HF 1268

1st Division Engrossment - 91st Legislature (2019 - 2020) Posted on 04/12/2019 08:05am

A bill for an act
relating to taxation; income; making the small business investment credit
permanent; making technical and conforming changes; amending Minnesota
Statutes 2018, section 116J.8737, subdivisions 1, 2, 3, 4, 5, 6; repealing Minnesota
Statutes 2018, sections 116J.8737, subdivision 12; 290.0692, subdivision 6.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 116J.8737, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

(a) For the purposes of this section, the following terms have
the meanings given.

(b) "Qualified small business" means a business that has been certified by the
commissioner under subdivision 2.

(c) "Qualified investor" means an investor who has been certified by the commissioner
under subdivision 3.

(d) "Qualified fund" means a pooled angel investment network fund that has been certified
by the commissioner under subdivision 4.

(e) "Qualified investment" means a cash investment in a qualified small business of a
minimum of:

(1) $10,000 in a calendar year by a qualified investor; deleted text begin or
deleted text end

(2) new text begin $5,000 in a calendar year by a qualified investor in qualified greater Minnesota
businesses or minority- or women-owned businesses in Minnesota; or
new text end

new text begin (3) new text end $30,000 in a calendar year by a qualified fund.

A qualified investment must be made in exchange for common stock, a partnership or
membership interest, preferred stock, debt with mandatory conversion to equity, or an
equivalent ownership interest as determined by the commissioner.

(f) "Family" means a family member within the meaning of the Internal Revenue Code,
section 267(c)(4).

(g) "Pass-through entity" means a corporation that for the applicable taxable year is
treated as an S corporation or a general partnership, limited partnership, limited liability
partnership, trust, or limited liability company and which for the applicable taxable year is
not taxed as a corporation under chapter 290.

(h) "Intern" means a student of an accredited institution of higher education, or a former
student who has graduated in the past six months from an accredited institution of higher
education, who is employed by a qualified small business in a nonpermanent position for
a duration of nine months or less that provides training and experience in the primary
business activity of the business.

(i) "Liquidation event" means a conversion of qualified investment for cash, cash and
other consideration, or any other form of equity or debt interest.

(j) "Qualified greater Minnesota business" means a qualified small business that is also
certified by the commissioner as a qualified greater Minnesota business under subdivision
2, paragraph (h).

(k) "Minority group member" means a United States citizen who is Asian, Pacific
Islander, Black, Hispanic, or Native American.

(l) "Minority-owned business" means a business for which one or more minority group
members:

(1) own at least 50 percent of the business, or, in the case of a publicly owned business,
own at least 51 percent of the stock; and

(2) manage the business and control the daily business operations.

(m) "Women" means persons of the female gender.

(n) "Women-owned business" means a business for which one or more women:

(1) own at least 50 percent of the business, or, in the case of a publicly owned business,
own at least 51 percent of the stock; and

(2) manage the business and control the daily business operations.

(o) "Officer" means a person elected or appointed by the board of directors to manage
the daily operations of the qualified small business.

(p) "Principal" means a person having authority to act on behalf of the qualified small
business.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 2.

Minnesota Statutes 2018, section 116J.8737, subdivision 2, is amended to read:

Subd. 2.

Certification of qualified small businesses.

(a) Businesses may apply to the
commissioner for certification as a qualified small business or qualified greater Minnesota
small business for a calendar year. The application must be in the form and be made under
the procedures specified by the commissioner, accompanied by an application fee of $150.
Application fees are deposited in the small business investment tax credit administration
account in the special revenue fund. deleted text begin The application for certification for 2010 must be made
available on the department's website by August 1, 2010. deleted text end Applications for deleted text begin subsequent years' deleted text end
certification must be made available on the department's website by November 1 of the
preceding year.

(b) Within 30 days of receiving an application for certification under this subdivision,
the commissioner must either certify the business as satisfying the conditions required of a
qualified small business or qualified greater Minnesota small business, request additional
information from the business, or reject the application for certification. If the commissioner
requests additional information from the business, the commissioner must either certify the
business or reject the application within 30 days of receiving the additional information. If
the commissioner neither certifies the business nor rejects the application within 30 days
of receiving the original application or within 30 days of receiving the additional information
requested, whichever is later, then the application is deemed rejected, and the commissioner
must refund the $150 application fee. A business that applies for certification and is rejected
may reapply.

(c) To receive certification as a qualified small business, a business must satisfy all of
the following conditions:

(1) the business has its headquarters in Minnesota;

(2) at least: (i) 51 percent of the business's employees are employed in Minnesota; (ii)
51 percent of the business's total payroll is paid or incurred in the state; and (iii) 51 percent
of the total value of all contractual agreements to which the business is a party in connection
with its primary business activity is for services performed under contract in Minnesota,
unless the business obtains a waiver under paragraph (i);

(3) the business is engaged in, or is committed to engage in, innovation in Minnesota in
one of the following as its primary business activity:

(i) using proprietary technology to add value to a product, process, or service in a qualified
high-technology field;

(ii) researching or developing a proprietary product, process, or service in a qualified
high-technology field;

(iii) researching or developing a proprietary product, process, or service in the fields of
agriculture, tourism, forestry, mining, manufacturing, or transportation; or

(iv) researching, developing, or producing a new proprietary technology for use in the
fields of agriculture, tourism, forestry, mining, manufacturing, or transportation;

(4) other than the activities specifically listed in clause (3), the business is not engaged
in real estate development, insurance, banking, lending, lobbying, political consulting,
information technology consulting, wholesale or retail trade, leisure, hospitality,
transportation, construction, ethanol production from corn, or professional services provided
by attorneys, accountants, business consultants, physicians, or health care consultants;

(5) the business has fewer than 25 employees;

(6) the business must new text begin either:
new text end

new text begin (i) new text end pay its employees annual wages of at least 175 percent of the federal poverty guideline
for the year for a family of four and must pay its interns annual wages of at least 175 percent
of the federal minimum wage used for federally covered employers, except that this
requirement must be reduced proportionately for employees and interns who work less than
full-time, and does not apply to an executive, officer, or member of the board of the business,
or to any employee who owns, controls, or holds power to vote more than 20 percent of the
outstanding securities of the business; new text begin or
new text end

new text begin (ii) if the business is a qualified greater Minnesota business or minority- or women-owned
qualified small business, pay at least 51 percent of its employees annual wages of at least
175 percent of the federal poverty guideline for the year for a family of four and must pay
its interns annual wages of at least 175 percent of the federal minimum wage used for
federally covered employers, except that this requirement must be reduced proportionately
for employees and interns who work less than full time, and does not apply to an executive,
officer, or member of the board of the business, or to any employee who owns, controls, or
holds power to vote more than 20 percent of the outstanding securities of the business;
new text end

(7) the business has (i) not been in operation for more than ten years, or (ii) not been in
operation for more than 20 years if the business is engaged in the research, development,
or production of medical devices or pharmaceuticals for which United States Food and Drug
Administration approval is required for use in the treatment or diagnosis of a disease or
condition;

(8) the business has not previously received private equity investments of more than
$4,000,000;

(9) the business is not an entity disqualified under section 80A.50, paragraph (b), clause
(3); and

(10) the business has not issued securities that are traded on a public exchange.

(d) In applying the limit under paragraph (c), clause (5), the employees in all members
of the unitary business, as defined in section 290.17, subdivision 4, must be included.

(e) In order for a qualified investment in a business to be eligible for tax credits:

(1) the business must have applied for and received certification for the calendar year
in which the investment was made prior to the date on which the qualified investment was
made;

(2) the business must not have issued securities that are traded on a public exchange;

(3) the business must not issue securities that are traded on a public exchange within
180 days after the date on which the qualified investment was made; and

(4) the business must not have a liquidation event within 180 days after the date on
which the qualified investment was made.

(f) The commissioner must maintain a list of qualified small businesses and qualified
greater Minnesota businesses certified under this subdivision for the calendar year and make
the list accessible to the public on the department's website.

(g) For purposes of this subdivision, the following terms have the meanings given:

(1) "qualified high-technology field" includes aerospace, agricultural processing,
renewable energy, energy efficiency and conservation, environmental engineering, food
technology, cellulosic ethanol, information technology, materials science technology,
nanotechnology, telecommunications, biotechnology, medical device products,
pharmaceuticals, diagnostics, biologicals, chemistry, veterinary science, and similar fields;

(2) "proprietary technology" means the technical innovations that are unique and legally
owned or licensed by a business and includes, without limitation, those innovations that are
patented, patent pending, a subject of trade secrets, or copyrighted; and

(3) "greater Minnesota" means the area of Minnesota located outside of the metropolitan
area as defined in section 473.121, subdivision 2.

(h) To receive certification as a qualified greater Minnesota business, a business must
satisfy all of the requirements of paragraph (c) and must satisfy the following conditions:

(1) the business has its headquarters in greater Minnesota; and

(2) at least: (i) 51 percent of the business's employees are employed in greater Minnesota;
(ii) 51 percent of the business's total payroll is paid or incurred in greater Minnesota; and
(iii) 51 percent of the total value of all contractual agreements to which the business is a
party in connection with its primary business activity is for services performed under contract
in greater Minnesota, unless the business obtains a waiver under paragraph (i).

(i) The commissioner must exempt a business from the requirement under paragraph
(c), clause (2), item (iii), if the business certifies to the commissioner that the services
required under a contract in connection with the primary business activity cannot be
performed in Minnesota if the business otherwise qualifies as a qualified small business, or
in greater Minnesota if the business otherwise qualifies as a qualified greater Minnesota
business. The business must submit the certification required under this paragraph every
six months from the month the exemption was granted. The exemption allowed under this
paragraph must be submitted in a form and manner prescribed by the commissioner.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 3.

Minnesota Statutes 2018, section 116J.8737, subdivision 3, is amended to read:

Subd. 3.

Certification of qualified investors.

(a) Investors may apply to the
commissioner for certification as a qualified investor for a taxable year. The application
must be in the form and be made under the procedures specified by the commissioner,
accompanied by an application fee of $350. Application fees are deposited in the small
business investment tax credit administration account in the special revenue fund. deleted text begin The
application for certification for 2010 must be made available on the department's website
by August 1, 2010. deleted text end Applications for deleted text begin subsequent years' deleted text end certification must be made available
on the department's website by November 1 of the preceding year.

(b) Within 30 days of receiving an application for certification under this subdivision,
the commissioner must either certify the investor as satisfying the conditions required of a
qualified investor, request additional information from the investor, or reject the application
for certification. If the commissioner requests additional information from the investor, the
commissioner must either certify the investor or reject the application within 30 days of
receiving the additional information. If the commissioner neither certifies the investor nor
rejects the application within 30 days of receiving the original application or within 30 days
of receiving the additional information requested, whichever is later, then the application
is deemed rejected, and the commissioner must refund the $350 application fee. An investor
who applies for certification and is rejected may reapply.

(c) To receive certification, an investor must (1) be a natural person; and (2) certify to
the commissioner that the investor will only invest in a transaction that is exempt under
section 80A.46, clause (13) or (14), in a security exempt under section 80A.461, or in a
security registered under section 80A.50, paragraph (b).

(d) In order for a qualified investment in a qualified small business to be eligible for tax
credits, a qualified investor who makes the investment must have applied for and received
certification for the calendar year prior to making the qualified investment, except in the
case of an investor who is not an accredited investor, within the meaning of Regulation D
of the Securities and Exchange Commission, Code of Federal Regulations, title 17, section
230.501, paragraph (a), application for certification may be made within 30 days after
making the qualified investment.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 4.

Minnesota Statutes 2018, section 116J.8737, subdivision 4, is amended to read:

Subd. 4.

Certification of qualified funds.

(a) A pass-through entity may apply to the
commissioner for certification as a qualified fund for a calendar year. The application must
be in the form and be made under the procedures specified by the commissioner, accompanied
by an application fee of $1,000. Application fees are deposited in the small business
investment tax credit administration account in the special revenue fund. deleted text begin The application
for certification for 2010 of qualified funds must be made available on the department's
website by August 1, 2010. deleted text end Applications for deleted text begin subsequent years' deleted text end certification must be made
available by November 1 of the preceding year.

(b) Within 30 days of receiving an application for certification under this subdivision,
the commissioner must either certify the fund as satisfying the conditions required of a
qualified fund, request additional information from the fund, or reject the application for
certification. If the commissioner requests additional information from the fund, the
commissioner must either certify the fund or reject the application within 30 days of receiving
the additional information. If the commissioner neither certifies the fund nor rejects the
application within 30 days of receiving the original application or within 30 days of receiving
the additional information requested, whichever is later, then the application is deemed
rejected, and the commissioner must refund the $1,000 application fee. A fund that applies
for certification and is rejected may reapply.

(c) To receive certification, a fund must:

(1) invest or intend to invest in qualified small businesses;

(2) be organized as a pass-through entity; and

(3) have at least three separate investors, of whom at least three whose investment is
made in the certified business and who seek a tax credit allocation satisfy the conditions in
subdivision 3, paragraph (c).

(d) Investments in the fund may consist of equity investments or notes that pay interest
or other fixed amounts, or any combination of both.

(e) In order for a qualified investment in a qualified small business to be eligible for tax
credits, a qualified fund that makes the investment must have applied for and received
certification for the calendar year prior to making the qualified investment.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 5.

Minnesota Statutes 2018, section 116J.8737, subdivision 5, is amended to read:

Subd. 5.

Credit allowed.

(a) deleted text begin (1) deleted text end A qualified investor or qualified fund is eligible for a
credit equal to 25 percent of the qualified investment in a qualified small business.
Investments made by a pass-through entity qualify for a credit only if the entity is a qualified
fund. The commissioner must not allocate more than deleted text begin $15,000,000 deleted text end new text begin $20,000,000 per taxable
year new text end in credits to qualified investors or qualified funds deleted text begin for taxable years beginning after
December 31, 2013, and before January 1, 2017, and must not allocate more than $10,000,000
in credits to qualified investors or qualified funds for taxable years beginning after December
31, 2016, and before January 1, 2018; and (2) for taxable years beginning after December
31, 2014, and before January 1, 2018, deleted text end new text begin . new text end new text begin For each taxable year, new text end 50 percent must be allocated
to credits for qualifying investments in qualified greater Minnesota businesses and minority-
or women-owned qualified small businesses in Minnesota. Any portion of a taxable year's
credits that is reserved for qualifying investments in greater Minnesota businesses and
minority- or women-owned qualified small businesses in Minnesota that is not allocated
by September 30 of the taxable year is available for allocation to other credit applications
beginning on October 1. Any portion of a taxable year's credits that is not allocated by the
commissioner does not cancel and may be carried forward to subsequent taxable years until
all credits have been allocated.

(b) The commissioner may not allocate more than a total maximum amount in credits
for a taxable year to a qualified investor for the investor's cumulative qualified investments
as an individual qualified investor and as an investor in a qualified fund; for married couples
filing joint returns the maximum is $250,000, and for all other filers the maximum is
$125,000. The commissioner may not allocate more than a total of $1,000,000 in credits
over all taxable years for qualified investments in any one qualified small business.

(c) The commissioner may not allocate a credit to a qualified investor either as an
individual qualified investor or as an investor in a qualified fund if, at the time the investment
is proposed:

(1) the investor is an officer or principal of the qualified small business; or

(2) the investor, either individually or in combination with one or more members of the
investor's family, owns, controls, or holds the power to vote 20 percent or more of the
outstanding securities of the qualified small business.

A member of the family of an individual disqualified by this paragraph is not eligible for a
credit under this section new text begin , except for a credit for a qualified investment in a qualified greater
Minnesota business or minority- or women-owned business new text end . For a married couple filing a
joint return, the limitations in this paragraph apply collectively to the investor and spouse.
For purposes of determining the ownership interest of an investor under this paragraph, the
rules under section 267(c) and 267(e) of the Internal Revenue Code apply.

(d) Applications for tax credits for 2010 must be made available on the department's
website by September 1, 2010, and the department must begin accepting applications by
September 1, 2010. Applications for subsequent years must be made available by November
1 of the preceding year.

(e) Qualified investors and qualified funds must apply to the commissioner for tax credits.
Tax credits must be allocated to qualified investors or qualified funds in the order that the
tax credit request applications are filed with the department. The commissioner must approve
or reject tax credit request applications within 15 days of receiving the application. The
investment specified in the application must be made within 60 days of the allocation of
the credits. If the investment is not made within 60 days, the credit allocation is canceled
and available for reallocation. A qualified investor or qualified fund that fails to invest as
specified in the application, within 60 days of allocation of the credits, must notify the
commissioner of the failure to invest within five business days of the expiration of the
60-day investment period.

(f) All tax credit request applications filed with the department on the same day must
be treated as having been filed contemporaneously. If two or more qualified investors or
qualified funds file tax credit request applications on the same day, and the aggregate amount
of credit allocation claims exceeds the aggregate limit of credits under this section or the
lesser amount of credits that remain unallocated on that day, then the credits must be allocated
among the qualified investors or qualified funds who filed on that day on a pro rata basis
with respect to the amounts claimed. The pro rata allocation for any one qualified investor
or qualified fund is the product obtained by multiplying a fraction, the numerator of which
is the amount of the credit allocation claim filed on behalf of a qualified investor and the
denominator of which is the total of all credit allocation claims filed on behalf of all
applicants on that day, by the amount of credits that remain unallocated on that day for the
taxable year.

(g) A qualified investor or qualified fund, or a qualified small business acting on their
behalf, must notify the commissioner when an investment for which credits were allocated
has been made, and the taxable year in which the investment was made. A qualified fund
must also provide the commissioner with a statement indicating the amount invested by
each investor in the qualified fund based on each investor's share of the assets of the qualified
fund at the time of the qualified investment. After receiving notification that the investment
was made, the commissioner must issue credit certificates for the taxable year in which the
investment was made to the qualified investor or, for an investment made by a qualified
fund, to each qualified investor who is an investor in the fund. The certificate must state
that the credit is subject to revocation if the qualified investor or qualified fund does not
hold the investment in the qualified small business for at least three years, consisting of the
calendar year in which the investment was made and the two following years. The three-year
holding period does not apply if:

(1) the investment by the qualified investor or qualified fund becomes worthless before
the end of the three-year period;

(2) 80 percent or more of the assets of the qualified small business is sold before the end
of the three-year period;

(3) the qualified small business is sold before the end of the three-year period;

(4) the qualified small business's common stock begins trading on a public exchange
before the end of the three-year period; or

(5) the qualified investor dies before the end of the three-year period.

(h) The commissioner must notify the commissioner of revenue of credit certificates
issued under this section.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 6.

Minnesota Statutes 2018, section 116J.8737, subdivision 6, is amended to read:

Subd. 6.

Annual reports.

(a) By February 1 of each year each qualified small business
that received an investment that qualified for a credit, and each qualified investor and
qualified fund that made an investment that qualified for a credit, must submit an annual
report to the commissioner and pay a filing fee of $100 as required under this subdivision.
Each qualified investor and qualified fund must submit reports for three years following
each year in which it made an investment that qualified for a credit, and each qualified small
business must submit reports for five years following the year in which it received an
investment qualifying for a credit. Reports must be made in the form required by the
commissioner. All filing fees collected are deposited in the small business investment tax
credit administration account in the special revenue fund.

(b) A report from a qualified small business must certify that the business satisfies the
following requirements:

(1) the business has its headquarters in Minnesota;

(2) at least 51 percent of the business's employees are employed in Minnesota, and 51
percent of the business's total payroll is paid or incurred in the state;

(3) that the business is engaged in, or is committed to engage in, innovation in Minnesota
as defined under subdivision 2; and

(4) that the business meets the payroll requirements in subdivision 2, paragraph (c),
clause (6).

(c) Reports from qualified investors must certify that the investor remains invested in
the qualified small business as required by subdivision 5, paragraph (g).

(d) Reports from qualified funds must certify that the fund remains invested in the
qualified small business as required by subdivision 5, paragraph (g).

(e) A qualified small business that ceases all operations and becomes insolvent must file
a final annual report in the form required by the commissioner documenting its insolvency.
In following years the business is exempt from the annual reporting requirement, the report
filing fee, and the fine for failure to file a report.

(f) A qualified small business, qualified investor, or qualified fund that fails to file an
annual report new text begin by February 1 new text end as required under this subdivision is subject to a deleted text begin $500 deleted text end new text begin $100 new text end
fine.

new text begin (g) A qualified investor or qualified fund that fails to file an annual report by April 1
may, at the commissioner's discretion, have any credit allocated and certified to the investor
or fund revoked and such credit must be repaid by the investor.
new text end

new text begin (h) A qualified business that fails to file an annual report by April 1 may, at the
commissioner's discretion, be subject to the credit repayment provisions in subdivision 7,
paragraph (b).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for taxable years beginning after December
31, 2018.
new text end

Sec. 7. new text begin APPLICATION OF SMALL BUSINESS INVESTMENT TAX CREDIT FOR
TAXABLE YEAR 2019.
new text end

new text begin Applications for (1) certification as a qualified small business, qualified investor, or
qualified fund under Minnesota Statutes, section 116J.8737, subdivisions 2, 3, and 4, and
(2) the credit under Minnesota Statutes, section 116J.8737, subdivision 5, for taxable year
2019 must be made available on the Department of Employment and Economic
Development's website within 30 days of the day following final enactment of this act. The
provisions of Minnesota Statutes, section 116J.8737, generally apply to the taxable year
2019 extension of the credit in sections 1 to 6.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2018, sections 116J.8737, subdivision 12; and 290.0692, subdivision
6, new text end new text begin are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: DIVH1268-1

116J.8737 SMALL BUSINESS INVESTMENT TAX CREDIT.

Subd. 12.

Sunset.

This section expires for taxable years beginning after December 31, 2017, except that reporting requirements under subdivision 6 and revocation of credits under subdivision 7 remain in effect through 2019 for qualified investors and qualified funds, and through 2021 for qualified small businesses, reporting requirements under subdivision 9 remain in effect through 2022, and the appropriation in subdivision 11 remains in effect through 2021.

290.0692 SMALL BUSINESS INVESTMENT CREDIT.

Subd. 6.

Sunset.

This section expires at the same time and on the same terms as section 116J.8737, except that the expiration of this section does not affect the commissioner of revenue's authority to audit or power of examination and assessment for credits claimed under this section.