25 |
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38 | 38 | | (1) 'Allowable credit' means the credit as it may be reduced pursuant to paragraph (3) of26 |
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39 | 39 | | subsection (i) of this Code section.27 |
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40 | 40 | | (2) 'Headquarters' means the principal central administrative office of a business located28 |
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41 | 41 | | in this state which conducts significant operations of such business.29 |
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42 | 42 | | (3) 'Investor' means:30 |
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43 | 43 | | (A) A person who is a resident of this state or a nonresident who is obligated to pay31 |
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44 | 44 | | taxes imposed by this chapter; or32 |
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45 | 45 | | (B) A pass-through entity which is formed for investment purposes, has no business33 |
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46 | 46 | | operations, has committed capital under management of equal to or less than $5 million,34 |
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47 | 47 | | and is not capitalized with funds raised or pooled through private placement35 |
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48 | 48 | | memoranda directed to institutional investors. A venture capital fund or commodity36 |
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49 | 49 | | fund with institutional investors or a hedge fund shall not qualify as an investor.37 |
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50 | 50 | | (3)(4) 'Net income tax liability' means income tax liability reduced by all other credits38 |
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51 | 51 | | allowed under this chapter.39 |
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52 | 52 | | (4)(5) 'Pass-through entity' means a partnership, an S-corporation, or a limited liability40 |
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53 | 53 | | company taxed as a partnership.41 |
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54 | 54 | | H. B. 8 |
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56 | 56 | | (5)(6) 'Professional services' means those services of a profession specified in42 |
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57 | 57 | | paragraph (2) of Code Section 14-7-2 or any service which requires as a condition43 |
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58 | 58 | | precedent to the rendering of such service the obtaining of a license from a state licensing44 |
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59 | 59 | | board pursuant to Title 43.45 |
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60 | 60 | | (6)(7) 'Qualified business' means a registered business that:46 |
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61 | 61 | | (A) Is either a corporation, limited liability company, or a general or limited47 |
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62 | 62 | | partnership located in this state;48 |
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63 | 63 | | (B) Was organized no more than three years before the qualified investment was made;49 |
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64 | 64 | | (C) Has its headquarters located in this state at the time the investment was made and50 |
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65 | 65 | | has maintained such headquarters for the entire time the qualified business benefited51 |
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66 | 66 | | from the tax credit provided for pursuant to this Code section;52 |
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67 | 67 | | (D) Employs 20 or fewer people in this state at the time it is registered as a qualified53 |
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68 | 68 | | business;54 |
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69 | 69 | | (E) Has had in any complete fiscal year before registration gross annual revenue as55 |
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70 | 70 | | determined in accordance with the Internal Revenue Code of $500,000.00 or less on a56 |
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71 | 71 | | consolidated basis;57 |
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72 | 72 | | (F) Has not obtained during its existence more than $1 million in aggregate gross cash58 |
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73 | 73 | | proceeds from the issuance of its equity or debt investments, not including commercial59 |
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74 | 74 | | loans from chartered banking or savings and loan institutions;60 |
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75 | 75 | | (G) Has not utilized the tax credit described in Code Section 48-7-40.26;61 |
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76 | 76 | | (H) Is primarily engaged in manufacturing, processing, online and digital warehousing,62 |
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77 | 77 | | online and digital wholesaling, software development, information technology services,63 |
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78 | 78 | | or research and development or is a high-growth business providing services other than64 |
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79 | 79 | | those described in subparagraph (I) of this paragraph; and65 |
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80 | 80 | | (I) Does not engage substantially in:66 |
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81 | 81 | | (i) Retail sales;67 |
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82 | 82 | | (ii) Real estate or construction;68 |
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85 | 85 | | (iii) Professional services; |
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86 | 86 | | 69 |
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87 | 87 | | (iv) Gambling;70 |
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88 | 88 | | (v) Natural resource extraction;71 |
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89 | 89 | | (vi) Financial, brokerage, or investment activities or insurance; or72 |
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90 | 90 | | (vii) Entertainment, amusement, recreation, or athletic or fitness activity for which73 |
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91 | 91 | | an admission or membership is charged.74 |
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92 | 92 | | A business shall be substantially engaged in one of the above |
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93 | 93 | | activities listed in75 |
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94 | 94 | | subparagraph (H) or (I) of this paragraph if its gross revenue from such activity exceeds76 |
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95 | 95 | | 25 percent of its gross revenues in any fiscal year or it is established pursuant to its77 |
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96 | 96 | | articles of incorporation, articles of organization, operating agreement, or similar78 |
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97 | 97 | | organizational documents to engage in such activity as one of its primary purposes.79 |
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98 | 98 | | (7)(8) 'Qualified investment' means an investment by a qualified an investor of cash in80 |
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99 | 99 | | a qualified business for common or preferred stock or an equity interest or a purchase for81 |
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100 | 100 | | cash of qualified subordinated debt in a qualified business; provided, however, that funds82 |
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101 | 101 | | constituting a qualified investment cannot have been raised or be raised as a result of83 |
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102 | 102 | | other tax incentive programs. Furthermore, no investment of common or preferred stock84 |
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103 | 103 | | or an equity interest or purchase of subordinated debt shall qualify as a qualified85 |
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104 | 104 | | investment if a broker fee or commission or a similar remuneration is paid or given86 |
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105 | 105 | | directly or indirectly for soliciting such investment or purchase. Investment of common87 |
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106 | 106 | | or preferred stock or an equity interest or a purchase of qualified subordinated debt that88 |
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107 | 107 | | contains or involves a broker fee or commission or a similar remuneration paid or given,89 |
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108 | 108 | | directly or indirectly, for soliciting such investment or purchase shall qualify as a90 |
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109 | 109 | | qualified investment. However, the investor shall be allowed the tax credit under this91 |
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110 | 110 | | Code section only on the amount of the direct investment in the qualified investment and92 |
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111 | 111 | | not on the broker fees or commissions or similar remunerations paid or given, directly or93 |
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112 | 112 | | indirectly, for soliciting such investment or purchase.94 |
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113 | 113 | | H. B. 8 |
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115 | 115 | | (8) 'Qualified investor' means an accredited investor as that term is defined by the United95 |
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116 | 116 | | States Securities and Exchange Commission who is:96 |
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117 | 117 | | (A) An individual person who is a resident of this state or a nonresident who is97 |
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118 | 118 | | obligated to pay taxes imposed by this chapter; or98 |
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119 | 119 | | (B) A pass-through entity which is formed for investment purposes, has no business99 |
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120 | 120 | | operations, has committed capital under management of equal to or less than $5 million,100 |
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121 | 121 | | and is not capitalized with funds raised or pooled through private placement101 |
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122 | 122 | | memoranda directed to institutional investors. A venture capital fund or commodity102 |
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123 | 123 | | fund with institutional investors or a hedge fund shall not qualify as a qualified investor.103 |
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124 | 124 | | (9) 'Qualified subordinated debt' means indebtedness that is not secured, that may or may104 |
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125 | 125 | | not be convertible into common or preferred stock or other equity interest, and that is105 |
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126 | 126 | | subordinated in payment to all other indebtedness of the qualified business issued or to106 |
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127 | 127 | | be issued for money borrowed and no part of which has a maturity date less than five107 |
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128 | 128 | | years after the date such indebtedness was purchased.108 |
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129 | 129 | | (10) 'Registered' or 'registration' means that a business has been certified by the109 |
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130 | 130 | | commissioner as a qualified business at the time of application to the commissioner.110 |
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131 | 131 | | (c) A qualified business shall register with the commissioner for purposes of this Code111 |
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132 | 132 | | section. Approval of such registration shall constitute certification by the commissioner112 |
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133 | 133 | | for 12 months after being issued. A business shall be permitted to renew its registration113 |
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134 | 134 | | with the commissioner so long as, at the time of renewal, the business remains a qualified114 |
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135 | 135 | | business.115 |
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136 | 136 | | (d) Any individual person making a qualified investment directly in a qualified business116 |
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137 | 137 | | in the 2011, 2012, 2013, 2014, 2015, 2016, 2017, or 2018 calendar year shall be allowed117 |
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138 | 138 | | a tax credit of 35 percent of the amount invested against the tax imposed by this chapter118 |
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139 | 139 | | commencing on January 1 of the second for the taxable year following the year in which119 |
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140 | 140 | | the qualified investment was made as provided in this Code section.120 |
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141 | 141 | | H. B. 8 |
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143 | 143 | | (e) Any pass-through entity making a qualified investment directly in a qualified business |
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144 | 144 | | 121 |
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145 | 145 | | in the 2011, 2012, 2013, 2014, 2015, 2016, 2017, or 2018 calendar year |
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146 | 146 | | shall be allowed122 |
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147 | 147 | | a tax credit of 35 percent of the amount invested against the tax imposed by this chapter123 |
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148 | 148 | | commencing on January 1 of the second for the taxable year following the year in which124 |
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149 | 149 | | the qualified investment was made as provided in this Code section. Each individual who125 |
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150 | 150 | | is a shareholder, partner, or member of an entity shall be allocated the credit allowed the126 |
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151 | 151 | | pass-through entity in an amount determined in the same manner as the proportionate127 |
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152 | 152 | | shares of income or loss of such pass-through entity would be determined. If an128 |
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153 | 153 | | individual's share of the pass-through entity's credit is limited due to the maximum129 |
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154 | 154 | | allowable credit under this Code section for a taxable year, the pass-through entity and its130 |
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155 | 155 | | owners may not reallocate the unused credit among the other owners.131 |
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156 | 156 | | (f) Tax credits claimed pursuant to this Code section shall be subject to the following132 |
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157 | 157 | | conditions and limitations:133 |
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158 | 158 | | (1) The qualified investor shall not be eligible for the credit for the taxable year in which134 |
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159 | 159 | | the qualified investment is made but shall be eligible for the credit for the second taxable135 |
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160 | 160 | | year beginning after the qualified investment is made as provided in subsection (d) or (e)136 |
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161 | 161 | | of this Code section;137 |
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162 | 162 | | (2) The aggregate amount of credit allowed an individual for one or more qualified138 |
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163 | 163 | | investments in a single taxable year under this Code section, whether made directly or by139 |
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164 | 164 | | a pass-through entity and allocated to such individual, shall not exceed $50,000.00;140 |
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165 | 165 | | (3)(2) In no event shall the amount of the tax credit allowed an individual under this141 |
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166 | 166 | | Code section for a taxable year exceed such individual's net income tax liability. Any142 |
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167 | 167 | | unused credit amount shall be allowed to be carried forward for three years from the close143 |
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168 | 168 | | of the taxable year in which the qualified investment was made. No such credit shall be144 |
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169 | 169 | | allowed against prior years' tax liability;145 |
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170 | 170 | | H. B. 8 |
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172 | 172 | | (4)(3) The qualified investor's basis in the common or preferred stock, equity interest,146 |
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173 | 173 | | or qualified subordinated debt acquired as a result of the qualified investment shall be147 |
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174 | 174 | | reduced for purposes of this chapter by the amount of the allowable credit; and148 |
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175 | 175 | | (5) The credit shall not be transferrable transferable by the qualified investor except to149 |
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176 | 176 | | the heirs and legatees of the qualified investor upon his or her death and to his or her150 |
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177 | 177 | | spouse or incident to divorce.151 |
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178 | 178 | | (4) Any tax credit earned and previously claimed but not used against its income tax may152 |
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179 | 179 | | be transferred or sold, in whole or in part, by the investor to another Georgia taxpayer.153 |
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180 | 180 | | (g) The registration of a business as a qualified business shall be subject to the following154 |
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181 | 181 | | conditions and limitations:155 |
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182 | 182 | | (1) If the commissioner finds that any of the information contained in an application of156 |
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183 | 183 | | a business for registration under this Code section is false, the commissioner shall revoke157 |
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184 | 184 | | the registration of such business. The commissioner shall not revoke the registration of158 |
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185 | 185 | | a business solely because it ceases business operations for an indefinite period of time,159 |
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186 | 186 | | as so long as the business renews its registration;160 |
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187 | 187 | | (2) A registration as a qualified business may not be sold or otherwise transferred, except161 |
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188 | 188 | | that, if a qualified business enters into a merger, conversion, consolidation, or other162 |
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189 | 189 | | similar transaction with another business and the surviving company would otherwise163 |
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190 | 190 | | meet the criteria for being a qualified business, the surviving company retains the164 |
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191 | 191 | | registration for the 12 month registration period without further application to the165 |
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192 | 192 | | commissioner. In such a case, the qualified business must shall provide the166 |
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193 | 193 | | commissioner with written notice of the merger, conversion, consolidation, or similar167 |
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194 | 194 | | transaction and such other information as required by the commissioner; and168 |
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195 | 195 | | (3) The commissioner shall report to the House Committee on Ways and Means and the169 |
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196 | 196 | | Senate Finance Committee each year all of the businesses that have registered with the170 |
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197 | 197 | | commissioner as a qualified business. The Such report shall include the name and171 |
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198 | 198 | | address of each business, the location of its headquarters, a description of the types of172 |
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199 | 199 | | H. B. 8 |
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201 | 201 | | business in which it engages, the number of jobs created by the business during the period |
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202 | 202 | | 173 |
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203 | 203 | | covered by the report, and the average wages paid by these |
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204 | 204 | | such jobs.174 |
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205 | 205 | | (h) Any credit claimed under this Code section shall be recaptured in the following175 |
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206 | 206 | | situations and shall be subject to the following conditions and limitations:176 |
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207 | 207 | | (1) If within two years after the qualified investment was made, the qualified investor177 |
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208 | 208 | | transfers any of the securities or qualified subordinated debt received in the qualified178 |
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209 | 209 | | investment to another person or entity, other than a transfer resulting from one of the179 |
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210 | 210 | | following:180 |
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211 | 211 | | (A) The death of the qualified investor;181 |
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212 | 212 | | (B) A transfer to the spouse of the qualified investor or incident to divorce; or182 |
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213 | 213 | | (C) A merger, conversion, consolidation, sale of the qualified business's assets, or183 |
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214 | 214 | | similar transaction requiring approval by the owners of the qualified business under184 |
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215 | 215 | | applicable law, to the extent the qualified investor does not receive cash or tangible185 |
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216 | 216 | | property in such merger, conversion, consolidation, sale, or other similar transaction;186 |
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217 | 217 | | (2) Except as provided in paragraph (1) of this subsection, if within five years after the187 |
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218 | 218 | | qualified investment was made, the qualified business makes a redemption with respect188 |
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219 | 219 | | to the securities received or pays any principal of the qualified subordinated debt;189 |
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220 | 220 | | (3) If within two years after the qualified investment was made, the qualified investor190 |
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221 | 221 | | participates in the operation of the qualified business. For the purpose purposes of this191 |
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222 | 222 | | paragraph, a qualified an investor participates in the operation of a qualified business if192 |
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223 | 223 | | the qualified investor, or the qualified investor's spouse, parent, sibling, or child, or a193 |
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224 | 224 | | business controlled by any of these individuals, provides services of any nature to the194 |
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225 | 225 | | qualified business for compensation, whether as an employee, a contractor, or otherwise. 195 |
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226 | 226 | | However, a person who provides uncompensated professional advice to a qualified196 |
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227 | 227 | | business, whether as an officer, a member of the board of directors or managers or197 |
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228 | 228 | | otherwise, or participates in a stock or membership option or stock or membership plan,198 |
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229 | 229 | | or both, shall be eligible for the credit;199 |
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232 | 232 | | (4) The amount of the credit recaptured shall apply only to the qualified investment in |
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233 | 233 | | 200 |
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234 | 234 | | the particular qualified business in which the investment was made;201 |
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235 | 235 | | (5) The amount of the recaptured tax credit determined under this subsection shall be202 |
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236 | 236 | | added to the qualified |
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237 | 237 | | investor's income tax liability for the taxable year in which the203 |
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238 | 238 | | recapture occurs under this subsection; and204 |
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239 | 239 | | (6) In the event the credit is recaptured because the qualified business ceases business205 |
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240 | 240 | | operations, dissolves, or liquidates, the qualified investor may claim either the credit206 |
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241 | 241 | | authorized under this Code section or any capital loss the qualified investor otherwise207 |
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242 | 242 | | would be able to claim regarding that qualified business, but shall not be authorized to208 |
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243 | 243 | | claim and be allowed both.209 |
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244 | 244 | | (i)(1) A qualified An investor seeking to claim a tax credit provided for under this Code210 |
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245 | 245 | | section shall submit an application to the commissioner for tentative approval of such tax211 |
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246 | 246 | | credit between September 1 and October 31 of the year for which the tax credit is claimed212 |
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247 | 247 | | or allowed. The commissioner shall promulgate the rules and forms on which the213 |
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248 | 248 | | application is to be submitted. Amounts specified on such application shall not be214 |
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249 | 249 | | changed by the qualified investor after the application is approved by the commissioner. 215 |
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250 | 250 | | The commissioner shall review such application and shall tentatively approve such216 |
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251 | 251 | | application upon determining that it meets the requirements of this Code section.217 |
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252 | 252 | | (2) The commissioner shall provide tentative approval of the applications by the date218 |
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253 | 253 | | provided in paragraph (3) of this subsection as follows:219 |
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254 | 254 | | (A) The total aggregate amount of all tax credits allowed to qualified investors or220 |
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255 | 255 | | pass-through entities for investments made in the 2011 calendar year and claimed and221 |
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256 | 256 | | allowed in the 2013 taxable year shall not exceed $10 million in such year;222 |
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257 | 257 | | (B) The total aggregate amount of all tax credits allowed to qualified investors or223 |
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258 | 258 | | pass-through entities for investments made in the 2012 calendar year and claimed and224 |
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259 | 259 | | allowed in the 2014 taxable year shall not exceed $10 million in such year;225 |
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262 | 262 | | (C) The total aggregate amount of all tax credits allowed to qualified investors or226 |
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263 | 263 | | pass-through entities for investments made in the 2013 calendar year and claimed and227 |
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264 | 264 | | allowed in the 2015 taxable year shall not exceed $10 million in such year;228 |
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265 | 265 | | (D) The total aggregate amount of all tax credits allowed to qualified investors or229 |
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266 | 266 | | pass-through entities for investments made in the 2014 calendar year and claimed and230 |
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267 | 267 | | allowed in the 2016 taxable year shall not exceed $5 million in such year;231 |
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268 | 268 | | (E) The total aggregate amount of all tax credits allowed to qualified investors or232 |
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269 | 269 | | pass-through entities for investments made in the 2015 calendar year and claimed and233 |
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270 | 270 | | allowed in the 2017 taxable year shall not exceed $5 million in such year;234 |
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271 | 271 | | (F) The total aggregate amount of all tax credits allowed to qualified investors or235 |
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272 | 272 | | pass-through entities for investments made in the 2016 calendar year and claimed and236 |
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273 | 273 | | allowed in the 2018 taxable year shall not exceed $5 million in such year;237 |
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274 | 274 | | (G) The total aggregate amount of all tax credits allowed to qualified investors or238 |
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275 | 275 | | pass-through entities for investments made in the 2017 calendar year and claimed and239 |
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276 | 276 | | allowed in the 2019 taxable year shall not exceed $5 million in such year; and240 |
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277 | 277 | | (H) The total aggregate amount of all tax credits allowed to qualified investors or241 |
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278 | 278 | | pass-through entities for investments made in the 2018 calendar year and claimed and242 |
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279 | 279 | | allowed in the 2020 taxable year shall not exceed $5 million in such year.243 |
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280 | 280 | | The aggregate amount of tax credits allowed pursuant to this Code section shall not244 |
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281 | 281 | | exceed $5 million in a calendar year.245 |
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282 | 282 | | (3) The commissioner shall notify each qualified investor of the tax credits tentatively246 |
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283 | 283 | | approved and allocated to such qualified investor by December 31 of the year in which247 |
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284 | 284 | | the application was submitted. In the event that the credit amounts on the tax credit248 |
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285 | 285 | | applications filed with the commissioner exceed the maximum aggregate limit of tax249 |
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286 | 286 | | credits under this subsection, then the tax credits shall be allocated among the qualified250 |
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287 | 287 | | investors who filed a timely application on a pro rata basis based upon the amounts251 |
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288 | 288 | | otherwise allowed by this Code section. Once the tax credit application has been252 |
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291 | 291 | | approved and the amount approved has been communicated to the applicant, the qualified253 |
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292 | 292 | | investor may then apply the amount of the approved tax credit to its tax liability for the254 |
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293 | 293 | | tax year for which the approved application applies.255 |
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294 | 294 | | (j) The commissioner shall report annually to the House Committee on Ways and Means256 |
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295 | 295 | | and the Senate Finance Committee on the percentage of tax credits for the previous taxable257 |
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296 | 296 | | year utilized under this Code section.258 |
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297 | 297 | | (k) The commissioner shall promulgate any rules and regulations necessary to implement259 |
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298 | 298 | | and administer this Code section.260 |
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299 | 299 | | (l) This Code section shall stand repealed and reserved on December 31, 2031."261 |
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300 | 300 | | SECTION 2.262 |
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301 | 301 | | This Act shall become effective on July 1, 2025, and shall be applicable to taxable years263 |
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302 | 302 | | beginning on or after such date.264 |
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303 | 303 | | SECTION 3.265 |
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304 | 304 | | All laws and parts of laws in conflict with this Act are repealed.266 |
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305 | 305 | | H. B. 8 |
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