CHAPTER 217

FORMERLY

HOUSE BILL NO. 257

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. I

AN ACT TO AMEND TITLES 5 AND 30 OF THE DELAWARE CODE RELATING TO DELAWARE TAXES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each house thereof concurring therein):

Section 1. Amend § 1133, Title 30, Delaware Code, by adding to said section a new subsection (d) to read as follows:

"(d) Real estate investment trusts. An entity that is a real estate investment trust, as defined in § 856 of the Internal Revenue Code of 1986 (26 U.S.C. § 856), as amended, shall not be subject to tax under this chapter."

Section 2. Amend § 1149, Title 30 of the Delaware Code, by striking said section in its entirety.

Section 3. Amend § 1903(a)(1), Title 30 of the Delaware Code, by deleting the phrase "for which foreign tax credit is provided" as it appears in sub-paragraph (1) of said paragraph and substituting in lieu thereof the phrase "on which a foreign tax is paid, deemed paid, or accrued".

Section 4. Amend § 1903(a)(3), Title 30 of the Delaware Code, by striking the word "thereof" as it appears at the end of sub-paragraph (3) and substituting in lieu thereof the following: "thereof. Expenses incurred in connection with such gains and losses shall not be considered in computing the entire net income of the corporation".

Section 5. Amend § 1903(b), Title 30 of the Delaware Code, by inserting after the word "property" as it appears in paragraph (3) of said subsection the phrase ", and expenses incurred in connection with dispositions resulting in such gains and losses,".

Section 6. Amend § 1903(b), Title 30 of the Delaware Code, by inserting after the word "purposes" as it appears in paragraph (4) of said subsection the phrase ", and expenses incurred in connection with dispositions resulting in such gains and losses,".

Section 7. Amend § 1905, Title 30 of the Delaware Code, by adding to said section a new subsection (4) to read as follows:

"(4) Tentative tax declarations and payments are not required for returns for taxable periods of less than 92 calendar days."

Section 8. Amend § 2012(a), Title 30 of the Delaware Code, by inserting after the word "fee" and before the word "imposed" as they appear in said subsection the punctuation and phrase ", other than those set forth in § 2902(c)(4) and § 2905(h) of this title,".

Section 9. Amend § 2301(a), Title 30 of the Delaware Code, by inserting after the word "property" and before the word "under" as they appear in paragraph (6) of said subsection the phrase "located in this State".

Section 10. Amend § 230I(e), Title 30 of the Delaware Code, by inserting in paragraph (6) of said subsection after the first occurrence of the phrase "commercial unit" and before the semicolon immediately following such phrase, the phrase "located in this State".

Section 11. Amend § 1104(c), Title 5, Delaware Code, by deleting from the end of paragraph (4) thereof the words and punctuation ", or, with respect to a resulting branch in this State of an out-of-state bank, if the addition is attributable to the difference between the imputed capital addback provided in § 1101(i) of this title for the current and preceding income years", and substituting in lieu thereof the words and punctuation "; provided, however, that this subparagraph (4) shall not apply in the case of any banking organization, trust company or federal savings bank not headquartered in this State but maintaining branches in this State if such banking organization, trust company or federal savings bank not headquartered in this State but maintaining branches in this State, or any predecessor thereof, had taxable income (as defined in § 1101(a) or § 1101(b) of this title) of $200,000 or more for any of the three taxable years immediately preceding the taxable year involved".

Section 12. Amend § 1104(c) of Title 5, Delaware Code, by adding at the end thereof a new paragraph (5), to read as follows:

"(5) Notwithstanding paragraphs (1)-(3) of this subsection, no addition to the tax with respect to any underpayment of estimated tax or any installment shall be imposed, with respect to a resulting branch in this State of an out-of-state bank, if the addition is attributable to the difference between the imputed capital addback provided in § 1101(i) of this title for the current and preceding income years."

Section 13. Sections 1 through 10 of this Act are intended to clarify existing law and as such are deemed effective coincident with the effectiveness of the provisions they amend. Sections 11 and 12 shall be effective with respect to estimated tax payments on liabilities for tax years commencing after December 31, 1997. Sections 14 and 15 of this Act shall be effective for qualified facilities placed in service after the date on which this Act is enacted into law.

Section 14. Amend § 2011(a), Title 30, Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following new subsection (a) to read as follows:

"(a) Any taxpayer (other than a public utility as defined in Chapter 1 of Title 26, unless such public utility is a provider of telecommunications services as described in §2010(3)i of this title) that during any consecutive twelve month period: (i) has placed in service a qualified facility in which such taxpayer has during such period made a qualified investment in an amount equal to or exceeding $200,000; and (ii) employs 5 or more qualified employees during such period shall (except as otherwise provided in subsection (e) of this section) be allowed a credit against the tax imposed by Chapter 19 of this title for the taxable year in which all conditions set forth in this subsection shall be met and for any of the 9 following taxable years in which such facility is a qualified facility with respect to the taxpayer on the last business day thereof. The amount of such credit for any such year shall be the amount determined under subsection (b) of this section.

Section 15. Amend § 2011(b), Title 30, Delaware Code, by striking paragraph (1) of said subsection and substitute in lieu thereof a new paragraph (1) to read as follows:

"(1) Four hundred dollars multiplied by that number that is the greater of:

(A) the difference between: (i) the number of qualified employees employed by the taxpayer on a date one year after the date on which the qualified facility is placed in service; and (ii) the sum of the number of qualified employees, if any, that were employed by the taxpayer and by any related person on the day immediately preceding the date on which such qualified facility is placed in service by the taxpayer; and

(B) the difference between: (i) the number of qualified employees employed by the taxpayer on a date one year after the date on which occurs the event described in § 2011(a)(ii) of this title; and (ii) the sum of the number of qualified employees, if any, that were employed by the taxpayer and by any related person on the day immediately preceding the date on which occurs the event described in § 2011(a)(ii) of this title; provided in either case that no credit shall be allowable under this paragraph with respect to any qualified employee, except to the extent that the qualified investment in such qualified facility equals or exceeds S40,000 per qualified employee; and provided further that no credit shall be allowable under this paragraph with respect to any qualified employee to the extent a credit was claimed by the taxpayer or any related person under this paragraph for such qualified employee with respect to any other qualified facility placed in service in the same or a prior taxable year; plus".

Approved July 23, 1997