(a) Except as otherwise provided in Government Code, §403.604(a), the number of required jobs may not be waived.
(b) The wage requirement applies to required jobs and additional jobs, as the terms are defined in §9.5000 of this title and Government Code, §403.602. The wage requirement may not be waived.
(c) The comptroller shall conduct a biennial review of the periods covered by two consecutive reports submitted by an agreement holder to determine whether the agreement holder has created the number of required jobs and has met the wage requirement under Government Code, Chapter 403.
(d) To make the determination, the comptroller may:
  (1) review the Biennial Compliance Report submitted by the agreement holder;
  (2) request additional information from the agreement holder to substantiate the number of required jobs and the wage requirement and/or inspect the eligible property with a 3-day advance notice to the agreement holder in order to perform the inspection at a mutually agreeable time during regular business hours; or
  (3) consider any other information that is available to the comptroller.
(e) The comptroller may issue a determination that a job created by the agreement holder is not a required job if the job as identified by the agreement holder:
  (1) does not provide 1,600 hours or more of work for that year;
  (2) is not a new job but rather a position that was transferred from a facility of the agreement holder from one area of the state to the project covered by the agreement, unless the agreement holder fills the vacancy caused by the transfer;
  (3) is not a new job but rather a position that replaced an existing job of the agreement holder, unless the agreement holder filled the vacancy caused by the replacement;
  (4) is not covered by a group health benefit plan for which the agreement holder contributes; or
  (5) does not meet the wage requirement.
(f) If the comptroller makes a determination that the agreement holder did not create the required number of jobs or meet the wage requirement, the comptroller shall provide notice to the agreement holder, which shall include an explanation for the adverse determination.
(g) If the comptroller finds that an agreement holder received two consecutive adverse determinations for failing to meet the wage requirement prescribed by the agreement, the comptroller shall impose a penalty on the agreement holder in an amount equal to two times the difference between:
  (1) the product of:
    (A) the actual average annual wage paid to all persons employed by the agreement holder in connection with the project that is the subject of the agreement as computed under Government Code, §403.612(b)(6); and
    (B) the number of required jobs prescribed by the agreement; and
  (2) the product of:
    (A) the average annual wage prescribed by the agreement; and
    (B) the number of required jobs prescribed by the agreement.
(h) If the comptroller finds that an agreement holder received two consecutive adverse determinations for failing to maintain at least the number of required jobs prescribed by the agreement, the comptroller shall impose a penalty on the agreement holder in an amount equal to two times the difference between:
  (1) the product of:
    (A) the number of required jobs prescribed by the agreement; and
    (B) the number of required jobs actually created as stated in the most recent report submitted by the agreement holder under Government Code, §403.616; and
  (2) the average annual wage prescribed by the agreement during the most recent four quarters for which data is available, as computed by the Texas Workforce Commission.
(i) A determination by the comptroller under subsection (f) of this section is a deficiency determination under Tax Code, §111.008. A penalty imposed under this section is an amount the comptroller is required to collect, receive, administer, or enforce and is subject to the payment and redetermination requirements of Tax Code, §111.0081 and §111.009. A redetermination under Tax Code, §111.009, of a determination under this section is a contested case as defined by Government Code, §2001.003.
(j) In no event shall a penalty imposed under this section exceed the amount of the ad valorem tax benefit received by the agreement holder under the agreement.
(k) The comptroller shall deposit a penalty collected under this section and any interest on the penalty to the credit of the foundation school fund.

Source Note: The provisions of this §9.5008 adopted to be effective January 16, 2024, 49 TexReg 134