HOUSE BILL No. 4644

April 30, 2013, Introduced by Reps. Johnson, Kelly, Somerville, Genetski, Yonker, Howrylak and McMillin and referred to the Committee on Commerce.

A bill to amend 1984 PA 270, entitled

"Michigan strategic fund act,"

by amending section 29h (MCL 125.2029h), as added by 2011 PA 291.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 29h. (1) ~~The~~ Through September 30, 2013, the Michigan

film office shall create and operate the film and digital media

production assistance program. ~~The~~ Through September 30, 2013, the

film and digital media production assistance program may provide

funds to eligible production companies for direct production

expenditures, Michigan personnel expenditures, crew personnel

expenditures, or qualified personnel expenditures for state

certified qualified productions. Beginning October 1, 2013, the

Michigan film office and the fund shall not operate the film and

digital media production assistance program or provide funding for

direct production expenditures, Michigan personnel expenditures,

crew personnel expenditures, or qualified personnel expenditures

under this section.

(2) If the office receives applications that would exceed what

the office can award in any year, the office may prioritize that

application for funding in the subsequent year.

(3) The film and digital media production assistance program

shall provide for all of the following:

(a) Funding shall be provided only to reimburse direct

production expenditures, Michigan personnel expenditures, crew

personnel expenditures, or qualified personnel expenditures.

(b) To be eligible to apply for funding, the eligible

production company shall have direct production expenditures,

Michigan personnel expenditures, or a combination of direct

production expenditures and Michigan personnel expenditures, of

$100,000.00 or more.

production company shall not be delinquent in a tax or other

obligation owed to this state or be owned or under common control

of an entity that is delinquent in a tax or other obligation owed

to this state.

(d) For state certified qualified production expenditures

after September 30, 2011, an agreement under this section shall,

except as otherwise provided in this section, provide for funding

equal to the sum of the following:

(i) 27% of direct production expenditures.

(ii) Michigan personnel expenditures as follows:

(A) 32% after September 30, 2011 and before January 1, 2015.

(B) 27% after December 31, 2014.

(iii) Crew personnel expenditures as follows:

(A) 25% after September 30, 2011 and before January 1, 2013.

(B) 20% after December 31, 2012 and before January 1, 2014.

(D) 10% after December 31, 2014.

(iv) Qualified personnel expenditures as follows:

(A) 27% after September 30, 2011 and before January 1, 2015.

(B) 12% after December 31, 2014.

(v) In addition to the expenditures described in subparagraphs

(i), (ii), (iii), and (iv), 3% of direct production expenditures and

Michigan personnel expenditures at a qualified facility or

postproduction facility for a qualified production produced at the

facility.

(e) Payments and compensation for all producers of a qualified

production residing in this state shall not exceed 10% of the

direct production expenditures and Michigan personnel expenditures

for the qualified production.

(f) Payments and compensation for all producers of a qualified

production who are not residents of this state shall not exceed 5%

of the direct production expenditures and Michigan personnel

expenditures for the qualified production.

(g) A television show may submit an application for no more

than 2 successive seasons, notwithstanding the fact that the

successive seasons have not been ordered. The successive season's

direct production expenditure, Michigan personnel expenditure,

nonresident above the line personnel expenditure, and nonresident

below the line crew expenditure amounts shall be based on the

current season's estimated expenditures. Upon the completion of

production of each season, a television show may submit an

application for no more than 1 additional season.

(h) As a separate and distinct part of the film and digital

media production assistance program, the office may create a

program to directly support and promote qualified facilities and

other infrastructure throughout this state.

(i) That not less than 5% of the funding awarded under this

section is awarded for postproduction expenditures for qualified

productions.

(4) An eligible production company intending to produce a

qualified production in this state may submit an application for

funding under this section to the Michigan film office. The request

shall be submitted in a form prescribed by the office and shall be

accompanied by an application fee equal to 0.2% of the funding

requested but not less than $200.00 and not more than $5,000.00 and

all of the information and records requested by the office. An

application fee received by the office under this subsection shall

be deposited in the Michigan film promotion fund. The office shall

not process the application until it is complete. The office shall

process each application within 21 days after the application is

complete as determined by the office. As part of the application,

the company shall estimate direct production expenditures, Michigan

personnel expenditures, crew personnel expenditures, and qualified

personnel expenditures for an identified qualified production. If

the office determines to award funding under this section to an

eligible production company, the office with the concurrence of the

fund president shall enter into an agreement under this section.

The agreement shall include, but is not limited to, all of the

following:

(a) A requirement that the eligible production company

commence work in this state on the identified qualified production

within 90 days of the date of the agreement or else the agreement

shall expire. However, upon request submitted by the company based

on good cause, the office may extend the period for commencement of

work in this state for up to an additional 90 days.

(b) A statement identifying the company and the qualified

production that the company intends to produce in whole or in part

in this state.

the office.

(d) A requirement that the qualified production not depict

obscene matter or an obscene performance.

(e) If the qualified production is a long-form narrative film

production, a requirement that the qualified production include

within its presentation worldwide for the life of the qualified

production an acknowledgment as provided by the office that

promotes the pure Michigan tourism campaign or any successor

campaign. If the qualified production is a television show, a

requirement that the qualified production include within each

broadcast of 30 minutes or longer an acknowledgment as provided by

the office that promotes the pure Michigan tourism campaign or any

successor campaign. If the qualified production is a music video, a

requirement that the music video include an acknowledgment as

provided by the office that promotes the pure Michigan tourism

campaign or any successor campaign. If the qualified production is

an interactive game, a requirement that the qualified production

include with each unit distributed and online promotions an

acknowledgment as provided by the office that promotes the pure

Michigan tourism campaign or any successor campaign. If the

qualified production is a long-form narrative film production, the

office also may require that, if the qualified production is

distributed by digital video disc or other digital media for the

secondary market, the qualified production include a video between

30 and 60 seconds long in a form approved by the office that

promotes the pure Michigan tourism campaign or any successor

campaign.

(f) A requirement that the company provide the office with the

information and independent certification the office deems

necessary to verify direct production expenditures, Michigan

personnel expenditures, crew personnel expenditures, qualified

personnel expenditures, and eligibility for funding under this

section, which may include a report of direct production

expenditures, Michigan personnel expenditures, crew personnel

expenditures, and qualified personnel expenditures for the

qualified production audited and certified by an independent

certified public accountant.

(g) If determined to be necessary by the office, a provision

for addressing expenditures in excess of those identified in the

agreement.

(5) In determining whether to award funding under this

section, the Michigan film office shall consider all of the

following:

(a) The potential that, in the absence of funding, the

qualified production will be produced in a location other than this

state.

(b) The extent to which the qualified production may have the

effect of promoting this state as a tourist destination.

effect of promoting economic development or job creation in this

state.

(d) The extent to which state funding will attract private

investment for the production of qualified productions in this

state.

(e) The record of the eligible production company in

completing commitments to engage in a qualified production.

(f) The extent to which the qualified production will employ

Michigan residents.

(6) If the Michigan film office determines that an eligible

production company has complied with the terms of an agreement

entered into under this section, the office shall award funding as

provided in this section. A person that willfully submits

information under this section that the person knows to be

fraudulent or false shall, in addition to any other penalties

provided by law, be liable for a civil penalty equal to the amount

of funding provided to the person under this section. A penalty

collected under this section shall be deposited in the Michigan

film promotion fund.

(7) Information, records, or other data received, prepared,

used, or retained by the Michigan film office under this section

that are submitted by an eligible production company and considered

by the applicant and acknowledged by the office as confidential

shall not be subject to the disclosure requirements of the freedom

of information act, 1976 PA 442, MCL 15.231 to 15.246. Information,

records, or other data shall only be considered confidential to the

extent that the information or records describe the commercial and

financial operations or intellectual property of the company, the

information or records have not been publicly disseminated at any

time, and disclosure of the information or records may put the

company at a competitive disadvantage. For purposes of this

subsection, information or records that describe commercial and

financial operations do not include that portion of information or

records that include any expenses that qualify under this section

as direct production expenditures or personnel expenditures.

(8) Not later than March 1, 2012, the office shall produce a

performance dashboard for the assistance authorized by this

section. The performance dashboard shall be made available by the

office on the fund's website and shall be updated at least

annually. The performance dashboard shall include the following

measures:

(a) Direct and indirect economic impacts in this state of the

assistance authorized by this section.

(b) Direct and indirect job creation attributable to the

assistance authorized by this section.

attributable to the assistance authorized by this section.

(d) Any other measures considered relevant by the office or

the Michigan film advisory council.

(e) The name of each eligible production company and the

amount of each incentive dispersed for each state certified

qualified production.

(9) The Michigan film office shall not award funding after

September 30, ~~2017.~~2013.

(10) The legislature finds and declares that funding

authorized under this section to encourage diversification of the

economy, to encourage film production, to encourage investment, and

to encourage the creation of jobs in this state is a public purpose

and of paramount concern in the interest of the health, safety, and

general welfare of the citizens of this state. It is the intent of

the legislature that the economic benefits, film production,

investment, and the creation of jobs resulting from this section

shall accrue substantially within this state.

(11) The fund board may authorize the use of money

appropriated for the program authorized by this section for

administration of the program. However, the fund board shall not

use more than 4% of the annual appropriation for administering the

program authorized under this section.

(12) Beginning on September 30, 2011 and at the end of each

fiscal year thereafter, the commissioner shall certify the total

amount of unclaimed certificates of completion, agreements where

work has not commenced as required in subsection (4), and

agreements for qualified productions the commissioner reasonably

believes will not be completed. Funding allocated for qualified

productions described in the preceding sentence may be reallocated.

(13) As used in this section:

(a) "Above the line personnel" means a producer, director,

writer, actor, other than extras, or other similar personnel whose

compensation is negotiated prior to the start of the production.

(b) "Below the line crew" means persons employed by an

eligible production company for state certified qualified

production expenditures made after production begins and before

production is completed, including, but not limited to, a best boy,

boom operator, camera loader, camera operator, assistant camera

operator, compositor, dialogue editor, film editor, assistant film

editor, focus puller, Foley operator, Foley editor, gaffer, grip,

key grip, lighting crew, lighting board operator, lighting

technician, music editor, sound editor, sound effects editor, sound

mixer, steadicam operator, first assistant camera operator, second

assistant camera operator, digital imaging technician, camera

operator working with a director of photography, electric best boy,

grip best boy, dolly grip, rigging grip, assistant key for makeup,

assistant key for hair, assistant script supervisor, set

construction foreperson, lead set dresser, assistant key for

wardrobe, scenic foreperson, assistant propmaster, assistant audio

mixer, assistant boom person, assistant key for special effects,

and other similar personnel. Below the line crew does not include a

producer, director, writer, actor, or other similar personnel.

this state directly attributable to the production or development

of a qualified production that is a transaction subject to taxation

in this state and is a payment or compensation for nonresident

below the line crew, talent, management, or labor, not to exceed

$2,000,000.00 for any 1 employee or contractual or salaried

employee of a qualified production, including both of the

following:

(i) Payment of wages, benefits, or fees for talent, management,

or labor.

(ii) Payment to a personal services corporation or professional

employer organization for the services of a performing artist or

crew member if the personal services corporation or professional

employer organization is subject to taxation in this state on the

portion of the payment qualifying for funding under this section

and the payments received by the performing artist or crew member

that are subject to taxation under the income tax act of 1967, 1967

PA 281, MCL 206.1 to 206.713, and are withheld and paid to this

state in the amount provided under section ~~351 or~~ 703 of the income

tax act of 1967, 1967 PA 281, MCL ~~206.351 and~~ 206.703.

(d) "Direct production expenditure" means a development,

preproduction, production, or postproduction expenditure made in

this state directly attributable to the production or development

of a qualified production that is a transaction subject to taxation

in this state. Direct production expenditure does not include out-

of-state production costs that are made in this state even if the

costs are passed through a third-party company in this state or

payments made by an eligible production company to its parent

company, affiliate, subsidiary, or joint venture partner except

where the payments are for transactions entered into pursuant to

arm's-length negotiations and which reflect a commercially

reasonable price for the goods and services purchased. A direct

production expenditure must have true economic substance within the

state. Direct production expenditure does not include a prize

payable to participants in a game show; an expenditure for

entertainment, amusement, or recreation; or an expenditure of more

than $2,500.00 for the purchase of artwork or jewelry used in a

production. Direct production expenditure does not include a

Michigan personnel expenditure, a qualified personnel expenditure,

or a crew personnel expenditure. Direct production expenditure

includes payments to vendors doing business in this state to

purchase or use tangible personal property in producing the

qualified production or to purchase services relating to the

production or development of the qualified production, including

all of the following:

(i) Production work, production equipment, production software,

development work, postproduction work, postproduction equipment,

postproduction software, set design, set construction, set

operations, props, lighting, wardrobe, makeup, makeup accessories,

photography, sound synchronization, special effects, visual

effects, audio effects, digital effects, film processing, music,

sound mixing, editing, interactive game development and

programming, and related services and materials.

(ii) Use of facilities or equipment, use of soundstages or

studios, location fees, and related services and materials.

(iii) Catering, food, lodging, and related services and

materials.

(iv) Use of vehicles, which may include chartered aircraft

based in this state used for transportation in this state directly

attributable to production of a qualified production, but may not

include the chartering of aircraft for transportation outside of

this state.

(v) Commercial airfare if purchased through a travel agency or

travel company based in this state for travel to this state or

within this state directly attributable to production or

development of a qualified production.

(vi) Insurance coverage or bonding if purchased from an

insurance agent based in this state.

(vii) Interest on a loan, if the entity from which the

financing is obtained is a public, private, or institutional entity

with the requisite level of physical presence in this state that is

not related to or affiliated with the eligible production company

or any above the line personnel or cast members, and whose

principal business activity is the lending of money to individuals

and businesses. In addition, the financing shall be a good faith

loan, payable by the eligible production company, evidenced by an

enforceable promissory note or other debt instrument with clear

repayment obligations and bearing a market-related rate of

interest.

(viii) Other expenditures for production of a qualified

production in accordance with generally accepted entertainment

industry practices.

(e) "Eligible production company" or "company" means an entity

in the business of producing qualified productions or for

interactive games in the business of developing interactive games,

but does not include an entity that is more than 30% owned,

affiliated, or controlled by an entity or individual who is in

default on a loan made by this state, a loan guaranteed by this

state, or a loan made or guaranteed by any other state. For an

interactive game, an eligible production company need not possess

ownership of or legal control over all of the intellectual property

rights or other rights necessary to complete the qualified

production in its entirety nor be the same entity that distributes

or publishes the interactive game.

(f) "Made in this state" means, for purposes of subdivision

(i) Tangible personal property and services acquired by the

eligible production company from a source within this state. If an

item of tangible personal property is not available from a source

within this state and a vendor with the requisite physical presence

in this state that regularly sells or leases property of that kind

obtains the property from an out-of-state vendor and sells or

leases it to an eligible production company, that expenditure is

considered made in this state and is a direct production

expenditure and not an out-of-state production cost.

(ii) Services wholly performed within this state.

(g) "Michigan personnel expenditure" means an expenditure made

in this state directly attributable to the production or

development of a qualified production that is a transaction subject

to taxation in this state and is a payment or compensation payable

to below the line crew for below the line crew members who are

residents of this state and above the line personnel for above the

line personnel who are residents of this state, not to exceed

$2,000,000.00 for any 1 employee or contractual or salaried

employee who performs service in this state for the production of a

qualified production, including both of the following:

(i) Payment of wages, benefits, or fees.

(ii) Payment to a personal services corporation or professional

employer organization for the services of a performing artist or

crew member if the personal services corporation or professional

employer organization is subject to taxation in this state on the

portion of the payment qualifying for funding under this section

and the payments received by the performing artist or crew member

that are subject to taxation under the income tax act of 1967, 1967

PA 281, MCL 206.1 to 206.713, are withheld and paid to this state

in the amount provided under section ~~351 or~~ 703 of the income tax

act of 1967, 1967 PA 281, MCL ~~206.351 and~~ 206.703.

(h) "Obscene matter or an obscene performance" means matter

described in 1984 PA 343, MCL 752.361 to 752.374.

(i) "Postproduction expenditure" means a direct expenditure

for editing, Foley recording, automatic dialogue replacement, sound

editing, special or visual effects including computer-generated

imagery or other effects, scoring and music editing, beginning and

end credits, negative cutting, soundtrack production, dubbing,

subtitling, or addition of sound or visual effects. Postproduction

expenditure includes direct expenditures for advertising,

marketing, or related expenses.

(j) "Postproduction facility" means a permanent facility

within this state equipped for the postproduction of motion

pictures, television shows, or digital media production that meets

all of the following requirements:

(i) Includes at least 3,000 square feet of contiguous space.

(ii) Includes at least 8 work stations.

(iii) Has been a qualified film and digital media infrastructure

project from which an investment expenditure certificate was issued

under section 457 of the Michigan business tax act, 2007 PA 36, MCL

208.1457, or has been the location of a state certified qualified

production for which a postproduction certificate of completion was

issued under section 455 of the Michigan business tax act, 2007 PA

36, MCL 208.1455, or both.

(k) "Producer" means an individual without regard to his or

her actual title or screen credit involved in or responsible for

any of the following:

(i) Funding for financing in whole or in part, or arranging for

the funding, or financing, of the qualified production.

(ii) Obtaining the creative rights to or the intellectual

property for development or production of the qualified production.

(iii) Hiring above the line personnel.

(iv) Supervising the overall production of the qualified

production.

(v) Arranging for the exhibition of the qualified production.

(l) "Qualified facility" means a permanent facility within this

state equipped for the production of motion pictures, television

shows, or digital media production that meets all of the following

requirements:

(i) Includes more than 1 soundstage.

(ii) Includes not less than 3,000 square feet of contiguous,

column-free space for production activities with a height of at

least 12 feet.

(iii) Includes any grid and sufficient built-in electric service

for shooting without the need of portable electric generators.

(iv) Has been a qualified film and digital media infrastructure

project for which an investment expenditure certificate was issued

under section 457 of the Michigan business tax act, 2007 PA 36, MCL

208.1457, or has been the location of a state certified qualified

production for which a postproduction certificate of completion was

issued under section 455 of the Michigan business tax act, 2007 PA

36, MCL 208.1455, or both.

(m) "Qualified personnel expenditure" means an expenditure

made in this state directly attributable to the production or

development of a qualified production that is a transaction subject

to taxation in this state and is a payment or compensation for

nonresident above the line personnel, talent, management, or labor,

not to exceed $2,000,000.00 for any 1 employee or contractual or

salaried employee of a qualified production, including both of the