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Film Incentives/Investment Partnerships Bill
Signed into Law by Governor Riley
By Bruce P. Ely and James E. Long i.
Following votes of 102—0 in the Alabama House of Representatives and 32-0 in the Senate, House Bill 69, known as the “Entertainment Industry Incentive Act of 2009,’ was signed into law by Governor Bob Riley yesterday. It is now Act 2009-144.
The Act is the successor to two separate bills, each introduced and almost passed in the 2008 regular session. The first dealt with film production incentives, while the other tightened the rules regarding composite returns and withholding for non-resident partners and LLC members, coupled with a safe harbor for ”qualifled investment partnerships” (QIPs) and publicly-traded limited partnerships (P11’s) and their non-resident investors.
House Bill 69 is one of the first tax bills signed into law by Governor Riley this session and was supported by a number of diverse business and trade associations, including the Alabama Department of Tourism, the Alabama Development Office, the Business Council of Alabama, the Alabama Retail Association, the Economic Developers Association of Alabama (EDAA), the Motion Picture Association of America (MPAA) and the Birmingham Regional Chamber of Commerce. A number of investment fund managers, as well as the Biotechnology Association of Alabama and Birmingham Venture Club, also supported the QIP provisions of the bill. Our firm represented the latter group in these negotiations.
The film and entertainment incentives portion of the bill provides for:
1. Exemptions on sales, use and lodging taxes for qualified production companies operating in Alabama;
2. Income tax credits equal to 25% of qualified production expenditures, excluding payroll and benefits paid to Alabama residents;
3. A 35% rebate for all payroll expenses paid by qualified production companies to Alabama residents when those expenses exceed $500,000 but are less than $10 million; and
4. A 25%/35%credit or rebate for qualified production expenditures related exclusively to developing soundtracks.
The total amount of tax exemptions and rebates that can be granted to qualified production companies in any one calendar year is capped, however, at $5 million for the remainder of 2009, $7.5 million for 2010, and $10 million for 201 1 and beyond. The authors and bill sponsors hope those caps can be increased next year, depending on the state’s financial situation.
A Baldwin County, Alabama-based film producer, Scott Lumpkin, told The Mobile Press Register recently that he was excited about the incentives bill. “1 was doing at least two movies a year here in Alabama until four years ago [when the former incentives act sunset], and then it got to where I couldn’t compete anymore. The incentives were too good everywhere else
The QIP/composite return provisions were merged into
House Bill 69 by its chief sponsor, House
budget committee chairman Richard Lindsey, in order to spay for” the film
incentives. Section 13 of the bill so states, which is a rare legislative
declaration. During the House deliberations, however, the Alabama Department
of Revenue (ADOR) asked Chairman Lindsey to amend the bill to reinstate a
statutory penalty repealed in 1995, according to its Administrative Law
Division, relating to a taxpayer’s failure to pay the appropriate tax when it
timely filed the return but the return did not report the correct amount of
tax. This amendment provided the ADOR, and the powerful Alabama Education
Association, comfort that the bill was revenue neutral, if not a slight
revenue raiser--even without considering the anticipated tax revenues and new
jobs that many expect to be generated by both aspects of the bill, beginning
Also during legislative deliberations, the effective date of the bill was changed so that all amendmentsareretroactivetoianuary 1,2009, meaning that QlPs and their non-resident investors can now rely on the safe harbor protection afforded by Act 2009-144. On the other hand, nonresident member/partner withholding (unless they have consented to filing a composite return) should already be implemented. The authors have sought advice from the Director of the Income Tax Division regarding how the ADOR will administer these provisions during 2009. The Tourism Department and the ADOR are already working on proposed regulations and forms to implement the film incentives portion of the Act. According to the Governor’s comments yesterday, we can expect to have those procedures in place no later than August.
If you have any questions regarding the new Act, please contact the authors or any other member of our SALT Practice Group.
Alabama is an atmosphere so stimulating diverse filmmakers find it hard to resist being captivated by its charms. It is a state, which has forever nurtured giants of literature, music, art and theater.
Alabama is a stunning contrast of environments - the most biologically diverse place in America outside of California. The past still lives in Alabama's cities and towns, while space-age technology and modern industry flourish.
With legendary southern hospitality, Alabama has catered to everything from small, independent shorts to massive Hollywood film productions.
Let us demonstrate to you the countless advantages of filming in Alabama. Contact the Alabama Film Office today.
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