Can a Georgia tax-exempt nonprofit claim the Jobs, Less Developed Census Tract Jobs, or Quality Jobs Tax Credits for its exempt or unrelated-business activities?
Short answer: Not for the nonprofit's tax-exempt activity. The Department found that the organization was not a taxpayer for the Quality Jobs Tax Credit and was not a business enterprise for the Jobs or Less Developed Census Tract Jobs credits. It may qualify through unrelated-business-income activity, however: qualifying jobs at separate, identifiable profit-seeking establishments may generate credits that can be applied against tax on that unrelated business income.
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This page answers the general question as of 2017. Ezel answers yours, under current Georgia tax law, with citations.
Currency note: this ruling is from 2017
Subsequent statutory amendments, regulation changes, court decisions, or later rulings may have changed the analysis. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, rate, or position mentioned here.
Disclaimer: This is an official Letter Ruling of the Georgia Department of Revenue. It is binding on the Department only with respect to the taxpayer who requested it and the specific facts presented, and it may be superseded by a later change in statute, regulation, or Department policy; no other taxpayer may rely on it. This summary is informational only and is not legal or tax advice. Consult a licensed Georgia tax professional about your situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official state tax ruling. The original ruling (linked on this page as a PDF) is the authoritative source for any reliance.
The requesting organization was a Georgia nonprofit exempt from federal and Georgia income tax on its exempt activities. It nevertheless earned unrelated business income (UBI), filed federal Form 990-T and Georgia Form 600-T, and paid tax on that income. It asked whether it could claim Georgia's Jobs Tax Credit, Less Developed Census Tract (LDCT) Jobs Tax Credit, or Quality Jobs Tax Credit either for its exempt operations or for activity that generated UBI.
The Department drew a firm line between the two kinds of activity:
Tax-exempt activity did not qualify. For the Quality Jobs Tax Credit, the organization was not a "taxpayer" merely because it filed informational forms. For the Jobs and LDCT Jobs credits, the nonprofit as a whole was not a qualifying "business enterprise" based on its tax-exempt activity.
UBI-generating activity could qualify. The organization was a taxpayer as to UBI because it filed a return and paid tax on that income. It could potentially earn the Quality Jobs Tax Credit from that activity, but could not count jobs created through exempt activity. Separate, identifiable establishments that sought profit and generated UBI could also qualify as business enterprises for the Jobs and LDCT Jobs credits, with the resulting credits applied against tax on UBI.
What this means for you
Tax-exempt organizations
Tax-exempt status does not by itself open Georgia's job-credit programs. Filing Form 990 or another information return was not enough to make this organization a taxpayer for the Quality Jobs Tax Credit, and exempt nonprofit operations were not treated as a business enterprise for the other two credits.
Nonprofits with unrelated business income
UBI can create a narrower credit opportunity. The ruling allows only a conditional path: the jobs must arise from UBI-generating activity, and for the Jobs or LDCT Jobs credits the organization must identify qualifying individual establishments that seek profit and generate UBI. Jobs from exempt activity cannot be mixed into the credit calculation.
Accountants and tax professionals
Separate the organization's exempt functions from each UBI-generating establishment. The ruling's eligibility analysis turns on what activity created the jobs, whether a particular establishment meets the business-enterprise definition, and whether the credit is applied to tax on UBI.
Common questions
Q: Can a nonprofit claim the Quality Jobs Tax Credit for jobs in its exempt program?
A: No. The Department said the organization was not a taxpayer for its exempt activity and could not count jobs created through that activity.
Q: Does filing an annual information return make an exempt organization a taxpayer for this credit?
A: No. The Department distinguished informational filings from income-tax returns used to report and pay tax, and rejected the organization's reliance on a signature-rule definition of "return."
Q: Can unrelated business income support a Quality Jobs Tax Credit?
A: Potentially. The Department said the organization would be a taxpayer with respect to UBI-generating activity because it files a return and pays tax on that income. Only jobs tied to that activity may count.
Q: Can one part of a nonprofit qualify as a business enterprise?
A: Potentially. Separate and identifiable individual establishments that seek profit and generate UBI may qualify on an establishment-by-establishment basis for the Jobs and LDCT Jobs credits.
Q: What tax can the resulting credits offset?
A: The ruling says credits generated by qualifying UBI establishments could be applied to tax on the organization's UBI.
Q: Can another nonprofit rely on this ruling?
A: No. The ruling is limited to the requesting organization, facts, transactions, and circumstances, and warns that factual, statutory, administrative, or judicial changes may alter the result.
Citations and references
Statutes and regulations:
O.C.G.A. § 48-7-25 -- exemption for qualifying organizations and tax on unrelated business income
O.C.G.A. § 48-7-40 -- Jobs Tax Credit and business-enterprise definition
O.C.G.A. § 48-7-40.1 -- LDCT Jobs Tax Credit and business-enterprise definition
O.C.G.A. § 48-7-40.17 -- Quality Jobs Tax Credit and taxpayer definition
O.C.G.A. § 48-1-2 -- general taxpayer definition cited by the Department
O.C.G.A. §§ 48-7-50 and 48-7-51 -- income-tax return requirements cited in the analysis
Ga. Comp. R. & Regs. r. 560-7-3-.09 -- exempt-organization filing requirements
Ga. Comp. R. & Regs. r. 560-3-2-.27 -- signature requirements and the definition the organization invoked
Georgia Letter Ruling: LR IT-2017-03
Topic:
Quality Jobs Tax Credit and Jobs Tax Credit
Date Issued:
October 12, 2017
This letter is in response to your letter requesting a ruling on whether Organization is eligible as a taxexempt organization to claim the Jobs Tax Credit, Less Developed Census Tract (LDCT) Jobs Tax Credit,
and/or Quality Jobs Tax Credit.
Facts as Presented by the Organization
Your letter to the Department states:
“Organization is a nonprofit corporation formed in under the laws of Georgia. Pursuant to section
of the Internal Revenue Code (I.R.C.), as an organization organized and operated exclusively for
, Organization is exempt from federal income taxation under I.R.C. § . As such,
Organization is required to file Federal Form 990, Return of Organization Exempt from Income Tax.
Additionally, Organization is required to file Federal Form 990-T, Exempt Organization
Business Income Tax Return.1 As required by O.C.G.A. § 48-7-25(c)(1) and rules 560-7-3-.09(5) and (9)
of the Georgia Administrative Code, Organization similarly files with the Department copies of the
aforementioned forms required to be filed annually with the Internal Revenue Service (“IRS”). 2 Further,
as an exempt organization who derives unrelated business income from Georgia sources, and who is
required to file Federal Form 990-T, Organization annually files Georgia Form 600-T, Exempt Organization
Unrelated Business Income Tax Return.”
Issue #1
Whether Organization, as a tax exempt organization, is eligible for the Jobs Tax Credit, LDCT Jobs Tax
Credit, and/or Quality Jobs Tax Credit set out in O.C.G.A. §§ 48-7-40, 48-7-40.1, and 48-7-40.17?
Issue #2
Whether Organization, as a tax exempt organization, is eligible for the Jobs Tax Credit, LDCT Jobs Tax
Credit, and/or Quality Jobs Tax Credit through activity associated with its unrelated business income
(“UBI”)?
Authority
O.C.G.A. § 48-7-25 provides:
(a) The following organizations shall be exempt from taxation imposed by Code Section
48-7-21 as indicated:
(1) Subject to subsections (b) and (c) of this Code section, those organizations which are
exempt from federal income taxation pursuant to Section 501(c), 501(d), 501(e), 664, or
401 of the Internal Revenue Code of 1986 shall be deemed to have similar exempt status
for purposes of Code Section 48-7-21; and
(2) Insurance companies which pay to the state a tax upon premium income.
....
1 Instructions for Form 990-T (Jan. 15, 2016).
2 “All exempt organizations, described in O.C.G.A. § 48-7-25(a)(1), which have sufficient activity in Georgia to be
declared a taxable entity (if not so exempt), shall file annually, with the State Revenue Commissioner, a copy of the
form(s) filed annually with the Internal Revenue Service . . . .” Ga. Comp. R. & Regs. r. 560-7-3-.09(5)(a).
LR IT-2017-03
Quality Jobs Tax Credit and Jobs Tax Credit
October 12, 2017
Page 2 of 5
(c)(1) A tax is imposed on income of an organization exempted pursuant to paragraph (1)
of subsection (a) of this Code section when the income is derived from trade or business
which is not related to exempt purposes of organizations described in paragraph (1) of
subsection (a) of this Code section. This income shall be referred to as unrelated business
income and shall be the income which is defined in Section 512 of the Internal Revenue
Code of 1986. The tax imposed on unrelated business income shall be at the rate provided
in Code Section 48-7-21.
....
O.C.G.A. § 48-7-40 provides:
(a) As used in this Code section, the term:
....
(2) "Business enterprise" means any business or the headquarters of any such business
which is engaged in manufacturing, including, but not limited to, the manufacturing of
alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric
vehicle enterprises, warehousing and distribution, processing, telecommunications,
broadcasting, tourism, research and development industries, biomedical manufacturing,
and services for the elderly and persons with disabilities. Such term shall not include retail
businesses. Businesses are eligible for the tax credit provided by this Code section at an
individual establishment of the business based on the classification of the individual
establishment under the North American Industry Classification System. For purposes of
this Code section, the term "establishment" means an economic unit at a single physical
location where business is conducted or where services or industrial operations are
performed. If more than one business activity is conducted at the establishment, then only
those jobs engaged in the qualifying activity will be eligible for the tax credit provided by
this Code section.
O.C.G.A. § 48-7-40.1 provides:
(a) As used in this Code section, the term:
....
(2) "Business enterprise" means any business or the headquarters of any such business
which is engaged in manufacturing, including, but not limited to, the manufacturing of
alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric
vehicle enterprises, warehousing and distribution, processing, telecommunications,
broadcasting, tourism, biomedical manufacturing, and research and development
industries. Such term shall not include retail businesses. Businesses are eligible for the tax
credit provided by this Code section at an individual establishment of the business based
on the classification of the individual establishment under the North American Industry
Classification System. For purposes of this Code section, the term "establishment" means
an economic unit at a single physical location where business is conducted or where
services or industrial operations are performed. If more than one business activity is
conducted at the establishment, then only those jobs engaged in the qualifying activity will
be eligible for the tax credit provided by this Code section.
O.C.G.A. § 48-7-40.17 provides:
(a) As used in this Code section, the term:
LR IT-2017-03
Quality Jobs Tax Credit and Jobs Tax Credit
October 12, 2017
Page 3 of 5
....
(6) "Taxpayer" means any person required by law to file a return or to pay taxes, except
that any taxpayer may elect to consider the jobs within its disregarded entities, as defined
in the Internal Revenue Code, for purposes of calculating the number of new quality jobs
created by the taxpayer under this Code section.
Ruling
Ruling on Issue #1
Based on the facts provided by Organization, it is not eligible for the Jobs Tax Credit, LDCT Jobs Tax
Credit, or Quality Jobs Tax Credit based on its tax-exempt activity. Organization is ineligible for the
following reasons.
First, with respect to the Quality Jobs Tax Credit, Organization is not a taxpayer. The Quality Jobs Tax
Credit and the Revenue Code’s general definition statute define “taxpayer” as “any person required by law
to file a return or to pay taxes.” O.C.G.A. §§ 48-1-2, 48-7-40.17(a)(3). The Department has previously
interpreted this definition to exclude exempt organizations because they are only required to file an
“information return” pursuant to O.C.G.A. § 48-7-25(b)(2)(iv)(B) and Revenue Rule 560-7-3-.09.
Organization argues that an “information return” is a “return” within the meaning of these definitions under
Revenue Rule 560-3-2-.27(2)(h), which states “‘[r]eturn’ shall mean any tax return, registration
application, form, signature form, or information return required to be filed with the Department.”
Organization’s use of this authority is unpersuasive because there is no evidence that the Department
intended this definition to apply to the use of the term “return” in the income tax statutes and rules for the
purposes of reporting and paying income taxes. Revenue Rule 560-3-2-.27 is titled “Signature
Requirements For Tax Returns” and is contained within the Revenue Rule Chapter 560-3 which is titled
“Fiscal Operations Division.” The limited purpose of this Rule is to “define terms and explain the
requirements for signatures under Title 48.” Revenue Rule 560-3-2-.27(1).3
Moreover, Revenue Rule 560-7-3-.09, which establishes filing requirements for exempt organizations like
Organization, uses the term in various ways which have nothing to do with reporting income for income
tax purposes:
Paragraph (1)(a)(1):
A copy of the Internal Revenue Service determination letter, along with a copy of all
formation documents must be attached to the applicable, initial exempt organization tax
return filed with the State of Georgia.
Paragraph (5):
Annual requirement of filing forms:
(a) All exempt organizations, described in O.C.G.A. § 48-7-25(a)(1), which have
3 This does not mean that Department Rule 560-3-2-.27 is in any way invalid or does not apply to income tax
returns – income tax returns clearly fall within the definition of “return” in paragraph (2)(h) of this Rule and must
meet the Rule’s signature requirements. The limited purpose of this Rule simply means that it is not an appropriate
source of authority to determine the meaning of “return” as used in the statutes at issue here, O.C.G.A. §§ 48-1-2
and 48-7-40.17.
LR IT-2017-03
Quality Jobs Tax Credit and Jobs Tax Credit
October 12, 2017
Page 4 of 5
sufficient activity in Georgia to be declared a taxable entity (if not so exempt),
shall file annually, with the State Revenue Commissioner, a copy of the form(s)
filed annually with the Internal Revenue Service, unless such organization has
received written exemption from the filing requirements from the Internal Revenue
Service. Such filings shall be made within the period prescribed for filing said
forms with the Internal Revenue Service. For taxable years beginning on or after
January 1, 2008, the initial return filed by an exempt organization described in
O.C.G.A. § 48-7-25(a)(1), must include a copy of the determination letter received
from the Internal Revenue Service granting exempt status, as well as a copy of all
formation documents. The return will be rejected if these required documents are
not attached. In addition, the Commissioner may require whatever additional forms
and data he or she reasonably deems necessary for the proper administration of the
tax laws of this State.
(b) The filing of annual returns as described in subparagraph (a) of this paragraph
fulfills the requirement for filing annual returns under the Georgia Trust Act.
(emphasis added). Hence, “return” as referenced in Revenue Rules 560-3-2-.27 and 560-7-3-.09 is distinct
from a “return” filed to report taxable income. See, e.g., O.C.G.A. §§ 48-7-50(a) (“An income tax return
with respect to the tax imposed by this chapter shall be filed with the commissioner by every: (1) Resident
who is required to file a federal income tax return for the taxable year; (2) Nonresident who has federal
gross income from sources within this state. . . .”); 48-7-51 (“Every corporation subject to taxation under
this chapter shall make a return stating specifically the items of its gross income and the deductions and
credits allowed by this chapter.”). Because income tax credits must be strictly construed, the term “return”
in O.C.G.A. § 48-7-40.17(a)(3) should be construed to refer to income tax returns, not every informational
form required to be filed with the Department. See Citibank (South Dakota), N.A. v. Graham, 315 Ga.
App. 120, 122 (2012) ((“Deductions, tax credits and refunds ‘are allowed as a matter of legislative grace
and are authorized only where there is a clear statutory provision for them.’”) (quoting Brosnan v.
Undercofler, 111 Ga. App. 95, 96 (1965))).
Second, Organization, based on the facts presented, is specifically ineligible for the Jobs and LDCT Jobs
Tax Credits because it is not a “business enterprise.” Under O.C.G.A. §§ 48-7-40 and 48-7-40.1, a
“business enterprise” is allowed a job tax credit when certain employment criteria are met. Organization is
incorporated under the Georgia Nonprofit Corporation Code, which is separate and distinct from the
Georgia Business Corporation Code governing for-profit corporations. See O.C.G.A. §§ 14-2-101 to 142-1703, 14-3-101 to 14-3-1703. As a tax-exempt organization incorporated under the Georgia Nonprofit
Corporation Code, Organization as a whole cannot be considered a “business enterprise” within the plain
meaning and ordinary use of those words. Nor does it fall within the statutory definition of “business
enterprise” based on its tax-exempt activity.
Ruling on Issue #2
Organization may be eligible for Quality Jobs Tax Credit based on its UBI generating activity. As discussed
above, Organization would be a taxpayer with respect to UBI generating activity since it would file a return
and pay taxes. However, Organization is only eligible for these credits based on UBI generating activity –
it may not count jobs created through tax-exempt activity toward these tax credits.
Additionally, parts of the Organization may meet the “business enterprise” requirement for the Jobs and
LDCT Jobs Tax Credit if there are different individual establishments of Organization. Under O.C.G.A.
§§ 48-7-40(a)(2) and 48-7-40.1(a)(2), an entity may be eligible for these credits based on activity at an
“individual establishment” rather than the entity as a whole. Accordingly, even though Organization as a
whole is not a “business enterprise,” if Organization has separate and identifiable individual establishments
LR IT-2017-03
Quality Jobs Tax Credit and Jobs Tax Credit
October 12, 2017
Page 5 of 5
that seek profit and generate UBI, then these may qualify as “business enterprises” on an establishment-byestablishment basis. Jobs created at these establishments could count toward these tax credits which could
then be applied to tax on Organization’s UBI.
The opinions expressed in this ruling are based upon the information contained in your request and
limited to the specific transactions, facts, circumstances and taxpayer in question. The facts herein
are those presented by the taxpayer and the Department accepts them as true for this ruling. If the
facts presented herein change, are not true, are different, or material facts have been omitted, the
conclusions reached in this ruling may change. In addition, subsequent statutory or administrative
rule changes or judicial interpretations of the statutes or rules upon which this advice is based may
subject similar future transactions to a different tax treatment than that expressed in this ruling.
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