TITLE 3 TAXATION
CHAPTER 4 CORPORATE
INCOME TAXES
PART 16 SUSTAINABLE
BUILDING TAX CREDIT FOR RESIDENTIAL BUILDINGS
3.4.16.1 ISSUING AGENCY: Energy,
Minerals and Natural Resources Department.
[3.4.16.1 NMAC - N, 10-31-07]
3.4.16.2 SCOPE: 3.4.16
NMAC applies to the application and certification procedures for administration
of the sustainable building tax credit for sustainable residential buildings.
[3.4.16.2 NMAC - N, 10-31-07]
3.4.16.3 STATUTORY AUTHORITY: 3.4.16 NMAC is established under the authority
of NMSA 1978, Section 7-2A-21 and NMSA 1978, Section 9-1-5.
[3.4.16.3 NMAC - N, 10-31-07]
3.4.16.4 DURATION: Permanent.
[3.4.16.4 NMAC - N, 10-31-07]
3.4.16.5 EFFECTIVE DATE: October
31, 2007, unless a later date is cited at the end of a section.
[3.4.16.5 NMAC - N, 10-31-07]
3.4.16.6 OBJECTIVE: 3.4.16
NMAC’s objective is to establish procedures for administering the program to
issue a certificate of eligibility for the sustainable building tax credit for
sustainable residential buildings.
[3.4.16.6 NMAC - N, 10-31-07]
3.4.16.7 DEFINITIONS:
A. “Annual cap”
means the annual total amount of the sustainable building tax credit available
to taxpayers owning sustainable residential buildings.
B. “Applicant”
means a taxpayer that owns a sustainable residential building in New Mexico and
who desires to have the department issue a certificate of eligibility for a
sustainable building tax credit.
C. “Application
package” means the application documents an applicant submits to the division
to receive a certificate of eligibility for a sustainable building tax credit.
D. “Build green New
Mexico certification” means the verification by a department-approved verifier,
that a building project has met certain prerequisites and performance
benchmarks or credits within each category of the build green New Mexico rating
system resulting in the issuance of a certification document.
E. “Build green New
Mexico rating system” means the certification standards adopted by the homebuilders association of central New Mexico.
F. “Certification”
means build green New Mexico certification, LEED certification or energy star
qualified.
G. “Certificate of
eligibility” means the document, with a unique identifying number that
specifies the amount and taxable year for the approved sustainable building tax
credit.
H. “Certification
level” means one of the following:
(1) LEED-H silver or build green New Mexico silver;
(2) LEED-H gold or build green New Mexico gold; or
(3) LEED-H platinum or
build green New Mexico emerald.
I. “Department”
means the energy, minerals and natural resources department.
J. “Division”
means the department’s energy conservation and management division.
K. “Energy
reduction requirements” means the sustainable residential building has achieved
a HERS index of 60 or lower.
L. “Energy star”
means a joint program of the United States environmental protection agency and
the United States department of energy that qualifies homes based on a
predetermined threshold of energy efficiency.
M. “Energy star
qualified manufactured home” means a home that an in state or out of
state energy star certified plant has
certified as being designed, produced and installed in accordance with energy
star’s guidelines.
N. “HERS” means
home energy rating system as developed by RESNET.
O. “HERS index”
means a relative energy use index, where 100 represents the energy use of a
home built to a HERS reference house and zero indicates that the proposed home
uses no net purchased energy.
P. “LEED” means the
most current leadership in energy and environmental design green building
rating system guidelines the U. S. green building council developed and
adopted.
Q. “LEED
certification” means the verification by the U. S. green building council, or a
department-approved verifier, that a building project has met certain
prerequisites and performance benchmarks or credits within each category of the
LEED-H rating system resulting in the issuance of a certification document.
R. “LEED-H” means
the LEED rating system for homes.
S. “Manufactured housing” means a multisectioned home that is:
(1) a manufactured home or modular home;
(2) a single-family dwelling with a heated area of at least thirty-six feet by twenty feet and a total area of at least eight-hundred sixty-four square feet;
(3) constructed in a factory to the standards of the United States department of housing and urban development, the National Manufactured Housing Construction and Safety Standards Act of 1974 and the housing and urban development zone code 2 or New Mexico construction codes up to the date of the unit’s construction; and
(4)
installed consistent with the Manufactured Housing Act and rules adopted
pursuant to that act relating to permanent foundations.
T. “Person” does not include state, local government, public school district or tribal agencies.
U. “Qualified occupied square footage” means the occupied spaces of the building as determined by:
(1) the United States green building council for those buildings obtaining LEED certification;
(2) the administrators of the build green New Mexico rating system for those homes obtaining build green New Mexico certification; or
(3) the United States environmental protection agency for energy star certified manufactured homes.
V. “Rating system”
means the LEED-H rating system, the build green New Mexico rating system or the
energy star program for manufactured housing.
W. “RESNET” means
the residential energy services network, an industry not-for-profit membership
corporation and national standards making body for building energy efficiency
rating systems.
X. “Solar market
development tax credit” means the personal income tax credit the state of New
Mexico issues to a taxpayer for a solar energy system the department has
certified.
Y. “Sustainable
building tax credit” means the corporate income tax credit the state of New
Mexico issues to an applicant for a sustainable residential building.
Z. “Sustainable
residential building” means:
(1) a
building used as a single-family residence that meets the energy reduction
requirements and has been awarded:
(a)
LEED-H certification at the certification level of silver, gold or
platinum; or
(b)
build green New Mexico certification at the
gold certification level; or
(2) an
energy star qualified manufactured home.
AA. “Taxable year” means the calendar year or fiscal year upon
the basis of which the net income is computed under the Corporate Income and
Franchise Tax Act, NMSA 1978, 7-2A-1 et
seq.
BB. “Taxpayer” means a corporation subject to the taxes imposed
by the Corporate Income and Franchise Tax Act, NMSA 1978, Section 7-2A-1 et seq.
CC. “Tribal” means of, belonging to or created by a federally recognized Indian nation, tribe or pueblo.
DD. “Verifier” means
an entity the department approves to provide certifications for homes under the
build green New Mexico or LEED-H rating systems.
[3.4.16.7 NMAC - N,
10-31-07; A, 1-1-14]
3.4.16.8 GENERAL
PROVISIONS:
A. A person is the owner of a building in New Mexico that has been constructed, renovated or manufactured to be a sustainable residential building and that receives certification on or after January 1, 2007 may receive a certificate of eligibility for a sustainable building tax credit. A subsequent purchaser of a sustainable residential building may receive a certificate if no tax credit has previously been claimed for the building.
B. The annual total
amount of the sustainable building tax credit available to taxpayers owning
sustainable residential buildings is limited to $4,000,000. When
the $4,000,000 cap for
sustainable residential buildings is reached, based on all certificates of
eligibility the department has issued, the department shall:
(1) if part of the
eligible sustainable building tax credit is within the annual cap and part is
over the annual cap, issue a certificate of eligibility for the amount under
the annual cap for the applicable tax year and issue a certificate of
eligibility for the balance for the subsequent tax year; or
(2) the department may issue certificates of eligibility to applicants who meet the requirements for the sustainable residential buildings tax credit in a taxable year when applications for the sustainable residential buildings tax credit exceed the annual cap and applications for the sustainable commercial buildings tax credit are under the annual cap for commercial buildings by April 30 of any year in which the tax credit is in effect; or
(3) if
no sustainable building tax credit funds are available, issue a certificate of
eligibility for the next subsequent tax year in which funds are available,
except for the last taxable year when the sustainable building tax credit is in
effect.
C. No more than
$1,250,000 of the $4,000,000 annual
cap is for manufactured housing.
D. In the event of
a discrepancy between a requirement of 3.4.16 NMAC and an existing New Mexico
taxation and revenue department rule promulgated before 3.4.16 NMAC’s adoption,
the existing rule governs.
[3.4.16.8 NMAC - N,
10-31-07; A, 1-1-14]
3.4.16.9 VERIFIER ELIGIBILITY:
A. The division
reviews the qualifications for verifiers of the build green New Mexico or
LEED-H certifications based on the following criteria:
(1) the
verifier is independent from the homebuilders or homeowners that may apply for
certification;
(2) the
verifier has adequate staff and expertise to provide certification services, including:
(a)
experience in green home building services;
(b)
ability to enlist and serve builders and
provide training, consulting and other guidance as necessary;
(c) a method of
auditing the certification process to maintain adequate stringency; and
(d)
ability to administer the program and report on
the certifications, audits and other relevant information the department may
request; and
(3) the
verifier can identify the geographic area being served; and
(4) the
verifier provides a statement that expresses a commitment to promoting
energy-efficient green building with the highest standard of excellence.
B. The department
approves verifiers after an entity submits a written request to the department
that includes documentation on how the entity meets the required criteria. The department notifies the entity of the
reasons for disapproving eligibility.
C. The verifier
shall notify the division 30 calendar days prior to making changes to its
certification process or rating systems.
D. The department
may rescind an existing verifier’s approval, if it determines that the above
criteria are not being met.
(1) The division shall notify the verifier of
the proposed rescission in writing. The
verifier has the right to request in writing review of the decision to rescind
the verifier’s approval. The verifier
shall file a request for review within 20 calendar days after the division’s
notice is sent. The verifier shall
address the request to the division director and include the reasons that the
department should not rescind the verifier’s approval. The director shall consider the request. The division director may hold a hearing and
appoint a hearing officer to conduct the hearing. The division director shall send a final
decision to the verifier within 20 calendar days after receiving the request or
the date the hearing is held.
(2) The verifier may
appeal in writing to the department’s secretary a division director’s
decision. The notice of appeal shall
include the reasons that the secretary should overturn the division director’s
decision. The secretary shall consider
any appeal from a division director’s decision.
The verifier shall file the appeal and the reasons for the appeal with
the secretary within 14 calendar days of the division director’s issuance of
the decision. The secretary may hold a
hearing and appoint a hearing officer to conduct the hearing. The secretary shall send a final decision to
the verifier within 20 calendar days after receiving the request or the date
the hearing concludes.
[3.4.16.9 NMAC - N,
10-31-07]
3.4.16.10 APPLICATION
FOR THE SUSTAINABLE BUILDING TAX CREDIT:
A. In order to
obtain the sustainable building tax credit, a taxpayer shall apply for a
certificate of eligibility with the division on a division-developed form. An applicant may obtain an application form
from the division.
B. An application
package shall include a completed application form and attachments as specified
on the application form. The applicant
shall submit the application form and required attachments at the same time. An applicant shall submit one application
form for each sustainable residential building.
The applicant shall submit all material submitted in the application
package on 8½ inch by 11 inch paper. If
the applicant fails to submit the application form and required attachments at
the same time or on 8½ inch by 11 inch paper the division may consider the
application incomplete.
C. The completed
application form shall consist of the following information:
(1) the
applicant’s name, mailing address, telephone number and taxpayer identification
number;
(2) the
name of the applicant’s authorized representative;
(3) the
ending date of the applicant’s taxable year;
(4) the
address of the sustainable residential building, including the property’s legal
description;
(5) whether
the applicant was the building owner at time of certification or a subsequent
purchaser;
(6) the
qualified occupied square footage of the sustainable residential building;
(7) the
rating system under which the sustainable residential building was certified;
(8) the
certification level achieved, if applicable;
(9) the
HERS index;
(10) the
date of rating system certification;
(11) a
statement signed and dated by the applicant, which may be a form of electronic
signature if approved by the department, agreeing that:
(a)
all information provided in the application
package is true and correct to the best of the applicant’s knowledge under
penalty of perjury;
(b)
applicant has read the requirements contained
in 3.4.16 NMAC;
(c)
if an onsite solar system is used to meet the requirements of either the
rating system certification level applied for in the sustainable building tax
credit or the energy reduction requirement achieved, the applicant has not
applied for and will not apply for a solar market development tax credit;
(d)
applicant understands that there are annual
caps for the sustainable building tax credit;
(e)
applicant understands that the division must
verify the documentation submitted in the application package before the
department issues a certificate of eligibility for a sustainable building tax
credit; and
(f) applicant understands
that the department issues a certificate of eligibility for the taxable year in
which the sustainable residential building was certified or, if the sustainable
building tax credit’s annual cap has been reached, for the next taxable year in
which funds are available; and
(12) a
project number the division assigns to the tax credit application.
D. In addition to
the application form, the application package shall consist of the following
information provided as attachments:
(1) a copy of a deed,
property tax bill or ground lease in the applicant’s name as of or after the
date of certification for the address or legal description of the sustainable
residential building;
(2) a
copy of the rating system certification form;
(3) a
copy of the final certification review checklist that shows the points
achieved, if applicable;
(4) a copy of a HERS
certificate, from a RESNET (or a rating network that has the same standards as
RESNET) accredited HERS provider, using software the internal revenue service
lists as eligible for certification of the federal tax credit, showing the
building has achieved a HERS index of sixty or lower; and
(5) other
information the department needs to review the building project for the
sustainable building tax credit.
[3.4.16.10 NMAC - N,
10-31-07; A, 1-1-14]
3.4.16.11 APPLICATION
REVIEW PROCESS:
A. The department
considers applications in the order received, according to the day they are
received, but not the time of day.
B. The department
approves or disapproves an application package following the receipt of the
complete application package. The
department disapproves an application that is not complete or correct. The department’s disapproval letter shall
state the reasons why the department disapproved the application. The applicant may resubmit the application
package for the disapproved project. The
division places the resubmitted application in the review schedule as if it
were a new application.
C. The division
reviews the application package to calculate the maximum sustainable building
tax credit, check accuracy of the applicant’s documentation and determine
whether the department issues a certificate of eligibility for the sustainable
building tax credit.
D. If an onsite
solar system is used to meet the requirements of either the certification level
applied for in the sustainable building tax credit or the energy reduction
requirement achieved, the division verifies that no person has applied for a
solar market development tax credit for that solar system. If the division finds that a solar market
development tax credit has been approved for that solar system, the division
shall disapprove the application for the sustainable building tax credit. The applicant may submit a revised
application package to the division. The
division places the resubmitted application in the review schedule as if it
were a new application.
E. If the division
finds that the application package meets the requirements and a sustainable
building tax credit is available, the department issues the certificate of
eligibility for a sustainable building tax credit. If a sustainable building tax credit is
partially available or not available, the department issues a certificate of
eligibility for any amount that is available and a certificate of eligibility
for the balance for the next taxable year, until the last taxable year when the
sustainable building tax credit is in effect.
The notification shall include the taxpayer’s contact information,
taxpayer identification number, certificate of eligibility number or numbers, the
rating system certification level awarded to the building, the amount of
qualified occupied square footage in the building, the sustainable building tax
credit amount or amounts and the sustainable building tax credit’s taxable year
or years.
[3.4.16.11 NMAC - N,
10-31-07; A, 1-1-14]
3.4.16.12 CALCULATING
THE TAX CREDIT:
A. The division
calculates the sustainable building tax credit based on the qualified occupied
square footage of the sustainable residential building, the rating system under
which the applicant achieved certification and the certification level the
applicant achieved. The tax credit for
various square footages is specified in the chart below:
LEED-H silver or build green New Mexico silver: |
|
first 2,000 square feet |
equals the qualified square footage less than or equal to 2,000 multiplied by $5.00; plus |
next 1,000 square feet |
the qualified square footage greater than 2,000 and less than or equal to 3,000 multiplied by $2.50 |
LEED-H gold or build green New Mexico gold: |
|
first 2,000 square feet |
equals the qualified square footage less than or equal to 2,000 multiplied by $6.85; plus |
next 1,000 square feet |
the qualified square footage greater than 2,000 and less than or equal to 3,000 multiplied by $3.40 |
LEED-H platinum or build green New Mexico emerald: |
|
first 2,000 square feet |
equals the qualified square footage less than or equal to 2,000 multiplied by $9.00; plus |
next 1,000 square feet |
the qualified square footage greater than 2,000 and less than or equal to 3,000 multiplied by $4.45 |
energy star manufactured housing: |
|
up to 3,000 square feet |
equals the qualified square footage less than or equal to 3,000 multiplied by $3.00. |
B. An applicant may
receive both a sustainable building tax credit and a federal tax credit if the
applicant is eligible for each tax credit.
C. The taxation and
revenue department makes the final determination of the amount of the
sustainable building tax credit.
[3.4.16.12 NMAC - N,
10-31-07; A, 1-1-14]
3.4.16.13 CLAIMING
THE STATE TAX CREDIT:
A. To claim the
sustainable building tax credit, an applicant shall submit all certificates of
eligibility to the taxation and revenue department within 30 days of the
department’s issuance, along with a completed form provided by the taxation and
revenue department, and any other information the taxation and revenue
department requires.
B. If
the amount of the sustainable building tax credit the applicant claims exceeds
the applicant’s income tax liability, the applicant may carry the excess
forward for up to seven consecutive taxable years.
C. A taxpayer claiming a sustainable building tax credit shall not claim a tax credit pursuant to another law for the same sustainable residential building unless the other tax credit is applicable to systems that are unrelated to the sustainable building tax credit. In addition, a taxpayer claiming the sustainable building tax credit shall not claim the credit for the same sustainable building under both the Income Tax Act and the Corporate Income and Franchise Tax Act.
[3.4.16.13 NMAC - N,
10-31-07; A, 1-1-14]
HISTORY OF 3.4.16 NMAC:
[RESERVED]