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Rule 9.1053, Entity Requesting Agreement to Limit Appraised Value
| TITLE 34 | PUBLIC FINANCE |
|---|---|
| PART 1 | COMPTROLLER OF PUBLIC ACCOUNTS |
| CHAPTER 9 | PROPERTY TAX ADMINISTRATION |
| SUBCHAPTER F | LIMITATION ON APPRAISED VALUE AND TAX CREDITS ON CERTAIN QUALIFIED PROPERTY |
| RULE §9.1053 | Entity Requesting Agreement to Limit Appraised Value |
(a) Initial application contents. To request a limitation on appraised value for school district maintenance and operations ad valorem tax purposes pursuant to Tax Code, Chapter 313, an applicant shall file a completed application with the school district in which the qualified property will be located.
(1) A completed application shall consist of, at a minimum, the following items:
(A) the comptroller's current application form and Schedules A1, A2, B, C and D attached to the application form with all information boxes filled in with the information on which applicant intends to rely including but not limited to:
(i) a specific and detailed description of the proposed qualified property to which the appraised value limitation will apply sufficient to clearly distinguish the subject property from property to which the limitation does not apply and to establish that the property meets the criteria of qualified property pursuant to these rules and Tax Code, §313.021(2);
(ii) a specific and detailed description of the investment described in Tax Code, §313.021(1) that is proposed to be made in the property subject to the appraised value limitation and sound, good faith estimates of the dollar value of intended investment sufficient to establish that the investment meets minimum criteria for qualified investment pursuant to Tax Code, §313.023 or §313.053 if applicable, during the proposed qualifying time period;
(iii) if the land upon which the qualified property will be located contains existing improvements or tangible personal property, a specific and detailed description of the tangible personal property, buildings, or permanent, non-removable building components (including any affixed to or incorporated into real property) on the land that is sufficient to distinguish existing property from the proposed new improvements and any proposed property that is not new improvements which may include maps, surveys, appraisal district values and parcel numbers, inventory lists, property lists, model and serial numbers of existing property, or other information of sufficient detail and description to locate all existing property within the boundaries of the real property which is subject to the agreement; provided however, that the date of appraisal shall be within 15 days of the date the application is received by the school district;
(iv) the total number of any jobs related to construction or operation of the facility that the applicant chooses to disclose for the purpose of calculating the economic impact of the project;
(v) the total number of qualifying jobs the applicant commits to create and maintain during the full term of the agreement and a schedule which identifies the number of qualifying jobs created and maintained in each year of the agreement;
(vi) the wages, salaries, and benefits applicant commits to provide for each qualifying job;
(vii) the total number of non-qualifying jobs the applicant estimates it will create and maintain during the full term of the agreement and a schedule which identifies the number of non-qualifying jobs created and maintained in each year of the agreement;
(viii) the average wages the applicant estimates it will provide for non-qualifying jobs;
(ix) a statement:
(I) that for the purposes of this statement, "payments to the school district" include any and all payments or transfers of things of value made to the school district or to any person or persons in any form if such payment or transfer of thing of value being provided is in recognition of, anticipation of, or consideration for the agreement for limitation on appraised value; and
(II) as to whether:
(-a-) the amount of any and all payments or transfers made to the school district may result in payments that are or are not in compliance with Tax Code, §313.027(i); or
(-b-) as to whether the method for determining the amount may result in payments to the school district that are or are not in compliance with Tax Code, §313.027(i); and
(x) a description of the real property on which the intended investment will be made, identified additionally by the county appraisal district parcel number;
(B) such other written documents containing information on which applicant relies to qualify for and obtain a limitation on appraised value pursuant to Tax Code, Chapter 313;
(C) such other written documents containing information reasonably requested by either the school district or the comptroller which shall be provided within 20 days of the date of the request, provided however the applicant may request up to 10 additional days to provide the requested information;
(D) information identifying the applicant, and if applicant is a combined group, identifying each such combined group's members that intend to own a direct interest in the property subject to the proposed agreement, by:
(i) official name, street address, city, county, state and mailing address, if different from the street address, of the official place of business of the applicant and, if the applicant is a combined group, of each such combined group's members that intend to own a direct interest in the property subject to the proposed agreement;
(ii) designation of an authorized representative for the applicant and, if the applicant is a combined group, for each such combined group's members that intend to own a direct interest in the property subject to the proposed agreement; and
(iii) for each authorized representative, and if the applicant is a combined group for each such combined group's members that intend to own a direct interest in the property subject to the proposed agreement, provide telephone number, email address, street address, city, county, state, and mailing address if different from the street address;
(E) the signature of applicant's authorized representative(s) by which applicant confirms and attests to the truth and accuracy of the information submitted in the application to the best knowledge and belief of applicant and its representative(s);
(F) the total application fee required by the school district with which the application will be filed;
(G) a statement as to whether or not the project is an expansion of an existing operation on the land which will become qualified property, and if so, a description of the nature of the existing operation, and the nature of the expansion, including an explanation of how the expansion affects or interacts with current operations;
(H) a statement specifying the beginning date of the limitation period, which must be January 1 of the first tax year that begins after one of the following:
(i) the date of the completed application;
(ii) the date of the end of the qualifying time period, provided however that such date will begin no later than the beginning of the limitation period; or
(iii) the date commercial operations are to begin at the site of the project;
(I) a statement regarding the location and nature of other facilities that the applicant operates in the state, and a detailed description of any such facilities that will provide inputs to or use outputs from the project that is the subject of the application;
(J) a detailed description of any state and local incentives for which the applicant intends to apply; and
(K) any information that the applicant requests the comptroller to consider in making the determination under Tax Code, §313.026(c)(2) that the limitation on appraised value is a determining factor in the applicant's decision to invest capital and construct the project in the state, which may include:
(i) other locations not in Texas that the applicant considered or is considering for the project;
(ii) capital investment and return on investment information in comparison with other alternative investment opportunities; or
(iii) information related to the applicant's inputs, transportation and markets.
(2) The completed application contents shall be provided in the following formats:
(A) one original hard copy of the completed application in a three ring binder with tabs separating each section of the documents submitted; and
(B) an electronically digitized copy, formatted in searchable pdf format or other format acceptable to the comptroller, certified by the applicant as containing the identical information, maps, and schedules as the original hard copy. The digitized copy shall include:
(i) schedules A1, A2, B, C, and D in Microsoft Excel format; and
(ii) high-resolution maps and graphics (300 dpi or higher).
(3) The application shall be submitted in any manner acceptable to the comptroller.
(b) Optional application requests. An applicant may include in an application:
(1) a request that the school district waive the requirement of Tax Code, §313.021(2)(A)(iv)(b) or §313.051(b), whichever is applicable, to create new jobs. In order for a completed application to include a job waiver request, applicant shall submit:
(A) a specific request to waive the job requirement of the applicable Tax Code section included with the application that includes all the minimum requirements set forth in subsection (a) of this section; and
(B) separated and clearly marked within the application materials, documentation on which applicant intends to rely that demonstrates that the applicable jobs creation requirement of the applicable Tax Code section exceeds the industry standard for the number of employees reasonably necessary for the operation of the facility of applicant that is described in the application; or
(2) a request to begin the qualifying time period on a date that is after the date that the application is approved. In order for a completed application to include a qualifying time period deferral request, applicant shall submit:
(A) specific information identifying the requested qualifying time period within an application that includes all the minimum requirements set forth in subsection (a) of this section; and
(B) all relevant economic information that is related to the impact of the investment during the proposed qualifying time period, the proposed limitation period, and a period of time after the limitation period considered appropriate by the comptroller.
(c) Application changes. At the request of the school district or the comptroller, or with the prior approval of the school district and the comptroller, applicant may submit an application amendment or application supplement at any time after the submission of the initial application. In order to be considered as part of the application, the application amendment or supplement shall:
(1) be submitted in the same form or schedule and manner as the information was initially submitted or should have been initially submitted;
(2) include a date for the submission and a sequential number identifying the number of submissions made by applicant;
(3) have the signature of the authorized representative(s) by which applicant confirms and attests to the truth and accuracy of the information submitted in the application amendment or supplement, as applicable, to the best knowledge and belief of applicant and its representative(s); and
(4) be submitted before the 120th day after the application was accepted by the school district or within another time period as provided in writing by the comptroller.
(d) Authorized representative(s). The person(s) identified in the application as applicant's authorized representative(s) shall serve as the person(s) to whom all correspondence and notifications from the school district and comptroller shall be sent. Notwithstanding subsection (c) of this section, applicant may change its authorized representative(s) if applicant submits to the school district and the comptroller a letter that provides the name of the new authorized representative(s), street and mailing address, telephone number, and official title, if any.
(e) Information confidentiality. At the time that applicant submits its application, application amendment, or application supplement, applicant may request that all or parts of such document not be posted on the internet and not otherwise be publicly released. In order to make such request, applicant shall:
(1) submit a written request that:
(A) specifically lists each document or portion of document and each entry in any form prescribed by the comptroller that applicant contends is confidential; and
(B) identifies specific detailed reasons stating why applicant believes each item listed should be considered confidential and identifies any relevant legal authority in support of the request;
(2) segregate the documents which are subject to the request from the other documents submitted with the application, application amendment, or application supplement that are not subject to the request; and
(3) adequately designate the documents subject to the request as "confidential."
(f) Continued eligibility for value limitation. In order to obtain and continue to receive a limitation on appraised value pursuant to Tax Code, Chapter 313, an applicant shall:
(1) have a completed application approved by the governing body of the school district in compliance with §9.1054(f) of this title (relating to School District Application Review and Agreement to Limit Appraised Value);
(2) at least 30 days prior to the meeting at which the governing body of the school district is scheduled to consider the application, provide to the school district and the comptroller a Texas Economic Development Act Agreement with terms acceptable to the applicant that includes at a minimum:
(A) all Texas Taxpayer Identification Numbers assigned by the comptroller to the approved applicant executing the agreement and all Texas Taxpayer Identification Numbers of its reporting entity, which shall be the same numbers listed on the application and, if the approved applicant is comprised of members of a combined group, all Texas Taxpayer Identification Numbers for each such combined group's members that own a direct interest in the property subject to the proposed agreement;
(B) a stipulation that the agreement is executed on the basis that the application is complete and accurately represents all material representations, information, and facts and incorporates the application, all the attachments thereto, and any application supplement or application amendment as part of the agreement as if set forth fully in the agreement;
(C) a condition that upon the written determination of the governing body of the school district that the application is either incomplete or inaccurate as to any material representation, information, or fact, the agreement shall be invalid and void except for the enforcement of the provisions required by subparagraph (L) of this paragraph;
(D) provisions required for an agreement listed in Tax Code, Chapter 313 with particular reference to Tax Code, §313.027(e), (f), and (i);
(E) a provision that identifies the qualifying time period that shall be consistent with the qualifying time period requested in the application;
(F) a provision that identifies the beginning of the limitation period that is consistent with the limitation period requested in the application;
(G) a condition that before the approved applicant may obtain the limitation on the appraised value identified in the agreement, the approved applicant shall make the qualified investment, as defined in Tax Code, §313.021(1), at least in the amounts required in Tax Code, §313.022, or §313.052 if applicable, within the qualifying time period specified in the agreement;
(H) a provision that the approved applicant is required to:
(i) create at least the number of new qualifying jobs required by Tax Code, Chapter 313 during the qualifying time period;
(ii) create at least the number of qualifying jobs to which the applicant committed in the application during the qualifying time period;
(iii) maintain at least the number of qualifying jobs committed in the application from the time the jobs are created until at least the end of the fifth year following the expiration of the limitation on appraised value provided by the agreement; and
(iv) for all jobs that are non-qualifying jobs, pay an average weekly wage that exceeds the average weekly wage for non-qualifying jobs in the county where the non-qualifying jobs are located;
(I) a provision that identifies the limitation on the appraised value of the qualified property of the approved applicant consistent with Tax Code, §313.027, or if applicable Tax Code, §313.054;
(J) a provision that separately states and explicitly identifies the amount, or the method for determining the amount, of any and all payments or transfers made to the school district or to any person or persons in any form if the payment or transfer of thing of value is provided in recognition of, anticipation of, or consideration for the agreement for limitation on appraised value made pursuant to Tax Code, §§313.027(f)(1), 313.027(f)(2), or 313.027(i);
(K) a provision by which the approved applicant is required to submit to the school district any information as thereafter may be reasonably requested by the school district or the comptroller in order to evaluate the progress of the agreement or administer and implement Tax Code, Chapter 313 and this subchapter;
(L) a provision that:
(i) in the event that the approved applicant fails in any year to comply with the stipulation, condition, provision, or term of the agreement identified in subparagraphs (C), (D), (H)(i), or (J) of this paragraph, the approved applicant is assessed as liquidated damages an amount equal to the amount computed by subtracting from the market value of the property for the tax year in which the approved applicant failed to comply, the value of the property as limited by the agreement and multiplying the difference by the maintenance and operations tax rate of the school district;
(ii) deems the penalty delinquent if it is not paid on or before February 1 of the following tax year; and
(iii) applies Tax Code, §33.01 to the delinquent penalty in the manner that section applies to delinquent taxes;
(M) a provision that the approved applicant shall comply with the conditions included in the certificate for a limitation issued by the comptroller;
(N) for agreements in which the governing body of the school district approved a deferral of the start of the qualifying time period, and in which the qualifying time period starts more than one year after the date that the application is approved, provisions that:
(i) require the approved applicant to provide an application amendment or supplement to the school district and comptroller:
(I) that identifies any changes in the information that was provided in the application that was approved by the school district and as considered by the comptroller;
(II) no earlier than 180 days prior to the start of the qualifying time period; and
(III) no later than 90 days prior to the start of the qualifying time period;
(ii) require the approved applicant to comply with a written request from the school district or the comptroller to provide additional information necessary to evaluate the economic impact analysis for the conditions prior to the start of the qualifying time period; and
(iii) authorize the governing body of the school district to terminate the agreement if the comptroller withdraws its certificate for a limitation based on the revised application;
(O) a provision that within 60 days from the date commercial operations begin, the approved applicant shall provide to the school district, the comptroller, and the appraisal district a specific and detailed description of the land, tangible personal property, buildings, or permanent, nonremovable building components (including any affixed to or incorporated into real property) to which the value limitation applies including maps or surveys of sufficient detail and description to locate all such qualified property within the boundaries of the land which is subject to the agreement if the final description is different than the description provided in the application or any supplemental application information;
(P) a provision that in order to amend or in any manner modify the application, agreement, or notice as provided by subparagraph (O) of this paragraph, the following shall occur:
(i) the approved applicant shall submit to the school district and the comptroller:
(I) a written request to amend the application and the limitation agreement which shall specify the changes the applicant requests;
(II) any changes to the information that was provided in the application that was approved by the school district and considered by the comptroller; and
(III) any additional information requested by the school district or the comptroller necessary to evaluate the amendment or modification;
(ii) the comptroller shall review the request and any additional information and provide a revised comptroller certificate for a limitation within 90 days of receiving the revised application or the request to amend the application is denied;
(iii) in accordance with the procedure identified in §9.1054(h) of this title, the governing body shall approve or disapprove the request before the expiration of 120 days after the request is filed;
(Q) a provision that the failure of the approved applicant to either pay a penalty assessed or provide and implement a plan to remedy a non-compliance as required by the comptroller pursuant to §9.1059 of this title (relating to Annual Compliance Review for Qualifying Jobs and Penalties) is a material breach of the agreement;
(R) a provision that the agreement holder may assign its interest in the agreement only if such assignment is approved according to the provisions of subparagraph (P) of this paragraph;
(S) for a Texas Priority Project, a provision that in the event that the approved applicant fails to place in service qualified investment of at least $1 billion during the qualifying time period the agreement terminates and the applicant is subject to any damages or penalties required by the agreement, the comptroller's rules, or the Act; and
(T) any other provision negotiated between the applicant and the school district that does not conflict or impair the application or implementation of any stipulation, provision, or term required by this paragraph, this subchapter or Tax Code, Chapter 313;
(3) if the applicant includes a combined group or members of the combined group, have the agreement executed by the authorized representative of each member of the combined group that owns a direct interest in property subject to the proposed agreement by which such members are jointly and severally liable for the performance of the stipulations, provisions, terms, and conditions of the agreement;
(4) comply with all stipulations, provisions, terms, and conditions of the agreement for a limitation on appraised value executed with the school district, this subchapter, and Tax Code, Chapter 313;
(5) be and remain in good standing under the laws of this state and maintain legal status as an entity, as defined in this subchapter;
(6) owe no delinquent taxes to the state;
(7) maintain eligibility for limitation on appraised value pursuant to Tax Code, Chapter 313; and
(8) provide to the school district, the comptroller, and the appraisal district any change to information provided in the application, including but not limited to:
(A) changes of the authorized representative(s);
(B) changes to the location and contact information for the approved applicant including all members of the combined group participating in the limitation agreement;
(C) copies of any valid assignments of the agreement and contact information for authorized representative(s) of any assignees.
Source Note: The provisions of this §9.1053 adopted to be effective June 22, 2010, 35 TexReg 5355