SECTION 9.1059. Annual Compliance Review for Qualifying Jobs and Penalties

(a) The comptroller shall conduct an annual review of new qualifying jobs for each agreement holder to determine whether the agreement holder has created the number of new qualifying jobs required in the agreement and Tax Code, Chapter 313.

(b) To make the determination, the comptroller may:

(1) review any Job Creation Compliance Report (Form 50-825) submitted by the agreement holder;

(2) request additional information from the agreement holder and inspect the facilities of the agreement holder at which the jobs were to be created, subject to 3 day advance notice to the agreement holder and a mutually agreeable time during regular business hours; or

(3) consider any other information that is available to the comptroller.

(c) The comptroller may issue a determination that a job created by the agreement holder is not a new qualifying job if the job is identified as a qualifying job by the agreement holder:

(1) does not provide 1,440 hours of work or more for that year;

(2) was transferred from a facility of the agreement holder from one area of the state to the property covered by the agreement;

(3) was created to replace a previous employee of the agreement holder;

(4) is not covered by a group health benefit plan for which the business offers to pay at least 72% of the premiums or other charges assessed for employee-only coverage under the plan, regardless of whether an employee may voluntarily waive the coverage; or

(5) does not pay an amount equal to at least 99% of the average weekly wage for manufacturing jobs in the county where the jobs are located and calculated pursuant to the method prescribed by Tax Code, §313.021(5) that is elected by the agreement holder in the application.

(d) If the comptroller makes a determination that the agreement holder did not create the required number of qualifying jobs pursuant to subsection (c) of this section, the comptroller shall provide notice to the agreement holder which shall include:

(1) the cause of the adverse determination; and

(2) corrective measures necessary to remedy the non-compliance.

(e) If the comptroller finds that an agreement holder who received an adverse determination in the previous year has failed to remedy the non-compliance following notification of the determination and the comptroller makes an adverse determination with respect to the agreement holder's compliance in the succeeding year:

(1) the comptroller shall provide notice to the agreement holder as required by subsection (d) of this section; and

(2) the agreement holder shall submit to the comptroller a plan to remedy the non-compliance and certify the agreement holder's intent to fully implement the plan not later than December 31 of the year in which the determination is made.

(f) If the comptroller finds that an agreement holder who received an initial adverse determination under subsection (d) of this section and a second adverse determination under subsection (e) of this section, and has failed to remedy the non-compliance following notification of both determinations and the comptroller makes a third adverse determination with respect to the agreement holder's compliance in the year following the second adverse determination under subsection (e) of this section, the comptroller shall impose a penalty on the agreement holder in an amount equal to the amount computed by:

(1) subtracting from the number of qualifying jobs required to be created the number of qualifying jobs actually created as determined in the third adverse determination under this subsection; and

(2) multiplying the amount computed under paragraph (1) of this subsection, by the average annual wage for all jobs in the county during the most recent four quarters for which data is available.

(g) Notwithstanding subsection (f) of this section, if the comptroller finds that an agreement holder has received an adverse determination and the comptroller has previously imposed a penalty on the agreement holder under this section one or more times for the same agreement, the comptroller shall impose a penalty on the agreement holder in an amount equal to the amount computed by multiplying the amount computed under subsection (f) of this section, by an amount equal to twice the average annual wage for all jobs in the county during the most recent four quarters for which data is available.

(h) In no event shall a penalty assessed under this section exceed an amount equal to the difference between the amount of the ad valorem tax benefit received by the agreement holder under the agreement in the preceding year and the amount of any supplemental payments made to the school district in that year.

(i) If the comptroller imposes a penalty on an agreement holder under this section three times, the comptroller may rescind the agreement between the agreement holder and the school district under this chapter.

(j) An adverse determination made under this subsection is subject to the provisions applicable to a deficiency determination under, and subject to the provisions to, Tax Code, §§111.008, 111.0081, and 111.009. A penalty imposed under this subsection is an amount the comptroller is required to collect, receive, administer, or enforce, and the determination is subject to the payment and redetermination requirements of Tax Code, §111.0081 and §111.009. A redetermination under Tax Code, §111.009 of an adverse determination under this section is a contested case as defined by Government Code, §2001.003.

(k) The comptroller shall deposit a penalty collected under this section, including any interest and penalty applicable to the penalty, to the credit of the foundation school fund.

(l) The penalties and procedures set out in this section do not affect the enforcement of any provisions in an agreement for value limitation between the school district and an agreement holder.

Source Note: The provisions of this §9.1059 adopted to be effective June 2, 2014, 39 TexReg 4259; amended to be effective January 24, 2016, 41 TexReg 624