Current through Register 1531, September 27, 2024
(1)
Statement of Purpose, Outline of Topics, Applicable Tax
Years.
(a)
Statement
of Purpose. 830 CMR 62.6M.1 explains the calculation of the
community investment tax credit allowed for qualified investments to a
community partner or community partnership fund, established by St. 2012, c.
238, §§ 29, 30, 35, 36, 82, 83, 95, 97, 97A and 98; amended by St.
2013, c. 36, §§ 8 through 15, 58 and 82; St. 2016, c. 219,
§§ 78, 79, 92 and 93; and St. 2018, c. 99, §§ 11, 12, 12A,
19, 20 and 21; and codified at M.G.L. c. 62, § 6M and M.G.L. c. 63, §
38EE. Regulations issued by the Department of Housing and Community Development
(DHCD) setting forth the process by which community development corporations
and community support organizations may apply to be a community partner and
receive a community investment tax credit allocation and qualified investments
from taxpayers may be found at
760 CMR 68.00:
Community Investment Tax Credit Program.
(b)
Outline of
Topics. 830 CMR 62.6M.1 is organized as follows:
1. Statement of Purpose, Outline of Topics,
Applicable Tax Years;
2.
Definitions;
3. Prerequisites to
Claiming the Credit;
4. Amount of
Credit;
5. When a Qualified
Investment is Made;
6. Cumulative
Cap;
7. Credit is
Refundable;
8. Carry Over of Unused
Credit;
9. Offset Debt
Collection;
10. Special Rules
Applicable to Pass-through Entities;
11. Qualified Investments by Married
Couples;
12. Qualified Investments
by Corporations That File a Combined Report;
13. General Rules - Taxpayers That Have No
Tax Liability or Filing Requirements;
14. Organizations Exempt From Taxation under
Code § 501;
15. Cash
Contributions Where Credit May Be Disallowed;
16. Massachusetts Gross Income;
17. Recordkeeping; and
18. Examples.
(c)
Applicable Tax
Years. The community investment tax credit available under M.G.L.
c. 62, § 6M and M.G.L. c. 63, § 38EE is applicable to tax years
beginning, and for qualified investments made, on or after January 1, 2014
through December 31, 2025, or to such time as the Legislature may extend the
expiration date of the credit.
(2)
Definitions. For
purposes of 830 CMR 62.6M.1, the following terms have the following meanings,
unless the context requires otherwise:
Code, with respect to personal income
taxation under M.G.L. c. 62, the federal Internal Revenue Code, as modified in
M.G.L. c. 62, § 1(c); and with respect to corporate level taxation under
M.G.L. c. 63, the federal Internal Revenue Code, as amended and in effect for
the taxable year, as more fully defined in M.G.L. c. 63.
Commissioner, the Commissioner of
Revenue or the Commissioner's duly authorized representative.
Community Development Corporation, a
corporation as defined in M.G.L. c. 40H, § 2 and certified as a community
development corporation by DHCD.
Community Investment Tax Credit
Allocation, an award provided by DHCD through a competitive
process that enables the recipient of the allocation to solicit and receive
qualified investments from taxpayers and to provide those taxpayers with a
community investment tax credit.
Community Partner, a community
development corporation or a community support organization selected by DHCD
through a competitive process to receive a community investment tax credit
allocation.
Community Partnership Fund, a fund
administered by a nonprofit organization selected by DHCD to receive qualified
investments from taxpayers for the purpose of allocating such investments to
community partners.
Community Support Organization, any
nonprofit organization that is neither a community development corporation nor
a nonprofit organization selected to administer a community partnership fund
that has a record of providing capacity building services to community
development corporations.
DHCD, the Department of Housing and
Community Development.
Qualified Investment, a cash
contribution made to a specific community partner to support the implementation
of its community investment plan as defined in M.G.L. c. 62, § 6M(b) and
M.G.L. c. 63, § 38EE(b) or to a community partnership fund.
Taxpayer, any individual or entity
that makes a qualified investment and is entitled to claim a credit under
M.G.L. c. 62, § 6M or M.G.L. c. 63, § 38EE, as
applicable.
(3)
Prerequisites to Claiming the Credit. Before a credit
may be claimed, DHCD must certify that the taxpayer made a cash contribution to
a community partner or to a community partnership fund and issue an interim
certificate to the taxpayer that establishes that the prerequisites to claiming
the credit in 830 CMR 62.6M.1 have been met. Upon receipt of the interim
certificate, the taxpayer must complete the taxpayer portion of the form and
forward it to the Commissioner, who shall then issue a final certificate to the
taxpayer. No credit will be allowed unless the certificate number from the
final certificate is included in the space provided on the return filed by the
taxpayer with the Commissioner for the taxable year in which the credit is
claimed or such other validation as the Commissioner may require is
provided.
(4)
Amount of
Credit. In general, the credit shall be equal to 50% of the total
qualified investment made by the taxpayer for the taxable year. No credit shall
be allowed to a taxpayer that makes a qualified investment of less than
$1,000.
(5)
When a
Qualified Investment is Made. The credit shall be allowed for the
taxable year in which the qualified investment is made by a taxpayer. A
qualified investment is made at the time delivery of the qualified investment
by a taxpayer to a community partner or community partnership fund is
"effected", as that term is used in Treasury Regulation § 1.170A-1(b).
Accordingly, for example, the unconditional delivery of a cash contribution or
mailing of a check by a taxpayer, which subsequently clears in due course, to a
community partner or a community partnership fund shall constitute an effective
qualified investment by the taxpayer on the date of delivery or
mailing.
(6)
Cumulative
Cap. The total cumulative value of all the credits authorized
pursuant to M.G.L. c. 62, § 6M and M.G.L. c. 63, § 38EE shall not
exceed:
(a) $3,000,000 in taxable year
2014;
(b) $6,000,000 in each of
taxable years 2015 through 2018;
(c) $8,000,000 in each of taxable years 2019
and 2020;
(d) $10,000,000 in each
of taxable years 2021 and 2022; and
(e) $12,000,000 in each of taxable years 2023
through 2025.
(7)
Credit is Refundable. The credit is refundable but not
transferable. The Commissioner shall apply the credit against the taxpayer's
liability as reported on the taxpayer's tax return, as first reduced by any
other available credits, and then refund the balance of the credit to the
taxpayer without interest.
(8)
Carry Over of Unused Credit. Alternatively, at the
option of the taxpayer, a taxpayer entitled to claim a credit under M.G.L. c.
62, § 6M or M.G.L. c. 63, § 38EE for a taxable year may carry over
and apply against the taxpayer's tax liability for any one or more of the
succeeding five taxable years, the portion, as reduced from year to year, of
the credit which exceeds the tax for the taxable year. If the taxpayer elects
to carry over a credit balance, then the credit refund provisions allowed by
830 CMR 62.6M.1(7) shall not apply.
(9)
Offset Debt
Collection. The provisions of M.G.L. chs. 62C and 62D including,
without limitation, provisions allowing offsets of refunds for unpaid tax
assessments, child support obligations, or other applicable obligations, apply
to refunds and credits under 830 CMR 62.6M.1(7) and (8).
(10)
Special Rules Applicable to
Pass-through Entities.
(a)
Pass-through Entities Not Taxed at Entity Level. In
the case of a qualified investment by a pass-through entity that is not taxable
at the entity level, such as a partnership, the credit allowed under M.G.L. c.
62, § 6M or M.G.L. c. 63, § 38EE, as applicable, shall be passed
through to the entity's partners or owners pro rata or
pursuant to an executed agreement among the entity's partners or owners
documenting an alternative distribution method without regard to their sharing
of other tax or economic attributes of the entity. The total aggregate amount
of the credit passed through by such entity and claimed by its partners or
owners in any taxable year shall not exceed the credit amount allowed by 830
CMR 62.6M.1(4).
(b)
Pass-through Entities Taxed at Entity Level. A trust
or subchapter S corporation subject to tax at the entity level in any year may
claim the credit allowed under M.G.L. c. 62, § 6M or M.G.L. c. 63, §
38EE, as applicable, for the taxable year in which the qualified investment is
made. Alternatively, the credit may be passed through to the entity's
beneficiaries or shareholders
pro rata or pursuant to an
executed agreement among the entity's beneficiaries or shareholders documenting
an alternative distribution method without regard to their sharing of other tax
or economic attributes of the entity. These alternatives are mutually
exclusive; an entity may not claim part of the credit against its own excise
and pass the rest through to its beneficiaries or shareholders. Either:
(i) the entity or
(ii) the beneficiaries or shareholders may
claim the credit, but not both. If credits are passed through to beneficiaries
or shareholders, any credits that cannot be applied in the taxable year for
which a carryover is elected may be carried over and applied against the
beneficiary's or shareholder's tax liability in succeeding taxable years.
Carryovers may not be claimed at the entity level in such cases. The total
aggregate amount of the credit passed through by such entity and claimed by its
beneficiaries or shareholders in any taxable year shall not exceed the credit
amount allowed by 830 CMR 62.6M.1(4).
(11)
Qualified Investments by
Married Couples. In any one taxable year, the total amount of the
credit that may be claimed under M.G.L. c. 62, § 6M by a married couple
who makes qualified investments shall not exceed the credit amount allowed by
830 CMR 62.6M.1(4) and may be claimed only if the spouses file a joint return,
if both spouses are required to file Massachusetts income tax returns. If only
one spouse is required to file a Massachusetts income tax return, that spouse
may claim the credit on a separate return.
(12)
Qualified Investments by
Corporations That File a Combined Report. In any one taxable year,
the total aggregate amount of the credit that may be claimed under M.G.L. c.
63, § 38EE by corporations that make qualified investments and are members
of a combined group required to file a combined report under M.G.L. c. 63,
§ 32B shall not exceed the credit amount allowed by 830 CMR
62.6M.1(4).
(13)
Taxpayers Who Have No Tax Liability or Filing
Requirements. Taxpayers who have no Massachusetts corporate excise
or income tax liability or are not otherwise required to file a return in
Massachusetts that make a qualified investment are nonetheless eligible to
claim a refund of the credit by filing a Massachusetts corporate excise or
income tax return, as applicable, for the taxable year in which the qualified
investment is made.
(14)
Organizations Exempt from Taxation under Code §
501. An organization exempt from taxation under Code § 501
that makes a qualified investment is eligible to claim a refund of the credit.
The Commissioner shall apply the credit first against the organization's
liability arising from its unrelated business taxable income, as defined in
§ 512 of the Code, if any, as reported on the organization's income tax
return, whether or not the credit results from the unrelated business activity
of the organization that gave rise to such liability, and then refund the
balance of the credit to the organization.
(15)
Cash Contributions Where
Credit May Be Disallowed.
(a)
Contributions by Community Partners and Their
Employees. A community partner that makes a cash contribution to
another community partner is ineligible to claim the credit otherwise allowed
under M.G.L. c. 62, § 6M or M.G.L. c. 63, § 38EE with respect to the
contribution. Similarly, an employee of a community partner is ineligible to
claim the credit otherwise allowed under M.G.L. c. 62, § 6M or M.G.L. c.
63, § 38EE with respect to cash contributions made by such employee to
such community partner.
(b)
Contributions Where Business Relationship Exists between Community
Partner and Taxpayer. A cash contribution by a taxpayer to a
community partner that purchases goods or services from the taxpayer may
qualify for the credit under M.G.L. c. 62, § 6M or M.G.L. c. 63, §
38EE only if the cash contribution is not in any way an element of or
contingent upon such contractual relationship between the parties or upon its
continuation. In the case of any taxpayer who receives or expects to receive
payment of more than $1000 from a community partner in the year that the
taxpayer makes a cash contribution to such community partner or in the
immediately preceding year, the taxpayer must disclose its contractual
relationship with the community partner as part of its application for credit
and must certify as part of the application that the cash contribution is
entirely independent of such contractual relationship. The Commissioner may
disallow a credit or recapture a refund in the event that the Commissioner
determines, pursuant to audit or otherwise, that any such required disclosure
was incomplete or inaccurate.
(16)
Inclusion of Credit in
Massachusetts Gross Income. A refund of the credit is includable
in Massachusetts gross income to the extent it is includable in federal gross
income. Generally a refund of a state credit is includable in federal gross
income if it is received by the taxpayer as an actual or constructive payment
from the state, after reduction for such portion of the credit, if any, that is
used to reduce the taxpayer's current tax liability. The amount of refunded
credit that is includable in income would include any offset of the otherwise
available credit that is made to cover other applicable obligations owed by the
taxpayer under
830
CMR 62.6M.1(9). That portion
of a refundable state credit, if any, that is applied to reduce the taxpayer's
current state tax liability, in contrast, is generally treated for federal tax
purposes as a reduction in tax and is not included in the taxpayer's federal
gross income, or otherwise treated as a payment from the state.
(17)
Recordkeeping.
Every community partner or community partnership fund that receives cash
contributions from taxpayers shall maintain records regarding each contribution
received of $1000 or more, and shall provide a copy of these records to DHCD.
Each record shall include the name and address of the taxpayer making the
contribution, or other claimant, if applicable, if the contribution is made by
a pass-through entity, along with the dollar amount of each such contribution,
and the date the contribution was made.
(18)
Examples. The
following examples illustrate the provisions of
830
CMR 62.6M.1; they are not intended to be
exhaustive.
(a)
Example
1. Qualified Investments Directly to Community
Partners. On June 1, 2014, John Flyn, a Massachusetts resident,
makes a $20,000 qualified investment to JY Corporation, a community development
corporation dedicated to community development initiatives within Massachusetts
and selected by DHCD to be a community partner. DHCD certifies that John made a
qualified investment and issues him an interim certificate on July 3, 2014. The
total credit certified on the certificate is $10,000, as stated in
830
CMR 62.6M.1(4), the credit is equal to 50% of
the total qualified investment made by the taxpayer for the taxable year. John
may claim the $10,000 credit on his 2014 Massachusetts income tax
return.
(b)
Example
2. Qualified Investments to a Community Partnership
Fund. On December 30, 2014, Mary Smith, a Massachusetts resident,
makes a qualified investment to a community partnership fund by mailing to the
fund a check for $18,000. The fund distributes Mary's $18,000 to a community
partner dedicated to undertaking development projects in the city in which Mary
lives on February 5, 2015. DHCD certifies that Mary made a qualified investment
(i.e., the $18,000 she gave to the community partnership fund)
and issues her an interim certificate on February 20, 2015. The total credit
certified on the certificate is $9,000. Pursuant to
830
CMR 62.6M.1(5), Mary may
claim the $9,000 credit on her 2014 Massachusetts income tax return, as 2014 is
the taxable year in which Mary makes a qualified investment. The fact that the
community partnership fund to which Mary made her qualified investment
subsequently distributes the $18,000 to a community partner in 2015 or the fact
that DHCD issues Mary a certificate in 2015 are not determinative of the
taxable year in which the credit shall be claimed under
830
CMR 62.6M.1(5).
(c)
Example 3.
Qualified Investments by Organizations Exempt From Tax Under Code
§ 501. On May 12, 2015, Nonprofit Unincorporated Association
("NUA") makes a $25,000 qualified investment to a community partnership fund
that, in turn, on July 21, 2015, distributes the money equally ($12,500 each)
to two community partners. DHCD certifies that NUA made a qualified investment
of $25,000 and issues NUA an interim certificate on August 3, 2015. The total
credit certified on the certificate is $12,500. In 2015, NUA has unrelated
business taxable income that results in a tax liability before credits of
$1,000. The qualified investment NUA made to the community partnership fund is
unrelated to the business activity that gave rise to NUA's taxable income.
Nevertheless, in determining NUA's refund amount, the Commissioner will first
apply NUA's $12,500 credit against NUA's $1,000 tax liability and refund the
remaining $11,500 to NUA, pursuant to
830
CMR 62.6M.1(14).
(d)
Example 4.
Donor Advised Funds. On May 10, 2014, Fred Jones, a
Massachusetts resident, makes an irrevocable contribution of $100,000 to the
donor advised fund ("DAF") he established through XYZ organization ("XYZ"), a
public charity exempt from taxation under Code § 501. Fred advises XYZ on
how to invest the assets in the DAF so that they may grow prior to being
granted and recommends, among other grants, periodic grants of varying amounts
from the DAF to community partners located in the city in Massachusetts in
which he resides. The final decision as to the distribution of the $100,000
rests with XYZ, however; no distribution from the DAF is made unless XYZ agrees
to or approves of it. On October 3, 2014, XYZ makes three $5,000 grants from
the DAF established by Fred. Two of those grants qualify as qualified
investments as they are made to two separate community partners located in
Fred's city. DHCD certifies that XYZ made two qualified investments and issues
XYZ two interim certificates on October 25, 2014. The total credit certified on
each certificate is $2,500, for a total allowable credit for 2014 of $5,000.
Pursuant to
830
CMR 62.6M.1(13), XYZ files a
Massachusetts income tax return for 2014 and claims a $ 5,000 refund, as XYZ
has no unrelated business taxable income for tax year 2014. Fred, on the other
hand, is entitled to claim no credit or refund on his 2014 Massachusetts income
tax return for the $100,000 contribution he made to his DAF, as a DAF is not a
community partner or a community partnership fund and, thus, contributions to a
DAF are not "qualified investments."
(e)
Example 5.
Qualified Investments by a Nonresident Taxpayer. Jack
Cline, a resident of New York with no Massachusetts source income, as defined
in M.G.L. c. 62, § 5A, whose only ties to Massachusetts are that he has a
daughter and grandchildren living in Massachusetts, makes a $30,000 qualified
investment in 2016 directly to a Massachusetts community development
corporation dedicated to improving the community his daughter and grandchildren
live in and selected by DHCD to be a community partner. DHCD certifies that
Jack made a qualified investment and issues him an interim certificate on June
20, 2016. The total credit certified on the certificate is $15,000. Although
not otherwise required to file a 2016 nonresident income tax return in
Massachusetts, Jack must file a Massachusetts nonresident return in order to
receive a payment of the $15,000 refund, as stated in
830
CMR 62.6M.1(13).