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Tax Incentives

Alabama Department of Revenue - Tax Incentives - Capital Credit

The Income Tax Capital Credit

Summary

The Income Tax Capital Credit has been available since 1995. This legislation is currently codified as Article 7, Chapter 18, Title 40, Code of Alabama 1975. The purpose of this law is to create jobs and to stimulate business and economic growth in the state by providing an income tax capital credit for approved projects.

The capital credit is a credit of up to five percent (5%) of the capital costs of a qualifying project, to be applied to the Alabama income tax liability or financial institution excise tax generated by the project income, each year for 20 years. This credit cannot be carried forward or back (you use it or lose it), and cannot be used to generate a refund to the taxpayer. The capital credit is used only after all other deductions, losses, or credits permitted under Titles 40 and 41 of the Code of Alabama 1975. The credit will follow the income generated by the project and, therefore, will be allowed to "pass-through" entities such as: S-corporations, partnerships, limited liability companies, etc.

Types of Capital Credit Projects

New Project or Expansion Project

The law defines projects in Section 40-18-190(11,12,13). A project consists of new investment at a new site in Alabama, or new investment that will expand the capacity and the number of employees at an existing facility. The law allows more than one project on the same site. A company may have any number of projects in Alabama, as long as each project meets the statutory requirements for a qualifying project.

For a project which expands an existing facility, the purpose of the expansion must be indicated in the description of the expansion project on the Form INT. Particular attention should be paid to record-keeping for an expansion project, because the income, number of employees, and wages for the expansion project must be identified separately from the same items at the existing facility. Particular attention should also be paid to whether the expansion includes replacement equipment, and whether those costs can be included in capital costs. By regulation (810-2-7-.01), replacement equipment cannot be included in the capital costs of a project, unless it is upgraded equipment that increases capacity by 50%, decreases production time by 50%, or performs an additional function.

Small Business Addition

Under Section 40-18-190(17), a small business addition is an addition to an existing facility of a small business. A small business is a business located in Alabama that has 100 or fewer full-time employees, prior to the date on which the addition is placed in service.

Statutory Requirements for the Capital Credit

Business Activity Requirement

  • Industrial, Warehousing or Research Activity - Any trade or business in the 2007 North American Industrial Classification System (NAICS), promulgated by the Executive Office of the President of the United States, Office of Management and Budget as:
    • Sectors 31 (except National Industry 311811), 32, and 33 (manufacturing),
    • Subsector 423 and 424 (merchant wholesalers, goods),
    • 511 (publishing industries (except internet)),
    • 927 (space research and technology),
    • Industry Group 2121 (coal mining),
    • 5417 (scientific research and development services),
    • 5415 (computer systems design and related services),
    • 5182 (data processing, hosting, and related services),
    • Industry 11331 (logging),
    • 48691 (pipeline transportation of refined petroleum products),
    • National Industry 115111 (cotton ginning),
    • 517110 (wired telecommunications carriers),
    • 541380 (testing laboratories),
    • 561422 (in bound call centers only), or...
  • Any process or treatment facility which recycles, reclaims, or converts materials, which include solids, liquids, or gases, to a reusable product;
  • Headquarters facilities as defined in NAICS 551114;Warehousing activity projects (NAICS Subsector 493, projects which provide logistics services related to the distribution of goods);
  • Data processing centers;
  • Renewable energy facilities;
  • Research & development facilities;
  • Tourism destination attractions;
  • Projects owned by utilities that produce electricity from alternative energy resources; or
  • Projects owned by utilities that produce electricity from hydropower production.

Capital Cost Requirement (Section 40-18-190(13))

  • At least $500,000 for projects located in favored geographic areas, except headquarters facilities, warehousing activity projects and utility owned projects;
  • $1,000,000 for small business addition projects and "warehousing activity projects*" located in favored geographic areas;
  • $2,000,000 for industrial, warehousing or research activity projects, data processing centers, research & development facilities, renewable energy facilities, and headquarters facilities;
  • $5,000,000 for "warehousing activity projects," tourism destination attraction projects located in favored geographic areas and utility owned projects producing electricity from hydropower production;
  • $20,000,000 for tourism destination attraction projects; or
  • $100,000,000 for utility owned projects producing electricity from alternative energy resources.

*Warehousing activity projects fall under NAICs subsector 493 and are not included in the "industrial, warehousing or research activity" category.

Employment Requirement (Section 40-18-193(a))

  • At least 50 new employees at headquarters facilities, "warehousing activity projects" and tourism destination attraction projects;
  • At least 20 new employees at industrial, warehousing or research activity projects, data processing centers, research & development facilities, renewable energy facilities, utility owned projects and tourism destination projects located in favored geographic areas;
  • At least 15 new employees at small business addition projects;
  • At least 5 new employees at projects located in favored geographic areas except headquarters facilities, "warehousing activity projects," and tourism destination projects.

New employees must meet the statutory definition of new employees, found in Section 40-18-190(10). "New employees" cannot have worked at the site before and cannot have worked for the project entity in Alabama before. Required jobs must be provided by the date that is not later than one (1) year after the project is placed in service, continuing each year thereafter. Required jobs and average base wages for "warehousing activity projects" must be provided by the date that is not later than two (2) years after the project is placed in service and continuing each year thereafter.

Pursuant to Section 40-18-193(a), an investing company's qualifying project must create a net increase in employment. If an investing company places a qualifying project in service within two years of reducing its workforce, only the number of employees in excess of the number of employees who worked at the existing facility prior to the reduction shall be deemed to be new employees for the capital credit. The Department may require a two year look back period to determine if the existing employee base decreased prior to or during the commencement of the project. Further, if an investing company places a qualifying project in service within two years of closing a facility, only the number of employees in excess of the number of employees who worked at the existing facility prior to the closure shall be deemed to be new employees for the capital credit.

Wage Requirement

Section 40-18-193(a) requires the average wages for all new employees at the qualifying project be not less than the base wage requirement no later than one year after the project is placed in service and during each year the capital credit is available with respect to the qualifying project. Section 40-18-190(1) defines the base wage requirements for new employees for purposes of the capital credit.

For qualifying projects in which the investing company filed a Form INT with the Alabama Department of Revenue on or before November 21, 2009, the base wage requirement is defined as either an average hourly wage of not less than eight dollars ($8) per hour, or an average hourly compensation, including benefits, of not less than ten ($10) per hour.

For qualifying projects in which the investing company files a Form INT with the Alabama Department of Revenue after November 21, 2009, the base wage requirement is defined as the lesser of a set average hourly wage rate, indexed annually as provided in Section 25-5-68, or the average hourly wage of the county where the qualifying project is located. The indexed wages and county wages are updated every January 1. The average wage requirement for the project is determined in the year the Form INT is filed with the Department and will be the required average minimum wage the project must meet throughout the life of the capital credit. For these projects, benefits are not included in determining the average wage requirement; however, overtime and bonuses are included.

  • Projects located in a favored geographic area, the average wage of all new employees must meet the lesser of:
    • The annual indexed hourly rate:
      • For Form INTs received in calendar year 2013, $12.69
      • For Form INTs received in calendar year 2012, $12.44
    • Average hourly wage of the county where the qualifying project is located:
    • All other projects, the average wage of all new employees must meet the lesser of:
      • The annual indexed hourly rate:
        • For Form INTs received in calendar year 2013, $15.85
        • For Form INTs received in calendar year 2012, $15.55
      • Average hourly wage of the county where the qualifying project is located:

There is an exception for direct processors of agriculture food products. These wages shall be determined by the local labor market rate. Contact the ADOR Office of Economic Development (334-242-1175) for more information.

Filing Requirements for Form INT

Qualifying projects can be set up as either a "one step" project or as a "phased" project. A company seeking the capital credit must file a "Written Statement of Intent" (Form INT) with the Department of Revenue prior to the date the project is placed in service, as required by Section 40-18-191. If the Form INT is not received by the department before the project is placed in service, the project will not qualify for the capital credit. Placed in service is defined in Departmental Rule 810-2-7-.01(2)(t) as the earlier of the date the qualifying project's depreciation begins or the day the qualifying project begins a specifically designed function for the production of revenues. Please note the Form INT must be filed before any asset has been placed in service. However, for phased projects, the Form INT must be submitted before the first phase is placed in service and the capital credit cannot be utilized until the last phase is placed in service.

Per Section 41-9-202.1, a "notification acknowledgment letter" from the Department of Commerce is required to be issued before the Form INT can be processed. For a notification letter to be issued, the Department of Commerce must be notified of the project perimeters, which includes a brief description of the project, capital investment, new jobs, location and the estimated date the project will be placed in service. The notification letter is usually initiated by the applicable local economic developer. Please contact your local economic developer to ensure the notification letter has been issued, or contact the Department of Commerce at 334-242-0400.

Pursuant to the Immigration Act, in order to receive state or other public incentives, any business entity that employs one or more employees shall not knowingly employ, hire for employment, or continue to employ an unauthorized alien, and shall provide documentation establishing that the business entity or employer is enrolled in the e-Verify program.

Other Filing Requirements

  1. A company must file a report of investment in project (Form INT-2) when the project is placed in service.
  2. A company must file an Accounting Practices Agreement with the Department (under Section 40-18-192) before the capital credit can be utilized. This agreement denotes how the income from the project will be determined and is not necessarily the same method used in determining Alabama income.
  3. Once the project has been placed in service and the Form INT-2 has been filed and accounting practices agreement has been executed, annual forms must be attached to the income tax return(s) claiming the capital credit. For more information, see the Capital Credit Forms page.

Extension and Carry Forward Provisions

For projects that are placed in service after December 31, 2011, and in which a state project agreement has been entered into, certain carry forward and delay of credit provisions are allowed:

  • Projects with at least $100,000,000 and 100 jobs can delay the start of the capital credit up to three years after the project is placed in service;
  • Projects with at least 100 jobs and at least $100,000,000 investment but less than $200,000,000 can carry forward the capital credit one year;
  • Projects with at least 100 jobs and at least $200,000,000 investment but less than $300,000,000 can carry forward the capital credit two years;
  • Projects with at least 100 jobs and at least $300,000,000 investment but less than $400,000,000 can carry forward the capital credit three years;
  • Projects with at least 100 jobs and more than $400,000,000 investment can carry forward the capital credit four years.

Noncompliance Provisions

Minimum statutory requirements must be met by the first year the project is placed in service and maintained annually thereafter to receive the credit. Each qualifying project must meet minimum statutory requirements by the first year the project is placed in service or the project becomes ineligible for the credit. After the first year, minimum requirements must be met to be eligible to receive the annual credit. However, after the first year, the law allows a project to fall below minimum employee and wage requirements for up to three of the twenty years of the life of the credit. No credit is available in a noncompliance year. After the third noncompliance year, the project is disqualified from the capital credit program.

For qualifying projects in which the investing company files Form INT with the Alabama Department of Revenue after May 22, 2009, if the qualifying project meets the minimum requirements by the first year but fails to meet such requirements in a subsequent year, the investing company shall forfeit a percentage of the capital credits claimed in the prior five years as follows:

  • 100% of the capital credit claimed in the year immediately preceding the year in which the investing company fails to maintain the employment and wage requirements (noncompliance year); and
  • 20% of the credits claimed in the 2nd, 3rd, 4th, and 5th years preceding the noncompliance year.

Other Considerations for Capital Credit Projects

Multiple Phase Project

By regulation 810-2-7-.01, a multiple phase project is any project which will be completed in stages or phases of investment as determined by the project entity. This type of project will have the option of filing as one project with the capital credit beginning when the last phase is placed in service, or filing each phase as a separate project. If the phases are to be treated as one project, each investment stage must be identified in the project description on the Form INT filed with the Department. Further, the statement of intent must be filed with the Department before any stages of investment (i.e., assets) are placed in service. However, if each stage is to be treated as a separate project, each phase must independently meet the four requirements for the capital credit and a Form INT must be filed for each separate project.

Please note the credit begins when the placed is service date is triggered (i.e., production of revenue starts). If additional assets for the project will be purchased after this date, the project should be filed as a phased project to prevent these capitalized costs from being disallowed for determining the annual capital credit available. The capital credit will not start until the last phase (i.e., assets) of the qualifying project is in service.

Joint Ventures

Under Section 40-18-193(b), a joint venture is any form of business entity entered into by one or more investing companies in connection with a qualifying project. A project entity must be created by the investing companies in a joint venture to simplify the reporting for income tax purposes. However, in the case of a joint venture, careful attention should be made regarding the method for allocation of income to determine whether the allocation has substantial economic effect.

CONTACT US:

Questions regarding the applicability of the capital credit and how to qualify should be directed to:

Kelly Graham, Capital Credit Program Administrator
Office of the Commissioner of Revenue
P.O. Box 327001
Montgomery, Alabama 36132-7001
Telephone: 334-242-1175 / Direct Line 334-242-1188
e-mail: kelly.graham@revenue.alabama.gov