PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 3. TAX ADMINISTRATION
SUBCHAPTER GG. INSURANCE TAX
34 TAC §3.833
The Comptroller of Public Accounts adopts an amendment to §3.833, concerning Certified Capital Companies and Certified Investor Premium Tax Credits, pursuant to the Insurance Code, Article 4.51, with changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9577). House Bill 1741, 80th Legislature, 2007, adds low-income community businesses as an investment target for CAPCO's, allows an additional $200 million in investment credits and defines "Program One" and "Program Two" investment phases.
The Comptroller received comments from various groups. Following is a summary of the comments received and the responses.
Scott Crist of Texas Ventures ATFV II expressed support for the existing tax credit transfer process and procedures as outlined in subsection (g) and indicated that the current process should not be altered. He believes that the current system allows for diversity and flexibility and encourages more job creation by getting investment to more companies allowing more insurance companies to participate in the program. The comptroller agrees and no changes were made to subsection (g).
William Owens of Stonehenge Capital Fund Texas II LP and Talmadge Singer with Texas ACP II had previously contacted our office after reviewing a draft of proposed section and recommended that the tax credit dates referenced in subsection (g) be corrected to conform to the statute. The error was corrected before the proposed amendment was filed with the Texas Register.
Michael Korengold of Enhanced Capital Texas Fund II, LLC expresses his concern over Article 4.68(e) and subsection (g)(5)(B) which limits the amount of tax credits that a single insurance company and its affiliates may request to $30,000,000 and he requests a change to subsection (g)(5)(B) to restrict the transferability of tax credits. The comptroller disagrees with this comment. The statute allows for the transferability of tax credits. No change will be made.
Michael Johnson of Texas ACP II LP expresses concern over Article 4.68(e) and subsection (g)(5) which limits the amount that a single insurance company (in aggregate with its affiliates) may request to $30,000,000. The comptroller disagrees with this comment. The statute allows for the transferability of tax credits. No change will be made.
Talmadge Singer with Texas ACP II suggests a change to subsection (a)(11) regarding the definition of low-income community business. The comptroller disagrees with this comment. IRS Code 1986 45D(e) is more than sufficient to define low-income community business.
Talmadge Singer with Texas ACP II suggests a change to subsection (a)(15) which defines principal business operations. The comptroller disagrees with this comment. Principal business operations shall continue to be defined within the context of the residency of businesses employees.
Talmadge Singer with Texas ACP II suggests changes to subsection (a)(19)(F)(iii) eliminating the business of financial services. The comptroller agrees with this comment and has amended subsection (a)(19)(F)(iii) accordingly.
Talmadge Singer with Texas ACP II suggests a change to subsection (g)(5) that clarifies that the maximum request for premium tax credits by any one individual certified investor applies to each of Program One and Program Two. The comptroller agrees with this comment and has amended subsection (g)(5) accordingly.
Talmadge Singer with Texas ACP II suggests a change to subsection (g)(6) that clarifies that $200 million in total credits are available under each of Program One and Program Two for a total of $400 million available credits. The comptroller agrees with this comment and has amended subsection (g)(6) accordingly.
Talmadge Singer with Texas ACP II suggests that a CAPCO should operate independent of other CAPCO's, including an affiliate, that has raised certified capital under a different program. He suggests adding a new subsection (m) to address requiring CAPCO's to operate independently of each other. The comptroller disagrees as this request is outside the bounds of the statute.
Additional edits were performed by the comptroller for purposes of clarification primarily to delineate Program One from Program Two.
Subsection (d)(4)(A) and (B) were modified to reflect the fact that a CAPCO can have more than one allocation date.
Subsection (f)(6) was modified to separate Program One from Program Two with respect to deploying 100% of a CAPCO's certified capital.
Subsection (g)(3) was modified to separate Program One from Program Two with respect to the due dates for the premium tax credit allocation forms.
This amendment is adopted under Tax Code, §111.002 and §111.0022 which provide the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of Tax Code, Title 2, and under Insurance Code, Article 4.51, which requires the comptroller to adopt rules to administer and implement Insurance Code, Chapter 4, Subchapter B.
The amendment implements Texas Insurance Code, Chapter 4, Subchapter B.
§3.833.Certified Capital Companies and Certified Investor Premium Tax Credits.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Administrator means the Comptroller of Public Accounts for the State of Texas.
(2) Affiliate means:
(A) a person who is an affiliate for purposes of Insurance Code, Article 823.003;
(B) a person who directly or indirectly:
(i) beneficially owns 10% or more of the outstanding voting securities or other voting or management interests of another person, whether through rights, options, convertible interests, or otherwise; or
(ii) controls or holds power to vote 10% or more of the outstanding voting securities or other voting or management interests of the other person;
(C) a person 10% or more of which the outstanding voting securities or other voting or management interests are directly or indirectly:
(i) beneficially owned by the other person, whether through rights, options, convertible interests, or otherwise; or
(ii) controlled or held with power to vote by the other person;
(D) a partnership in which the other person is a general partner; or
(E) an officer, director, employee, or agent of the other person, or an immediate family member of the officer, director, employee, or agent of the other person.
(3) Allocation date means the date on which the comptroller allocates premium tax credits to certified investors of a CAPCO under this section, except that in the case of a pro rata reallocation pursuant to subsection (g)(7)(B)(ii) of this section, the allocation date shall be the date of the reallocation.
(4) CAPCO means a certified capital company as defined herein.
(5) Certified capital means an investment of cash by a certified investor in a CAPCO that fully funds the purchase price of an equity interest in the company or a qualified debt instrument issued by the CAPCO.
(6) Certified capital company means a partnership, corporation, trust, or limited liability company, whether organized on a profit or not-for-profit basis, that is in good standing with the State of Texas, is headquartered in Texas and has as its primary business activity the investment of cash in qualified businesses and that is certified as meeting the criteria of this section.
(7) Certified investor means an insurance company or health maintenance organization licensed by the Texas Department of Insurance or other person that has state premium tax liability under Insurance Code, Chapter 4, or a successor statute, that invests certified capital pursuant to an allocation of premium tax credits under this section.
(8) Early stage business means a qualified business that satisfies at least one of the following criteria:
(A) is involved, at the time of a CAPCO's first investment, in activities related to the development of initial product or service offerings, such as prototype development or establishment of initial production or service processes;
(B) was initially organized less than two years before the date of the CAPCO's first investment; or
(C) during the fiscal year immediately preceding the year of the CAPCO's first investment had, on a consolidated basis with its affiliates, gross revenues of not more than $2 million as determined in accordance with generally accepted accounting principles.
(9) Headquartered in Texas means the following requirements, at a minimum, are met with respect to Texas CAPCOs:
(A) the CAPCO has its principal office in Texas for operations covered under this section, in which the main investment and administrative functions of the CAPCO are conducted;
(B) the original principal books and records of the CAPCO are maintained in the Texas principal office; and
(C) a minimum of 80% of the CAPCO's expenses are spent in Texas including management fees, and administrative costs including but not limited to organizational fees, but for the purposes of this subparagraph, expenses do not include underwriting fees; closing costs (including rating agency fees, and other fees related to the closing of the CAPCO's funding); fees related to any insurance issued for a qualified debt instrument or associated premium tax credits; interest payments on indebtedness; and other expenses for services that the CAPCO demonstrates cannot be reasonably obtained in Texas.
(10) Initially organized means the date that an entity's organizational documents were first accepted as filed by the appropriate official in the state of its incorporation or organization, as applicable, or, in the case of an entity that is not required to file its organizational documents with any state official, the date on which its members, partners, or owners, as applicable, originally executed the entity's organizational documents.
(11) Low-income community has the meaning assigned by Internal Revenue Code of 1986, §45D(e).
(12) Person means a natural person or entity, including a corporation, general or limited partnership, trust, or a limited liability company.
(13) Premium tax credit allocation claim means a claim for allocation of Texas premium tax credits on a form provided by the comptroller.
(14) Primary or primarily under this section means at least 80%.
(15) Principal business operations means at least 80% of the business organization's employees reside in Texas or 80% of the business payroll is paid to individuals living in Texas.
(16) Principal office means the location in Texas that is the primary place for investment functions of the CAPCO and the principal location for books and records of the CAPCO.
(17) Program One means the program for allocation and investment of certified capital under this chapter before January 1, 2007.
(18) Program Two means that program for allocation and investment of certified capital on or after January 1, 2007.
(19) Qualified business means a business that, at the time of a CAPCO's first investment in the business:
(A) is headquartered in Texas or relocates its headquarters and principal business operations to Texas within 90 days, and based on an affidavit by an officer or owner of the business, that it intends to remain in Texas after receipt of an investment by the CAPCO;
(B) has its principal business operations in Texas or relocates its principal business operations to Texas within 90 days, and based on a copy of its business plan or other evidence of domicile, intends to maintain business operations in Texas after receipt of an investment by the CAPCO;
(C) has agreed to use the qualified investment primarily:
(i) to support its principal business operations in Texas, other than for advertising, promotion, and sales operations, which may be conducted outside of Texas; or
(ii) in the case of a start-up company, to establish and support business operations in Texas as evidenced by an affidavit of an officer or owner of the business, other than for advertising, promotion, and sales operations, which may be conducted outside of Texas;
(D) does not have more than 100 employees either full-time or part-time employees, as evidenced by official state or federal employment tax returns or an affidavit signed by an owner or director of the business and:
(i) at least 80% of its employees reside in Texas; or
(ii) pays 80% of its payroll to Texas residents;
(E) is primarily engaged in:
(i) manufacturing, processing, or assembling products;
(ii) conducting research and development; or
(iii) providing services;
(F) does not incur more than 20% of its expenses and does not receive more than 20% of its income from:
(i) retail sales;
(ii) real estate development;
(iii) insurance, banking, leasing or lending; or
(iv) the provision of professional services provided by accountants, attorneys, or physicians;
(G) is not or does not:
(i) formed or organized, directly or indirectly, by a CAPCO or an affiliate of the CAPCO as evidenced by a capitalization table prior to the initial investment and a post transaction proforma capitalization table;
(ii) a franchisee of a CAPCO; or
(iii) an affiliate of the CAPCO; or
(iv) have any financial relationship with a CAPCO before the date on which the CAPCO makes its first investment in such business.
(20) Qualified debt instrument means a debt instrument issued by a CAPCO, at par value or a premium that:
(A) has an original maturity date of at least five years after the date of issuance;
(B) has a repayment schedule that is not faster than a level principal amortization over five years, including payments of cash and tax credits. A repayment schedule is not faster than a level principal amortization over five years if the repayment schedule for the debt instrument issued by the CAPCO has a scheduled outstanding principal balance greater than a hypothetical note with the same price and yield as the CAPCO's debt instrument that provides for principal to be amortized over equal, consecutive daily payments, where payments are first allocated to accrued interest and then to principal, however, a certified investor may receive payments at any time for future earned interest, provided the amount received does not exceed the present value of that future interest payment, discounted by a factor that is not less than the stated interest rate of the debt instrument.
(C) Has no interest, distribution, or payment features that are related to the profitability of the CAPCO or the performance of the CAPCO's investment portfolio.
(21) Qualified distribution means any distribution or payment from certified capital, the return of capital from qualified investments, or the profits earned thereon by a CAPCO in connection with:
(A) the reasonable costs and expenses of forming, syndicating, managing, and operating the CAPCO, provided that the distribution or payment is not made directly or indirectly to a certified investor or an affiliate of a certified investor, including:
(i) the reasonable costs and expenses of forming, syndicating, or organizing the CAPCO, so long as these costs;
(I) shall be limited to the greater of;
(-a-) $250,000; or
(-b-) 5.0% of the amount of certified capital the CAPCO initially received as investment from its certified investors; or
(-c-) $1,500,000; and
(II) provided that at the time the CAPCO closes its investment from its certified investors and after deducting the aggregate of the costs of organizing, forming, syndicating, insuring and defeasing the obligations, the CAPCO must have available for qualified investments, cash and/or permissible investments in an amount equal to at least 50% of the amount of certified capital initially received from its certified investors.
(ii) reasonable and necessary fees paid for professional services, including legal and accounting services, related to the operation of the company are limited to 1.0% in any calendar year of the amount of certified capital the CAPCO initially received as investment from its certified investors; and
(iii) an annual management fee in an amount that does not exceed 2.5% of the certified capital of the company;
(B) any projected increase in federal income or state taxes based on income or imputed income of the CAPCO, including penalties and interest related to those taxes, of the equity owners of the CAPCO resulting from the earnings or other tax liability of the CAPCO to the extent that the increase is related to the ownership, management, or operation of the CAPCO in Texas.
(22) Qualified investment means the investment of cash by a CAPCO in a qualified business for the purchase of any debt, debt participation, equity, or hybrid security of any nature or description, including a debt instrument or security that has the characteristics of debt, but that provides for conversion into equity or equity participation instruments such as options or warrants; provided that the investment must not have a final stated maturity or be subject to mandatory redemption or repurchase prior to two years from the date of initial investment and, provided further, that not more than 50% is used to refinance existing non-CAPCO debt. Notwithstanding the foregoing, a qualified investment shall not include an investment that results, or could result, in a CAPCO owning 50% or more of the voting or non-voting stock of a qualified business as evidenced by a proforma capitalization table presented to the administrator, unless:
(A) such ownership is the result of:
(i) the CAPCO's exercise of its rights and remedies following a default in the obligations of the qualified business;
(ii) the CAPCO's exercise of preemptive rights granted to it in connection with its initial investment in a qualified business, provided such rights are exercised in connection with an investment in such qualified business by a party other than the CAPCO or an affiliate of the CAPCO;
(iii) the operation of any anti-dilution rights granted to a CAPCO in connection with its initial investment in a qualified business; or
(B) such investment is approved by the comptroller prior to its being made.
(23) State premium tax liability means:
(A) any gross insurance premium tax or health maintenance organization gross receipts tax liability incurred by any person under Insurance Code, Chapter 4; or
(B) if the gross premium tax liability imposed under Insurance Code, Chapter 4, on January 1, 2003, is eliminated or reduced, any substitute tax liability imposed on an insurance company or other person that had premium tax liability or health maintenance organization gross receipts tax liability under the Insurance Code on that date.
(24) Strategic investment area means an area of Texas that qualifies at the time of investment as a strategic investment area under Tax Code, Chapter 171, Subchapter O, or after the expiration of that subchapter, an area that qualified as a strategic investment area under that subchapter immediately before its expiration.
(25) Strategic investment business means a qualified business that has its principal business operations located in one or more strategic investment areas and that intends to maintain business operations in the strategic investment areas after receipt of an investment by the CAPCO as documented in the business plan or other business records that were generated at or before the time of the investment.
(b) Application Process. Any entity that seeks to operate in Texas as a CAPCO under the provisions of the Insurance Code shall comply with the application procedures set forth in this section.
(1) An applicant must file with the comptroller the following:
(A) a completed Application for Certification on a form provided by the comptroller,
(B) a nonrefundable application fee of $7,500;
(C) an audited balance sheet with an unqualified opinion from an independent certified public accountant and any Statement of Auditing Standard No. 61 communications provided by the auditor, as of a date not more than 35 days before the date of application;
(D) documentation that the prospective CAPCO is duly organized and qualified to do business in Texas;
(E) evidence of an equity capitalization of at least $500,000 in the form of unencumbered cash or cash equivalents;
(F) evidence that at least two principals or persons employed or engaged to manage the funds of the applicant have at least four years of experience in the venture capital industry;
(G) a commitment that if certified, the CAPCO will establish in Texas its headquarters within 60 days of certification; and
(H) biographical, personal, financial, investment, and historical data for each manager, principal, and the entity itself that provides the following, as applicable:
(i) prior venture capital firms with which the manager or principal was employed that specifically includes details on:
(I) the valuation of portfolio investments, including the manager or principal's ability to structure and execute timely and effective exits from portfolio investments;
(II) historical investment performance of prior firms managed by the same managers or principals;
(III) historical performance of the CAPCO and each of the managers or principals identified in subparagraph (F) of this paragraph, relating to investments in early stage businesses;
(IV) the investment philosophy of the firm;
(V) the history and strategy of the CAPCO and its managers or principals for obtaining investors and making investments, particularly in the targeted areas of early stage businesses and strategic investment businesses, low-income community businesses or comparable targeted early stage investments or investments in the underserved areas in Texas or other states;
(VI) disclosure of any fines, penalties, or other sanctions or actions by any state, federal, or other regulatory entity, including the Securities and Exchange Commission against the CAPCO or its managers or principals, relating to violations of any type; and
(VII) a five-year business plan, which shall include the applicant's investment strategy and investment criteria and which must comply with the requirements of subsection (a)(18) of this section with respect to qualified investments in qualified businesses. If the comptroller determines that an applicant's investment strategy or investment criteria would not effectively further economic development in Texas the applicant's certification may be denied.
(ii) any other information that the comptroller may later request to determine the quality of the firm's management, reputation, code of ethics, investment strategy, and practices.
(2) Any false, inaccurate, or misleading information provided in the application may be grounds for rejection of the application and denial of further consideration, as well as decertification, if the information, discovered at a subsequent date, would have resulted in the denial of the certification. The applicant shall also notify the comptroller as soon as possible or within 10 business days of the following:
(A) when the applicant is unable to continue as a viable going concern; and
(B) when the applicant is subject to litigation that may affect its viability as a going concern.
(3)Management by certain entities prohibited. An insurance company, group of insurance companies, or other persons who may have state premium tax liability or the affiliates of the insurance companies or other persons may not, directly or indirectly:
(A)manage a CAPCO;
(B) beneficially own, whether through rights, options, convertible interest, or otherwise, more than 10% of the outstanding voting securities of a CAPCO; or
(C) control the direction of investments for a CAPCO.
(4) Paragraph (3) of this subsection applies without regard to whether the insurance company or other person or the affiliate of the insurance company or other person is licensed by or transacts business in Texas.
(5) Paragraphs (3) and (4) of this subsection do not preclude a certified investor, insurance company, or any other party from exercising its legal rights and remedies, including interim management of a CAPCO, if authorized by law, with respect to a CAPCO that is in default of its statutory or contractual obligations to the certified investor, insurance company, or other party.
(6) The date of receipt of an application is the postmark date or the date of the independent delivery. Incomplete applications shall be treated as not received. All submissions to the comptroller may be either by hand delivery or via overnight common carrier to the attention of CAPCO Administrator, Texas Treasury Safekeeping Trust Company, 208 E. 10th Street, Austin, Texas 78701.
(7) The comptroller shall review the application and all required documents to ensure that the applicant satisfies the requirements for certification as a CAPCO. Within 30 days of the date of receipt of an application the comptroller shall:
(A) issue the certification; or
(B) refuse to issue the certification and provide to the applicant the grounds for the refusal, including suggestions for the removal of those grounds. The comptroller shall have 10 business days from the day that the additional information was submitted to approve or reject the application and certification request.
(c) Offering material used by a CAPCO. Any offering material involving the sale of securities of a CAPCO must include the following statement: BY AUTHORIZING THE FORMATION OF A CERTIFIED CAPITAL COMPANY, THE STATE OF TEXAS DOES NOT ENDORSE THE QUALITY OF MANAGEMENT OR THE POTENTIAL FOR EARNINGS OF THE COMPANY AND IS NOT LIABLE FOR DAMAGES OR LOSSES TO A CERTIFIED INVESTOR IN THE COMPANY. USE OF THE WORD "CERTIFIED" IN AN OFFERING DOES NOT CONSTITUTE A RECOMMENDATION OR ENDORSEMENT OF THE INVESTMENT BY THE COMPTROLLER OF PUBLIC ACCOUNTS. IF APPLICABLE PROVISIONS OF LAW ARE VIOLATED, THE STATE OF TEXAS MAY REQUIRE FORFEITURE OF UNUSED PREMIUM TAX CREDITS AND REPAYMENTS OF USED PREMIUM TAX CREDITS.
(d) Requirements for renewal and continuance of certification. A CAPCO must comply with the requirements for renewal and continuance of certification set forth in this subsection.
(1) Each CAPCO shall pay a nonrefundable renewal fee of $5,000 to the comptroller not later than January 31 of each year, except that a renewal fee is not required within six months of the date on which the certification is issued.
(2) If a CAPCO fails to pay its renewal fee on or before January 31 of each year, the company must pay, in addition to the renewal fee, a late fee of $5,000 to continue its certification.
(3) If a CAPCO fails to pay the renewal fee and late fee as stated in paragraph (2) of this subsection within 60 days after January 31, the CAPCO shall be subject to decertification.
(4) To continue to be certified, a CAPCO must make qualified investments of certified capital received from certified investors, with respect to Program One and Program Two, according to the following schedule:
(A) before the third anniversary of its allocation date, a CAPCO must have made qualified investments in an amount cumulatively equal to at least 30% of the certified capital allocated on such date; and
(B) before the fifth anniversary of its allocation date, a CAPCO must have made qualified investments in an amount cumulatively equal to at least 50% of the certified capital allocated on such date, subject to the following:
(i) at least 50% of the dollar amount of qualified investments required in subparagraph (B) of this paragraph must be placed in early stage businesses; and
(ii) at least 30% of the dollar amount of qualified investments required in subparagraphs (A) and (B) of this paragraph must be placed in strategic investment and/or low income community businesses.
(5) The aggregate cumulative amount of all qualified investments made by the CAPCO after its allocation date shall be considered in the computation of the percentage requirements in paragraph (4) of this subsection, subsection (i) of this section, and any other applicable provisions in this section. Any investment returns or profits received by the CAPCO from a qualified investment may be invested in another qualified investment and counted towards any requirement in this section with respect to investments of certified capital.
(6) Any amounts received by a certified capital company from a qualified business as commitment fees, closing fees, license fees, royalties or similar charges shall be considered as reductions in the CAPCO's qualified investments in the computation of the percentage requirements in paragraph (4) of this subsection, subsection (i) of this section, and any other applicable provisions in this section.
(7) A business that is classified as a qualified business, early stage business, or strategic investment business or low-income community business at the time that the CAPCO first invests in the business remains classified as a qualified business, early stage business, or strategic investment business or low-income community business. The business may receive follow-on investments from any CAPCO, even though the qualified business may not meet the definition of a qualified business, early stage business, or strategic investment business, low income community business as applicable, at the time of the follow-on investment, unless the qualified business no longer has its principle business operations in Texas. Investment in the qualified business by another CAPCO retains the qualified business' original classification.
(8) A CAPCO may not make a qualified investment the cost of which is greater than 15% of the total certified capital of the CAPCO at the time of investment.
(9) A CAPCO shall invest any certified capital not invested in qualified investments only in the following, provided however, that any such investments are not assigned, pledged, restricted, or otherwise encumbered for the benefit of an affiliate of a CAPCO:
(A) cash deposited with a federally insured financial institution located in Texas that is not affiliated with the CAPCO;
(B) certificates of deposit in a federally insured financial institution located in Texas that is not affiliated with the CAPCO;
(C) investment securities that are obligations of the United States or its agencies or instrumentalities or obligations that are guaranteed fully as to principal and interest by the United States;
(D) debt instruments rated at least "A" or its equivalent at the time of purchase by a nationally recognized credit rating organization, or issued by, or guaranteed with respect to payment by an entity whose unsecured indebtedness is rated at least "A" or its equivalent by a nationally recognized credit rating organization and which indebtedness is not subordinated to other unsecured indebtedness of the issuer or the guarantor provided that the debt instruments are not procured through a financial institution affiliated with the CAPCO;
(E) obligations of Texas or any municipality or political subdivision of Texas provided that the obligations are not procured through a financial institution affiliated with the CAPCO; and
(F) any other investments approved in advance and in writing by the comptroller.
(10) If a qualified business moves its principal business operations outside Texas before the 90th day after a CAPCO makes an investment in it, the investment is not considered a qualified investment for the purposes of the percentage requirements in paragraph (4) of this subsection, subsection (i) of this section, and any other applicable provisions in this section.
(11) Any transfer, sale, acquisition, purchase, assignment, or merger of a CAPCO ownership interest should be pre-approved by the comptroller. In no event shall an owner or any affiliate, having an ownership interest of 10% or greater, of a CAPCO, acquire an ownership interest of 10% or greater in another CAPCO without the written approval of the comptroller. The comptroller may request any information deemed necessary to evaluate changes in CAPCO ownership.
(e) Annual review. Each CAPCO is subject to review as specified in this section to determine compliance with rules and statutes.
(1) The comptroller shall conduct an annual review of each CAPCO to:
(A) ensure that the CAPCO continues to satisfy the requirements of this section and Insurance Code, Articles 4.51 - 4.73;
(B) ensure that the CAPCO has not made any investment in violation of this section and Insurance Code, Articles 4.51 - 4.73; and
(C) determine the eligibility status of its qualified investments.
(2) Each CAPCO shall pay the reasonable cost for the annual review to be billed by the comptroller or, if the review is conducted by an independent examiner under the authority of the comptroller, the CAPCO shall reimburse the comptroller.
(f) Decertification. A CAPCO may be decertified for violations of this section or the Insurance Code, and premium tax credits may be recaptured and forfeited to the extent expressly set forth in this section or in the Insurance Code.
(1) A material violation of Insurance Code, Articles 4.56, 4.58, or 4.59 is grounds for decertification of a CAPCO. The comptroller shall notify the officers of the CAPCO in writing of the violations and that the company may be decertified after 120 days from the date on which the notice is mailed, unless the violations are corrected as determined by the comptroller.
(A) Violations of Insurance Code, Articles 4.56(a), 4.56(b), 4.56(f) or 4.56(h) shall constitute a material violation of the statutes.
(B) Two consecutive violations of the requirements of Insurance Code, Article 4.58 or 4.59 shall constitute a material violation of the statute.
(C) Two or more consecutive instances of a CAPCO failing to pay fees or penalties on a timely basis, two or more consecutive omissions of required information, a misstatements of facts in applications or annual reports, shall constitute material violations of the statutes.
(2) A hearing is available to a CAPCO that is subject to decertification as provided in Chapter 1, Subchapter A, Division 1, §§1.1 - 1.42 of this title (relating to Central Administration).
(3) Decertification is effective on the date on which the company receives notice of decertification from the comptroller. Notices will be sent via certified mail or via an overnight common carrier delivery service, and become effective on receipt by the CAPCO.
(4) In the event of decertification of a CAPCO, the comptroller shall notify any appropriate state agency of the decertification including, but not limited to the Secretary of State, the Office of Economic Development and Tourism, and the Office of the Insurance Commissioner.
(5) Premium tax credits previously claimed shall be recaptured and future premium tax credits shall be forfeited following decertification of a CAPCO in accordance with the provisions of Insurance Code, Article 4.63.
(6) When a CAPCO has invested an amount equal to 100% of its certified capital, with respect to Program One, in qualified investments, any premium tax credit claimed or to be claimed by a certified investor with respect to an investment in Program One is not subject to recapture or forfeiture. When a CAPCO has invested an amount equal to 100% of its certified capital with respect to Program Two in qualified investments, any premium tax credit claimed or to be claimed by a certified investor with respect to an investment in Program Two is not subject to recapture or forfeiture.
(7) The comptroller will send a written notice to each certified investor whose premium tax credit is subject to recapture or forfeiture for failure of the CAPCO to maintain certification eligibility. Notification will be sent in accordance with paragraph (3) of this subsection.
(8) The comptroller may impose an administrative penalty on any CAPCO that violates the provisions of this section. Each day a violation continues or occurs is a separate violation. The maximum penalty may not exceed $25,000 for each violation.
(A) The penalty amounts are based on the following:
(i) seriousness of the violations, including the nature, circumstances, extent, and gravity of the violation;
(ii) economic harm caused by the violation;
(iii) history of previous violations;
(iv) amount necessary to deter a future violation;
(v) efforts to correct the violation; and
(vi) any other matter that justice may require.
(B) Each of the following is a separate violation that is subject to a penalty of $5,000. Thereafter, an additional penalty of $5,000 will be imposed for each 30 day period the violation remains uncorrected:
(i) failure to file annual reports by January 31;
(ii) failure to maintain in the principal office in Texas all financial, administrative, management and investment records, including details of both qualified investments and unqualified investments;
(iii) failure to report names and addresses of certified investors, including the date and amount of investments;
(iv) failure to file an annual audited financial statement with an unqualified opinion and any Statement of Auditing Standard No. 61 communication by April 1; and
(v) failure to provide detailed financial and investment information that supports each annual report.
(C) Each of the following is a separate violation that is subject to a penalty of $10,000. Thereafter, an additional penalty of $10,000 will be imposed for each 30 day period the violation remains uncorrected:
(i) failure to maintain the primary CAPCO office in Texas;
(ii) investment in a business that is found to be unqualified, without first requesting from the comptroller an evaluation of the business as provided under subsection (g) of this section; and
(iii) failure to provide information about the CAPCO's operation within 30 days after the comptroller requests the information.
(D) If a CAPCO is assessed penalties, a re-determination hearing may be requested as provided in Tax Code, Chapter 111.
(9) Indemnity Agreements and Insurance Authorization. A CAPCO may agree to indemnify or purchase insurance for the benefit of a certified investor for losses resulting from the recapture or forfeiture of premium tax credits under Insurance Code, Article 4.63. Any guaranty, indemnity, bond, insurance policy, or other payment undertaking made under this section may not be provided by more than one certified investor of the CAPCO or affiliate of the certified investor.
(g) Premium Tax Credits. In the year a certified investor makes an investment of certified capital, the certified investor shall earn a vested premium tax credit that is equal to the amount of the investment, subject to the other provisions in this section. With respect to Program One, beginning with the tax report due March 2, 2009, for the 2008 tax year, a certified investor may take up to 25% of these tax credits each year until all credits have been used. The credit may not be applied to estimated payments due in 2008, but may be applied to estimated payments beginning with those made in 2009. With respect to Program Two, beginning with the tax report due March 1, 2013 for the 2012 tax year, a certified investor may take up to 25% of these credits each year until all credits have been used. The credit may not be applied to estimated payments due in 2012 but may be applied to estimated payments beginning with those made in 2013.
(1) The credit to be applied against state premium tax liability in any one year may not exceed the state premium tax liability of the certified investor for the taxable year. Any unused credit against state premium tax liability may be carried forward indefinitely until the premium tax credits are used.
(2) A certified investor claiming a credit against state premium tax liability earned through an investment in a Texas CAPCO is not required to pay any additional retaliatory tax levied under Insurance Code, Article 21.46, as a result of claiming that credit.
(3) A premium tax credit allocation claim form for certified investors must be prepared and executed by each CAPCO receiving an investment commitment, on a form provided by the comptroller. A CAPCO and its affiliates may not file premium tax credit allocation claims in excess of the maximum amount of certified capital for which premium tax credits may be allowed. The form shall include an affidavit of the certified investor that legally binds the investor to make an investment of certified capital in an amount allocated by the comptroller. The forms with respect to Program One are due from each CAPCO not later than the 120th day after the date the CAPCO rule is adopted. The forms with respect to Program Two are due from each CAPCO not later than January 1 2008.
(4) The comptroller shall notify each CAPCO of the amount of tax credits allocated to each certified investor not later than the 15th business day after the date on which the comptroller accepts premium tax credit allocation claims.
(5) A certified investor's tax credits are limited to the amount of certified capital as allocated or as subsequently reallocated by the comptroller and funded by the certified investor. The maximum request for premium tax credits that any one individual certified investor, on an aggregate basis with its affiliates, may request in one or more premium tax allocation claim forms submitted pursuant to paragraph (1) of this subsection may not, with respect to Program One or Program Two as applicable, exceed the greater of:
(A) $10 million; or
(B) 15% of the maximum aggregate amount available under Insurance Code, Article 4.67(a).
(6) The total amount of credits allowed is $200 million Program One and $200 million for Program Two. Total annual credits, with respect to each of Program One and Program Two, are limited to the lesser of $50 million per year, or 25% of the total amount of investment with respect to each of Program One and Program Two. A CAPCO, together with its affiliates, may not file premium tax credit allocation claims on behalf of its investors in excess of $200 million with respect to Program One or Program Two.
(7) Pro rata allocation of credits.
(A) The comptroller shall perform a pro rata allocation of the total amount of premium tax credits under this if:
(i) the total amount of certified capital requested under paragraph (3) of this subsection exceeds the total limit on credits under paragraph (6) of this subsection; or
(ii) if an allocation of credits under clause (i) of this subparagraph has occurred and a CAPCO notifies the comptroller either by hand delivery or overnight common carrier delivery service that it did not receive an investment of certified capital equal to the amount of the investment commitment from one or more investors, as provided on the premium tax credit allocation form that is filed under paragraph (3) of this subsection, before the end of the 10th business day after the date of receipt of the notice of allocation.
(B) the pro rata allocation for each certified investor shall be computed as follows:
(i) for an allocation under subparagraph (A)(i) of this paragraph, a fraction, the numerator of which is the value determined in paragraph (5) of this subsection for each certified investor and the denominator of which is the total amount of all premium tax credit allocation claims that are filed with respect to Program One or Program Two under paragraph (3) of this subsection, for all certified investors, multiplied by the total limit on credits for such program as provided by paragraph (6) of this subsection.
(ii) for a reallocation under subparagraph (A)(ii) of this paragraph, the comptroller shall reallocate the forfeited premium tax credit allocation among the other certified investors in all CAPCOs that originally received an allocation, in an amount that will ensure a result after reallocation that is the same as if the original request for the forfeited allocation had not been included in the allocation process.
(8) Premium tax credits allocated under this subsection may be transferred or assigned as provided in §3.830 of this title (relating to Premium Tax Credit for Examination Expenses, Evaluation Fees, Assessments, and Certified Capital Companies (CAPCOs); Limitations and Transfers). The transfer or assignment of a premium tax credit does not affect the schedule for taking premium tax credits under this section. The transfer, sale, or assignment of premium tax credits, are subject to the follow conditions:
(A) Failure to comply with §3.830 of this title, could jeopardize the investor's ability to transfer premium tax credits.
(B) Any liability with respect to premium tax credits transferred pursuant to Insurance Code, Article 4.71, that are recaptured pursuant to Insurance Code, Chapter 4, Subchapter B, shall be the responsibility of the taxpayer that actually claimed the credit.
(9) If a CAPCO is decertified, the comptroller will adjust any tax report records that are impacted by the recapture or forfeiture of premium tax credits under Program One or Program Two and will enforce the collection of additional premium taxes as a result of the recapture or forfeiture. For purposes of this section in the recapture of tax credits taken, the provisions of Tax Code, §111.207, shall apply as if the limitation period had been tolled before the end of the limitation under Tax Code, §111.204. These provisions shall apply to all insurers and persons, including those who received a transfer or assignment of the credits to be adjusted or recaptured.
(h) Evaluation of Proposed Qualified Business. Before a CAPCO makes an investment, it may request that the comptroller determine whether the business is a qualified business, an early stage business, or a strategic investment business or a low-income community business. The CAPCO shall provide all information it has gathered on the business including its plan of operation and plans for future expansion. The request may be denied if the comptroller determines that the proposed investment is not consistent with the CAPCO's investment strategy or investment criteria as approved by the comptroller at certification.
(1) Not later than 15 business days following receipt of a request, the comptroller shall issue a determination of whether the business meets the definition of a qualified business, early stage business, or strategic investment business or low-income community business.
(2) The comptroller may notify the CAPCO that an additional 15 business days will be needed to review and make the determination.
(3) If the comptroller fails to notify the CAPCO as provided under either paragraph (1) or (2) of this subsection, the business is considered to be a qualified business, early stage business, or a strategic investment business or low-income community business, as appropriate.
(i) Qualified distributions and repayment of debt. A CAPCO may make a qualified distribution at any time. A CAPCO may make a distribution or payment that is not a qualified distribution only if the CAPCO has made original qualified investments in an amount cumulatively equal to 100% of its certified capital.
(1) A CAPCO may make repayments of principal and interest on its indebtedness without regard to this subsection, and without restriction, including repayments of indebtedness of the CAPCO on which certified investors earned premium tax credits. Repayments do not relieve the CAPCO of the requirements for renewal and continuance of certification under subsection (d) of this section.
(2) If a business in which a qualified investment has been made relocates its principal business operations outside Texas during the term of the CAPCO's investment in the business, the cumulative amount of qualified investments made from Program One or Program Two, for purposes of satisfying the requirements of this subsection, is reduced by the amount of the CAPCO's qualified investments in this business. This provision shall not apply if the business demonstrates that it has returned its principal business operations to Texas not later than 90 days after the date of its relocation.
(3) If a qualified business in which a qualified investment has been made is subsequently acquired by or merged into another entity, whether headquartered inside or outside of Texas during the term of the CAPCO investment in the business, it will remain a qualified investment and not be subject to paragraph (2) of this subsection, if after the acquisition or merger and for the duration of the CAPCO's investment in the business, the business continues to operate within the remaining provisions of this section for qualified business as stated in subsection (a)(15) of this section.
(4) If, after a CAPCO initially invests in a qualified business, there is a subsequent follow on investment in that qualified business, the investment will be considered an additional qualified investment for purposes of satisfying the provision requiring investment milestones.
(j) Required reports. Each CAPCO shall report to the comptroller:
(1) as soon as practicable after receipt of certified capital, but not to exceed 45 days;
(A) the certified investors name, address, and taxpayer identification number;
(B) the date and amount of investment received by the CAPCO from each certified investor; and
(C) the type and amount of security issued by the CAPCO to the certified investors in exchange for the investment resulting in premium tax credits, including the names of the companies that issued the security together with a copy of the security instrument.
(2) An annual report due each January 31 that contains:
(A) the amount of the CAPCO's certified capital, including details of all investments, at the end of the preceding calendar year, including but not limited to whether or not the company has invested more than 15% of its total certified capital in any one business for Program One or Program Two;
(B) a detailed listing of investment violations under this section;
(C) each qualified investment the CAPCO made during the preceding year and, with respect to each qualified investment, the number of retained jobs and the average wages paid per employee of the qualified business at the time the qualified investment was made with respect to Program One and Program Two;
(D) the number of jobs created by the investment and the average wages paid for the jobs;
(E) the classification of the qualified businesses according to the industrial sector and the size of the business;
(F) a copy of the business plan or plan of operation for each of the qualified businesses in which the CAPCO invested in the preceding year; and
(G) any other information the comptroller requires by notification or instructions to each CAPCO.
(3) An annual audited financial statement for the prior calendar year ending December 31, by April 1, that includes the opinion of an independent certified public accountant. The auditor shall also address the methods of operation and conduct of the business of the company by performing certain agreed upon procedures to determine whether:
(A) the company is complying with Insurance Code, Chapter 4, Subchapter B, with respect to the CAPCO requirements and the rules adopted in this section;
(B) the funds received by the company have been invested as required within the time provided by Insurance Code, Article 4.56(a); and
(C) the company has invested the funds in qualified businesses.
(k) Report to the legislature. The comptroller shall prepare a biennial report to the legislature with respect to results of implementation of this section. This report shall be filed with the governor, the lieutenant governor, and the speaker of the house of representatives, not later than December 15 of each even-numbered year. The report shall include:
(1) the names and number of CAPCOs holding certified capital;
(2) the amount of certified capital invested in each CAPCO;
(3) the amount of certified capital the CAPCO has invested in qualified business, including the names and locations of the businesses, as of January 1, 2006, and each subsequent year;
(4) the amount of tax credits granted based on certified investments along with the tax credits taken by year;
(5) the performance of each CAPCO with respect to renewal and reporting requirements;
(6) information concerning qualified businesses in which CAPCOs have invested, and is to include:
(A) the classification of the businesses, along with the industrial sector and size of each business;
(B) the total number of jobs created by the investment and the average wages paid for the jobs; and
(C) the total number of jobs retained as a result of the investment and the average wages paid for the jobs;
(7) a list of the CAPCOs that have been decertified or that have failed to renew the certification and the reason for any decertification.
(l) Confidentiality: any information containing confidential business or trade secrets shall be kept confidential only to the extent provided by the Texas Public Information Act, Texas Government Code, Chapter 552.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 28, 2008.
Comptroller of Public Accounts
Effective date: June 17, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 475-0387