| (a) Except as otherwise provided in Government Code, §403.604(a),
the number of required jobs may not be waived.
(b) The wage requirement applies to required jobs and
additional jobs, as the terms are defined in §9.5000 of this
title and Government Code, §403.602. The wage requirement may
not be waived.
(c) The comptroller shall conduct a biennial review
of the periods covered by two consecutive reports submitted by an
agreement holder to determine whether the agreement holder has created
the number of required jobs and has met the wage requirement under
Government Code, Chapter 403.
(d) To make the determination, the comptroller may:
(1) review the Biennial Compliance Report submitted
by the agreement holder;
(2) request additional information from the agreement
holder to substantiate the number of required jobs and the wage requirement
and/or inspect the eligible property with a 3-day advance notice to
the agreement holder in order to perform the inspection at a mutually
agreeable time during regular business hours; or
(3) consider any other information that is available
to the comptroller.
(e) The comptroller may issue a determination that
a job created by the agreement holder is not a required job if the
job as identified by the agreement holder:
(1) does not provide 1,600 hours or more of work for
that year;
(2) is not a new job but rather a position that was
transferred from a facility of the agreement holder from one area
of the state to the project covered by the agreement, unless the agreement
holder fills the vacancy caused by the transfer;
(3) is not a new job but rather a position that replaced
an existing job of the agreement holder, unless the agreement holder
filled the vacancy caused by the replacement;
(4) is not covered by a group health benefit plan for
which the agreement holder contributes; or
(5) does not meet the wage requirement.
(f) If the comptroller makes a determination that the
agreement holder did not create the required number of jobs or meet
the wage requirement, the comptroller shall provide notice to the
agreement holder, which shall include an explanation for the adverse
determination.
(g) If the comptroller finds that an agreement holder
received two consecutive adverse determinations for failing to meet
the wage requirement prescribed by the agreement, the comptroller
shall impose a penalty on the agreement holder in an amount equal
to two times the difference between:
(1) the product of:
(A) the actual average annual wage paid to all persons
employed by the agreement holder in connection with the project that
is the subject of the agreement as computed under Government Code, §403.612(b)(6);
and
(B) the number of required jobs prescribed by the agreement;
and
(2) the product of:
(A) the average annual wage prescribed by the agreement;
and
(B) the number of required jobs prescribed by the agreement.
(h) If the comptroller finds that an agreement holder
received two consecutive adverse determinations for failing to maintain
at least the number of required jobs prescribed by the agreement,
the comptroller shall impose a penalty on the agreement holder in
an amount equal to two times the difference between:
(1) the product of:
(A) the number of required jobs prescribed by the agreement;
and
(B) the number of required jobs actually created as
stated in the most recent report submitted by the agreement holder
under Government Code, §403.616; and
(2) the average annual wage prescribed by the agreement
during the most recent four quarters for which data is available,
as computed by the Texas Workforce Commission.
(i) A determination by the comptroller under subsection
(f) of this section is a deficiency determination under Tax Code, §111.008.
A penalty imposed under this section is an amount the comptroller
is required to collect, receive, administer, or enforce and is subject
to the payment and redetermination requirements of Tax Code, §111.0081
and §111.009. A redetermination under Tax Code, §111.009,
of a determination under this section is a contested case as defined
by Government Code, §2001.003.
(j) In no event shall a penalty imposed under this
section exceed the amount of the ad valorem tax benefit received by
the agreement holder under the agreement.
(k) The comptroller shall deposit a penalty collected
under this section and any interest on the penalty to the credit of
the foundation school fund.
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