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New regulations tighten state’s film tax credits

01:00 AM EDT on Tuesday, May 13, 2008

By Katherine Gregg

Journal State House Bureau

PROVIDENCE — Spurred by questions about how much Rhode Island has benefited financially from the $55 million-plus in tax write-offs it has offered television and movie producers as an incentive to film here, state officials took steps yesterday to tie the credits more closely to money spent here.

The first regulations filed with the secretary of state late yesterday afternoon will take effect in 20 days.

The basics have not changed: Rhode Island will still offer tax-credits equal to 25 percent of the “qualified expenses” of a movie or TV show shot here that an out-of-state producer can use to leverage financing or sell to one of the small cadre of brokers who buy them at a discount and then resell them, at a profit, to people and businesses with Rhode Island income tax liabilities.

But, in the future, a producer would have to buy such items as wardrobe, props, set construction materials, and even food, from an individual or company that “maintains a place of business in Rhode Island, is subject to Rhode Island taxation and is qualified to do business in Rhode Island” for any of those dollars to count toward the tax credit.

While some working within the industry in Rhode Island have voiced fear that any such tinkering will discourage producers from coming here, the rule changes were co-signed by Steven Feinberg, director of the state Film and Television Office, and state Tax Administrator David Sullivan.

Asked if he had his own concerns, Feinberg echoed both Sullivan and the new state revenue director, Gary Sasse, in an e-mail that said: “Since the rules and regulations were a complete collaboration between the Rhode Island Film & TV Office and the Department of Revenue — specifically, the Division of Taxation — I am fully supportive of them. We believe they help clarify the intent of the statute.

“Our goal is to maximize the benefits to the people of Rhode Island and we look forward to a positive response,” Feinberg said. But, “obviously, we will keep an eye on things in the event there needs to be any adjustments in the future.”

The tax incentives have been credited with bringing more than two dozen TV and movie productions to Rhode Island since 2005, including Evening, Dan in Real Life, 27 Dresses and the Showtime series Brotherhood, which is expected to film a third season here this summer.

To get a tax credit equal to 25 percent of its Rhode Island production costs on a feature-length film, video, video game, television series or commercial, a company has had to spend a minimum of $300,000 on items that are “directly attributable to activity within the state.”

The $55.7 million in tax credits that have been promised — and the $35.6 million awarded so far — were premised on $225.9 million in reported or anticipated spending.

But the state’s Film and Television Office has, up until now, taken its cues from the private accountants working for the film companies who have interpreted this phrase to mean: “All goods and services purchased for use in the production of the film in the state of Rhode Island will be included as a ‘state-certified production cost’ even if purchased outside of Rhode Island or from a non-Rhode Island vendor.”

That interpretation may have been costly to Rhode Island, according to records obtained by The Journal this past winter after a 15-month legal battle with the state film office and local lawyers for the out-of-state production companies.

The production company that spent 26 days here filming Hard Luck, a feature film starring Wesley Snipes and Cybill Shepherd that went straight to DVD, received a $2.65-million tax credit. That represented 25 percent of the roughly $11 million the company reported spending in Rhode Island on the production. But only $1.9 million of the $11 million went to “Rhode Island vendors or residents.”

State officials wrestling with a massive state deficit decided to limit the credits to money spent here, as opposed to food or wardrobe trucked in from somewhere else.

The lead actors, directors, writers and producers were already required to pay Rhode Island taxes on whatever portion of their earnings were attributable to their shooting days here. At the heart of the new rules is a first-ever definition of what constitutes a “qualified vendor” for everything from props and makeup to the costs associated with legal and accounting fees, photography, sound synchronization, lighting, film processing, sound mixing and music.

The Motion Picture Association of America tried, but failed, to persuade state officials to let the film companies decide what the public can see. Angela H. Miele, the association’s vice president for state tax policy, urged the adoption of language along these lines: “If an applicant submits information it considers to be of a confidential nature as part of its application or request for a tax credit certificate, such information shall be marked or labeled ‘CONFIDENTIAL’ in capital letters” and the film office “shall not disclose the materials to the public.”

But no such language made it into the final regulations.

kgregg@projo.com