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STATE BOARD OF EQUALIZATION

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STATE BOARD OF EQUALIZATION
STATE OF CALIFORNIA
BETTY T. YEE
First District, San Francisco
STATE BOARD OF EQUALIZATION
450 N STREET, SACRAMENTO, CALIFORNIA
PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0092
TELEPHONE (916) 324-1825
FAX (916) 322-4530
BILL LEONARD
Second District, Ontario/Sacramento
MICHELLE STEEL
Third District, Rolling Hills Estates
September 23, 2010
www.boe.ca.gov
JUDY CHU, PH.D.
Fourth District, Los Angeles
JOHN CHIANG
State Controller
(via email)
RAMON J. HIRSIG
Executive Director
Dear Interested Party:
This is a follow-up letter to our meeting in Culver City in June 2010 regarding the
implementation of the California Film and Television Tax Credit. Since that time, we have been
working with the Franchise Tax Board (FTB) to obtain answers to questions about when, and to
whom, credits may be assigned under Revenue and Taxation Code (RTC) section 23685,
subdivision (c).
RTC section 6902.5, subdivision (b)(2) provides that an “affiliate,” which has been assigned a
portion of an eligible taxpayer’s credit amount, may make an irrevocable election to apply the
assigned portion of the credit amount against qualified sales and use taxes imposed on the
affiliate. However, RTC section 23685, subdivision (c)(1) governs the actual assignment of credit
amounts to affiliates and provides that:
Notwithstanding subdivision (i) of Section 23036, relating to credits attributable
to a passthrough business entity, in the case where the credit allowed by this
section exceeds the taxpayer's tax liability computed under this part, a qualified
taxpayer may elect to assign any portion of the credit allowed under this section to
one or more affiliated corporations for each taxable year in which the credit is
allowed. For purposes of this subdivision, "affiliated corporation" has the
meaning provided in subdivision (b) of Section 25110, as that section was
amended by Chapter 881 of the Statutes of 1993, as of the last day of the taxable
year in which the credit is allowed, except that "100 percent" is substituted for
"more than 50 percent" wherever it appears in the section, and "voting common
stock" is substituted for "voting stock" wherever it appears in the section.
We asked FTB staff for guidance regarding when a qualified taxpayer may actually assign a credit
amount to an affiliate. We also asked FTB staff to clarify the statutory definition of affiliate
under RTC section 23685.
The FTB has informed us that the election to assign a credit amount and the actual assignment of
the credit amount are two distinct events. A qualified taxpayer may elect to assign a credit
amount at any time after the qualified taxpayer receives the credit certificate issued by the
California Film Commission. However, under the provisions of RTC section 23685, subdivision
(c)(1), a credit amount may not actually be assigned until it is certain that there is some portion of
the credit in excess of the assignor’s tax liability. Accordingly, the first time a credit amount can
actually be assigned is when a subsequent liability is assessed against the assignor, i.e., when the
E-file now, find out how . . . www.boe.ca.gov
Interested Party
-2September 23, 2010
assignor’s franchise or income tax return is filed, or the tax liability is assessed in some other
manner. Furthermore, we have concluded that an affiliate cannot apply assigned credit amounts
against qualified sales and use tax imposed on the affiliate before an actual assignment of the
credit amounts is made under RTC section 23685, subdivision (c)(1).
In addition, the FTB has informed us that a qualified taxpayer may elect to assign a credit amount
to the following entities, which will all qualify as “affiliated corporations” within the meaning of
RTC section 23685, subdivision (c)(1): (1) a corporation that owns directly or indirectly 100
percent of the assignor’s voting common stock, (2) a corporation in which the assignor owns
directly or indirectly 100 percent of the voting stock, (3) a corporation that is wholly owned by a
corporation or individual that owns 100 percent of the voting stock of the assignor, or (4) a
“stapled entity” as defined in RTC section 25105. Furthermore, the FTB has clarified that a
qualified taxpayer that is an LLC can have an affiliated corporation as defined in RTC section
23685, subdivision (c)(1), provided the LLC is being taxed as a corporation rather than as a
partnership under California law.
Please note that the start date of the refund period specified in RTC section 6902.5, subdivision
(d)(1), is not affected by the assignment of credit amounts. Pursuant to RTC section 6902.5,
subdivision (d)(1), the start of the refund period is based on when preproduction begins.
I hope this information is helpful. If you have further questions about claiming the film credit
against sales and use taxes, please contact Ms. Lynn Whitaker at (916) 324-8483 or by email at
[email protected], or Mr. Bradley Heller at (916) 323-3091 or by email at
[email protected]
Sincerely,
Susanne Buehler, Acting Chief
Tax Policy Division
Sales and Use Tax Department
SB:llw
cc:
(via email)
Ms. Amy Lemisch, California Film Commission
Ms. Kristen Magers, Franchise Tax Board
Mr. Randy Ferris
Mr. Bradley Heller
Mr. Kevin Hanks
Mr. Steven Sisti
Mr. Geoffrey Lyle
Ms. Leila Hellmuth
Ms. Lynn Whitaker
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