§48 — Energy credit
226 cases·38 followed·30 distinguished·1 questioned·10 criticized·4 overruled·143 cited—17% support
Statute Text — 26 U.S.C. §48
For purposes of section 46, except as provided in paragraphs (1)(B), (2)(B), and (3)(B) of subsection (c), the energy credit for any taxable year is the energy percentage of the basis of each energy property placed in service during such taxable year.
Except as provided in paragraphs (6) and (7), the energy percentage is—
6 percent in the case of—
qualified fuel cell property,
energy property described in clause (i) or (iii) of paragraph (3)(A) but only with respect to property the construction of which begins before
January 1, 2025
,
energy property described in paragraph (3)(A)(ii),
qualified small wind energy property,
waste energy recovery property,
energy storage technology,
qualified biogas property,
microgrid controllers, and
energy property described in clauses (v) and (vii) of paragraph (3)(A), and
in the case of any energy property to which clause (i) does not apply, 0 percent.
The energy percentage shall not apply to that portion of the basis of any property which is attributable to qualified rehabilitation expenditures.
For purposes of energy property described in subparagraph (A)(ii), the energy percentage applicable to such property pursuant to such subparagraph shall not be increased or otherwise adjusted by any provision of this section.
For purposes of this subpart, the term “energy property” means any property—
which is—
equipment which uses solar energy to generate electricity, to heat or cool (or provide hot water for use in) a structure, or to provide solar process heat, excepting property used to generate energy for the purposes of heating a swimming pool,
equipment which uses solar energy to illuminate the inside of a structure using fiber-optic distributed sunlight, or electrochromic glass which uses electricity to change its light transmittance properties in order to heat or cool a structure, but only with respect to property the construction of which begins before
January 1, 2025
,
equipment used to produce, distribute, or use energy derived from a geothermal deposit (within the meaning of section 613(e)(2)), but only, in the case of electricity generated by geothermal power, up to (but not including) the electrical transmission stage,
qualified fuel cell property or qualified microturbine property,
combined heat and power system property,
qualified small wind energy property,
equipment which uses the ground or ground water as a thermal energy source to heat a structure or as a thermal energy sink to cool a structure, but only with respect to property the construction of which begins before
January 1, 2035
,
waste energy recovery property,
energy storage technology,
qualified biogas property, or
microgrid controllers,
the construction, reconstruction, or erection of which is completed by the taxpayer, or
which is acquired by the taxpayer if the original use of such property commences with the taxpayer,
with respect to which depreciation (or amortization in lieu of depreciation) is allowable, and
which meets the performance and quality standards (if any) which—
have been prescribed by the Secretary by regulations (after consultation with the Secretary of Energy), and
are in effect at the time of the acquisition of the property.
Such term shall not include any property which is part of a facility the production from which is allowed as a credit under section 45 for the taxable year or any prior taxable year.
Rules similar to the rule under section 45(b)(3) shall apply for purposes of this section.
In the case of any qualified property which is part of a qualified investment credit facility—
such property shall be treated as energy property for purposes of this section, and
the energy percentage with respect to such property shall be 6 percent.
No credit shall be allowed under section 45 for any taxable year with respect to any qualified investment credit facility.
For purposes of this paragraph, the term “qualified investment credit facility” means any facility—
which is a qualified facility (within the meaning of section 45) described in paragraph (1), (2), (3), (4), (6), (7), (9), or (11) of section 45(d),
which is placed in service after 2008 and the construction of which begins before
January 1, 2025
, and
with respect to which—
no credit has been allowed under section 45, and
the taxpayer makes an irrevocable election to have this paragraph apply.
For purposes of this paragraph, the term “qualified property” means property—
which is—
tangible personal property, or
other tangible property (not including a building or its structural components), but only if such property is used as an integral part of the qualified investment credit facility,
with respect to which depreciation (or amortization in lieu of depreciation) is allowable,
which is constructed, reconstructed, erected, or acquired by the taxpayer, and
the original use of which commences with the taxpayer.
In the case of any facility using wind to produce electricity which is placed in service before
January 1, 2022
, and treated as energy property by reason of this paragraph, the amount of the credit determined under this section (determined after the application of paragraphs (1) and (2) and without regard to this subparagraph) shall be reduced by—
in the case of any facility the construction of which begins after
December 31, 2016
, and before
January 1, 2018
, 20 percent,
in the case of any facility the construction of which begins after
December 31, 2017
, and before
January 1, 2019
, 40 percent,
in the case of any facility the construction of which begins after
December 31, 2018
, and before
January 1, 2020
, 60 percent, and
in the case of any facility the construction of which begins after
December 31, 2019
, and before
January 1, 2022
, 40 percent.
In the case of any qualified offshore wind facility, subparagraph (E) shall not apply.
For purposes of this subparagraph, the term “qualified offshore wind facility” means a qualified facility (within the meaning of section 45) described in paragraph (1) of section 45(d) (determined without regard to any date by which the construction of the facility is required to begin) which is located in the inland navigable waters of the United States or in the coastal waters of the United States.
In the case of any qualified fuel cell property, qualified small wind property, or energy property described in clause (i) or clause (ii) of paragraph (3)(A) the construction of which begins after December 31, 2019, and which is placed in service before January 1, 2022, the energy percentage determined under paragraph (2) shall be equal to 26 percent.
In the case of any energy property described in clause (vii) of paragraph (3)(A), the energy percentage determined under paragraph (2) shall be equal to—
in the case of any property the construction of which begins before
January 1, 2033
, and which is placed in service after
December 31, 2021
, 6 percent,
in the case of any property the construction of which begins after
December 31, 2032
, and before
January 1, 2034
, 5.2 percent, and
in the case of any property the construction of which begins after
December 31, 2033
, and before
January 1, 2035
, 4.4 percent.
For purposes of determining the credit under subsection (a), energy property shall include amounts paid or incurred by the taxpayer for qualified interconnection property in connection with the installation of energy property (as defined in paragraph (3)) which has a maximum net output of not greater than 5 megawatts (as measured in alternating current), to provide for the transmission or distribution of the electricity produced or stored by such property, and which are properly chargeable to the capital account of the taxpayer.
The term “qualified interconnection property” means, with respect to an energy project which is not a microgrid controller, any tangible property—
which is part of an addition, modification, or upgrade to a transmission or distribution system which is required at or beyond the point at which the energy project interconnects to such transmission or distribution system in order to accommodate such interconnection,
either—
which is constructed, reconstructed, or erected by the taxpayer, or
for which the cost with respect to the construction, reconstruction, or erection of such property is paid or incurred by such taxpayer, and
the original use of which, pursuant to an interconnection agreement, commences with a utility.
The term “interconnection agreement” means an agreement with a utility for the purposes of interconnecting the energy property owned by such taxpayer to the transmission or distribution system of such utility.
For purposes of this paragraph, the term “utility” means the owner or operator of an electrical transmission or distribution system which is subject to the regulatory authority of a State or political subdivision thereof, any agency or instrumentality of the United States, a public service or public utility commission or other similar body of any State or political subdivision thereof, or the governing or ratemaking body of an electric cooperative.
In the case of expenses paid or incurred for interconnection property, amounts otherwise chargeable to capital account with respect to such expenses shall be reduced under rules similar to the rules of section 50(c).
In the case of any energy project which satisfies the requirements of subparagraph (B), the amount of the credit determined under this subsection (determined after the application of paragraphs (1) through (8) and paragraph (15) and without regard to this clause) shall be equal to such amount multiplied by 5.
For purposes of this subsection, the term “energy project” means a project consisting of one or more energy properties that are part of a single project.
A project meets the requirements of this subparagraph if it is one of the following:
A project with a maximum net output of less than 1 megawatt of electrical (as measured in alternating current) or thermal energy.
A project the construction of which begins before the date that is 60 days after the Secretary publishes guidance with respect to the requirements of paragraphs (10)(A) and (11).
A project which satisfies the requirements of paragraphs (10)(A) and (11).
The requirements described in this subparagraph with respect to any energy project are that the taxpayer shall ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in—
the construction of such energy project, and
for the 5-year period beginning on the date such project is originally placed in service, the alteration or repair of such project,
shall be paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which such project is located as most recently determined by the Secretary of Labor, in accordance with subchapter IV of chapter 31 of title 40, United States Code. Subject to subparagraph (C), for purposes of any determination under paragraph (9)(A)(i) for the taxable year in which the energy project is placed in service, the taxpayer shall be deemed to satisfy the requirement under clause (ii) at the time such project is placed in service.
Rules similar to the rules of section 45(b)(7)(B) shall apply.
The Secretary shall, by regulations or other guidance, provide for recapturing the benefit of any increase in the credit allowed under this subsection by reason of this paragraph with respect to any project which does not satisfy the requirements under subparagraph (A) (after application of subparagraph (B)) for the period described in clause (ii) of subparagraph (A) (but which does not cease to be investment credit property within the meaning of section 50(a)). The period and percentage of such recapture shall be determined under rules similar to the rules of section 50(a).
Rules similar to the rules of section 45(b)(8) shall apply.
In the case of any energy project which satisfies the requirement under subparagraph (B), for purposes of applying paragraph (2) with respect to such property, the energy percentage shall be increased by the applicable credit rate increase.
Rules similar to the rules of section 45(b)(9)(B) shall apply.
For purposes of subparagraph (A), the applicable credit rate increase shall be—
in the case of an energy project which does not satisfy the requirements of paragraph (9)(B), 2 percentage points, and
in the case of an energy project which satisfies the requirements of paragraph (9)(B), 10 percentage points.
In the case of a taxpayer making an election under section 6417 with respect to a credit under this section, rules similar to the rules of section 45(b)(10) shall apply.
In the case of any energy project that is placed in service within an energy community (as defined in section 45(b)(11)(B), as applied by substituting “energy project” for “qualified facility” each place it appears), for purposes of applying paragraph (2) with respect to energy property which is part of such project, the energy percentage shall be increased by the applicable credit rate increase.
For purposes of subparagraph (A), the applicable credit rate increase shall be equal to—
in the case of any energy project which does not satisfy the requirements of paragraph (9)(B), 2 percentage points, and
in the case of any energy project which satisfies the requirements of paragraph (9)(B), 10 percentage points.
In the case of any qualified property (as defined in paragraph (5)(D)) which is part of a specified clean hydrogen production facility—
such property shall be treated as energy property for purposes of this section, and
the energy percentage with respect to such property is—
in the case of a facility which is designed and reasonably expected to produce qualified clean hydrogen which is described in a subparagraph (A) of section 45V(b)(2), 1.2 percent,
in the case of a facility which is designed and reasonably expected to produce qualified clean hydrogen which is described in a subparagraph (B) of such section, 1.5 percent,
in the case of a facility which is designed and reasonably expected to produce qualified clean hydrogen which is described in a subparagraph (C) of such section, 2 percent, and
in the case of a facility which is designed and reasonably expected to produce qualified clean hydrogen which is described in subparagraph (D) of such section, 6 percent.
No credit shall be allowed under section 45V or section 45Q for any taxable year with respect to any specified clean hydrogen production facility or any carbon capture equipment included at such facility.
For purposes of this paragraph, the term “specified clean hydrogen production facility” means any qualified clean hydrogen production facility (as defined in section 45V(c)(3))—
which is placed in service after
December 31, 2022
,
with respect to which—
no credit has been allowed under section 45V or 45Q, and
the taxpayer makes an irrevocable election to have this paragraph apply, and
for which an unrelated third party has verified (in such form or manner as the Secretary may prescribe) that such facility produces hydrogen through a process which results in lifecycle greenhouse gas emissions which are consistent with the hydrogen that such facility was designed and expected to produce under subparagraph (A)(ii).
For purposes of this paragraph, the term “qualified clean hydrogen” has the meaning given such term by section 45V(c)(2).
The Secretary shall issue such regulations or other guidance as the Secretary determines necessary to carry out the purposes of this section, including regulations or other guidance which recaptures so much of any credit allowed under this section as exceeds the amount of the credit which would have been allowed if the expected production were consistent with the actual verified production (or all of the credit so allowed in the absence of such verification).
The Secretary shall issue such regulations or other guidance as the Secretary determines necessary to carry out the purposes of this subsection, including regulations or other guidance which provides for requirements for recordkeeping or information reporting for purposes of administering the requirements of this subsection.
Rules similar to the rules of subsections (c)(4) and (d) of section 46 (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) shall apply for purposes of subsection (a).
For purposes of this section—
The term “qualified fuel cell property” means a fuel cell power plant which—
has a nameplate capacity of at least 0.5 kilowatt (1 kilowatt in the case of a fuel cell power plant with a linear generator assembly) of electricity using an electrochemical or electromechanical process, and
has an electricity-only generation efficiency greater than 30 percent.
In the case of qualified fuel cell property placed in service during the taxable year, the credit otherwise determined under subsection (a) for such year with respect to such property shall not exceed an amount equal to $1,500 for each 0.5 kilowatt of capacity of such property.
The term “fuel cell power plant” means an integrated system comprised of a fuel cell stack assembly, or linear generator assembly, and associated balance of plant components which converts a fuel into electricity using electrochemical or electromechanical means.
The term “linear generator assembly” does not include any assembly which contains rotating parts.
The term “qualified fuel cell property” shall not include any property the construction of which does not begin before January 1, 2025.
The term “qualified microturbine property” means a stationary microturbine power plant which—
has a nameplate capacity of less than 2,000 kilowatts, and
has an electricity-only generation efficiency of not less than 26 percent at International Standard Organization conditions.
In the case of qualified microturbine property placed in service during the taxable year, the credit otherwise determined under subsection (a) for such year with respect to such property shall not exceed an amount equal to $200 for each kilowatt of capacity of such property.
The term “stationary microturbine power plant” means an integrated system comprised of a gas turbine engine, a combustor, a recuperator or regenerator, a generator or alternator, and associated balance of plant components which converts a fuel into electricity and thermal energy. Such term also includes all secondary components located between the existing infrastructure for fuel delivery and the existing infrastructure for power distribution, including equipment and controls for meeting relevant power standards, such as voltage, frequency, and power factors.
The term “qualified microturbine property” shall not include any property the construction of which does not begin before January 1, 2025.
The term “combined heat and power system property” means property comprising a system—
which uses the same energy source for the simultaneous or sequential generation of electrical power, mechanical shaft power, or both, in combination with the generation of steam or other forms of useful thermal energy (including heating and cooling applications),
which produces—
at least 20 percent of its total useful energy in the form of thermal energy which is not used to produce electrical or mechanical power (or combination thereof), and
at least 20 percent of its total useful energy in the form of electrical or mechanical power (or combination thereof),
the energy efficiency percentage of which exceeds 60 percent, and
the construction of which begins before
January 1, 2025
.
In the case of combined heat and power system property with an electrical capacity in excess of the applicable capacity placed in service during the taxable year, the credit under subsection (a)(1) (determined without regard to this paragraph) for such year shall be equal to the amount which bears the same ratio to such credit as the applicable capacity bears to the capacity of such property.
For purposes of clause (i), the term “applicable capacity” means 15 megawatts or a mechanical energy capacity of more than 20,000 horsepower or an equivalent combination of electrical and mechanical energy capacities.
The term “combined heat and power system property” shall not include any property comprising a system if such system has a capacity in excess of 50 megawatts or a mechanical energy capacity in excess of 67,000 horsepower or an equivalent combination of electrical and mechanical energy capacities.
For purposes of this paragraph, the energy efficiency percentage of a system is the fraction—
the numerator of which is the total useful electrical, thermal, and mechanical power produced by the system at normal operating rates, and expected to be consumed in its normal application, and
the denominator of which is the lower heating value of the fuel sources for the system.
The energy efficiency percentage and the percentages under subparagraph (A)(ii) shall be determined on a Btu basis.
The term “combined heat and power system property” does not include property used to transport the energy source to the facility or to distribute energy produced by the facility.
If a system is designed to use biomass (within the meaning of paragraphs (2) and (3) of section 45(c) without regard to the last sentence of paragraph (3)(A)) for at least 90 percent of the energy source—
subparagraph (A)(iii) shall not apply, but
the amount of credit determined under subsection (a) with respect to such system shall not exceed the amount which bears the same ratio to such amount of credit (determined without regard to this subparagraph) as the energy efficiency percentage of such system bears to 60 percent.
The term “qualified small wind energy property” means property which uses a qualifying small wind turbine to generate electricity.
The term “qualifying small wind turbine” means a wind turbine which has a nameplate capacity of not more than 100 kilowatts.
The term “qualified small wind energy property” shall not include any property the construction of which does not begin before January 1, 2025.
The term “waste energy recovery property” means property that generates electricity solely from heat from buildings or equipment if the primary purpose of such building or equipment is not the generation of electricity.
The term “waste energy recovery property” shall not include any property which has a capacity in excess of 50 megawatts.
Any waste energy recovery property (determined without regard to this subparagraph) which is part of a system which is a combined heat and power system property shall not be treated as waste energy recovery property for purposes of this section unless the taxpayer elects to not treat such system as a combined heat and power system property for purposes of this section.
The term “waste energy recovery property” shall not include any property the construction of which does not begin before January 1, 2025.
The term “energy storage technology” means—
property (other than property primarily used in the transportation of goods or individuals and not for the production of electricity) which receives, stores, and delivers energy for conversion to electricity (or, in the case of hydrogen, which stores energy), and has a nameplate capacity of not less than 5 kilowatt hours, and
thermal energy storage property.
In the case of any property which either—
was placed in service before the date of enactment of this section
1
1 See References in Text note below.
and would be described in subparagraph (A)(i), except that such property has a capacity of less than 5 kilowatt hours and is modified in a manner that such property (after such modification) has a nameplate capacity of not less than 5 kilowatt hours, or
is described in subparagraph (A)(i) and is modified in a manner that such property (after such modification) has an increase in nameplate capacity of not less than 5 kilowatt hours,
such property shall be treated as described in subparagraph (A)(i) except that the basis of any existing property prior to such modification shall not be taken into account for purposes of this section. In the case of any property to which this subparagraph applies, subparagraph (D) shall be applied by substituting “modification” for “construction”.
Subject to clause (ii), for purposes of this paragraph, the term “thermal energy storage property” means property comprising a system which—
is directly connected to a heating, ventilation, or air conditioning system,
removes heat from, or adds heat to, a storage medium for subsequent use, and
provides energy for the heating or cooling of the interior of a residential or commercial building.
The term “thermal energy storage property” shall not include—
a swimming pool,
combined heat and power system property, or
a building or its structural components.
The term “energy storage technology” shall not include any property the construction of which begins after December 31, 2024.
The term “qualified biogas property” means property comprising a system which—
converts biomass (as defined in section 45K(c)(3), as in effect on the date of enactment of this paragraph) into a gas which—
consists of not less than 52 percent methane by volume, or
is concentrated by such system into a gas which consists of not less than 52 percent methane, and
captures such gas for sale or productive use, and not for disposal via combustion.
The term “qualified biogas property” includes any property which is part of such system which cleans or conditions such gas.
The term “qualified biogas property” shall not include any property the construction of which begins after December 31, 2024.
The term “microgrid controller” means equipment which is—
part of a qualified microgrid, and
designed and used to monitor and control the energy resources and loads on such microgrid.
The term “qualified microgrid” means an electrical system which—
includes equipment which is capable of generating not less than 4 kilowatts and not greater than 20 megawatts of electricity,
is capable of operating—
in connection with the electrical grid and as a single controllable entity with respect to such grid, and
independently (and disconnected) from such grid, and
is not part of a bulk-power system (as defined in section 215 of the Federal Power Act (
16 U.S.C. 824
o
)).
The term “microgrid controller” shall not include any property the construction of which begins after December 31, 2024.
In the case of any property with respect to which the Secretary makes a grant under section 1603 of the American Recovery and Reinvestment Tax Act of 2009—
No credit shall be determined under this section or section 45 with respect to such property for the taxable year in which such grant is made or any subsequent taxable year.
If a credit was determined under this section with respect to such property for any taxable year ending before such grant is made—
the tax imposed under subtitle A on the taxpayer for the taxable year in which such grant is made shall be increased by so much of such credit as was allowed under section 38,
the general business carryforwards under section 39 shall be adjusted so as to recapture the portion of such credit which was not so allowed, and
the amount of such grant shall be determined without regard to any reduction in the basis of such property by reason of such credit.
Any such grant—
shall not be includible in the gross income or alternative minimum taxable income of the taxpayer, but
shall be taken into account in determining the basis of the property to which such grant relates, except that the basis of such property shall be reduced under section 50(c) in the same manner as a credit allowed under subsection (a).
In the case of any qualified solar and wind facility with respect to which the Secretary makes an allocation of environmental justice solar and wind capacity limitation under paragraph (4)—
the energy percentage otherwise determined under paragraph (2) or (5) of subsection (a) with respect to any eligible property which is part of such facility shall be increased by—
in the case of a facility described in subclause (I) of paragraph (2)(A)(iii) and not described in subclause (II) of such paragraph, 10 percentage points, and
in the case of a facility described in subclause (II) of paragraph (2)(A)(iii), 20 percentage points, and
the increase in the credit determined under subsection (a) by reason of this subsection for any taxable year with respect to all property which is part of such facility shall not exceed the amount which bears the same ratio to the amount of such increase (determined without regard to this subparagraph) as—
the environmental justice solar and wind capacity limitation allocated to such facility, bears to
the total megawatt nameplate capacity of such facility, as measured in direct current.
For purposes of this subsection—
The term “qualified solar and wind facility” means any facility—
which generates electricity solely from property described in section 45(d)(1) or in clause (i) or (vi) of subsection (a)(3)(A),
which has a maximum net output of less than 5 megawatts (as measured in alternating current), and
which—
is located in a low-income community (as defined in section 45D(e)) or on Indian land (as defined in section 2601(2) of the Energy Policy Act of 1992 (
25 U.S.C. 3501(2)
)), or
is part of a qualified low-income residential building project or a qualified low-income economic benefit project.
A facility shall be treated as part of a qualified low-income residential building project if—
such facility is installed on a residential rental building which participates in a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994 (
34 U.S.C. 12491(a)(3)
),
2
2 So in original. Another closing parenthesis probably should precede the comma.
a housing assistance program administered by the Department of Agriculture under title V of the Housing Act of 1949, a housing program administered by a tribally designated housing entity (as defined in section 4(22) of the Native American Housing Assistance and Self-Determination Act of 1996 (
25 U.S.C. 4103(22)
)) or such other affordable housing programs as the Secretary may provide, and
the financial benefits of the electricity produced by such facility are allocated equitably among the occupants of the dwelling units of such building.
A facility shall be treated as part of a qualified low-income economic benefit project if at least 50 percent of the financial benefits of the electricity produced by such facility are provided to households with income of—
less than 200 percent of the poverty line (as defined in section 36B(d)(3)(A)) applicable to a family of the size involved, or
less than 80 percent of area median gross income (as determined under section 142(d)(2)(B)).
For purposes of subparagraphs (B) and (C), electricity acquired at a below-market rate shall not fail to be taken into account as a financial benefit.
For purposes of this section, the term “eligible property” means energy property which—
is part of a facility described in section 45(d)(1) for which an election was made under subsection (a)(5), or
is described in clause (i) or (vi) of subsection (a)(3)(A),
including energy storage technology (as described in subsection (a)(3)(A)(ix)) installed in connection with such energy property.
Not later than 180 days after the date of enactment of this subsection, the Secretary shall establish a program to allocate amounts of environmental justice solar and wind capacity limitation to qualified solar and wind facilities. In establishing such program and to carry out the purposes of this subsection, the Secretary shall provide procedures to allow for an efficient allocation process, including, when determined appropriate, consideration of multiple projects in a single application if such projects will be placed in service by a single taxpayer.
The amount of environmental justice solar and wind capacity limitation allocated by the Secretary under subparagraph (A) during any calendar year shall not exceed the annual capacity limitation with respect to such year.
For purposes of this paragraph, the term “annual capacity limitation” means 1.8 gigawatts of direct current capacity for each of calendar years 2023 and 2024, and zero thereafter.
If the annual capacity limitation for any calendar year exceeds the aggregate amount allocated for such year under this paragraph, such limitation for the succeeding calendar year shall be increased by the amount of such excess. No amount may be carried under the preceding sentence to any calendar year after 2024 except as provided in section 48E(h)(4)(D)(ii).
Paragraph (1) shall not apply with respect to any property which is placed in service after the date that is 4 years after the date of the allocation with respect to the facility of which such property is a part.
Any amount of environmental justice solar and wind capacity limitation which expires under clause (i) during any calendar year shall be taken into account as an excess described in subparagraph (D) (or as an increase in such excess) for such calendar year, subject to the limitation imposed by the last sentence of such subparagraph.
The Secretary shall, by regulations or other guidance, provide for recapturing the benefit of any increase in the credit allowed under subsection (a) by reason of this subsection with respect to any property which ceases to be property eligible for such increase (but which does not cease to be investment credit property within the meaning of section 50(a)). The period and percentage of such recapture shall be determined under rules similar to the rules of section 50(a). To the extent provided by the Secretary, such recapture may not apply with respect to any property if, within 12 months after the date the taxpayer becomes aware (or reasonably should have become aware) of such property ceasing to be property eligible for such increase, the eligibility of such property for such increase is restored. The preceding sentence shall not apply more than once with respect to any facility.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §1.48-1 Definition of section 38 property
- Treas. Reg. §Treas. Reg. §1.48-1(a) In general.
- Treas. Reg. §Treas. Reg. §1.48-1(b) Depreciation allowable.
- Treas. Reg. §Treas. Reg. §1.48-1(c) Definition of tangible personal property.
- Treas. Reg. §Treas. Reg. §1.48-1(d) Other tangible property—(1) In general.
- Treas. Reg. §Treas. Reg. §1.48-1(e) Definition of building and structural components.
- Treas. Reg. §Treas. Reg. §1.48-1(f) Intangible property.
- Treas. Reg. §Treas. Reg. §1.48-1(g) Property used outside the United States—(1) General rule.
- Treas. Reg. §Treas. Reg. §1.48-1(h) Property used for lodging—(1) In general.
- Treas. Reg. §Treas. Reg. §1.48-1(i) §1.48-1(i)
- Treas. Reg. §Treas. Reg. §1.48-1(j) Property used by certain tax-exempt organizations.
- Treas. Reg. §Treas. Reg. §1.48-1(k) Property used by governmental units.
- Treas. Reg. §Treas. Reg. §1.48-1(l) §1.48-1(l)
- Treas. Reg. §Treas. Reg. §1.48-1(m) Elevators and escalators—(1) In general.
- Treas. Reg. §Treas. Reg. §1.48-1(n) Amortized property.
- Treas. Reg. §Treas. Reg. §1.48-1(o) §1.48-1(o)
- Treas. Reg. §Treas. Reg. §1.48-1(p) Qualified timber property.
- Treas. Reg. §Treas. Reg. §1.48-1(v) §1.48-1(v)
- Treas. Reg. §Treas. Reg. §1.48-1(x) Any property described in section 50 (other than a vessel or an aircraft) of a U.
- Treas. Reg. §Treas. Reg. §1.48-10 Single purpose agricultural or horticultural structures
- Treas. Reg. §Treas. Reg. §1.48-10(a) In general—(1) Scope.
- Treas. Reg. §Treas. Reg. §1.48-10(b) Definition of single purpose agricultural structure—(1) In general.
- Treas. Reg. §Treas. Reg. §1.48-10(c) Definition of single purpose horticultural structure—(1) In general.
- Treas. Reg. §Treas. Reg. §1.48-10(d) Specifically designed and constructed.
- Treas. Reg. §Treas. Reg. §1.48-10(e) Specifically used.
226 Citing Cases
Thus, petitioner's activities are easily distinguished from those ofthe taxpayer in the Spiegelman case. Petitioner offered no legal authority in support ofthe proposition that funds transferred to a grant recipient under the Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat.
30,539, 30,539 (May 26, 2011); see also Historic Preservation Certifications Pursuant to Section 48(g) and Section 170(h) of the Internal Revenue Code of 1986, 55 Fed.
Under section 263(a), we hold petitioners were not pennitted to deduct the car expense for 2010.
- 4 - Pursuant to section 48D(d)(1)(A), the Secretary3 and the Internal Revenue Service (IRS)jointly published Notice 2010-45, 2010-23 I.R.B.
The cost bases of the Atrium Assets placed in service during the - 25 - years in issue, as adjusted pursuant to section 48(q) for the investment tax credits claimed with respect to such assets, were as follows: .
Overview of Arguments Respondent argues that Petitioners did not materially participate in the activities of Solar Farm, such that the investment credits Petitioners claimed under sections 38 and 48 with respect to Solar Farm are passive activity credits. Respondent also argues that Petitioners are precluded by section 469 from claiming such credits because they did not have any taxable income from passive activities in the years at issue and that Petitioners are liable for accuracy-related pena
The Court held that a member ofan Iowa LLC, unlike a limited partner, was not prohibited by State law from participating in the partnership's business and, consequently, more closely resembled a general partner. Id. at 380. Accordingly, the special rules ofsection 469(h)(2) did not apply to an interest in an Iowa LLC. Id. at 381. Mr. Chambers wäs a member ofCMB Capital, an LLC that was organized in Tennessee. A member, under Tennessee law, may participate in the management ofthe LLC. Tenn. Code
1993-124 (to the extent that property does not qualify as eligible section 38 property under section 48, the property cannot constitute section 1245 class property.) 40 (...continued) We recognize that the proposed regulations "carry no more weight than a position advanced on brief by the respondent".
1993-124 (to the extent that property does not qualify as eligible section 38 property under section 48, the property cannot constitute section 1245 class property).
1993-124 (to the extent that property does not qualify as eligible section 38 property under section 48, the property cannot constitute section 1245 class property.) 40 (...continued) We recognize that the proposed regulations "carry no more weight than a position advanced on brief by the respondent".
at 1021: Therefore we conclude that “manufacturing” and “production” have no uniform generalized meaning in the Code and we must look to the purposes and legislative history of section 48 for their specific meaning here.
38 permits a general business credit against tax equal to the sum of various enumerated credits, including the investment tax credit under section 46. For all years relevant to these cases, the investment tax credit included the energy credit under section 48. See § 46(2). Relevantly, section 48 provided that the “energy credit for any taxable year is the energy percentage of the basis of each energy property placed in service during such taxable year.” § 48(a)(1). Petitioners purport that RTC
used in section 45C(c)(2). Specifically, as part of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 9023(a), 124 Stat. 119, 877 (2010), the 111th Congress enacted a new “qualifying therapeutic discovery project credit” under section 48D. And it included in the new credit, in a paragraph entitled “Denial of a double benefit,” the following coordination rule, with language nearly identical to that in section 45C(c): (i) In general.—Except as provided in clause (ii), any exp
dable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). ACA § 9023(a), 114 Stat. at 877, created an incentive program for small businesses engaged in a QTDP by allowing taxpayers to claim a credit for certain expenses, which was codified at section 48D. This incentive program was only in effect for taxable years beginning in 2009 or 2010, and the credit was computed as 50% of a taxpayer’s “qualified investment” in such taxable years in a qualifying project.14 See § 48D(a), (b)(5). In li
Section 48 allows an “energy credit” equal to 30% of the taxpayer’s basis in certain “energy property,” defined to include “equipment which uses solar energy to generate electricity.” Sec. 48(a)(1), (2)(A)(i), (3)(A)(i). However, property qualifies as “energy property” only if (among other things) it is property “with re- spect to which depreciatio
Residential Energy Credit For 2010 section 48 provided for a nonrefundable residential energy credit for the installation ofnonbusiness energy-efficientproperty.
48-13-73 (2013). - 26 - by 2030. Deloitte did not analyze in its appraisal reports how a change in a capacity factor might influence the future fair market value ofthe assets at issue. After performing the analysis, Deloitte concluded that CPS and MEAG would not be economically compelled to exercise their cancellation or purchase options at t
48-13-73 (2013). - 26 - by 2030. Deloitte did not analyze in its appraisal reports how a change in a capacity factor might influence the future fair market value ofthe assets at issue. After performing the analysis, Deloitte concluded that CPS and MEAG would not be economically compelled to exercise their cancellation or purchase options at t
48-5-44 (West 2010). The Georgia statutes also provide that a homestead "means the real property owned by and in possession ofthe applicant on January 1 ofthe taxable year and upon which the applicant resides". Id. sec. 48-5-40(3) (West 2015 & Supp. 2015). - 9 - Petitioner owned the Sycamore property during 2004 through 2008. In addition to c
residual value policies constituted "casualty insur- ance," which the Washington statute defined to include insurance "[a]gainst any other kind ofloss * * * properly the subject ofinsurance." R at 1267-1269 (citing Washington Revenue Code Annotated section 48.11.070). By concluding that residual value policies cover a risk ofloss that is "properlythe subject of insurance," the Washington Supreme Court necessarily determined that such policies involve "insurance risk." Accord Wells Fargo Credit
This provision allowed taxpayersto claim a tax credit, codified in section 48D ofthe Code, or alternativelyto apply for a cash grant awarded by the Department ofthe Treasury - 5 - [*5] in lieu ofa credit.
Commissioner, 55 F.3d at 190-191, for example, the Court ofAppeals for the Fifth Circuit had held that the regulation whose validity the IRS defended and on which the IRS relied "contradicted the plain meaning of[I.R.C.] - 19 - § 48"; but the court also held, id.
Petitioner also claimed a section 48 business energy investment credit of $3,554 in connection with the same solar water heating-system.
19 There is an explanation to the apparent numerical incongruence: Before a 1990 amendment, section 48 defined "section 38 property." See sec.
IA; see also Vaughn v.
its tractors' "nontaxable use", under the "off-highwaybusiness use" SERVED JAN 25 2012 - 2 - exception ofI.R.C. sec. 6427(1)(2). R disallowedP's credits. P stipulates that its tractors and trailers are "highway vehicles" under I.R.C. sec. 6421 per sec. 48.4061(a)-1(d)(1), Manufacturers & Retailers Excise Tax Regs., but argues that the "special-design" and "substantial impair[ment]" exception ofsec. 48.4061(a)-1(d)(2)(ii), Manufacturers & Retailers Excise Tax Regs., applies, making them off-high
We held that the classification of an asset as section 1245 or section 1250 property is decided under the precedent governing whether property is eligible for the section 48 investment tax credit, and specifically under the definitions in section 1.48-1(c), Income Tax Regs.
Petitioners also claimed a section 48 business energy investment credit of $3,861 in connection with the same solar water heating system.
Perpetuity Second, section 170(h)(5)(A) provides that the "exclusively for conservation purposes" requirement will be met only if the conservation purpose is protected in perpetuity : .(5) Exclusively for conservation purposes .-- For purposes of this subsection-- (A) Conservation purpose must be protected .--A contribution shall-not be treated as exc
48 .17 .060 (West Supp . 2008) . 3 During 2003, Farmers Insurance made 12 monthly deposits of such premium renewals into the NW Farmers Insurance Group Federal Credit Union account of petitioners, and those deposits totaled $154,179 . 4 - Insurance billing office . Farmers Insurance then credited the Edwards agency with the commissions from t
As an LLC, petitioner is a separate legal entity from the Conways .9 For Federal tax purposes, an LLC with more than one member generally is treated as a partnership unless the LLC elects to be treated as an association (i .e ., a 9 Tennessee law provides that an LLC is generally dissolved upon the occurrence of any of various specified events, including the "Bankruptcy of any member" .
agree. Since the first and last paragraphs both mention gasoline and fuel taxes, we conclude that the entire explanation pertains to both secs. 6421 and 4221 and do not find that particular omission significant. Petitioners also cite the language in sec. 48.4221- 8(b)(2), Excise Tax Regs., to support their interpretation of the “bus” and “regular route” requirements. Since that language is substantially the same as the language in the Senate report, we subsume its analysis in the arguments based
48-245 — 101(a)(5)(G) (2002). Tennessee law also contemplates, however, that a dissolved LLC continues to exist for purposes of winding up its affairs and litigating claims against it. See, e.g., id. sec. 48-245-502 (providing procedures to be followed by a dissolved LLC in handling claims against it as part of the winding-up process); id. sec
The Secretary never issued regulations under section 50(b)(2), but the existing Treasury regulations under old section 48(a)(3) have remained unchanged since the time of their issuance in 1964.6 The definition of “section 179 property” largely matches old section 48’s definition of “section 38 property” that was in the 1954 Code.
In enacting section 48, Congress recognized that when income is taxed in part to an organization and in part to its shareholders or beneficiaries, the investment credit is apportioned among the parties in accordance with their sharing of income for tax purposes.
at 1021: Therefore we conclude that “manufacturing” and “production” have no uniform generalized meaning in the Code and we must look to the purposes and legislative history of section 48 for their specific meaning here.
at 1021: Therefore we conclude that “manufacturing” and “production” have no uniform generalized meaning in the Code and we must look to the purposes and legislative history of section 48 for their specific meaning here.
gainst income tax for the section 4041 tax imposed on the sale. See sec. 34(a)(3)1. 1 The credit is equal to the sum of the amounts otherwise payable to the taxpayer under section 6427(a) (fuels not used for taxable purposes). See also sec. 6427(k); sec. 48.6427-1, Manufacturers & Retailers Excise Tax Regs. - 4 - Section 6421(e)(2)(A)(i) defines “off-highway business use” as any use by a person in a trade or business other than as a fuel in a highway vehicle “which (at the time of such use) is r
Pursuant to the authority granted in section 6420(c)(4)(B)(ii), the Secretary prescribed section 48.6420- 4(l)(2), Manufacturers & Retailers Excise Tax Regs., which provides: To waive the right to be treated as user and ultimate purchaser of gasoline which is used on a farm by an aerial applicator or other applicator, the owner, tenant, or operator of a farm who is otherwise entitled to treatment as user and ultimate purchaser must exe
ourse it is often said that equitable title does not pass where the contract is by its terms expressly conditional. North Texas Realty & Construction Co. v. Lary, Tex. Civ. App., writ refused, 1911, 136 S.W. 843; 52 Tex. Jur. 2d Specific Performance § 48. And pointing out that "A contract may be conditional in its inception as to one party and unconditional as to the other," that text speaks in terms of the riaht to specific performance not being available prior to the time the equitable title p
48-2901 (West 1997), the Harquahala Valley Irrigation District (HID) was formed as an Arizona municipal corporation or political subdivision, and not as a taxable corporation, for the purpose of establishing a local water distribution system in and about Harquahala Valley, Arizona. With regard specifically to water irrigation districts, under
21, 50-51 (1997), we held that in deciding whether a property is section 1245 property, Congress intended the same tests to be used as were applied for purposes of deciding whether property was "section 38 property" for purposes of the investment tax credit under section 48 prior to the amendment of section 48 in the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub.
48-2901 (West 1997), the Harquahala Valley Irrigation District (hid) was formed as an Arizona municipal corporation or political subdivision, and not as a taxable corporation, for the purpose of establishing a local water distribution system in and about Harquahala Valley, Arizona. With regard specifically to water irrigation districts, under
ed such destinations were within a 50-mile radius. In so doing, petitioner used public highways. He has failed to prove that the dump truck was not a highway vehicle, or that it was not registered or required to be registered for highway use.3 3 See sec. 48.4061(a)-1(d)(1), Manufacturers & Retailers Excise Tax Regs., for a definition of "highway vehicle" and its use. See also sec. 48.6421-4(b) of the regulations with respect to the meaning of "qualified business use" for claiming the fuel tax cr
e of such property by the taxpayer." Sec. 1.48-2(b)(7), Income Tax Regs; see Baicker v. Commissioner, 93 T.C. 316, 322 (1989). The amount of the investment tax credit may depend on whether the section 38 property is new or used within the meaning of section 48. Sec. 48(c)(2).3 Property generally is "placed in service" in the year in which such property is "placed in a condition or state of readiness and availability for a specifically assigned function". Sec. 1.46-3(d), Income Tax Regs. In this
48.13.265 (West Supp. 1990). Petitioner invested between 58 percent and 63 percent of its portfolio in mortgages during the years at issue. In order to match its investments in mortgages with the 1-year rate guarantees on its annuities and also enjoy a relatively high return from such investments, petitioner purchases mortgages with 5-year mat
For petitioner's 1989 and 1990 tax years, biomass was defined as "any organic material which is an alternate substance (as defined in section 48(l)(3)(B)) other than coal (including lignite) or any product of such coal." Sec.
-percent limited partnership interest in Elite in December 1982. Elite was formed on December 15, 1982, with 18 partners. Its principal business activity was leasing energy conservation equipment, with a view to making use of the energy credit under section 48(l). On or about October 17, 1983, Elite filed its 1982 Form 1065, U.S. Partnership Return of Income. On this return, Elite reported that it had purchased $1,365,141 in energy equipment in 1982, and claimed depreciation and energy credits w