The Comptroller of Public Accounts adopts amendments to §9.1052, concerning forms, to adopt by reference two existing forms with changes and two additional forms: the annual eligibility report, and the biennial progress report, with changes to two forms and a grammatical change to the proposed text as published in the March 19, 2010, issue of the Texas Register (35 TexReg 2288). The new forms are adopted to implement provisions of House Bill 3676, 81st Legislature, 2009. Subsection (b) is amended to correct the web site address.

The agency received comments on §9.1052 from four people: Mr. Dale Craymer, President, Texas Taxpayers and Research Association (TTARA); Mr. Matthew L. Larsen of Baker Botts L.L.P; Mr. Dick Lavine of the Center for Public Policy Priorities; and Mr. Michael J. Nasi, General Counsel, on behalf of the Clean Coal Technology Foundation of Texas. Their comments and the agency's responses are as follows.

Mr. Craymer and Mr. Nasi submitted a comment on Form 50-296, which is adopted by reference in subsection (a)(1). Mr. Craymer states that application preparation is costly and time consuming and application requirements should be minimized to the maximum extent possible. Mr. Craymer claims that certain requested information submission items go beyond the dictates of Tax Code, Chapter 313 or the needs of this agency in evaluating the application and claims that the following requests as excessive: whether the applicant will be required to pay sales and use taxes on equipment; whether the applicant is a party to other Tax Code, Chapter 313 agreements; the name of the parent company; the list of persons or entities with at least 5.0% company ownership; if the applicant is a combined group and identification of other entities in the combined group; whether all combined group members are current on tax payments; the permits section; the economic incentives section; identification of other school districts, cities, or counties involved; the number of jobs the applicant had in Texas in the last four quarters; copies of articles of incorporation, franchise tax standing, and combined group membership; and Schedule D in its entirety. Mr. Nasi generally agreed with all comments submitted by Mr. Craymer.

The agency has determined that in order to provide the analysis required pursuant to Tax Code, §313.026, and the reports required by Tax Code, §313.008, the agency has the authority to request the information detailed in proposed Form 50-296. In an attempt to streamline the application process, however, the agency will delete the requests for information about parent companies, persons or entities having at least 5.0% ownership in the company, regarding other permits required by other governmental agencies, and requests for Articles of Incorporation and (Texas Franchise Tax) Certificates of Good Standing. Further, the agency will reduce the amount of information requested on the description of the property and will modify the information requested for the number of jobs the applicant has in Texas.

Mr. Larsen and Mr. Lavine submitted comments regarding Form 50-772, which is adopted by reference in subsection (a)(3). Mr. Larsen comments that the question on the form requesting the minimum required wage for qualified jobs "in the year covered by the report" suggests that the wage determination for qualifying jobs is recalculated each year. Mr. Larsen contends that the statute requires that the wage determination be fixed in the year of the application and suggests that the question on the form be changed to reflect this requirement. Mr. Lavine comments that due to changes in the definition of "county average weekly wage" by House Bill 3676, 81st Legislature, the question asking for the annual wage for each qualifying job should be bifurcated depending on whether the agreement was executed before or after the effective date of the that legislation. Mr. Lavine comments that HB 3676 created new requirements that apply to agreements after the effective date of the legislation, but that agreements executed prior to HB 3676 are required to provide different information. Mr. Lavine additionally comments that the information provided in the form as proposed is verified only by the certification statement above the signature of the applicant and recommends that the agency include a statement that the information provided in the form is subject to verification or audit by the agency.

The agency responds the agency does not intend for this rule or form to make a determination as to the applicable wage standard required by statute but rather that the agency is using this form to find out which wage standard was used by the applicant to identify the minimum amount of the wages paid for jobs deemed qualifying by the applicant, the dollar amount of the minimum wages paid for a qualifying job by the applicant, and the calculations that the applicant used to determine that wage. In order to clarify the form, the agency will add a notation to the form to identify the different wage standards available pursuant to the statute to determine the minimum wage for each qualifying job. Additionally, the agency responds that it lacks the authority and resources to perform audits of the information provided in the annual report.

Mr. Casey submitted a comment on Form 50-773, which is adopted by reference in subsection (a)(4). Mr. Casey commented that many school districts may have difficulty submitting the data requested in this form by the designated dates since many schools have reduced staff during that time period.

The agency responds that the date for submission identified in the form is necessitated by the report submission dates imposed on the agency by statute and cannot be altered in a manner that would effectively reduce the imposition on the school district.

The amendment is adopted under Tax Code, §313.025(a) which authorizes the comptroller to prescribe the application for a limitation on appraised value, and §313.031 which authorizes the comptroller to adopt rules necessary for the implementation and administration of Tax Code, Chapter 313.

The amendment affects Tax Code, §§313.008, 313.021, 313.024, 313.025, 313.026, 313.0265, 313.027, 313.0275, 313.028, 313.031, 313.032, 313.051, 313.102, 313.104, and 313.105.