ORDERS:
AMENDED FINAL ORDER AND DECISION
This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to a request for a contested case
hearing filed by Blackbaud, Inc. (“Blackbaud”) challenging the South Carolina
Department of Revenue’s (“Department”) final agency determination (“Determination”)
dated June 15, 2007. In its Determination, the Department found that Blackbaud
was not entitled to claim job development credits (“JDCs”) pursuant to the South
Carolina Enterprise Zone Act of 1995 (the “EZA”) for new jobs it created after
the “cut-off date” established by the Revitalization Agreement (the “RVA”) between
Blackbaud and the Advisory Coordinating Council for Economic Development for the
State of South Carolina (“Council” or “CCED”).
After notice to the parties,
a hearing was held on January 31, 2008 at the offices of the Court in Columbia, South Carolina. Both parties appeared at the hearing, introduced
evidence, and provided testimony. The Court issued a Final Order and Decision
on May 15, 2008. On May 30, 2008, the Department filed a Motion for
Reconsideration to Alter or Amend Judgment in this matter. Although this
motion was untimely filed, the Court took the matter under advisement. Based
upon the arguments put forth by the Department in its motion and after careful
consideration of the evidence, the Court finds and concludes that Blackbaud
correctly calculated the number of jobs eligible for the JDCs.
Any motions or issues raised in the
proceedings, but not addressed in this Order are deemed denied pursuant to ALC
Rule 29(C).
FINDINGS OF FACT
General
and Historical Background
1. Blackbaud
is an “S” corporation, incorporated under the laws of the State of South Carolina. It develops fundraising and financial computer software and provides
additional services to non-profit organizations, such as the Red Cross, and
various colleges and universities. At some time it moved its headquarters from
the state of New York to Mount Pleasant, Charleston County, South Carolina.
2. Blackbaud filed an application with the Council
on October 7, 1997 asking for approval to participate in the South Carolina
Enterprise Zone Program (the “EZP”). It sought certification to qualify for
enterprise zone incentives and receive JDCs.
The application was filed in conformity with the Enterprise Zone Guidelines adopted
by the Council on December 12, 1996.
3. As part of the application process, Blackbaud negotiated
the terms for the RVA with the Council; the RVA – as agreed to by both parties
– was delivered to the Council on October 6, 1997. The RVA provides that:
a. it was received by the Council on October
7, 1997 and became effective on October 22, 1997;
b. the term “Job Development Credit” or “JDC”
means “the credit claimed by the Company against employee withholding from
Company employees pursuant to this Agreement and the Code”;
c. the “cut-off date” for Blackbaud to
qualify for JDCs was October 22, 2002, the fifth year anniversary of its
effective date (date of approval of the initial application by the Council);
d. Blackbaud would create a
minimum of 300 new jobs at its new facility to be
constructed on Daniel Island, Berkeley County;
e. Blackbaud would provide a benefits package
to full-time employees that would include heath care;
f. Blackbaud would invest a minimum of
$29,600,000 in the project before the cut-off date;
g. Blackbaud would not be eligible to retain JDCs until a final
RVA had been negotiated and executed by both Blackbaud and the Council;
h. “New
Job” has the same meaning as defined in S.C. Code Ann. § 12-6-3360 “except that
it shall be deemed to include only such jobs as are created at the Project
between the first day of the Company’s taxable year in which it enters into
this RVA and the Cut-off Date”;
i. the term “Minimum Job Requirement” means
the minimum number of New Jobs the Company has agreed to create, prior to the cut-off
date, and maintain before claiming any JDCs. Once it meets the Minimum Job
Requirement, the Company could fall below the Minimum Job Requirement by 15
percent or exceed the Minimum Job Requirement by 50 percent and remain eligible
to claim JDCs.
j. Blackbaud could not claim JDCs in excess
of 100% of the amount of the project costs listed in the RVA.
4. At the time
Blackbaud entered into the RVA and became eligible to claim JDCs, the
Guidelines issued and approved by the Council (on December 12, 1996) were
consistent with the RVA’s definition of “Minimum Job Requirement” which contained
what is referred to as the 85%/150% rule.
5. The Council gave
preliminary approval for Blackbaud’s participation in the EZP on October 24,
1997.
6. Blackbaud created
398 jobs and met the investment requirements between the first day of the year
in which it entered into the RVA and the cut-off date (October 22, 2002). On
the South Carolina Quarterly Withholding Returns (“WH returns”) it filed with the Department, it claimed JDCs in excess of those attributable
to 398 jobs.
7. Leise
Ross (“Ms. Ross”) was employed by the South Carolina Department of Commerce (“Department
of Commerce”) for approximately 15 years. She worked with the enterprise zone
program (“EZ program”) and was its manager for approximately three to four
years. Her title was “Program Director, Global Business Finance Division.”
She testified at the hearing that once a business had filed an application for
participation in the EZ program and it had been approved by Council, it had five
years to create the minimum number of new jobs and make the capital investment,
as stated in its RVA, to qualify for JDCs.
On
September 30, 2001, Ms. Ross mailed a letter to Blackbaud stating that once
Blackbaud certified in writing to the Council that the minimum jobs had been
created and the minimum capital investment had been made, it could begin claiming
JDCs through the refund/rebate method. Further, she stated in the letter that:
Your Agreement
states that a minimum of 300 jobs will be created at the Project prior
to October 22, 2002 (the Cut-Off Date). The Company must provide proof that
this minimum number of full-time jobs has been created, and that health care
benefits are available, prior to the Cut-off Date and prior to making its first
claim.
Once the Company has
met and certified its job minimum, the Council will allow the Company to fall
below the minimum by 15 percent (255 jobs), or exceed the minimum by up to 50
percent (450 jobs), and still remain eligible to claim Job Development Credits.
Your Agreement also
states that the Company must make a minimum capital investment of
$29,664,000, prior to the Cut-Off Date. When certifying that the minimum
capital investment has been made, statements from contractors or invoices
evidencing the purchase of equipment, or annual state property tax returns, are
acceptable.
Finally, the Company
must provide our office with its South Carolina Employee Withholding Number and
its Federal Employer Identification Number.
(Emphasis
added).
Ms. Ross explained
the 85%/150% rule at the hearing, stated that it was applicable to Blackbaud,
and stated that its repeal by the Council in 2004 applied only to applications
submitted after February 2004. Attached to this letter was an exhibit
entitled “Exhibit C—Quarter Report.” It was a blank form which contained the
following provision:
Job Fluctuation
Allowed for Collection of JDCs:
Low:__________
High_________
(15%
under min.) (50% over min.)
8. On September 30, 2001, Ms. Ross sent another letter
to Blackbaud. In it she stated the following: (1) Blackbaud had created the
minimum jobs required and had completed the minimum capital investment required
at its Berkeley County facility; (2) Blackbaud could “begin calculating JDCs
effective October 1, 2001”; (3) JDCs could “not be claimed more than once per
quarter”; (4) JDCs could not “be claimed for more than 15 years”; (5) the
Department would be notified of the certification by the Council; (6) the
15-year window for claiming JDCs would begin with Blackbaud’s first request for
a refund; (7) since the project was in a “Least Developed” county, Blackbaud
was eligible for a refund of “100% of the total, maximum Job Development
Credit.” On the same date, Ms. Ross, as Director of the Council, signed the RVA
and gave it final approval.
9. Lori Regalski (“Ms. Regalski”) worked in the
Human Resources Department at Blackbaud from approximately 1999 to 2004,
serving as its Enterprise Program Administrator. She computed the number of
newly created jobs that Blackbaud asserted it qualified for under the EZP, submitted
the WH returns to the Department, and submitted the South Carolina Annual Withholding
Reports to the Council (which reflected the number of these new jobs). Ms.
Regalski testified that the Council never communicated to her in any form
during her employment with Blackbaud that the reports she filed with the Council
were inaccurate or improperly completed.
10. LeAnn
Logue (“Ms. Logue”) was employed by Blackbaud in 2004 as its manager of Human
Resources. She is currently employed with Blackbaud as its Director of Human
Resources. Since beginning employment with Blackbaud, she has been responsible
for and has submitted its quarterly WH returns and annual withholding reports
to the Department and the Council, respectively, which reflected the number of
new jobs claimed. The Council has never communicated to her in any form that
the WH returns or the annual withholding reports Blackbaud submitted were
inaccurate or improperly completed.
11. John
Swearingen (“Mr. Swearingen”) is the supervisor of employees at the Department who
audit WH returns from which JDCs are claimed. He testified that the Department
has conducted approximately 500 audits of the 250 taxpayer-companies and that
the Department of Commerce sends to the Department each month a list of the companies
it has certified under the EZP.
12. Jerilyn
Van Story (“Ms. Van Story”), an employee with the Department for the last 14 years,
serves as a liaison between the Department and the Department of Commerce on
matters concerning the enterprise zone incentives. She participated in the
drafting of the Department’s publication on annual tax incentives (pursuant to
the EZP) and testified that a company may only receive the tax incentives for
the number of new jobs it creates prior to the cut-off date. Her interpretation
is based on the Council’s 1996 guidelines.
Audit, Proposed Assessment and Request for hearing
13. The Department audited Blackbaud’s WH
returns in 2003 for the 2002 year. It did not raise any concerns to Blackbaud regarding
this audit period. The Department did not audit Blackbaud again until after
the Department of Commerce deleted the 85%/150% rule in 2004. In 2005, the
Department audited Blackbaud’s WH returns for the periods January 1, 2003
through December 31, 2005. The audit revealed that Blackbaud claimed credits (in
the WH returns) for newly created jobs after October 22, 2002 (the cut-off date).
Further, it determined that Blackbaud had claimed credits on its WH returns for
new jobs created after the cut-off date which exceeded the cut-off date maximum
of 398 jobs. Blackbaud claimed an amount up to 450 jobs on each of the
applicable WH returns. The number of jobs it claimed exceeded the cut-off date
number (398 jobs). The schedule below reflects the jobs Blackbaud reported as
qualifying for the JDCs for the applicable quarters and the number of jobs the
Department disallowed:
Quarter Ending |
Jobs Per Return |
Jobs Per Audit |
No. of Jobs Denied |
3/31/2003 |
427 |
398 |
29 |
6/30/2003 |
426 |
398 |
28 |
9/30/2003 |
440 |
398 |
42 |
12/31/2003 |
443 |
398 |
45 |
3/31/2004 |
450 |
398 |
52 |
6/30/2004 |
450 |
398 |
52 |
9/30/2004 |
450 |
398 |
52 |
13/31/2004 |
450 |
398 |
52 |
3/31/2005 |
436 |
398 |
38 |
6/30/2005 |
450 |
398 |
52 |
9/30/2005 |
450 |
398 |
52 |
12/31/2005 |
422 |
398 |
24 |
14. The Department issued a proposed assessment to
Blackbaud on August 9, 2006 (“Proposed Assessment”). It disallowed JDCs for all
new jobs created after October 22, 2003 that were in excess of 398. The Proposed
Assessment proposed to recoup Two Hundred Eighty Four Thousand Two Hundred
Forty Six and no/100 ($284,246.00) Dollars of the JDCs which Blackbaud had previously
received, together with interest. Blackbaud disputed Two Hundred Eighty One Thousand
Two Hundred Sixty Four and No/100 ($281,264.00) Dollars (“Disputed Amount”). The
difference between the Proposed Assessment and the Disputed Amount equals Two
Thousand Nine Hundred Eighty Two and No/100 ($2,982.00) Dollars, the amount of
JDCs that Blackbaud claimed for severance pay. Blackbaud does not protest the amount
included in the Proposed Assessment allocated to JDCs taken for severance pay
and agrees to pay this amount to the Department, together with applicable
interest.
15 On October 26, 2006, Blackbaud filed a timely
protest to the Proposed Assessment.
16. On June 15, 2007, the Department issued its
final agency determination in which it denied the JDCs, as described in the
table below, together with interest:
Period
Ended |
Credit
Disallowed |
Interest* |
Total |
3/31/2003 |
$18,863 |
$5,218 |
$24,081 |
6/30/2003 |
$19,662 |
$5,124 |
$24,786 |
9/30/2003 |
$25,347 |
$6,233 |
$31,580 |
12/31/2003 |
$26,379 |
$6,058 |
$32,437 |
3/31/2004 |
$30,998 |
$6,830 |
$37,828 |
6/30/2004 |
$30,044 |
$6,193 |
$36,237 |
9/30/2004 |
$32,633 |
$6,300 |
$38,933 |
13/31/2004 |
$30,181 |
$5,240 |
$35,421 |
3/31/2005 |
$17,808 |
$2,901 |
$20,709 |
6/30/2005 |
$20,596 |
$2,996 |
$23,592 |
9/30/2005 |
$20,704 |
$2,636 |
$23,340 |
12/31/2005 |
$8,049 |
$818 |
$8,867 |
TOTAL: |
$281,264 |
$56,547 |
$337,811 |
17. Blackbaud timely requested a contested case
hearing with this Court to review the Department’s final agency determination.
18. The issue in
this case is whether Blackbaud may, pursuant to the provisions of the RVA and
the Guidelines (in effect when the RVA was initially filed, approved, and when
the RVA became final with the Department of Commerce), claim JDCs for newly
created jobs up to 150% of the minimum required by the cut-off date (150% of
300 or 450).
CONCLUSIONS OF LAW
Based
on the foregoing Findings of Fact, I conclude as a matter of law:
1. The ALC has jurisdiction of this matter pursuant to S.C. Code Ann. § 12-60-460
(Supp. 2007).
2. The standard of proof in administrative proceedings is a preponderance
of the evidence. Anonymous v. State Bd. of Med. Exam’rs, 329
S.C. 371, 496 S.E.2d 17 (1988).
3. In South Carolina, the right to recover taxes paid to the state is
statutory in nature. C.W. Matthews v. S.C. Tax Comm’n, 267 S.C. 548,
230 S.E.2d 223 (1976). Any person seeking a refund of taxes must file the
claim pursuant to the appropriate refund statute. Guaranty Bank & Trust
v. S.C. Tax Comm’n, 254 S.C. 82, 173 S.E.2d 367 (1970). Since a refund of
taxes is solely a matter of legislative grace, any party seeking such must
bring themselves squarely within the authorizing statute. Asmer v.
Livingston, 225 S.C. 341, 82 S.E.2d 465 (1954).
4. The trier of fact must weigh and pass upon the credibility of the evidence
presented. See S.C. Cable Television Ass’n v. Southern Bell Tel. And
Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1998). Further, the trial judge
who observes a witness is in the best position to judge the witness’s demeanor
and veracity and evaluate his testimony. See, e.g., McAlister
v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).
5. The cardinal rule of statutory interpretation is to ascertain the intent
of the legislature set forth in the terms of a statute. State v. Scott,
351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002). A statute should be
given a reasonable and practical construction consistent with the purpose and
policy expressed in the statute. Davis v. Nations Credit Fin. Servs.
Corp., 326 S.C. 83, 484 S.E.2d 471 (1997). All rules of statutory
construction are subservient to the one that legislative intent must prevail if
it can be reasonably discovered in the language used, and that language must be
construed in the light of the intended purpose of the statute. McClanahan v.
Richland County Council, 350 S.C. 433, 567 S.E.2d 240 (2002). The
determination of legislative intent is a matter of law. Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 459 S.E.2d 841(1995).
The
EZA 6. In 1995, the General Assembly enacted the EZA. S.C. Code Ann. §
12-10-10 et. seq. The EZA authorized qualifying businesses to
receive various tax benefits for creating and maintaining certain levels of
expenditures, such as for training costs and facilities, acquiring and improving
real estate whether constructed or acquired by purchase, or in cases approved
by Council, acquired by lease or otherwise, and for creating jobs.
The
Advisory Coordinating Council for Economic Development for the State of South Carolina, also known as the South Carolina Coordinating Council for Economic
Development, was created pursuant to the EZA; it is a body or division within
the South Carolina Department of Commerce. The General Assembly delegated
authority to it to enter into revitalization agreements with businesses in
South Carolina that qualified for the tax incentives, tasked it with the job of
determining the available incentives that were appropriate for each project, required
it to certify the total benefits for each project, required it to establish
criteria for the determination and selection of qualifying businesses, required
it to include in its criteria requirements relating to the capital costs of and
the projected employment to be produced by the project, and required it to
ensure that the business fulfills the requirements of Title 12, Chapter 10.
7. The
General Assembly provided in S.C. Code Ann. § 12-10-110 that Chapter 10 must be liberally construed in conformity with the findings provided in S.C.
Code Ann. § 12-10-20 thereof.
8. In § 12-10-20, the General Assembly stated its intent in enacting the EZA
in Chapter 10:
(1)
the economic well-being of the citizens of the State is enhanced by the
increased development and growth of industry within the State, and that it is
in the best interests of the State to induce the location or expansion of
manufacturing, processing, services, distribution, warehousing, research and
development, corporate offices, technology intensive, and certain tourism
projects within the State to promote the public purpose of creating new jobs
within the State;
(2) the inducement provided in this chapter will encourage the creation of
jobs which would not otherwise exist and will create sources of tax
revenues for the State and its political subdivisions;
(3)
the powers to be granted to the Advisory Coordinating Council for Economic
Development by this chapter and the purposes to be accomplished are
proper governmental and public purposes and that the inducement of the location
or expansion of manufacturing, processing, services, distribution, warehousing,
research and development, corporate offices, and certain tourism facilities within
the State is of paramount importance.
(4) The state’s per capita
income has not reached the United States average and certain rural, less
developed counties have not experienced capital investment, per capita income,
and job growth at a level equal to the state’s average. The economic well-being
of these areas will not be sustained without significant incentive to induce capital
investment and job creation.
§ 12-10-20 (Emphasis added).
It is apparent that the
General Assembly intended by enacting this statute to provide tax incentives
for businesses to locate or expand manufacturing, as well as other businesses
in this state, especially in certain rural areas. For instance, a qualifying
business was authorized to claim a higher percentage of the claimed JDCs (100%)
if the expenditures were made in counties that were “least developed.” §
12-10-80(D)(1)(a). Blackbaud hired new employees and invested a large sum of
capital in a rural, less developed county in conformity with the EZA.
9. The
South Carolina General Assembly codified the meaning of various applicable terms
and provisions in S.C. Code Ann. § 12-10-30 (Supp. 1997):
(1) “Council” means the Advisory
Coordination Council for Economic Development;
(2) “Employee” means an employee
of the qualifying business who works full time within the enterprise zone;
(3) “Qualifying business” means
an employer that meets the requirements of Section 12-10-50 and other
applicable requirements of this chapter and, where required under Section
12-10-50, enters into a revitalization agreement with the council to undertake
a project under the provisions of this chapter;
(4) “Project” means an investment for one or
more purposes in Section 12-1-80(B) needed for a qualifying business to locate,
remain, or expand in an enterprise zone and otherwise fulfill the requirements
of this chapter;
(5) “Withholding” means employee
withholding under Chapter 9 of this title.
10. The
General Assembly provided in S.C. Code Ann. § 12-10-50 (Supp. 1997) that a business
must meet the following criteria, in order to qualify for the tax incentive
benefits provided in Chapter 10, Title 12:
(1)
be primarily engaged in a business of the type identified in Section 12-6-3360;
(2)
provide a benefits package to full-time employees which include health care;
(3) enter into a
revitalization agreement which is approved by the Council, except that no revitalization
agreement is required for a qualifying business with respect to Section
12-10-80(D).
Further,
it provided in § 12-10-50 that the Council would determine if the available
incentives were appropriate for the project, would certify that the total
benefits of the project exceeded the costs to the public, and that the business
otherwise fulfills the requirements of Chapter 10.
11. The General Assembly provided in S.C. Code Ann.
12-10-60 (Supp. 1997) that Council could enter into an RVA with each qualifying
business with respect to the project and that the terms and provisions of each
RVA must be determined by negotiations between the Council and the
qualifying business. Further, it provided that the RVA must set a date by
which the business will have completed the project.
12. The General
Assembly provided in S.C. Code Ann. § 12-10-80(A) (Supp. 1997) that if the business
qualified for the tax benefits (by meeting the minimum job requirements and
minimum capital investment provided for in its RVA), it could claim JDCs
against its withholding tax liability on its quarterly state withholding tax
return (by retaining an amount of the employee withholdings).
13. The General Assembly provided in §
12-10-80(A) that a business may claim JDCs if it has met the minimum job
requirement and minimum capital investment provided for in the final RVA.
Further, it provided that the qualifying business would thereafter be
authorized to claim its JDCs against its withholding on its quarterly state
withholding tax return for the amount of the JDCs allowable under § 12-10-80.
The
[Council] will allow a company, once it meets the minimum job requirement, to
fall below the minimum job requirement by 15% and remain eligible to retain and
withdraw Job Development Fees. If the Company exceeds the minimum job
requirement, the Company may retain and withdraw Job Development Fees on the
excess jobs up to 50% of the minimum job requirement within the five year
time period beginning upon the date of approval.
(Emphasis added).
The definition of “Minimum
Job Requirement” in the RVA provides for the following:
[T]he
minimum number of New Jobs the Company has agreed to create, prior to the
Cut-Off Date, and maintain before claiming any Job Development Credits. Once
it meets the Minimum Job Requirement, the Company may fall below the Minimum
Job Requirement by 15 percent or exceed the Minimum, Job Requirement by 50
percent and remain eligible to claim Job Development Credits.
Negotiations
and Audits
15. The
process began with negotiations between the Council and Blackbaud. The initial
RVA was executed on October 22, 1997 which provided that Blackbaud had to
create a minimum of 300 new jobs prior to October 22, 2002. On October 22,
2002, Blackbaud gave notice to the Council that it had created 398 new jobs, which was 98 more than the minimum
required. Also, it notified the Council that it had made the required capital investment.
The Council immediately certified to the Department that Blackbaud was eligible
to claim JDCs and Blackbaud began filing WH returns with the Department and claimed
JDCs. Sections 12-10-80(A)(9) and 12-54-100 provided that the WH returns of a
qualifying business had to be audited by an independent certified public
accountant, and the audit had to be filed with the Council and the Department.
16. The Department conducted a
second official audit of Blackbaud’s WH returns after the Department of
Commerce deleted the “85%/150%” rule in 2004. In its 2004 amendment, the Council
stated that “[j]obs created in excess of the ‘Minimum Job Requirement’ shall be
deemed to include only such ‘New Jobs’ as are created at the ‘Project’ prior to
the ‘Cut-off Date’ as those terms are defined in the final [Revitalization
Agreement].” This Guideline repealed the “85%/150%” rule effective February
21, 2004.
On its WH returns beginning with the
quarter ending on March 31, 2003 through the quarter ending on December 31,
2005, Blackbaud reported and claimed tax incentives between 422 and 450 new
employees each quarter. In its audit conducted in 2005 and 2006, the Department
disallowed on each WH return the reported new employees in excess of 398.
The issue is whether Blackbaud should be able to claim the excess of 398 new
employees as reported on each of the WH returns filed during this time.
Parties’ Arguments
For
the quarters audited, Blackbaud entered employment numbers between 422 and 450,
which was in the High category. Each of the reports which contained these
numbers were filed with the Council and reviewed by it. The Council stamped
these reports as being in compliance, and the Council never determined
Blackbaud to be out of compliance with its RVA.
20. Blackbaud timely filed its WH returns with
the Department. Further, Blackbaud timely filed its reports with the
Department of Commerce. The Department of Commerce certified to the Department
that Blackbaud had met the requirements of the RVA and was eligible to receive
JDCs for the jobs it created after the cut-off date for up to 150% (those jobs
listed in its WH returns). Since Blackbaud has complied with all the
provisions contained in the RVA and is in good standing with the Department of
Commerce, the Court finds that it is eligible to claim the JDCs listed in its
WH returns. Blackbaud’s interpretation complies with all the instructions and
assertions required by the Council. Courts give great weight to long standing agency
interpretations. Cf. Buist v.
Huggins, 367 S.C. 268, 276, 625 S.E.2d 636, 640 (2006) (“The construction
of a statute by the agency charged with its administration will be accorded the
most respectful consideration and will not be overruled absent compelling
reasons.); Georgia-Carolina Bail Bonds, Inc. v. County of Aiken, 354
S.C. 18, 26, 579 S.E.2d 334, 338 (Ct. App. 2003) (“Although not binding or
controlling, this court gives deference to the opinion of a state agency
charged with the duty and responsibility of enforcing a state statute.”).
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY
ORDERED that Blackbaud is entitled to claim the JDCs as shown on its WH
returns for the quarters subject to the instant audit by the Department.
AND
IT IS SO ORDERED.
_________________________________
Marvin
F. Kittrell
June 12, 2008 Chief
Judge
Columbia, South Carolina
These credits equate to credit against
employee withholding, as specified in S.C. Code Ann. §§ 12-10-80 and 12-10-81
and the applicable RVA.
The Council adopted Guidelines on December 12,
1996 which created an exception to the minimum job requirement. It was
referred to as the “85%/150% rule.” The Guidelines were amended in 2004 to
state, in part, that “[j]obs created in excess of the ‘Minimum job Requirement’
shall be deemed to include only such ‘New Jobs’ as are created at the ‘Project’
prior to the ‘Cut-off Date’ as those terms are defined in the final RVA.”
The Department presented testimony that
it provided instruction to qualifying businesses to assist them in preparing
their reports. Its Annual Report for 2003 contained an example of a Quarterly
Report for an approved project that had 100 jobs on that date.
The example provided that the qualifying business remained qualified and could
claim JDCs if it maintained not less than 85% of the jobs (85) and not more
than 150% of the jobs (150).
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