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ENGROSSED SENATE
BILL NO. 1177 By: Thompson (Roger) and Hall
of the Senate
and
Wallace and Martinez of the
House
An Act relating to eco nomic development; creating the
Perform Act; providing short title; defining terms;
creating investment rebate program; setting job
threshold requirements; providing for administration
of rebate program; requiring certain report to
specified persons; provi ding for promulgation of
rules; providing requirements for rebate eligibility;
prohibiting receipt of certain credits or rebate
payments under circumstances; prohibiting approval of
claims based on available funds; stipulating rebate
payment procedure; authorizing certain
prequalification of rebates for certain purposes;
prohibiting prequalification of re bates in excess of
certain fund amounts; creating the Perform Fund;
stating sources of funds; providing for expenditures
from fund; providing for transfer of funds to General
Revenue Fund under certain circumstances; providing
for codification; and declaring an emergency.
BE IT ENACTED BY THE PE OPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new sectio n of law to be codified
in the Oklahoma Statutes as Section 3646.1 of Title 68, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the “Perform Act”.
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SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3646.2 of Title 68, unless there
is created a duplication in numbering, reads as follows:
As used in the Perform Act:
1. “Application” means the submission to the Oklahoma
Department of Commerce of detailed information by an establishment
that complies with all procedures established by the Department
related to the format, content, means, and timing of the submission
of the application. A submission shall include, but not be limited
to, a capital expenditure plan detailing anticipated annual
placements-in-service of qualified property and a job creation plan
detailing anticipated annual tota ls of new direct jobs created;
2. “Available funds” means the total amount of monies
identified for deposit in the Perform Fund pursuant to this act ,
less the cumulative total of all rebate payments, pre-qualified
rebate payments, encumbrances, and pre-encumbrances of the Perform
Fund;
3. “Establishment” means any business including, but not
limited to, a sole proprietorship, partnership, corporation, or
limited liability company;
4. “New direct job” means full-time employment positions that
did not exist in this state prior to the date of approval of an
application made pursuant to this act. A job shall be deemed to
exist in this state prior to the approval date of an application if
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the activities and functions for which the particular job exists
have been ongoing on a full-time equivalent basis at any time within
six (6) months prior to the approval date; and
5. “Qualified capital expenditure” means an expenditure on
property in this state after April 1, 2023, depreciable under
Internal Revenue Code, 26 U.S.C., Section 168 , that has been
verified by the Oklahoma Department of Commerce.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3646.3 of Title 68, unless there
is created a duplication in numb ering, reads as follows:
A. 1. There is hereby created until July 1, 2032, an
investment rebate program for the cost of qualified capital
expenditures by an establishment that creates not less than a
threshold number of new direct jobs as provided in this section.
2. The threshold number o f new direct jobs required for
establishments to qualify and remain qualified for investment rebate
payments created in paragraph 1 of this subsection shall be as
follows:
a. one hundred new direct jobs for the first investment
rebate payment,
b. five hundred cumulative new direct jobs for the second
investment rebate payment,
c. eight hundred cumulative new direct jobs for the third
investment rebate payment ,
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d. eight hundred cumulative new direct jobs for the
fourth investment rebate payment , and
e. one thousand four hundred cumulative new direct jobs
for the fifth investment rebate payment .
B. The investment rebate program shall be administered by the
Oklahoma Department of Commerce and the Oklahoma Tax Commission.
C. By October 1 of each year, the Oklahoma Department of
Commerce shall submit electronically an annual report to the
President Pro Tempore of the Senate, the Chair of the Appropriations
Committee of the Senate, the Speaker of the House of
Representatives, the Chair of the Appropriations and Budget
Committee of the House of Representatives, and the Executive
Director of the Legislative Office of Fiscal Transparency detailing
the program and investment rebate payments.
D. The Oklahoma Department of Commerce an d the Oklahoma Tax
Commission may promulgate rules to implement the provisions of this
act.
E. To be eligible for consideration for an investment rebate
payment awarded under the provisions of this act, an establishment
shall:
1. Submit an application and documentation to the Oklahoma
Department of Commerce detailing a capital expenditure plan in this
state associated with qualified capital expenditures totaling no
less than One Billion Dollars ( $1,000,000,000.00);
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2. Have made qualified capital expenditures of no less than
twenty percent (20%) of the capital expenditure plan outlined in the
approved application;
3. Be qualified to receive payments pursuant to the provisions
of the Oklahoma Quality J obs Program Act created pursuant to Section
3601 et seq. of Title 68 of the Oklahoma Statutes; and
4. Have filed all Oklahoma tax returns and tax documents
required by law.
F. Notwithstanding any other provision of law, if an
establishment receives an investment rebate payment pursuant to the
provisions of this act, neither the qualified establishment nor its
subsidiaries shall be elig ible to receive the credits provided for
in Section 2357.4 of Title 68 of the Oklahoma Statutes or the
investment rebate payments provided pursuant to the Large -scale
Economic Activity and Development Act of 2022, in Section 3645.1 et
seq. of Title 68 of the O klahoma Statutes, in connection with the
project or development for which the investment rebate payment was
based.
G. Notwithstanding any other provision of law, no investment
expenditure shall be utilized for calculation purposes that result
in the qualification of more than one establishment under the
provisions of this act, for investment rebate payments based on the
same expenditure.
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H. Except as limited by subsection I of this section, the
Oklahoma Department of Commerce shall approve or disapprove claims
for rebates and shall notify the Tax Commission. Upon notification
of approval from the Department, the Commission shall issue payment
for all approved claims from funds held in the Perform Fund created
pursuant to Section 5 of this act and subject to t he limitations set
forth in Section 4 of this act.
I. The Department shall disapprove all or any portion of
applications and claims for rebates that would exceed the balance of
available funds in the Perform Fund. The total amount of
applications approved and investment rebate payments awarded under
the provisions of this act shall not exceed the total amount of
monies designated by law for deposit to the Perform Fund.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statu tes as Section 3646.4 of Title 68, unless there
is created a duplication in n umbering, reads as follo ws:
A. Subject to the approval and ongoing review of the
eligibility application by the Oklahoma Department of Commerce, the
investment rebate payment authorized by this act shall be equal to
ten percent (10%) of the cost of the qualified capital expendit ures
to be paid upon claims made by the establishment as provided for in
subsection B of this section . An establishment shall not be
eligible to submit mo re than one claim per calendar year.
B. Investment rebate payments shall be made as follows:
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1. Upon the first claim of the establishment, ten percent (10%)
of the cumulative qualified capital expenditures made by the
establishment, with the first invest ment rebate payment not to
exceed Thirty-six Million Dollars ( $36,000,000.00);
2. Upon the second claim of the establishment, ten percent
(10%) of the qualified capital expenditures made by the
establishment subsequent to the first claim, plus any preceding
qualified capital expenditures for which an investment rebate
payment was not made due to the limitation provided in paragraph 1
of this subsection, with the second investment rebate payment not to
exceed Thirty-six Million Dollars ($36,000,000.00) plus the
difference, if any, between the investment rebate payment made upon
the first claim and Thirty-six Million Dollars ($36,000,000.00);
3. Upon the third claim of the establishment , ten percent (10%)
of the qualified capital expenditures made by the est ablishment,
subsequent to the second claim plus any preceding qualified capital
expenditures for whic h an investment rebate payment was not m ade due
to the limitation provided in paragraph 2 of this subsection, with
the third investment rebate pa yment not to exceed Thirty-six Million
Dollars ($36,000,000.00) plus the difference, if any, between the
investment rebate payment made upon the second claim and the
limitation provided in paragraph 2 of this subsection;
4. Upon the fourth claim of the establishment, ten percent
(10%) of the qualified capital expenditures made by the
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establishment subsequent to the third claim, plus any preceding
qualified capital expenditures for which an investment rebate
payment was not made due to the limitation prov ided in paragraph 3
of this subsection, with the fourth investment rebate payment not to
exceed Thirty-six Million Dollars ($36,000,000.00) plus the
difference, if any, between the investment rebate payment made upon
the third claim and the limitation provided in para graph 3 of this
subsection; and
5. Upon the fifth claim of the establishment, ten percent (10%)
of the qualified capital expenditures made b y the establishment
subsequent to the fourth claim, plus any preceding qualified capital
expenditures for which an investment rebate payment was no t made due
to the limitation provided in paragraph 4 of this subsection, with
the fifth investment rebate payment not to exceed Thirty -six Million
Dollars ($36,000,000.00) plus the difference, if any, between the
investment rebate payment made upon the fourth claim and the
limitation provided in paragraph 4 of this subsection.
C. The Department is authorized to conditionally pre-qualify
and account for anticipated future investment rebate payments. The
Department shall not pre-qualify investment rebate p ayments,
encumber funds, pre-encumber funds, or otherwise allocate resources
in any way that would result in the allocation of investment rebate
payments in excess of the balance of available funds in the Perform
Fund.
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SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3646.5 of Title 68, unless there
is created a duplication in numbering, reads as follows:
A. There is hereby created in the State Treasury a fund for the
Oklahoma Tax Commission to be designated the “Perform Fund”. The
fund shall be a continuing fund, not subject to fiscal year
limitations, and shall consist of all monies designated for deposit
to the fund by law. All monies accruing to the credit of the fund
are hereby appropriated and may be budgeted and expended by the Tax
Commission for the purpose of paying rebates as provided in the
Perform Act. Expenditures from the fund shall be made upon warrants
issued by the State Treasurer agains t claims filed as prescribed by
law with the Director of the Office of Manageme nt and Enterprise
Services for approval and payment.
B. All unencumbered funds remaining in the Perform Fund upon
the expiration of the investment rebate program provid ed in
subsection A of Section 3 of this act shall be transferred to the
State Treasurer for deposit in the General Revenue Fund.
SECTION 6. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
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Passed the Senate the 10th day of May, 2023.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2023.
Presiding Officer of the House
of Representatives