Nebraska Statutes 77-5538. Tax credit; recapture or disallowance; interest and penalties
(1) If the company fails to utilize a project in a qualified business at or above the required levels of employment and investment required in the Invest Nebraska Act for the entire entitlement period, a portion of the wage benefit credit or investment tax credit shall be recaptured directly by the state from the company or shall be disallowed. In no event shall any wage benefit credit be required to be paid back directly or indirectly by the employees, but instead shall be paid by the company.
Terms Used In Nebraska Statutes 77-5538
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Board: means the Invest Nebraska Board, which shall consist of the Governor, the State Treasurer, and the chairperson of the Nebraska Investment Council. See Nebraska Statutes 77-5508
- Company: means (1) any person subject to sales and use taxes and either the income tax imposed by the Nebraska Revenue Act of 1967 or the franchise tax under sections 77-3801 to 77-3807, (2) any corporation, partnership, limited liability company, or joint venture that is or would otherwise be a member of the same unitary group, if incorporated, which is, or whose partners, members, or owners are, subject to such taxes, and any other partnership, limited liability company, subchapter S corporation, or joint venture when the partners, owners, shareholders, or members are subject to such taxes, (3) any cooperative exempt from such taxes under section 521 of the Internal Revenue Code of 1986, as amended, and (4) any limited cooperative association. See Nebraska Statutes 77-5509
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- Investment: means the value of qualified property incorporated into or used at the project after the date of the application. See Nebraska Statutes 77-5520
- Lien: A claim against real or personal property in satisfaction of a debt.
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Project: means a project described in the Invest Nebraska Act and approved by the board. See Nebraska Statutes 77-5523
- Qualified business: means any business engaged in the activities listed in subdivisions (1) through (5) of this section or in the storage, warehousing, distribution, transportation, or sale of tangible personal property. See Nebraska Statutes 77-5525
- State: when applied to different states of the United States shall be construed to extend to and include the District of Columbia and the several territories organized by Congress. See Nebraska Statutes 49-801
- Year: means the taxable year of the company. See Nebraska Statutes 77-5530
(2) In the case of a company which has failed to maintain the project at the required levels of employment and investment for the entire entitlement period the recapture or disallowance shall be as follows: (a) No wage benefit credits or investment tax credits shall be allowed to the company for the actual year or years in which the required levels of employment or investment were not maintained; (b) for wage benefit credits or investment tax credits used, one-tenth of the credits shall be recaptured from the company for each year the required levels of employment or investment were not maintained; and (c) as to wage benefits credits or investment tax credits remaining at the end of the entitlement period, one-tenth of the credits shall be disallowed to the company for each year the required levels of employment or investment were not maintained in previous years.
(3)(a) Any amounts required to be recaptured shall be deemed to be an underpayment of tax, shall be immediately due and payable, and shall constitute a lien on the assets of the company. When wage benefit credits or investment tax credits were received in more than one year, the credits received in the most recent year shall be recovered first and then the credits received in earlier years up to the extent of the required recapture.
(b) In the case of a company which has failed to maintain the project at the required levels of employment and investment for the entire entitlement period, interest accrues from the due date for the return on which the credits being recaptured were used.
(c) Penalties for underpayment of withholding or income tax, as appropriate, do not accrue unless repayment is not made within ninety days after the requirement for recapture or disallowance becomes known or should have become known to the company.
(4) The recapture or disallowance required by this section may be waived by the board if the board finds the failure to attain or maintain the required levels of employment or investment was caused by unavoidable circumstances such as an act of God or national emergency.
(5) When recapture occurs with regard to any partnership, limited liability company, subchapter S corporation, joint venture, cooperative, or estate or trust, the partnership, limited liability company, subchapter S corporation, joint venture, cooperative, or estate or trust shall be liable for payment of the required recapture.