Chapter 957 Oregon Laws 2001

 

AN ACT

 

SB 229

 

Relating to taxation; creating new provisions; and amending ORS 285B.650, 285B.707, 285B.713, 314.752 and 318.031.

 

Be It Enacted by the People of the State of Oregon:

 

          SECTION 1. ORS 285B.650 is amended to read:

          285B.650. As used in ORS 285B.650 to 285B.728, unless the context requires otherwise:

          (1) “Business firm” means a person operating or conducting one or more trades or businesses but does not include any governmental agency, municipal corporation or nonprofit corporation.

          (2) “Electronic commerce” means engaging in commercial or retail transactions predominantly over the Internet or a computer network, utilizing the Internet as a platform for transacting business or facilitating the use of the Internet by other persons for business transactions, and may be further defined by the Economic and Community Development Department by rule.

          [(2)] (3) “Eligible business firm” means a firm engaged in an activity described under ORS 285B.707 which may file an application for precertification under ORS 285B.719.

          [(3)] (4) “Employee” means a person who works more than 32 hours per week, but does not include persons with temporary or seasonal jobs or persons hired solely to construct qualified property.

          [(4)] (5) “Enterprise zone” means one of the 30 areas designated or terminated and redesignated by order of the Governor under ORS 284.160 (1987 Replacement Part) before October 3, 1989, one of the 17 areas designated by the Director of the Economic and Community Development Department under ORS 285B.653, areas designated under ORS 285B.677 and areas designated under ORS 285B.689.

          [(5)] (6) “First-source hiring agreement” means an agreement between a precertified business firm and a publicly funded job training provider whereby the job training provider refers qualified candidates to the firm for new jobs and job openings in the firm.

          [(6)] (7) “Modification” means modernization, renovation or remodeling of an existing building or structure.

          [(7)] (8) “Nonurban enterprise zone” means an enterprise zone located outside a regional or metropolitan urban growth boundary.

          [(8)] (9) “Precertified business firm” means an eligible business firm whose application for precertification has been approved under ORS 285B.719 and which may apply for a property tax exemption under ORS 285B.722.

          [(9)] (10) “Publicly funded job training provider” includes but is not limited to, community colleges, Job Training Partnership Act service providers, and other similar programs.

          [(10)] (11) “Qualified business firm” means a business firm described in ORS 285B.704 whose application for a property tax exemption has been approved under ORS 285B.722.

          [(11)] (12) “Qualified property” means property described under ORS 285B.713.

          [(12)] (13) “Sponsor” means the city or county that applied for and received approval of an enterprise zone under ORS 284.150 and 284.160 (1987 Replacement Part), under ORS 285B.656 and 285B.659, under ORS 285B.677 or 285B.686 or under ORS 285B.689.

          [(13)] (14) “Urban enterprise zone” means an enterprise zone in a metropolitan statistical area, as defined by the most recent federal decennial census, located inside a regional or metropolitan urban growth boundary.

 

          SECTION 2. (1) A sponsor of an existing enterprise zone may seek to have the zone designated for electronic commerce under this section.

          (2) The sponsor shall file an application to have the zone designated for electronic commerce with the Economic and Community Development Department. The application shall be in the form and contain the information that the department by rule may require.

          (3) The application shall be accompanied by a copy of a resolution, adopted by the governing body of the sponsor, requesting that the zone be designated for electronic commerce.

          (4) The department shall review applications for electronic commerce designation and shall approve no more than four zones for electronic commerce designation. In approving zones for electronic commerce designation, the department shall strive to approve zones for electronic commerce designation in different geographic areas of this state.

 

          SECTION 2a. Section 2b of this 2001 Act is added to and made a part of ORS 285B.650 to 285B.728.

 

          SECTION 2b. (1) Notwithstanding sections 2 and 5 of this 2001 Act, a city shall be designated for electronic commerce if the city:

          (a) By resolution of the governing body of the city, declares itself a city designated for electronic commerce;

          (b) As of the effective date of this 2001 Act, has a population of more than 1,500 but less than 2,000;

          (c) Is located less than 25 miles from a city with a population of more than 500,000; and

          (d) Is located less than 10 miles from a city with a high concentration of high technology firms and with a population that, as of the effective date of this 2001 Act, does not exceed 85,000.

          (2) Only one city may be designated for electronic commerce under this section, and that designation shall be made without consideration of the numeric or geographic limitations imposed by section 2 of this 2001 Act.

          (3)(a) A city does not need to be a sponsor of an enterprise zone to be designated for electronic commerce under this section.

          (b) The governing body of a city designated for electronic commerce under this section does not have to comply with the requirements of ORS 285B.650 to 285B.728, except that the governing body must take all actions under ORS 285B.650 to 285B.728 with respect to business firms that are required of a sponsor of a nonurban enterprise zone.

          (c) A business firm that is located in a city designated for electronic commerce under this section and that seeks an exemption under ORS 285B.698 must take all actions required of a qualified business firm under ORS 285B.650 to 285B.728, except that the business firm does not need to be located within an enterprise zone.

          (4) For the purpose of determining the boundaries of a city designated for electronic commerce, “city” includes:

          (a) Territory that is annexed into the city, as of the date of the annexation;

          (b) Land within the urban growth boundary of the city; and

          (c) Territory that is added to the urban growth boundary described in paragraph (b) of this subsection, as of the date the urban growth boundary is extended to such territory.

 

          SECTION 3. ORS 285B.707 is amended to read:

          285B.707. (1) Except as provided in subsections (3) and (4) of this section, to be an eligible business firm, a business firm must be engaged in the business of providing goods, products or services to other businesses, and not to the general public for personal or household use or consumption, through activities including, but not limited to, manufacturing, assembly, fabrication, processing, shipping or storage.

          (2) Businesses significantly engaged in business activities within the enterprise zone such as retail sales or services, child care, housing, retail food service, health care, tourism, entertainment, financial services, professional services, leasing space to others, property management, construction or other similar activities are not eligible business firms.

          (3) Notwithstanding subsection (1) or (2) of this section, a business firm that operates a hotel, motel or destination resort is an eligible business firm regardless of the sale of services for personal consumption, if allowed in the enterprise zone under ORS 285B.716.

          (4) Notwithstanding any other provision of this section, if a business firm described in subsection (2) of this section engages in an activity described in subsection (1) of this section, the business firm is an eligible business firm if the activity is performed at a location that is separate from the activity of the firm that is described in subsection (2) of this section. For purposes of determining whether a business firm described in this subsection satisfies the requirements of ORS 285B.704, only the operations of the firm that are described in subsection (1) of this section and employees working a majority of their time in those operations shall be considered.

          (5) Two or more business firms that otherwise meet the requirements of this section may elect to be treated as one eligible business firm if 100 percent of the equity interest in the business firms is owned by the same person or persons, or if one of the business firms owns 100 percent of the equity interest of the other or others.

          (6) Notwithstanding subsection (1) or (2) of this section, a business firm engaged in the activity of providing a retail or financial service is an eligible business firm if:

          (a) The activity serves customers by responding to orders or requests received only by telephone, computer, the Internet or similar means of telecommunications; and

          (b) Not less than 90 percent of the customers or orders are located and originate in an area from which long distance telephone charges, in the absence of a toll-free number, would apply if the order were placed by telephone.

          (7) Notwithstanding subsection (1) or (2) of this section, a business firm that makes an investment in qualified property at a facility that serves statewide, regional, national or global operations of the firm through administrative, design, financial, management, marketing or other activities is an eligible business firm, without regard to the relationship of such activities to any otherwise eligible activities within the enterprise zone if:

          (a) In approving the application for precertification, the zone sponsor includes with the application a formal finding that the facility complies with the requirements of this subsection and that the size of the proposed investment, the employment at the facility or the nature of the activities at the facility will significantly enhance the local economy, in relation to the overall purpose and employment of the zone;

          (b) The actual investment and facility of the firm are consistent with the descriptions presented in the precertification application; and

          (c) For purposes of ORS 285B.704, all employees at the facility constitute employment of the firm, as defined in ORS 285B.704.

          (8) Notwithstanding subsection (1) or (2) of this section, a business firm that is engaged in electronic commerce is an eligible business firm if the enterprise zone has been approved for electronic commerce designation under section 2 of this 2001 Act.

 

          SECTION 4. ORS 285B.713 is amended to read:

          285B.713. (1) The property tax exemption provided under ORS 285B.698 shall be available only for qualified property of a qualified business firm.

          (2) The following kinds of property are qualified for the exemption allowed under ORS 285B.698:

          (a) A new building or structure with a cost of $25,000 or more.

          (b) An addition to or modification of an existing building or structure. The total cost of qualifying additions or modifications to an existing building or structure shall be at least $25,000 in one assessment year. In order to satisfy the minimum investment requirement, the cost of two or more additions or modifications made in one assessment year to a single building or structure may be aggregated.

          (c) Any real property machinery or equipment, whether new, used or reconditioned, that is newly purchased, leased or transferred into the enterprise zone from outside the county within which the zone is located and installed in property owned or leased by a qualified business firm.

          (d) Any single item of personal property machinery or equipment, whether new, used or reconditioned, that is newly purchased, leased or transferred into the enterprise zone from outside the county within which the zone is located and installed in property owned or leased by a qualified business firm and:

          (A) That has a cost of at least $1,000 if the property is used exclusively for producing tangible goods or is used in electronic commerce in a zone approved for electronic commerce designation under section 2 of this 2001 Act; or

          (B) That has a cost of at least $50,000.

          (e) A new building and associated structures owned by a governmental body that are leased to one or more qualified business firms.

          (f) Any property otherwise described in this section that is owned or leased and operated by a business firm operating a hotel, motel or destination resort, to the extent that the property is located on the same site as the hotel, motel or destination resort and is used primarily to serve overnight guests of the hotel, motel or destination resort. For purposes of this paragraph, property is primarily used to serve guests if at least 50 percent of any receipts from such use are paid by guests.

          (g) Any property otherwise described in this section that is owned or leased and operated by a business firm described in ORS 285B.707 (4), to the extent that the property is used exclusively in an activity described in ORS 285B.707 (1).

          (h) Any property otherwise described in this section that is owned or leased and operated by a business firm that is engaged in electronic commerce, if the enterprise zone in which the property is located is a zone approved for electronic commerce designation under section 2 of this 2001 Act.

          (3) The following property is not qualified for exemption under ORS 285B.698:

          (a) Land.

          (b) Self-propelled motorized vehicles.

          (c) Property excluded under ORS 285B.698 (5).

 

          SECTION 5. Qualified property owned or leased and operated by a qualified business firm engaged in electronic commerce may not receive an exemption under ORS 285B.698 unless the electronic commerce operations of the firm are located in an enterprise zone that has been approved for electronic commerce designation under section 2 of this 2001 Act.

 

          SECTION 6. Sections 2 and 5 of this 2001 Act are added to and made a part of ORS 285B.650 to 285B.728.

 

          SECTION 7. Section 8 of this 2001 Act is added to and made a part of ORS chapter 315.

 

          SECTION 8. (1) A credit against the taxes that are otherwise due under ORS chapter 316 or, if the taxpayer is a corporation, under ORS chapter 317 or 318, shall be allowed to a taxpayer that is:

          (a) A qualified business firm engaged in electronic commerce in an enterprise zone that has been approved for electronic commerce designation under section 2 of this 2001 Act; or

          (b) A business firm engaged in electronic commerce in a city that has been designated for electronic commerce under section 2b of this 2001 Act.

          (2) The credit shall equal 25 percent of the investments made by the business firm during the tax year in electronic commerce operations within the area designated for electronic commerce that are related to electronic commerce sales, customer service, order fulfillment or broadband infrastructure.

          (3) A credit under this section may not be allowed for an income tax year beginning in a property tax year in which qualified property of the business firm is subject to property tax.

          (4) A credit allowed under this section may not exceed the lesser of $2 million or the tax liability of the taxpayer.

          (5) Any tax credit otherwise allowable under this section that is not used by the taxpayer in a particular year may be carried forward and offset against the taxpayer's tax liability for the next succeeding tax year. Any credit remaining unused in the next succeeding tax year may be carried forward and used in the second succeeding tax year, and likewise any credit not used in that second succeeding tax year may be carried forward and used in the third succeeding tax year, and any credit not used in that third succeeding tax year may be carried forward and used in the fourth succeeding tax year, and any credit not used in that fourth succeeding tax year may be carried forward and used in the fifth succeeding tax year, but may not be carried forward for any tax year thereafter.

          (6) As used in this section, “business firm,” “electronic commerce,” “qualified business firm” and “qualified property” have the meanings given those terms in ORS 285B.650.

 

          SECTION 9. Sections 10 and 11 of this 2001 Act are added to and made a part of ORS chapter 285B.

 

          SECTION 10. (1) As used in this section and section 11 of this 2001 Act:

          (a) “Advanced telecommunications facilities” means high-speed, dedicated or switched broadband telecommunications infrastructure or equipment that enables users to send or receive high quality voice, data or video telecommunications using any technology.

          (b) “Last mile connection” means a communications channel from the feed from a connecting bypassing intercity telecommunications carrier through a telecommunications switching center, or an individual message distribution point, to a user terminal.

          (c) “Local exchange carrier” means a person that holds a certificate of authority issued by the Public Utility Commission under ORS 759.020 to provide intrastate telecommunications service or local exchange telecommunications service within this state.

          (d) “Telecommunications carrier” means a provider of telecommunications services, but does not include an aggregator, as defined in 47 U.S.C. 226.

          (2) A telecommunications carrier seeking a tax credit under section 15 of this 2001 Act for the installation of advanced telecommunications facilities, prior to incurring any costs associated with the installation, shall apply to the Economic and Community Development Department for certification of the facilities as advanced telecommunications facilities.

          (3) The application for certification shall be in the form and shall contain the information required by the department pursuant to rules adopted by the department for the administration of the tax credit certification under this section, including but not limited to:

          (a) A complete description of the installation project and the customers to be served by the project;

          (b) The expected costs for completing the project;

          (c) The expected start date and the expected date on which the advanced telecommunications facilities are to be placed in service;

          (d) The geographic area or areas in which the advanced telecommunications facilities are to be installed; and

          (e) A description of how the facilities will be integrated into the operations of the intrastate telecommunications services provided by the telecommunications carrier.

          (4) The application for certification shall be accompanied by technical documentation demonstrating that the facilities will meet or exceed applicable minimum performance standards established by the department under section 11 of this 2001 Act.

          (5) The department may approve or deny an application for certification or may request changes to the application before issuing certification. Denial of an application may be appealed to the department in the manner of a contested case under ORS 183.310 to 183.550.

          (6) The department shall approve an application and certify the facilities as advanced telecommunications facilities if the facilities:

          (a) Are to be located in an area in which current minimum bandwidth service is not available to a majority of customers;

          (b) Improve access to advanced telecommunications services for a majority of all customers in unserved or underserved service areas; and

          (c) Meet the minimum performance standards to comply with section 11 of this 2001 Act.

          (7) Upon approval of an application, the department shall send to the applicant a written certification of the facilities as advanced telecommunications facilities. The certification shall state the date by which the facilities must be placed in service and the cost of the facilities that are being certified.

          (8) Notwithstanding subsection (6) of this section, the department may not approve an application and certify a facility if the cost of the facility plus the certified costs of all other facilities that have been certified during the year exceeds $10 million.

          (9) The department may establish by rule the amount of fees charged to applicants seeking certification of facilities as advanced telecommunications facilities. Revenues from the fees shall be used to offset the costs incurred by the department in administering the tax credit certification under this section.

 

          SECTION 11. (1) The Economic and Community Development Department shall adopt rules setting minimum performance standards that facilities must meet to be certified as advanced telecommunications facilities. The rules must establish minimum performance standards in the following areas:

          (a) Enhancement of individual and business access to advanced telecommunications services at an economically reasonable cost;

          (b) Development and transition to a fully competitive telecommunications marketplace;

          (c) Provision of bidirectional bandwidth capabilities to customers;

          (d) Accessibility to competitive local exchange carriers;

          (e) Improvement in access by public and private educational institutions, rural health clinics and libraries to advanced telecommunications services;

          (f) Improvement in telecommunications connections between communities in this state;

          (g) Improvement in last mile connections within this state; and

          (h) Improvement in access by Oregon health care providers to interactive video and other health care applications requiring advanced telecommunications services.

          (2) In order for facilities to be certified under section 10 of this 2001 Act, the facilities must meet or exceed the minimum performance standards in at least one of the areas set forth in subsection (1) of this section.

 

          SECTION 12. The Economic and Community Development Department may issue certifications under section 10 of this 2001 Act on or after January 1, 2002, and before December 31, 2005.

 

          SECTION 13. The Oregon Economic and Community Development Commission shall report to the Seventy-third Legislative Assembly on the effectiveness of the tax credit provided under section 15 of this 2001 Act in improving advanced telecommunications capability in underserved areas of this state and in achieving the other purposes for which the credit was established. The commission shall report to the Seventy-third Legislative Assembly on or before March 15, 2005.

 

          SECTION 14. Section 15 of this 2001 Act is added to and made a part of ORS chapter 315.

 

          SECTION 15. (1) There shall be allowed a credit against the taxes otherwise due under ORS chapter 316 (or, if the taxpayer is a corporation, under ORS chapters 317 and 318) for advanced telecommunications facilities, as defined in section 10 of this 2001 Act, that have been certified by the Economic and Community Development Department.

          (2) The amount of the credit shall equal 20 percent of the certified cost of the facilities that was actually paid or incurred by the taxpayer, except that:

          (a) The amount of the credit may not include facility costs that were paid using moneys withdrawn from the taxpayer's Telecommunications Infrastructure Account established pursuant to ORS 759.405; and

          (b) Revenues forgone by the taxpayer upon the taxpayer's waiver of installation charges for advanced telecommunications facilities to schools, rural health clinics or libraries may be added to the amount of the credit.

          (3) The credit may be claimed by the taxpayer for the tax year in which the advanced telecommunications facilities are placed in service.

          (4) The credit allowed under this section may not exceed the tax liability of the taxpayer and may not be carried forward to a succeeding tax year.

          (5) In the case of a credit allowed under this section:

          (a) A nonresident shall be allowed the credit under this section in the proportion provided in ORS 316.117.

          (b) If a change in the status of a taxpayer from resident to nonresident or from nonresident to resident occurs, the credit allowed by this section shall be determined in a manner consistent with ORS 316.117.

          (c) If a change in the taxable year of a taxpayer occurs as described in ORS 314.085, or if the Department of Revenue terminates the taxpayer's taxable year under ORS 314.440, the credit allowed under this section shall be prorated or computed in a manner consistent with ORS 314.085.

          (6) The credit shall be claimed on a form prescribed by the Department of Revenue and containing any information as may be required by the department. The taxpayer shall attach a copy of the certification to the return for the tax year for which the credit is claimed.

 

          SECTION 16. Section 17 of this 2001 Act is added to and made a part of ORS chapter 759.

 

          SECTION 17. The Public Utility Commission may not require a reduction in a rate or a schedule of rates as a result of a tax credit under section 15 of this 2001 Act being allowed to a telecommunications utility.

 

          SECTION 18. ORS 314.752 is amended to read:

          314.752. (1) Except as provided in ORS 314.740 (5)(b), the tax credits allowed or allowable to a C corporation for purposes of ORS chapter 317 or 318 shall not be allowed to an S corporation. The business tax credits allowed or allowable for purposes of ORS chapter 316 shall be allowed or are allowable to the shareholders of the S corporation.

          (2) In determining the tax imposed under ORS chapter 316, as provided under ORS 314.734, on income of the shareholder of an S corporation, there shall be taken into account the shareholder's pro rata share of business tax credit (or item thereof) that would be allowed to the corporation (but for subsection (1) of this section) or recapture or recovery thereof. The credit (or item thereof), recapture or recovery shall be passed through to shareholders in pro rata shares as determined in the manner prescribed under section 1377(a) of the Internal Revenue Code.

          (3) The character of any item included in a shareholder's pro rata share under subsection (2) of this section shall be determined as if such item were realized directly from the source from which realized by the corporation, or incurred in the same manner as incurred by the corporation.

          (4) If the shareholder is a nonresident and there is a requirement applicable for the business tax credit that in the case of a nonresident that the credit be allowed in the proportion provided in ORS 316.117, then that provision shall apply to the nonresident shareholder.

          (5) As used in this section, “business tax credit” means a tax credit granted to personal income taxpayers to encourage certain investment, to create employment, economic opportunity or incentive or for charitable, educational, scientific, literary or public purposes that is listed under this subsection as a business tax credit or is designated as a business tax credit by law or by the Department of Revenue by rule and includes but is not limited to the following credits: ORS 315.104 (forestation and reforestation), ORS 315.134 (fish habitat improvement), ORS 315.138 (fish screening, by-pass devices, fishways), ORS 315.156 (crop gleaning), ORS 315.164 (farmworker housing), ORS 315.204 (dependent care assistance), ORS 315.208 (dependent care facilities), ORS 315.234 (child development program contributions), ORS 315.254 (youth apprenticeship sponsorship), ORS 315.304 (pollution control facility), ORS 315.324 (plastics recycling), ORS 315.354 and ORS 469.207 (energy conservation facilities), ORS 315.504 (Oregon Capital Corporation), ORS 315.604 (bone marrow transplant expenses) and ORS 317.115 (fueling stations necessary to operate an alternative fuel vehicle) and section 8 of this 2001 Act (electronic commerce) and section 15 of this 2001 Act (advanced telecommunications facilities).

 

          SECTION 19. ORS 318.031 is amended to read:

          318.031. It being the intention of the Legislative Assembly that this chapter and the Corporation Excise Tax Law of 1929 shall be administered as uniformly as possible (allowance being made for the difference in imposition of the taxes and the operative date of this chapter), the provisions of ORS 305.140 and 305.150 and ORS chapter 314 and of the following sections of ORS chapter 315 or 317, as amended on or before August 3, 1955, and as they may thereafter be amended, are incorporated into this chapter by this reference and made a part hereof: ORS 315.104, 315.134, 315.156, 315.204, 315.208, 315.234, 315.254, 315.304, 315.504 and 315.604and section 15 of this 2001 Act (all only to the extent applicable for a corporation) and ORS 317.010, 317.013, 317.018 to 317.022, 317.030, 317.035, 317.038, 317.080, 317.152 to 317.154, 317.259 to 317.303, 317.310 to 317.386, 317.476 to 317.485, 317.510 to 317.635 and 317.705 to 317.725 and section 40, chapter 835, Oregon Laws 1997, and section 4, chapter 358, Oregon Laws 1999, and section 8 of this 2001 Act.

 

          SECTION 20. Sections 8 and 15 of this 2001 Act and the amendments to ORS 314.752 and 318.031 by sections 18 and 19 of this 2001 Act apply to tax years beginning on or after January 1, 2002.

 

Approved by the Governor August 10, 2001

 

Filed in the office of Secretary of State August 13, 2001

 

Effective date January 1, 2002

__________