MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Ways and Means
By: Representative Peranich, Bailey, Blackmon, Calhoun, Coleman (65th), Formby, Fredericks, Howell, Martinson, Mayo, Morris, Patterson, Perkins, Reynolds, Rogers (61st), Rotenberry, Staples, Upshaw, Watson, Whittington, Woods, Young, Ellington, Janus, Smith (39th)
AN ACT TO ENACT THE MISSISSIPPI MOTION PICTURE INCENTIVE ACT; TO PROVIDE THAT A MOTION PICTURE PRODUCTION COMPANY SHALL BE ENTITLED TO AN INCOME AND FRANCHISE TAX CREDIT FOR THE EMPLOYMENT OF RESIDENTS OF MISSISSIPPI IN CONNECTION WITH THE PRODUCTION OF A MOTION PICTURE; TO PROVIDE FOR THE AMOUNT OF THE CREDIT; TO PROVIDE FOR A REBATE OF A PERCENTAGE OF THE INVESTMENT INTO MADE BY A MOTION PICTURE PRODUCTION COMPANY IN CERTAIN MOTION PICTURE PICTURES; TO PROVIDE FOR THE AMOUNT OF THE REBATE; TO AMEND SECTION 27-65-11, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF THE TERM "MANUFACTURING MACHINERY" UNDER THE STATE SALES TAX LAW TO INCLUDE CERTAIN MACHINERY AND EQUIPMENT USED IN THE PRODUCTION OF MOTION PICTURES; TO AMEND SECTION 27-65-101, MISSISSIPPI CODE OF 1972, TO CREATE AN INDUSTRIAL SALES TAX EXEMPTION FOR SALES OF CERTAIN MACHINERY AND EQUIPMENT USED IN THE PRODUCTION OF MOTION PICTURES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The provisions of Sections 1 through 4 of this act shall be known and may be cited as the "Mississippi Motion Picture Incentive Act."
SECTION 2. As used in Sections 1 through 4 of this act, the following terms shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Base investment" means the actual investment made and expended by a motion picture production company in connection with the production of a state-certified production in the state. The term "base investment" shall not include payroll.
(b) "Motion picture" means a nationally distributed feature-length film, video, television series or commercial made in Mississippi, in whole or in part, for theatrical or television viewing or as a television pilot. The term "motion picture" shall not include the production of television coverage of news and athletic events.
(c) "Motion picture production company" means a company engaged in the business of producing nationally distributed motion pictures, videos, television series or commercials intended for a theatrical release or for television viewing. The term "motion picture production company" shall not mean or include any company owned, affiliated, or controlled, in whole or in part, by any company or person which is in default on a loan made by the state or a loan guaranteed by the state, or any company or person who has ever declared bankruptcy under which an obligation of the company or person to pay or repay public funds or monies was discharged as a part of such bankruptcy.
(d) "Payroll" means salary, wages or other compensation including related benefits.
(e) "Resident" or "resident of Mississippi" means a natural person, and for the purpose of determining eligibility for the tax credit provided by Section 3 of this act, any person domiciled in the State of Mississippi and any other person who maintains a permanent place of abode within the state and spends in the aggregate more than six (6) months of each year within the state.
(f) "State" means the State of Mississippi.
(g) "State-certified production" means a motion picture approved by the Mississippi Development Authority produced by a motion picture production company in the state.
SECTION 3. (1) A motion picture production company shall be entitled to a tax credit for the employment of residents of Mississippi in connection with production of a state-certified production in the state. The credit shall be equal to ten percent (10%) of the total aggregate payroll for residents employed in connection with such state-certified production during the taxable year.
(2) The credit may be applied to the aggregate tax liability applicable to the motion picture production company imposed by Chapters 7 and 13 of Title 27, Mississippi Code of 1972.
(3) If the motion picture production company is an entity not subject to the tax imposed by Chapters 7 and 13 of Title 27, Mississippi Code of 1972, the tax credit shall flow through to its partners or members as follows:
(a) Corporate partners or members shall claim their share of the credit on their corporation income or corporation franchise tax returns.
(b) Individual partners or members shall claim their share of the credit on their individual income tax returns.
(c) Partners or members that are estates or trusts shall claim their share of the credit on their fiduciary income tax returns.
(4) Any unused credit may be carried forward no more than ten (10) years from the date the credit was earned.
(5) A motion picture production company desiring a tax credit under this section must submit an application to the State Tax Commission. The application must include a detailed accounting of the total aggregate payroll for residents employed in connection with such state-certified production during the taxable year and any other information required by the State Tax Commission.
(6) The State Tax Commission shall have all powers necessary to implement and administer the provisions of this section, and the commission shall promulgate rules and regulations, in accordance with the Mississippi Administrative Procedures Law, necessary for the implementation of this section.
SECTION 4. (1) A motion picture production company shall be entitled to a rebate of a portion of the base investment made by the motion picture production company. The amount of the rebate shall be equal to ten percent (10%) of the base investment made by the motion picture production company.
(2) A motion picture production company desiring a rebate under this section must submit an application to the State Tax Commission. The application must include a detailed accounting of the base investment made by the motion picture production company and any other information required by the State Tax Commission. Rebates made by the State Tax Commission under this section shall be made from current tax collections.
(3) The State Tax Commission shall have all powers necessary to implement and administer the provisions of this section, and the State Tax Commission shall promulgate rules and regulations, in accordance with the Mississippi Administrative Procedures Law, necessary for the implementation of this section.
SECTION 5. Section 27-65-11, Mississippi Code of 1972, is amended as follows:
27-65-ll. (a) "Manufacturer" means one who is exclusively or predominately engaged in the business of manufacturing as defined under the terms "to manufacture" or "manufacturing." A person who is engaged in manufacturing and nonmanufacturing activities may be classified as a manufacturer as to his manufacturing activities which are operated as a separate business or division.
(b) "To manufacture" or "manufacturing" embraces activities of an industrial or commercial nature wherein labor or skill is applied, by hand or machinery, to materials belonging to the manufacturer so that a new, different, or more useful article of tangible personal property or substance of trade or commerce or electric power is produced for sale or rental and includes the production or fabrication of special-made or custom-made articles for sale or rental.
"To manufacture" or "manufacturing" does not include activities such as cooking or preparing food or food products by a retailer in the regular course of retail trade; repairing and reconditioning property; the filling of prescriptions by a pharmacist; the washing or screening of mineral products; the cutting, hauling and decking of logs; or similar preparatory functions even when performed by a manufacturer.
(c) "Remanufacturing" embraces activities of an industrial or commercial nature wherein labor or skill is applied by hand or machinery to materials, a portion of which may belong to the customer, so that rebuilt articles of tangible personal property, comparable in quality to new articles of the same property, are created, a majority of the value of which is produced by the remanufacturing activity.
(d) "Custom processor" means one who is exclusively or predominately engaged in the business of custom processing or remanufacturing as defined under the terms "custom processing" and "remanufacturing."
(e) "Custom processing" means the performance of a manufacturing service done or made to order upon the property of the customer and shall include laundering, cleaning and pressing, but shall not include "repairs" or "maintenance" as these terms are defined herein; nor self-service commercial laundering, drying, cleaning and pressing equipment.
(f) "Manufacturing machinery" shall mean and include that machinery owned or leased by a manufacturer or custom processor for use by said manufacturer or custom processor in his plant directly and exclusively in manufacturing tangible personal property for subsequent sale, rental or in custom processing for a fee. Motorized units, conveyors, track and track structures, conduits, and similar items for use in transporting the unfinished product from storage or from one (1) phase of the manufacturing process to another may be classed as "manufacturing machinery."
"Manufacturing machinery" shall also include laboratory machinery which shall include X-ray machines and film, scales, chemical equipment, pressure and tensile analysis machines and similar equipment to determine the quality of the product in process of manufacture, and equipment used in the processing of waste materials to avoid air and water pollution, but only when located at the manufacturer's plant site.
Machinery used by a manufacturer to move, repair, clean, alter, improve, or otherwise recondition, rail rolling stock for sale or rental shall likewise constitute "manufacturing machinery."
"Manufacturing machinery" shall also include machinery and equipment used in the production of motion pictures such as editing equipment, audio equipment, lighting equipment, projection equipment, camera equipment, sound equipment, cables, computer equipment used in the editing process, computer equipment used in the creation of special effects, and computer equipment used in the graphic and animation process. For the purposes of this paragraph the term "motion picture" means a nationally distributed feature-length film, video, television series or commercial made in Mississippi, in whole or in part, for theatrical or television viewing or as a television pilot. The term "motion picture" shall not include the production of television coverage of news and athletic events.
"Manufacturing machinery" shall not include machinery for use in the hatching of baby chicks, the severance of timber, sand, gravel, oil, gas or other natural resources produced or severed from the soil or water, maintenance or repair machinery, research laboratory machinery, storage warehouse machinery, equipment for protection of the plant or comfort of the personnel, or other equipment and supplies of like character. "Manufacturing machinery" does not include machine foundations or materials for their construction.
(g) "Machine parts" are component parts of manufacturing machinery and do not include parts for service equipment, nonmanufacturing machinery, fuels, lubricants, paints, or tools for maintenance.
(h) "Manufacturing plant" means the real and personal property owned or leased by a manufacturer which is assembled and used at a fixed location to perform activities defined as "manufacturing."
(i) "Repair," "repairs," or "maintenance" means the restoring of property in some measure to its original condition, which may involve the use of either personal property or labor or both, but, for the purposes of this chapter, the total charge for the service shall constitute gross income taxable in the class in which it falls.
(j) "Producer" means any person producing natural resource products or agricultural or horticultural products from the soil or water for sale.
SECTION 6. Section 27-65-101, Mississippi Code of 1972, is amended as follows:
27-65-101. (1) The exemptions from the provisions of this chapter which are of an industrial nature or which are more properly classified as industrial exemptions than any other exemption classification of this chapter shall be confined to those persons or property exempted by this section or by the provisions of the Constitution of the United States or the State of Mississippi. No industrial exemption as now provided by any other section except Section 57-3-33 shall be valid as against the tax herein levied. Any subsequent industrial exemption from the tax levied hereunder shall be provided by amendment to this section. No exemption provided in this section shall apply to taxes levied by Section 27-65-15 or 27-65-21.
The tax levied by this chapter shall not apply to the following:
(a) Sales of boxes, crates, cartons, cans, bottles and other packaging materials to manufacturers and wholesalers for use as containers or shipping materials to accompany goods sold by said manufacturers or wholesalers where possession thereof will pass to the customer at the time of sale of the goods contained therein and sales to anyone of containers or shipping materials for use in ships engaged in international commerce.
(b) Sales of raw materials, catalysts, processing chemicals, welding gases or other industrial processing gases (except natural gas) to a manufacturer for use directly in manufacturing or processing a product for sale or rental or repairing or reconditioning vessels or barges of fifty (50) tons load displacement and over. For the purposes of this exemption, electricity used directly in the electrolysis process in the production of sodium chlorate shall be considered a raw material. This exemption shall not apply to any property used as fuel except to the extent that such fuel comprises by-products which have no market value.
(c) The gross proceeds of sales of dry docks, offshore drilling equipment for use in oil exploitation or production, vessels or barges of fifty (50) tons load displacement and over, when sold by the manufacturer or builder thereof.
(d) Sales to commercial fishermen of commercial fishing boats of over five (5) tons load displacement and not more than fifty (50) tons load displacement as registered with the United States Coast Guard and licensed by the Mississippi Commission on Marine Resources.
(e) The gross income from repairs to vessels and barges engaged in foreign trade or interstate transportation.
(f) Sales of petroleum products to vessels or barges for consumption in marine international commerce or interstate transportation businesses.
(g) Sales and rentals of rail rolling stock (and component parts thereof) for ultimate use in interstate commerce and gross income from services with respect to manufacturing, repairing, cleaning, altering, reconditioning or improving such rail rolling stock (and component parts thereof).
(h) Sales of raw materials, catalysts, processing chemicals, welding gases or other industrial processing gases (except natural gas) used or consumed directly in manufacturing, repairing, cleaning, altering, reconditioning or improving such rail rolling stock (and component parts thereof). This exemption shall not apply to any property used as fuel.
(i) Sales of machinery or tools or repair parts therefor or replacements thereof, fuel or supplies used directly in manufacturing, converting or repairing ships of three thousand (3,000) tons load displacement and over, but not to include office and plant supplies or other equipment not directly used on the ship being built, converted or repaired.
(j) Sales of tangible personal property to persons operating ships in international commerce for use or consumption on board such ships. This exemption shall be limited to cases in which procedures satisfactory to the commissioner, ensuring against use in this state other than on such ships, are established.
(k) Sales of materials used in the construction of a building, or any addition or improvement thereon, and sales of any machinery and equipment not later than three (3) months after the completion of construction of the building, or any addition thereon, to be used therein, to qualified businesses, as defined in Section 57-51-5, which are located in a county or portion thereof designated as an enterprise zone pursuant to Sections 57-51-1 through 57-51-15.
(l) Sales of materials used in the construction of a building, or any addition or improvement thereon, and sales of any machinery and equipment not later than three (3) months after the completion of construction of the building, or any addition thereon, to be used therein, to qualified businesses, as defined in Section 57-54-5.
(m) Income from storage and handling of perishable goods by a public storage warehouse.
(n) The value of natural gas lawfully injected into the earth for cycling, repressuring or lifting of oil, or lawfully vented or flared in connection with the production of oil; however, if any gas so injected into the earth is sold for such purposes, then the gas so sold shall not be exempt.
(o) The gross collections from self-service commercial laundering, drying, cleaning and pressing equipment.
(p) Sales of materials used in the construction of a building, or any addition or improvement thereon, and sales of any machinery and equipment not later than three (3) months after the completion of construction of the building, or any addition thereon, to be used therein, to qualified companies, certified as such by the Mississippi Development Authority under Section 57-53-1.
(q) Sales of component materials used in the construction of a building, or any addition or improvement thereon, sales of machinery and equipment to be used therein, and sales of manufacturing or processing machinery and equipment which is permanently attached to the ground or to a permanent foundation and which is not by its nature intended to be housed within a building structure, not later than three (3) months after the initial start-up date, to permanent business enterprises engaging in manufacturing or processing in Tier Three areas (as such term is defined in Section 57-73-21), which businesses are certified by the State Tax Commission as being eligible for the exemption granted in this paragraph (q).
(r) Sales of component materials used in the construction of a building, or any addition or improvement thereon, and sales of any machinery and equipment not later than three (3) months after the completion of the building, addition or improvement thereon, to be used therein, for any company establishing or transferring its national or regional headquarters from within or outside the State of Mississippi and creating a minimum of thirty-five (35) jobs at the new headquarters in this state. The Tax Commission shall establish criteria and prescribe procedures to determine if a company qualifies as a national or regional headquarters for the purpose of receiving the exemption provided in this paragraph.
(s) The gross proceeds from the sale of semitrailers, trailers, boats, travel trailers, motorcycles and all-terrain cycles if exported from this state within forty-eight (48) hours and registered and first used in another state.
(t) Gross income from the storage and handling of natural gas in underground salt domes and in other underground reservoirs, caverns, structures and formations suitable for such storage.
(u) Sales of machinery and equipment to nonprofit organizations if the organization: (i) is tax-exempt pursuant to Section 501(c)(4) of the Internal Revenue Code of 1986, as amended; (ii) assists in the implementation of the national contingency plan or area contingency plan, and which is created in response to the requirements of Title IV, Subtitle B of the Oil Pollution Act of 1990, Public Law 101-380; and (iii) engages primarily in programs to contain, clean up and otherwise mitigate spills of oil or other substances occurring in the United States coastal and tidal waters. For purposes of this exemption, "machinery and equipment" means any ocean-going vessels, barges, booms, skimmers and other capital equipment used primarily in the operations of nonprofit organizations referred to herein.
(v) Sales of component materials and equipment to approved business enterprises as provided under the Growth and Prosperity Act.
(w) From and after July 1, 2001, sales of pollution control equipment to manufacturers or custom processors for industrial use. For the purposes of this exemption, "pollution control equipment" means equipment, devices, machinery or systems used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation.
(x) Sales or leases to a manufacturer of motor vehicles operating a project that has been certified by the Mississippi Major Economic Impact Authority as a project as defined in Section 57-75-5(f)(iv)1 of machinery and equipment; special tooling such as dies, molds, jigs and similar items treated as special tooling for federal income tax purposes; or repair parts therefor or replacements thereof; repair services thereon; fuel, supplies, electricity, coal and natural gas used directly in the manufacture of motor vehicles or motor vehicle parts or used to provide climate control for manufacturing areas.
(y) Sales or leases of component materials, machinery and equipment used in the construction of a building, or any addition or improvement thereon to an enterprise operating a project that has been certified by the Mississippi Major Economic Impact Authority as a project as defined in Section 57-75-5(f)(iv)1 and any other sales or leases required to establish or operate such project.
(z) Sales of component materials and equipment to a business enterprise as provided under Section 57-64-33.
(aa) Sales of machinery and equipment used in the production of motion pictures such as film; videotape; component building materials used in the construction of a set; makeup; fabric used as or in the making of costumes; clothing, including, shoes, accessories and jewelry used as wardrobes; materials used as set dressing; materials used as props on a set or by an actor; materials used in the creation of special effects; and expendable items purchased for limited use by grip, electric and camera departments such as tape, fasteners and compressed air. For the purposes of this paragraph (aa) the term "motion picture" means a nationally distributed feature-length film, video, television series or commercial made in Mississippi, in whole or in part, for theatrical or television viewing or as a television pilot. The term "motion picture" shall not include the production of television coverage of news and athletic events.
(2) Sales of component materials used in the construction of a building, or any addition or improvement thereon, sales of machinery and equipment to be used therein, and sales of manufacturing or processing machinery and equipment which is permanently attached to the ground or to a permanent foundation and which is not by its nature intended to be housed within a building structure, not later than three (3) months after the initial start-up date, to permanent business enterprises engaging in manufacturing or processing in Tier Two areas and Tier One areas (as such areas are designated in accordance with Section 57-73-21), which businesses are certified by the State Tax Commission as being eligible for the exemption granted in this paragraph, shall be exempt from one-half (1/2) of the taxes imposed on such transactions under this chapter.
(3) (a) For purposes of this subsection:
(i) "Telecommunications enterprises" shall have the meaning ascribed to such term in Section 57-73-21(13);
(ii) "Tier One areas" mean counties designated as Tier One areas pursuant to Section 57-73-21(1);
(iii) "Tier Two areas" mean counties designated as Tier Two areas pursuant to Section 57-73-21(1);
(iv) "Tier Three areas" mean counties designated as Tier Three areas pursuant to Section 57-73-21(1); and
(v) "Equipment used in the deployment of broadband technologies" means any equipment capable of being used for or in connection with the transmission of information at a rate, prior to taking into account the effects of any signal degradation, that is not less than three hundred eighty-four (384) kilobits per second in at least one direction, including, but not limited to, asynchronous transfer mode switches, digital subscriber line access multiplexers, routers, servers, multiplexers, fiber optics and related equipment.
(b) Sales of equipment to telecommunications enterprises after June 30, 2003, and before July 1, 2013, that is installed in Tier One areas and used in the deployment of broadband technologies shall be exempt from one-half (1/2) of the taxes imposed on such transactions under this chapter.
(c) Sales of equipment to telecommunications enterprises after June 30, 2003, and before July 1, 2013, that is installed in Tier Two and Tier Three areas and used in the deployment of broadband technologies shall be exempt from the taxes imposed on such transactions under this chapter.
SECTION 7. This act shall take effect and be in force from and after July 1, 2004.