Chun Kerr Dodd Beaman & Wong Rev Act 221 QHTB Tax Incentives 100% Investment Credit 2 QHTB 1 Stock/Equity Option income - excluded from income tax for employees, officers, directors 1 QHTB = > 50% devoted to Qualified Research (QR) & > 75% QR in Hawaii: - R & D - Software development - Biotechnology - Performing arts products - Sensors and optics - Ocean sciences - Astronomy - Non-fossil fuel energy-related technology 2 100% Investment Credit: QHTB must be Hawaii-based (property, capital or property in Hawaii) and: more than 75% of QR in Hawaii; or more than 75% of gross income derived from QR on sales from and mfr. in Hawaii Revenues $$ 20% R&D Credit Refundable No base limitation Royalty & license fees excluded from income tax

Chun Kerr Dodd Beaman & Wong Rev Non-QHTB Tax Incentives 4% Hi-tech Renovation Credit (added 2001) hi-speed telecom security environmental electrical power General Excise Tax Exemptions Exports Scientific contracts Capital goods excise tax credit 4% taken off income tax Pyramiding relief phased in Related Party Exemptions Enterprise Zones Income tax holiday GET holiday Property tax holiday UI holiday Foreign Trade Zone Movie Production Credit Renewable Energy Tax Credit

Chun Kerr Dodd Beaman & Wong Rev Hawaii High Technology Initiatives (Act 221) In order to encourage the growth of high technology businesses in Hawaii, the legislature has provided a number of tax incentives for qualified high technology businesses (QHTBs): –100% high technology investment tax credit for investors (ITCs) –Refundable 20% tax credit for research expenditures (R&D credit) [Act 215] –Income tax exclusion for (a) royalties and (b) stock-related transactions –Increase capital loss carryforward period

Chun Kerr Dodd Beaman & Wong Rev Qualified High Technology Business (QHTB) Definition: –A business, employing or owning capital or property, or maintaining an office, in Hawaii provided that: > 50% of its total business is in qualified research and > 75% of its qualified research is performed in Hawaii (Activity test) or > 75% of its gross income is derived from qualified research and the income is received from (1) products sold from, manufactured in, or produced in Hawaii or (2) services performed in Hawaii (Income test)

Chun Kerr Dodd Beaman & Wong Rev QHTB Qualified research – Research and development under Internal Revenue Code Section 41 – Computer software development for sale or license – Biotechnology – Performing arts products – Sensors and optics – Ocean sciences – Astronomy – Non-fossil fuel energy-related technology

Chun Kerr Dodd Beaman & Wong Rev QHTB (cont.) Businesses should obtain a QHTB comfort ruling from the State of Hawaii Department of Taxation to ensure that they qualify as a QHTB –Form A-9 (Request for a High Tech Comfort Ruling) –See Hawaii Tax Departments website ( –Fee: $1,000

Chun Kerr Dodd Beaman & Wong Rev QHTB (cont.) Annual information return filing requirement –Form N-317 (Statement by a Qualified High Technology Business) Tax year 2006 and prior years –Paper form due on April 20 following the tax year Tax year 2007 and forward (Act 206) –Online form on the Hawaii Tax Departments website –Due before June 30 following the tax year –$1,000 per month penalty for failure to file ($6,000 max) –Effective: July 1, 2007 (applies to investments received after June 30, 2007)

Chun Kerr Dodd Beaman & Wong Rev High technology business investment tax credit (ITC) Tax incentive for investors in a QHTB Nonrefundable 100% income tax credit on investments made into a QHTB Limited to $2 million per QHTB per year Claimed over a five year period –First year - 35% (up to $700,000) –Second year - 25% (up to $500,000) –Third year - 20% (up to $400,000) –Fourth year - 10% (up to $200,000) –Fifth year - 10% (up to $200,000) Effective

Chun Kerr Dodd Beaman & Wong Rev Investments made before May 1, ability to allocate ITC to provide multiple credits Tax-indifferent partners* Hawaii tax- averse partners Special Purpose Partnership or LLC HAWAII QHTB Allocate full $2M ITC** $1M $2M *Usually obtains more equity interest in partnership or LLC to compensate for giving up credits **Allocation allowed by statute: HRS Section (d)

Chun Kerr Dodd Beaman & Wong Rev Limitation on allocating ITC to provide multiple credits [TIR ] For each dollar invested, if the ITC allocation ratio to an investor IsThen <1.5Hawaii tax department will not challenge because of safe harbor Hawaii tax department may challenge for economic substance or business purpose - Safe harbor available if satisfies both tests: (1) no frontloading of credits test and (2) limited equity shifting test >2Taxpayers are required to substantiate by proving economic substance and business purpose

Chun Kerr Dodd Beaman & Wong Rev Investments made on or after May 1, 2009 [Act 178 (2009)] Limitations –For tax years ending on or before December 31, 2010, not more than 80% of a taxpayer's tax liability may be offset by utilizing the ITC; –The ITC may not exceed an allocation ratio of 1:1 for each investor; and –Credits that are unused during tax years ending on or before December 31, 2009 or December 31, 2010 cannot be carried forward. See Taxation Announcements (August 3, 2009) and (September 14, 2009) for more information.

Chun Kerr Dodd Beaman & Wong Rev Filing requirements to claim ITC [Act 215] Three step process: –Taxpayer files for certification Form N-318A (Statement of Investment in a Qualified High Technology Business) Due March 30 following the tax year Fee: –Filed by investor ($100 early filing; $150 regular filing) –Filed by QHTB on investors behalf ($750 early filing; $1,000 regular filing) –Tax Department sends approval to taxpayer Form N-318A page 2 –Taxpayer attaches approval to tax return (claim) with Form N-318 (High Technology Business Investment Tax Credit) The claim for the ITC must be made within 12 months following the close of the tax year

Chun Kerr Dodd Beaman & Wong Rev Tax credit for research activities (R&D credit) Tax incentive available to QHTBs Refundable 20% tax credit on qualified research expenditures –Standard to qualify is the same as federal R&D credit except: No base amount limitation so credit applies to all qualified research expenditures, not just on the amount of increase Research must be performed in Hawaii Effective

Chun Kerr Dodd Beaman & Wong Rev R&D Credit Qualified research expenses are limited to expenditures for: –Employee wages (Hawaii W-2) –Supplies (nondepreciable tangible personal property consumed in Hawaii) –Contract research (services performed in Hawaii by 3rd parties)

Chun Kerr Dodd Beaman & Wong Rev Changes to R&D credit With the enactment of Act 215, some changes were made: –Change in the definition of computer software development Taxpayers must now intend to ultimately sell, license, or otherwise market the software for economic consideration Taxpayers must have substantial rights to the intellectual property –Elimination of the liberal construction language [Old language] It is the intention of the legislature that the amendments in this Act be liberally construed. [New language] It is the intention of the legislature that the amendments in this Act be construed in a manner consistent with the intent of this Act.

Chun Kerr Dodd Beaman & Wong Rev Filing requirements for claiming the R&D credit [Act 215] Three step process: –Taxpayer files for certification Form N-319A (Statement of Research and Development Costs) Due March 30 following the tax year Fee: ($400 early filing; $750 regular filing) –Tax Department sends approval to taxpayer Form N-319A page 2 –Taxpayer attaches approval to tax return (claim) with Form N-319 (Credit for Research Activities) The claim for the R&D credit must be made within 12 months following the close of the tax year

Chun Kerr Dodd Beaman & Wong Rev QHTB stock rights income tax exclusion Tax incentive for investors of QHTBs Income tax exemption available for –Income earned and proceeds derived from QHTB stock options or stock; and –Income earned from stock of parent company of QHTB. The parent company must possess 80% of the total voting power of the stock or other interest in the QHTB, and 80% of its total value.

Chun Kerr Dodd Beaman & Wong Rev QHTB royalty income tax exclusion Tax incentive available to QHTBs Income tax exclusion available for royalties earned on intellectual property developed and owned by the QHTB

Chun Kerr Dodd Beaman & Wong Rev Other QHTB incentives Capital loss carryovers –Instead of 5 years, QHTBs may carry forward capital losses for 15 years

Chun Kerr Dodd Beaman & Wong Rev Summary of QHTB formation/operation Initial steps –Form QHTB and related entities –Obtain QHTB comfort ruling from Hawaii Tax Department Operations –Investor invests money into special purpose entity or QHTB to generate ITC –QHTB conducts operations to generate R&D credit, if applicable, and other tax credits

Chun Kerr Dodd Beaman & Wong Rev Non-QHTB Incentives Income tax ( note: multiple credits may not be claimed on the same expenditures ) –Renewable energy technologies income tax credit –Technology infrastructure renovation income tax credit –Capital goods excise tax credit General excise tax –Exemption for related party transactions

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit Nonrefundable or alternatively, refundable, income tax credit for every renewable energy technology system installed and placed in service in Hawaii

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service before July 1, 2009 Credit amount –Solar thermal energy system Single family residential property –35% of actual cost or $2,250, whichever is less Multi-family residential property –35% of actual cost or $350 per unit, whichever is less Commercial property –35% of actual cost or $250,000, whichever is less

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service before July 1, 2009 Wind-powered energy systems –Single family residential property 20% of actual cost or $1,500, whichever is less –Multi-family residential property 20% of actual cost or $200 per unit, whichever is less –Commercial property 20% of actual cost or $500,000, whichever is less Photovoltaic energy systems –Single family residential property 35% of actual cost or $5,000, whichever is less –Multi-family residential property 35% of actual cost or $350 per unit, whichever is less –Commercial property 35% of actual cost or $500,000, whichever is less

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) [Act 204] Property placed in service before July 1, 2009 No credit for single family residential solar thermal energy systems for homes with a building permit on or after January 1, 2010 No credit for residential home developer who installs and places into service a system in 2009

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service on or after July 1, 2009 Credit amount –Solar energy systems* Single family residential property –35% of actual cost or $2,250 per system, whichever is less, for systems used primarily for household use –35% of actual cost or $5,000 per system, whichever is less, for systems not used primarily for household use [1] Multi-family residential property –35% of actual cost or $350 per unit per system, whichever is less * Act 154 (2009) removed the categories solar thermal energy systems and photovoltaic energy systems that existed under the earlier statute and created a single category called solar energy systems. [1] Subject to further reduction if used to satisfy the substitute renewable energy technology requirement for building permit purposes under HRS § (a).

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service on or after July 1, 2009 Commercial property –35% of actual cost or $250,000 per system, whichever is less, for systems used primarily for household use –35% of actual cost or $500,000 per system, whichever is less, for systems not used primarily for household use –Wind-powered energy systems Single family residential property –20% of actual cost or $1,500 per system, whichever is less [1] Multi-family residential property –20% of actual cost or $200 per unit per system, whichever is less Commercial property –20% of actual cost or $500,000 per system, whichever is less [1]Subject to further reduction if used to satisfy the substitute renewable energy technology requirement for building permit purposes under HRS § (a).

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service on or after July 1, 2009 No credit for single family residential renewable energy technology systems for homes with a building permit on or after January 1, Residential home developers may now claim the credit.

Chun Kerr Dodd Beaman & Wong Rev Renewable energy technologies income tax credit (cont.) Property placed in service on or after July 1, 2009 For tax years beginning on or after January 1, 2009, a taxpayer can claim a refundable credit under the following circumstances: (1) the taxpayer reduces his or her solar energy credit claim by 30% and elects to claim the credit as a refundable credit or (2) the taxpayer (a) receives solely pension income or (b) has an AGI of $20,000 ($40,000 for married filing jointly) or less and elects to claim the credit (either solor energy or wind) as a refundable credit.

Chun Kerr Dodd Beaman & Wong Rev Technology renovation infrastructure income tax credit Nonrefundable 4% income tax credit for renovation costs of commercial buildings in Hawaii to enable –high speed telecommunication, –physical security systems, –environmental systems, and –backup and emergency electrical systems.

Chun Kerr Dodd Beaman & Wong Rev Technology renovation infrastructure income tax credit (cont.) Act 178 (2009) update –For renovation costs incurred on or after May 1, 2009 and on or before December 31, 2010, the credit may only offset up to 80% of a taxpayer's tax liability. Also, if these credits are not used during tax years ending on or before December 31, 2009 or December 31, 2010, they cannot be carried forward.

Chun Kerr Dodd Beaman & Wong Rev Capital goods excise tax credit 4% refundable income tax credit for eligible depreciable tangible personal property placed in service and used by the taxpayer in a trade or business The claim for the credit must be made within 12 months following the close of the tax year

Chun Kerr Dodd Beaman & Wong Rev Capital goods excise tax credit (cont.) Act 178 (2009) update –The credit is suspended for property placed in service on or after May 1, 2009 and on or before December 31, –Note: proposed legislative changes in 2010 to further suspend or revoke of this credit should be closely monitored.

Chun Kerr Dodd Beaman & Wong Rev Exemption for related party transactions General excise tax exemption for related party transactions such as: –interest on intercompany loans, –legal and accounting services, –use of computer software or hardware, –information technology services, –database management, and –managerial and administrative services.