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Title 12 - Taxation
FEE IN LIEU OF TAX SIMPLIFICATION ACT
This act may be cited as the "Fee in Lieu of Tax Simplification Act of 1997".
The General Assembly finds that:
(1) With the state's economy being centrally connected, as the wealth-generating capacity of South Carolina's businesses has increased, the state's per capita income also has increased.
(2) Since South Carolina's property tax rates as applied to manufacturing and certain commercial properties are disproportionately higher than those applied to other property in South Carolina, this disparity and the resulting property tax burdens historically have impeded new and expanded business in South Carolina.
(3) Previous General Assemblies have enacted legislation which reduces this disparity and the resulting property tax burden through a complex fee in lieu of tax arrangement that requires a company to transfer title to its property to the county and then lease the property back by paying rent and fees instead of property taxes on the property. The arrangement often includes the issuance of industrial revenue bonds by the county.
(4) The transfer of title and issuance of bonds are expensive, complex, time-consuming, and difficult undertakings for the county, public, and companies to understand and implement. The current rules also make financings more difficult and more expensive. All of these factors act to discourage new investments in South Carolina.
(5) The "Fee in Lieu of Tax Simplification Act" simplifies the method for obtaining the fee in lieu of tax benefits while maintaining the essential county council approval process.
(6) The "Fee in Lieu of Tax Simplification Act" makes the fee in lieu of tax incentive more attractive by eliminating the requirement for the issuance of industrial revenue bonds or the transfer of title of property to a county. This simplification facilitates the benefit for the county and the company making the investments.
As used in this chapter:
(1) "Alternative payment method" means fee payments as provided in Section 12-44-50(A)(3).
(2) "Commencement date" means the last day of the property tax year during which economic development property is placed in service, except that this date must not be later than the last day of the property tax year which is three years from the year in which the county and the sponsor enter into a fee agreement.
(4) "County" means the county or counties in which the project is proposed to be located. A project may be located in more than one county, subject to the provisions of Section 12-44-40(G).
(5) "County council" means the governing body of the county in which the economic development property is located, except as specifically provided by Section 12-44-40(G).
(6) "Department" means the South Carolina Department of Revenue.
(7) "Economic development property" means each item of real and tangible personal property comprising a project which satisfies the provisions of Section 12-44-40(C) and other requirements of this chapter and becomes subject to a fee agreement. That property, other than replacement property qualifying under Section 12-44-60, must be placed in service by the end of the investment period.
(8) "Enhanced investment" means a project which results in a total investment by a sponsor of:
(a) at least two hundred million dollars, which when added to the previous investments, results in a total investment of at least four hundred million dollars, and which is creating at least two hundred new full-time jobs at the project;
(b) at least four hundred million dollars of property qualifying for the fee and which is creating at least two hundred new full-time jobs at the project. The new full-time jobs requirement of this item does not apply to a taxpayer which paid more than fifty percent of all property taxes actually collected in the county for more than the twenty-five years ending on the date of the agreement;
(c) at least four hundred million dollars in a county classified as either least developed or underdeveloped, by a limited liability company and/or one or more of the members or equity holders where a member or equity holder is creating, at a site qualifying for the fee, at least one hundred new full-time jobs with an average annual salary of at least forty thousand dollars within four years of the date of execution of the fee agreement.
(9) "Exemption period" means the period beginning on the later of the commencement date or the last day of the property tax year in which the fee agreement is entered into and ending on the termination date. For projects which are completed and placed in service during more than one year, the exemption period applies to each year's investment made by a sponsor during the investment period.
(10) "Fee agreement" means an agreement between the sponsor and the county obligating the sponsor to pay fees instead of property taxes during the exemption period for each item of economic development property as more particularly described in Section 12-44-40.
(11) "Inducement resolution" means a resolution of the county setting forth the commitment of the county to enter into a fee agreement.
(12) "Infrastructure improvement credit" means a credit against the fee as provided by Section 12-44-70.
(13) "Investment period" means the period beginning sixty days before the county takes action or identifies the project under Section 12-44-40(C), and ending five years after the commencement date; except that for a project with an enhanced investment as described above, the period ends eight years after the commencement date. The minimum investment must be completed within five years of the commencement date. For an enhanced investment, the enhanced investment must be completed within eight years of the commencement date. If the sponsor does not anticipate completing the project within this period, the sponsor may apply to the county before the end of the period for an extension of time to complete the project. If the county agrees to an extension, it must do so in writing and furnish a copy of the extension to the Department of Revenue within thirty days of the date the extension was granted. The extension may not exceed two years in which to complete the project. An extension is not allowed for the time period in which the sponsor must meet the minimum investment requirement.
(14) "Minimum investment" means a project which results in a total investment by a sponsor of not less than five million dollars within the investment period. If a county has an average annual unemployment rate of at least twice the state average during each of the last two completed calendar years, the minimum investment is one million dollars.
(15) "Multicounty park" means an industrial or business park developed by two or more counties as defined in Section 4-1-170.
(16) "Project" means land and buildings and other improvements on the land, including water, sewage treatment and disposal facilities, air pollution control facilities, and all other machinery, apparatus, equipment, office facilities, and furnishings which are necessary, suitable, or useful by a sponsor.
(17) "Replacement property" means property placed under the fee agreement to replace economic development property previously subject to the fee agreement, as provided in Section 12-44-60.
(18) "Sponsor" means one or more entities which sign the fee agreement with the county, subject to the provisions of Section 12-44-40.
(19) "Sponsor affiliate" means an entity that joins with or is an affiliate, as defined in Section 12-44-130, of a sponsor and that participates in the investment in, or financing of, a project.
(20) "Termination date" means the date which is the last day of a property tax year which is the nineteenth year following the first property tax year in which economic development property is placed in service. With respect to a fee agreement involving an enhanced investment, the termination date is the last day of a property tax year which is the twenty-ninth year following the first property tax year in which an economic development property is placed in service. If the fee agreement is terminated in accordance with Section 12-44-140, the termination date is the date the agreement is terminated.
Fee agreement; economic development property to be exempt from ad valorem taxation; exemption period; inducement resolution; location of exempt property; criteria to qualify as economic development property.
(A) To obtain the benefits provided by this chapter, the sponsor and the county must enter into a fee agreement requiring the payment of the fee described in Section 12-44-50. The county may not enter into a fee agreement unless the county council adopts an ordinance approving the agreement with the sponsor.
(B) If the county and the sponsor enter into a fee agreement, all economic development property is exempt from all ad valorem taxation imposed by Chapter 37 of Title 12 for the entire exemption period. Upon termination of the exemption period, the property is subject to property taxation in the manner provided by law, unless the property is otherwise exempt.
(C) Subject to the provisions of subsection (D) and the provisions of Section 12-44-110, real or tangible personal property of a sponsor or sponsor affiliate for which expenditures have been incurred by the sponsor or sponsor affiliate in connection with a project or a portion of it qualifies as economic development property, if the expenditures are incurred after, or within sixty days before, the county takes action reflecting or identifying the project or proposed project including, but not limited to, the adoption of an inducement or similar resolution by county council and before the end of the investment period.
(D) A county has two years from the date it takes action reflecting or identifying the project, or proposed project, to adopt an inducement resolution if the inducement resolution was not the original county action reflecting or identifying the project or proposed project. Otherwise, expenditures incurred before adoption of the inducement resolution do not qualify as economic development property.
(E) If a fee agreement is not executed within five years after the inducement resolution is adopted by the county council, the real property or tangible personal property of a sponsor and sponsor affiliate for which expenditures have been incurred by the sponsor and sponsor affiliate with respect to the project do not qualify as economic development property.
(F) To be eligible to enter into a fee agreement, the sponsor shall commit to a project which meets the minimum investment level and, with respect to applicable enhanced investments, the total investment and the minimum job creation levels required for an enhanced investment.
(G) The project which is the subject of the fee agreement must be located in a single county or in a multicounty park or on contiguous tracts of land in more than one county. When a tract crosses a county boundary, all counties in which the tract is located must be parties to the fee agreement, which must provide the manner in which the fee payments must be distributed among the counties and the fee agreement must set a minimum millage rate not lower than the millage rate applicable to the site in the county in which the greatest amount of investment occurs.
(H) The county council shall evaluate projects for classification as economic development property, based on criteria that include, but are not limited to:
(1) the purposes to be accomplished by the project are proper governmental and public purposes;
(2) the anticipated dollar amount and nature of the investment to be made; and
(3) the anticipated costs and benefits to the county.
(I) Before entering into a fee agreement, the county council shall find that:
(1) the project is anticipated to benefit the general public welfare of the locality by providing services, employment, recreation, or other public benefits not otherwise adequately provided locally;
(2) the project gives rise to no pecuniary liability of the county or incorporated municipality or to no charge against its general credit or taxing power;
(3) the purposes to be accomplished by the project are proper governmental and public purposes; and
(4) the benefits of the project to the public are greater than the costs to the public.
(J) In making the findings of subsections (H) and (I), the county council may seek the advice and assistance of the department or the Board of Economic Advisors.
(K) If the governing body of a county has by contractual agreement provided for a change in fee in lieu of taxes arrangements conditioned on a future legislative enactment, a new enactment does not bind the original parties to the agreement unless the change is ratified by the governing body of the county.
(L)(1) Upon agreement of the parties, and except as provided in item (2), a fee agreement may be amended or terminated and replaced with regard to all matters, including the addition or removal of sponsors or sponsor affiliates.
(2) An amendment or replacement of a fee agreement may not be used to change the millage rate, discount rate, assessment ratio, or length of the agreement.
Contents of fee agreement; disposal of economic development property; reduction of fee.
(A) A fee agreement must contain the requirement that a fee in lieu of property tax be paid as follows:
(1) During the exemption period, the sponsor shall pay, or be responsible for payment, to the county the annual fee payment in connection with the economic development property which has been placed in service, in an amount not less than the property taxes that would be due on the economic development property if it were taxable but using:
(a) an assessment ratio of not less than six percent, or if the project involves an enhanced investment, an assessment ratio of not less than four percent;
(b) a millage rate as established, either:
(i) by the county, which must not be lower than the cumulative property tax millage rate legally levied by or on behalf of all millage levying entities within which the project is to be located, which is the cumulative rate applicable on the thirtieth day of June preceding the calendar year in which the fee agreement is executed; or
(ii) as provided under subsubitem (i), except that every fifth year the millage rate is allowed to increase or decrease in step with the average cumulative actual millage rate applicable to the project based upon the preceding five-year period; and
(c) a fair market value for the economic development property. The fair market value of real property is determined by using the original income tax basis for South Carolina income tax purposes without regard to depreciation, but if real property is constructed for the fee or is purchased in an arm's length transaction, fair market value equals the original income tax basis. Otherwise, the department shall determine fair market value by appraisal. Fair market value for personal property is determined by using the original tax basis for South Carolina income tax purposes less depreciation allowable for property tax purposes, except that the investor is not entitled to extraordinary obsolescence.
(2) The fee calculation must be made so that the property, if taxable, is allowed all applicable property tax exemptions except the exemption allowed under Section 3(g) of Article X of the Constitution of this State and the exemption allowed pursuant to Section 12-37-220(B)(32) and (34).
(3) If the project subject to the fee agreement involves an investment of forty-five million dollars or more, or any higher minimum established by the county, the county and the sponsor may agree to pay the fees established in subsection (A)(1) based on an alternative payment method yielding a net present value of the fee schedule as calculated in subsection (A)(1) provided the sponsor agrees to a millage rate as established in subsection (A)(1)(b)(i). Net present value calculations must use a discount rate equivalent to the yield in effect for new or existing United States Treasury bonds of similar maturity as published during the month in which the fee agreement is executed. If no yield is available for the month in which the fee agreement is executed, the last published yield for the appropriate maturity available must be used. If there are no bonds of appropriate maturity available, bonds of different maturities may be averaged to obtain the appropriate maturity.
(B) If a sponsor or sponsor affiliate disposes of an item of economic development property, the fee must be reduced by the amount of the fee applicable to that item of economic development property. Economic development property is disposed of only when it is scrapped or sold. Transactions with respect to items of property described in Section 12-44-120 are not a disposition of property under this subsection. If the sponsor used an alternative payment method as provided in subsection (A)(3), the fee applicable to the item of property which was disposed of must be recomputed in accordance with subsection (A)(1) and, to the extent that the amount which would have been paid with respect to this item under subsection (A)(1) exceeds the fee actually paid by the sponsor, the sponsor shall pay the difference with the next annual fee payment due after the item of property is disposed of.
Replacement property; qualifications and conditions.
(A) The fee agreement may provide that property which is placed in service as a replacement for economic development property may become economic development property. This replacement property is not required to serve the same function as the economic development property it is replacing. Replacement property is deemed to replace the oldest property subject to the fee, whether real or personal, which is disposed of in the same property tax year as the replacement property is placed in service. Replacement property qualifies as economic development property only to the extent of the original income tax basis of the economic development property which is being disposed of in the same property tax year. More than one piece of property can replace a single piece of property.
(B) To the extent that the income tax basis of the replacement property exceeds the original income tax basis of the economic development property which it is replacing, the excess amount is subject to annual payments calculated as if the exemption for economic development property were not allowed. Replacement property is entitled to the fee payment for the period of time remaining during the exemption period for the economic development property which it is replacing.
(C) The new replacement property which qualifies for the fee provided in Section 12-44-50 is recorded using its income tax basis, and the fee is calculated using the millage rate and assessment ratio provided on the original economic development property. The fee payment for replacement property must be based on Section 12-44-50(A)(3) if the sponsor originally used an alternative payment method.
Credits against fee for offsetting improvement costs.
(A) If allowed by the fee agreement and subject to any limitations and conditions contained in the fee agreement, a sponsor may take a credit against the fee established in Section 12-44-50(A)(1) and (3) over the term specified in the fee agreement to offset improvement costs:
(1) for a project not located in a multicounty park, to the extent that the cumulative credit taken does not exceed the lesser of:
(a) the improvement costs of the project; or
(b) the county's share of fees distributed from the project under Section 12-44-80(A).
A municipality or special purpose district that would otherwise receive a distribution of fee in lieu of taxes under Section 12-44-80(A), may agree to allow to a sponsor a credit against the fee established in Section 12-44-50(A)(1) or (A)(3) in an amount not exceeding the share of the fee in lieu of taxes that would have been distributed to the municipality or special purpose district with respect to the sponsor's project; or
(2) for a project located within a multicounty park, to the extent that the cumulative credit taken does not exceed the lesser of:
(a) the improvement costs of the project; or
(b) the county's share of fees.
(B) For purposes of this section, improvement costs include the cost of designing, acquiring, constructing, improving, or expanding:
(1) the infrastructure serving the issuer; and
(2) improved and unimproved real property, buildings, and structural components of buildings used in the operation of a manufacturing or commercial enterprise in order to enhance economic development.
Distribution of fee payments.
(A) For a project not located in a multicounty park, distribution of the fee payments on the project must be made in the same manner and proportion that the millage levied for school and other purposes would be distributed if the property were taxable.
(B) For a project located in a multicounty park, distribution of the fee payments on the project must be made in the same manner provided for by the agreement between or among counties establishing the multicounty park.
Filing of returns, contracts, and other information; due date of payments and returns.
(A) The investor shall file returns, contracts, and other information which may be required by the department.
(B) Fee payments, and returns calculating fee payments, are due at the same time as property tax payments and property tax returns are due.
(C) Failure to make a timely fee payment and file required returns results in penalties being assessed as if the payment or return were a property tax payment or return.
(D) The department may issue rulings and promulgate regulations as necessary to carry out the purpose of this section.
(E) The provisions of Chapters 4 and 54 of Title 12, applicable to property taxes, apply to this section, and for purposes of the application, the fee is considered a property tax. Section 12-54-155 does not apply to this section.
(F) The provisions of Chapters 49, 51, and 53 of Title 12 apply to a fee agreement and a fee due under the agreement. For purposes of those chapters, the fee is considered a property tax.
(G) Within thirty days of the date of execution of a fee agreement, a copy of the fee agreement must be filed with the Department of Revenue, the county assessor, and the county auditor for the county in which the project is located. If the project is located in a multicounty park the fee agreement must be filed with the auditors and assessors for all counties participating in the multicounty park.
Sponsor committed to enhanced investment to continue to benefit from this chapter despite failure to make required investment where minimum investment met; assessment ratio.
(A) A fee agreement may provide that a sponsor who has committed to an enhanced investment or an investment above that required for a minimum investment may continue to receive the benefits of this chapter, even if the sponsor fails to make the required investment or fails to create the jobs required by the fee agreement, if the sponsor meets the minimum investment. If the sponsor fails to make the required investment or create the required number of jobs, the fee agreement may not provide for an assessment ratio and an exemption period more favorable than those allowed for the minimum investment.
(B) Notwithstanding the use of the term 'assessment ratio', a sponsor and a county may negotiate a fee agreement using differing assessment ratios for different assessment years covered by the fee agreement, but the assessment ratio for an assessment year may not be lower than six percent or, if the project involves an enhanced investment, four percent.
(C) The fee agreement may provide that replacement property is not subject to Section 12-44-60 if the sponsor fails to make the level of investment specified in the fee agreement.
Property previously subject to state property taxes not qualified to be economic development property; exceptions.
Property which previously has been subject to property taxes in South Carolina does not qualify as economic development property, except that:
(1) land, excluding existing improvements on the land, on which a new project is to be located may qualify as economic development property even if it previously has been subject to property taxes in this State;
(2) property which has been subject to property taxes in this State, but which has never been placed in service in this State, may qualify as economic development property;
(3) property which previously has been placed in service in this State and previously has been subject to property taxes in this State which is purchased in a transaction other than between any of the entities specified in Section 267(b) of the Internal Revenue Code, as defined under Chapter 6 of Title 12 as of the time of the transfer, may qualify as economic development property if the sponsor invests at least an additional forty-five million dollars at the project;
(4) repairs, alterations, or modifications to real or personal property, which is not economic development property, are not eligible to be economic development property, even if they are capitalized expenditures, except for modifications which constitute an expansion to existing real property improvements.
Transfers of interest in fee agreement and economic development property; sale-leaseback arrangement; requirements.
(A) An interest in a fee agreement and the economic development property to which the fee agreement relates may be transferred to another entity at any time. Notwithstanding another provision of this chapter, equity or other interest in an entity with an interest in a fee agreement or the economic development property, or both, to which a fee agreement relates may be transferred to another entity or person at any time.
(B) A sponsor may enter into lending, financing, security, leasing, or similar arrangements, or succession of such arrangements, with a sponsor affiliate or other financing entity concerning all or part of a project including, without limitation, a sale-leaseback arrangement, equipment lease, build-to-suit lease, synthetic lease, nordic lease, defeased tax benefit, or transfer lease, an assignment, sublease, or similar arrangement, or succession of such arrangements, with one or more financing entities concerning all or part of a project, regardless of the identity of the income tax owner of economic development property. Even though income tax basis is changed for income tax purposes, neither the original transfer to the financing entity nor the later transfer from the financing entity back to the original transferor, pursuant to terms in the sale-leaseback agreement, affects the amount of the payments due under Section 12-44-50.
(C) All transfers undertaken with respect to other projects to effect a financing authorized under this subsection must meet the following requirements:
(1) The department and the county must receive notification, in writing within sixty days after the transfer, of the identity of each transferee and other information required by the department with the appropriate returns. Failure to meet this notice requirement does not adversely affect the exemption, but a penalty may be assessed by the department for late notification for up to ten thousand dollars a year or portion of a year, up to a maximum penalty of fifty thousand dollars.
(2) If the sponsor affiliate or other financing entity is the income tax owner of property, either the financing entity is primarily liable for the payments due under Section 12-44-50 as to that portion of the project to which the transfer relates, with the sponsor remaining secondarily liable for the payment, or the sponsor must agree to continue to be primarily liable for the annual payments as to that portion of the project to which the transfer relates.
(D) Before a sponsor may transfer a fee agreement, or substantially all the economic development property to which the fee agreement relates, it must obtain the approval of the county with which it entered into the fee agreement. That approval is not required in connection with transfers to sponsor affiliates or other financing-related transfers.
Minimum investment to qualify for fee; notice to department of all sponsors or sponsor affiliates with investments subject to fee exemption.
(A) To be eligible for the fee, a sponsor and each sponsor affiliate must invest the minimum investment as defined in Section 12-44-30(14). The county and the sponsors who are part of the fee agreement may agree that investments by other sponsors or sponsor affiliates within the investment period qualify for the payment regardless of whether the sponsor or sponsor affiliate was part of the fee agreement, except that each new sponsor affiliate must invest at least the minimum investment in the project. To qualify for the exemption, the other sponsors or sponsor affiliates must be approved specifically by the county and must agree to be bound by agreements with the county relating to the exemption. These sponsors are not bound by agreements, or portions of agreements, which do not affect the county.
(B) The department and the county must be notified in writing of all sponsors or sponsor affiliates which have investments subject to the fee exemption before or within sixty days after the execution of the fee agreement covering the investment by the sponsor or sponsor affiliate. The department may extend the sixty-day period upon written request. Failure to meet this notice requirement does not affect adversely the exemption, but a penalty may be assessed by the department for late notification of up to ten thousand dollars a month or portion of a month, with the total penalty not to exceed one hundred twenty thousand dollars.
Termination of fee agreement; automatic termination.
(A) The county and the sponsor may agree to terminate the fee agreement at any time. From the date of termination, all economic development property is subject to ad valorem taxation as imposed by law. If the sponsor used an alternative payment method, the sponsor shall pay to the county at the time of termination an additional fee payment equal to the difference between the total amount of the fee payments that would have been made with respect to the economic development property by the sponsor if the standard fee calculation under Section 12-44-50(A)(1) had been used and the total amount of fee payments actually made by the sponsor.
(B) A fee agreement is automatically terminated if the sponsor fails to satisfy the minimum investment level provided in Section 12-44-30(14) within the investment period or otherwise fails to meet the minimum investment or job creation requirements of a fee agreement to qualify for the benefits of this chapter. If the fee agreement is terminated under this subsection, all economic development property is subject, as of the commencement date, to ad valorem taxation as imposed by law. At the time of termination, the sponsor shall pay to the county an additional fee equal to the difference between the total amount of property taxes that would have been paid by the sponsor had the project been taxable, taking into account exemptions from property taxes that would have been available to the sponsor, and the total amount of fee payments actually made by the sponsor.
Projects to be taxable property at level of negotiated payments for purposes of bonded indebtedness and for computing index of taxpaying ability.
Projects to which a fee agreement applies pursuant to this section are considered taxable property at the level of the negotiated payments for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). However, for a project located in an industrial development park as defined in Section 4-1-170, projects are considered taxable property in the manner provided in Section 4-1-170 for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). However, the computation of bonded indebtedness limitation is subject to the requirements of Section 4-29-68(E).
Transfer of title; qualification for a fee in lieu of taxes.
If all or part of this chapter is determined to be unconstitutional or otherwise illegal by a court of competent jurisdiction, a sponsor has one hundred eighty days from the date of the determination to transfer title to economic development property to the county and have it qualify for a fee in lieu of taxes pursuant to Chapter 12 of Title 4 or Section 4-29-67.
Economic development property; transfer of property to fee arrangement provided for by this chapter.
(A) Economic development property as defined in Section 12-44-30(7) may include property placed in service for property tax purposes after the effective date of this act.
(B) An entity with property subject to an existing fee in lieu of property taxes arrangement under Article 1, Chapter 12, Title 4 of the 1976 Code or Section 4-29-67 of the 1976 Code, or which has acquired or will acquire property pursuant to an inducement resolution, may elect, with the consent of the applicable county, to transfer property from the prior arrangement to the fee arrangements provided by this chapter and that property must be considered automatically economic development property as defined in Section 12-44-30(7) subject to:
(1) a continuation of the same fee payments required under the existing lease agreement;
(2) a continuation of the same fee in lieu of tax payments only for the time required for payments under the existing lease agreement;
(3) a carryover of minimum investment or employment requirements of the existing arrangements to the new fee arrangement; and
(4) appropriate agreements and amendments between the sponsor and the county entered into continuing the provisions and limitations of the prior agreement.
The entity and the governing body of the county may enter into a new fee agreement reflecting the appropriate handling of the transition with due regard to appropriate cancellation or amendment of existing financing arrangements.