President Obama’s recently released budget proposal for the 2017 fiscal year repeats many of his past energy-related tax proposals, including a permanent extension of the renewable energy production tax credit and a provision making it refundable. Making the production tax credit permanent and refundable signals the administration’s continued strong support for renewable energy. This On the Subject summarizes the key energy-related tax provisions contained in the budget proposal and detailed further in the US Department of the Treasury’s general explanation of the proposal.
What Must Be Done for Wind and Solar Projects to Have “Begun Construction” under the New PTC and ITC?
With the recent extension of the federal income tax credits available for renewable energy projects, practitioners and industry participants have raised questions as to how the “begun construction” rules will apply under these new regimes. The new regimes refer to the dates on which construction on projects began for purposes of determining qualification for the credits and also provide for a phaseout or reduction in the available credits over time. (For more information on these extensions, see our previous article on the extensions.)
Industry participants expect that the Internal Revenue Service will soon issue guidance detailing when a project will be determined to have “begun construction” and when continuous construction efforts are required. It is expected that this guidance will be similar to the beginning of construction guidance summarized here for wind projects. However, in light of the different considerations for different technologies and the reduction in the credit amount over time, which differs from the prior credit for wind that expired in its entirety, a number of questions have been raised by industry participants. It is hoped that some of these questions will be answered by any guidance that is issued with respect to the credit extensions. Some of these questions include:
- Will the beginning of construction tests be the same as they currently are for wind (e., a physical work of a significant nature test and a 5 percent safe harbor test)?
- Will continuous construction efforts be required under the new regimes?
- What is the consequence of failing to maintain a program of continuous construction? Will the project still be eligible for a reduced credit, and how will that credit amount be determined?
- Will there be a placed in service safe harbor? The wind guidance had provided that continuous construction efforts would be considered maintained so long as projects were placed in service prior to a specific date. That date was two years after the end of the year in which the project was required to be placed in service. Most industry participants believe this safe harbor will be extended to apply to wind projects beginning construction through 2016.
- If there is a placed in service “safe harbor,” will it apply to all technologies in the same manner? That is, will the safe harbor period be the same for all renewable technologies?
- Will the guidance address and provide examples of “physical work of a significant nature” for solar projects?
- How would the physical work and safe harbor tests apply in the context of residential or commercial and industrial solar projects?
- In the solar context, what will be considered a single “facility” for purposes of the beginning of construction tests?
We will provide additional updates as we get more information, so please stay tuned.
The Internal Revenue Service (IRS) has advised that the flip partnership guidelines under Rev. Proc. 2007-65, 2007-2 C.B. 967, do not apply to solar facilities or other projects claiming the Section 48 investment tax credit (ITC). The statement, made in in recently released CCA 201524024, was not surprising to practitioners in the solar arena as the revenue procedure expressly does not apply to ITC transactions.
IRS Issues Additional Guidance on When Construction Begins for Purposes of Production Tax Credit, Investment Tax Credit
The Internal Revenue Service (IRS) has issued additional guidance relating to when construction begins with respect to wind and other qualified facilities for purposes of the production tax credit and investment tax credit. This guidance focuses on the continuous construction and continuous efforts tests and the effects of ownership transfers of a facility after construction has begun.
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IRS Updates Notice Determining When Construction Begins for Purposes of the Production Tax Credit and Investment Tax Credit
Last week, we reported that the Internal Revenue Service (IRS) issued Notice 2013-29 (Notice) to to provide guidance on eligibility for the production tax credit (PTC) and investment tax credit (ITC). On April 25, 2013, the Internal Revenue Service (IRS) updated the Notice. Under the IRS’s additional guidance, a binding contract that has a liquidated damages provision that limits damages to at least 5 percent of the total contract price will not be treated as limiting damages to a specified amount.
When the Notice was first issued on April 15, 2013, it provided that a contract is binding only if the contract did not limit damages to a specified amount, including the use of a liquidated damages provision. This language differed from the treatment of a binding contract under the guidance issued by the Department of Treasury with respect to the grant program under section 1603 of the American Recovery and Reinvestment Act of 2009 because the Section 1603 Grant program, like the bonus depreciation regulations, provided that a liquidated damages provision that limited damages to an amount that was equal to at least 5 percent of the total contract price would not be treated as limiting damages in a contract to a specified amount. As updated, the Notice is now in line with the definition of binding contract under the guidance issued with respect to the Section 1603 Grant as well as the IRS’s own regulations regarding a binding contract in the bonus depreciation regulations.
IRS Determines When “Construction Begins” for Purposes of Production Tax Credit and Investment Tax Credit
The Internal Revenue Service (IRS) issued Notice 2013-29 to provide guidance on eligibility for the production tax credit (PTC) and the investment tax credit (ITC). Under the most recent extension of the PTC and ITC, enacted by Congress on January 1, 2013, a renewable energy facility must begin construction before January 1, 2014 to be eligible for the PTC or ITC. The IRS’ Notice largely follows the guidance that Treasury provided with respect to Section 1603 grants and provides that a taxpayer may establish that construction has begun either by demonstrating that physical work of a significant nature has begun or by satisfying a five percent safe harbor. Key differences between the Section 1603 Guidance and the IRS’ Notice on the PTC and ITC are highlighted below.
Under the IRS’ Notice, physical work of a significant nature must be with respect to tangible property that is integral to the facility. Thus, property integral to the production of electricity is included but not property used for the transmission of electricity. Power conditioning equipment, such as a transformer, is an integral part of the facility.
Either on-site or off-site work can be sufficient to demonstrate the beginning of construction. If work is performed off-site, the work can be performed either by the taxpayer or by another person for the taxpayer pursuant to a binding written contract. A contract is binding only if it is enforceable under local law against the taxpayer (or a predecessor), and the contract does not limit damages to a specified amount. This definition is a departure from the 1603 Guidance, which determined that a contract is binding so long as the liquidated damages provision in the contract does not limit damages to less than five percent of the total contract price.
A taxpayer must maintain a continuous program of construction of a significant nature. The IRS’ Notice lists detailed examples, not provided in the 1603 Guidance, of allowable disruptions that are beyond the control of the taxpayer, including: severe weather, licensing and permitting delays, delays requested in writing by a government agency, financing delays of less than six months, and supply shortages.p>
Alternatively, like the 1603 Guidance, the IRS’ Notice includes a safe harbor that provides eligibility for the PTC or ITC if the taxpayer pays or incurs five percent or more of the total costs of the facility. All costs properly included in the depreciable basis of the facility are taken into account. However, the cost of land or any property not integral to the facility is not included.
Unlike the 1603 Guidance, the IRS’ Notice imposes a continuous efforts requirement for the safe harbor and includes a taxpayer favorable provision related to cost overruns. Facts and circumstances indicating continuous efforts include paying or incurring additional amounts included in the total cost of the facility, obtaining permits, and entering into binding written contracts for components or future work. With respect to a single project [...]
President Obama’s recently released budget proposal for the 2013 fiscal year contains energy-related tax provisions, including an extension of the Section 1603 grant in lieu of investment credits through 2012.