77-4929. Wage benefit credit; recapture or disallowance; interest and penalties.

(1) If the company fails either to meet the required levels of employment or investment for the project by the end of the sixth year after the end of the year the application was filed for such project or to utilize such project in a qualified business at or above the required levels of employment and investment required in the Quality Jobs Act for the entire entitlement period, all or a portion of the wage benefit credit shall be recaptured directly by the state from the company or shall be disallowed. In no event shall any wage benefit credit be required to be paid back directly or indirectly by the employees, but instead shall be paid by the company.

(2) The recapture or disallowance shall be as follows:

(a) In the case of a company which has failed to meet the required levels within the required time period, all wage benefit credits shall be disallowed, and if any have been received, they shall be recaptured or paid by the company to the state; and

(b) In the case of a company which has failed to maintain the project at the required levels of employment and investment for the entire entitlement period: (i) No wage benefit credits shall be allowed, and if already allowed shall be recaptured, for the actual year or years in which the required levels of employment or investment were not maintained; (ii) for wage benefit credits allowed in prior years, one-tenth of the credits shall be recaptured from the company for each year the required levels of employment or investment were not maintained; and (iii) as to wage benefits credits for future years, one-tenth of the credits shall not be allowed for each year the required levels of employment or investment were not maintained in previous years.

(3) Any amounts required to be recaptured shall be deemed to be an underpayment of tax, shall be immediately due and payable, and shall constitute a lien on the assets of the company. When wage benefit credits were received in more than one year, the credits received in the most recent year shall be recovered first and then the credits received in earlier years up to the extent of the required recapture.

(4) Interest and penalties accrue as follows:

(a) In the case of a company which has failed to meet the required levels within the required time period, interest accrues from the time the withholding should have been returned to the state;

(b) In the case of a company which has failed to maintain the project at the required levels of employment and investment for the entire entitlement period, interest first accrues from the time of the due date for the return for the year in which the company failed to maintain the required levels; and

(c) Penalties do not accrue until ninety days after the requirement for recapture or disallowance becomes known or should have become known to the company.

(5) The recapture or disallowance required by this section may be waived by the board if the board finds the failure to attain or maintain the required levels of employment or investment was caused by unavoidable circumstances such as an act of God or national emergency.

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