Section 532.10  Purpose

 

The Department shall make live theater tax credit awards under the Live Theater Production Tax Credit Act for the purpose of preserving and expanding the existing work force in Illinois, supporting the live theater industry in Illinois, promoting tourism in Illinois and stimulating economic development in Illinois. Moreover, it shall be the policy of this State to promote and encourage the training and hiring of Illinois residents who represent the diversity of the Illinois population through the creation and implementation of training, education and recruitment programs organized in cooperation with Illinois colleges and universities, labor organizations and the commercial for‑profit live theater industry.  [35 ILCS 17/10‑5] 

 

Section 532.20  Definitions

 

The following definitions are applicable to this Part:

 

"Accredited Theater Production" means a for‑profit live stage presentation in a qualified production facility, as defined in this Section, that is either a pre‑Broadway production or a long‑run production for which the aggregate Illinois labor and marketing expenditures exceed $100,000. [35 ILCS 17/10-10]

 

"Accredited Theater Production Certificate" means a certificate issued by the Department certifying that the production is an accredited theater production that meets the guidelines of the Act. [35 ILCS 17/10-10]

 

"Act" means the Live Theater Production Tax Credit Act [35 ILCS 17].

 

"Applicant" means:

 

a taxpayer that is a theater producer, owner, licensee, operator, or presenter that is presenting or has presented a live stage presentation located within the State of Illinois who:

 

owns or licenses the theatrical rights of the stage presentation for the Illinois production period; or

 

has contracted or will contract directly with the owner or licensee of the theatrical rights or a person acting on behalf of the owner or licensee to provide live performances of the production.

 

an applicant that directly or indirectly owns, controls, or operates multiple qualified production facilities shall be presumed to be and considered for the purposes of the Act to be a single applicant; provided, however, that, as to each of the applicant's qualified production facilities, the applicant shall be eligible to separately and contemporaneously apply for and obtain accredited theater production certificates, stage accredited theater productions, and apply for and receive a tax credit award certificate for each of the applicant's accredited theater productions performed at each of the applicant's qualified production facilities. [35 ILCS 17/10-10]

 

"Broadway's Theater District" means the theater district located in Midtown Manhattan New York and shall include any theater with more than 500 seats that the American Theater Wing and the Broadway League have deemed eligible for the Tony Awards or any theaters that appear on the Broadway box-office charts. 

 

"Department" means the Illinois Department of Commerce and Economic Opportunity. [35 ILCS 17/10-10]

 

"Director" means the Director of the Department. [35 ILCS 17/10-10]

 

"Diversity Data or Information" means data pertaining to gender, race, ethnicity and disability of all employees of the applicant. 

 

"Diversity Plan" means a written document through which the applicant assures the Department that minorities, females and persons with disabilities will have equal opportunities in recruitment, selection, appointment, promotion, training and related employment areas in the accredited production. The diversity plan must also describe the manner in which the applicant plans on hiring vendors certified by the Business Enterprise Council under the Business Enterprise for Minorities, Females, and Persons with Disabilities Act  [30 ILCS 575] with respect to the accredited production.  The diversity plan must also detail the manner in which the applicant proposes to achieve its goals to ensure employment of protected classes (minorities, females and persons with disabilities) to achieve a diverse workforce rather than merely to assure nondiscrimination.

 

"Economic Impact Data" means data pertaining to the types of jobs (production, talent and vendor) created and retained in Illinois, as well as the total amount an applicant spends in Illinois on the accredited theater production.

 

"Employee" means any individual who is an employee of the applicant for purposes of employment taxes imposed under subtitle C of the Internal Revenue Code (42 USC subtitle C), any production staff or crew and any individual in a non-talent position.

 

"Female-Owned Business" means a business concern that is at least 51% owned by one or more females, or, in the case of a corporation, at least 51% of the stock is owned by one or more females, and the management and daily business operations of which are controlled by one or more of the females who own it. [30 ILCS 575/2(A)(4)]

 

"Illinois Labor Expenditure" means gross salary or wages, including, but not limited to, taxes, benefits and any other consideration incurred or paid to non‑talent employees of the applicant for services rendered to and on behalf of the accredited theater production. To qualify as an Illinois labor expenditure, the expenditure must be:

 

incurred or paid by the applicant on or after June 1, 2012 for services related to any portion of an accredited theater production from its pre‑production stages, including, but not limited to, the writing of the script, casting, hiring of service providers, purchases from vendors, marketing, advertising, public relations, load in, rehearsals, performances, other accredited theater production related activities, and load out;

           

directly attributable to the accredited theater production;

 

limited to the first $100,000 of wages incurred or paid to each employee of an accredited theater production in each tax year;

 

included in the federal income tax basis of the property;

 

paid in the tax year for which the applicant is claiming the tax credit award, or no later than 60 days after the end of the tax year;

 

paid to persons residing in Illinois at the time payments were made; and

           

reasonable in the circumstances. [35 ILCS 17/10-10]

 

"Illinois Production Spending" means any and all expenses directly or indirectly incurred relating to an accredited theater production presented in any qualified production facility of the applicant and associated to the performance run in that qualified production facility, including, but not limited to, expenditure for:

 

national marketing, public relations and the creation and placement of print, electronic, television, billboard and other forms of advertising; and

 

the construction and fabrication of scenic materials and elements; provided, however, that the maximum amount of expenditures attributable to the construction and fabrication of scenic materials and elements eligible for a tax credit award shall not exceed $500,000 per applicant per production in any single tax year. [35 ILCS 17/10-10]

 

"Illinois Resident" means an individual who is domiciled in this State during the accredited theater production.  Except in a case when the applicant has actual knowledge, as shown in its books and records, that an individual is not an Illinois resident, the possession by an individual of an Illinois driver's license or other identification issued by this State prior to the commencement of the accredited theater production shall be sufficient proof that the individual is an Illinois resident and the address on the license or identification shall be deemed correct.

 

"Long-Run Production" means a live stage production that is performed in a qualified production facility for longer than 8 weeks, with at least 6 performances per week, and includes a production that spans the end of one tax year and the commencement of a new tax year that, in combination, meets the criteria set forth in this definition making it a long‑run production eligible for a theater tax credit award in each tax year or portion of a tax year. [35 ILCS 17/10-10]

 

"Minority" means a person who is a citizen or lawful resident of the United States and who is African American (a person having origins in any of the black racial groups in Africa); Hispanic (a person of Spanish or Portuguese culture with origins in Mexico, South or Central America or the Caribbean Islands, regardless of race); Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands); or Native American or Alaskan Native (a person having origins in any of the original peoples of North America). [30 ILCS 575/2(A)(1)]

 

"Minority-Owned Business" means a business concern that is at least 51% owned by one or more minority persons or, in the case of a corporation, at least 51% of the stock is owned by one or more minority persons, and the management and daily business operations of which are controlled by one or more of the minority individuals who own it. [30 ILCS 575/2(A)(3)]

 

"Non-Talent" means any person who is not a performer. A performer includes, but is not limited to, principal actors, ensemble actors, understudies, swings and members of the orchestra ensemble that are part of the theatrical performance. 

 

"Person with a Disability" means a person who is a citizen or lawful resident of the United States and is a person qualifying as being disabled under Section 2(A)(2.1) of the Business Enterprise for Minorities, Females, and Person with Disabilities Act. [30 ILCS 575/2(A)(2.05]

 

 "Pre‑Broadway Production" means a live stage production that, in its original or adaptive version, is performed in a qualified production facility having a presentation scheduled for Broadway's Theater District in New York City within 12 months after its Illinois presentation. [35 ILCS 17/10-10]

 

"Qualified Production Facility"  means an existing and permanent facility located in the State in which live theatrical productions are, or are intended to be, exclusively presented that contains at least one stage, a seating capacity of 1,200 or more seats, and dressing rooms, storage areas and other ancillary amenities necessary for the accredited theater production. [35 ILCS 17/10-10]

 

"State" means the State of Illinois.

 

"Tax year" means a calendar year for the period January 1 to and including December 31. [35 ILCS 17/10-10]

 

"Theater Tax Credit Award" means the issuance to a taxpayer by the Department of a tax credit award in conformance with Sections 10‑40 and 10‑45 of the Act. [35 ILCS 17/10-10]

 

"Training Plan" means a written document through which the applicant pledges to provide training, education and recruitment in accordance with the Act.

 

"Vendor" means an Illinois based supplier of any goods or services. Expenditures for purchases of tangible personal property or services from a vendor shall mean:

 

Purchases of tangible personal property for use in Illinois on an accredited theater production from a person who is registered under the Illinois Retailers' Occupation Tax Act [35 ILCS 120] (ROTA).  A copy of the purchase receipt showing that the purchase was made at an Illinois location and that ROT was paid shall be sufficient proof that the purchase was made from a vendor in Illinois. For tangible personal property ordered by mail, telephone or internet, a copy of the seller's ROTA registration certificate along with a receipt showing that Illinois Use Tax was collected by the vendor shall be sufficient proof that the purchase was made from a vendor in Illinois.  Documentation that shows that Illinois Use Tax was collected by the vendor, but either does not show an Illinois address for the sale or is not accompanied by a ROTA registration certificate, shall not be sufficient proof that the purchase was made from a vendor in Illinois. 

 

The lease or rental of real property located in Illinois for use in an accredited theater production, including hotels or other lodging for employees working on the accredited theater production. 

 

The lease or rental of an automobile (as defined in the Illinois Automobile Renting Occupation and Use Tax Act [35 ILCS 155]) for use in an accredited theater production on which the renter collects the Illinois Automobile Renting Occupation and Use Tax from the rentee.

 

The lease or rental of other tangible personal property for use in an accredited theater production if the owner of the property has paid Illinois Use Tax on the property.  A copy of the invoice or receipt for the lease or rental showing an Illinois address for the lessor, and showing that no other state's sales tax is collected from the lessee, shall be sufficient proof that the transaction was with an vendor in Illinois.

 

The purchase of financial services (including insurance and the borrowing of funds) from a lender or insurer whose commercial domicile is in this State.  

 

The purchase of other services with respect to an accredited theater production from an Illinois resident or from a person whose commercial domicile is in this State.  For purposes of this definition only, the commercial domicile of a person is in this State if the person's business address (as shown in the records of the applicant) is in this State.

 

"Vendor-Related Positions" means jobs obtained or created through a subcontractor, which includes, but is not limited to, security, janitorial, printing, florist, dry cleaners and limousine services.

 

Section 532.30  Live Theater Tax Credit Directives

 

a)         For taxable years beginning on and after January 1, 2012, subject to the limitations and requirements provided in the Act, an applicant is entitled to a theater tax credit award as approved by the Department for qualifying Illinois labor expenditures and Illinois production spending for each tax year in which the applicant is awarded an accredited theater production certificate issued by the Department. [35 ILCS 17/10-20]

 

b)         In accordance with the purpose of the Act, credits shall be awarded on a first-come, first-served basis as described in Section 532.40(c). [35 ILCS 17/10-20]

 

c)         To accomplish the purposes of the Act, the Department may use the training programs provided under Section 605-800 of the Department of Commerce and Economic Opportunity Law of the Civil Administrative Code of Illinois [20 ILCS 605]. [35 ILCS 17/10-35]

 

Section 532.40  Live Theater Tax Credit Amount

 

a)         The maximum monetary amount of tax credits awarded pursuant to the Act shall not exceed the actual amount as directed in the Act in any State fiscal year. [35 ILCS 17/10-20]

 

b)         Each theater tax credit award shall be limited to $500,000 per accredited theater production per tax year in an effort to provide overall support to the live theater industry in Illinois.

 

c)         If applications for theater tax credits exceed the maximum monetary cap amount, for credits established by the Act, credits shall be awarded on a first-come, first-served basis, based on the date on which each properly completed application for an accredited theater production certificate is received by the Department.  If more than one application for an accredited theater production certificate is received on the same day, the credits will be awarded based on the time of submission on that particular day.

 

d)         If the amount of credits applied for in any fiscal year exceeds the amount authorized to be awarded under Section 10-20 of the Act, the excess credit amount shall be awarded in the next fiscal year in which credits remain available for award and shall be treated as having been applied for on the first day of that fiscal year.

 

Section 532.50  Application for Accredited Theater Production Certificate

 

a)         In order to obtain a theater tax credit award, an applicant must first receive an accredited theater production certificate establishing that the applicant has satisfied the requirements of the Act and this Part.

 

b)         In order to qualify for a theater tax credit award under the Act, an applicant must file an application, on forms prescribed by the Department, providing information necessary to calculate the tax credit award and any additional information as reasonably required by the Department. [35 ILCS 17/10-40(a)] The Department shall only accept applications that are submitted electronically via the standard application form provided by the Department.  The applicant will be required to provide information including, but not limited to, the following:

 

1)         Legal name, address and telephone number of applicant.

 

2)         Whether the applicant is a:

 

A)        Theater producer;

 

B)        Owner;

 

C)        Licensee;

 

D)        Operator; or

 

E)        Presenter.

 

3)         Name, title and telephone number of the primary contact person.

 

4)         Type of business entity:

 

A)        Individual or sole proprietorship;

 

B)        Partnership;

 

C)        Corporation;

 

D)        Subchapter S corporation;

 

E)        Limited liability company; or

 

F)         Other (applicant will provide description).

 

5)         Date of incorporation or formation.

 

6)         Federal Employer Identification Number (FEIN) or Tax Identification Number (TIN).

 

7)         Production title and whether the production is a:

 

A)        Pre‑Broadway production; or

 

B)        Long‑run production.

 

8)         Estimated opening night of the production run and estimated number of performances in Illinois.

 

9)         Estimated total budget of production.

 

10)         Estimated total Illinois labor expenditure.

 

11)        Estimated number of Illinois residents to be hired to work on the production.

 

12)         For a Pre-Broadway production, applicant must provide tangible evidence that the production is scheduled to be performed in Broadway's Theater District within 12 months after the end of the Illinois run.

 

13)         The applicant must certify that it is and will remain in good standing with applicable state authorities, it is not currently operating under, or subject to, any cease and desist order, or subject to any informal or formal regulatory action, and, to the best of the applicant's knowledge, that it is not currently the subject of any investigation by any state or federal regulatory, law enforcement or legal authority.  Should the applicant become the subject of an investigation by any state or federal regulatory, law enforcement or legal authority, the applicant shall promptly notify the Department of that investigation.  The applicant acknowledges that, should it become delinquent in its good standing status with any applicable state authority or if it later becomes subject to a cease and desist order or memorandum of understanding, or is found in violation pursuant to any regulatory action or any court action or proceeding before any administrative agency, the Department is authorized to deny the applicant's request for an accredited theater production certificate.

 

c)         An application must be submitted to the Department no sooner than 180 calendar days prior to the opening of ticket sales for the accredited theater production and no later than the last business day prior to the opening of the accredited theater production.

 

d)         The Department will evaluate applications for accredited theater production certificates from eligible applicants in accordance with the following requirements:

 

1)         The Applicant intends to make the expenditure in the State. [35 ILCS 17/10-30]

 

2)         The applicant's accredited theater production is economically sound and will benefit the people of the State of Illinois by increasing opportunities for employment and will strengthen the economy of Illinois. [35 ILCS 17/10-30]

 

3)         A suitable diversity plan has been created by the applicant and the following requirements related to the implementation of a diversity plan have been met: the applicant has filed with the Department a diversity plan outlining specific goals for hiring Illinois labor expenditure eligible minority persons and females, as defined in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act, and for using vendors receiving certification under the Business Enterprise for Minorities, Females, and Persons with Disabilities Act; the Department has approved the plan as meeting the requirements established by the Department and verified that the applicant has met or made good faith efforts in achieving those goals; and the Department has adopted any rules that are necessary to ensure compliance with the provisions set forth in this subsection (d)(3) and necessary to require that the applicant's plan reflects the diversity of the population of this State. [35 ILCS 17/10-30(a)(3)]

 

4)         The applicant's accredited theater production application provides a detailed training plan to participate in training, education and recruitment programs that are organized in cooperation with at least one of the following: Illinois colleges and universities; labor organizations; and the holders of accredited theater production certificates.  Training plans are designed to promote and encourage the training and hiring of Illinois residents who represent the diversity of Illinois.  [35 ILCS 17/10-30(a)(4)]

 

5)         The applicant illustrates evidence of a competitive need for credit.  If not for the theater tax credit award, the applicant's accredited theater production would not occur in Illinois, which may be demonstrated by any means, including, but not limited to, evidence that: the applicant, presenter, owner, or licensee of the production rights has other state or international location options at which to present the production and could reasonably and efficiently locate outside of the State;  at least one other state or nation could be considered for the production; the receipt of the theater tax credit award  is a major factor in the decision of the applicant, presenter, production owner or licensee as to where the production will be presented and that without the theater tax credit award the applicant likely would not create or retain jobs in Illinois; or receipt of the theater tax credit award is essential to the applicant's decision to create or retain new jobs in the State. [35 ILCS 17/10-30(a)(5)]  The Department maintains sole discretion to review any information, materials or evidence to determine whether an applicant has established a competitive need for the credit in accordance with the Act.

 

6)         The theater tax credit award will result in an overall positive impact to the State, as determined by the Department using the best available data. [35 ILCS 17/10-30]

 

e)         The applicant is responsible for the accuracy of all data, information and documentation included in the application.  Once submitted, applications shall become the property of the Department.

 

f)         Upon written request, the applicant shall issue any necessary authorization to the appropriate federal, State or local authority for the release of information concerning a production being considered under this Part, including, but not limited to, financial reports and records relating to the applicant or the accredited theater production for which the theater tax credit award is requested.

 

g)         The Department is not responsible for any errors or delays in providing an application denial or approval caused by errors in any of the application information provided by the applicant or by any technical problems beyond the Department's control.

 

h)         Prior to substantive evaluation of an application for an accredited theater production certificate, the Department shall review all applications to determine that all required information and documentation has been provided.  Applicants will be notified, in writing, of any application deficiencies and will be allowed 5 business days to correct those deficiencies through submission of additional documentation. If the applicant successfully cures any deficiencies within the 5-day period, the applicant will keep its numeric place in the queue.  If an applicant does not correct the application deficiencies within 5 business days, then the Department may treat the application as newly submitted for purposes of determining the priority of applications and the applicant will lose its numeric place in the queue.

 

i)          The Department will provide interested applicants with information upon request and also be available via the Department's website. Submittal of an application does not commit the Department to award assistance or to pay any costs incurred by the applicant in the preparation of an application.

 

Section 532.60  Approval/Denial of Accredited Theater Production Certificate

 

a)         The Department reserves the right to make inquiries, to conduct studies and to review information with respect to the application.  The Department also reserves the right to request information from the applicant that is necessary to calculate the amount of the theater tax credit award.

 

b)         The Department reserves the right to reject any application that does not comply with the statutory requirements of the Act and this Part.  Upon receipt of an application, the Department shall review the application for completeness and approve or deny it within 60 days from the date of receipt.  Applications are subject to final approval by the Director of the Department.

 

c)         Applicants shall be notified in writing as to the Department's evaluation of all completed applications.  If the Department denies an application for an accredited theater production certificate, it will specify the reasons for denial in writing. All decisions made by the Department are deemed absolute and not subject to an appeal process.

 

d)         Upon approval of an application, the Department will issue an accredited theater production certificate certifying that the production is an accredited theater production that meets the statutory requirements of the Act and this Part. Each accredited theater production certificate will be assigned a number to establish the applicant's place in the queue for the relevant tax year.

 

e)         When the Department issues an accredited theater production certificate, this certificate does not automatically entitle the applicant to a theater tax credit award.

 

Section 532.70  Request for Theater Tax Credit Award

 

a)         After an applicant has received an accredited theater production certificate, it can request a theater tax credit award from the Department. In accordance with the Act, the theater tax credit award shall only be awarded to an applicant if:

 

1)         The total amount of theater tax credit awards awarded pursuant to the Act has not exceeded the annual fiscal maximum monetary cap amount.

 

2)         The applicant successfully demonstrates to the Department that it complied with its diversity plan or that it made good-faith efforts to comply with its diversity plan.

 

3)         The applicant successfully demonstrates to the Department that it fulfilled its training plan or that it made good-faith efforts to comply with its training plan.

 

b)         An applicant with an accredited theater production certificate shall provide the following with its request for a theater tax credit award:

 

1)         An itemized statement of the Illinois labor expenditures or Illinois production spending for which the credit is claimed and of Illinois labor expenditures generated by the employment of residents of geographic areas of high poverty or high unemployment for which additional credit is claimed;

 

2)         Copies of the books and records of the applicant for the accredited theater production, showing the Illinois labor expenditures or Illinois production spending for which the credit is claimed, and all documentation necessary to support its computation; and

 

3)         Independent Accountant's Report

 

A)        An independent accountant's report, prepared by a licensed certified public accountant, in the form prescribed by the Department, that is supported by the copies of the books, records and other documents of the applicant that are attached to the request. The licensed certified public accountant must attest that he or she has examined the books, records and other documents according to procedures agreed upon by the Department.  The attestation and examination must be performed by a licensed certified public accountant:

 

i)          under the professiona standards established by the Amercian Institute of Certified Public Accountants, specifically the Statements on Standards of Attestation Engagements at AT Sec. 101 (Attest Engagements) and AT Sec. 201 (Agreed-Upon Procedures Engagements); and

 

ii)         whose engagement to provide the attestation was approved by the Department before work on the engagement is commenced.

 

B)        An independent accountant's report must be submitted to the Department within 60 calendar days after the end of the Illinois production run. If the independent accountant's report is not received by the Department, the applicant will forfeit its place in the queue.

 

c)         A request for a theater tax credit award must be made to the Department by March 1 in order to claim a theater tax credit for expenditures in the prior tax year.

 

Section 532.80  Approval/Denial of Theater Tax Credit Award

 

a)         When an applicant submits its request for a theater tax credit award, the Department will review and verify the applicant's final diversity hiring numbers for crew, vendors and talent to determine whether it met the goals outlined in its diversity plan before issuing the theater tax credit award.

 

b)         In the event the applicant fails to meet the goals of its diversity plan, the applicant must then demonstrate it made good-faith efforts to achieve its diversity goals in order to receive a theater tax credit award.  To be considered, the applicant must submit an affidavit attesting to its good-faith efforts.  Good-faith efforts that the Department will consider include, but are not limited to, documentation demonstrating that the applicant communicated (written correspondence, phone call, email, meetings) with minority, female and disabled vendors, applicable unions, and talent and workforce agencies/entities.  The applicant may also submit any other documentation to the Department demonstrating its good-faith attempts.

 

Section 532.90  Calculation of Theater Tax Credit Award

 

a)         The theater tax credit award shall be calculated each tax year based upon the filing by the applicant on forms prescribed by the Department containing information regarding qualifying and quantified Illinois labor expenditures, as defined in Section 10-10 of the Act, net of the limitation in that Section, and Illinois production spending, as defined in Section 10-10, net of the limitation in that Section. From the amount calculated, the applicant shall be entitled to receive a tax credit award of up to:

 

1)         20% of the Illinois labor expenditures for each tax year; plus

 

2)         20% of the Illinois production spending for each tax year; plus

 

3)         15% of the Illinois labor expenditures generated by the employment of Illinois residents in geographic areas of high poverty or high unemployment in each tax year, as determined by the Department. [35 ILCS 17/10-45]

 

b)         The theater tax credit award shall not exceed $500,000 for any accredited theater production.

 

c)         If an accredited theater production receives only a portion of the theater tax credit award to which the Department has determined it is entitled due to the annual fiscal cap on the amount of credits that can be awarded, the accredited theater production shall be eligible to receive the remainder of its credits in the next tax year.  If an accredited theater production does not receive any theater tax credit award due to the annual fiscal cap on the amount of credits that can be awarded, the accredited theater production shall not be entitled to any theater tax credit award in the following tax years.

 

d)         The theater tax credit award shall state the amount of the tax credit award to which the applicant is entitled for that tax year and shall contemporaneously notify the applicant and Illinois Department of Revenue in accordance with Section 222 of the Illinois Income Tax Act [35 ILCS 5/222]. [35 ILCS 17/10-40]

 

Section 532.100  Live Theater Tax Credit Program Evaluation and Report to Illinois General Assembly

 

a)         In determining whether the live theater tax credit program is effective in creating and retaining jobs in Illinois, the Department is responsible for determining the overall success of the program.  Correspondingly, on a quarterly basis, the Department is required to advise the Illinois General Assembly of the live theater tax credit program's economic impact. The Department's evaluation shall include:

 

1)         An assessment of the effectiveness of the program in creating and retaining new jobs in Illinois;

 

2)         An assessment of the revenue impact of the program;

 

3)         In the discretion of the Department, a review of the practices and experiences of other states or nations with similar programs; and

 

4)         An assessment of the overall success of the program. The Department may make a recommendation to extend, modify, or not extend the program based on the evaluation. [35 ILCS 17/10-50]

 

b)         At the end of each fiscal quarter, the Department shall submit to the General Assembly a report that includes, without limitation:

 

1)         An assessment of the economic impact of the program, including the number of jobs created and retained, and whether the job positions are entry level, management, vendor, or production related;

 

2)         The amount of accredited theater production spending brought to Illinois, including the amount of spending and type of Illinois vendors hired in connection with an accredited theater production; and

 

3)         A determination of whether those receiving qualifying Illinois labor expenditure salaries or wages reflect the geographical, racial and ethnic, gender, and income level diversity of the State of Illinois. [35 ILCS 17/10-50(b)]

 

c)         At the end of each fiscal year, the Department shall submit to the General Assembly a report that includes, without limitation:

 

1)         The identification of each vendor that provided goods or services that were included in an accredited theater production's Illinois production spending;

 

2)         A statement of the amount paid to each identified vendor by the accredited theater production and whether the vendor is a minority or female owned business as defined in Section 2 of the Business Enterprise          for Minorities, Females, and Persons with Disabilities Act; and

 

3)         A description of the steps taken by the Department to encourage accredited theater productions to use vendors who are minority or female owned businesses. [35 ILCS 17/10-50(c)]

 

Section 532.110  Transfer of Theater Tax Credit Award

 

a)         A sale, assignment, or transfer of the credit may be made by the taxpayer earning the credit within one year after the credit is awarded in accordance with this Part. [35 ILCS 5/222(c)]

 

b)         For purposes of this Section, a tax credit is earned on the date that the theater tax credit award is issued under Section 532.80.

 

c)         For purposes of this Section, a tax credit earned by a partnership, limited liability company or Subchapter S corporation, the tax credit is allowed to the partners, unit holders, or shareholders in accordance with the determination of income and distributive share of income under sections 702 and 704 and subchapter S of the Internal Revenue Code. [35 ILCS 5/222(b)]

 

d)         The tax credit award may not be carried back. If the amount of the credit exceeds the tax liability for the year, the excess may be carried forward and applied to the tax liability of the 5 years following the excess credit year. The tax credit award shall be applied to the earliest year for which there is a tax liability. If there are credits from more than one tax year that are available to offset liability, the earlier credit shall be applied first.  In no event may a credit under this Section reduce the taxpayer's liability to less than zero. [35 ILCS 5/222(e)]

 

e)         Transfer of a theater tax credit award shall be made as follows:

 

1)         The applicant earning the credit shall request the transfer from the Department, in writing, identifying the transferees (name, tax identification number, mailing address) and the amount to be transferred, and the applicant shall return the theater tax credit award to the Department, together with its transfer request.

 

2)         A request for transfer may be submitted with the applicant's request for the theater tax credit award under Section 532.80, in which case the Department may issue the requested certificates of transfer in lieu of the tax credit award.

 

3)         If the transfer request is timely and meets the requirements of this Section, the Department shall issue a certificate of transfer, identifying the original theater tax credit award and stating the amount of the credit transferred.

 

4)         If the applicant earning the credit transfers less than the full amount of the credit, the Department shall issue a certificate of transfer to the applicant identifying the original theater tax credit award and stating the amount of tax credit retained by the applicant.

 

5)         If the person transferring the credit is a partner or shareholder in a partnership or Subchapter S corporation that earned the credit, that person shall submit to the Department, in lieu of the original theater tax credit award, copies of the tax credit awards and copies of the Schedule K-1-P received by that person from the partnership or Subchapter S corporation stating that person's share of the credit.

 

Section 532.120  Confidentiality of Documents and Record Retention Requirements

 

a)         Any documentary materials or data made available or received from an applicant by any agent or employee of the Department are confidential and are not public records to the extent that the materials or data consist of commercial or financial information regarding the operation of or the production of the applicant or recipient of any tax credit award under the Act. [35 ILCS 17/10-55] The Department will not permit public inspection or copying of any material that is or would be confidential under State law, specifically including the exemptions set forth in the Freedom of Information Act [5 ILCS 140]. 

 

b)         In accordance with the Act, an applicant is required at all times keep proper books and records of accounts relating to the tax credit award, in accordance with generally accepted accounting principles consistently applied, and make, upon reasonable written request by the Department, those books and records available for reasonable Department inspection and audit during the applicant's normal business hours. Any documents or data made available to or received from the applicant by any agent, employee, officer, or service provider to the Department shall be deemed confidential and shall not constitute public records to the extent that the documents or data consist of commercial or financial information regarding the operation by the applicant of any theater or any accredited theater production, or any recipient of any tax credit award under the Act. [35 ILCS 17/10-15(5)]

 

c)         If an applicant submits information it considers to be of a confidential nature as part of its application or request for a tax credit award, that information shall be marked or labeled "CONFIDENTIAL". The applicant shall also submit a statement briefly setting forth the grounds on which that information should be treated as confidential.  The Department, based on the proprietary nature of the material and privacy of the applicant's confidential information, shall not disclose those materials to the public.