PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-15-039.
Title of Rule: WAC 458-20-24001 Sales and use tax deferral -- Manufacturing and research/development activities in distressed areas -- Applications filed after July 31, 1999, and 458-20-24001A Sales and use tax deferral -- Manufacturing and research/development activities in distressed areas -- Applications filed prior to August 1, 1999.
Purpose: These rules explain the sales and use tax deferral program for manufacturers and research and development facilities in distressed areas as provided by chapter 82.60 RCW. They provide definitions, guidance on the use of the deferral certificate, and the record-keeping requirements of the distressed area deferral program.
Statutory Authority for Adoption: RCW 82.32.300 and 82.01.060.
Statute Being Implemented: RCW 82.60.010 - 82.60.110.
Summary: These rules explain the eligible area criteria, application procedure and review process, hiring requirements, reporting and monitoring procedures, and the repayment of deferred retail sales and use taxes for the sales and use tax deferral program for manufacturers and research/development facilities located in distressed areas. They also provide definitions, guidance on the use of the deferral certificate, and an explanation of the record-keeping requirements of the deferral program.
Reasons Supporting Proposal: To clarify existing definitions in Rule 24001 and 24001A, add new definitions to Rule 24001, explain the application of interest and penalties in Rule 24001, and correct an inaccurate definition of "person" in Rule 24001A.
Name of Agency Personnel Responsible for Drafting: Cindy Evans, 1025 Union Avenue S.E., Suite #400, Olympia, WA, (360) 570-6134; Implementation: Alan R. Lynn, 1025 Union Avenue S.E., Suite #400, Olympia, WA, (360) 570-6125; and Enforcement: Russell Brubaker, 1025 Union Avenue S.E., Suite #400, Olympia, WA, (360) 570-6131.
Name of Proponent: Department of Revenue, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: WAC 458-20-24001 and 458-20-24001A implement the distressed area sales and use tax deferral statutes and explain the administrative procedures for the program.
The department anticipates making the following changes to Rule 24001:
• Subsection (2), clarifying existing definitions and adding a new definition for "date of application";
• Subsection (5), clarifying the explanation of the apportionment formula (no change to the formula provided in the rule) for building construction and providing an additional formula to provide flexibility to taxpayers;
• Subsection (7), explaining that the department will consider approving an application only if construction will begin within one year or the applicant can establish that there is a specific and active program to begin construction within two years; and
• Subsection (13), explaining that in the case of a project no longer satisfying required employment positions, while no interest or penalties apply to the deferred sales or use taxes found owing, other penalties and interest that apply to delinquent payments will apply. Subsection (13) currently explains that interest but not penalties apply to taxes found owing.
The department anticipates making the following changes to Rule 24001A:
• Subsections (4), (17), and (30), clarifying the explanation of the apportionment formula for building construction (no change to the formula provided in the rule); and
• Subsection (27), correcting an inaccurate definition of "person."
Proposal Changes the Following Existing Rules: The department is proposing to revise WAC 458-20-24001 and 458-20-24001A as explained above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The rule does not impose any performance requirement upon any small business that is not already separately imposed by existing laws.
RCW 34.05.328 does not apply to this rule adoption. This is an interpretive rule as defined in RCW 34.05.328.
Hearing Location: Capital Plaza Building, 4th Floor, Large Conference Room, 1025 Union Avenue S.E., Olympia, WA, on December 2, 2003, at 9:30 a.m.
Assistance for Persons with Disabilities: Contact Sandy Davis no later than ten days before the hearing date, TTY 1-800-451-7985 or (360) 725-7499.
Submit Written Comments to: Cindy Evans, Department of Revenue, P.O. Box 47467, Olympia, WA 98504-7467, fax (360) 664-0693, e-mail CindyEV@dor.wa.gov, by December 2, 2003.
Date of Intended Adoption: December 9, 2003.
October 7, 2003
Alan R. Lynn
Rules Manager
Legislation and Policy Division
OTS-6700.1
AMENDATORY SECTION(Amending WSR 01-12-041, filed 5/30/01,
effective 6/30/01)
WAC 458-20-24001
Sales and use tax
deferral -- Manufacturing and research/development activities in
distressed areas -- Applications filed after July 31, 1999.
(1)
Introduction. Chapter 82.60 RCW establishes a sales and use
tax deferral program. The purpose of the program is to
promote economic stimulation, create employment opportunities,
and reduce poverty in certain areas of the state. The
legislature established this program to be effective solely in
those areas and under circumstances where the deferral is for
investments that result in the creation of a specified minimum
number of jobs or investment for a qualifying project.
(a) This deferral program applies to taxes imposed on the construction of qualified buildings or acquisition of qualified machinery and equipment and requires the recipient of the deferral to maintain the manufacturing or research and development activity for an eight-year period. This rule does not address RCW 82.08.02565 and 82.12.02565, which provide a statewide sales and use tax exemption for machinery and equipment used directly in a manufacturing operation. Refer to WAC 458-20-13601 for more information regarding the statewide exemption.
(b) This program was first enacted in 1985. The legislature made major revisions to program criteria in 1993, 1994, 1995, 1996, and 1999, specifically to the definitions of "eligible area," "eligible investment project," and "qualified building." Each revision created additional criteria for prospective applicants. This rule sets forth the requirements for applications made after July 31, 1999. For applications made prior to August 1, 1999, see WAC 458-20-24001A.
(c) The employment security department and the department of community, trade, and economic development administer programs for distressed areas and job training and should be contacted directly for information concerning these programs.
(2) Definitions. The following definitions apply to applications made after July 31, 1999.
(a) "Acquisition of equipment or machinery" means the equipment and machinery is under the dominion and control of the recipient.
(b) "Applicant" means a person applying for a tax deferral under chapter 82.60 RCW.
(c) "Certificate holder" means an applicant to whom a tax deferral certificate has been issued.
(d) "Computer-related services" means ((services that are
connected or interact directly in the manufacture of computer
hardware or software or the)) activities such as programming
((of)) for the manufactured ((hardware. This includes the
manufacture of hardware such as chips, keyboards, monitors,
any other hardware, and the components of these items))
product. It includes creating operating systems ((and)),
software, and other similar goods that will be copied and sold
as canned software. "Computer-related services" does not
include information services, such as data or information
processing. The activities performed by the manufacturer to
test, correct, revise, or upgrade software or hardware before
they are approved for sale to the consumer are considered
computer-related services.
(e) "Date of application" means the date of the U.S. Post Office postmark, fax, or electronic transmittal, or when the application is hand delivered to the department. The statute in effect on the "date of application" will determine the program criteria the applicant must satisfy.
(f) "Department" means the department of revenue.
(((f))) (g) "Eligible area" means:
(i) Rural county. A rural county is a county with fewer than one hundred persons per square mile as determined annually by the office of financial management and published by the department of revenue effective for the period July 1st through June 30th; or
(ii) Community empowerment zone (CEZ). A "community empowerment zone" means an area meeting the requirements of RCW 43.31C.020 and officially designated as a CEZ by the director of the department of community, trade, and economic development or a county containing a CEZ.
(((g))) (h) "Eligible investment project" means an
investment project in an eligible area. "Eligible investment
project" does not include an investment project undertaken by
a light and power business as defined in RCW 82.16.010, other
than that portion of a cogeneration project that is used to
generate power for consumption within the manufacturing site
of which the cogeneration project is an integral part. It
also does not include an investment project that has already
received a deferral under chapter 82.60 RCW.
(((h))) (i) "Industrial fixture" means an item attached
to a building or to land. ((Fixtures become part of the real
estate to which they are attached and upon attachment are
classified as real property, not personal property.)) Examples of "industrial fixtures" are fuel oil lines, boilers,
craneways, and ((certain)) improvements to land such as
concrete slabs.
(((i))) (j) "Initiation of construction," in regards to
the construction, expansion, or renovation of buildings, means
the commencement of on-site construction work. Neither
planning nor land clearing prior to excavation of the building
site ((does not commence)) constitutes the commencement of
on-site construction ((nor does planning commence
construction)) work.
(((j))) (k) "Investment project" means an investment in
qualified buildings or qualified machinery and equipment,
including labor and services rendered in the planning,
installation, and construction of the project. When an
application for sales and use tax deferral is timely
submitted, costs incurred before the application date are
allowable, if they otherwise qualify.
(((k))) (l) "Manufacturing" has the meaning given in RCW 82.04.120. Manufacturing also includes computer programming,
the production of computer software, and other
computer-related services, and the activities performed by
research and development laboratories and commercial testing
laboratories.
(((l))) (m) "Operationally complete" means the project is
capable of being used for its intended purpose as described in
the application.
(((m))) (n) "Person" has the meaning given in RCW 82.04.030. "Person" does not include the state of Washington
or its institutions. "Person" can be either a lessee or a
lessor, who can apply separately for individual investment
projects at the same site, if they comply with the other
requirements of chapter 82.60 RCW. The lessor/owner of the
structure is not eligible for deferral unless the underlying
ownership of the buildings, machinery, or equipment vests in
the lessor/owner, or unless the lessor has by written contract
agreed to pass the economic benefit of the deferral to the
lessee in the form of reduced rent payments.
(((n))) (o) "Qualified buildings" means construction of
new structures and expansion or renovation of existing
structures for the purpose of increasing floor space or
production capacity, used for manufacturing and research and
development activities.
"Qualified buildings" are limited to structures used for manufacturing and research and development activities. "Qualified buildings" include plant offices and warehouses if such facilities are essential to or an integral part of a factory, mill, plant, or laboratory. "Office" means space used by professional, clerical, or administrative staff. For plant office space to be a qualified building its use must be essential or integral to the manufacturing or research and development operation. Office space that is used by supervisors and their staff, by technicians, by payroll staff, by the safety officer, and by the training staff are examples of qualifying office space. "Warehouse" means buildings or facilities used for the storage of raw materials or finished goods.
(((o))) (p) "Qualified employment position" means a
permanent full-time employee employed in the eligible
investment project during the entire tax year. The "entire
tax year" means the full-time position is filled for a period
of twelve consecutive months. Full-time means at least
thirty-five hours a week, four hundred fifty-five hours a
quarter, or one thousand eight hundred twenty hours a year.
(((p))) (q) "Qualified machinery and equipment" means all
new industrial and research fixtures, equipment, and support
facilities that are an integral and necessary part of a
manufacturing or research and development operation. "Qualified machinery and equipment" includes computers, desks,
filing cabinets, photocopiers, printers, software, data
processing equipment, laboratory equipment; manufacturing
components such as belts, pulleys, shafts and moving parts;
molds, tools and dies; operating structures; and all equipment
used to control or operate machinery. It also includes
machinery and equipment acquired under the terms of a lease by
the recipient. "New" as used in this subsection means either
new to the taxing jurisdiction of the state or new to the
certificate holder.
(((q))) (r) "Recipient" means a person receiving a tax
deferral under this program.
(((r))) (s) "Research and development" means the
development, refinement, testing, marketing, and
commercialization of a product, service, or process before
commercial sales have begun. As used in this subsection,
"commercial sales" excludes sales of prototypes or sales for
market testing if the total gross receipts from such sales of
the product, service, or process do not exceed one million
dollars.
(((s))) (t) "Resident" means the person who fills the
qualified employment position makes his or her home in the
CEZ. A mailing address alone is insufficient to establish
that a person is a resident.
(3) Issuance of deferral certificate. The department will issue a sales and use tax deferral certificate for state and local sales and use taxes due under chapters 82.08, 82.12, and 82.14 RCW for an eligible investment project. The department will state on the certificate the amount of tax deferral for which the recipient is eligible. Recipients must keep track of how much tax is deferred.
(4) Eligible investment amount. There may or may not be a hiring requirement, depending on the location of the project.
(a) No hiring requirements. There are no hiring requirements for qualifying projects located in counties with fewer than one hundred persons per square mile. Monitoring and reporting procedures are explained in subsection (12) of this rule. Buildings that will be used partly for manufacturing or research and development and partly for other purposes are eligible for a deferral on a proportionate basis. Subsection (5) of this rule explains the procedure for apportionment.
(b) Hiring requirements. There are hiring requirements for qualifying projects located in CEZs or in counties containing CEZs. The applicant applies for a deferral of investment that correlates to the estimated number of persons to be hired based on the following formula:
Number of qualified employment positions to be hired x
$750,000 = amount of investment eligible for deferral
Applicants must make good faith estimates of anticipated
hiring. The recipient must fill the positions by persons who
at the time of hire are residents of the CEZ. The department
has instituted a geographic information system (GIS) to assist
taxpayers in determining taxing jurisdiction boundaries, local
tax rates, and a mapping and address lookup system to
determine whether a specific address is within a CEZ. The
system is available on the department's Internet website at
http://www.dor.wa.gov. A recipient must fill the qualified
employment positions by the end of the calendar year following
the year in which the project is certified as operationally
complete and retain the position during the entire tax year. If the recipient does not fill the qualified employment
positions by the end of the second calendar year following the
year in which the project is certified as operationally
complete, all deferred taxes are immediately due.
(5) Apportionment of costs between qualifying and
nonqualifying investments. The deferral is allowable only in
respect to investment in the construction of a new building or
the expansion or renovation of existing buildings used in
manufacturing, research and development, ((and)) or commercial
testing laboratories.
(a) Where a building(s) is used partly for manufacturing
or research and development and partly for purposes that do
not qualify for deferral under this rule, the deferral will be
determined by one of the following apportionment ((of the
total project costs)) methods. The first method of
apportionment is based on square footage and does not require
tracking the costs of materials for the
qualifying/nonqualifying areas of a building. The second
method of apportionment tracks the costs of materials used in
the qualifying/nonqualifying areas and is primarily used by
those industries with specialized building requirements.
(i) The applicable tax deferral will be determined by
apportionment according to the ratio of the ((construction
cost per)) square ((foot)) footage of that portion of the
building(s) directly used for manufacturing or research and
development purposes bears to the ((construction cost per))
square ((foot)) footage of the total building(s).
Apportionment formula:
| Eligible square feet of building(s) | ||
| = | Percent Eligible | |
| Total square feet of building(s) |
"Total Project Costs" means cost of multipurpose buildings and
other improvement costs associated with the deferral project. Machinery and equipment are not included in this calculation. Common areas, such as hallways and bathrooms, are not included
in the square feet figure for either the numerator or the
denominator. The cost of the common areas is multiplied by
the percent eligible to determine the portion of the common
area that is eligible for deferral.
Eligible Tax Deferred = Eligible Cost x Tax Rate.
(ii) If a building is used partly for manufacturing,
research and development, or commercial testing and partly for
other purposes, the applicable tax deferral shall be
determined as follows:
(A) Tax on the cost of construction of areas devoted solely to manufacturing, research and development, or commercial testing may be deferred.
(B) Tax on the cost of construction of areas not used at all for manufacturing, research and development, or commercial testing may not be deferred.
(C) Tax on the cost of construction of areas used in common for manufacturing, research and development, or commercial testing and for other purposes, such as hallways, bathrooms, and conference rooms, may be deferred by apportioning the costs of construction on a square footage basis. The apportioned costs of construction eligible for deferral are established by using the ratio, expressed as a percentage, of the square feet of the construction, expansion, or renovation devoted to manufacturing, research and development, or commercial testing, excluding areas used in common to the total square feet of the construction, expansion, or renovation, excluding areas used in common. That percentage is applied to the cost of construction of the common areas to determine the costs of construction eligible for tax deferral. Expressed as a formula, apportionment of the cost of the common areas is determined by:
| Square feet devoted to manufacturing, research and development, or commercial testing, excluding square feet of common areas | ||
| = | Percentage of total cost of construction of common areas eligible for deferral | |
| Total square feet, excluding square feet of common areas |
(6) Leased equipment. The amount of tax deferral allowable for leased equipment is the amount of the consideration paid by the recipient to the lessor over the initial term of the lease, excluding any period of extension or option to renew, up to the last date for repayment of the deferred taxes. After that date the recipient must pay the appropriate sales taxes to the lessor for the remaining term of the lease.
(7) Application procedure and review process. An application for sales and use tax deferral under this program must be made prior to the initiation of construction, prior to the acquisition of machinery and equipment, and prior to the filling of qualified employment positions. Persons who apply after construction is initiated or finished or after acquisition of machinery and equipment are not eligible for the program. Applications for persons subject to hiring requirements must include information regarding the estimated total project cost and the qualified employment positions.
(a) Application forms will be supplied to the applicant
by the department upon request. The completed application may
be sent by fax to ((())360(()))-586-2163 or mailed to the
following address:
State of Washington
Department of Revenue
Special Programs
P.O. Box ((448)) 47477
Olympia, WA 98507-((0448))7477
Applications and reports received by the department under
chapter 82.60 RCW are not confidential and are subject to
disclosure. (RCW 82.60.100.)
(b) In considering whether to approve or deny an application for a deferral, the department will not approve an application for a project involving construction unless:
(i) The construction will begin within one year from the date of the application; or
(ii) If the construction will not begin within one year of construction, the applicant shows proof that there is a specific and active program to begin construction of the project within two years from the date of application. Proof may include, but is not limited to:
(A) Affirmative action by the board of directors, governing body, or other responsible authority of the applicant toward an active program of construction;
(B) Itemized reasons for the proposed construction;
(C) Clearly established plans for financing the construction; or
(D) Building permits.
Similarly, after an application has been granted, a deferral certificate is no longer valid and should not be used if construction has not begun within one year from the date of application or there is not a specific and active program to begin construction within two years from the date of application. However, the department will grant requests to extend the period for which the certificate is valid if the holder of the certificate can demonstrate that the delay in starting construction is due to circumstances beyond the certificate holder's control such as the acquisition of building permit(s).
(c) The department will verify the information contained
in the application and approve or disapprove the application
within sixty days. If approved, the department will issue a
tax deferral certificate. If disapproved, the department will
notify the applicant as to the reason(s) for disapproval. ((The U.S. Post Office postmark or fax date will be used as
the date of application.
(c))) (d) The applicant may seek administrative review of the department's disapproval of an application within thirty days from the date of notice of the disallowance pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(8) Program termination. No applications for deferral of taxes will be accepted after June 30, 2004.
(9) Eligible area criteria. The office of financial management will determine annually the counties with fewer than one hundred persons per square mile. The department will update and distribute the list each year. The list will be effective on July 1 of each year.
If an investment project is located in an area that qualifies under more than one type of eligible area, the department will automatically assign the project to the eligible area that imposes the least burden on the taxpayer and with the greatest benefit to the taxpayer. If the applicant elects to be bound by the requirements of the other potential eligible area, the applicant must make a written statement to that effect. For example, on October 1, 1999, the city of Yakima qualifies as a CEZ, and the entire county of Yakima has fewer than one hundred persons per square mile. The CEZ requirements are more restrictive than counties containing fewer than one hundred persons per square mile. The department will assign the project to the "fewer than one hundred persons per square mile designation" unless the applicant elects to be bound by the CEZ requirements.
(10) Use of the certificate. A tax deferral certificate issued under this program is for the use of the recipient for deferral of sales and use taxes due on each eligible investment project. Deferral is limited only to investment in qualified building or qualified machinery and equipment as defined in this rule. Thus, sales and use taxes cannot be deferred on items that do not become part of the qualified buildings, machinery, or equipment. In addition, the deferral is not to be used to defer the taxes of the persons with whom the recipient does business, persons the recipient hires, or employees of the recipient.
The tax deferral certificate is to be used in a manner similar to that of a resale certificate as set forth in WAC 458-20-102, Resale certificates. The certificate holder must provide a copy of the tax deferral certificate to the seller at the time goods or services are purchased. The seller will be relieved of the responsibility for collection of the sales or use tax upon presentation of the certificate. The seller must retain a copy of the certificate as part of its permanent records for a period of at least five years. A blanket certificate may be provided by the certificate holder and accepted by the seller covering all such purchases relative to the eligible project. The seller is liable for business and occupation tax on all tax deferral sales.
(11) Project operationally complete. An applicant must provide the department with the estimated cost of the investment project at the time the application is made. Following approval of the application and issuance of a tax deferral certificate, a certificate holder must notify the department, in writing, when the value of the investment project reaches the estimated cost as stated on the tax deferral certificate.
(a) If a certificate holder has reached its level of estimated costs and the project is not operationally complete, the certificate holder may request an amended certificate stating a revised amount upon which the deferral taxes are requested. Requests must be mailed or faxed to the department.
(b) The certificate holder must notify the department in writing when the construction project is operationally complete. The department will certify the date on which the project is operationally complete. The recipient of the deferral must maintain the manufacturing or research and development activity for eight years from this date.
(12) Reporting and monitoring procedure. Requirement to submit annual reports. Each recipient of a tax deferral under chapter 82.60 RCW must submit a report on December 31st of the year in which the investment project is certified by the department as having been operationally completed and on December 31st of each of the seven succeeding calendar years. The report must be made to the department in a form and manner prescribed by the department. If the recipient fails to submit a report or submits an inadequate or falsified report, the department may declare the amount of deferred taxes outstanding to be immediately due and payable. An inadequate or falsified report is one that contains material omissions or contains knowingly false statements and information.
(13) Repayment of deferred taxes. Repayment of tax deferred under chapter 82.60 RCW is excused, except as otherwise provided in RCW 82.60.070 and this subsection.
(a) Repayment of tax deferred under chapter 82.60 RCW is not required, and interest and penalties under RCW 82.60.070 will not be imposed, on machinery and equipment that qualifies for exemption under RCW 82.08.02565 or 82.12.02565.
(b) The following subsections describe the various circumstances under which repayment of the deferral may occur. Outstanding taxes are determined by reference to the following table. The table presumes the taxpayer maintained eligibility for the entire year.
| Repayment Year | Percentage of Deferred Tax Waived |
||
| 1 | (Year operationally complete) | 0% | |
| 2 | 0% | ||
| 3 | 0% | ||
| 4 | 10% | ||
| 5 | 15% | ||
| 6 | 20% | ||
| 7 | 25% | ||
| 8 | 30% | ||
(c) Failure of investment project to satisfy general conditions. If, on the basis of the recipient's annual report or other information, including that submitted by the employment security department, the department of revenue finds that an investment project is not eligible for tax deferral for reasons other than failure to create the required number of qualified employment positions, the department will declare the amount of deferred taxes outstanding to be immediately due. An example of a disqualification under this section is a facility not being used for a manufacturing or research and development operation.
(d) Failure of investment project to satisfy required
employment positions conditions. If, on the basis of the
recipient's annual report or other information, the department
finds that an investment project has been operationally
complete for three years and has failed to create the required
number of qualified employment positions, the amount of taxes
deferred will be immediately due. ((The department will
assess interest at the rate and as provided for delinquent
excise taxes under RCW 82.32.050 (retroactively to the date
the application was filed).)) There is no proration of the
amount owed under this subsection. No penalties or interest
will be assessed on the deferred sales/use tax; however, all
other penalties and interest applicable to excise tax
assessments may be assessed and imposed.
(14) Debt not extinguished because of insolvency or sale. Insolvency or other failure of the recipient does not extinguish the debt for deferred taxes nor will the sale, exchange, or other disposition of the recipient's business extinguish the debt for the deferred taxes. Transfer of ownership does not terminate the deferral. The deferral is transferred, subject to the successor meeting the eligibility requirements of chapter 82.60 RCW, for the remaining periods of the deferral. Any person who becomes a successor (see WAC 458-20-216) to such investment project is liable for the full amount of any unpaid, deferred taxes under the same terms and conditions as the original recipient of the deferral.
(15) Disclosure of information. Applications and reports received by the department under chapter 82.60 RCW are not confidential and are subject to disclosure. (RCW 82.60.100.)
[Statutory Authority: RCW 82.32.300. 01-12-041, § 458-20-24001, filed 5/30/01, effective 6/30/01; 88-17-047 (Order 88-5), § 458-20-24001, filed 8/16/88; 87-19-139 (Order 87-6), § 458-20-24001, filed 9/22/87; 86-14-019 (Order ET 86-13), § 458-20-24001, filed 6/24/86; 85-21-013 (Order ET 85-5), § 458-20-24001, filed 10/7/85.]
OTS-6701.1
AMENDATORY SECTION(Amending WSR 01-12-041, filed 5/30/01,
effective 6/30/01)
WAC 458-20-24001A
Sales and use tax
deferral -- Manufacturing and research/development activities in
distressed areas -- Applications filed prior to August 1, 1999.
Introduction. Chapter 82.60 RCW establishes a sales and use
tax deferral program. The purpose of the program is to
promote economic stimulation, create employment opportunities,
and reduce poverty in certain areas of the state. The
legislature established this program to be effective solely in
those areas and for those circumstances where the deferral is
for investments that result in the creation of a specified
minimum number of jobs or investment for a qualifying project.
The program applies to sales and use taxes on materials and labor and services rendered in the construction of qualified buildings or acquisition of qualified machinery and equipment and requires the recipient of the deferral to maintain the manufacturing or research and development activity for an eight-year period. This rule does not address RCW 82.08.02565 and 82.12.02565, which provide a statewide sales and use tax exemption for machinery and equipment used directly in a manufacturing operation. Refer to WAC 458-20-13601 for more information regarding the statewide exemption.
This program was enacted in 1985. The legislature made major revisions to program criteria in 1993, 1994, 1995, 1996, and 1999, specifically to the definitions of "eligible area," "eligible investment project," and "qualified building." Each revision created additional criteria for prospective applicants. This rule is written in three parts and covers applications made prior to July 31, 1999. Each part sets forth the requirements on the basis of the period of time in which application is made. Refer to the year during which application was made for information on an individual application. For applications made after July 31, 1999, see WAC 458-20-24001.
The employment security department and the department of community, trade, and economic development administer additional programs for distressed areas and job training and should be contacted directly for information concerning these programs.
Applications after July 1, 1995, to July 31, 1999
(1) Definitions. For the purposes of this part, the following definitions apply for applications made on and after July 1, 1995, and before August 1, 1999:
(a) "Acquisition of equipment or machinery" means the equipment and machinery is under the dominion and control of the recipient.
(b) "Applicant" means a person applying for a tax deferral under chapter 82.60 RCW.
(c) "Certificate holder" means an applicant to whom a tax deferral certificate has been issued.
(d) "Computer-related services" means services that are connected or interact directly in the manufacture of computer hardware or software or the programming of the manufactured hardware. This includes the manufacture of hardware such as chips, keyboards, monitors, any other hardware, and the components of these items. It includes creating operating systems and software that will be copied and sold as canned software. "Computer-related services" does not include information services. The activities performed by the manufacturer to test, correct, revise, or upgrade software or hardware before they are approved for sale to the consumer are considered computer-related services.
(e) "Department" means the department of revenue.
(f) "Eligible area" means one of the areas designated according to the following classifications:
(i) Unemployment county. A county in which the average level of unemployment for the three calendar years preceding the year in which an application is filed exceeds the average state unemployment for those years by twenty percent. In making this calculation, the department will compare the county's average unemployment rate in the prior three years to one hundred twenty percent of the state's average unemployment rate based on official unemployment figures published by the department of employment security;
(ii) Median income county. On and after June 6, 1996, a county that has a median household income that is less than seventy-five percent of the state median income for the previous three years;
(iii) MSA. A metropolitan statistical area, as defined by the Office of Federal Statistical Policy and Standards, United States Department of Commerce, in which the average level of unemployment for the calendar year immediately preceding the year in which an application is filed under chapter 82.60 RCW exceeds the average state unemployment for such calendar year by twenty percent;
(iv) CEZ and county containing a CEZ. A designated community empowerment zone (CEZ) approved under RCW 43.63A.700 or a county containing such a community empowerment zone;
(v) Timber impact area towns. A town with a population of less than twelve hundred persons that is located in a county that is a timber impact area, as defined in RCW 43.31.601, but that is not an unemployment county as defined in Part I;
(vi) Governor's designation county. A county designated by the governor as an eligible area under RCW 82.60.047; or
(vii) Contiguous county. A county that is contiguous to an unemployment county or a governor's designation county.
(g)(i) "Eligible investment project" means:
(A) An investment project in an unemployment county, a median income county, an MSA, a timber impact area town, or a governor's designation county; or
(B) That portion of an investment project in a CEZ, a county containing a CEZ, or a contiguous county, that is directly utilized to create at least one new full-time qualified employment position for each seven hundred fifty thousand dollars of investment.
(ii) "Eligible investment project" does not include an investment project undertaken by a light and power business as defined in RCW 82.16.010, other than that portion of a cogeneration project that is used to generate power for consumption within the manufacturing site of which the cogeneration project is an integral part. It also does not include an investment project that has already received a deferral under chapter 82.60 RCW.
(h) "Industrial fixture" means an item attached to a building or to land. Fixtures become part of the real estate to which they are attached and upon attachment are classified as real property, not personal property. Examples of "industrial fixtures" are fuel oil lines, boilers, craneways, and certain concrete slabs.
(i) "Initiation of construction," in regards to the construction, expansion, or renovation of buildings, means the commencement of on-site construction work. Land clearing prior to excavation of the building site does not commence construction nor does planning commence construction.
(j) "Investment project" means an investment in qualified buildings or qualified machinery and equipment, including labor and services rendered in the planning, installation, and construction of the project. When an application for sales and use tax deferral is timely submitted, costs incurred before the application date are allowable, if they otherwise qualify.
(k) "Manufacturing" has the meaning given in RCW 82.04.120. Manufacturing, for purposes of the distressed area deferral program, also includes computer programming, the production of computer software, and other computer-related services, and the activities performed by research and development laboratories and commercial testing laboratories.
(l) "Operationally complete" means the project is capable of being used for its intended purpose as described in the application.
(m) "Person" has the meaning given in RCW 82.04.030. "Person" does not include the state of Washington or its institutions. "Person" can be either a lessee or a lessor, who can apply separately for individual investment projects at the same site, if they comply with the other requirements of chapter 82.60 RCW. The lessor/owner of the structure is not eligible for deferral unless the underlying ownership of the buildings, machinery, or equipment vests exclusively in the lessor/owner, or unless the lessor has by written contract agreed to pass the economic benefit of the deferral to the lessee in the form of reduced rent payments.
(n) "Qualified buildings" means construction of new structures, and expansion or renovation of existing structures for the purpose of increasing floor space or production capacity, used for manufacturing and research and development activities.
"Qualified buildings" are limited to structures used for manufacturing and research and development activities. "Qualified buildings" include plant offices and warehouses if such facilities are essential or an integral part of a factory, mill, plant, or laboratory. "Office" means space used by professional, clerical, or administrative staff. For plant office space to be a qualified building its use must be essential or integral to the manufacturing or research and development operation. Office space that is used by supervisors and their staff, by technicians, by payroll staff, by the safety officer, and by the training staff are examples of qualifying office space. "Warehouse" means facilities used for the storage of raw materials or finished goods.
(o) "Qualified employment position" means a permanent full-time employee employed in the eligible investment project during the entire tax year. The "entire tax year" means the full-time position is filled for a period of twelve consecutive months. "Full time" means at least 35 hours a week, 455 hours a quarter, or 1,820 hours a year.
(p) "Qualified machinery and equipment" means all new industrial and research fixtures, equipment, and support facilities that are an integral and necessary part of a manufacturing or research and development operation. "Qualified machinery and equipment" includes computers, desks, filing cabinets, photocopiers, printers, software, data processing equipment, laboratory equipment; manufacturing components such as belts, pulleys, shafts and moving parts; molds, tools and dies; operating structures; and all equipment used to control or operate machinery. It also includes machinery and equipment acquired under the terms of a lease by the recipient. "New" as used in this subsection means either new to the taxing jurisdiction of the state or new to the certificate holder.
(q) "Recipient" means a person receiving a tax deferral under this program.
(r) "Research and development" means the development, refinement, testing, marketing, and commercialization of a product, service, or process before commercial sales have begun. As used in this subsection, "commercial sales" excludes sales of prototypes or sales for market testing if the total gross receipts from such sales of the product, service, or process do not exceed one million dollars.
(2) Issuance of deferral certificate. The department will issue a sales and use tax deferral certificate for state and local sales and use taxes due under chapters 82.08, 82.12, and 82.14 RCW for an eligible investment project. The department will state on the certificate the amount of tax deferral for which the recipient is eligible. Recipients must keep track of how much tax is deferred.
(3) Eligible investment amount. There may or may not be a hiring requirement, depending on the location of the project.
(a) No hiring requirements. There are no hiring requirements for qualifying projects located in distressed counties, MSAs, median income counties, governor-designated counties, or timber impact towns. Monitoring and reporting procedures are explained in subsection (10) of this rule. Buildings that will be used partly for manufacturing or research and development and partly for other purposes are eligible for a deferral on a proportionate basis. Subsection (4) of this rule explains the procedure for apportionment.
(b) Hiring requirements. There are hiring requirements
for qualifying projects located in CEZs, in counties
containing CEZs, or in contiguous counties. Total qualifying
project costs, including any part of the project that would
qualify under RCW 82.08.02565 and 82.12.02565, must be
examined to determine the number of positions associated with
the project. An applicant who knows at the time of
application that he or she will not fill the required
qualified employment positions is not eligible for the
deferral. Applicants must make good faith estimates of
anticipated hiring. The applicant applies for a deferral of
investment that correlates to the estimated number of persons
to be hired. The investment must include the ((amount)) sales
price of machinery and equipment eligible for the sales and
use tax exemption under RCW 82.08.02565 and 82.12.02565. An
applicant can amend the number of persons hired until
completion of the project. The qualified employment positions
filled by December 31 of the year of completion are the
benchmark to be used during the next seven years in
determining hiring compliance.
(i) Total qualifying project costs are divided by seven hundred fifty thousand, the result being the qualified employment positions.
(ii) In addition, the number of qualified employment positions created by an investment project will be reduced by the number of full-time employment positions maintained by the recipient in any other community in this state that are displaced as a result of the investment project. This reduction requires a reexamination of whether the seventy-five percent hiring requirement (as explained below) is met.
(iii) This number, which is the result of (i) and (ii) of this subsection, is the number of positions used as the benchmark over the life of the deferral. For recipients locating in a CEZ or a county containing a CEZ, seventy-five percent of the new positions must be filled by residents of a CEZ located in the county where the project is located. The department has instituted a geographic information system (GIS) to assist taxpayers in determining taxing jurisdiction boundaries, local tax rates, and a mapping and address lookup system to determine whether a specific address is within a CEZ. The system is available on the department's Internet website at http://www.dor.wa.gov. For recipients located in a contiguous county, residents of an adjacent unemployment or governor-designated county must fill seventy-five percent of the new positions.
(iv) The qualified employment positions are reviewed each year, beginning December 31st of the year the project is operationally complete and each year for seven years. If the recipient has failed to create the requisite number of positions, the department will issue an assessment as explained under subsection (11) of this rule.
(v) In addition to the hiring requirements for new positions under (b) of this subsection, the recipient of a deferral for an expansion or diversification of an existing facility must ensure that he or she maintains the same percentage of employment positions filled by residents of the contiguous county or the CEZ that existed prior to the application being made. This percentage must be maintained for seven years.
(vi) Qualified employment positions do not include those positions filled by persons hired in excess of the ratio of one employee per required dollar of investment for which a deferral is granted. In the event an employee is either voluntarily or involuntarily separated from employment, the employment position will be considered filled if the employer is either training or actively recruiting a replacement employee, so long as the position is not actually vacant for any period in excess of thirty consecutive days.
(4) Apportionment of costs between qualifying and
nonqualifying investments. The deferral is allowable only in
respect to investment in the construction of a new building or
the expansion or renovation of existing buildings used in
manufacturing ((and)), research and development, or commercial
testing.
(a) Where a building(s) is used partly for manufacturing
((or)), research and development, or commercial testing and
partly for purposes that do not qualify for deferral under
this rule, the deferral will be determined by apportionment of
the total project costs. The applicable tax deferral will be
determined by apportionment according to the ratio of the
((construction cost per)) square ((foot)) footage of that
portion of the building(s) directly used for manufacturing
((or)), research and development, or commercial testing
purposes bears to the ((construction cost per)) square
((foot)) footage of the total building(s).
Apportionment formula:
| Eligible square feet of building(s) | ||
| = | Percent Eligible | |
| Total square feet of building(s) |
"Total Project Costs" means cost of multipurpose buildings and
other improvement costs associated with the deferral project. Machinery and equipment are not included in this calculation. Common areas, such as hallways and bathrooms, are not included
in the square feet figure for either the numerator or the
denominator. The cost of the common areas is multiplied by
the percent eligible to determine the portion of the common
area that is eligible for deferral.
Eligible Tax Deferred = Eligible Cost x Tax Rate.
(b) Qualified machinery and equipment is not subject to
apportionment.
(5) Leased equipment. The amount of tax deferral allowable for leased equipment is the amount of the consideration paid by the recipient to the lessor over the initial term of the lease, excluding any period of extension or option to renew, up to the last date for repayment of the deferred taxes. After that date the recipient must pay the appropriate sales taxes to the lessor for the remaining term of the lease.
(6) Application procedure and review process. An application for sales and use tax deferral under this program must be made prior to the initiation of construction and the acquisition of machinery and equipment. Persons who apply after construction is initiated or after acquisition of machinery and equipment are not eligible for the program. Applications for persons subject to hiring requirements must include information regarding the estimated total project cost and the qualified employment positions.
(a) Application forms will be supplied to the applicant
by the department upon request. The completed application may
be sent by fax to ((())360(()))-586-2163 or mailed to the
following address:
State of Washington
Department of Revenue
Special Programs
P.O. Box ((448)) 47477
Olympia, WA 98507-((0448))7477
(b) The department will verify the information contained
in the application and approve or disapprove the application
within sixty days. If approved, the department will issue a
tax deferral certificate. If disapproved, the department will
notify the applicant as to the reason(s) for disapproval. The
U.S. Post Office postmark or fax date will be used as the date
of application.
(c) The applicant may seek administrative review of the department's disapproval of an application within thirty days from the date of notice of disallowance pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(7) Eligible area criteria. The statewide and county unemployment statistics last published by the department will be used to determine eligible areas based on unemployment. Median income county designation is based on data produced by the office of financial management and made available to the department on November 1 of each year. The timber impact town designation is based on information provided by the department of employment security.
If an investment project is located in an area that qualifies under more than one type of eligible area, the department will automatically assign the project to the eligible area that imposes the least burden on the taxpayer and with the greatest benefit to the taxpayer. If the applicant elects to be bound by the requirements of the other potential eligible area, the applicant must make a written statement to that effect. For example, on May 1, 1998, the city of Yakima qualifies as a CEZ, and the entire county of Yakima qualifies as an unemployment county. The CEZ requirements are more restrictive than the unemployment county requirements. The department will assign the project to the distressed area eligible area unless the applicant elected to be bound by the CEZ requirements.
(8) Use of the certificate. A tax deferral certificate issued under this program is for the use of the recipient for deferral of sales and use taxes due on each eligible investment project. Deferral is limited only to investment in qualified building or qualified machinery and equipment as defined in this Part I. Thus, sales and use taxes cannot be deferred on items that do not become part of the qualified buildings, machinery, or equipment. In addition, the deferral is not to be used to defer the taxes of the persons with whom the recipient does business, persons the recipient hires, or employees of the recipient.
The tax deferral certificate is used in a manner similar to that of a resale certificate as set forth in WAC 458-20-102, Resale certificates. The certificate holder must provide a copy of the tax deferral certificate to the seller at the time goods or services are purchased. The seller is relieved of the responsibility for collection of the sales or use tax upon presentation of the certificate. The seller must retain a copy of the certificate as part of its permanent records for a period of at least five years. A blanket certificate may be provided by the certificate holder and accepted by the seller covering all such purchases relative to the eligible project. The seller is liable for business and occupation tax on all tax deferral sales.
(9) Project operationally complete. An applicant must provide the department with the estimated cost of the investment project at the time the application is made. Following approval of the application and issuance of a deferral certificate, a certificate holder must notify the department, in writing, when the value of the investment project reaches the estimated cost as stated on the tax deferral certificate.
(a) If a certificate holder has reached its level of estimated costs and the project is not operationally complete, the certificate holder may request an amended certificate stating a revised amount upon which the deferral is requested. Requests must be mailed or faxed to the department.
(b) The certificate holder must notify the department in writing when the construction project is operationally complete. The department will certify the date on which the project was operationally complete. The recipient of the deferral must maintain the manufacturing or research and development activity for eight years from this date.
(10) Reporting and monitoring procedure. Requirement to submit annual reports. Each recipient of a deferral granted after July 1, 1995, must submit a report to the department on December 31st of the year in which the investment project is certified by the department as having been operationally completed, and on December 31st of each of the seven succeeding calendar years. The report must be made to the department in a form and manner prescribed by the department. The report must contain information regarding the actual employment related to the project and any other information required by the department. If the recipient fails to submit a report or submits an inadequate or falsified report, the department may declare the amount of deferred taxes outstanding to be immediately due and payable. An inadequate or falsified report is one that contains material omissions or contains knowingly false statements and information.
(11) Repayment of deferred taxes. Repayment of tax deferred under chapter 82.60 RCW is excused, except as otherwise provided in RCW 82.60.070 and this subsection, on an investment project for which a deferral has been granted under chapter 82.60 RCW after June 30, 1994.
(a) Taxes deferred under this chapter need not be repaid on machinery and equipment for lumber and wood product industries, and sales of or charges made for labor and services, of the type which qualified for exemption under RCW 82.08.02565 or 82.12.02565.
(b) The following describes the various circumstances under which repayment of the deferral may be required. Outstanding taxes are determined by reference to the following table. The table presumes the taxpayer maintained eligibility for the entire year.
| Repayment Year | Percentage of Deferred Tax Waived |
||
| 1 | (Year operationally complete) | 0% | |
| 2 | 0% | ||
| 3 | 0% | ||
| 4 | 10% | ||
| 5 | 15% | ||
| 6 | 20% | ||
| 7 | 25% | ||
| 8 | 30% | ||
Any action taken by the department to disqualify a recipient for tax deferral or require payment of all or part of deferred taxes is subject to administrative review pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action. See subsection (11)(d) of this rule for repayment and waiver for deferrals with hiring requirements.
(c) Failure of investment project to satisfy general conditions. If, on the basis of the recipient's annual report or other information, including that submitted by the department of employment security, the department finds that an investment project is not eligible for tax deferral for reasons other than failure to create the required number of qualified employment positions, the department will declare the amount of deferred taxes outstanding to be immediately due. For example, a reason for disqualification would be that the facilities are not used for a manufacturing or research and development operation.
(d) Failure of investment project to satisfy required employment positions conditions. If, on the basis of the recipient's annual report or other information, the department finds that an investment project has been operationally complete for three years and has failed to create the required number of qualified employment positions, the amount of taxes deferred will be immediately due. The department will assess interest at the rate and as provided for delinquent excise taxes under RCW 82.32.050 (retroactively to the date the application was filed). There is no proration of the amount owed under this subsection. No penalties will be assessed.
(e) Failure of investment project to satisfy employee residency requirements. If, on the basis of the recipient's annual report or other information, the department finds that an investment project under RCW 82.60.040 (1)(b) or (c) has failed to comply with any requirement of RCW 82.60.045 for any calendar year for which reports are required under this subsection, twelve and one-half percent of the amount of deferred taxes will be immediately due. For each year a deferral's requirements are met twelve and one-half percent of the amount of deferred taxes will be waived. The department will assess interest at the rate provided for delinquent excise taxes under RCW 82.32.050, retroactively to the date the application was filed. Each year the employment requirement is met, twelve and one-half percent of the deferred tax will be waived, if all other program requirements are met. No penalties will be assessed.
(f) The department of employment security makes and certifies to the department all determinations of employment and wages required under this subsection.
(12) Debt not extinguished because of insolvency or sale. Insolvency or other failure of the recipient does not extinguish the debt for deferred taxes nor will the sale, exchange, or other disposition of the recipient's business extinguish the debt for the deferred taxes. Transfer of ownership does not terminate the deferral. The deferral is transferred, subject to the successor meeting the eligibility requirements of this chapter, for the remaining periods of the deferral. Any person who becomes a successor (see WAC 458-20-216) to such investment project is liable for the full amount of any unpaid, deferred taxes under the same terms and conditions as the original recipient.
(13) Disclosure of information. Applications and reports received by the department under chapter 82.60 RCW are not confidential and are subject to disclosure. (RCW 82.60.100.)
Applications from July 1, 1994, to June 30, 1995
(14) Definitions. For the purposes of this part, the following definitions apply for applications made on and after July 1, 1994 and before July 1, 1995.
(a) "Acquisition of equipment or machinery" means the date the equipment and machinery is under the dominion and control of the recipient.
(b) "Applicant" means a person applying for a tax deferral under chapter 82.60 RCW.
(c) "Certificate holder" means an applicant to whom a tax deferral certificate has been issued.
(d) "Computer-related services" means services that are connected or interact directly in the manufacture of computer hardware or software or the programming of the manufactured hardware. This includes the manufacture of hardware such as chips, keyboards, monitors, any other hardware, and the components of these items. It includes creating operating systems and software that will be copied and sold as canned software. "Computer-related services" does not include information services. The activities performed by the manufacturer to test, correct, revise, and upgrade software or hardware before they are approved for sale to the consumer are considered computer-related services in this instance.
(e) "Department" means the department of revenue.
(f) "Eligible area" means:
(i) Unemployment county. A county in which the average level of unemployment for the three calendar years preceding the year in which an application is filed exceeds the average state unemployment for those years by twenty percent. The department may compare the county's average unemployment rate in the prior three years to one hundred twenty percent of the state's average unemployment rate based on official unemployment figures published by the department of employment security;
(ii) MSA. A metropolitan statistical area, as defined by the Office of Federal Statistical Policy and Standards, United States Department of Commerce, in which the average level of unemployment for the calendar year immediately preceding the year in which an application is filed under chapter 82.60 RCW exceeds the average state unemployment for such calendar year by twenty percent;
(iii) CEZ. A designated community empowerment zone approved under RCW 43.63A.700;
(iv) Timber impact area towns. A town with a population of less than twelve hundred persons that is located in a county that is a timber impact area, as defined in RCW 43.31.601, but that is not an unemployment county as defined in this subsection;
(v) Contiguous county. A county that is contiguous to an unemployment county or a governor's designation county; or
(vi) Governor's designation county. A county designated by the governor as an eligible area under RCW 82.60.047.
(g)(i) "Eligible investment project" means that portion of an investment project which:
(A) Is directly utilized to create at least one new full-time qualified employment position for each seven hundred fifty thousand dollars of investment on which a deferral is requested; and
(B) Either initiates a new operation, or expands or diversifies a current operation by expanding, equipping, or renovating an existing facility with costs in excess of twenty-five percent of the true and fair value of the facility prior to improvement. "Improvement" means the physical alteration by significant expansion, modernization, or renovation of an existing facility, excluding land, where the cost of such expansion, etc., exceeds twenty-five percent of the true and fair value of the existing facility prior to the initiation of the expansion or renovation. The term "improvement" is further defined to include those portions of an existing facility which do not increase the usable floor space, but is limited to the renovation, modernization, or any other form of alteration or addition and the equipment and machinery installed therein during the course of construction. The twenty-five percent test may be satisfied by considering the value of both the building and machinery and equipment; however, at least forty percent of the total renovation costs must be attributable to the physical renovation of the building structure alone. "True and fair value" means the value listed on the assessment roles as determined by the county assessor for the buildings or equipment for ad valorem property tax purposes at the time of application.
(ii) "Eligible investment project" does not include either an investment project undertaken by a light and power business as defined in RCW 82.16.010, other than cogeneration projects that are both an integral part of a manufacturing facility and owned at least fifty percent by the manufacturer, or investment projects that have already received deferrals under chapter 82.60 RCW.
(h) "Industrial fixture" means an item attached to a building or to land. Fixtures become part of the real estate to which they are attached and upon attachment are classified as real property, not personal property. Examples of "industrial fixtures" are fuel oil lines, boilers, craneways, and certain concrete slabs.
(i) "Initiation of construction," in regards to the construction of new buildings, means the commencement of on-site construction work.
(j) "Initiation of construction," in regards to the construction of expanding or renovating existing structures for the purpose of increasing floor space or production capacity used for manufacturing and research and development, means the commencement of the new construction by renovation, modernization, or expansion, by physical alteration.
(k) "Investment project" means an investment in qualified buildings or qualified machinery and equipment, including labor and services rendered in the planning, installation, and construction of the project. A person who does not build or remodel his or her own building, but leases from a third party, is eligible for sales and use tax deferral on the machinery and equipment provided that an investment in qualified machinery and equipment is made by such person and a new structure used to house the manufacturing activities is constructed.
(l) "Manufacturing" has the meaning given in RCW 82.04.120. Manufacturing, for purposes of the distressed area deferral program, also includes computer programming, the production of computer software, and other computer-related services, and the activities performed by research and development laboratories and commercial testing laboratories.
(m) "Operationally complete" means the project is capable of being used for its intended purpose as described in the application.
(n) "Person" has the meaning given in RCW 82.04.030. "Person" does not include the state of Washington or its institutions. "Person" can be either a lessee or a lessor, who can apply separately for individual investment projects at the same site, if they comply with the other requirements of chapter 82.60 RCW. The lessor/owner of the structure is not eligible for deferral unless the underlying ownership of the buildings, machinery, or equipment vests exclusively in the lessor/owner, or unless the lessor has by written contract agreed to pass the economic benefit of the deferral to the lessee in the form of reduced rent payments.
(o) "Qualified buildings" are limited to structures used for manufacturing and research and development activities. "Qualified buildings" include plant offices and warehouses if such facilities are essential or an integral part of a factory, mill, plant, or laboratory. "Office" means space used by professional, clerical, or administrative staff. For plant office space to be a qualified building its use must be essential or integral to the manufacturing or research and development operation. Office space that is used by supervisors and their staff, by technicians, by payroll staff, by the safety officer, and by the training staff are examples of qualifying office space. "Warehouse" means facilities used for the storage of raw materials or finished goods.
(p) "Qualified employment position" means a permanent full-time employee employed in the eligible investment project during the entire tax year. The "entire tax year" means the full-time position is filled for a period of twelve consecutive months. "Full time" means at least 35 hours per week, 455 hours a quarter, or 1,820 hours a year.
(q) "Qualified machinery and equipment" means all new industrial and research fixtures, equipment, and support facilities that are an integral and necessary part of a manufacturing operation or research and development operation. "Qualified machinery and equipment" includes: Computers, software, data processing equipment, laboratory equipment; manufacturing components such as belts, pulleys, shafts and moving parts; molds, tools and dies; operating structures; and all equipment used to control or operate machinery. It also includes machinery and equipment acquired under the terms of a lease by the recipient. "New" as used in this subsection means either new to the taxing jurisdiction of the state or new to the certificate holder.
(r) "Research and development" means the development, refinement, testing, marketing, and commercialization of a product, service, or process before commercial sales have begun. As used in this subsection, "commercial sales" excludes sales of prototypes or sales for market testing if the total gross receipts from such sales of the product, service, or process do not exceed one million dollars.
(s) "Recipient" means a person receiving a tax deferral under this program.
(15) Issuance of deferral certificate. The department will issue a sales and use tax deferral certificate for state and local sales and use taxes due under chapters 82.08, 82.12, and 82.14 RCW for an eligible investment project. The department will state on the certificate the amount of tax deferral for which the recipient is eligible. Recipients must keep track of how much tax is deferred.
(16) Eligible investment amount.
(a) Projects located in unemployment counties, MSAs, governor-designated counties, or timber impact towns are eligible for a deferral on the portion of the investment project that represents one new qualified employment position for each seven hundred fifty thousand dollars of investment. The eligible amount is computed by dividing the total qualifying project costs by seven hundred fifty thousand, the result being the qualified employment positions. In addition, the number of qualified employment positions created by an investment project will be reduced by the number of full-time employment positions maintained by the recipient in any other community in this state that are displaced as a result of the investment project. This is the number of positions used as the hiring benchmark. The qualified employment positions must be filled by the end of year three. Monitoring and reporting procedures are set forth in subsection (23) of this rule. In addition, buildings that will be used partly for manufacturing or research and development and partly for other purposes are eligible for a deferral on a proportionate basis. Subsection (17) of this rule explains the procedure for apportionment.
(b) Projects located in CEZs, counties containing CEZs, or counties contiguous to an eligible county, are eligible for a deferral if the project meets specific hiring requirements. The recipient is eligible for a deferral on the portion of the investment project that represents one new qualified employment position for each seven hundred fifty thousand dollars of investment. The eligible amount is computed by dividing the total qualifying project costs by seven hundred fifty thousand, the result being the qualified employment positions. This is the number of positions used as the hiring benchmark over the life of the deferral. The qualified employment positions are reviewed each year, beginning December 31st of the year the project is operationally complete and each year for seven years. Monitoring and reporting procedures are set forth in subsection (23) of this rule. In addition, buildings that will be used partly for manufacturing or research and development and partly for other purposes are eligible for a deferral on a proportionate basis. Subsection (17) of this rule explains the procedure for apportionment.
(c) In addition to the hiring requirements for new
positions under (b) of this subsection, the recipient of a
deferral for an expansion or diversification of an existing
facility must ensure that he or she maintains the same
percentage of employment positions filled by residents of the
contiguous county or the CEZ that existed prior to the
application being made. This percentage must be maintained
for seven years. The department has instituted a geographic
information system (GIS) to assist taxpayers in determining
taxing jurisdiction boundaries, local tax rates, and a mapping
and address lookup system to determine whether a specific
address is within a CEZ. The system is available on the
department's Internet website at http://www.dor.wa.gov. ((This percentage must be maintained for seven years.))
(d) Qualified employment positions does not include those persons hired in excess of the ratio of one employee per required dollar of investment for which a deferral is granted. In the event an employee is either voluntarily or involuntarily separated from employment, the employment position will be considered filled if the employer is either training or actively recruiting a replacement employee so long as the position is not actually vacant for any period in excess of thirty consecutive days.
(17) Apportionment of costs between qualifying and nonqualifying investments. The deferral is allowable only in respect to investment in the construction of a new building or the expansion or renovation of existing buildings used in manufacturing, research and development.
(a) Where a building(s) is used partly for manufacturing
or research and development and partly for purposes which do
not qualify for deferral under this rule, the deferral will be
determined by apportionment of the total project costs. The
applicable tax deferral will be determined by apportionment
according to the ratio of the ((construction cost per)) square
((foot)) footage of that portion of the building(s) directly
used for manufacturing or research and development purposes
bears to the ((construction cost per)) square ((foot)) footage
of the total building(s).
Apportionment formula:
| Eligible square feet of building(s) | ||
| = | Percent Eligible | |
| Total square feet of building(s) |
"Total Project Costs" means cost of multipurpose buildings and
other improvement costs associated with the deferral project. Machinery and equipment are not included in this calculation. Common areas, such as hallways and bathrooms, are not included
in the square feet figure for either the numerator or the
denominator. The cost of the common areas is multiplied by
the percent eligible to determine the portion of the common
area that is eligible for deferral.
Eligible Tax Deferred = Eligible Cost x Tax Rate.
(b) Qualified machinery and equipment is not subject to
apportionment.
(18) Leased equipment. The amount of tax deferral allowable for leased equipment is the amount of the consideration paid by the recipient to the lessor over the initial term of the lease, excluding any period of extension or option to renew, up to the last date for repayment of the deferred taxes. After that date the recipient must pay the appropriate sales taxes to the lessor for the remaining term of the lease.
(19) Application procedure and review process. An application for sales and use tax deferral under this program must be made prior to the initiation of construction and the acquisition of machinery and equipment. Persons who apply after construction is initiated or after acquisition of machinery and equipment are not eligible for the program.
(a) Application forms will be supplied to the applicant
by the department upon request. The completed application may
be sent by fax to ((())360(()))-586-2163 or mailed to the
following address:
State of Washington
Department of Revenue
Special Programs
P.O. Box ((448)) 47477
Olympia, WA 98507-((0448))7477
(b) The department will verify the information contained
in the application and approve or disapprove the application
within sixty days. If approved, the department will issue a
tax deferral certificate. If disapproved, the department will
notify the applicant as to the reason(s) for disapproval. The
U.S. Post Office postmark or fax date will be used as the date
of application.
(c) The applicant may seek administrative review of the department's disapproval of an application within thirty days from the date of notice of disallowance pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(20) Eligible area criteria. The department will use the statewide and county unemployment statistics as last published by the department. Timber impact town designation is based on information provided by the department of employment security. The department will update the list of eligible areas by county, annually.
(21) Use of the certificate. A tax deferral certificate issued under this program will be for the use of the recipient for deferral of sales and use taxes due on each eligible investment project. Deferral is limited only to investment in qualified buildings or qualified machinery and equipment as defined in this Part II. Thus, sales and use taxes cannot be deferred on items that do not become part of the qualified buildings, machinery, or equipment. In addition, the deferral is not to be used to defer the taxes of the persons with whom the recipient does business, persons the recipient hires, or employees of the recipient. The tax deferral certificate is be used in a manner similar to that of a resale certificate as set forth in WAC 458-20-102, Resale certificates. The certificate holder must provide a copy of the tax deferral certificate to the seller at the time goods or services are purchased. The seller will be relieved of the responsibility for collection of the sales or use tax upon presentation of the certificate. The seller must retain a copy of the certificate as part of its permanent records for a period of at least five years. A blanket certificate may be provided by the certificate holder and accepted by the seller covering all such purchases relative to the eligible project. The seller is liable for business and occupation tax on all tax deferral sales.
(22) Project operationally complete. An applicant must provide the department with the estimated cost of the investment project at the time the application is made. Following approval of the application and issuance of a tax deferral certificate, a certificate holder must notify the department, in writing, when the value of the investment project reaches the estimated cost as stated on the tax deferral certificate.
(a) If a certificate holder has reached its level of estimated costs and the project is not operationally complete, the certificate holder may request an amended certificate stating a revised amount upon which the deferral of sales and use taxes is requested. Requests must be mailed or faxed to the department.
(b) The certificate holder must notify the department in writing when the construction project is operationally complete. The department will certify the date on which the project was operationally complete. The recipient of the deferral must maintain the manufacturing or research and development activity for eight years from this date.
(c) The recipient will be notified in writing of the total amount of deferred taxes, the date(s) upon which the deferred taxes must be paid, and any reports required to be submitted in the subsequent years. If the department disallows any portion of the amount of sales and use taxes requested for deferral, the recipient may seek administrative review of the department's action within thirty days from the date of the notice of disallowance pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(23) Reporting and monitoring procedure. Requirement to submit annual reports. Each recipient of a sales and use tax deferral must submit a report to the department on December 31st of the year in which the investment project is certified by the department as having been operationally completed, and on December 31st of each of the seven succeeding calendar years. The report must be made to the department in a form and manner prescribed by the department. The report must contain information regarding the actual employment related to the project and any other information required by the department. If the recipient fails to submit a report or submits an inadequate or falsified report, the department may declare the amount of deferred taxes outstanding to be immediately due and payable. An inadequate or falsified report is one that contains material omissions or contains knowingly false statements and information.
(24) Repayment of deferred taxes. Repayment of tax deferred under chapter 82.60 RCW is excused, except as otherwise provided in RCW 82.60.070 and this subsection on an investment project for which a deferral has been granted under chapter 82.60 RCW after June 30, 1994.
(a) The following describes the various circumstances under which repayment of the deferral may be required. Outstanding taxes are determined by reference to the following table. The table presumes the taxpayer maintained eligibility for the entire year. See subsection (c) for repayment and waiver for deferrals with hiring requirements.
| Repayment Year | Percentage of Deferred Tax Waived |
||
| 1 | (Year operationally complete) | 0% | |
| 2 | 0% | ||
| 3 | 0% | ||
| 4 | 10% | ||
| 5 | 15% | ||
| 6 | 20% | ||
| 7 | 25% | ||
| 8 | 30% | ||
Any action taken by the department to disqualify a recipient for tax deferral or require payment of all or part of deferred taxes is subject to administrative review pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(b) Failure of investment project to satisfy general conditions. If, on the basis of the recipient's annual report or other information, including that submitted by the department of employment security, the department finds that an investment project is not eligible for tax deferral, other than failure to create the required number of positions, the department will declare the amount of deferred taxes outstanding to be immediately due. For example, a reason for disqualification would be that the facility is not used for manufacturing or research and development operations.
(c) Failure of investment project to satisfy employment positions conditions. If, on the basis of the recipient's annual report or other information, the department finds that an investment project has been operationally complete for three years and has failed to create the required number of qualified employment positions, the amount of taxes deferred will be immediately due. The department will assess interest at the rate and as provided for delinquent excise taxes under RCW 82.32.050 (retroactively to the date of deferral). No penalties will be assessed.
(d) Failure of investment project to satisfy employee residency requirements. If, on the basis of the recipient's annual report or other information, the department finds that an investment project under RCW 82.60.040 (1)(b) or (c) has failed to comply with the special hiring requirements of RCW 82.60.045 for any calendar year for which reports are required under this subsection, twelve and one-half percent of the amount of deferred taxes will be immediately due. For each year a deferral's requirements are met twelve and one-half percent of the amount of deferred taxes will be waived. The department will assess interest at the rate provided for delinquent excise taxes under RCW 82.32.050, retroactively to the date of deferral. No penalties will be assessed.
(e) The department of employment security makes and certifies to the department all determinations of employment and wages required under this subsection, per request.
(25) Debt not extinguished because of insolvency or sale. Insolvency or other failure of the recipient does not extinguish the debt for deferred taxes nor will the sale, exchange, or other disposition of the recipient's business extinguish the debt for the deferred taxes. Transfer of ownership does not terminate the deferral. The deferral is transferred, subject to the successor meeting the eligibility requirements of this chapter, for the remaining periods of the deferral. Any person who becomes a successor (see WAC 458-20-216) to such investment project is liable for the full amount of any unpaid, deferred taxes under the same terms and conditions as the original recipient.
(26) Disclosure of information. Applications and reports received by the department under chapter 82.60 RCW are not confidential and are subject to disclosure. (RCW 82.60.100.)
Applications from July 1, 1992, to June 30, 1994
(27) Definitions. For the purposes of this part, the following definitions apply for applications made after July 1, 1992, but before July 1, 1994:
(a) "Acquisition of equipment or machinery" means the equipment and machinery is under the dominion and control of the recipient.
(b) "Applicant" means a person applying for a tax deferral under chapter 82.60 RCW.
(c) "Certificate holder" means an applicant to whom a tax deferral certificate has been issued.
(d) "Computer-related services" means services that are connected or interact directly in the manufacture of computer hardware or software or the programming of the manufactured hardware. This includes the manufacture of hardware such as chips, keyboards, monitors, any other hardware, and the components of these items. It includes creating operating systems and software that will be copied and sold as canned software. "Computer-related services" does not include information services. The activities performed by the manufacturer to test, correct, revise, and upgrade software or hardware before they are approved for sale to the consumer are considered computer-related services in this instance.
(e) "Department" means the department of revenue.
(f) "Eligible area" means:
(i) Unemployment county. A county in which the average level of unemployment for the three calendar years preceding the year in which an application is filed exceeds the average state unemployment for those years by twenty percent. The department may compare the county's average unemployment rate in the prior three years to one hundred twenty percent of the state's average unemployment rate based on official unemployment figures published by the department of employment security;
(ii) MSA. A metropolitan statistical area, as defined by the Office of Federal Statistical Policy and Standards, United States Department of Commerce, in which the average level of unemployment for the calendar year immediately preceding the year in which an application is filed under chapter 82.60 RCW exceeds the average state unemployment for such calendar year by twenty percent; or
(iii) CEZ. Beginning July 1, 1993, a designated community empowerment zone approved under RCW 43.63A.700.
(g)(i) "Eligible investment project" means that portion of an investment project which:
(A) Is directly utilized to create at least one new full-time qualified employment position for each three hundred thousand dollars of investment on which a deferral is requested; and
(B) Either initiates a new operation, or expands or
diversifies a current operation by expanding, or renovating an
existing building with costs in excess of twenty-five percent
of the true and fair value of the plant complex prior to
improvement. "Improvement" means the physical alteration by
significant expansion, modernization, or renovation of an
existing plant complex, excluding land, where the cost of such
expansion, etc., exceeds twenty-five percent of the true and
fair value of the existing plant complex prior to the
initiation of the expansion or renovation. The term
"improvement" is further defined to include those portions of
an existing building which do not increase the usable floor
space, but is limited to the renovation, modernization, or any
other form of alteration or addition and the equipment and
machinery installed therein during the course of construction.
The twenty-five percent test may be satisfied by considering
the value of both the building and machinery and equipment;
however, at least forty percent of the total renovation costs
must be attributable to the physical renovation of the
building structure alone. "True and fair value" means the
value listed on the assessment ((roles)) rolls as determined
by the county assessor for the land, buildings, or equipment
for ad valorem property tax purposes at the time of
application; or
(C) Acquires machinery and equipment to be used for either manufacturing or research and development. The lessor/owner of the structure is not eligible for a deferral unless the underlying ownership of the buildings, machinery, and equipment vests exclusively in the same person.
(ii) "Eligible investment project" does not include any portion of an investment project undertaken by a light and power business as defined in RCW 82.16.010 or investment projects that have already received deferrals under chapter 82.60 RCW.
(h) "Industrial fixture" means an item attached to a building or to land. Fixtures become part of the real estate to which they are attached and upon attachment are classified as real property, not personal property. Examples of "industrial fixtures" are fuel oil lines, boilers, craneways, and certain concrete slabs.
(i) "Initiation of construction," in regards to the construction of new buildings, means the commencement of on-site construction work.
(j) "Initiation of construction," in regards to the construction of expanding or renovating existing structures for the purpose of increasing floor space or production capacity used for manufacturing and research and development, means the commencement of new construction by renovation, modernization, or expansion, by physical alteration.
(k) "Investment project" means an investment in qualified buildings and qualified machinery and equipment, including labor and services rendered in the planning, installation, and construction of the project.
(l) "Manufacturing" has the meaning given in RCW 82.04.120. Manufacturing, for purposes of the distressed area deferral program, also includes computer programming, the production of computer software, and other computer-related services, and the activities performed by research and development laboratories and commercial testing laboratories.
(m) "Operationally complete" means the project is capable of being used for its intended purpose as described in the application.
(n) "Person" has the meaning given in RCW 82.04.030.
"Person" does not include the state of Washington or its
institutions. "Person" can be either a lessee or a lessor,
who can apply separately for individual investment projects at
the same site, if they comply with the other requirements of
this chapter. The lessor/owner of the structure is not
eligible for deferral unless the underlying ownership of the
buildings, machinery, or equipment vests in the
lessor/owner((, or unless the lessor has by written contract
agreed to pass the economic benefit of the deferral to the
lessee in the form of reduced rent payments)).
(o) "Qualified buildings" are limited to structures used for manufacturing and research and development activities. "Qualified buildings" include plant offices and warehouses if such facilities are essential or an integral part of a factory, mill, plant, or laboratory. "Office" means space used by professional, clerical, or administrative staff. For plant office space to be a qualified building, its use must be essential or integral to the manufacturing or research and development operation. Office space that is used by supervisors and their staff, by technicians, by payroll staff, by the safety officer, and by the training staff are examples of qualifying office space. "Warehouse" means facilities used for the storage of raw materials or finished goods.
(p) "Qualified employment position" means a permanent full-time employee employed in the eligible investment project during the entire tax year. The "entire tax year" means the full-time position is filled for a period of twelve consecutive months. "Full time" means at least 35 hours a week, 455 hours a quarter, or 1,820 hours a year.
(q) "Qualified machinery and equipment" means all new industrial and research fixtures, equipment, and support facilities that are an integral and necessary part of a manufacturing operation or research and development operation. "Qualified machinery and equipment" includes: Computers, software, data processing equipment, laboratory equipment; manufacturing components such as belts, pulleys, shafts and moving parts; molds, tools and dies; operating structures; and all equipment used to control or operate machinery. It also includes machinery and equipment acquired under the terms of a long- or short-term lease by the recipient. "New" as used in this subsection means either new to the taxing jurisdiction of the state or new to the certificate holder.
(r) "Recipient" means a person receiving a tax deferral under this program.
(s) "Research and development" means the development, refinement, testing, marketing, and commercialization of a product, service, or process before commercial sales have begun. As used in this subsection, "commercial sales" excludes sales of prototypes or sales for market testing if the total gross receipts from such sales of the product, service, or process do not exceed one million dollars.
(28) Issuance of deferral certificate. The department will issue a sales and use tax deferral certificate for state and local sales and use taxes due under chapters 82.08, 82.12, and 82.14 RCW for an eligible investment project. The department will state on the certificate the amount of tax deferral for which the recipient is eligible. Recipients must keep track of how much deferral is taken.
(29) Eligible investment amount. Recipients are eligible for a deferral on investment used to create employment positions.
(a) Total qualifying project costs must be examined to determine the number of positions associated with the project. Total qualifying project costs are divided by three hundred thousand, the result being the qualified employment positions. This is the number of positions used as the hiring benchmark at the end of year three. The qualified employment positions are reviewed in the third year, following December 31st of the year the project is operationally complete. If the recipient has failed to create the requisite number of positions, the department will issue an assessment under subsection (37) of this rule. Buildings that will be used partly for manufacturing or research and development and partly for other purposes are eligible for a deferral on a proportionate basis. Subsection (30) of this rule explains the procedure for apportionment.
(b) Qualified employment positions does not include those persons hired in excess of the ratio of one employee per required dollar of investment for which a deferral is granted. In the event an employee is either voluntarily or involuntarily separated from employment, the employment position will be considered filled if the employer is either training or actively recruiting a replacement employee so long as the position is not actually vacant for any period in excess of thirty consecutive days.
(30) Apportionment of costs between qualifying and
nonqualifying investments. The deferral is allowable only in
respect to investment in the construction of a new building or
the expansion or renovation of existing buildings directly
used in manufacturing ((activities, and directly used in the
activities performed by)), research and development, or
commercial testing laboratories.
(a) Where a building(s) is used partly for manufacturing
or research and development, or commercial testing and partly
for purposes, which do not qualify for deferral under this
rule, the deferral will be determined by apportionment of the
total project costs. The applicable tax deferral will be
determined by apportionment according to the ratio of the
((construction cost per)) square ((foot)) footage of that
portion of the building(s) directly used for manufacturing or
research and development purposes bears to the ((construction
cost per)) square ((foot)) footage of the total building(s).
Apportionment formula:
| Eligible square feet of building(s) | ||
| = | Percent Eligible | |
| Total square feet of building(s) |
"Total Project Costs" means cost of multipurpose buildings and
other improvement costs associated with the deferral project. Machinery and equipment are not included in this calculation. Common areas, such as hallways and bathrooms, are not included
in the square feet figure for either the numerator or the
denominator. The cost of the common areas is multiplied by
the percent eligible to determine the portion of the common
area that is eligible for deferral.
Eligible Tax Deferred = Eligible Cost x Tax Rate.
(b) Qualified machinery and equipment is not subject to
apportionment.
(31) Leased equipment. The amount of tax deferral allowable for leased equipment is the amount of the consideration paid by the recipient to the lessor over the initial term of the lease, excluding any period of extension or option to renew, up to the last date for repayment of the deferred taxes. After that date the recipient must pay the appropriate sales taxes to the lessor for the remaining term of the lease.
(32) Application procedure and review process. An application for sales and use tax deferral under this program must be made prior to the initiation of construction and the acquisition of equipment or machinery. Persons who apply after construction is initiated or finished or after acquisition of machinery and equipment are not eligible for the program.
(a) Application forms will be supplied to the applicant
by the department upon request. The completed application may
be sent by fax to ((())360(()))-586-2163 or mailed to the
following address:
State of Washington
Department of Revenue
Special Programs
P.O. Box ((448)) 47477
Olympia, WA 98507-((0448))7477
(b) The department will verify the information contained
in the application and either approve or disapprove the
application within sixty days. If approved, the department
will issue a tax deferral certificate. If disapproved, the
department will notify the applicant as to the reason(s) for
disapproval. The U.S. Post Office postmark or fax date will
be used as the date of application.
(c) The applicant may seek administrative review of the department's refusal to issue a certificate pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements, within thirty days from the date of notice of the department's refusal, or within any extension of such time granted by the department. The filing of a petition for review with the department starts a review of departmental action.
(33) Unemployment criteria. For purposes of making application for tax deferral and of approving such applications, the statewide and county unemployment statistics last published by the department will be used to determine eligible areas. The department will update the list of eligible areas by county, on an annual basis.
(34) Use of the certificate. A tax deferral certificate issued under this program is for the use of the recipient for deferral of sales and use taxes due on each eligible investment project. Deferral is limited only to investment in qualified buildings or qualified machinery and equipment as defined in this Part III. Thus, sales and use taxes cannot be deferred on items that do not become part of the qualified buildings, machinery, or equipment.
The tax deferral certificate is to be used in a manner similar to that of a resale certificate as set forth in WAC 458-20-102, Resale certificates. The certificate holder must provide a copy of the tax deferral certificate to the seller at the time goods or services are purchased. The seller will be relieved of the responsibility for collection of the sales or use tax upon presentation of the certificate. The seller must retain a copy of the certificate as part of its permanent records for a period of at least five years. A blanket certificate may be provided by the certificate holder and accepted by the seller covering all such purchases relative to the eligible project. The seller is liable for business and occupation tax on all tax deferral sales. The deferral certificate is to defer the taxes of the recipient. For example, the deferral is not to be used to defer the taxes of the persons with whom the recipient does business, persons the recipient hires, or employees of the recipient.
(35) Project operationally complete. An applicant must provide the department with the estimated cost of the investment project at the time the application is made. Following approval of the application and issuance of a tax deferral certificate, a certificate holder must notify the department, in writing, when the value of the investment project reaches the estimated cost as stated on the tax deferral certificate.
(a) If a certificate holder has reached its level of estimated costs and the project is not operationally complete, the certificate holder may request an amended certificate stating a revised amount upon which the deferral of sales and use taxes is requested. Requests must be mailed or faxed to the department.
(b) The certificate holder must notify the department in writing when the construction project is operationally complete. The department will certify the date on which the project was operationally complete. The recipient of the deferral must maintain the manufacturing or research and development activity for eight years from this date.
(c) The recipient will be notified in writing of the total amount of deferred taxes, the date(s) upon which the deferred taxes must be paid, and any reports required to be submitted in the subsequent years. If the department disallows all or any portion of the amount of sales and use taxes requested for deferral, the recipient may seek administrative review of the department's action pursuant to the provisions of WAC 458-20-100, within thirty days from the date of the notice of disallowance.
(36) Reporting and monitoring procedure. Requirement to submit annual reports. Each recipient of a sales and use tax deferral must submit a report to the department on December 31st of each year during the repayment period until the tax deferral is repaid. The report must be made to the department in a form and manner prescribed by the department. The report must contain information regarding the actual employment related to the project and any other information required by the department. If the recipient fails to submit a report or submits an inadequate or falsified report, the department may declare the amount of deferred taxes outstanding to be immediately assessed and payable. An inadequate or falsified report is one that contains material omissions or contains knowingly false statements and information.
(37) Repayment of deferred taxes. The recipient must begin paying the deferred taxes in the third year after the date certified by the department as the date on which the construction project has been operationally completed.
(a) The first payment will be due on December 31st of the third calendar year after such certified date, with subsequent annual payments due on December 31st of the following four years, with amounts of payment scheduled as follows:
| Repayment Year | Percentage of Deferred Tax Repaid |
||
| 1 | (Year certified operationally complete) | 0% | |
| 2 | 0% | ||
| 3 | 0% | ||
| 4 | 10% | ||
| 5 | 15% | ||
| 6 | 20% | ||
| 7 | 25% | ||
| 8 | 30% | ||
(b) The department may authorize an accelerated repayment schedule upon request of the recipient. Interest will not be charged on any taxes deferred under this part during the period of deferral, although other penalties and interest applicable to delinquent excise taxes may be assessed and imposed for any delinquent payments during the repayment period pursuant to chapter 82.32 RCW.
(c) Taxes deferred on the sale or use of labor directly applied in the construction of an investment project for which deferral has been granted need not be repaid, provided eligibility for the granted tax deferral has been perfected by meeting all of the eligibility requirements, based upon the recipient's annual December 31 reports and any other information available to the department. The recipient must establish, by clear and convincing evidence, the value of all construction and installation labor for which repayment of sales tax is sought to be excused. Such evidence must include, but is not limited to: A written, signed, and dated itemized billing from construction/installation contractors or independent third party labor providers which states the value of labor charged separately from the value of materials. This information must be maintained in the recipient's permanent records for the department's review and verification. In the absence of such itemized billings in its permanent records, no recipient may be excused from repayment of sales tax on the value of labor in an amount exceeding thirty percent of its gross construction or installation contract charges. The value of labor for which an excuse from repayment of sales or use tax may be received will not exceed the value which is subject to such taxes under the general provisions of chapters 82.08 and 82.12 RCW.
(d) Failure of investment project to satisfy general conditions. If, on the basis of the recipient's annual report or other information, including that submitted by the department of employment security, the department finds that an investment project is not eligible for tax deferral for reasons other than failure to create the required number of qualified employment positions, the department will declare the amount of deferred taxes outstanding to be immediately due. For example, a reason for disqualification would be the facility is not used for a manufacturing or research and development operation.
(e) Failure of investment project to satisfy required employment positions. If, on the basis of the recipient's annual report or other information, the department finds that an investment project has been operationally complete for three years and has failed to create the required number of qualified employment positions, the department will assess interest but not penalties, on the deferred taxes for the project. The department will assess interest at the rate provided for delinquent excise taxes under RCW 82.32.050, retroactively to the date of the date of deferral. No penalties will be assessed.
(f) The department of employment security makes and certifies to the department all determinations of employment and wages required under this subsection, per request.
(g) Any action taken by the department to assess interest or disqualify a recipient for tax deferral will be subject to administrative review pursuant to the provisions of WAC 458-20-100, Appeals, small claims and settlements. The filing of a petition for review with the department starts a review of departmental action.
(38) Debt not extinguished because of insolvency or sale. Insolvency or other failure of the recipient does not extinguish the debt for deferred taxes nor will the sale, exchange, or other disposition of the recipient's business extinguish the debt for the deferred taxes. Transfer of ownership does not terminate the deferral. The deferral is transferred, subject to the successor meeting the eligibility requirements of this chapter, for the remaining periods of the deferral. Any person who becomes a successor (see WAC 458-20-216) to such investment project will be liable for the full amount of any unpaid, deferred taxes under the same terms and conditions as the original recipient.
(39) Disclosure of information. Applications and reports received by the department under chapter 82.60 RCW are not confidential and are subject to disclosure. (RCW 82.60.100.)
[Statutory Authority: RCW 82.32.300. 01-12-041, § 458-20-24001A, filed 5/30/01, effective 6/30/01.]