Development Incentives

IRS Issues Investment Tax Credit Guidance for Solar Projects

On Friday, June 22, 2018, the Internal Revenue Service issued guidance clarifying when construction commences for purposes of qualifying for the investment tax credit (“ITC”) for solar photovoltaic facilities. The ITC is a dollar-for-dollar reduction in federal income tax due by the taxpayer equal to a specified percentage of the eligible basis (generally the cost) of an energy project originally placed in service by the taxpayer.  The percentage of the ITC depends on when construction begins on the eligible project, and hence the guidance received by the IRS is critical.

As a result of the PATH Act, the ITC percentage for solar facilities, which traditionally has been 30 percent of the eligible basis, phases out as follows:

  • 30% for projects that begin construction by the end of 2019
  • 26% for projects that begin construction in 2020
  • 22% for projects that begin construction in 2021
  • 10% for projects that begin construction in 2022 or after

The

Powering America Hearing on Transmission Infrastructure Development: FERC Isn’t Batting 1000

On May 10, 2018, the House Energy Subcommittee held a hearing on the state of electric transmission infrastructure, particularly focusing on transmission planning, the efficacy of Order No. 1000 and the future of the transmission grid.  Important take-aways from the hearing included:

  • Consensus that Order No. 1000 has not worked to incentivize transmission infrastructure development in the way that was intended, and particularly, has not resulted in development of interregional transmission projects.
  • The Commission and Congress should rethink transmission incentives, including considering how to best incentivize new technology and whether performance-based incentives might be appropriate.
  • Significant offshore wind generation is coming to the East Coast; we need to think about how to best support its interconnection.

Six witnesses testified on the state of transmission infrastructure.  Former FERC Commissioner Tony Clark, now a senior advisor at the law firm of Wilkinson Barker Knauer LLP, discussed the white paper he recently issued, considering the status and efficacy of Order No.

Tax Reform’s Changes to the Treatment of Non-Shareholder Contributions to Capital

The 2017 tax reform act amended Section 118 of the Internal Revenue Code, to dramatically reduce the ability of a corporation to exclude from its gross income grants that the corporation receives from federal, state, or local governments or from civic groups to incentivize corporate investments. Many energy infrastructure projects benefit from exactly these kinds of incentives. Now and in the future, project developers need to be aware of and understand these changes, so that they can work to minimize the adverse consequences of the tax reform act’s amendment.

Before Tax Reform. Before the passage of the tax reform act, Section 118 provided that a corporation’s gross income did not include any contribution to the capital of the corporation. The regulations that accompanied this section explained that this exclusion applied to contributions received from persons other than shareholders (i.e., so-called “non-shareholder contributions to capital”). Thus, for example, if the government or a civic group contributed property to a corporation in order to

Carbon Dioxide Capture Credit Enhanced

The Bipartisan Budget Act of 2018 extended and enhanced a tax credit that incentivized carbon dioxide capture, storage, and utilization.

The enhanced credit, known as the “45Q tax credit,” offers a tax credit of up to $50 per ton for carbon oxide (not just dioxide) that is sequestered and up to $35 per ton for carbon oxide that is reutilized.  The credit amounts began at $22.66 per ton of sequestered carbon oxide and $12.83 per ton of reutilized carbon oxide in 2017, and are set to increase linearly until hitting $50 and $35 per ton of sequestered and reutilized carbon oxide, respectively, in 2026.  Businesses have six years to begin qualifying projects and have twelve years from the time they begin operations to take advantage of the credits.  For sequestered carbon oxide to qualify for the credit, it must be:

  • captured from an industrial source,
  • amounts that would otherwise be released into the atmosphere as an industrial emission,

A New Incentive for Energy Infrastructure?

The Tax Cuts and Jobs Act of 2017 (better known as the tax reform bill) created a significant—and little-discussed—economic development program that encourages long-term investments in so-called “Opportunity Zones” by offering temporary tax deferral for capital gains re-invested in the Opportunity Zone and a permanent exclusion for gains from the Opportunity Zone investment.  This program has the potential to be one of the most significant economic development programs in the country and has broad applicability to a variety of industries.  Any person or business seeking to invest capital, raise capital, or that will recognize significant capital gains in the next few years should be aware of the benefits of this program.

What are Opportunity Zones?  Opportunity Zones are low-income areas (determined on a census tract basis), which are designated by the governor of each state as Opportunity Zones.  Each governor must designate his or her state’s Opportunity Zones from the pool of eligible low-income census tracts and certain contiguous tracts.[1] 

Welcome to the Energy Infrastructure Blog!

Welcome to the Energy Infrastructure Blog – EI Blog, for short – Pierce Atwood’s new blog that will provide information and analysis on the key policy and legal issues relevant to energy infrastructure policy, development, and finance in New England and beyond.  Pierce Atwood has assembled a team of legal practitioners from diverse practice areas who focus on all aspects of developing, buying, and selling energy infrastructure projects, and who also recognize that understanding both the fundamentals and trends in this ever-changing area is essential for developers, investors, policymakers, and interested members of the public.  We look forward to sharing our insights with you. 

Why an energy infrastructure blog – and why now?

We may not always think about it, but the mixed generation fleets, as well as the electricity transmission and distribution network that “keep the lights on” throughout New England are integral parts of everyone’s everyday lives.  Policymakers, lawyers, and