MISSISSIPPI LEGISLATURE

2022 Regular Session

To: Finance; Economic and Workforce Development

By: Senator(s) Parker

Senate Bill 2159

(As Sent to Governor)

AN ACT TO CREATE THE "MISSISSIPPI FLEXIBLE TAX INCENTIVE ACT"; TO DEFINE TERMS; TO ESTABLISH REQUIREMENTS AND STANDARDS FOR APPLICATION TO THE MISSISSIPPI DEVELOPMENT AUTHORITY FOR CERTIFICATION AND AWARD OF THE MISSISSIPPI FLEXIBLE TAX INCENTIVE; TO ESTABLISH REQUIREMENTS AND STANDARDS FOR THE CERTIFICATION AND AWARD OF THE MISSISSIPPI FLEXIBLE TAX INCENTIVE BY THE MISSISSIPPI DEVELOPMENT AUTHORITY TO A QUALIFIED BUSINESS OR INDUSTRY FOR A QUALIFIED ECONOMIC DEVELOPMENT PROJECT; TO PRESCRIBE THE MEANS OF CALCULATING AND APPLYING SUCH INCENTIVE; TO PROHIBIT UTILIZATION OF CERTAIN OTHER INCENTIVES IN COMBINATION WITH THE MISSISSIPPI FLEXIBLE TAX INCENTIVE; TO ESTABLISH REQUIREMENTS AND STANDARDS FOR ANNUAL REPORTING BY A QUALIFIED BUSINESS OR INDUSTRY, MODIFICATIONS TO PRIOR TAX INCENTIVE AWARDS BY THE MISSISSIPPI DEVELOPMENT AUTHORITY AND DEADLINES FOR THE UTILIZATION OF SUCH INCENTIVE; TO AUTHORIZE AUDITS BY THE MISSISSIPPI DEPARTMENT OF REVENUE AND SHARING OF CERTAIN INFORMATION ABOUT CERTAIN INCENTIVE AWARDEES BETWEEN STATE AGENCIES; TO CLARIFY THAT THE MISSISSIPPI DEVELOPMENT AUTHORITY IS GRANTED EXCLUSIVE JURISDICTION TO CERTIFY, AWARD AND MAKE ANY ADJUSTMENTS TO A MISSISSIPPI FLEXIBLE TAX INCENTIVE FOR A QUALIFIED BUSINESS OR INDUSTRY; TO AUTHORIZE THE MISSISSIPPI DEVELOPMENT AUTHORITY AND THE MISSISSIPPI DEPARTMENT OF REVENUE TO PROMULGATE RULES AND REGULATIONS NECESSARY TO IMPLEMENT THIS ACT; TO AMEND SECTION 27-7-309, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE APPLICATION OF A MISSISSIPPI FLEXIBLE TAX INCENTIVE AS A CREDIT TO OFFSET WITHHOLDING TAX LIABILITY; TO AMEND SECTION 27-7-311, MISSISSIPPI CODE OF 1972, TO EXCLUDE ANY MISSISSIPPI FLEXIBLE TAX INCENTIVE APPLIED AS A CREDIT TO OFFSET STATE INCOME TAX LIABILITY FROM THE ANNUAL STATEMENT REQUIRED TO BE FILED WITH THE COMMISSIONER OF REVENUE FOR AN EMPLOYEE; TO AMEND SECTION 27-13-5, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE APPLICATION OF A MISSISSIPPI FLEXIBLE TAX INCENTIVE AS A CREDIT TO OFFSET FRANCHISE TAX LIABILITY OF MISSISSIPPI CORPORATIONS; TO AMEND SECTION 27-13-7, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE APPLICATION OF A MISSISSIPPI FLEXIBLE TAX INCENTIVE AS A CREDIT TO OFFSET FRANCHISE TAX LIABILITY OF FOREIGN CORPORATIONS; TO AMEND SECTION 27-65-93, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF REVENUE TO ISSUE A DIRECT PAY PERMIT TO A QUALIFIED BUSINESS OR INDUSTRY THAT IS AWARDED A MISSISSIPPI FLEXIBLE TAX INCENTIVE BY THE MISSISSIPPI DEVELOPMENT AUTHORITY; TO AMEND SECTION 27-67-17, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE APPLICATION OF A MISSISSIPPI FLEXIBLE TAX INCENTIVE AS A CREDIT TO OFFSET STATE USE TAX LIABILITY; TO AMEND SECTION 57-1-14, MISSISSIPPI CODE OF 1972, TO DELAY OR PRECLUDE CERTAIN INFORMATION PROVIDED IN APPLICATIONS AND ANNUAL REPORTS FOR THE MISSISSIPPI FLEXIBLE TAX INCENTIVE FROM DISCLOSURE PURSUANT TO THE MISSISSIPPI PUBLIC RECORDS ACT OF 1983; TO AMEND SECTION 27-7-22, MISSISSIPPI CODE OF 1972, TO ALLOW AN INCOME TAX CREDIT FOR ANY QUALIFIED BUSINESS OR INDUSTRY WHICH IS CERTIFIED AS SUCH BY THE MISSISSIPPI BOARD OF ECONOMIC DEVELOPMENT UNDER THE MISSISSIPPI FLEXIBLE TAX INCENTIVE ACT AND AWARDED A TAX INCENTIVE UNDER THE ACT FOR A QUALIFIED ECONOMIC DEVELOPMENT PROJECT; TO PROVIDE THAT FROM AND AFTER JANUARY 1, 2023, IF THE AMOUNT OF ANY MFLEX TAX INCENTIVE OR OTHER INCENTIVE THAT A QUALIFIED BUSINESS OR OTHER ENTITY IS ELIGIBLE TO RECEIVE UNDER THE MISSISSIPPI FLEXIBLE TAX INCENTIVE ACT IS LESS THAN THE AMOUNT OF THE MFLEX TAX INCENTIVE OR OTHER INCENTIVE THAT THE QUALIFIED BUSINESS OR OTHER ENTITY WOULD HAVE BEEN ELIGIBLE TO RECEIVE OR TO USE IF THE MFLEX TAX INCENTIVE OR OTHER INCENTIVE HAD BEEN CALCULATED USING ANY APPLICABLE INCOME TAX RATES IN SECTION 27-7-5 THAT WERE IN EFFECT BEFORE JANUARY 1, 2023, THEN THE QUALIFIED BUSINESS OR OTHER ENTITY SHALL RECEIVE A GRANT FROM THE MISSISSIPPI DEVELOPMENT AUTHORITY EQUAL TO THE DIFFERENCE BETWEEN SUCH TWO AMOUNTS; TO AMEND SECTIONS 57-62-9 AND 57-62-11, MISSISSIPPI CODE OF 1972, WHICH ARE SECTIONS OF THE MISSISSIPPI ADVANTAGE JOBS ACT; TO PROVIDE THAT FROM AND AFTER JANUARY 1, 2023, IF THE AMOUNT OF THE INCENTIVE PAYMENT THAT A QUALIFIED BUSINESS OR INDUSTRY IS ELIGIBLE TO RECEIVE UNDER SUCH ACT IS LESS THAN THE AMOUNT THAT THE INCENTIVE PAYMENT WOULD HAVE BEEN IF THE PAYMENT HAD BEEN CALCULATED USING ANY APPLICABLE INCOME TAX RATES IN SECTION 27-7-5 THAT WERE IN EFFECT BEFORE JANUARY 1, 2023, THEN THE QUALIFIED BUSINESS OR INDUSTRY ALSO SHALL RECEIVE A GRANT EQUAL TO THE DIFFERENCE BETWEEN SUCH TWO AMOUNTS; TO AMEND SECTIONS 57-99-1, 57-99-3 AND 57-99-5, MISSISSIPPI CODE OF 1972, WHICH ARE SECTIONS OF THE MISSISSIPPI MAJOR ECONOMIC IMPACT WITHHOLDING REBATE INCENTIVE PROGRAM, TO PROVIDE THAT FROM AND AFTER JANUARY 1, 2023, IF THE AMOUNT OF THE INCENTIVE PAYMENTS THAT A QUALIFIED BUSINESS OR INDUSTRY IS ELIGIBLE TO RECEIVE UNDER SUCH PROGRAM IS LESS THAN THE AMOUNT THAT THE INCENTIVE PAYMENTS WOULD HAVE BEEN IF THE PAYMENTS HAD BEEN CALCULATED USING ANY APPLICABLE INCOME TAX RATES IN SECTION 27-7-5 THAT WERE IN EFFECT BEFORE JANUARY 1, 2023, THEN THE QUALIFIED BUSINESS OR INDUSTRY ALSO SHALL RECEIVE A GRANT EQUAL TO THE DIFFERENCE BETWEEN SUCH TWO AMOUNTS; AND FOR RELATED PURPOSES.

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

SECTION 1. Short title. Sections 1 through 10 of this act shall be known and may be cited as the "Mississippi Flexible Tax Incentive Act."

SECTION 2. Definitions. For purposes of Sections 1 through 10 of this act, the following words shall have the meanings ascribed herein unless the context otherwise requires:

(a) "Affiliate" means, with respect to a specified entity, (i) another person or entity that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with the specified person or entity, where the term "control" means the ownership or possession, directly or indirectly, of the power to direct more than fifty percent (50%) of the voting equity securities or a similar ownership interest in the specified controlled entity, or (ii) any member of an affiliated group of corporations, of which the specified entity is also a member, which are each subject to income taxation in Mississippi and may elect to file a combined Mississippi income tax return in accordance with state law.

(b) "Authority" means the Mississippi Development Authority.

(d) "Applicable accounting rules" shall mean the accounting principles generally recognized as applicable to a qualified business or industry and pursuant to which such qualified business or industry regularly prepares and maintains its financial and accounting books and records, and which specifically incorporate Generally Accepted Accounting Principles or International Financial Reporting Standards, as appropriate.

(e) "Applicant" means any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof that applies to the authority, in the manner prescribed by Sections 1 through 10 of this act, seeking (i) certification by the authority that such applicant is a qualified business or industry and that its proposed new project or expansion of an existing business or industrial operation is a qualified economic development project, and (ii) an award in connection therewith of an mFlex tax incentive.

(f) "Average state or county wage" shall mean, as of the project certification date, the lesser of the most recently published average annual wage per person as determined and published by the Mississippi Department of Employment Security for the state or the county in which the qualified project is or will be located; provided that, if a qualified project is or will be located in two (2) or more counties, the average state or county wage, as used in Sections 1 through 10 of this act, shall mean, as of the project certification date, only the most recently published average annual wage per person as determined and published by the Mississippi Department of Employment Security for the state.

(g) "Average employer wage" means the qualified annual payroll for all new full-time jobs created in the State of Mississippi by a qualified business or industry divided by the number of new full-time jobs thereof for which such qualified annual payroll was paid or is otherwise payable.

(h) "Base full-time job" means a job (i) for which an employee was already hired by the qualified business or industry before, and is employed as of, the project certification date; (ii) that offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for a normal four (4) consecutive quarter period of the qualified business or industry's operations or a job for which the employee was hired before, and is employed as of, the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after hiring, elects to take unpaid time off or is on short-term or long-term disability); and (iii) the employee holding such job receives salary or wages subject to state income tax withholdings. The term "base full-time job" also means a base-leased employee. Part-time jobs may not be combined to add up to a base full-time job.

(i) "Base-leased employee" means a nontemporary employee:

(i) Who was leased by the qualified business or industry before the project certification date from another business or enterprise that is 1. in the business of leasing employees, and 2. is registered with the Office of the Secretary of State and qualified to do business in the state;

(ii) Who is leased as of the project certification date;

(iii) Who is not otherwise an employee of such qualified business or industry;

(iv) Who, as of the project certification date, was already performing services for, and under the supervision of, the qualified business or industry pursuant to a leasing agreement between the qualified business or industry and such other employee leasing firm;

(v) Whose job-performing services for the qualified business or industry offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is leased before the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after being leased, elects to take unpaid time off or is on short-term or long-term disability); and

(vi) Whose job receives salary or wages subject to state income tax withholdings. Individuals employed by an independent contractor performing one or more services for the qualified business or industry pursuant to a services or management agreement (e.g., security services, landscaping services, and cafeteria management and food services) shall not be considered as base-leased employees.

(j) "Contractor tax" shall mean the tax levied by Section 27-65-21, except for the tax upon the sale of manufacturing or processing machinery for a manufacturer or custom processor.

(k) "Construction contract" shall mean any contract or portion of any contract for any one or more of the activities described in Section 27-65-21 for which the contractor tax applies and is payable by the contractor that is party thereto.

(l) "Manufacturing machinery," as used in Sections 1 through 10 of this act, shall have the same meaning ascribed to such term in Section 27-65-11, as interpreted by any regulations promulgated by the Department of Revenue with respect to such section.

(m) "mFlex agreement" means the written agreement entered into between a qualified business or industry and the authority in accordance with Section 5(d)(iii) of this act.

(n) "mFlex tax incentive" means the tax incentive authorized by Sections 1 through 10 of this act to be calculated and awarded by the authority, and thereafter applied as a credit to offset state taxes, in accordance with, and subject to, Sections 1 through 10 of this act.

(o) "Minimum job creation requirement" means the creation by the qualified business or industry, following the project certification date, of at least ten (10) new full-time jobs in the state.

(p) "Minimum qualified investment" means a qualified investment of not less than Two Million Five Hundred Thousand Dollars ($2,500,000.00).

(q) "New full-time job" means a job:

(i) For which an employee is hired by the qualified business or industry after the project certification date;

(ii) That offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for a normal four (4) consecutive quarter period of the qualified business or industry's operations or a job for which the employee is hired after the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after hiring, elects to take unpaid time off or is on short-term or long-term disability); and

(iii) The employee holding such job receives salary or wages subject to state income tax withholdings. The term "new full-time job" also means new-leased employee. Part-time jobs may not be combined to add up to a new full-time job.

(r) "New-leased employee" means a nontemporary employee:

(i) Who is leased by the qualified business or industry after the project certification date from another business or enterprise that is 1. in the business of leasing employees, and 2. is registered with the Office of the Secretary of State and qualified to do business in the state;

(ii) Who is not otherwise an employee of such qualified business or industry;

(iii) Who performs services for the qualified business or industry pursuant to a leasing agreement between the qualified business or industry and such other employee-leasing firm;

(iv) Whose job-performing services for the qualified business or industry offers a minimum of one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is leased after the project certification date and is compensated based on one thousand eight hundred twenty (1,820) hours for such annual period (including in each case an employee who, after being leased, elects to take unpaid time off or is on short-term or long-term disability); and

(v) Whose job receives salary or wages subject to state income tax withholdings. Individuals employed by an independent contractor performing one or more services for the qualified business or industry pursuant to a services or management agreement (e.g., security services, landscaping services, and cafeteria management and food services) shall not be considered as a new-leased employees.

(s) "Nonmanufacturing equipment" means all tangible personal property that is not manufacturing machinery, including, but not limited to, office furniture, fixtures, office computers and communications equipment, and warehouse equipment such as racking and shelving.

(t) "Part-time job" means a job (i) for which an employee is hired by the qualified business or industry that requires fewer than one thousand eight hundred twenty (1,820) hours of an employee's time per year (i.e., requires fewer than thirty-five (35) hours per week on average) for an entire normal work year of the qualified business or industry's operations or a job for which the employee is hired and is compensated based on fewer than one thousand eight hundred twenty (1,820) hours for such annual period; and (iii) for which the employee holding such job receives salary or wages subject to state income tax withholdings.

(u) "Project certification date" means the actual date of the authority's certification, or the effective date of certification determined and prescribed by the authority, of the qualified business or industry and its qualified economic development project as eligible for the state tax credits determined and awarded by the authority, as authorized by, and in accordance with, Sections 1 through 10 of this act.

(v) "Qualified annual payroll" means the sum of the annual salary and wages for new full-time jobs of the qualified business or industry, excluding the amount or value of any benefits that are not subject to state income taxes.

(w) "Qualified business or industry" means any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof, which makes a qualified minimum investment in a qualified economic development project.

(x) "Qualified economic development project" or "qualified project" means the location in the state of one or more of the following enumerated enterprises for which a corporation, limited liability company, partnership, sole proprietorship, business trust or other legal entity, or subunit or affiliate thereof, makes or causes to be made from the minimum qualified investment and/or satisfies or causes to be satisfied the minimum job creation requirement:

(i) A new warehouse and/or distribution enterprise or an expansion of an existing warehouse and/or distribution enterprise; provided that, in any such instance, such warehouse and/or distribution enterprise or expansion thereof is certified by the authority to qualify as such;

(ii) A new manufacturing, remanufacturing, assembly, processing and/or refinery enterprise or an expansion of an existing manufacturing, remanufacturing, assembly, processing and/or refinery enterprise; provided that, in any such instance, such manufacturing, remanufacturing, assembly, processing and/or refinery enterprise or expansion thereof is certified by the authority to qualify as such;

(iii) A new research or research and development enterprise or an expansion of an existing research or research and development enterprise; provided that, in any such instance, such research and development enterprise or an expansion thereof is certified by the authority to qualify as such;

(iv) A new regional or national headquarters of the qualified business or industry or an expansion of an existing regional or national headquarters of the qualified business or industry; provided that, in any such instance, such regional or national headquarters or expansion thereof is certified by the authority to qualify as such;

(v) An air transportation, repair and/or maintenance enterprise or an expansion of an existing air transportation, repair and/or maintenance enterprise; provided that, in either instance, such air transportation, repair and/or maintenance enterprise or expansion thereof is certified by the authority to qualify as such;

(vi) A ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise or an expansion of an existing ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise; provided that, in either instance, the ship or other maritime vessel or barge transportation, repair and/or maintenance enterprise or expansion thereof is certified by the authority to qualify as such;

(vii) A new data/information processing enterprise or an expansion of an existing new data/information processing enterprise; provided that, in any such instance such data/information processing enterprise or expansion thereof is certified by the authority to qualify as such;

(viii) A new technology intensive enterprise or an expansion of an existing technology intensive enterprise; provided that, in either instance, the technology intensive enterprise or expansion thereof is certified by the authority to qualify as such; provided further, that a business or enterprise primarily engaged in creating computer programming codes to develop applications, websites and/or software shall qualify as a technology intensive enterprise;

(ix) A new telecommunications enterprise principally engaged in the creation, display, management, storage, processing, transmission and/or distribution, for compensation, of images, text, voice, video or data by wire or by wireless means, or engaged in the construction, design, development, manufacture, maintenance or distribution for compensation of devices, products, software or structures used in the above activities, or an expansion of an existing telecommunications enterprise as herein described; provided that, in any such instance, any such telecommunications enterprise or expansion thereof is certified by the authority to qualify as such; provided further, that commercial broadcast radio stations, television stations or news organizations primarily serving in-state markets shall not be included within the definition of the term "telecommunications enterprise";

(x) A new data center enterprise principally engaged in the utilization of hardware, software, technology, infrastructure and/or workforce, to store, manage or manipulate digital data, or an expansion of an existing data center enterprise as herein described; provided that, in such instance, any such data center enterprise or expansion thereof is certified by the authority to qualify as such.

(y) "Qualified investment" means any expenditures made or caused to be made by the qualified business or industry following the project certification date for construction, installation, equipping and operation of a qualified economic development project from any source or combination of sources, excluding any funds contributed by the state or any agency or other political subdivision thereof, or by any local government or any agency or other political subdivision thereof, to the extent such expenditures can be capitalized under applicable accounting rules or otherwise by the Internal Revenue Code, whether or not the qualified business or industry elects to capitalize the same, as reflected in its financial statements, including, but not limited to, all costs associated with the acquisition, installation and/or construction of, or capital leasehold interest in, any buildings and other real property improvements, fixtures, equipment, machinery, landscaping, fire protection, depreciable fixed assets, engineering and design costs.

(z) "Reporting year" means the twelve-month period ending on the last day of the month during which the annual anniversary of a project certification date occurs, and for which an annual report must be filed with the authority by a qualified business or industry in accordance with Section 7 of this act.

(aa) "State" means the State of Mississippi.

(bb) "State tax" means:

(i) Any sales and use tax imposed on, and payable directly to the Department of Revenue by, the qualified business or industry in accordance with state law, except for contractor's tax and the taxes levied by Section 27-65-24(1)(b);

(ii) All income tax imposed pursuant to law on income earned by the qualified business or industry pursuant to state law;

(iii) Franchise tax imposed pursuant to state law on the value of capital used, invested or employed by the business enterprise certified by the Mississippi Development Authority; and

(iv) Withholding tax required to be deducted and withheld from employee wages pursuant to Section 27-7-301 et seq.

SECTION 3. Application for the mFlex tax incentive. Business or industrial enterprises wishing to apply for the mFlex tax incentive authorized by Sections 1 through 10 of this act shall make application to the authority, on a form prescribed thereby; provided that the application shall, at a minimum, contain:

(a) A brief overview of the applicant's business or industry, including its formation type (e.g., corporation, limited liability company, limited partnership, etc.), its date of incorporation or formation thereof, and the location of its principal headquarters, together with its principal place of business in the state, if the applicant already has one or more facilities located in the state;

(b) The location of the selected project site or locations of selected project sites, if multiple locations will be involved;

(d) The amount of the qualified investment proposed to be made as a result of the proposed project, including a breakout of projected expenditures for manufacturing machinery, nonmanufacturing equipment and component building materials to establish and equip the proposed project;

(e) If the proposed project will be an expansion of an existing business or industrial operation, the current number of base full-time jobs;

(f) The number of new full-time jobs proposed to be created as a result of the proposed project;

(g) The average employer wage proposed to be paid by the applicant for new full-time jobs disclosed in the application;

(h) A description of benefits, including but not limited to, health, dental and/or vision insurance, retirement savings account, etc. made available to employees, as well as a description of any employees to whom such benefits are not made available (e.g., part-time employees);

(i) The length of time necessary for the applicant to meet its qualified investment and new full-time job creation projections;

(j) A list of all affiliates of the qualified business or industry known at the time of the application, including the Federal Employer Identification Number for each such affiliate, which have or are expected to have any state tax liability that may be offset by all or some portion of the mFlex tax incentives awarded to the qualified business or industry;

(k) An acknowledgment that the applicant, if awarded an mFlex tax incentive pursuant to Sections 1 through 10 of this act, will be required to provide the annual report prescribed by Section 7 of this act to demonstrate the actual amount of its qualified investment, including actual expenditures on manufacturing machinery, nonmanufacturing equipment and component building materials, and the number of new full-time jobs created and maintained as a result of the project; and

(l) Any other information as may be requested by the authority.

SECTION 4. Certification and award of mFlex tax incentive, terms of such incentive, nontransferability of such certification and incentive; mandatory and permissive conditions to certifications and incentive awards. (1) The authority shall evaluate an application to determine whether the applicant's proposed project is a qualified economic development project and whether it is therefore eligible for an award by the authority of an mFlex tax incentive, as calculated in accordance with Section 5 of this act.

(2) Upon approval of an applicant's application, the authority shall issue a certification (a) designating the applicant's project as a "qualified economic development project" and eligible for the mFlex tax incentive authorized by Sections 1 through 10 of this act; (b) awarding the initial mFlex tax incentive calculated pursuant to Section 5 of this act; and (c) imposing those mandatory conditions pursuant to subsection (4) of this section and any discretionary conditions otherwise imposed by the authority.

(3) Upon the issuance of the certification and execution of the mFlex agreement by a qualified business or industry and the authority, the qualified business or industry may apply the amount of its mFlex tax incentive as a credit to offset (a) any state taxes (except for withholding tax required to be deducted and withheld from employee wages pursuant to Section 27-7-301 et seq.), as incurred thereby, up to the full amount of the mFlex tax incentive awarded by the authority for the associated qualified economic development project, and (b) only up to twenty percent (20%) of the mFlex tax incentive amount may be applied as a credit during the course of any reporting year to offset withholding tax deducted and withheld from employee wages pursuant to Section 27-7-301 et seq.; provided that the amount of the mFlex tax incentive available to be applied as a credit to offset such state taxes shall be subject to any subsequent adjustments made by the authority to such award pursuant to Section 7 of this act, and any performance requirements set out in the mFlex agreement. The amount of the mFlex tax incentive available to be applied as a credit to offset any state taxes described in Section 2(aa)(i) of this act shall be limited to those such taxes payable directly by the qualified business or industry to the Department of Revenue pursuant to a direct pay permit issued by the Department of Revenue under Section 27-65-93. The amount of the mFlex tax incentive available to be applied as a credit to offset any state taxes may not be applied as a credit to offset any state taxes incurred prior to the issuance of the certification by the authority and execution of the mFlex agreement by the qualified business or industry and the authority.

(4) The following conditions shall apply to each such certification made, and each mFlex tax incentive awarded, by the authority in accordance with Sections 1 through 10 of this act:

(a) Any certification and mFlex tax incentive award issued by the authority under Sections 1 through 10 of this act is nontransferable and cannot be applied, used or assigned to any other person or business or tax account without prior approval by the authority, except for one or more affiliates of the qualified business or industry disclosed thereby on its application or in a subsequent annual report submitted to the authority in accordance with Sections 1 through 10 of this act;

(b) No qualified business or industry may claim or use the mFlex tax incentive awarded thereto under Sections 1 through 10 of this act unless the qualified business or industry is in full compliance with all state and local tax laws, and related ordinances, permits and other applicable governmental approvals; and

(c) Each qualified business or industry must enter into an mFlex agreement with the authority which sets out, at a minimum, (i) the obligation of the business or industry to provide an annual report to the authority pursuant to Section 7 of this act that demonstrates the actual amount of its qualified investment, including actual expenditures on manufacturing machinery, nonmanufacturing equipment and component building materials, the number of new full-time jobs created and maintained as a result of the project, and any other relevant information as may be required by the authority; and (ii) terms for readjustment or recapture of all or a portion of the mFlex tax incentive awarded thereto pursuant to Section 7 of this act if the applicant 1. fails to satisfy the minimum job creation requirement if certification of the project is predicated on satisfaction of the minimum job creation requirement and not the minimum qualified investment, or 2. fails to satisfy the minimum qualified investment if certification of the project is predicated on satisfaction of the minimum job creation requirement and not the minimum qualified investment, and/or 3. fails to otherwise satisfy any other additional performance requirements of the qualified business or industry or its qualified economic development project that are imposed by the authority.

(5) In addition to those mandatory conditions prescribed by Sections 1 through 10 of this act that apply to each certification and award of an mFlex tax incentive made by the authority in accordance herewith, the authority is authorized to impose any other conditions upon any certification and award of an mFlex tax incentive made by the authority as it shall find best promotes economic development in the state.

(6) Upon certifying a qualified business or industry as eligible for, and awarding, an mFlex tax incentive under Sections 1 through 10 of this act, the authority shall forward the certification along with any other necessary information to the Department of Revenue so that the mFlex tax incentive awarded to the qualified business or industry can be recorded by the Department of Revenue and used to verify each state tax credit subsequently applied by the qualified business or industry.

(7) Within thirty (30) days following the end of each calendar quarter, the authority shall provide to the Governor, Lieutenant Governor and the Speaker of the House of Representatives a copy of each certification made, together with a copy of each mFlex agreement approved and executed, during the immediately preceding calendar quarter.

SECTION 5. Calculation and application of an mFlex tax incentive award. The total amount of the initial mFlex tax incentive determined and awarded by the authority to the certified applicant shall be calculated by the authority as follows:

(a) Subject to paragraph (f) below, one and one-half percent (1.5%) of the total purchase or sales price, or value, including any installation costs thereof, as applicable, of all manufacturing or processing machinery acquired, leased or otherwise moved into the state following the project certification date to establish and equip the qualified economic development project; plus

(b) Subject to paragraph (f) below, seven percent (7%) of the total purchase or sales price, or value, including any installation costs thereof, as applicable, of all nonmanufacturing equipment, other than tagged over-the-road vehicles, acquired, leased or otherwise moved into the state following the project certification date to establish and equip the qualified economic development project; plus

(c) Subject to paragraph (f) below, two percent (2%) of the total contract price or compensation paid to any contractor pursuant to any construction contract entered into following the project certification date by the qualified business or industry or any affiliate thereof, to construct, build, erect, repair or add to any building, facility, structure or other improvement to real property described in Section 27-65-21(1)(a)(i) to establish and construct the qualified economic development project; plus, if applicable;

(d) To the extent that the average employer wage is equal to or more than seventy-five percent (75%) of the average state or county wage, then an additional fifteen percent (15%) of the product derived by multiplying the average employer wage by the number of new full-time jobs; plus, if applicable;

(e) (i) To the extent that 1. the qualified economic development project is an enterprise enumerated in Section 2(x)(i) or Section 2(x)(ii) of this act; 2. the number of new full-time jobs totals fifty (50) or more; 3. the qualified investment totals Ten Million Dollars ($10,000,000) or more; 4. the average employer wage is equal to or more than one hundred ten percent (110%) of the average state or county wage; and 5. all full-time employees are eligible for and offered health insurance coverage funded in whole or at least fifty percent (50%) by the qualified business or industry (or by a leasing company with respect to leased employees), then an additional thirty percent (30%) of the product derived by multiplying the average employer wage by the number of new full-time jobs; or

(ii) To the extent that subparagraph (i) of this paragraph (e) does not apply, but 1. the number of new full-time jobs totals twenty-five (25) or more; 2. the average employer wage is equal to or more than one hundred twenty-five percent (125%) of the average state or county wage; and 3. all full-time employees are eligible for and offered health insurance coverage funded in whole or at least fifty percent (50%) by the qualified business or industry (or by a leasing company with respect to leased employees), then an additional thirty percent (30%) of the product derived by multiplying the average employer wage by the number of new full-time jobs; provided, however, that the initial mFlex tax incentive award amount determined by the authority and awarded on the project certification date shall be based upon estimates provided by the qualified business or industry to the authority with respect to paragraphs (a) through (d) of this section, which estimates shall be memorialized as project performance measures agreed to by the qualified business or industry in the mFlex agreement; provided, further, that such initial award amount shall be subject to any subsequent adjustments made by the authority pursuant to Section 7 of this act;

(f) To the extent that all or any portion of the purchases to establish a qualified economic development project which are financed by proceeds from bonds issued pursuant to Section 57-10-201 et seq. or Section 57-10-401 et seq., the mFlex tax incentive determined in accordance with this section shall exclude the amount calculated in accordance with paragraphs (a), (b) and (c) above; provided that, this paragraph (f) shall not apply in determining the mFlex tax incentive for a qualified economic development project to the extent that (i) the qualified economic development project is an expansion of an existing project, (ii) all or any portion of the purchases to establish the existing project were financed by proceeds from bonds issued pursuant to Section 57-10-201 et seq. or Section 57-10-401 et seq., and (iii) no purchases to establish the expansion constituting a qualified economic development project are financed by proceeds from bonds issued pursuant to Section 57-10-201 et seq. or Section 57-10-401 et seq.

SECTION 6. Exclusive utilization of mFlex tax incentive. (1) A qualified business or industry awarded any mFlex tax incentive by the authority for its qualified economic development project pursuant to Sections 1 through 10 of this act shall not be eligible for, nor shall it apply for or claim, any one or more of the following tax credits, exemptions or incentives for such qualified project:

(a) For any new full-time job, any state income tax credit authorized by Sections 27-7-22.17, 22-7-22.18, 22-7-22-19, 277-22.27, 27-7-22.29, 27-7-22.34, 27-7-22.36 and 57-73-21(2) through (5);

(b) For any new full-time job, any withholding tax rebate authorized by Sections 57-62-1 through 57-62-7 or Sections 57-100-1 through 57-100-9;

(c) Any exemption from state income tax authorized by Section 27-7-30, Sections 57-80-1 through 57-80-11, Sections 57-113-1 through 57-113-7, and Sections 57-113-21 through 57-11327;

(d) Any state income tax credit authorized by Section 27-7-22.20 or Section 22-7-22.35;

(e) Any exemption from state sales or use tax authorized by Section 27-65-101(1)(q), (r), (v), (w), (x), (y), (cc), (dd), (ff), (gg), (hh), (kk), (ll), (mm), (nn), (qq), (uu), (vv), (2) or (3); Sections 57-80-1 through 57-80-11; Sections 57-113-1 through 57-113-7; and Sections 57-113-21 through 57-113-27;

(f) Any exemption from state franchise tax authorized by Section 27-13-5(4), Section 27-13-7(4), Sections 57-80-1 through 57-80-11, Sections 57-113-1 through 57-113-7, and Sections 57-113-21 through 57-113-27.

(2) Notwithstanding subsection (1) of this section, a qualified business or industry shall not be prohibited from applying for or receiving any of the tax credits, exemptions or incentives described in paragraphs (a) through (f) of subsection (1) of this section for any project or expansion which is not certified by the authority as a qualified economic development project and for which no mFlex tax incentive is awarded by the authority, notwithstanding the fact the qualified business or industry is awarded an mFlex tax incentive by the authority for a specific qualified economic development project undertaken thereby.

SECTION 7. Taxpayer annual performance reporting to, and reviews by, the Mississippi Development Authority; subsequent adjustments by the Mississippi Development Authority to mFlex tax incentive award; deadline for mFlex tax incentive utilization. (1) Unless its mFlex agreement prescribes a longer reporting period or additional reporting requirements, each qualified business or industry shall file an annual report with the authority for each qualified economic development project which has been certified, and for which any mFlex tax incentive has been awarded, by the authority in accordance with Sections 1 through 10 of this act, for the longer of the following periods: (a) until the reporting year during which all or any remaining portion of the mFlex tax incentive amount awarded to such qualified business or industry has been applied to offset state taxes, or (b) until the seventh reporting year, provided that an annual report shall in either instance be due in the final reporting year prescribed hereby or by the mFlex agreement. Each annual report shall be due to the authority no later than the last business day of the month following the month during which the annual anniversary of its project certification date occurred. Each annual report shall include the information set forth in this section, together with any other information required to be provided by the qualified business or industry pursuant to its mFlex agreement, for the immediately preceding twelve-month period ending on the last day of the month during which the annual anniversary of its project certification date occurred.

(2) Each annual report submitted to the authority by a qualified business or industry shall, at a minimum, contain the following information:

(a) The total qualified investment made between the project certification date through the end of the reporting year, including a breakout of actual expenditures made by the qualified business or industry for manufacturing machinery, nonmanufacturing equipment and component building materials to establish and equip the qualified economic development project;

(b) The incremental qualified investment made during the reporting year, including a breakout of actual expenditures made by the qualified business or industry for manufacturing machinery, nonmanufacturing equipment and component building materials to establish and equip the qualified economic development project;

(d) The total number of people employed in new full-time jobs as of the last day the year preceding the reporting year;

(e) The total number of people employed in new full-time jobs as of the last day the year of the reporting year;

(f) The average employer wage for the reporting year;

(g) The percentage and number, as of the last day of the reporting year, of new full-time employees who are eligible for and offered a health insurance coverage funded in whole or at least fifty percent (50%) by the qualified business or industry (or by a leasing company with respect to leased employees);

(h) A description of employee benefits, including but not limited to, health, dental and/or vision insurance, retirement savings account, etc. made available to employees, as well as a description of any employees to whom the benefits are not made available (e.g., part-time employees);

(i) The total amount of the mFlex tax incentive awarded thereto, which the qualified business or industry has already applied and taken as a credit to offset state taxes through the end of the reporting period;

(j) A list of all affiliates of the qualified business or industry, including the Federal Employer Identification Number for each affiliate, for which any state tax liability thereof has been or is expected to be offset by all or some portion of the mFlex tax incentives awarded to the qualified business or industry, which list shall further identify (i) any affiliate of the qualified business or industry that was not disclosed as such on its application or annual report submitted for the prior reporting period, whichever was more recent, but which has either become an affiliate of the qualified business or industry as of the date the current annual report or which the qualified business or industry desires to utilize all or a portion of its mFlex tax incentive as a credit to offset the affiliate's state tax liability following the date of the current annual report; (ii) any change in the name of any previously disclosed affiliate since the date the qualified business or industry filed its application or annual report for the prior reporting period, whichever was more recent; (iii) any prior affiliate of the qualified business or industry disclosed as such on its application or annual report for the prior reporting period, whichever was more recent, and which is no longer an affiliate of the qualified business or industry as of the date the current annual report; and (iv) any affiliate of the qualified business or industry disclosed as such on its application or annual report for the prior reporting period, whichever was more recent, and which the qualified business or industry no longer desires that the affiliate utilize all or a portion of its mFlex tax incentive as a credit to offset the affiliate's state tax liability following the date of the current annual report.

(3) The authority shall prescribe a form or forms for the annual report.

(4) Notwithstanding the obligation of a qualified business or industry to file an annual report with the authority for each qualified economic development project which has been certified, and for which any mFlex tax incentive has been awarded, the authority is authorized to request from the qualified business or industry at any other time any of the information set forth herein that must be included in an annual report for purposes of determining whether a qualified business or industry has met any of the project performance measures set forth in its mFlex agreement on or before the respective deadlines imposed with respect thereto. Upon any such written request by the authority, the qualified business or industry shall, within thirty (30) days after receipt of the request, provide to the authority a certified copy of the information requested.

(5) If a qualified business or industry fails to either file an annual report with the authority on or before the deadline mandated by subsection (1) of this section, or provide any information requested by the authority pursuant to subsection (4) of this section within the time period mandated by such subsection, the authority shall provide written notice to the qualified business or industry of the failure to report, and the qualified business or industry shall have thirty (30) additional days to cure the reporting failure following its receipt of the notice. If the qualified business or industry thereafter fails to file its annual report with the authority, or provide such information requested by the authority within the thirty-day-cure period, the authority is authorized to suspend or revoke, at the discretion thereof, all or a portion of the amount of the mFlex tax incentive previously awarded to the qualified business or industry for its qualified economic development project.

(6) If a qualified business or industry either fails to achieve or exceeds any project performance measure set forth in its mFlex agreement within or for any time period required by such agreement, the authority shall, following its (a) review of any annual report filed by the qualified business or industry or of any certified information provided by the qualified business or industry pursuant to subsection (4) of this section, and (b) verification based upon such information that the qualified business or industry either failed to achieve or exceeded any of the project performance measures set forth in its mFlex agreement within or for any time period required by such agreement, adjust the mFlex tax incentive awarded thereto for its qualified economic development project such that the award is no longer based upon any one or more of the performance measures set forth in its mFlex agreement, but is instead based upon one or more of the following, as applicable, as of the end of the most recent reporting year for which the annual report was filed: (a) the actual expenditures made by the qualified business or industry for purposes of the calculation prescribed by Section 5(a), (b) and (c) of this act; and (b)(i) the actual number of new full-time jobs created by the qualified business or industry, together with (ii) the actual average employer wage associated therewith, for purposes of the calculations prescribed by Section 5(d) and (e) of this act.

(7) A qualified business or industry and the authority may, at any time, amend or restate an mFlex agreement in order to modify the performance measures of the qualified business or industry with respect to its qualified economic development project, and in connection with such amendment or amendment and restatement, the authority shall modify the amount of the mFlex tax incentive awarded for the qualified economic development project to comport with the modified performance measures; provided that the modified award amount shall thereafter be subject to the adjustment requirements of subsection (6) of this section.

(8) If the authority adjusts any mFlex tax incentive award pursuant to subsection (6) or subsection (7) of this section, the authority shall issue an amended certification of the corresponding qualified economic development project, which shall specify the amount of mFlex tax incentive award adjustment. The authority shall forward the amended certification, along with any other necessary information, to the Department of Revenue so that the mFlex tax incentive award adjustment for the qualified business or industry can be recorded by the Department of Revenue and used to verify each state tax credit subsequently applied by the qualified business or industry.

(9) If at any time the authority reduces the mFlex tax incentive award granted for the qualified economic development project to an amount less than the total amount of credits already applied and taken by the qualified business or industry, or by one or more affiliates thereof eligible to utilize such credit, to offset state taxes thereof, the Department of Revenue shall charge the qualified business or industry, or such affiliate or affiliates, with an assessment for the amount of state taxes for which no mFlex tax incentive is available, following such reduction by the authority, for application as a tax credit, beginning with those state taxes against which the qualified business or industry most recently applied the credit, and such state tax assessment shall be immediately due and payable.

(10) Any portion of an mFlex tax incentive awarded to the qualified business or industry by the authority for its qualified economic development project pursuant to Sections 1 through 10 of this act that has not been applied, on or before the tenth annual anniversary of the project certificate date, as a credit by such qualified business or industry, or by one or more affiliates thereof eligible to utilize such credit, to offset state taxes otherwise payable, shall expire.

(11) Within thirty (30) days following the end of each calendar quarter, the authority shall provide to the Governor, Lieutenant Governor and the Speaker of the House of Representatives a copy of each amendment to any certification made, together with a copy of each amendment to any mFlex agreement approved and executed, during the immediately preceding calendar quarter.

SECTION 8. Audits and interagency cooperation. (1) No provisions of Sections 1 through 10 of this act shall in any way limit or restrict the authority of the Department of Revenue to perform audits for all state tax liabilities for any qualified business or industry that is awarded any mFlex tax incentives by the authority.

(2) The Department of Revenue is authorized to provide to the authority any information received, obtained or produced, or findings or determinations made, thereby as a result of the performance by Department of Revenue of any audit of state tax liabilities of any qualified business or industry that is awarded any mFlex tax incentives by the authority, and any such information, findings or determinations provided to the authority by the Department of Revenue shall be exempt from the provisions of the Mississippi Public Records Act of 1983, as amended.

(3) If any audit by the Department of Revenue results in a reclassification of component building materials, manufacturing equipment or nonmanufacturing equipment, as previously reported by a qualified business or industry, to a different property classification, or a change in the number of new full-time employees or average employer wage, as previously reported by a qualified business or industry, the authority is authorized to adjust the amount of the mFlex tax incentive awarded to the qualified business or industry for a qualified economic development project to comport with any property reclassification or change in the number of new full-time employees or average employer wage in the manner prescribed by Section 7 of this act.

(4) The Department of Employment Security is authorized to provide to the authority any information received, obtained or produced, or findings or determinations made, thereby with respect to any qualified business or industry that is awarded any mFlex tax incentives by the authority, and any such information, findings or determinations provided to the authority by the Department of Revenue shall be exempt from the provisions of the Mississippi Public Records Act of 1983, Section 25-61-1 et seq.

(5) The State Auditor may conduct performance and compliance audits under Sections 1 through 10 of this act according to Section 7-72-11(o).

(6) Upon written request made by the Director of the University Research Center Division of the Mississippi Institutions of Higher Learning, the authority shall provide to the director a copy of any certification, together with any amendments thereto, made by the authority, and/or any mFlex agreement, together with any amendments thereto, approved and executed by the authority pursuant to Sections 1 through 10 of this act, described in such request for the purpose of the University Research Center conducting an economic impact analysis and other analyses performed by the University Research Center with respect thereto; provided that any such analyses conducted by the University Research Center with respect to one or more particular qualified economic development projects shall be communicated and provided only to the Governor, Lieutenant Governor, Speaker of the House of Representatives and/or the authority.

SECTION 9. Implementation and exclusive jurisdiction. (1) The authority and the Department of Revenue shall implement the provisions of Sections 1 through 10 of this act and exercise all powers as authorized in Sections 1 through 10 of this act; however, the application of Sections 1 through 10 of this act and the offering and awarding of any mFlex tax incentive as to any particular qualified business or industry shall be carried out at the discretion of the authority subject to, and in compliance with, Sections 1 through 10 of this act. The exercise of powers conferred by Sections 1 through 10 of this act shall be deemed and held to be the performance of essential public purposes.

(2) The authority shall have sole and exclusive jurisdiction and authority to determine whether an applicant qualifies as a qualified business or industry, whether an applicant's project qualifies as a qualified economic development project, whether to certify an applicant and its project as a qualified business or industry undertaking a qualified economic development project and the eligibility thereof for the mFlex tax incentive, the initial calculation of any mFlex tax incentive award, any terms or conditions or further requirements to be included in any mFlex agreement, and any subsequent adjustments to any mFlex tax incentive award or any revocation thereof, in all instances in accordance with Sections 1 through 10 of this act.

(3) Nothing in Sections 1 through 10 of this act shall be construed to constitute a guarantee or assumption by the State of Mississippi of any debt of any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof nor to authorize the credit of the state to be given, pledged or loaned to any corporation, limited liability company, partnership, person or sole proprietorship, business trust or other legal entity and subunit or affiliate thereof. Further, nothing in Sections 1 through 10 of this act gives any right to any qualified business or industry to the tax incentives authorized by Sections 1 through 10 of this act unless such incentive is awarded by Sections 1 through 10 of this act.

SECTION 10. Promulgation of rules and regulations. The authority and the Department of Revenue shall promulgate rules and regulations, in accordance with the Mississippi Administrative Procedures Law, Section 25-43-1.101 et seq. and all application forms and other forms necessary to implement their respective duties and responsibilities under the provisions of Sections 1 through 10 of this act.

SECTION 11. Section 27-7-309, Mississippi Code of 1972, is amended as follows:

27-7-309. (1) (a) Except as otherwise provided in this subsection, every employer required to deduct and withhold from wages under this article shall, for each calendar quarter, on or before the fifteenth day of the month following the close of such calendar quarter, file a withholding return as prescribed by the commissioner and pay over to the commissioner the full amount required to be deducted and withheld from wages by such employer for the calendar quarter. Provided that the commissioner may, by regulation, provide that every such employer shall, on or before the fifteenth day of each month, pay over to the commissioner or a depository designated by the commissioner, the amount required to be deducted and withheld by such employer for the preceding month, if such amount is One Hundred Dollars ($100.00) or more. Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed.

(b) The commissioner may promulgate rules and regulations to require or permit filing periods of any duration, in lieu of monthly or quarterly filing periods, for any taxpayer or group thereof.

(2) Notwithstanding any of the other provisions of this section, all transient employers and all employers engaged in any business which is seasonal shall make return and pay over to the commissioner on a monthly basis, the full amounts required to be deducted and withheld from the wages by such employer for the calendar month. Such returns and payments to the commissioner by such employers shall be made on or before the fifteenth day of the month following the month for which such amounts were deducted and withheld from the wages of his employees. The commissioner shall have the authority to issue reasonable rules and regulations designating or classifying those transient and seasonal employers.

(3) If the commissioner, in any case, has justifiable reason to believe that the collection of funds required to be withheld by any employer as provided herein is in jeopardy, he may require the employer to file a return and pay such amount required to be withheld at any time.

(4) Every employer who fails to withhold or pay to the commissioner any sums required by this article to be withheld and paid, shall be personally and individually liable therefor, except as provided in Section 27-7-307; and any sum or sums withheld in accordance with the provisions of this article shall be deemed to be held in trust for the State of Mississippi and shall be recorded by the employer in a ledger account so as to clearly indicate the amount of tax withheld and that the amount is the property of the State of Mississippi.

(5) Once an employer has become liable to a quarterly return of withholding, he must continue to file a quarterly report, even though no tax has been withheld, until such time as he notifies the commissioner, in writing, that he no longer has employees or that he is no longer liable for such quarterly returns.

(6) Once an employer has become liable to a monthly return of withholding, he must continue to file a monthly report, even though no tax has been withheld until such time as he notifies the commissioner, in writing, that he no longer has employees or that he is no longer liable for such monthly returns.

(7) Magnetic media reporting may be required in a manner to be determined by the commissioner.

(8) Any employer who is required to deduct and withhold from wages for any monthly or quarterly period pursuant to this article, and who is also eligible to apply as a credit against any amount to be deducted and withheld for such period from wages by such employer under this article a tax credit awarded by the Mississippi Development Authority in accordance with the Mississippi Flexible Tax Incentive Act, may apply the tax credit in the amount available for such purpose, or such lesser amount determined by such employer, pursuant to the Mississippi Flexible Tax Incentive Act. The credit applied for any monthly or quarterly reporting period shall be reflected on the form of the return in the manner prescribed by the commissioner.

SECTION 12. Section 27-7-311, Mississippi Code of 1972, is amended as follows:

27-7-311. Every employer shall file an annual statement of withholding for each employee. The annual statement shall be in the form prescribed by the commissioner and shall be filed with the commissioner and two (2) copies thereof furnished the employee on or before the thirty-first day of January following the close of the calendar year. Provided, if the employment of the employee is terminated during the calendar year, the employer shall furnish such statement to the employee at the time of the termination of employment. Such statement shall show:

( * * *1a) The name and withholding account number of the employer;

( * * *2b) The name of the employee and his social security account number;

( * * *3c) The total compensation paid to the employee; and

( * * *4d) The total amount withheld by the employer pursuant to this article for the year or part of a calendar year where the employee worked for less than a full calendar year, and such other information as the commissioner shall require by rule or regulation. The total amount withheld by the employer shall reflect the gross amount withheld by the employer pursuant to this article for such year or part of such calendar year prior to, and expressly excluding, the application of any credit applied and taken by the employer of any tax credit awarded by the Mississippi Development Authority in accordance with the Mississippi Flexible Tax Incentive Act.

SECTION 13. Section 27-13-5, Mississippi Code of 1972, is amended as follows:

27-13-5. (1) (a) Franchise tax levy. Except as otherwise provided in subsections (3), (4), (5) and (7) of this section, there is hereby imposed, to be paid and collected as hereinafter provided, a franchise or excise tax upon every corporation, association or joint-stock company or partnership treated as a corporation under the income tax laws or regulations, organized or created for pecuniary gain, having privileges not possessed by individuals, and having authorized capital stock now existing in this state, or hereafter organized, created or established, under and by virtue of the laws of the State of Mississippi, equal to:

(i) For tax years beginning before January 1, 2018, Two Dollars and Fifty Cents ($2.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(ii) For tax years beginning on or after January 1, 2018, but before January 1, 2019, Two Dollars and Fifty Cents ($2.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(iii) For tax years beginning on or after January 1, 2019, but before January 1, 2020, Two Dollars and Twenty-five Cents ($2.25) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(iv) For tax years beginning on or after January 1, 2020, but before January 1, 2021, Two Dollars ($2.00) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(v) For tax years beginning on or after January 1, 2021, but before January 1, 2022, One Dollar and Seventy-five Cents ($1.75) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(vi) For tax years beginning on or after January 1, 2022, but before January 1, 2023, One Dollar and Fifty Cents ($1.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(vii) For tax years beginning on or after January 1, 2023, but before January 1, 2024, One Dollar and Twenty-five Cents ($1.25) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(viii) For tax years beginning on or after January 1, 2024, but before January 1, 2025, One Dollar ($1.00) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(ix) For tax years beginning on or after January 1, 2025, but before January 1, 2026, Seventy-five Cents (75¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(x) For tax years beginning on or after January 1, 2026, but before January 1, 2027, Fifty Cents (50¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(xi) For tax years beginning on or after January 1, 2027, but before January 1, 2028, Twenty-five Cents (25¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.

(b) In no case shall the franchise tax due for the accounting period be less than Twenty-five Dollars ($25.00).

(c) It is the purpose of this section to require the payment to the State of Mississippi of this tax for the right granted by the laws of this state to exist as such organization, and to enjoy, under the protection of the laws of this state, the powers, rights, privileges and immunities derived from the state by the form of such existence.

(2) Annual report of domestic corporations. Each domestic corporation shall file an annual report as required by the provisions of Section 79-4-16.22.

(3) (a) A corporation that has negotiated a fee-in-lieu as defined in Section 57-75-5 shall not be subject to the tax levied by this section on such project; however, the fee-in-lieu payment shall be otherwise treated in the same manner as the payment of franchise taxes.

(b) (i) As used in this paragraph:

1. "Authority" shall have the meaning ascribed to such term in Section 57-75-5(b);

2. "Project" shall have the meaning ascribed to such term in Section 57-75-5(f)(xxix); and

3. "Enterprise" shall mean the corporation authorized for the project pursuant to Section 57-75-5(f)(xxix).

(ii) The term of the franchise tax fee-in-lieu agreement negotiated under this subsection and authorized by Section 57-75-5(j), between the authority and the enterprise for the project shall not exceed twenty-five (25) years. The franchise tax fee-in-lieu agreement shall apply only to new franchise tax liability attributable to the project, and shall not apply to any existing franchise tax liability of the enterprise in connection with any current operations in this state.

(iii) In the event that the annual number of full-time jobs maintained by the enterprise falls below the minimum annual number of full-time jobs required by the authority pursuant to a written agreement between the authority and the enterprise for two (2) consecutive years, the franchise tax fee-in-lieu for the project shall be suspended until the first tax year during which the annual number of full-time jobs maintained by the enterprise reaches the minimum annual number of full-time jobs required by the authority pursuant to a written agreement between the authority and the enterprise.

(iv) The enterprise shall be entitled to utilize a single sales apportionment factor in the calculation of its liability for franchise tax imposed by this chapter which is attributable to the project for any year for which it files a Mississippi franchise tax return. The enterprise shall be entitled to continue to utilize such single sales apportionment factor notwithstanding a suspension of the franchise tax fee-in-lieu pursuant to subparagraph (iii) of this paragraph.

(4) An approved business enterprise as defined in the Growth and Prosperity Act shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the approved business enterprise in a growth and prosperity county or supervisors district as provided in the Growth and Prosperity Act.

(5) A business enterprise operating a project as defined in Section 57-64-33, in a county that is a member of a regional economic development alliance created under the Regional Economic Development Act shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the business enterprise in such a county as provided in Section 57-64-33.

(6) The tax levied by this chapter and paid by a business enterprise located in a redevelopment project area under Sections 57-91-1 through 57-91-11 shall be deposited into the Redevelopment Project Incentive Fund created in Section 57-91-9.

(7) A business enterprise as defined in Section 57-113-1 or 57-113-21 that is exempt from certain state taxes under Section 57-113-5 or 57-113-25 shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the business enterprise.

(8) A taxpayer who is eligible to apply as a credit against the tax levied by this chapter a tax credit awarded by the Mississippi Development Authority in accordance with the Mississippi Flexible Tax Incentive Act may apply the tax credit in the amount available for such purpose, or such lesser amount determined by the taxpayer, pursuant to the Mississippi Flexible Tax Incentive Act. The credit applied for a tax-reporting period shall be reflected on the form of the return in the manner prescribed by the commissioner.

SECTION 14. Section 27-13-7, Mississippi Code of 1972, is amended as follows:

27-13-7. (1) (a) Franchise tax levy. Except as otherwise provided in subsections (3), (4), (5) and (7) of this section, there is hereby imposed, levied and assessed upon every corporation, association or joint-stock company, or partnership treated as a corporation under the income tax laws or regulations as hereinbefore defined, organized and existing under and by virtue of the laws of some other state, territory or country, or organized and existing without any specific statutory authority, now or hereafter doing business or exercising any power, privilege or right within this state, as hereinbefore defined, a franchise or excise tax equal to:

(i) For tax years beginning before January 1, 2018, Two Dollars and Fifty Cents ($2.50) of each One Thousand Dollars ($1,000.00), or fraction thereof, of the value of capital used, invested or employed within this state, except as hereinafter provided.

(b) In no case shall the franchise tax due for the accounting period be less than Twenty-five Dollars ($25.00).

(c) It is the purpose of this section to require the payment of a tax by all organizations not organized under the laws of this state, measured by the amount of capital or its equivalent, for which such organization receives the benefit and protection of the government and laws of the state.

(2) Annual report of foreign corporations. Each foreign corporation authorized to transact business in this state shall file an annual report as required by the provisions of Section 79-4-16.22.

(b) (i) As used in this paragraph:

1. "Authority" shall have the meaning ascribed to such term in Section 57-75-5(b);

2. "Project" shall have the meaning ascribed to such term in Section 57-75-5(f)(xxix); and

3. "Enterprise" shall mean the corporation authorized for the project pursuant to Section 57-75-5(f)(xxix).

SECTION 15. Section 27-65-93, Mississippi Code of 1972, is amended as follows:

27-65-93. (1) The commissioner shall, from time to time, promulgate rules and regulations, not inconsistent with the provisions of the sales tax law, for making returns and for the ascertainment, assessment and collection of the tax imposed by the sales tax law as he may deem necessary to enforce its provisions; and, upon request, he shall furnish any taxpayer with a copy of the rules and regulations.

(2) All forms, necessary for the enforcement of the sales tax law, shall be prescribed, printed and furnished by the commissioner.

(3) The commissioner may adopt rules and regulations providing for the issuance of permits to manufacturers, utilities, construction contractors, companies receiving bond financing through the Mississippi Business Finance Corporation or the Mississippi Development Authority, and other taxpayers as determined by the commissioner, and the commissioner shall adopt rules and regulations providing for the issuance of a permit to any qualified business or industry, which is certified as such by the Mississippi Development Authority pursuant to the Mississippi Flexible Tax Incentive Act and awarded any mFlex tax incentive amount for such qualified business's or industry's qualified economic development project, certified as such by the Mississippi Development Authority pursuant to the Mississippi Flexible Tax Incentive Act, to purchase tangible personal property taxed under Section 27-65-17, items taxed under Section 27-65-18, items taxed under Section 27-65-19, services taxed under Section 27-65-23, items taxed under Section 27-65-24, and items taxed under Section 27-65-26 without the payment to the vendor of the tax imposed by the sales and use tax laws, and providing for persons to report and pay the tax directly to the commissioner in instances where the commissioner determines that these provisions will facilitate and expedite the collection of the tax at the proper rates which may be due on purchases by the permittee. Under the provisions of this chapter, the vendor is relieved of collecting and remitting the taxes specified hereunder and the person holding the permit shall become liable for such taxes instead of the seller. The full enforcement provisions of the sales tax law shall apply in the collection of the tax from the permittee.

SECTION 16. Section 27-67-17, Mississippi Code of 1972, is amended as follows:

27-67-17. (1) Except as otherwise provided in this section, the commissioner shall collect the tax imposed by this article, and every person subject to its provisions shall remit to the commissioner, on or before the twentieth day of each month, the amount of tax due by such person for the preceding calendar month. Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except that when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed. Every taxpayer shall file a return with his remittance, which return shall be prescribed by the commissioner and shall show for the calendar month preceding the tax payment date, the total sale or purchase price, or value of tangible personal property or specified digital products sold, used, stored or consumed by him for benefit received or service performed, and such other information as the commissioner may deem pertinent and necessary for determining the amount of tax due thereunder.

(2) The commissioner, in his discretion, may authorize in writing the filing of returns and the payment of tax on a quarterly basis by any person required or authorized to pay the tax imposed, such authority to be subject to revocation for good cause by the commissioner.

(3) In instances where it is impractical to file returns and pay the tax monthly or quarterly, the commissioner may authorize the filing of semiannual or annual returns.

(4) The commissioner, in his discretion, may authorize the computation of the tax on the basis of a formula in lieu of direct accounting of specific properties in instances where such method will expedite, simplify or provide a more equitable means of determining liability under this article. All formulas shall be subject to revocation for good cause by the commissioner.

(5) A taxpayer who is eligible to apply as a credit against the tax levied by this chapter a tax credit awarded by the Mississippi Development Authority in accordance with the Mississippi Flexible Tax Incentive Act may apply the tax credit in the amount available for such purpose, or such lesser amount determined by the taxpayer, pursuant to the Mississippi Flexible Tax Incentive Act. The credit applied for a tax-reporting period shall be reflected on the form of the return in the manner prescribed by the commissioner.

SECTION 17. Section 57-1-14, Mississippi Code of 1972, is amended as follows:

57-1-14. (1) Except as otherwise provided in subsection (3) of this section, any records of the Mississippi Development Authority which contain client information concerning development projects shall be exempt from the provisions of the Mississippi Public Records Act of 1983 for a period of two (2) years after receipt of the information by the department. Confidential client information as described in this section shall not include the information which must be disclosed by the certified applicant related to a qualified economic development project in the annual report described in Section 57-1-759.

(2) Except as otherwise provided in subsection (3) of this section, confidential client information in public records held by the department shall be exempt from the provisions of the Mississippi Public Records Act of 1983 during the period of review and negotiation on a project proposal and for a period of thirty (30) days after approval, disapproval or abandonment of the proposal not to exceed one (1) year by the department in writing.

(3) Any breakouts or subcategories of the total qualified investment amounts reported pursuant to Sections 3(d), 7(2)(a) and 7(2)(b) of this act, and information reported pursuant to Sections 3(g), 3(h), 3(j), 7(2)(f), 7(2)(g), 7(2)(h) and 7(2)(i) of this act shall not be subject to any disclosure under the Mississippi Public Records Act of 1983. In addition, any information and documentation, including without limitation, copies of any certifications, together with any amendments thereto, made by the Mississippi Development Authority, and copies of any mFlex agreements, together with any amendments thereto, approved and executed by the Mississippi Development Authority, pursuant to the Mississippi Flexible Tax Incentive Act, which are (a) provided by the authority to the Governor, Lieutenant Governor and/or Speaker of the House of Representatives pursuant to Section 4(7) or Section 7(11) of this act; (b) provided by the authority to the University Research Center division of the Mississippi Institutions of Higher Learning pursuant to Section 8(5) of this act; and (c) provided by the University Research Center division of the Mississippi Institutions of Higher Learning to the Governor, Lieutenant Governor, Speaker of the House of Representatives and/or the authority, shall not be subject to any disclosure under the Mississippi Public Records Act of 1983.

SECTION 18. Section 27-7-22, Mississippi Code of 1972, is amended as follows:

27-7-22. (1) For any qualified business, as defined in Section 57-51-5, which is located in a county, or portion thereof, designated as an enterprise zone pursuant to Title 57, Chapter 51, Mississippi Code of 1972, there shall be allowed as a credit against the tax imposed by this chapter, an amount equal to One Thousand Dollars ($1,000.00) per net full-time employee as determined by the average annual employment of the business reported to the Employment Security Commission. Such credit shall be allowed annually to each qualified business for a period not to exceed ten (10) years. If the amount allowable as a credit exceeds the tax imposed by this chapter, the amount of such excess shall not be refundable or carried forward to any other taxable year.

For the purpose of determining the credit allowed to a qualified business which is an existing trade or business having expanded its buildings and facilities, the number of net full-time employees shall be the difference between the average annual employment of such business before and after such expansion.

If the Mississippi Enterprise Zone Act is repealed, any qualified business which had been granted a tax credit under this subsection prior to the date of such repeal shall be entitled to such tax credit until the period for which it was granted expires.

(2) For any qualified business, as defined in Section 57-54-5, there shall be allowed as a credit against the tax imposed by this chapter, an amount equal to One Thousand Dollars ($1,000.00) per net full-time employee as determined by the average annual employment of the business reported to the Employment Security Commission. Such credit shall be allowed annually to each qualified business for a period not to exceed ten (10) years. If the amount allowable as a credit exceeds the tax imposed by this chapter, the amount of such excess shall not be refundable or carried forward to any other taxable year.

If the Mississippi Advanced Technology Initiative Act is repealed, any qualified business which had been granted a tax credit under this subsection prior to the date of such repeal shall be entitled to such tax credit until the period for which it was granted expires.

(3) For any qualified company, certified as such by the Mississippi Board of Economic Development under Section 57-53-1, there shall be allowed as a credit against the tax imposed by this chapter, an amount equal to One Thousand Dollars ($1,000.00) per net full-time employee in this state, provided there is a minimum of seventy-five (75) net full-time employees, as determined by the average annual employment of the company in this state reported to the Employment Security Commission. Such credit shall be allowed annually to each qualified company for a period not to exceed ten (10) years. If the amount allowable as a credit exceeds the tax imposed by this chapter, the amount of such excess shall not be refundable or carried forward to any other taxable year.

For the purpose of determining the credit allowed to a qualified company which has expanded its existing buildings and facilities, the number of net full-time employees shall be the difference between the average annual employment of such company before and after such expansion.

(4) For any qualified business or industry which is certified as such by the Mississippi Board of Economic Development pursuant to the Mississippi Flexible Tax Incentive Act and awarded any mFlex tax incentive amount for such qualified business's or industry's qualified economic development project, there shall be allowed as a credit against the tax imposed by this chapter, an amount prescribed by, and subject to, the Mississippi Flexible Tax Incentive Act.

SECTION 19. From and after January 1, 2023, if the amount of any mFlex tax incentive or other incentive that a qualified business or other entity is eligible to receive under the Mississippi Flexible Tax Incentive Act is less than the amount of the mFlex tax incentive or other incentive that the qualified business or other entity would have been eligible to receive or to use if the mFlex tax incentive or other incentive had been calculated using any applicable income tax rates in Section 27-7-5, Mississippi Code of 1972, that were in effect before January 1, 2023, then the qualified business or other entity shall receive a grant from the Mississippi Development Authority equal to the difference between such two amounts.

SECTION 20. Section 57-62-9, Mississippi Code of 1972, is amended as follows:

[For businesses or industries that received or applied for incentive payments prior to July 1, 2005, this section shall read as follows:]

57-62-9. (1) Except as otherwise provided in this section, a qualified business or industry that meets the qualifications specified in this chapter may receive quarterly incentive payments for a period not to exceed ten (10) years from the Department of Revenue pursuant to the provisions of this chapter in an amount which shall be equal to the net benefit rate multiplied by the actual gross payroll of new direct jobs for a calendar quarter as verified by the Mississippi Department of Employment Security, but not to exceed the amount of money previously paid into the fund by the employer. A qualified business or industry that is a project as defined in Section 57-75-5(f)(iv)1 may elect the date upon which the ten-year period will begin. Such date may not be later than sixty (60) months after the date the business or industry applied for incentive payments.

(2) (a) A qualified business or industry that is a project as defined in Section 57-75-5(f)(iv)1 may apply to the MDA to receive incentive payments for an additional period not to exceed five (5) years beyond the expiration date of the initial ten-year period if:

(i) The qualified business or industry creates at least three thousand (3,000) new direct jobs within five (5) years after the date the business or industry commences commercial production;

(ii) Within five (5) years after the date the business or industry commences commercial production, the average annual wage of the jobs is at least one hundred fifty percent (150%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser. The criteria for the average annual wage requirement shall be based upon the state average annual wage or the average annual wage of the county whichever is appropriate, at the time of creation of the minimum number of jobs, and the threshold established at that time will remain constant for the duration of the additional period; and

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (a) for four (4) consecutive calendar quarters.

(b) A qualified business or industry that is a project as defined in Section 57-75-5(f)(iv)1 and qualified to receive incentive payments for the additional period provided in paragraph (a) of this subsection (2) may apply to the MDA to receive incentive payments for an additional period not to exceed ten (10) years beyond the expiration date of the additional period provided in paragraph (a) of this subsection (2) if:

(i) The qualified business or industry creates at least four thousand (4,000) new direct jobs after qualifying for the additional incentive period provided in paragraph (a) of this subsection (2) but before the expiration of the additional period. For purposes of determining whether the business or industry meets the minimum jobs requirement of this subparagraph (i), the number of jobs the business or industry created in order to meet the minimum jobs requirement of paragraph (a) of this subsection (2) shall be subtracted from the minimum jobs requirement of this subparagraph (i);

(ii) The average annual wage of the jobs is at least one hundred fifty percent (150%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser. The criteria for the average annual wage requirement shall be based upon the state average annual wage or the average annual wage of the county whichever is appropriate, at the time of creation of the minimum number of jobs, and the threshold established at that time will remain constant for the duration of the additional period; and

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (b) for four (4) consecutive calendar quarters.

(3) In order to receive incentive payments, an establishment shall apply to the MDA. The application shall be on a form prescribed by the MDA and shall contain such information as may be required by the MDA to determine if the applicant is qualified.

(4) In order to qualify to receive such payments, the establishment applying shall be required to:

(a) Be engaged in a qualified business or industry;

(b) Provide an average salary, excluding benefits which are not subject to Mississippi income taxes, of at least one hundred twenty-five percent (125%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser. The criteria for this requirement shall be based upon the state average annual wage or the average annual wage of the county whichever is appropriate, at the time of application, and the threshold established upon application will remain constant for the duration of the project;

(c) The business or industry must create and maintain a minimum of ten (10) full-time jobs in counties that have an average unemployment rate over the previous twelve-month period which is at least one hundred fifty percent (150%) of the most recently published state unemployment rate, as determined by the Mississippi Department of Employment Security or in Tier Three counties as determined under Section 57-73-21. In all other counties, the business or industry must create and maintain a minimum of twenty-five (25) full-time jobs. The criteria for this requirement shall be based on the designation of the county at the time of the application. The threshold established upon the application will remain constant for the duration of the project. The business or industry must meet its job creation commitment within twenty-four (24) months of the application approval. However, if the qualified business or industry is applying for incentive payments for an additional period under subsection (2) of this section, the business or industry must comply with the applicable job and wage requirements of subsection (2) of this section.

(5) The MDA shall determine if the applicant is qualified to receive incentive payments. If the applicant is determined to be qualified by the MDA, the MDA shall conduct a cost/benefit analysis to determine the estimated net direct state benefits and the net benefit rate applicable for a period not to exceed ten (10) years and to estimate the amount of gross payroll for the period. If the applicant is determined to be qualified to receive incentive payments for an additional period under subsection (2) of this section, the MDA shall conduct a cost/benefit analysis to determine the estimated net direct state benefits and the net benefit rate applicable for the appropriate additional period and to estimate the amount of gross payroll for the additional period. In conducting such cost/benefit analysis, the MDA shall consider quantitative factors, such as the anticipated level of new tax revenues to the state along with the cost to the state of the qualified business or industry, and such other criteria as deemed appropriate by the MDA, including the adequacy of retirement benefits that the business or industry provides to individuals it employs in new direct jobs in this state. In no event shall incentive payments, cumulatively, exceed the estimated net direct state benefits. Once the qualified business or industry is approved by the MDA, an agreement shall be deemed to exist between the qualified business or industry and the State of Mississippi, requiring the continued incentive payment, together with any amount due pursuant to subsection (8) of this section, if applicable, to be made as long as the qualified business or industry retains its eligibility.

(6) Upon approval of such an application, the MDA shall notify the Department of Revenue and shall provide it with a copy of the approved application and the estimated net direct state benefits. The Department of Revenue may require the qualified business or industry to submit such additional information as may be necessary to administer the provisions of this chapter. The qualified business or industry shall report to the Department of Revenue periodically to show its continued eligibility for incentive payments. The qualified business or industry may be audited by the Department of Revenue to verify such eligibility. In addition, the State Auditor may conduct performance and compliance audits under this chapter according to Section 7-7-211(o) and may bill the oversight agency.

(7) If the qualified business or industry is located in an area that has been declared by the Governor to be a disaster area and as a result of the disaster the business or industry is unable to create or maintain the full-time jobs required by this section:

(a) The Commissioner of Revenue may extend the period of time that the business or industry may receive incentive payments for a period of time not to exceed two (2) years;

(b) The Commissioner of Revenue may waive the requirement that a certain number of jobs be maintained for a period of time not to exceed twenty-four (24) months; and

(c) The MDA may extend the period of time within which the jobs must be created for a period of time not to exceed twenty-four (24) months.

(8) Notwithstanding any other provision of this section to the contrary, from and after January 1, 2023, if the amount of the incentive payment that a qualified business or industry is eligible to receive under this chapter is less than the amount that the incentive payment would have been if the payment had been calculated using any applicable income tax rates in Section 27-7-5 that were in effect before January 1, 2023, then the qualified business or industry also shall receive a grant equal to the difference between such two (2) amounts. Further, the term "incentive payment," as such term is used in this chapter, shall be deemed to not refer to or otherwise include any grant payment payable to a qualified business or industry pursuant to this subsection.

[For businesses or industries that received or applied for incentive payments from and after July 1, 2005, but prior to July 1, 2010, this section shall read as follows:]

57-62-9. (1) (a) Except as otherwise provided in this section, a qualified business or industry that meets the qualifications specified in this chapter may receive quarterly incentive payments for a period not to exceed ten (10) years from the Department of Revenue pursuant to the provisions of this chapter in an amount which shall be equal to the net benefit rate multiplied by the actual gross payroll of new direct jobs for a calendar quarter as verified by the Mississippi Department of Employment Security, but not to exceed:

(i) Ninety percent (90%) of the amount of money previously paid into the fund by the employer if the employer provides an average annual salary, excluding benefits which are not subject to Mississippi income taxes, of at least one hundred seventy-five percent (175%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser;

(ii) Eighty percent (80%) of the amount of money previously paid into the fund by the employer if the employer provides an average annual salary, excluding benefits which are not subject to Mississippi income taxes, of at least one hundred twenty-five percent (125%) but less than one hundred seventy-five percent (175%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser; or

(iii) Seventy percent (70%) of the amount of money previously paid into the fund by the employer if the employer provides an average annual salary, excluding benefits which are not subject to Mississippi income taxes, of less than one hundred twenty-five percent (125%) of the most recently published state average annual wage or the most recently published average annual wage of the county in which the qualified business or industry is located as determined by the Mississippi Department of Employment Security, whichever is the lesser.

(b) A qualified business or industry that is a project as defined in Section 57-75-5(f)(iv)1 may elect the date upon which the ten-year period will begin. Such date may not be later than sixty (60) months after the date the business or industry applied for incentive payments.

(i) The qualified business or industry creates at least three thousand (3,000) new direct jobs within five (5) years after the date the business or industry commences commercial production;

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (a) for four (4) consecutive calendar quarters.

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (b) for four (4) consecutive calendar quarters.

(4) (a) In order to qualify to receive such payments, the establishment applying shall be required to meet the definition of the term "qualified business or industry";

(b) The criteria for the average annual salary requirement shall be based upon the state average annual wage or the average annual wage of the county whichever is appropriate, at the time of application, and the threshold established upon application will remain constant for the duration of the project;

(c) The business or industry must meet its job creation commitment within twenty-four (24) months of the application approval. However, if the qualified business or industry is applying for incentive payments for an additional period under subsection (2) of this section, the business or industry must comply with the applicable job and wage requirements of subsection (2) of this section.

(5) (a) The MDA shall determine if the applicant is qualified to receive incentive payments.

(b) If the applicant is determined to be qualified to receive incentive payments for an additional period under subsection (2) of this section, the MDA shall conduct a cost/benefit analysis to determine the estimated net direct state benefits and the net benefit rate applicable for the appropriate additional period and to estimate the amount of gross payroll for the additional period. In conducting such cost/benefit analysis, the MDA shall consider quantitative factors, such as the anticipated level of new tax revenues to the state along with the cost to the state of the qualified business or industry, and such other criteria as deemed appropriate by the MDA, including the adequacy of retirement benefits that the business or industry provides to individuals it employs in new direct jobs in this state. In no event shall incentive payments, cumulatively, exceed the estimated net direct state benefits. Once the qualified business or industry is approved by the MDA, an agreement shall be deemed to exist between the qualified business or industry and the State of Mississippi, requiring the continued incentive payment, together with any amount due pursuant to subsection (8) of this section, if applicable, to be made as long as the qualified business or industry retains its eligibility.

(a) The Commissioner of Revenue may extend the period of time that the business or industry may receive incentive payments for a period of time not to exceed two (2) years;

(b) The Commissioner of Revenue may waive the requirement that a certain number of jobs be maintained for a period of time not to exceed twenty-four (24) months; and

(c) The MDA may extend the period of time within which the jobs must be created for a period of time not to exceed twenty-four (24) months.

[For businesses or industries that apply for incentive payments from and after July 1, 2010, this section shall read as follows:]

57-62-9. (1) (a) Except as otherwise provided in this section, a qualified business or industry that meets the qualifications specified in this chapter may receive quarterly incentive payments for a period not to exceed ten (10) years from the Department of Revenue pursuant to the provisions of this chapter in an amount which shall be equal to ninety percent (90%) of the amount of actual income tax withheld for employees with new direct jobs, but in no event more than four percent (4%) of the total annual salary paid for new direct jobs during such period, excluding benefits which are not subject to Mississippi income taxes.

(c) A qualified business or industry as defined in Section 57-62-5(a)(iii) may elect the date upon which the ten-year period will begin and may elect to begin receiving incentive payments as early as the second quarter after that date. Incentive payments will be calculated on all jobs above the existing number of jobs as of the date the MDA determines that the applicant is qualified to receive incentive payments. In the event that the qualified business or industry falls below the number of existing jobs at the time of determination that the applicant is qualified to receive the incentive payment, the incentive payment shall cease until the qualified business or industry once again exceeds that number. If after forty-eight (48) months, the qualified business or industry has failed to create at least three thousand (3,000) new direct jobs, incentive payments shall cease and the qualified business or industry shall not be qualified to receive further incentive payments.

(i) The qualified business or industry creates at least three thousand (3,000) new direct jobs within five (5) years after the date the business or industry commences commercial production;

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (a) for four (4) consecutive calendar quarters.

(iii) The qualified business or industry meets and maintains the job and wage requirements of subparagraphs (i) and (ii) of this paragraph (b) for four (4) consecutive calendar quarters.

(4) (a) In order to qualify to receive such payments, the establishment applying shall be required to meet the definition of the term "qualified business or industry";

(c) Except as otherwise provided for a qualified business or industry as defined in Section 57-62-5(a)(iii), the business or industry must meet its job creation commitment within twenty-four (24) months of the application approval. However, if the qualified business or industry is applying for incentive payments for an additional period under subsection (2) of this section, the business or industry must comply with the applicable job and wage requirements of subsection (2) of this section.

(5) (a) The MDA shall determine if the applicant is qualified to receive incentive payments.

(b) If the applicant is determined to be qualified to receive incentive payments for an additional period under subsection (2) of this section, the MDA shall conduct an analysis to estimate the amount of gross payroll for the appropriate additional period. Incentive payments, cumulatively, shall not exceed ninety percent (90%) of the amount of actual income tax withheld for employees with new direct jobs, but in no event more than four percent (4%) of the total annual salary paid for new direct jobs during the additional period, excluding benefits which are not subject to Mississippi income taxes. Once the qualified business or industry is approved by the MDA, an agreement shall be deemed to exist between the qualified business or industry and the State of Mississippi, requiring the continued incentive payment, together with any amount due pursuant to subsection (8) of this section, if applicable, to be made as long as the qualified business or industry retains its eligibility.

(6) Upon approval of such an application, the MDA shall notify the Department of Revenue and shall provide it with a copy of the approved application and the minimum job and salary requirements. The Department of Revenue may require the qualified business or industry to submit such additional information as may be necessary to administer the provisions of this chapter. The qualified business or industry shall report to the Department of Revenue periodically to show its continued eligibility for incentive payments. The qualified business or industry may be audited by the Department of Revenue to verify such eligibility. In addition, the State Auditor may conduct performance and compliance audits under this chapter according to Section 7-7-211(o) and may bill the oversight agency.

(a) The Commissioner of Revenue may extend the period of time that the business or industry may receive incentive payments for a period of time not to exceed two (2) years;

(b) The Commissioner of Revenue may waive the requirement that a certain number of jobs be maintained for a period of time not to exceed twenty-four (24) months; and

(c) The MDA may extend the period of time within which the jobs must be created for a period of time not to exceed twenty-four (24) months.

SECTION 21. Section 57-62-11, Mississippi Code of 1972, is amended as follows:

57-62-11. (1) There is created in the State Treasury a special fund to be known as the Mississippi Advantage Jobs Incentive Payment Fund, into which shall be deposited withholding tax revenue required to be deposited into such fund pursuant to Section 27-7-312 and any other monies designated for deposit therein. The money in the fund shall be used for the purpose of making the incentive payments and grants authorized under this chapter.

(2) The Mississippi Advantage Jobs Incentive Payment Fund shall be administered by the Department of Revenue, and monies in the fund, less three percent (3%) to be retained by the Department of Revenue to pay the reasonable and necessary expenses of the Department of Revenue in administering its duties under this chapter, shall be expended pursuant to the approved application. Amounts in the fund at the end of any fiscal year that are not necessary to make future incentive payments and grants shall be paid into the General Fund.

(3) The liability of the State of Mississippi to make the incentive payments and grants authorized under this chapter shall be limited to the balance contained in the fund.

SECTION 22. Section 57-99-1, Mississippi Code of 1972, is amended as follows:

57-99-1. As used in Sections 57-99-1 through 57-99-9, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Qualified business or industry" means any company and affiliates thereof, pursuant to rules and regulations of the MDA, which is:

(i) A project that has been certified by the MMEIA as a project defined in Section 57-75-5(f)(xxi) and creates at least one thousand five hundred (1,500) jobs within sixty (60) months of the beginning of the project;

(ii) A project that has been certified by the MMEIA as a project defined in Section 57-75-5(f)(xxii) and creates at least five hundred (500) jobs within seventy-two (72) months of the beginning of the project;

(iii) A project:

1. That has been certified by the MMEIA as a project defined in Section 57-75-5(f)(xxviii);

2. Creates at least twenty-five (25) jobs within sixty (60) months of the beginning of the project; and

3. In which the average annual wages and taxable benefits of the jobs created by such project are at least one hundred ten percent (110%) of the most recently published average annual wage of the state or the most recently published average annual wage of the county in which the project is located, as determined by the Mississippi Department of Employment Security, whichever is the lesser; or

(iv) A project:

1. That has been certified by the MMEIA as a project defined in Section 57-75-5(f)(xxix);

2. That creates at least twenty-five (25) jobs within sixty (60) months following the date required by the MMEIA and prescribed by written agreement between the MMEIA and the enterprise establishing the project described in item 1 of this subparagraph (iv); and

3. In which the average annual wages of the jobs created by such project are at least one hundred ten percent (110%) of the most recently published average annual wage of the state, as determined by the Mississippi Department of Employment Security.

(b) "Qualified job" means full-time employment in this state within the project site of a qualified business or industry that has qualified to receive an incentive payment pursuant to Sections 57-99-1 through 57-99-9, which employment did not exist in this state before the date of approval by the MDA of the application of the qualified business or industry pursuant to the provisions of Sections 57-99-1 through 57-99-9. "Qualified job" also shall include full-time employment in this state of employees who are employed by an entity other than the establishment that has qualified to receive an incentive payment such as employees who are leased to and managed by the qualified business or industry, if such employment did not exist in this state before the date of approval by the MDA of the application of the establishment; provided, however, that in order for a qualified business or industry to receive incentive payments for such employees, the actual employer of the employees must agree to such payments being made to the qualified business or industry.

(d) "Rebate amount" means the amount of Mississippi income taxes withheld from employees in qualified jobs that is available for rebate to the qualified business or industry, provided that:

(i) Except as otherwise provided in this paragraph (d), the rebate amount shall be three and one-half percent (3-1/2%) of the wages and taxable benefits for qualified jobs; and

(ii) Except as otherwise provided in Section

57-99-3(5), in no event shall incentive payments exceed the actual Mississippi income taxes withheld from employees in qualified jobs that are available for rebate to the qualified business or industry.

(e) "MDA" means the Mississippi Development Authority.

(f) "MMEIA" means the Mississippi Major Economic Impact Authority.

SECTION 23. Section 57-99-3, Mississippi Code of 1972, is amended as follows:

57-99-3. (1) Except as otherwise provided in this section, a qualified business or industry that meets the qualifications specified in Sections 57-99-1 through 57-99-9 may receive quarterly incentive payments for a period not to exceed twenty-five (25) years from the Department of Revenue pursuant to the provisions of Sections 57-99-1 through 57-99-9 in an amount which shall be equal to the lesser of three and one-half percent (3-1/2%) of the wages and taxable benefits for qualified jobs or the actual amount of Mississippi income tax withheld by the employer for the qualified jobs. A qualified business or industry may elect the date upon which the incentive rebate period will begin. Such date may not be later than sixty (60) months after the date the business or industry applied for incentive payments; however, in the case of a qualified business or industry described in Section 57-99-1(a)(ii), such date may not be later than seventy-two (72) months after the date the business or industry applied for incentive payments, or for a qualified business or industry described in Section 57-99-1(a)(iv), such date may not be later than the date that is sixty (60) months after the earlier of:

(a) The date the qualified business or industry applied for incentive payments; or

(b) The start of commercial production as defined in a definitive agreement between such qualified business or industry and the MDA.

(2) In order to receive incentive payments, an establishment shall apply to the MDA. The application shall be on a form prescribed by the MDA and shall contain such information as may be required by the MDA to determine if the applicant is qualified.

(3) In order to qualify to receive such payments, the establishment applying shall be required to:

(a) Be engaged in a qualified business or industry; and

(b) The business or industry must create and maintain the minimum number of qualified jobs as set forth in Section 57-99-1. Establishments that are approved as a qualified business or industry under Sections 57-99-1 through 57-99-9 may not receive incentive payments under Section 57-62-1 et seq.

(4) Upon approval of such an application, the MDA shall notify the Department of Revenue and shall provide it with a copy of the approved application. The Department of Revenue may require the qualified business or industry to submit such additional information as may be necessary to administer the provisions of Sections 57-99-1 through 57-99-9. The qualified business or industry shall report to the Department of Revenue periodically to show its continued eligibility for incentive payments. The qualified business or industry may be audited by the Department of Revenue to verify such eligibility.

(5) Notwithstanding any other provision of Sections 57-99-1 through 57-99-9 to the contrary, from and after January 1, 2023, if the amount of the incentive payments that a qualified business or industry is eligible to receive under Sections 57-99-1 through 57-99-9 is less than the amount that the incentive payments would have been if the payments had been calculated using any applicable income tax rates in Section 27-7-5 that were in effect before January 1, 2023, then the qualified business or industry also shall receive a grant equal to the difference between such two (2) amounts. Further, the term "incentive payment," as such term is used in Sections 57-99-1 through 57-99-9, shall be deemed to not refer to or otherwise include any grant payment payable to a qualified business or industry pursuant to this subsection.

SECTION 24. Section 57-99-5, Mississippi Code of 1972, is amended as follows:

57-99-5. (1) There is created in the State Treasury a special fund to be known as the "MMEIA Withholding Rebate Fund," into which shall be deposited withholding tax revenue required to be deposited into such fund pursuant to Section 27-7-312 and any other monies designated for deposit therein. The money in the fund shall be used for the purpose of making the incentive payments and grants authorized under Sections 57-99-1 through 57-99-9.

(2) The liability of the State of Mississippi to make the incentive payments and grants authorized under Sections 57-99-1 through 57-99-9 shall be limited to the balance contained in the fund.

SECTION 25. This act shall take effect and be in force from and after July 1, 2022.