IRS Updates Construction Start Rules
The IRS made it easier today for wind, biomass, geothermal, landfill gas and ocean energy projects that are completed by December 2015 to qualify for federal tax credits.
The projects qualify potentially for production tax credits for 10 years on the electricity output or for a 30% investment tax credit on the cost.
A project must be under construction by December 2013 to qualify.
There are two ways to start construction this year: by starting significant physical work on the project or by “incurring” at least 5% of the project cost.
However, the developer must also show that work on the project after this year is “continuous.”
Developers complained that this continuous work requirement is making it difficult to finance projects as banks and tax equity investors balk at taking risk that the pattern of future work will fall short of what is required.
The IRS said this afternoon that the continuous work requirement will be treated as having been met automatically on any project that is placed in service by December 2015. It does not matter whether construction started under the physical work test or the 5% test. Developers whose projects go into service after 2015 will still have to show continuous work.
The IRS made the announcement in Notice 2013-60.
The notice may cause developers to shift back to the physical work test rather than try to incur at least 5% of the project cost this year.
Many developers had been focusing on the 5% test because it seemed to contemplate that a project could be merely under development by the end of 2013 while the physical work test required that it be truly under construction. Physical work this year had to be followed by “continuous construction,” while incurring 5% of the cost had to be followed only by “continuous efforts.” It is easier to start physical work than to incur at least 5% of the project cost.
The notice also offered additional guidance about when a project or equipment for a project can be transferred after 2013 to another developer or investor without losing “grandfather” rights to tax credits. However, this part of the notice only confirmed what the market already assumed was true. It did not shed any real new light on transfer issues.
by Keith Martin, in Washington