Oklahoma 2024 Regular Session

Oklahoma House Bill HB2866 Compare Versions

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Version 2 (New)

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3		-	SENATE FLOOR VERSION - HB2866 SFLR Page 1
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	3	+	ENGR. H. B. NO. 2866 Page 1 1
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29		-	SENATE FLOOR VERSION
30		-	April 10, 2023
31		-
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33	28		ENGROSSED HOUSE
34		-	BILL NO. 2866 By: Wallace and Sims of the
35		-	House
	29	+	BILL NO. 2866 By: Wallace of the House
36	30
37	31		and
38	32
39	33		Coleman of the Senate
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45	40		An Act relating to revenue and taxation; amendi ng 68
46	41		O.S. 2021, Sections 2396 and 2397, which relate to
47	42		the Oklahoma Tourism Developmen t Act; modifying
48	43		length of allowable term; increasing cumulative
49	44		inducement cap amount; providing an effective date ;
50	45		and declaring an emergency .
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55	50		BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
56	51		SECTION 1. AMENDATORY 68 O.S. 2021, Section 2396, is
57	52		amended to read as follows:
58	53		Section 2396. A. Upon granting final approval, the Executive
59	54		Director of the Oklahoma Department of Commerce may enter into an
60	55		agreement with an approved company with respect to its touris m
61	56		attraction project. The terms and provisions of each agreement
62	57		shall include, but shall not be limited to:
63	58		1. The amount of approved costs, which shall be determin ed by
64	59		negotiations between the Executive Director and the appr oved
65	60		company;
	61	+	2. A date certain by which the approved company shall have
	62	+	completed the tourism attraction project or an individual component
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93		-	2. A date certain by which the approved company shall have
94		-	completed the tourism attraction project or an individual component
95	89		or phase of the project if the tourism attraction pr oject is an
96	90		Entertainment District. Within three (3) months o f the completion
97	91		date of the whole or an individual component or phase of the
98	92		project, the approved company shall document its actual costs of the
99	93		project through a certification of the costs by an independent
100	94		certified public accountant acceptable to the Executive Director;
101	95		and
102	96		3. The following provisions:
103	97		a. the term of the agreement shall may be up to ten (10)
104	98		years from the later of:
105	99		(1) the date of the final approval of the tourism
106	100		attraction project, or
107	101		(2) the completion date specified in the agreem ent,
108	102		if the completion date is within three (3) years
109	103		of the date of the final approval of the tourism
110	104		attraction project. However, the term of the
111	105		agreement may be extended for up to two (2)
112	106		additional years by the Executive Director, with
113	107		the advice and consent of the Oklahoma Ta x
114	108		Commission, if the Executive Director determines
115	109		that the failure to complete the tourism
	110	+	attraction project within three (3) years
	111	+	resulted from:
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143		-	attraction project within three (3) years
144		-	resulted from:
145	138		(a) unanticipated and unavoidable delay in the
146	139		construction of the tourism attra ction
147	140		project,
148	141		(b) an original completion date for the tourism
149	142		attraction project, as originally planned,
150	143		which will be more than three (3) years from
151	144		the date construction began, or
152	145		(c) a change in business structure resulting
153	146		from a merger or acquisition ,
154	147		b. in any tax year during which an agreement is in
155	148		effect, if the amount of sales tax to be remitted by
156	149		the approved company or an Entertainment District
157	150		Tenant Party, if applicable, exceeds t he sales tax
158	151		credit available to the approved company or
159	152		Entertainment District Tenant Pa rty, if applicable,
160	153		then the approved company or Entertainment District
161	154		Tenant Party, if applicable, shall pay the excess to
162	155		this state as sales tax,
163	156		c. within forty-five (45) days after the end of each
164	157		calendar year the approved company shall supply the
165	158		Executive Director with such reports and
166	159		certifications as the Executive Director may request
	160	+	demonstrating to the satisfaction of the Executive
	161	+	Director that the appro ved company is in compliance
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194		-	demonstrating to the satisfaction of the Executive
195		-	Director that the appro ved company is in compliance
196	188		with the provisions of the Oklaho ma Tourism
197	189		Development Act, and
198	190		d. the approved company or an Entertainment District
199	191		Tenant Party, if applicable, shall not receive an
200	192		inducement with respect to any calendar year if:
201	193		(1) with respect to any tourism attraction project
202	194		that is not an Entert ainment District in any
203	195		calendar year following the fourth year of the
204	196		agreement, the tourism attraction project fails
205	197		to attract at least fifteen percent (15%) of its
206	198		visitors from among person s who are not residents
207	199		of this state, or
208	200		(2) in any calendar year following the first ye ar of
209	201		the project or the tourism attraction project is
210	202		not operating and open to the public on a regular
211	203		and consistent basis, which for a tourism
212	204		attraction project t hat is an Entertainment
213	205		District shall mean that a substantial portion of
214	206		the Entertainment District is not operating and
215	207		open to the public on a regular and consistent
216	208		basis.
	209	+	B. The agreement shall not be transferable or assignable by the
	210	+	approved company without the written consent of the Executive
	211	+	Director but, with respect to a tourism at traction project that is
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244		-	B. The agreement shall not be transferable or assignable by the
245		-	approved company without the written consent of the Executive
246		-	Director but, with respect to a tourism attraction project that is
247	238		an Entertainment District, the approved company can elect to pass -
248	239		through all or a portion of the sales tax credit to one or more
249	240		Entertainment District Tenant Parties in accordance with Section
250	241		2397 of this title.
251	242		C. If the approved company utilizes or receives inducements
252	243		which are subsequently disallowed then the approved company will be
253	244		liable for the payment to the Tax Commission of an amo unt equal to
254	245		(i) all taxes resulting from the disallowance of the inducements
255	246		plus applicable penalties and interest, whether owed by the approved
256	247		company or an Entertainment District Tenant Party to which the
257	248		credits have been passed -through in accordance with Section 2397 of
258	249		this title, and/or (ii) all incentive pa yments previously received
259	250		by the approved company, plus applicable penalties and interest.
260	251		Only the approved company originally allowed a sales tax credit
261	252		shall be held liable to make such pay ments and not any Entertainment
262	253		District Tenant Party to whom the credit has been passed -through in
263	254		accordance with Section 2397 of this title.
264	255		D. The Executive Director shall provide a copy of each
265	256		agreement entered into with an approved company to the T ax
266	257		Commission.
	258	+	E. For a tourism attraction project that is an Entertainment
	259	+	District and anticipated to have multiple components or phases, the
	260	+	Executive Director may enter into more than one agreement with
	261	+	different approved companies for the different c omponents or phases
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294		-	E. For a tourism attraction project that is an Entertainment
295		-	District and anticipated to have multiple components or phases, the
296		-	Executive Director may enter into more than one agreement with
297		-	different approved companies for the different c omponents or phases
298	288		of the Entertainment District and such agr eements may be entered
299	289		into at different times as though the different components or phases
300	290		of the Entertainment District are their own separate project. In
301	291		such case, the Executive Director sh all not be required to obtain a
302	292		separate report (referred to i n subsection C of Section 2 394 of this
303	293		title) for each individual component or phase of the Entertainment
304	294		District, but only one report for the entire Entertainment District.
305	295		SECTION 2. AMENDATORY 68 O.S. 2021, Section 2397, is
306	296		amended to read as follows:
307	297		Section 2397. A. Upon receiving notification from the
308	298		Executive Director of the Oklahoma Department of Commerce that an
309	299		approved company has entered into a tourism pr oject agreement and is
310	300		entitled to the induceme nts provided by the Oklahoma Tourism
311	301		Development Act, the Oklahoma Tax Commission shall provide the
312	302		approved company with forms and instructions as necessary to claim
313	303		or receive or pass-through those inducemen ts.
314	304		B. An approved company whose agreement pro vides that it shall
315	305		expend approved costs of more than Five Hundred Thousand Dollars
316	306		($500,000.00) for a tourism attraction project but less than One
317	307		Million Dollars ($1,000,000.00) shall be entitled to a sale s tax
	308	+	credit if the company certifies to the Ta x Commission that it has
	309	+	expended at least the minimum amount in approved costs, and the
	310	+	Executive Director certifies that the approved company is in
	311	+	compliance with the Oklahoma Tourism Development Act. The Tax
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345		-	credit if the company certifies to the Ta x Commission that it has
346		-	expended at least the minimum amount in approved costs, and the
347		-	Executive Director certifies that the approved company is in
348		-	compliance with the Oklahoma Tourism Development Act. The Tax
349	338		Commission shall then issue a tax credit me morandum to the approved
350	339		company granting a sales tax credit in the amount of up to ten
351	340		percent (10%) of the approved costs, but limited to the percent of
352	341		the approved costs that will result in the project bei ng revenue-
353	342		neutral to the State of Oklahoma as determined by the Oklahoma
354	343		Department of Commerce. Subsequent requests for credit for
355	344		additional certified approved costs in excess of the minimum amount
356	345		for each project as listed in this subsection but less than One
357	346		Million Dollars ($1,000,000.00) shall result in a sales tax credit
358	347		in the amount of up to ten percent (10%) of the approved costs, but
359	348		limited to the percent of the approved costs that will result in the
360	349		project being revenue -neutral to the State of Oklahoma as determined
361	350		by the Oklahoma Depa rtment of Commerce. Sales tax credits all owed
362	351		pursuant to the provisions of the Oklahoma Tourism Development Act
363	352		shall not be transferable or assignable; provided that, with respect
364	353		to a tourism attraction pr oject that is an Entertainment District,
365	354		the approved company can elect to pass -through all or a portion of
366	355		the sales tax credit to one or more Entertainment District Tenant
367	356		Parties. The approved company and the Entertainment District Tenant
368	357		Party shall jointly file a copy of the written credit pass -through
	358	+	agreement with the Oklahoma Tax Com mission within thirty (30) days
	359	+	of the effective date of the agreement. Such filing of the
	360	+	agreement with the Oklahoma Tax Commission shall perfect such
	361	+	agreement. The written agreement shall contain the name, ad dress
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396		-	agreement with the Oklahoma Tax Commission within thirty (30) days
397		-	of the effective date of the agreement. Such filing of the
398		-	agreement with the Oklahoma Tax Commission shall perfect such
399		-	agreement. The written agreement shall contain the name, ad dress
400	388		and taxpayer identification number o f the parties to the agreement,
401	389		the amount of credit being passed -through, the month and year the
402	390		credit was originally allowed to the approved company, the month and
403	391		tax year or years for which the credit may be c laimed, and a
404	392		representation by the approv ed company that the approved company has
405	393		neither claimed for its own behalf nor conveyed such credits to any
406	394		other Entertainment District Tenant Party. The Tax Commis sion shall
407	395		develop a standard form for use by a n approved company and an
408	396		Entertainment District Tenant Party demonstrating eligibility for
409	397		the Entertainment District Tenant Party to utilize the sales tax
410	398		credit. The Tax Commission shall develop a system t o record and
411	399		track the pass-through of the sales tax credit and certify the
412	400		ownership of the sales tax credit and may promulgate rules to permit
413	401		verification of the validity and timeliness of a sales tax credit
414	402		claimed upon a sales tax return pursuant to t his subsection but
415	403		shall not promulgate any rul es which unduly restrict or hinder the
416	404		pass-through of such sales tax credit to an Entertainment District
417	405		Tenant Party.
418	406		An approved company whose agreement provides that it shall
419	407		expend approved costs in exces s of One Million Dollars
	408	+	($1,000,000.00) shall be entitled to a sales tax credit if the
	409	+	company certifies to the Tax Commission that it has expended at
	410	+	least One Million Dollars ($1,000,000.00) in approved costs and the
	411	+	Executive Director certifies that th e approved company is in
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447		-	($1,000,000.00) shall be entitled to a sales tax credit if the
448		-	company certifies to the Tax Commission that it has expended at
449		-	least One Million Dollars ($1,000,000.00) in approved costs and the
450		-	Executive Director certifies that th e approved company is in
451	438		compliance with the Ok lahoma Tourism Development Act. The Tax
452	439		Commission shall then issue a tax credit memorandum to the approved
453	440		company granting a sales tax credit in the amount of up to twenty -
454	441		five percent (25%) of the approved costs, but limited to the percent
455	442		of the approved costs that will result in the project being revenue-
456	443		neutral to the State of Oklahoma as determined by the Oklahoma
457	444		Department of Commerce. The credit on all subsequent additional
458	445		certified approved costs shall be in the amount of up to twenty -five
459	446		percent (25%) of the costs, but limited to th e percent of the
460	447		approved costs that will result in the project being revenue -neutral
461	448		to the State of Oklahoma as determined by the Oklahoma Department of
462	449		Commerce. For a tourism attraction project that is an Ente rtainment
463	450		District, an approved company ma y elect to receive an incentive
464	451		payment based on sales tax collections of Entertainment District
465	452		Tenant Parties rather than a sales tax credit. The incentive
466	453		payment shall be in the amount of up to twenty -five percent (25%) of
467	454		the approved costs but limit ed to the percent of the approved costs
468	455		that will result in the project being revenue -neutral to the State
469	456		of Oklahoma as determined by the Oklahoma Department of Comm erce;
470	457		provided that, (A) in no event shall the incentive payments exceed
	458	+	the increased state sales tax liability of the approved company and
	459	+	the Entertainment District Tenant Parties that is actually received
	460	+	by the Tax Commission, and (B) the approved com pany shall be
	461	+	entitled to receive only ten perc ent (10%) of the incentive payment
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498		-	the increased state sales tax liability of the approved company and
499		-	the Entertainment District Tenant Parties that is actually received
500		-	by the Tax Commission, and (B) the approved com pany shall be
501		-	entitled to receive only ten perc ent (10%) of the incentive payment
502	488		amount during each calendar year. The Tax Commission shall issue an
503	489		incentive payment memorandum to the approved company granting a
504	490		right to receive an incentive payment fro m the Tax Commission in the
505	491		amount of up to twenty-five percent (25%) of the approved cos ts but
506	492		limited to the percent of the approved costs that will result in the
507	493		project being revenue -neutral to the State of Oklahoma as determined
508	494		by the Oklahoma Depart ment of Commerce. As soon as practicable
509	495		after the end of each calendar year during the term of the
510	496		agreement, the approved company shall file a claim for the incentive
511	497		payment with the Tax Commission, and the Tax Commission shall be
512	498		responsible for ensur ing that the amount of the incentive payment
513	499		claimed does not exceed the increased state sales tax liability of
514	500		the approved company and the Entertainment District Tenant Parties
515	501		that has been actually received by the Tax Commission, which may
516	502		include accessing the Oklahoma sales tax returns of the
517	503		Entertainment District Tenant Parties as perm itted by this section.
518	504		The cumulative inducements provided pursuant to the Oklahoma
519	505		Tourism Development Act shall not exceed Fifteen Million Dollars
520	506		($15,000,000.00) Thirty Million Dollars ($30,000,000.00) per year.
	507	+	The Tax Commission shall require proof of expenditures prior to
	508	+	issuing a tax credit memorandum or incentive payment memorandum to
	509	+	the approved company which may be satisfied by a report from an
	510	+	independent certified public accountant. Additional credit
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548		-	The Tax Commission shall require proof of expenditures prior to
549		-	issuing a tax credit memorandum or incentive payment memorandum to
550		-	the approved company which may be satisfied by a report from an
551		-	independent certified public accountant. Additional credit
552	537		memoranda or incentive memoranda may be issued as the approved
553	538		company certifies additional expenditures of approved costs.
554	539		No tax credit memorandum or incentive payment memorandum shall
555	540		be issued for any app roved costs expended after the expiration of
556	541		three (3) years from the date the agreemen t was signed by the
557	542		Executive Director and the approved company. However, the Executive
558	543		Director, with the advice and consent of the Tax Commission, may
559	544		authorize inducements for approved costs expended up to five (5)
560	545		years from the date the agreement was signed if the Executive
561	546		Director determines that the failure to complete the tourism
562	547		attraction project within three (3) years resulted from:
563	548		1. Unanticipated and unav oidable delay in the construction of
564	549		the tourism attraction;
565	550		2. An original completion date for the tourism attraction, as
566	551		originally planned, which will be more than three (3) years from the
567	552		date construction began; or
568	553		3. A change in business ownership or business structure
569	554		resulting from a merger or acquisition.
570	555		C. A sales tax credit al lowed pursuant to the provisions of
571	556		this section may be used to offset a portion of the reported state
	557	+	sales tax liability of the approved company or an Entertainment
	558	+	District Tenant Party, if applicable, for all sales tax reporting
	559	+	periods following the i ssuance of the credit memorandum subject to
	560	+	the following limitations:
572	561
573		-	SENATE FLOOR VERSION - HB2866 SFLR Page 12
574		-	(Bold face denotes Committee Amendments) 1
	562	+	ENGR. H. B. NO. 2866 Page 12 1
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599		-	sales tax liability of the approved company or an Entertainment
600		-	District Tenant Party, if applicable, for all sales tax reporting
601		-	periods following the issuance of the credit memorandum subject to
602		-	the following limitations:
603	587		1. Only increased state sales tax liability may be offset by
604	588		the issued credit;
605	589		2. An approved company whose agreement provides that it shall
606	590		expend approved costs in excess of One Mi llion Dollars
607	591		($1,000,000.00) or an Entertainment District Party, if applicable,
608	592		shall be entitled to use only ten percent (10%) of the amount of
609	593		each issued credit to o ffset increased state sales tax liability
610	594		during each calendar year, plus the amount of any unused credit
611	595		carried forward from a prior calendar year, and an approved company
612	596		whose agreement provides that it shall expend approved costs of more
613	597		than the minimum amount for each project as listed in this
614	598		subsection but less than One Million Doll ars ($1,000,000.00) shall
615	599		be entitled to use only twenty percent (20%) of the amount of each
616	600		issued credit to offset increased state sales tax liability during
617	601		each calendar year, plus the amount of any unused credit carried
618	602		forward from a prior calendar y ear; and
619	603		3. All issued credit memoranda or incentive payment memorandum
620	604		shall expire at the end of the month following the expiration of the
621	605		agreement as provided in Se ction 2396 of this title.
	606	+	The approved company or an Entertainment District Tenant Part y,
	607	+	if applicable, shall have no obligation to refund or otherwise
	608	+	return any amount of this inducement to the person from whom the
	609	+	sales tax was collected.
622	610
623		-	SENATE FLOOR VERSION - HB2866 SFLR Page 13
624		-	(Bold face denotes Committee Amendments) 1
	611	+	ENGR. H. B. NO. 2866 Page 13 1
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648	635
649		-	The approved company or an Entertainmen t District Tenant Party,
650		-	if applicable, shall have no obligation to refund or otherwise
651		-	return any amount of this inducement to the person from whom the
652		-	sales tax was collected.
653	636		D. The Tax Commission shall promulgate rules as are necessary
654	637		for the proper administration of the Oklahoma Tourism Development
655	638		Act. The Tax Commission may also develop forms and instructions as
656	639		necessary for an approved company or Entertainment District Tenant
657	640		Party, if applicable, to claim or receive or pass -through the
658	641		inducements provided by the Ok lahoma Tourism Development Act.
659	642		E. The Tax Commission shall have the authority to obtain any
660	643		information necessary from or regarding the approved company or an
661	644		Entertainment District Tenant Party, if applicable, and the
662	645		Executive Director to verify that a pproved companies or an
663	646		Entertainment District Tenant Party, if applicable, have received
664	647		the proper amounts of inducements as authorized by the Oklahoma
665	648		Tourism Development Act. The Oklahoma Tax Commission shall demand
666	649		the repayment of any inducements ta ken or received in excess of the
667	650		inducements allowed by this act.
668	651		F. No sales tax credit or incentive payment right authorized by
669	652		this section shall be granted on or af ter January 1, 2026.
670	653		Notwithstanding the foregoing, an approved company that has enter ed
671	654		into a tourism attraction project agreement with the Oklahoma
672	655		Department of Commerce pursuant to Section 2396 of this title prior
	656	+	to January 1, 2026, shall continue t o be entitled to claim or
	657	+	receive any inducements authorized by this section as contemp lated
	658	+	by the tourism project agreement.
673	659
674		-	SENATE FLOOR VERSION - HB2866 SFLR Page 14
675		-	(Bold face denotes Committee Amendments) 1
	660	+	ENGR. H. B. NO. 2866 Page 14 1
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699	684
700		-	to January 1, 2026, shall continue t o be entitled to claim or
701		-	receive any inducements authorized by t his section as contemplated
702		-	by the tourism project agreement.
703	685		G. All currently approved tourism project agreements executed
704	686		by the Oklahoma Tourism and Recreation Department are hereby
705	687		transferred to the Oklahoma Department of Commerce upon the
706	688		effective date of this act November 1, 2021.
707	689		H. On the effective date of this act November 1, 2021, all
708	690		administrative rules promulgated by the Oklahoma Tourism and
709	691		Recreation Department regarding the Oklahoma Tourism Development Act
710	692		shall be transferred to and become a part of the administrative
711	693		rules of the Oklahoma Department of Commerce. The Office of
712	694		Administrative Rules in the Office of the Secretary of State shall
713	695		provide adequate notice in the Oklahoma Register of the transfer red
714	696		rules and shall place the transferred rules under the Administrative
715	697		Code section of the Oklahoma Department of Commerce. On the
716	698		effective date of this act November 1, 2021, any amendment, repeal
717	699		or addition to the transferred rules shall be under the jurisdiction
718	700		of the Oklahoma Department of Commerce, who shall have the auth ority
719	701		to enact rules in order to carry out the provisions of the Oklahoma
720	702		Tourism Development Act.
721	703		SECTION 3. This act shall become effective July 1, 2023.
722	704		SECTION 4. It being immediately necessary for the preservation
723	705		of the public peace, health or safety, an emergency is hereby
	706	+	declared to exist, by reason whereof thi s act shall take effect and
	707	+	be in full force from and after its passage and approval.
724	708
725		-	SENATE FLOOR VERSION - HB2866 SFLR Page 15
726		-	(Bold face denotes Committee Amendments) 1
	709	+	ENGR. H. B. NO. 2866 Page 15 1
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750	733
751		-	declared to exist, by reason whereof thi s act shall take effect and
752		-	be in full force from and after its passage and approval.
753		-	COMMITTEE REPORT BY: COMM ITTEE ON FINANCE
754		-	April 10, 2023 - DO PASS
	734	+	Passed the House of Representatives the 6th of March, 2023.
	735	+
	736	+
	737	+
	738	+
	739	+	Presiding Officer of the House
	740	+	of Representatives
	741	+
	742	+
	743	+
	744	+	Passed the Senate the ___ day of __________, 2023.
	745	+
	746	+
	747	+
	748	+
	749	+	Presiding Officer of the Senate
	750	+
	751	+