§ 68-2357.74B. Recapture event - Tax increase due to recaptured credit amount.

A.  As used in this section, “recapture event” means that with respect to a qualified investment in an Oklahoma rural small business venture:

1.  The Oklahoma rural small business venture fails to expend at least fifty percent (50%) of the proceeds of qualified investments for acquisition of tangible or intangible assets to be used in the active conduct of the trade or business or for working capital for the active conduct of the trade or business of the rural small business venture within eighteen (18) months after the qualified investment is made or within an extension of such period as provided in Section 2357.72 of this title.  For purposes of this paragraph, “working capital” shall not include consulting, brokerage or transaction fees;

2.  The investment in the rural small business venture is transferred, withdrawn or otherwise returned within five (5) years; provided, a “recapture event” shall not include the transfer, withdrawal or return of an investment as a result of a “market-based liquidity event”.  As used in the Rural Venture Capital Formation Incentive Act, a “market-based liquidity event” means that an Oklahoma rural small business venture:

a.sells all or substantially all of its assets to, or is acquired by share acquisition, share exchange, merger, consolidation or other similar transaction by another person or entity other than:

(1)a person or entity controlled by a person that made a qualified investment in the qualified rural small business capital company that provided funds for use by the Oklahoma rural small business venture, or

(2)a person or entity controlled by a person that made an investment in conjunction with a qualified investment made by the qualified rural small business capital company that provided funds for use by the Oklahoma rural small business venture,

b.conducts an initial public offering of a class of its equity securities pursuant to the requirements of the United States Securities and Exchange Commission or other applicable federal law governing the sale of securities in interstate commerce,

c.makes an amortization payment under the terms of a subordinated debt instrument, or

d.repays indebtedness from net income as determined in accordance with generally accepted accounting principles or proceeds of the sale of assets in the ordinary course of business; or

3.  The Oklahoma Tax Commission finds that the qualified investment does not meet the requirements of the Rural Venture Capital Formation Incentive Act.

B.  If a recapture event occurs with respect to a qualified investment for which a credit authorized by either Section 2357.73 or Section 2357.74 of this title has been claimed, the tax imposed pursuant to the applicable provisions of Title 36 or this title of the Oklahoma Statutes against which the credit has been claimed shall be increased to the extent of the recaptured credit amount.

C.  For purposes of this section, the recapture amount shall be equal to the sum of:

1.  The aggregate decrease in the credits previously allowed to the taxpayer pursuant to Section 2357.73 or Section 2357.74 of this title for all prior taxable periods which would have resulted if no credit had been authorized with respect to the qualified investment; plus

2.  Interest at the rate prescribed by Section 217 of this title on the amount determined pursuant to paragraph 1 of this subsection for each prior taxable period for the period beginning on the due date for filing the applicable report or return for the prior taxable period.

D.  The tax for the taxable period shall be increased pursuant to this section only with respect to credits which were used to reduce tax liability.  In the case of credits not used to reduce tax liability, the carryforwards allowed shall be adjusted accordingly.

E.  For any transaction that is audited by the Tax Commission after such credits have been allowed, but which is subsequently determined to constitute a recapture event, the Tax Commission shall be required to disallow any and all credits claimed in violation of the requirements of this section or any other provision of the Rural Venture Capital Formation Incentive Act for a period of ten (10) years after the date as of which any applicable tax report or return utilizing such credits is filed.

F.  The provisions of subsection E of this section shall supersede any other provision of the Uniform Tax Procedure Code or any other state tax law that would prohibit the disallowance of such credits based upon an otherwise applicable statute of limitations.

G.  Notwithstanding any other provision of this section, a recapture event shall not occur with respect to qualified investments made by a qualified rural small business capital company that is also licensed as a rural business investment company under 7 U.S.C., Section 2009cc et seq., or any successor statute, at the time of the qualified investment.  The qualified rural small business capital company shall include in its annual report proof of a valid license under the federal statute.

Added by Laws 2006, c. 281, § 22, emerg. eff. June 7, 2006.  Amended by Laws 2008, c. 440, § 10.