Section 135.516

Title X TAXATION AND REVENUE

Chapter 135

Effective - 28 Aug 2003   

  135.516.  Schedule of qualified investments — qualified distributions, when, requirements — qualified investment cost limit — company documents as closed records, when — company report to department of economic development. — 1.  To continue to be certified, a Missouri certified capital company shall make qualified investments according to the following schedule:

  (1)  Within two years after the date on which a Missouri certified capital company is designated as a Missouri certified capital company at least twenty-five percent of its certified capital shall be, or have been, placed in qualified investments;

  (2)  Within three years after the date on which a Missouri certified capital company is designated as a Missouri certified capital company at least forty percent of its certified capital shall be, or have been, placed in qualified investments;

  (3)  Within four years after the date on which a Missouri certified capital company is designated as a Missouri certified capital company, at least fifty percent of its total certified capital shall be, or have been, placed in qualified investments.  A Missouri certified capital company may not make an investment in an affiliate of the certified capital company.  For the purposes of this subsection, if a legal entity is not an affiliate before a certified capital company initially invests in the entity, it will not be an affiliate if a certified capital company provides additional investment in such entity subsequent to its initial investment;

  (4)  A certified capital company, at least fifteen working days prior to making what it determines to be an initial qualified investment in a specific qualified Missouri business, shall certify to the department that the company in which it or a qualified investing entity proposes to invest is a qualified Missouri business.  The certified capital company shall state the amount of capital it or a qualified investing entity intends to invest and the name of the business in which it or a qualified investing entity intends to invest.  The certified capital company shall also provide to the department an explanation of its determination that the business meets the definition of a qualified Missouri business.  If the department determines that the business does not meet the definition of a qualified Missouri business, it shall, within the fifteen-working-day period prior to the making of the proposed investment, notify the certified capital company of its determination and an explanation thereof.  If the department fails to notify the certified capital company with respect to the proposed investment within the fifteen-working-day period prior to the making of the proposed investment, the company in which the certified capital company or a qualified investing entity proposes to invest shall be deemed to be a qualified Missouri business.  If a certified capital company fails to notify the department prior to making an initial investment in a business, the department may subsequently determine that the business in which the certified capital company or a qualified investing entity invested was not a qualified Missouri business even though the business, at the time of the investment, met the requirements of subdivision (15) of subsection 2 of section 135.500;

  (5)  All certified capital which is not required to be placed in qualified investments or which has been placed in qualified investments and can be received by the company, may be held or invested in such manner as the Missouri certified capital company, in its discretion, deems appropriate.  The proceeds of all certified capital which is received by a certified capital company after it was originally placed in qualified investments may be placed again in qualified investments and shall count toward any requirement in sections 135.500 to 135.529 with respect to placing certified capital in qualified investments.

  2.  A certified capital company may make qualified distributions at any time.  In order to make distributions, other than qualified distributions, a certified capital company must have made cumulative qualified investments, including those made through a qualified investing entity, in an amount cumulatively equal to at least one hundred percent of its certified capital.  Cumulative distributions to equity holders, other than qualified distributions, in excess of the certified capital company's original certified capital and any additional capital contributions to the certified capital company shall be subject to audit by a nationally recognized certified public accounting firm acceptable to the department, at the expense of the certified capital company.  The audit shall determine whether aggregate cumulative distributions to all investors and equity holders, other than qualified distributions, when combined with all tax credits utilized by investors pursuant to sections 135.500 to 135.529, have resulted in an annual internal rate of return of fifteen percent computed on the sum of total original certified capital of the certified capital company and any additional capital contributions to the certified capital company.  Twenty-five percent of distributions made, other than qualified distributions, in excess of the amount required to produce a fifteen percent annual internal rate of return, as determined by the audit, shall be payable by the certified capital company to the Missouri development finance board.  Distributions or payments to debt holders of a certified capital company, however, may be made without restriction with respect to debt owed to them by a certified capital company.  A debt holder that is also an investor or equity holder of a certified capital company may receive distributions or payments with respect to such debt without restriction.

  3.  No qualified investment may be made at a cost to a Missouri certified capital company greater than fifteen percent of the total certified capital under management of the Missouri certified capital company at the time of investment.

  4.  Documents and other materials submitted by Missouri certified capital companies or by businesses for purposes of the continuance of certification may be deemed "closed records" pursuant to the provisions of section 620.014.

  5.  Each Missouri certified capital company shall report the following to the department:

  (1)  As soon as practicable after the receipt of certified capital, the name of each investor from which the certified capital was received, the amount of each investor's investment of certified capital and tax credits computed without regard to any limitations under subsection 3 of section 135.503, and the date on which the certified capital was received;

  (2)  On a quarterly basis, the amount of the Missouri certified capital company's certified capital at the end of the quarter, whether or not the Missouri certified capital company has invested, together with any investments made by a qualified investing entity that are deemed to have been made by the certified capital company, more than fifteen percent of the total certified capital under management in any one company, and all qualified investments that the Missouri certified capital company has made or has been deemed to have been made through a qualified investing entity;

  (3)  Each Missouri certified capital company shall provide annual audited financial statements to the department which include an opinion of an independent certified public accountant to the department within ninety days of the close of the fiscal year.  At the same time, the certified capital company shall also provide audited financial statements for any qualified investing entity that has made qualified investments on its behalf, unless the financial results of such qualified investing entity are included in the consolidated financial statements of the certified capital company.  The audit shall address the methods of operation and conduct of the business of the Missouri certified capital company to determine if the Missouri certified capital company is complying with the statutes and program rules and that the funds received by the Missouri certified capital company have been invested as required within the time limits provided by sections 135.500 to 135.529.

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(L. 1996 H.B. 1237, A.L. 1997 2d Ex. Sess. S.B. 1, A.L. 2003 H.B. 289)