Wetlands & Site Development

Lesta Ammons, a biologist from the US Army Corps of Engineers’ Buffalo Branch, spoke at this month’s breakfast meeting of the WNY chapter of the New York State Commercial Association of Realtors (NYSCAR). The topic of wetlands is a critical concern for commercial real estate and site development. While the issues of wetlands can pose challenges to site development, being properly educated and prepared can help mitigate any development delays.

– What are wetlands and why are they important?

You don’t have to come home just for the holidays…

66-page Buffalo Niagara relocation guide

by Matthew Hubacher, ResearchSpecialistLike many of my generation, I moved away from Western New York shortly after completing my undergraduate studies in order to begin my career and pursue a graduate degree.  After five years living and working in Washington, DC, I made the decision to return home to Buffalo Niagara to be close to family and friends.  I know first-hand the myriad of factors involved in a plan to relocate and the decisions one must make before committing to a final judgment.

Beyond seemingly straight-forward, but oftentimes complex, decisions such as “Where will I live?” and “How do I find a job?” several other critical factors influence one’s decision to relocate.  Family, education, cost-of-living, transportation, health care, and quality of life considerations are often difficult to decipher because information on these critical topics are scattered, scarce, or both.

To assist Buffalo Niagara expatriates – as well as those who have not yet called our region home – move to Western New York, Buffalo Niagara Enterprise compiled a Relocation Guide to assist those researching relocation to the area. The guide, available in both print and online editions, is a comprehensive informational resource that answers many questions that arise throughout the many phases of the relocation process.  The guide details the many reasons why Buffalo Niagara is “Where Life Works” by presenting data in three major sections: “Where” (community overviews, real estate, education), “Life” (cultural attractions, transportation, health care), and “Works” (employment resources).

I know from my experience as a returning Buffalo expat that Buffalo Niagara is a great place to live, work, and raise a family.  It is my sincere hope that those who are considering moving to Buffalo Niagara find the Buffalo Niagara Relocation Guide a detailed roadmap that helps them navigate their relocation journey.

Where Was Education?

Tom Kucharski, President & CEO, Buffalo Niagara Enterprise

While understanding the constant refrain of jobs, jobs, jobs in our state and national elections, I found it curious the limited discussion about education and the important role it plays in economic development.

Colleges and universities are economic drivers by virtue of their own employment and the economic impact their student and faculty populations have on surrounding communities.  The twenty-three colleges and universities throughout Western New York have an economic impact of $3.2 billion on our region with $2 billion of that figure coming in the form of direct institutional spending.  There are approximately 32,000 full and part-time jobs at these institutions that generate $122 million in local and state taxes.  But the role higher education plays in economic development is much deeper than even these impressive numbers.

For the last several years now universities and higher education systems have been taking leadership roles in state and regional economic development efforts.  As predicted by a 2010 study by the Rockefeller Institute, this trend has continued as our nation and world move deeper into the innovation economy.  Research and the practical experience of economic development organizations like the BNE have found that the importance of innovation – the development and distribution of knowledge – is in many cases more important than traditional economic incentives.

Since 2007, twenty-three business expansion, investment and job creating opportunities that BNE worked with were actively seeking collaborations with higher education institutions.  In addition to their departments and programs, these institutions have infrastructures in place to support these opportunities with everything from physical space and consulting services to providing funding to support research and access to seed monies to accelerate commercialization.  Examples include the New York State Center of Excellence (COE) in Bioinformatics & Life Sciences, the NYS COE in Materials Informatics, the NYS Technology & Academic Research Center for Advanced Ceramic Technology at Alfred University, U.B.’s Office of Science, Technology Transfer and Economic Outreach (STOR) and the SUNY at Fredonia Technology Incubator.

Further evidence of the important role higher education plays in economic development can be seen in its active participation in recent state and regional economic development initiatives.  All ten of Governor Andrew Cuomo’s New York State Regional Economic Development Councils are co-chaired by presidents of higher education institutions within the region while being populated with education leaders from a range of colleges, universities and community colleges.  University at Buffalo Vice President for Research & Economic Development Dr. Alexander Cartwright represents the university on our BNE board of directors.

Here in Buffalo Niagara, the BNE recruits the assistance of individual departments and programs like U.B.’s school of engineering, dental school, department of research and economic development, Erie Community College’s dental laboratory technology program and more to actively engage in and support our research, marketing, business and economic development tactics and initiatives.

Preparing and populating the workforce of tomorrow is an obvious and important role of higher education in economic development.  By maximizing their strategic relationships with public and private employers, our education partners develop curriculum and implement job training programs that ensure the more than 22,000 degree and certificate holders they produce annually in our region possess the requisite skills to meet the needs of the region’s employers.

The economic development and revitalization impact, magnified in our region by the academic excellence of our schools in our region, also serves as a vehicle for attracting the best and brightest to Buffalo Niagara.  These young people become residents of and ambassadors for our region, improving the quality of life for all by supporting our economy and society in general.

Tax Issues for Canadian Corporations Doing Business in the US

Guest Blog – Mark N. Mercer, CPA, Tax Principal, Lumsden McCormick, LLP

Canadian companies seeking to extend their opportunities into US markets face many legal and tax obligations, yet these requirements are not as daunting as one might initially imagine.

A Canadian corporation engaged in US trade or business is taxable in the US on income effectively connected with that trade or business.  A Canadian corporation conducting business in the US may also be subject to taxation in one or more US states.  A very minimal level of business activity within a state may create a nexus or presence in that state.  Once this presence is established, the company is required to conform to that state’s taxation laws and file returns.  States are not obligated to honor the terms of international federal tax treaties, consequently a company may be exempt from US federal income tax pursuant to the provisions of a tax treaty, yet subject to tax in one or more states.

If you will be making sales in New York State that are subject to sales tax (sales of tangible personal property) you must register with the Tax Department and obtain a “Certificate of Authority” within 20 days before beginning business in New York State.  If sales are to a destination in New York State then a sales tax would need to be collected and periodically remitted to New York State.  Sales tax returns would have to be filed either monthly, quarterly or annually depending on the level of sales activity.  Most states have similar sales tax nexus rules and it would need to be determined if the state where the final destination of the sale is requires the business to collect that states sales tax.

If you are a Canadian company, and you have customers in the US, odds are those customers are going to request you fill out a W8-BEN form (Certificate of Foreign Status of Beneficial Owner for US Tax Withholding”), since a 30% withholding tax on income might be applicable to payments that US taxpayers make to a foreign person, which includes foreign corporations.  However, there are many exemptions from the withholding requirement.  When filing out this form the form asks for your US Employer Identification Number (EIN).  Therefore it is recommended you apply for a US EIN by using the Internal Revenue Services’ website.  Identification numbers usually can be received immediately online.  Once you get your US EIN then you can fill out the W8-BEN for your customer and then get full payment.

Along with the tax rules for Canadian companies doing business in the US, many states have stepped up audits, increased penalties and are actively identifying Canadian non-filers.  As well, there are a growing number of information sharing agreements among the states and with US Customs and the Internal Revenue Service.

Canadian companies considering doing business in the US will have many other legal and operational considerations in addition to the above tax rules.  These other considerations may include deciding whether to incorporate in the US or operate as a branch, and deciding whether there are specific obligations for US product approval and product liability issues.

Lumsden & McCormick, LLP is a leading local tax and accounting firm.  Several of the firm’s members specialize in Canadian cross border tax planning, including transfer pricing, export subsidies, multistate tax planning, and repatriation of profits.  For more information please contact:  Mark N. Mercer, CPA, Tax Principal, Lumsden McCormick, LLP, (716) 856-3300 or http://www.lumsdencpa.com

The Cost of Conformity: Patent Reform for Small Business Entrepreneurs

For many early stage life science, biotech and other tech companies, intellectual property is the entity’s most valuable asset and protecting that asset is tantamount to success. U.S. Federal patent law is set to change dramatically in the coming months and a clear understanding of how this affects your company is critical. The following offers a snapshot of the key changes upcoming through patent law reform. – Alan Rosenhoch, BNE Business Development Manager

The Cost of Conformity:

Patent Reform for Small Business Entrepreneurs

By Randolph V. Clower, J.D., Ph.D., Associate, Phillips Lytle LLP

Considered by many to be the most comprehensive revision to the United States patent system in over 50 years, the America Invents Act (“AIA”) represents progressive legislative reform intended to align U.S. patent policy with global precepts, i.e., systems which reward the “first to file” a patent application. Many AIA provisions modify–or completely change–the current patent system, but the most immediate and conspicuous AIA component establishes a filing-based system in the U.S. as of March 16, 2013.

The U.S. patent system currently operates under the rubric of “first to invent,” awarding priority to the first in time to invent. On March 16, 2013 (the transition date), however, U.S. patent law will transition away from the strictures of a first to invent system in favor of rules similar to the prevailing international model, albeit not in toto. This new patent regime, termed the “first inventor to file,” affords priority to the first inventor (or assignee) to file for patent protection. While the implications ascribed to this paradigm shift are considerable, the recurring theme for small business entrepreneurs concerns the cost of conformity.

The first inventor to file system has no retroactive effect. Thus, obligatory exceptions to the rule notwithstanding, U.S. patent applications having a priority date prior to the transition date will be examined under the current rules, while applications with priority dates on or after the transition date will be covered by the new provisions of the AIA. In this regard, general consensus within the patent community holds that the new rules afford less protection for small business entrepreneurs. While the reasons for this are nuanced in many respects, the overarching consideration relates to the cost of applying for a patent, which can run anywhere from $5,000 to $15,000 or more.

To this end, current U.S. patent law provides for a “grace period” which allows an inventor to file a patent application for up to one year after his or her invention is publicly disclosed, e.g., published, thereby providing a “patent cost deferral” option until it is absolutely necessary to file. Moreover, this one year window allows small entities such as universities and sole inventors to disseminate their research and discoveries without fear of another party–who invented second, but filed first–securing an earlier priority date. This is no longer the case under the AIA, which contains a significantly diluted version of the current grace period.

Consequently, with respect to obtaining the earliest possible priority date, filing early and often is the key to minimizing risk while optimizing patent protection under the AIA. This new regime therefore appears to favor business enterprises with unlimited patent budgets at least insofar as prompt and frequent patent filings are status quo for larger corporations. While such reform may not stymie innovation per se, it is likely to exacerbate the cost-related obstacles associated with patent procurement for smaller business concerns and individuals. Time will tell.

Other Notable AIA Provisions
Post Grant Review Proceedings
False Marking Statutes
Prioritized Examination
Supplemental Examination
Third Party Pre-Issuance Submission
Prior Commercial Use Defense
Inter Partes Reexamination