N.Y. Comp. Codes R. & Regs. tit. 5, § 280.4 – Eligibility criteria.

(a) To be eligible for a tax credit for the restaurant return-to-work credit or additional restaurant return-to-work credit, an applicant must:
1. (1) be a small business as defined in section 131 of the Economic Development Law and have fewer than 100 full-time job equivalents in New York State as of April 1, 2021;
2. (2) operate an independently owned establishment or establishments as defined in section 280.2(m) of this Part;
3. (3) have experienced economic harm as a result of the COVID-19 emergency as evidenced by a year-to-year decrease of at least 40 percent in New York State between the second quarter of 2019 and the second quarter of 2020 or the third quarter of 2019 and the third quarter of 2020 for one or both of:
  1. (i) gross receipts; or
  2. (ii) average full-time employment; and
4. (4) have demonstrated a net employee increase as defined in this Part for the business entity and for purposes of calculating the tax credit.
(b) A business entity must be in substantial compliance with all emergency orders or public health regulations currently required of such entity and local, and State tax laws. In addition, a business entity may not owe past due State taxes or local property taxes unless the business entity is making payments and complying with an approved binding payment agreement entered into with the taxing authority.