[Senate Report 108-54]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 113
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-54

======================================================================



 
                   ENERGY TAX INCENTIVES ACT OF 2003

                                _______
                                

                  May 23, 2003.--Ordered to be printed

                                _______
                                

  Mr. Grassley, from the Committee on Finance, submitted the following

                              R E P O R T

                         [To accompany S. 1149]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Finance reported an original bill (S. 
1149) to amend the Internal Revenue Code of 1986 to provide 
energy tax incentives, and for other purposes, having 
considered the same, reports favorably thereon and recommends 
that the bill do pass.

                                CONTENTS

                                                                   Page
 I. Legislative Background............................................3
    Title I--Renewable Electricity Production Tax Credit..............3
        A. Extension and Modification of the Section 45 
            Electricity Production Credit (sec. 101 of the bill 
            and sec. 45 of the Code).............................     3
    Title II--Alternative Motor Vehicles and Fuel Incentives..........8
        A. Modifications and Extensions of Provisions Relating to 
            Electric Vehicles, Clean-Fuel Vehicles, and Clean-
            Fuel Vehicle Refueling Property (secs. 201, 202, 203, 
            and 204 of the bill and secs. 30 and 179A and new 
            secs. 30B, 30C, and 40A of the Code).................     8
        B. Modifications to Small Producer Ethanol Credit (sec. 
            205 of the bill and secs. 38, 40, 87, and 469 of the 
            Code)................................................    16
        C. Increased Flexibility in Alcohol Fuels Income Tax 
            Credit (sec. 206 of the bill and sec. 40 of the Code)    17
        D. Income Tax Credit for Biodiesel Fuel Mixtures (sec. 
            207 of the bill and new sec. 40B of the Code)........    18
        E. Alcohol Fuel and Biodiesel Mixtures Excise Tax Credit 
            (sec. 208 of the bill, secs. 40, 4081, 6427, 9503, 
            and new sec. 6426 of the Code).......................    19
        F. Sale of Gasoline and Diesel Fuel at Duty-Free Sales 
            Enterprises (sec. 209 of the bill)...................    25
    Title III--Conservation and Energy Efficiency Provisions.........26
        A. Credit for Construction of New Energy-Efficient Home 
            (sec. 301 of the bill and new sec. 45G of the Code)..    26
        B. Credit for Energy-Efficient Appliances (sec. 302 of 
            the bill and new sec. 45H of the Code)...............    28
        C. Credit for Residential Energy Efficient Property (sec. 
            303 of the bill and new sec. 25C of the Code)........    29
        D. Credit for Business Installation of Qualified Fuel 
            Cells and Stationary Microturbine Power Plants (sec. 
            304 of the bill and sec. 48 of the Code).............    31
        E. Energy-Efficient Commercial Buildings Deduction (sec. 
            305 of the bill and new sec. 179B of the Code).......    33
        F. Three-Year Applicable Recovery Period for Depreciation 
            of Qualified Energy Management Devices (sec. 306 of 
            the bill and sec. 168 of the Code)...................    35
        G. Three-Year Applicable Recovery Period for Depreciation 
            of Qualified Water Submetering Devices (sec. 307 of 
            the bill and sec. 168 of the Code)...................    35
        H. Energy Credit for Combined Heat and Power System 
            Property (sec. 308 of the bill and sec. 48 of the 
            Code)................................................    36
        I. Credit for Energy Efficiency Improvements to Existing 
            Homes (sec. 309 of the bill and new sec. 25D of the 
            Code)................................................    38
    Title IV--Clean Coal Incentives..................................39
        A. Investment and Production Credits for Clean Coal 
            Technology (secs. 401, 411, and 412 of the bill and 
            new secs. 45I, 45J, and 48A of the Code).............    39
    Title V--Oil and Gas Provisions..................................44
        A. Tax Credit for Oil and Gas Production from Marginal 
            Wells (sec. 501 of the bill and sec. 45K of the Code)    44
        B. Natural Gas Gathering Lines Treated as Seven-Year 
            Property (sec. 502 of the bill and sec. 168 of the 
            Code)................................................    45
        C. Expensing of Capital Costs Incurred and Credit for 
            Production in Complying with Environmental Protection 
            Agency Sulfur Regulations (secs. 503 and 504 of the 
            bill and new secs. 179C and 45L of the Code).........    46
        D. Determination of Small Refiner Exception to Oil 
            Depletion Deduction (sec. 505 of the bill and sec. 
            613A of the Code)....................................    48
        E. Extension of Suspension of Taxable Income Limit With 
            Respect to Marginal Production (sec. 506 of the bill 
            and sec. 613A of the Code)...........................    48
        F. Amortization of Delay Rental Payments (sec. 507 of the 
            bill and new sec. 199A of the Code)..................    50
        G. Amortization of Geological and Geophysical 
            Expenditures (sec. 508 of the bill and new sec. 199 
            of the Code).........................................    51
        H. Extension and Modification of Credit for Producing 
            Fuel From a Non-Conventional Source (sec. 509 of the 
            bill and new sec. 45J of the Code)...................    54
        I. Natural Gas Distribution Lines Treated as 15-Year 
            Property (sec. 510 of the bill and sec. 168 of the 
            Code)................................................    58
        J. Credit for Alaska Natural Gas (sec. 511 of the bill 
            and new sec. 45M of the Code)........................    58
        K. Certain Alaska Pipeline Systems Treated as Seven-Year 
            Property (sec. 512 of the bill and sec. 168 of the 
            Code)................................................    60
        L. Exempt Certain Prepayments for Natural Gas From Tax-
            Exempt Bond Arbitrage Rules (sec. 513 of the bill and 
            sec. 148 of the Code)................................    61
    Title VI--Electric Utility Restructuring Provisions..............64
        A. Modifications to Special Rules for Nuclear 
            Decommissioning Costs (sec. 601 of the bill and sec. 
            468A of the Code)....................................    64
        B. Treatment of Certain Income of Cooperatives (sec. 602 
            of the bill and sec. 501 of the Code)................    67
        C. Sales or Dispositions to Implement Federal Energy 
            Regulatory Commission or State Electric Restructuring 
            Policy (sec. 603 of the bill and sec. 451 of the 
            Code)................................................    72
    Title VII--Additional Provisions.................................73
        A. Extension of Accelerated Depreciation and Wage Credit 
            Benefits on Indian Reservations (sec. 701 of the bill 
            and secs. 45A and 168(j) of the Code)................    73
        B. GAO Study (sec. 702 of the bill)......................    75
        C. Repeal Certain Excise Taxes on Rail Diesel Fuel and 
            Inland Waterway Barge Fuels (sec. 703 of the bill and 
            secs. 4041 and 4042 of the Code).....................    76
        D. Modify Research Credit for Research Relating to Energy 
            (sec. 704 of the bill and sec. 41 of the Code).......    77
    Title VIII--Revenue Provisions...................................79
        A. Provisions Designed to Curtail Tax Shelters...........    79
            1. Penalty for failure to disclose reportable 
                transactions (sec. 801 of the bill and new sec. 
                6707A of the Code)...............................    79
            2. Modifications to the accuracy-related penalties 
                for listed transactions and reportable 
                transactions having a significant tax avoidance 
                purpose (sec. 802 of the bill and new sec. 6662A 
                of the Code).....................................    82
            3. Tax shelter exception to confidentiality 
                privileges relating to taxpayer communications 
                (sec. 803 of the bill and sec. 7525 of the Code).    86
            4. Disclosure of reportable transactions by material 
                advisors (secs. 804 and 805 of the bill and secs. 
                6111 and 6707 of the Code).......................    87
            5. Investor lists and modification of penalty for 
                failure to maintain investor lists (secs. 804 and 
                806 of the bill and secs. 6112 and 6708 of the 
                Code)............................................    90
            6. Penalties on promoters of tax shelters (sec. 807 
                of the bill and sec. 67092of the Code)...........    92
        B. Provisions to Discourage Corporate Expatriation.......    93
            1. Tax treatment of inversion transactions (sec. 821 
                of the bill and new sec. 7874 of the Code).......    93
            2. Excise tax on stock compensation of insiders of 
                inverted corporations (sec. 822 of the bill and 
                new sec. 5000A and sec. 275(a) of the Code)......    99
            3. Reinsurance agreements (sec. 823 of the bill and 
                sec. 845(a) of the Code).........................   103
        C. Extension of IRS User Fees (sec. 831 of the bill and 
            new sec. 7529 of the Code)...........................   104
        D. Add Vaccines Against Hepatitis A to the List of 
            Taxable Vaccines (sec. 832 of the bill and sec. 4132 
            of the Code).........................................   105
        E. Individual Expatriation to Avoid Tax (sec. 833 of the 
            bill and secs. 877, 2107, 2501, and 6039 of the Code)   106
II. Budget Effects of the Bill......................................112
        A. Committee Estimates...................................   112
        B. Budget Authority and Tax Expenditures.................   117
        C. Consultation with Congressional Budget Office.........   117
III.Votes of the Committee..........................................121

IV. Regulatory Impact and Other Matters.............................122
        A. Regulatory Impact.....................................   122
        B. Unfunded Mandates Statement...........................   123
        C. Tax Complexity Analysis...............................   123
 V. Changes in Existing Law Made by the Bill, As Reported...........124

                       I. LEGISLATIVE BACKGROUND

    The Senate Committee on Finance marked up an original bill, 
S. 1149 (the ``Energy Tax Incentives Act of 2003''), on April 
2, 2003, and, with a quorum present, ordered the bill favorably 
reported by a voice vote on that date.

          TITLE I--RENEWABLE ELECTRICITY PRODUCTION TAX CREDIT


A. Extension and Modification of the Section 45 Electricity Production 
                                 Credit


(Sec. 101 of the bill and sec. 45 of the Code)

                              PRESENT LAW

    An income tax credit is allowed for the production of 
electricity from either qualified wind energy, qualified 
``closed-loop'' biomass, or qualified poultry waste facilities 
(sec. 45). The amount of the credit is 1.5 cents per kilowatt 
hour (indexed for inflation) of electricity produced. The 
amount of the credit was 1.8 cents per kilowatt hour for 2002. 
The credit is reduced for grants, tax-exempt bonds, subsidized 
energy financing, and other credits.
    The credit applies to electricity produced by a wind energy 
facility placed in service after December 31, 1993, and before 
January 1, 2004, to electricity produced by a closed-loop 
biomass facility placed in service after December 31, 1992, and 
before January 1, 2004, and to a poultry waste facility placed 
in service after December 31, 1999, and before January 1, 2004. 
The credit is allowable for production during the 10-year 
period after a facility is originally placed in service. In 
order to claim the credit, a taxpayer must own the facility and 
sell the electricity produced by the facility to an unrelated 
party. In the case of a poultry waste facility, the taxpayer 
may claim the credit as a lessee/operator of a facility owned 
by a governmental unit.
    Closed-loop biomass is plant matter, where the plants are 
grown for the sole purpose of being used to generate 
electricity. It does not include waste materials (including, 
but not limited to, scrap wood, manure, and municipal or 
agricultural waste). The credit also is not available to 
taxpayers who use standing timber to produce electricity. 
Poultry waste means poultry manure and litter, including wood 
shavings, straw, rice hulls, and other bedding material for the 
disposition of manure.
    The credit for electricity produced from wind, closed-loop 
biomass, or poultry waste is a component of the general 
business credit (sec. 38(b)(8)). The credit, when combined with 
all other components of the general business credit, generally 
may not exceed for any taxable year the excess of the 
taxpayer's net income tax over the greater of (1) 25 percent of 
net regular tax liability above $25,000, or (2) the tentative 
minimum tax. For credits arising in taxable years beginning 
after December 31, 1997, an unused general business credit 
generally may be carried back one year and carried forward 20 
years (sec. 39). To coordinate the carryback with the period of 
application for this credit, the credit for electricity 
produced from closed-loop biomass facilities may not be carried 
back to a tax year ending before 1993 and the credit for 
electricity produced from wind energy may not be carried back 
to a tax year ending before 1994 (sec. 39).

                           REASONS FOR CHANGE

    The Committee recognizes that the section 45 production 
credit has fostered additional electricity generation capacity 
in the form of non-polluting wind power. The Committee believes 
it is important to continue this tax credit by extending the 
placed in service date for such facilities to bring more wind 
energy to the United States electric grid. The Committee also 
believes it is important to extend the placed in service date 
for closed-loop biomass facilities to give those potential fuel 
sources an opportunity in the market place. The Committee also 
believes it is appropriate to include in qualifying facilities 
those facilities that co-fire closed-loop biomass fuels with 
coal, with other biomass, or with coal and other biomass.
    Based on the success of the section 45 credit in the 
development of wind power as an alternative source of 
electricity generation, the committee further believes the 
country will benefit from the expansion of the production 
credit to certain other ``environmentally friendly'' sources of 
electricity generation such as open-loop biomass and 
agricultural waste nutrients, geothermal power, solar power, 
biosolids and sludge, small irrigation systems, and trash 
combustion. While not all of these additional facilities are 
pollution free, they do address environmental concerns related 
to waste disposal. In addition, these potential power sources 
further diversify the nation's energy supply.
    In the current electricity market, the Committee believes 
that a subsidy via a tax credit of 1.8 cents per kilowatt-hour 
should provide sufficient incentive to investors to enter the 
market with alternative sources of electricity. Therefore the 
Committee believes indexing of the credit amounts for years 
after 2003 is unwarranted.
    Because tax-exempt persons such as public power systems and 
cooperatives provide a significant percentage of electricity in 
the United States, the Committee believes it is important to 
provide the incentive for production from renewable resources 
to these persons in addition to taxable persons.
    Lastly, the Committee believes that certain pre-existing 
facilities should qualify for the section 45 production credit, 
albeit at a reduced rate. These facilities previously received 
explicit subsidies, or implicit subsidies provided through rate 
regulation. In a deregulated electricity market, these 
facilities, and the environmental benefits they yield, may be 
uneconomic without additional economic incentive. The Committee 
believes the benefits provided by such existing facilities 
warrant their inclusion in the section 45 production credit.

                        EXPLANATION OF PROVISION

    The provision extends the placed in service date for wind 
facilities, and closed-loop biomass facilities to facilities 
placed in service after December 31, 1993 (December 31, 1992 in 
the case of closed-loop biomass) and before January 1, 2007.
    The provision provides that, for facilities placed in 
service after the date of enactment, the amount of the credit 
will be 1.8 cents per kilowatt hour with no adjustment for 
inflation for production in years after 2003.
    The provision also defines six new qualifying energy 
resources: biomass (including agricultural livestock waste 
nutrients), geothermal energy, solar energy, small irrigation 
power, biosolids and sludge, and municipal solid waste.
    Qualifying biomass facilities are facilities using biomass 
to produce electricity that are placed in service prior to 
January 1, 2005. Qualifying agricultural livestock waste 
nutrient facilities are facilities using agricultural livestock 
waste nutrients to produce electricity that are placed in 
service after the date of enactment and before January 1, 2007.
    For a facility placed in service after the date of 
enactment, the ten-year credit period commences when the 
facility is placed in service. In the case of biomass facility 
originally placed in service before the date of enactment, the 
ten-year credit period is reduced to a five-year period and 
commences after December 31, 2003 and the otherwise allowable 
1.8 cent-per-kilowatt-hour credit is reduced to a 1.2 cent-per-
kilowatt-hour credit.\1\
---------------------------------------------------------------------------
    \1\ As is the case for the 1.8 cents-per-kilowatt-hour credit, the 
1.2 cents-per-kiowatt-hour credit is not indexed for future inflation.
---------------------------------------------------------------------------
    The provision modifies present law to provide that 
qualifying closed-loop biomass facilities include any facility 
originally placed in service before December 31, 1992 and 
modified to use closed-loop biomass to co-fire with coal, to 
co-fire with other biomass, or to co-fire with coal and other 
biomass, before January 1, 2007. The taxpayer may claim credit 
for electricity produced at such qualifying facilities with the 
credit amount equal to the otherwise allowable credit 
multiplied by the ratio of the thermal content of the closed 
loop biomass fuel burned in the facility to the thermal content 
of all fuels burned in the facility.
    Qualifying geothermal energy facilities are facilities 
using geothermal deposits to produce electricity that are 
placed in service after the date of enactment and before 
January 1, 2007. Qualifying solar energy facilities are 
facilities using solar energy to generate electricity that are 
placed in service after the date of enactment and before 
January 1, 2007. In the case of qualifying geothermal energy 
facilities and qualifying solar energy facilities, taxpayers 
may claim the otherwise allowable credit for the five-year 
period commencing when the facility is placed in service.
    A qualified small irrigation power facility is a facility 
originally placed in service after the date of enactment and 
before January 1, 2007. A small irrigation power facility is a 
facility that generates electric power through an irrigation 
system canal or ditch without any dam or impoundment of water. 
The installed capacity of a qualified facility is less than 
five megawatts.
    A qualified biosolids and sludge facility is a facility 
originally placed in service after the date of enactment and 
before January 1, 2007. A biosolids and sludge facility is a 
facility that uses the waste heat from the incineration of 
biosolids and sludge to produce electricity. For example, if 
the taxpayer conveys biosolids and sludge into a glass furnace 
for the purpose of stabilizing the inorganic contents of the 
biosolids and sludge in an amorphous glass matrix (and 
potentially selling the resulting glass aggregates), and the 
taxpayer uses the waste heat from the glass furnace to generate 
steam to power a turbine and produce electricity, the 
electricity produced would be from a qualified biosolids and 
sludge facility. In addition, a qualifying biosolids and sludge 
facility is a facility for which the taxpayer has not claimed 
credit as a combined heat and power system property as defined 
elsewhere in this bill.
    Municipal solid waste facilities (or units) are facilities 
(or units) that burn municipal solid waste (garbage) to produce 
steam to drive a turbine for the production of electricity. 
Qualifying municipal solid waste facilities (or units) include 
facilities (or units \2\) placed in service after the date of 
enactment and before January 1, 2007. In the case of qualifying 
municipal solid waste facilities (or units), taxpayers may 
claim the otherwise allowable credit for the five-year period 
commencing when the facility (or unit) is placed in service.\3\
---------------------------------------------------------------------------
    \2\ For this purpose a unit eligible under the bill would comprise 
a new burner, boiler and turbine system installed on the site of an 
existing municipal solid waste facility.
    \3\ No credit is permitted during the taxable year if, during any 
portion of the taxable year, there is a certification in effect by the 
Administrator of the Environmental Protection Agency that the facility 
was permitted to operate in a manner inconsistent with section 4003(d) 
of the Solid Waste Disposal Act.
---------------------------------------------------------------------------
    Biomass is defined as any solid, nonhazardous, cellulosic 
waste material which is segregated from other waste materials 
and which is derived from any of forest-related resources, 
solid wood waste materials, or agricultural sources. Eligible 
forest-related resources are mill and harvesting residues, 
precommercial thinnings, slash, and brush. Solid wood waste 
materials include waste pallets, crates, dunnage, manufacturing 
and construction wood wastes (other than pressure-treated, 
chemically-treated, or painted wood wastes), and landscape or 
right-of-way tree trimmings. Agricultural sources include 
orchard tree crops, vineyard, grain, legumes, sugar, and other 
crop by-products or residues. However, qualifying biomass for 
purposes of this provision does not include municipal solid 
waste (garbage), gas derived from biodegradation of solid 
waste, or paper that is commonly recycled. Agricultural waste 
nutrients are defined as livestock manure and litter, including 
bedding material for the disposition of manure. Agricultural 
livestock comprise bovine, swine, poultry,\4\ and sheep among 
others.
---------------------------------------------------------------------------
    \4\ The provision deletes poultry litter as a separate qualifying 
facility for facilities placed in service after the effective date. 
Poultry litter facilities remain qualifying facilities as agricultural 
waste nutrient facilities. Any poultry litter facility placed in 
service on or prior to the date of enactment is unaffected by the 
modifications made by this provision. For example, the value of the 
credit that may be claimed for production from such a facility would 
continue to be indexed for inflation.
---------------------------------------------------------------------------
    Geothermal energy is energy derived from a geothermal 
deposit which is a geothermal reservoir consisting of natural 
heat which is stored in rocks or in an aqueous liquid or vapor 
(whether or not under pressure).
    Biosolids and sludge are the residue or solids removed 
during the treatment of commercial, industrial, or municipal 
wastewater.
    Municipal solid waste is ``solid waste'' as defined in 
section 2(27) of the Solid Waste Disposal Act.
    The provision provides that certain persons (public power 
systems, electric cooperatives, rural electric cooperatives, 
and Indian tribes) may sell, trade, or assign to any taxpayer 
any credits that would otherwise be allowable to that person, 
if that person were a taxpayer, for production of electricity 
from a qualified facility owned by such person. However, any 
credit sold, traded, or assigned may only be sold, traded, or 
assigned once. Subsequent transfers are not permitted. In 
addition, any credits that would otherwise be allowable to such 
person, to the extent provided by the Administrator of the 
Rural Electrification Administration, may be applied as a 
prepayment to certain loans or obligations undertaken by such 
person under the Rural Electrification Act of 1936.
    In the case of qualifying open-loop biomass facilities, 
qualifying closed-loop biomass facilities modified to use 
closed-loop biomass to co-fire with coal, with other biomass, 
or with coal and other biomass, and qualifying municipal solid 
waste facilities, the provision permits a lessee or operator to 
claim the credit in lieu of the owner of the facilities.
    Lastly, the provision repeals the present-law reduction in 
allowable credit for facilities financed with tax-exempt bonds 
or with certain loans received under the Rural Electrification 
Act of 1936. In the case of qualifying closed-loop biomass 
facilities modified to use closed-loop biomass to co-fire with 
coal, with other biomass, or with coal and other biomass, the 
provision repeals the present-law reduction in allowable credit 
for facilities that receive any subsidy.

                             EFFECTIVE DATE

    The provision generally is effective for electricity 
produced and sold from qualifying facilities after the date of 
enactment. For electricity produced from qualifying open-loop 
biomass facilities originally placed in service prior to the 
date of enactment, the provision is effective January 1, 2004.

        TITLE II--ALTERNATIVE MOTOR VEHICLES AND FUEL INCENTIVES


  A. Modifications and Extensions of Provisions Relating to Electric 
    Vehicles, Clean-Fuel Vehicles, and Clean-Fuel Vehicle Refueling 
                                Property


(Secs. 201, 202, 203, and 204 of the bill and secs. 30 and 179A and new 
        secs. 30B, 30C, and 40A of the Code)

                              PRESENT LAW

Electric vehicles

    A 10-percent tax credit is provided for the cost of a 
qualified electric vehicle, up to a maximum credit of $4,000 
(sec. 30). A qualified electric vehicle is a motor vehicle that 
is powered primarily by an electric motor drawing current from 
rechargeable batteries, fuel cells, or other portable sources 
of electrical current, the original use of which commences with 
the taxpayer, and that is acquired for the use by the taxpayer 
and not for resale. The full amount of the credit is available 
for purchases prior to 2002. The credit phases down in the 
years 2004 through 2006, and is unavailable for purchases after 
December 31, 2006.

Clean-fuel vehicles

    Certain costs of qualified clean-fuel vehicle may be 
expensed and deducted when such property is placed in service 
(sec. 179A). Qualified clean-fuel vehicle property includes 
motor vehicles that use certain clean-burning fuels (natural 
gas, liquefied natural gas, liquefied petroleum gas, hydrogen, 
electricity and any other fuel at least 85 percent of which is 
methanol, ethanol, any other alcohol or ether). The maximum 
amount of the deduction is $50,000 for a truck or van with a 
gross vehicle weight over 26,000 pounds or a bus with seating 
capacities of at least 20 adults; $5,000 in the case of a truck 
or van with a gross vehicle weight between 10,000 and 26,000 
pounds; and $2,000 in the case of any other motor vehicle. 
Qualified electric vehicles do not qualify for the clean-fuel 
vehicle deduction. The deduction phases down in the years 2004 
through 2006, and is unavailable for purchases after December 
31, 2006.

Clean-fuel vehicle refueling property

    Clean-fuel vehicle refueling property may be expensed and 
deducted when such property is placed in service (sec. 179A). 
Clean-fuel vehicle refueling property comprises property for 
the storage or dispensing of a clean-burning fuel, if the 
storage or dispensing is the point at which the fuel is 
delivered into the fuel tank of a motor vehicle. Clean-fuel 
vehicle refueling property also includes property for the 
recharging of electric vehicles, but only if the property is 
located at a point where the electric vehicle is recharged. Up 
to $100,000 of such property at each location owned by the 
taxpayer may be expensed with respect to that location. The 
deduction is unavailable for costs incurred after December 31, 
2006.

                           REASONS FOR CHANGE

    The Committee believes that further investments in 
alternative fuel and advanced technology vehicles are necessary 
to transform automotive transportation in the United States to 
be cleaner, more fuel efficient, and less reliant on petroleum 
fuels.
    Tax benefits provided directly to the consumer to lower the 
cost of new technology and alternative-fueled vehicles can help 
lower consumer resistance to these technologies by making the 
vehicles more price competitive with purely petroleum-based 
fuel vehicles and creating increased demand for manufacturers 
to produce the technologies. The eventual goal is mass 
production and mass-market acceptance of new technology 
vehicles. The Committee recognizes that creating a number of 
different credits tailored to each different automotive 
technology adds complexity to the Internal Revenue Code, but no 
one technology has established that it alone provides the 
solution. Therefore, it is appropriate to provide tax benefits 
tailored to specific vehicle technologies, as long as the 
vehicle's engine technology directly replaces gasoline and 
diesel fuel with an alternative energy source.
    The Committee expects that hybrid motor vehicles and 
dedicated alternative fuel vehicles are the near-term 
technological advancement that will replace gasoline- and 
diesel-burning engines with alternative-powered engines, and 
electrical and fuel cell vehicles will be the long-term 
technological advancement.
    Applying these technologies to medium and heavy-duty trucks 
and buses is also important for transforming the transportation 
sector to a cleaner, more fuel-efficient sector less reliant on 
petroleum-based fuels. Therefore, it is appropriate to use tax 
incentives to encourage the introduction of advanced vehicle 
technologies in large trucks and buses.
    In addition, because new vehicle technologies require new 
fuels and infrastructure to deliver those fuels, investments in 
new technology automobiles alone are not sufficient to 
transform the market to accept these vehicles. Therefore, 
substantial investments in new refueling stations and new fuels 
are also necessary to make alternative vehicle technologies 
feasible.

                        EXPLANATION OF PROVISION

Alternative motor vehicle credits

    The bill provides a credit for the purchase of a new 
qualified fuel cell motor vehicle, a new qualified hybrid motor 
vehicle, and a new qualified alternative fuel motor vehicle. In 
general the provision provides that the buyer claims the 
credit, unless the buyer is a tax-exempt entity in which case 
the seller or lessor of the vehicle may claim the credit. The 
taxpayer may carry forward unused credits for 20 years or carry 
unused credits back for three years (but not to any taxable 
year beginning before the date of enactment). Qualified 
vehicles are vehicles placed in service before 2007 (2012 in 
the case of fuel cell vehicles). Any deduction otherwise 
allowable under sec. 179A is reduced by the amount of credit 
allowable.

                           FUEL CELL VEHICLES

    A qualifying fuel cell vehicle is a motor vehicle that is 
propelled by power derived from one or more cells which convert 
chemical energy directly into electricity by combining oxygen 
with hydrogen fuel which is stored on board the vehicle and may 
or may not require reformation prior to use. The amount of 
credit for the purchase of a fuel cell vehicle is determined by 
a base credit amount that depends upon the weight class of the 
vehicle and, in the case of automobiles or light trucks, an 
additional credit amount that depends upon the rated fuel 
economy of the vehicle compared to a base fuel economy. For 
these purposes the base fuel economy is the 2002 model year 
city fuel economy rating for vehicles of various weight classes 
(see below). Table 1, below, shows the base credit amounts.

           TABLE 1.--BASE CREDIT AMOUNT FOR FUEL CELL VEHICLES
------------------------------------------------------------------------
        Vehicle gross weight rating in pounds            Credit amount
------------------------------------------------------------------------
Vehicle=8,500........................................             $4,000
8,500 < vehicle = 14,000.............................             10,000
14,000 < vehicle = 26,000............................             20,000
26,000 < vehicle.....................................             40,000
------------------------------------------------------------------------

    Table 2, below, shows the additional credits for passenger 
automobiles or light trucks.

           TABLE 2.--CREDIT FOR QUALIFYING FUEL CELL VEHICLES
                     [Percent of base fuel economy]
------------------------------------------------------------------------
                                                     If fuel economy of
                                                        the fuel cell
                                                         vehicle is:
                      Credit                       ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$1,000............................................     150           175
$1,500............................................     175           200
$2,000............................................     200           225
$2,500............................................     225           250
$3,000............................................     250           275
$3,500............................................     275           300
$4,000............................................            300
------------------------------------------------------------------------

            Hybrid vehicles
    A qualifying hybrid vehicle is a motor vehicle that draws 
propulsion energy from on-board sources of stored energy which 
include both an internal combustion engine or heat engine using 
combustible fuel and a rechargeable energy storage system 
(e.g., batteries). The amount of credit for the purchase of a 
hybrid vehicle is the sum of two components. In the case of an 
automobile or light truck, the amount of credit is the sum of a 
base credit amount that varies with the amount of power 
available from the rechargeable storage system and a fuel 
economy credit amount that varies with the rated fuel economy 
of the vehicle compared to a 2002 model year standard. In 
addition, the vehicle must meet or exceed the EPA Tier II, bin 
5 emissions standards. In the case of a heavy duty hybrid motor 
vehicle (a vehicle weighing more than 8,500 pounds),\5\ the 
amount of credit is the sum of a base credit amount that 
varies, by vehicle weight class, with the amount of power 
available from the rechargeable storage system and an 
additional credit for early adoption of the technology that 
varies with the model year of the vehicle purchased.
---------------------------------------------------------------------------
    \5\ Medium duty passenger vehicles as defined in 40 CFR 86.1830-01 
are treated as a passenger automobile or light truck for the purpose of 
determining the allowable credit. However, medium duty passenger 
vehicles are only eligible for the base credit amount. There is not an 
additional fuel economy credit for medium duty passenger vehicles.
---------------------------------------------------------------------------
    For these purposes, a vehicle's power available from its 
rechargeable energy storage system as a percentage of maximum 
available power is calculated as the maximum value available 
from the battery or other energy storage device during a 
standard power test, divided by the sum of the battery or other 
energy storage device and the SAE net power of the heat engine.
    Table 3, below, shows the base credit amounts for 
automobiles and light trucks.

  TABLE 3.--HYBRID VEHICLE BASE CREDIT AMOUNT FOR AUTOMOBILES AND LIGHT
 TRUCKS, DEPENDENT UPON THE POWER AVAILABLE FROM THE RECHARGEABLE ENERGY
 STORAGE SYSTEM AS A PERCENTAGE OF THE VEHICLES MAXIMUM AVAILABLE POWER
                  [Percent of maximum available power]
------------------------------------------------------------------------
                                                       If rechargeable
                                                       energy storage
                                                      system provides:
                Base credit amount                 ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$250..............................................       4            10
$500..............................................      10            20
$750..............................................      20            30
$1,000............................................             30
------------------------------------------------------------------------

    Table 4, below, shows the additional fuel economy credit 
available to a hybrid passenger automobile or light truck whose 
fuel economy (on a gasoline gallon equivalent basis) exceeds 
that of a base fuel economy. For these purposes the base fuel 
economy is the 2002 model year city fuel economy rating for 
vehicles of various weight classes (see below).

      TABLE 4.--ADDITIONAL FUEL ECONOMY CREDIT FOR HYBRID VEHICLES
                     [Percent of base fuel economy]
------------------------------------------------------------------------
                                                     If fuel economy of
                                                     the hybrid vehicle
                                                             is:
                      Credit                       ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$500..............................................        125        150
$1,000............................................     150           175
$1,500............................................     175           200
$2,000............................................     200           225
$2,500............................................     225           250
$3,000............................................            250
------------------------------------------------------------------------

    Table 5 below, shows the base credit amounts for heavy duty 
hybrid vehicles weighing 14,000 pounds or less.

   TABLE 5.--HYBRID VEHICLE BASE CREDIT AMOUNT FOR HEAVY DUTY VEHICLES
                  WEIGHING NOT MORE THAN 14,000 POUNDS
                  [Percent of maximum available power]
------------------------------------------------------------------------
                                                       If rechargeable
                                                       energy storage
                                                      system provides:
                Base credit amount                 ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$1,000............................................      20            30
$1,750............................................      30            40
$2,000............................................      40            50
$2,250............................................      50            60
$2,500............................................             60
------------------------------------------------------------------------

    In the case of heavy duty hybrid vehicles weighing not more 
than 14,000 pounds, the additional credit amount for early 
adoption of the 2007 emission standards technology is $3,000 
for model year 2003 vehicles, $2,500 for model year 2004 
vehicles, $2,000 for model year 2005 vehicles, and $1,500 for 
model year 2006 vehicles.
    Table 6, below, shows the base credit amounts for heavy 
duty hybrid vehicles weighing more than 14,000 pounds but not 
more than 26,000 pounds.

    TABLE 6.--HYBRID VEHICLE BASE CREDIT AMOUNT FOR HEAVY DUTY HYBRID
   VEHICLES WEIGHING MORE THAN 14,000 POUNDS, BUT NOT MORE THAN 26,000
                                 POUNDS
                  [Percent of maximum available power]
------------------------------------------------------------------------
                                                       If rechargeable
                                                       energy storage
                                                      system provides:
                Base credit amount                 ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$4,000............................................      20            30
$4,500............................................      30            40
$5,000............................................      40            50
$5,500............................................      50            60
$6,000............................................             60
------------------------------------------------------------------------

    In the case of heavy duty hybrid vehicles weighing more 
than 14,000 pounds but not more than 26,000 pounds, the 
additional credit amount for early adoption of the 2007 
emission standards technology is $7,750 for model year 2003 
vehicles, $6,500 for model year 2004 vehicles, $5,250 for model 
year 2005 vehicles, and $4,000 for model year 2006 vehicles.
    Table 7, below, shows the base credit amounts for heavy 
duty hybrid vehicles weighing more than 26,000 pounds.

    TABLE 7.--HYBRID VEHICLE BASE CREDIT AMOUNT FOR HEAVY DUTY HYBRID
                VEHICLES WEIGHING MORE THAN 26,000 POUNDS
                  [Percent of maximum available power]
------------------------------------------------------------------------
                                                       If rechargeable
                                                       energy storage
                                                      system provides:
                Base credit amount                 ---------------------
                                                                But less
                                                     At least     than
------------------------------------------------------------------------
$6,000............................................      20            30
$7,000............................................      30            40
$8,000............................................      40            50
$9,000............................................      50            60
$10,000...........................................             60
------------------------------------------------------------------------

    In the case of heavy duty hybrid vehicles weighing more 
than 26,000 pounds, the additional credit amount for early 
adoption of the 2007 emission standards technology is $12,000 
for model year 2003 vehicles, $10,000 for model year 2004 
vehicles, $8,000 for model year 2005 vehicles, and $6,000 for 
model year 2006 vehicles.
            Alternative fuel vehicle
    The credit for the purchase of a new alternative fuel 
vehicle is 40 percent of the incremental cost of such vehicle, 
plus an additional 30 percent if the vehicle meets certain 
emissions standards, but not more than between $5,000 and 
$40,000 depending upon the weight of the vehicle. Table 8, 
below, shows the maximum permitted incremental cost for the 
purpose of calculating the credit for alternative fuel vehicles 
by vehicle weight class.

     TABLE 8.--MAXIMUM ALLOWABLE INCREMENTAL COST FOR CALCULATION OF
                     ALTERNATIVE FUEL VEHICLE CREDIT
------------------------------------------------------------------------
                                                       Maximum allowable
        Vehicle gross weight rating in pounds           incremental cost
------------------------------------------------------------------------
vehicle = 8,500......................................             $5,000
8,500 < vehicle = 14,000.............................             10,000
14,000 < vehicle = 26,000............................             25,000
26,000 < vehicle.....................................             40,000
------------------------------------------------------------------------

    Alternative fuels comprise compressed natural gas, 
liquefied natural gas, liquefied petroleum gas, hydrogen, and 
any liquid fuel that is at least 85 percent methanol. 
Qualifying alternative fuel motor vehicles are vehicles that 
operate only on qualifying alternative fuels and are incapable 
of operating on gasoline or diesel (except in the extent 
gasoline or diesel fuel is part of a qualified mixed fuel, 
described below).
    Certain mixed fuel vehicles, that is vehicles that use a 
combination of an alternative fuel and a petroleum-based fuel, 
are eligible for a reduced credit. If the vehicle operates on a 
mixed fuel that is at least 75 percent alternative fuel, the 
vehicle is eligible for 70 percent of the otherwise allowable 
alternative fuel vehicle credit. If the vehicle operates on a 
mixed fuel that is at least 90 percent alternative fuel, the 
vehicle is eligible for 90 percent of the otherwise allowable 
alternative fuel vehicle credit.
            Base fuel economy
    The base fuel economy is the Environmental Protection 
Agency's unadjusted 2002 model year city fuel economy for 
vehicles by inertia weight class by vehicle type. The ``vehicle 
inertia weight class'' is that defined in regulations 
prescribed by the Environmental Protection Agency for purposes 
of Title II of the Clean Air Act. Table 9, below, shows the 
2002 model year city fuel economy for vehicles by type and by 
inertia weight class.

               TABLE 9.--2002 MODEL YEAR CITY FUEL ECONOMY
------------------------------------------------------------------------
                                                   Passenger     Light
                                                  automobile     truck
      Vehicle inertia weight class (pounds)       (miles per  (miles per
                                                    gallon)     gallon)
------------------------------------------------------------------------
1,500...........................................        45.2        39.4
1,750...........................................        45.2        39.4
2,000...........................................        39.6        35.2
2,250...........................................        35.2        31.8
2,500...........................................        31.7        29.0
2,750...........................................        28.8        26.8
3,000...........................................        26.4        24.9
3,500...........................................        22.6        21.8
4,000...........................................        19.8        19.4
4,500...........................................        17.6        17.6
5,000...........................................        15.9        16.1
5,500...........................................        14.4        14.8
6,000...........................................        13.2        13.7
6,500...........................................        12.2        12.8
7,000...........................................        11.3        12.1
8,500...........................................        11.3        12.1
------------------------------------------------------------------------

Modification of credit for qualified electric vehicles

    The bill repeals the phaseout of the credit for electric 
vehicles under present law. The provision also modifies present 
law to provide for a credit equal to the lesser of $1,500 or 10 
percent of the manufacturer's suggested retail price of certain 
vehicles that conform to the Motor Vehicle Safety Standard 500. 
For all other electric vehicles, Table 10, below describes the 
credit.

       TABLE 10.--CREDIT FOR QUALIFYING BATTERY ELECTRIC VEHICLES
------------------------------------------------------------------------
                                                                 Credit
            Vehicle gross weight rating in pounds                amount
------------------------------------------------------------------------
Vehicle = 8,500..............................................     $3,500
8,500 < vehicle = 14,000.....................................     10,000
14,000 < vehicle = 26,000....................................     20,000
26,000 < vehicle.............................................     40,000
------------------------------------------------------------------------

    If an electric vehicle weighing not more than 8,500 pounds 
has an estimated driving range of at least 100 miles on a 
single charge of the vehicle's batteries or if it is capable of 
a payload capacity of at least 1,000 pounds, then the credit 
amount in Table 10 is $6,000.
    In the case of property purchased by tax-exempt persons, 
the seller may claim the credit. The provision allows taxpayers 
to carry forward unused credits for 20 years or carry unused 
credits back for three (but not to any taxable year before the 
date of enactment).

Extension of present-law section 179A

    The bill extends the sunset date of the present law 
deduction for costs of qualified clean-fuel vehicle and clean-
fuel vehicle refueling property through December 31, 2007 
(December 31, 2011 in the case of property relating to 
hydrogen). The provision modifies the definition of refueling 
property in the case of property relating to hydrogen to 
include property for the production of hydrogen.
    The phase-down of present law for clean-fuel vehicles is 
modified such that the taxpayer may claim 75 percent of the 
otherwise allowable deductible in 2004 and 2005 (2004 through 
2009 in the case of property relating to hydrogen), 50 percent 
of the otherwise allowable deduction in 2006 (2010 in the case 
of property relating to hydrogen), and 25 percent of the 
otherwise allowable deduction in 2007 (2011 in the case of 
property relating to hydrogen).

Credit for installation of alternative fueling stations

    The bill permits taxpayers to claim a 50-percent credit for 
the cost of installing clean-fuel vehicle refueling property 
\6\ to be used in a trade or business of the taxpayer or 
installed at the principal residence of the taxpayer. In the 
case of retail clean-fuel vehicle refueling property the 
allowable credit may not exceed $30,000. In the case of 
residential clean-fuel vehicle refueling property the allowable 
credit may not exceed $1,000. The taxpayer's basis in the 
property is reduced by the amount of the credit and the 
taxpayer may not claim deductions under section 179A with 
respect to property for which the credit is claimed. In the 
case of refueling property installed on property owned or used 
by a tax-exempt person, the taxpayer that installs the property 
may claim the credit. To be eligible for the credit, the 
property must be placed in service before January 1, 2008 
(January 1, 2012 in the case of hydrogen). The credit allowable 
in the taxable year cannot exceed the difference between the 
taxpayer's regular tax (reduced by certain other credits) and 
the taxpayer's tentative minimum tax. The taxpayer may carry 
forward unused credits for 20 years.
---------------------------------------------------------------------------
    \6\ For the purpose of the credit for refueling property, refueling 
property is defined as in present-law section 179A as modified by this 
bill to include property for the production of hydrogen.
---------------------------------------------------------------------------

Credit for retail sale of alternative fuels

    The bill permits taxpayers to claim a credit equal to the 
gasoline gallon equivalent of 30 cents per gallon of 
alternative fuel sold in 2003, 40 cents per gallon in 2004, 50 
cents per gallon in 2005, and 50 cents per gallon in 2006. 
Qualifying alternative fuels are compressed natural gas, 
liquefied natural gas, liquefied petroleum gas, hydrogen, and 
any liquid mixture consisting of at least 85 percent methanol 
or ethanol. The gasoline gallon equivalency of any alternative 
fuel is determined by reference to the British thermal unit 
content of the alternative fuel compared to a gallon of 
gasoline. The credit may be claimed for sales prior to January 
1, 2007. Under the provision, the credit is part of the general 
business credit.

                             EFFECTIVE DATE

    The provisions relating to the credit for new fuel cell 
motor vehicles, hybrid motor vehicles, and alternative fuel 
motor vehicles, the credit for battery electric vehicles, the 
credit for alternative fuel vehicle refueling property, and 
deductions for clean fuel vehicles and clean fuel refueling 
property are effective for property placed in service after the 
date of enactment, in taxable years ending after the date of 
enactment. The credit for retail sales of alternative fuels is 
effective for sales of fuels after the date of enactment, in 
taxable years ending after the date of enactment.

           B. Modifications to Small Producer Ethanol Credit


(Sec. 205 of the bill and secs. 38, 40, 87, and 469 of the Code)

                              PRESENT LAW

Small producer credit

    Present law provides several tax benefits for ethanol and 
methanol produced from renewable sources (e.g., biomass) that 
are used as a motor fuel or that are blended with other fuels 
(e.g., gasoline) for such a use. In the case of ethanol, a 
separate 10-cents-per-gallon credit for small producers, 
defined generally as persons whose production does not exceed 
15 million gallons per year and whose production capacity does 
not exceed 30 million gallons per year. The alcohol fuels tax 
credits are includible in income. This credit, like tax credits 
generally, may not be used to offset alternative minimum tax 
liability. The credit is treated as a general business credit, 
subject to the ordering rules and carryforward/carryback rules 
that apply to business credits generally. The alcohol fuels tax 
credit is scheduled to expire after December 31, 2007.

Taxation of cooperatives and their patrons

    Under present law, cooperatives in essence are treated as 
pass-through entities in that the cooperative is not subject to 
corporate income tax to the extent the cooperative timely pays 
patronage dividends. Under present law, the only excess credits 
that may be flowed-through to cooperative patrons are the 
rehabilitation credit (sec. 47), the energy property credit 
(sec. 48(a)), and the reforestation credit (sec. 48(b)).

                           REASONS FOR CHANGE

    The Committee believes provisions allowing greater 
flexibility in utilizing the benefits of the small ethanol 
producer credit are consistent with the objective of the bill 
to increase availability of alternative fuels.

                        EXPLANATION OF PROVISION

    The provision makes several modifications to the rules 
governing the small producer ethanol credit. First, the 
provision liberalizes the definition of an eligible small 
producer to include persons whose production capacity does not 
exceed 60 million gallons. Second, the provision allows 
cooperatives to elect to pass-through the small ethanol 
producer credits to its patrons. The credit allowed to a 
particular patron is that proportion of the credit that the 
cooperative elects to pass-through for that year as the amount 
of patronage of that patron for that year bears to total 
patronage of all patrons for that year.
    Third, the provision repeals the rule that includes the 
small producer credit in income of taxpayers claiming it and 
liberalizes the ordering and carryforward/carryback rules for 
the small producer ethanol credit. Fourth, the provision allows 
the small producer credit to be claimed against the alternative 
minimum tax. Finally, the provision provides that the small 
producer ethanol credit is not treated as derived from a 
passive activity under the Code rules restricting credits and 
deductions attributable to such activities.

                             EFFECTIVE DATE

    The provision is effective for taxable years beginning 
after date of enactment.

      C. Increased Flexibility in Alcohol Fuels Income Tax Credit


(Sec. 206 of the bill and sec. 40 of the Code)

                              PRESENT LAW

    An 18.4 cents-per-gallon excise tax is imposed on gasoline. 
The tax is imposed when the fuel is removed from a refinery 
unless the removal is to a bulk transportation facility (e.g., 
removal by pipeline or barge to a registered terminal). In the 
case of gasoline removed in bulk by registered parties, tax is 
imposed when the gasoline is removed from the terminal 
facility, typically by truck (i.e., ``breaks bulk''). If 
gasoline is sold to an unregistered party before it is removed 
from a terminal, tax is imposed on that sale. When the gasoline 
subsequently breaks bulk, a second tax is imposed. The payor of 
the second tax may file a refund claim if it can prove payment 
of the first tax. The party liable for payment of the gasoline 
excise tax is called a ``position holder,'' defined as the 
owner of record inside the refinery or terminal facility.
    A 52-cents-per-gallon income tax credit is allowed for 
ethanol used as a motor fuel (the ``alcohol fuels credit''). 
The benefit of the alcohol fuels tax credit may be claimed as a 
reduction in excise tax payments when the ethanol is blended 
with gasoline (``gasohol''). The reduction is based on the 
amount of ethanol contained in the gasohol. The excise tax 
benefits apply to gasohol blends of 90 percent gasoline/10 
percent ethanol, 92.3 percent gasoline/7.7 percent ethanol, or 
94.3 percent gasoline/5.7 percent ethanol. The income tax 
credit is based on the amount of alcohol contained in the 
blended fuel.
    Ethyl tertiary butyl ether (``ETBE'') is an ether that is 
manufactured using ethanol. Unlike ethanol, ETBE can be blended 
with gasoline before the gasoline enters a pipeline because 
ETBE does not result in contamination of fuel with water while 
in transport. Treasury Department regulations provide that 
gasohol blenders may claim the income tax credit and excise tax 
rate reductions for ethanol used in the production of ETBE. The 
regulations also provide a special election allowing refiners 
to claim the benefit of the excise tax rate reduction even 
though the fuel being removed from terminals does not contain 
the requisite percentages of ethanol for claiming the excise 
tax rate reduction.

                           REASONS FOR CHANGE

    The Committee believes the tax benefits currently available 
to ethanol used in the production of ETBE should be clarified 
statutorily. In addition, the Committee believes it appropriate 
to increase the flexibility by which the alcohol fuels credit 
may be claimed for alcohol used in the production of ETBE.

                        EXPLANATION OF PROVISION

    The provision permits a taxpayer to transfer the alcohol 
fuels credit with respect to alcohol used in the production of 
ETBE to any registered position holder liable for excise taxes 
imposed under section 4081. Such position holder also must 
obtain from the transferor taxpayer a certificate that 
identifies the amount of alcohol used in the production of 
ETBE. The Secretary is to prescribe regulations as necessary to 
ensure that the credit is claimed once and not reassigned by 
the position holder.

                             EFFECTIVE DATE

    The provision is effective date of enactment.

            D. Income Tax Credit for Biodiesel Fuel Mixtures


(Sec. 207 of the bill and new sec. 40B of the Code)

                              PRESENT LAW

    No income tax credit or excise tax rate reduction is 
provided for biodiesel fuels under present law. However, a 52-
cents-per-gallon income tax credit (the ``alcohol fuels 
credit'') is allowed for ethanol and methanol (derived from 
renewable sources) when the alcohol is used as a highway motor 
fuel. The benefit of this income tax credit may be claimed 
through reductions in excise taxes paid on alcohol fuels. In 
the case of alcohol blended with other fuels (e.g., gasoline), 
the excise tax rate reductions are allowable only for blends of 
90 percent gasoline/10 percent alcohol, 92.3 percent gasoline/
7.7 percent alcohol, or 94.3 percent gasoline/5.7 percent 
alcohol. These present law provisions are scheduled to expire 
in 2007.

                           REASONS FOR CHANGE

    The Committee believes that providing a new income tax 
credit for biodiesel fuel will promote energy self-sufficiency 
and also is consistent with the environmental objectives of the 
bill.

                        EXPLANATION OF PROVISION

    The provision provides a new income tax credit for 
qualified biodiesel mixtures. A qualified biodiesel mixture is 
a mixture of diesel fuel and biodiesel that (1) is sold by the 
taxpayer producing such mixture to any person for use as a 
fuel, or (2) is used as a fuel by the taxpayer producing such 
mixture. Biodiesel is monoalkyl esters of long chain fatty 
acids for use in diesel-powered engines and which meet the 
registration requirements of the Environmental Protection 
Agency under section 211 of the Clean Air Act (42 U.S.C. sec. 
7545) and the American Society of Testing and Materials D6751. 
Agri-biodiesel means biodiesel derived solely from virgin oils, 
including esters derived from corn, soybeans, sunflower seeds, 
cottonseeds, canola, crambe, rapeseeds, safflowers, flaxseeds, 
rice bran, mustard seeds, or animal fats. Recycled biodiesel is 
biodiesel derived from nonvirgin vegetable oils or nonvirgin 
animal fats. Virgin vegetable oils or animal fats mixed with 
recycled biodiesel will be treated as recycled biodiesel.
    The biodiesel mixture credit is the sum of the products of 
the biodiesel mixture rate for each qualified biodiesel mixture 
and the number of gallons of such mixture of the taxpayer for 
the taxable year. The per gallon biodiesel mixture rate for 
agri-biodiesel equals one cent for each percentage point of 
biodiesel in the qualified biodiesel mixture, subject to a 
maximum credit of 20 cents per blended gallon of fuel. Agri-
biodiesel used in the production of a qualified biodiesel 
mixture is taken into account only if a certification from the 
producer of the agri-biodiesel which identifies the product 
produced is obtained. The per gallon biodiesel mixture rate for 
recycled biodiesel equals 0.5 cent for each percentage point of 
biodiesel in the qualified biodiesel mixture, subject to a 
maximum credit of 10 cents per blended gallon of fuel.
    The amount of the biodiesel mixture credit is includible in 
income. The credit may not be carried back to a taxable year 
beginning before date of enactment.

                             EFFECTIVE DATE

    The biodiesel mixture credit is effective for biodiesel 
fuel sold after date of enactment, and before January 1, 2006.

        E. Alcohol Fuel and Biodiesel Mixtures Excise Tax Credit


(Sec. 208 of the bill, secs. 40, 4081, 6427, 9503, and new sec. 6426 of 
        the Code)

                              PRESENT LAW

Alcohol fuels income tax credit

    The alcohol fuels credit is the sum of three credits: the 
alcohol mixture credit, the alcohol credit and the small 
ethanol producer credit. Generally, the alcohol fuels credit 
expires after December 31, 2007.\7\
---------------------------------------------------------------------------
    \7\ The alcohol fuels credit is unavailable when, for any period 
before January 1, 2008, the tax rates for gasoline and diesel fuels 
drop to 4.3 cents per gallon.
---------------------------------------------------------------------------
    A taxpayer (generally a petroleum refiner, distributor, or 
marketer) who mixes ethanol with gasoline (or a special fuel 
\8\) is an ``ethanol blender.'' Ethanol blenders are eligible 
for an income tax credit of 52 cents per gallon of ethanol used 
in the production of a qualified mixture (the ``alcohol mixture 
credit''). A qualified mixture means a mixture of alcohol and 
gasoline, (or of alcohol and a special fuel) sold by the 
blender as fuel, or used as fuel by the blender in producing 
the mixture. The term alcohol includes methanol and ethanol but 
does not include (1) alcohol produced from petroleum, natural 
gas, or coal (including peat), or (2) alcohol with a proof of 
less than 150. Businesses also may reduce their income taxes by 
52 cents for each gallon of ethanol (not mixed with gasoline or 
other special fuel) that they sell at the retail level as 
vehicle fuel or use themselves as a fuel in their trade or 
business (``the alcohol credit''). The 52-cents-per-gallon 
income tax credit rate is scheduled to decline to 51 cents per 
gallon during the period 2005 through 2007. For blenders using 
an alcohol other than ethanol, the rate is 60 cents per 
gallon.\9\
---------------------------------------------------------------------------
    \8\ A special fuel includes any liquid (other than gasoline) that 
is suitable for use in an internal combustion engine.
    \9\ In the case of any alcohol (other than ethanol) with a proof 
that is at least 150 but less than 190, the credit is 45 cents per 
gallon (the ``low-proof blender amount''). For ethanol with a proof 
that is at least 150 but less than 190, the low-proof blender amount is 
38.52 cents for sales or uses during calendar year 2003 and 2004, and 
37.78 cents for calendar years 2005, 2006, and 2007.
---------------------------------------------------------------------------
    A separate income tax credit is available for small ethanol 
producers (the ``small ethanol producer credit''). A small 
ethanol producer is defined as a person whose ethanol 
production capacity does not exceed 30 million gallons per 
year. The small ethanol producer credit is 10 cents per gallon 
of ethanol produced during the taxable year for up to a maximum 
of 15 million gallons.
    The credits that comprise alcohol fuels tax credit are 
includible in income. The credit may not be used to offset 
alternative minimum tax liability. The credit is a treated as a 
general business credit, subject to the ordering rules and 
carryforward/carryback rules that apply to business credits 
generally.

Excise tax reductions for alcohol mixture fuels

    Generally, motor fuels tax rates are as follows: \10\
---------------------------------------------------------------------------
    \10\ These rates include an additional 0.1 cent-per-gallon excise 
tax to fund the Leaking Underground Storage Tank Trust Fund. See secs. 
4041(d) and 4081(a)(2)(B). In addition, the basic fuel tax rate will 
drop to 4.3 cents per gallon beginning on October 1, 2005.




Gasoline........................  18.4 cents per gallon.
Diesel fuel and kerosene........  24.4 cents per gallon.
Special motor fuels.............  18.4 cents per gallon generally.


    Alcohol-blended fuels are subject to a reduced rate of tax. 
The benefits provided by the alcohol fuels income tax credit 
and the excise tax reduction are integrated such that the 
alcohol fuels credit is reduced to take into account the 
benefit of any excise tax reduction.
            Gasohol
    Registered ethanol blenders may forgo the full income tax 
credit and instead pay reduced rates of excise tax on gasoline 
that they purchase for blending with ethanol. Most of the 
benefit of the alcohol fuels credit is claimed through the 
excise tax system.
    The reduced excise tax rates apply to gasohol upon its 
removal or entry. Gasohol is defined as a gasoline/ethanol 
blend that contains 5.7 percent ethanol, 7.7 percent ethanol, 
or 10 percent ethanol. The Federal excise tax on gasoline is 
18.4 cents per gallon. For the calendar year 2003, the 
following reduced rates apply to gasohol: \11\
---------------------------------------------------------------------------
    \11\ These rates include the additional 0.1 cent-per-gallon excise 
tax to fund the Leaking Underground Storage Tank Trust Fund. These 
special rates will terminate on September 30, 2007 (sec. 4081(c)(8)).




5.7 percent ethanol................  15.436 cents per gallon.
7.7 percent ethanol................  14.396 cents per gallon.
10.0 percent ethanol...............  13.200 cents per gallon.


    Reduced excise tax rates also apply when gasoline is being 
purchased for the production of ``gasohol.'' When gasoline is 
purchased for blending into gasohol, the rates above are 
multiplied by a fraction (e.g., \10/9\ for 10-percent gasohol) 
so that the increased volume of motor fuel will be subject to 
tax. The reduced tax rates apply if the person liable for the 
tax is registered with the IRS and (1) produces gasohol with 
gasoline within 24 hours of removing or entering the gasoline 
or (2) gasoline is sold upon its removal or entry and such 
person has an unexpired certificate from the buyer and has no 
reason to believe the certificate is false.\12\
---------------------------------------------------------------------------
    \12\ Treas. Reg. sec. 48.4081-6(c). A certificate from the buyer 
assures that the gasoline will be used to produce gasohol within 24 
hours after purchase. A copy of the registrant's letter of registration 
cannot be used as a gasohol blender's certificate.
---------------------------------------------------------------------------
            Qualified methanol and ethanol fuels
            Alcohol produced from a substance other than petroleum or 
                    natural gas
    Qualified methanol or ethanol fuel is any liquid that 
contains at least 85 percent methanol or ethanol or other 
alcohol produced from a substance other than petroleum or 
natural gas. These fuels are taxed at reduced rates.\13\ The 
rate of tax on qualified methanol is 12.35 cents per gallon. 
The rate on qualified ethanol in 2003 and 2004 is 13.15 cents. 
From January 1, 2005 through September 30, 2007, the rate of 
tax on qualified ethanol is 13.25 cents.\14\
---------------------------------------------------------------------------
    \13\ A 0.05-cent-per-gallon Leaking Underground Storage Tank Trust 
Fund tax is imposed on such fuel. This provision expires on October 1, 
2007 (sec. 4041(b)(2)).
    \14\ These reduced rates terminate after September 30, 2007.
---------------------------------------------------------------------------
            Alcohol produced from natural gas
    A mixture of methanol, ethanol, or other alcohol produced 
from natural gas that consists of at least 85 percent alcohol 
is also taxed at reduced rates.\15\ For mixtures not containing 
ethanol, the applicable rate of tax is 9.25 cents per gallon 
before October 1, 2005. In all other cases, the rate is 11.4 
cents per gallon. After September 31, 2005, the rate is reduced 
to 2.15 per gallon when the mixture does not contain ethanol 
and 4.3 cents per gallon in all other cases.
---------------------------------------------------------------------------
    \15\ These rates include the additional 0.1 cent-per-gallon excise 
tax to fund the Leaking Underground Storage Tank Trust Fund (sec. 
4041(d)(1)).
---------------------------------------------------------------------------
            Blends of alcohol and diesel fuel or special motor fuels
    A reduced rate of tax applies to diesel fuel or kerosene 
that is combined with alcohol as long as at least 10 percent of 
the finished mixture is alcohol. If none of the alcohol in the 
mixture is ethanol, the rate of tax is 18.4 cents per gallon. 
For alcohol mixtures containing ethanol, the rate of tax in 
2003 and 2004 is 19.2 cents per gallon and for 2005 through 
September 30, 2007, the rate for ethanol mixtures is 19.3 cents 
per gallon. Fuel removed or entered for use in producing a 10 
percent diesel-alcohol fuel mixture (without ethanol), is 
subject to a tax of 20.44 cents. The rate of tax for fuel 
removed or entered to produce a 10 percent diesel-ethanol fuel 
mixture is 21.333 cents per gallon for 2003 and 2004 and 21.444 
cents per gallon for the period January 1, 2005 through 
September 30, 2007.
    Special motor fuel (nongasoline) mixtures with alcohol also 
are taxed at reduced rates.
            Aviation fuel
    Noncommercial aviation fuel is subject to a tax of 21.9 
cents per gallon.\16\ Fuel mixtures containing at least 10 
percent alcohol are taxed at lower rates.\17\ In the case of 10 
percent ethanol mixtures, any sale or use during 2003 and 2004, 
the 21.9 cents is reduced by 13.2 cents (for a tax of 8.7 cents 
per gallon), for 2005, 2006, and 2007 the reduction is 13.1 
cents (for a tax of 8.8 cents per gallon) and is reduced by 
13.4 cents in the case of any sale during 2008 or thereafter. 
For mixtures not containing ethanol, the 21.9 cents is reduced 
by 14 cents for a tax of 7.9 cents. These reduced rates expire 
after September 30, 2007.\18\
---------------------------------------------------------------------------
    \16\ This rate includes the additional 0.1 cent-per-gallon tax for 
the Leaking Underground Storage Tank Trust Fund.
    \17\ Sec. 4041(k)(1) and 4091(c).
    \18\ Sec. 4091(c)(1). In the case of aviation fuel for use in 
producing an aviation alcohol fuel mixture, the rate of tax is \10/9\ 
of the rate that would have been applicable to such mixture had such 
mixture been created prior to sale.
---------------------------------------------------------------------------
    When aviation fuel is purchased for blending with alcohol, 
the rates above are multiplied by a fraction (10/9) so that the 
increased volume of aviation fuel will be subject to tax.

Refunds and payments

    If fully taxed gasoline (or other taxable fuel) is used to 
produce a qualified alcohol mixture, the Code permits the 
blender to file a claim for a quick excise tax refund. The 
refund is equal to the difference between the gasoline (or 
other taxable fuel) excise tax that was paid and the tax that 
would have been paid by a registered blender on the alcohol 
fuel mixture being produced. Generally, the IRS pays these 
quick refunds within 20 days. Interest accrues if the refund is 
paid more than 20 days after filing. A claim may be filed by 
any person with respect to gasoline, diesel fuel, or kerosene 
used to produce a qualified alcohol fuel mixture for any period 
for which $200 or more is payable and which is not less than 
one week.

Ethyl tertiary butyl ether (ETBE)

    Ethyl tertiary butyl ether (``ETBE'') is an ether that is 
manufactured using ethanol. Unlike ethanol, ETBE can be blended 
with gasoline before the gasoline enters a pipeline because 
ETBE does not result in contamination of fuel with water while 
in transport. Treasury Department regulations provide that 
gasohol blenders may claim the income tax credit and excise tax 
rate reductions for ethanol used in the production of ETBE. The 
regulations also provide a special election allowing refiners 
to claim the benefit of the excise tax rate reduction even 
though the fuel being removed from terminals does not contain 
the requisite percentages of ethanol for claiming the excise 
tax rate reduction.

Highway Trust Fund

    With certain exceptions, the taxes imposed by section 4041 
(relating to retail taxes on diesel fuels and special motor 
fuels) and section 4081 (relating to tax on gasoline, diesel 
fuel and kerosene) are credited to the Highway Trust Fund. In 
the case of alcohol fuels, 2.5 cents per gallon of the tax 
imposed is retained in the General Fund.\19\ In the case of a 
taxable fuel taxed at a reduced rate upon removal or entry 
prior to mixing with alcohol, 2.8 cents of the reduced rate is 
retained in the General Fund.\20\
---------------------------------------------------------------------------
    \19\ Sec. 9503(b)(4)(E).
    \20\ Sec. 9503(b)(4)(F).
---------------------------------------------------------------------------

Biodiesel

    If biodiesel is used in the production of blended taxable 
fuel, the Code imposes tax on the removal or sale of the 
blended taxable fuel.\21\ In addition, the Code imposes tax on 
any liquid other than gasoline sold for use or used as a fuel 
in a diesel-powered highway vehicle or diesel-powered train 
unless tax was previously imposed and not refunded or 
credited.\22\ If biodiesel that was not previously taxed or 
exempt is sold for use or used as a fuel in a diesel-powered 
highway vehicle or a diesel-powered train, tax is imposed.\23\ 
There are no reduced excise tax rates for biodiesel.
---------------------------------------------------------------------------
    \21\ Sec. 4081(b); Rev. Rul. 2002-76, 2002-46 I.R.B. 841 (2002). 
``Taxable fuels'' are gasoline, diesel and kerosene (sec. 4083). 
Biodiesel, although suitable for use as a fuel in a diesel-powered 
highway vehicle or diesel-powered train, contains less than four 
percent normal paraffins and, therefore, is not treated as diesel fuel 
under the applicable Treasury regulations. Treas. Reg. secs. 48.4081-
1(c)(2)(i) and (ii), and 48.4081-1(b); Rev. Rul. 2002-76, 2002-46 
I.R.B. 841 (2002). As a result, biodiesel alone is not a taxable fuel 
for purposes of section 4081. As noted above, however, tax is imposed 
upon the removal or entry of blended taxable fuel made with biodiesel.
    \22\ Sec. 4041. The tax imposed under section 4041 also will not 
apply if an exemption from tax applies.
    \23\ Rev. Rul. 2002-76, 2002-46 I.R.B. 841 (2002).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The United States seeks to reduce its dependence on foreign 
oil through, among other means, the use of alternative fuels. 
The Committee believes that the goal of promoting the use of 
alternative fuels can be achieved without decreasing the 
revenues available for improving the nation's highway and 
bridge network. As a result, the Committee believes that it is 
appropriate that the entire amount of alcohol fuel taxes be 
devoted to the Highway Trust Fund. Highway vehicles using 
alcohol-blended fuels contribute to the wear and tear of the 
same highway system used by gasoline or diesel vehicles. 
Therefore, the Committee believes that alcohol-blended fuels 
should be taxed at rates equal to gasoline or diesel.

                        EXPLANATION OF PROVISION

Overview

    The provision eliminates reduced rates of excise tax for 
most alcohol-blended fuels. In place of reduced rates, the 
provision creates two new credits: the alcohol fuel mixture 
credit and the biodiesel mixture credit. The sum of these 
credits may be taken against the tax imposed on taxable fuels 
(by section 4081). Alternatively, in lieu of a credit against 
tax, the provision allows taxpayers to file a claim for payment 
equal to the amount of these credits. The provision also 
eliminates the General Fund retention of certain taxes on 
alcohol fuels, and credits these taxes to the Highway Trust 
Fund and extends the present-law alcohol fuels credit through 
December 31, 2010.

Alcohol fuel mixture excise tax credit

    The provision eliminates the reduced rates of excise tax 
for most alcohol-blended fuels.\24\ Under the provision, the 
full rate of tax for taxable fuels is imposed on both alcohol 
fuel mixtures and the taxable fuel used to produce an alcohol 
fuel mixture.
---------------------------------------------------------------------------
    \24\ The provision does not change the present-law treatment of 
alcohol aviation fuels, fuels blended with alcohol derived from natural 
gas (under sec. 4041(m)) or alcohol derived from coal or peat (under 
sec. 4041(b)(2)). In general, the provision does not change the taxes 
imposed to fund the Leaking Underground Storage Tank Trust Fund.
---------------------------------------------------------------------------
    In lieu of the reduced excise tax rates, the provision 
provides for an excise tax credit, the alcohol fuel mixture 
credit. The alcohol fuel mixture credit is 52 cents for each 
gallon of alcohol used by a person in producing an alcohol fuel 
mixture. The credit declines to 51 cents per gallon after 
calendar year 2004. For mixtures not containing ethanol 
(renewable source methanol), the credit is 60 cents per gallon. 
Equivalent amounts of these credits are to be credited to the 
Highway Trust Fund.
    For purposes of the alcohol fuel mixture credit, an 
``alcohol fuel mixture'' is (1) a mixture of alcohol and a 
taxable fuel and (2) sold for use or used as a fuel by the 
taxpayer producing the mixture. Alcohol for this purpose 
includes methanol, ethanol, and alcohol gallon equivalents of 
ETBE or other ethers produced from such alcohol. It does not 
include alcohol produced from petroleum, natural gas or coal 
(including peat), or alcohol with a proof of less than 190 
(determined without regard to any added denaturants). Taxable 
fuel is gasoline, diesel and kerosene.\25\
---------------------------------------------------------------------------
    \25\ Sec. 4083(a)(1).
---------------------------------------------------------------------------
    The excise tax credit is coordinated with the alcohol fuels 
income tax credit and is available through December 31, 2010.

Biodiesel mixture excise tax credit

    The provision provides an excise tax credit for agri-
biodiesel mixtures. The credit is one dollar for the first 
gallon of agri-biodiesel used by the taxpayer in producing at 
least five gallons of qualified biodiesel mixture.\26\ The 
credit is not available for any sale or use for any period 
after December 31, 2005. This excise tax credit is coordinated 
with income tax credit for biodiesel such that credit for the 
same biodiesel cannot be claimed for both income and excise tax 
purposes.
---------------------------------------------------------------------------
    \26\ Agri-biodiesel is monoalkyl esters of long chain fatty acids 
for use in diesel-powered engines that is derived from virgin oils, 
including that from corn, soybeans, sunflower seeds, cottonseeds, 
canola, crambe, rapeseeds, safflowers, flaxseeds, rice bran, mustard 
seeds, or animal fats. The excise tax credit employs the same 
definitions as the biodiesel income tax credit created by section 207 
of the bill.
---------------------------------------------------------------------------

Payments with respect to tax-paid fuel used to produce qualified 
        mixtures

    When tax-paid fuel is used to produce an alcohol fuel 
mixture or qualified biodiesel mixture that is sold or used in 
the trade or business of the person who makes such a mixture, a 
payment in an amount equal to the alcohol fuel mixture credit 
or biodiesel mixture credit is available. This refund provision 
is available to persons using gasoline, diesel fuel or kerosene 
to make an alcohol fuel mixture or qualified biodiesel mixture. 
Specifically, if any gasoline, diesel fuel, or kerosene on 
which tax was imposed by section 4081 is used by any person in 
producing an alcohol fuel mixture or qualified biodiesel 
mixture which is sold or used in such person's trade or 
business, the Secretary is to pay to such person an amount 
equal to the alcohol fuel mixture credit or the biodiesel 
mixture credit with respect to such gasoline, diesel fuel or 
kerosene.
    If such claims are not paid within 45 days, the claim is to 
be paid with interest. The provision also provides that in the 
case of an electronic claim, if such claim is not paid within 
20 days, the claim is to be paid with interest. The refund 
provision is coordinated with other refund provisions and the 
excise tax credits for alcohol fuel mixtures and biodiesel 
mixtures. The provision does not apply with respect to alcohol 
fuel mixtures sold or used after December 31, 2010 or qualified 
biodiesel mixtures sold or used after December 31, 2005.

Highway Trust Fund

    The provision eliminates the requirement that 2.5 and 2.8 
cents per gallon of excise taxes be retained in the General 
Fund so that the full amount of tax on alcohol fuels is 
credited to the Highway Trust Fund. The provision also 
authorizes the full amount of fuel taxes to be appropriated to 
the Highway Trust Fund without reduction for amounts equivalent 
to the excise tax credits allowed for alcohol fuel mixtures and 
biodiesel mixtures.

Alcohol fuels income tax credit

    The provision extends the alcohol fuels credit (sec. 40) 
through December 31, 2010.

                             EFFECTIVE DATE

    The provision is effective for fuel sold or used after 
September 30, 2003.

   F. Sale of Gasoline and Diesel Fuel at Duty-Free Sales Enterprises


(Sec. 209 of the bill)

                              PRESENT LAW

    A duty-free sales enterprise that meets certain conditions 
may sell and deliver for export from the customs territory of 
the United States duty-free merchandise. Duty-free merchandise 
is merchandise sold by a duty-free sales enterprise on which 
neither federal duty nor federal tax has been assessed pending 
exportation from the customs territory of the United States. 
Conditions for qualifying as a duty-free enterprise include 
(but are limited to) locations within a specified distance from 
a port of entry, establishment of procedures for ensuring that 
merchandise is exported from the United States, and prominent 
posting of rules concerning duty-free treatment of merchandise. 
The duty-free statute does not contain any limitation on what 
goods may qualify for duty-free treatment.

                           REASONS FOR CHANGE

    The Committee understands that in some circumstances 
individuals purchase motor fuels at a duty free facility that 
is located in the United States, drive briefly outside of the 
United States, and return to the United States. The Committee 
believes that motor fuel sold at duty-free enterprises should 
support the financing of the U.S. highway system as do other 
motor fuel sales in the United States.

                        EXPLANATION OF PROVISION

    The provision amends Section 555(b) of the Tariff Act of 
1930 (19 U.S.C. 1555(b)) to provide that gasoline or diesel 
fuel sold at duty-free enterprises shall be considered to 
entered for consumption into the United States and thus 
ineligible for classification as duty-free merchandise.

                             EFFECTIVE DATE

    The provision is effective on the date of enactment.

        TITLE III--CONSERVATION AND ENERGY EFFICIENCY PROVISIONS


        A. Credit for Construction of New Energy-Efficient Home


(Sec. 301 of the bill and new sec. 45G of the Code)

                              PRESENT LAW

    A nonrefundable, 10-percent business energy credit is 
allowed for the cost of new property that is equipment (1) that 
uses solar energy to generate electricity, to heat or cool a 
structure, or to provide solar process heat, or (2) used to 
produce, distribute, or use energy derived from a geothermal 
deposit, but only, in the case of electricity generated by 
geothermal power, up to the electric transmission stage.
    The business energy tax credits are components of the 
general business credit (sec. 38(b)(1)). The business energy 
tax credits, when combined with all other components of the 
general business credit, generally may not exceed for any 
taxable year the excess of the taxpayer's net income tax over 
the greater of (1) 25 percent of net regular tax liability 
above $25,000 or (2) the tentative minimum tax. For credits 
arising in taxable years beginning after December 31, 1997, an 
unused general business credit generally may be carried back 
one year and carried forward 20 years (sec. 39).
    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present-law credit for the construction of new 
energy-efficient homes.

                           REASONS FOR CHANGE

    The Committee recognizes that residential energy use for 
heating and cooling represents a large share of national energy 
consumption, and accordingly believes that measures to reduce 
heating and cooling energy requirements have the potential to 
substantially reduce national energy consumption. The Committee 
further recognizes that the most cost-effective time to 
properly insulate a home is when it is under construction and 
that the most effective mechanism to encourage the utilization 
of energy-efficient components in the construction of new homes 
is through an incentive to the builder. Accordingly, the 
Committee believes that a tax credit for the use of energy-
efficient components in a home's envelope (exterior windows 
(including skylights) and doors and insulation) or heating and 
cooling appliances will encourage contractors to produce highly 
energy-efficient homes, which in turn will reduce national 
energy consumption. Reduced energy consumption will in turn 
reduce reliance on foreign suppliers of oil and will reduce 
pollution in general.

                        EXPLANATION OF PROVISION

    The provision provides a credit to an eligible contractor 
of an amount equal to the aggregate adjusted bases of all 
energy-efficient property installed in a qualified new energy-
efficient home during construction. The credit cannot exceed 
$1,000 ($2,000) in the case of a new home that has a projected 
level of annual heating and cooling costs that is 30 percent 
(50 percent) less than a comparable dwelling constructed in 
accordance with Chapter 4 of the 2000 International Energy 
Conservation Code.
    The eligible contractor is the person who constructed the 
home, or in the case of a manufactured home, the producer of 
such home. Energy efficiency property is any energy-efficient 
building envelope component (insulation materials or system 
designed to reduce heat loss or gain, and exterior windows, 
including skylights, and doors) and any energy-efficient 
heating or cooling appliance that can, individually or in 
combination with other components, meet the standards for the 
home.
    To qualify as an energy-efficient new home, the home must 
be: (1) a dwelling located in the United States; (2) the 
principal residence of the person who acquires the dwelling 
from the eligible contractor, and (3) certified to have a 
projected level of annual heating and cooling energy 
consumption that meets the standards for either the 30-percent 
or 50-percent reduction in energy usage. The home may be 
certified according to a component-based method or an energy 
performance based method. Additionally, manufactured homes 
certified by the Environmental Protection Agency's Energy Star 
Labeled Homes program are eligible for the $1,000 credit 
provided criteria (1) and (2) are met.
    The component-based method of certification shall be based 
on applicable energy-efficiency specifications or ratings, 
including current product labeling requirements. The Secretary 
shall develop component-based packages that are equivalent in 
energy performance to properties that qualify for the credit. 
The standard for certifying homes through the component based 
method shall be based on the same standards for plan check and 
physical inspections as are used for energy code compliance. 
The certification shall be provided by a local building 
regulatory authority, a utility, a manufactured home primary 
inspection agency, or a home energy rating organization. Such 
provider of the certification must be financially independent 
of the eligible contractor.
    The performance-based method of certification shall be 
based on an evaluation of the home in reference to a home which 
uses the same energy source and system heating type, and is 
constructed in accordance with Chapter 4 of the 2000 
International Energy Conservation Code. The certification shall 
be provided by an individual recognized by the Secretary for 
such purposes.
    The certification process requires that energy savings to 
the consumer be measured in terms of energy costs. To ensure 
consistent and reasonable energy cost analyses, the Department 
of Energy shall include in its rulemaking related to this bill 
specific reference data to be used for qualification for the 
credit.
    In the case of manufactured homes, certification shall be 
by the Energy Star Labeled Homes program.
    The credit will be part of the general business credit. No 
credits attributable to energy efficient homes may be carried 
back to any taxable year ending on or before the effective date 
of the credit.

                             EFFECTIVE DATE

    The credit applies to homes whose construction is 
substantially completed after the date of enactment and which 
are purchased during the period beginning on the date of 
enactment and ending on December 31, 2007 (December 31, 2005 in 
the case of the $1,000 credit).

               B. Credit for Energy-Efficient Appliances


(Sec. 302 of the bill and new sec. 45H of the Code)

                              PRESENT LAW

    A nonrefundable, 10-percent business energy credit is 
allowed for the cost of new property that is equipment: (1) 
that uses solar energy to generate electricity, to heat or cool 
a structure, or to provide solar process heat; or (2) used to 
produce, distribute, or use energy derived from a geothermal 
deposit, but only, in the case of electricity generated by 
geothermal power, up to the electric transmission stage.
    The business energy tax credits are components of the 
general business credit (sec. 38(b)(1)). The business energy 
tax credits, when combined with all other components of the 
general business credit, generally may not exceed for any 
taxable year the excess of the taxpayer's net income tax over 
the greater of: (1) 25 percent of net regular tax liability 
above $25,000 or (2) the tentative minimum tax. For credits 
arising in taxable years beginning after December 31, 1997, an 
unused general business credit generally may be carried back 
one year and carried forward 20 years (sec. 39).
    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present-law credit for the manufacture of 
energy-efficient appliances.

                           REASONS FOR CHANGE

    The Committee believes that providing a tax credit for the 
production of energy-efficient clothes washers and 
refrigerators will encourage manufacturers to produce such 
products currently and to invest in technologies to achieve 
higher energy-efficiency standards for the future. In addition, 
the Committee intends to encourage those manufacturers already 
producing energy-efficient clothes washers and refrigerators to 
accelerate production.

                        EXPLANATION OF PROVISION

    The provision provides a credit for the production of 
certain energy-efficient clothes washers and refrigerators. The 
credit would equal $50 per appliance for energy-efficient 
clothes washers produced with a modified energy factor 
(``MEF'') of 1.42 MEF or greater for washers produced before 
2007 and for refrigerators produced before 2005 that consume 10 
percent less kilowatt-hours per year than the energy 
conservation standards promulgated by the Department of Energy 
that took effect on July 1, 2001. The credit equals $100 for 
energy-efficient clothes washers produced with a MEF of 1.5 or 
greater and for refrigerators produced that consume at least 15 
percent less kilowatt-hours per year (at least 20 percent less 
for production in 2007) than the energy conservation standards 
promulgated by the Department of Energy that took effect on 
July 1, 2001. The credit is $150 in the case of a refrigerator 
that consumes at least 20 percent less kilowatt-hours per year 
than such standards and is produced before 2007. A refrigerator 
must be an automatic defrost refrigerator-freezer with an 
internal volume of at least 16.5 cubic feet to qualify for the 
credit. A clothes washer is any residential clothes washer, 
including a residential style coin operated washer, that 
satisfies the relevant efficiency standard.
    For each category of appliances (e.g., washers that meet 
the lower MEF standard, washers that meet the higher MEF 
standard, refrigerators that meet the 10 percent standard, 
refrigerators that meet the 15 percent standard), only 
production in excess of average production for each such 
category during calendar years 2000-2002 would be eligible for 
the credit. For 2003, only production after the date of 
enactment is eligible for the credit, and special rules apply 
to determine if production exceeds the average of the base 
period. The taxpayer may not claim credits in excess of $60 
million for all taxable years, and may not claim credits in 
excess of $30 million with respect to appliances that only 
qualify for the $50 credit. Additionally, the credit allowed 
for all appliances may not exceed two percent of the average 
annual gross receipts of the taxpayer for the three taxable 
years preceding the taxable year in which the credit is 
determined.
    The credit will be part of the general business credit. No 
credits attributable to energy-efficient appliances may be 
carried back to taxable years ending before January 1, 2003.

                             EFFECTIVE DATE

    The credit applies to appliances produced after the date of 
enactment and prior to January 1, 2008.

          C. Credit for Residential Energy Efficient Property


(Sec. 303 of the bill and new sec. 25C of the Code)

                              PRESENT LAW

    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present-law personal tax credit for energy 
efficient residential property.

                           REASONS FOR CHANGE

    The Committee believes that allowing a credit for the 
purchase of certain energy efficient appliances and systems 
that generate electricity through renewable and pollution-free 
alternative energy sources will encourage the purchase of these 
products. The Committee believes that the use of these products 
will help reduce reliance on conventional energy sources and 
reduce atmospheric pollutants. The Committee believes that the 
on-site generation of electricity and solar hot water will 
reduce reliance on the United States' electricity grid and on 
natural gas pipelines. Furthermore, the Committee believes that 
the use of highly efficient residential equipment will lead to 
decreased energy consumption in households, resulting in 
significant energy savings.

                        EXPLANATION OF PROVISION

    The provision provides a personal tax credit for the 
purchase of qualified wind energy property, qualified 
photovoltaic property, and qualified solar water heating 
property that is used exclusively for purposes other than 
heating swimming pools and hot tubs. The credit is equal to 15 
percent for solar water heating property and photovoltaic 
property, and 30 percent for wind energy property. The maximum 
credit for each of these systems of property is $2,000. The 
provision also provides a 30 percent credit for the purchase of 
qualified fuel cell power plants. The credit for any fuel cell 
may not exceed $500 for each 0.5 kilowatt of capacity.
    Qualifying solar water heating property means an 
expenditure for property to heat water for use in a dwelling 
unit located in the United States and used as a residence if at 
least half of the energy used by such property for such purpose 
is derived from the sun. Qualified photovoltaic property is 
property that uses solar energy to generate electricity for use 
in a dwelling unit. Solar panels are treated as qualified 
photovoltaic property. Qualified wind energy property is 
property that uses wind energy to generate electricity for use 
in a dwelling unit. A qualified fuel cell power plant is an 
integrated system comprised of a fuel cell stack assembly and 
associated balance of plant components that converts a fuel 
into electricity using electrochemical means, and which has an 
electricity-only generation efficiency of greater than 30 
percent and that generates at least 0.5 kilowatts of 
electricity. The qualified fuel cell power plant must be 
installed on or in connection with a dwelling unit located in 
the United States and used by the taxpayer as a principal 
residence.
    The provision also provides a credit for the purchase of 
other qualified energy efficient property, as described below:
    Electric heat pump hot water heaters with an Energy Factor 
of at least 1.7. The maximum credit is $75 per unit.
    Electric heat pumps with a heating efficiency of at least 9 
HSPF (Heating Seasonal Performance Factor) and a cooling 
efficiency of at least 15 SEER (Seasonal Energy Efficiency 
Rating) and an energy efficiency ratio (EER) of 12.5 or 
greater. The maximum credit is $250 per unit.
    Natural gas, oil, or propane furnace which achieves 95 
percent annual fuel utilization efficiency. The maximum credit 
is $250 per unit.
    Central air conditioners with an efficiency of at least 15 
SEER and an EER of 12.5 or greater. The maximum credit is $250 
per unit.
    Natural gas, oil, or propane water heaters with an Energy 
Factor of at least 0.8. The maximum credit is $75 per unit.
    Geothermal heat pumps which have an EER of at least 21. The 
maximum credit is $250 per unit.
    The credit is nonrefundable, and the depreciable basis of 
the property is reduced by the amount of the credit. 
Expenditures for labor costs allocable to onsite preparation, 
assembly, or original installation of property eligible for the 
credit are eligible expenditures. The credit is allowed against 
the regular and alternative minimum tax.
    Certain equipment safety requirements need to be met to 
qualify for the credit. Special proration rules apply in the 
case of jointly owned property, condominiums, and tenant-
stockholders in cooperative housing corporations. With the 
exception of wind energy property, if less than 80 percent of 
the property is used for nonbusiness purposes, only that 
portion of expenditures that is used for nonbusiness purposes 
is taken into account.

                             EFFECTIVE DATE

    The credit applies to purchases after the date of enactment 
and before January 1, 2008.

    D. Credit for Business Installation of Qualified Fuel Cells and 
                  Stationary Microturbine Power Plants


(Sec. 304 of the bill and sec. 48 of the Code)

                              PRESENT LAW

    A nonrefundable, 10-percent business energy credit is 
allowed for the cost of new property that is equipment (1) that 
uses solar energy to generate electricity, to heat or cool a 
structure, or to provide solar process heat, or (2) used to 
produce, distribute, or use energy derived from a geothermal 
deposit, but only, in the case of electricity generated by 
geothermal power, up to the electric transmission stage.
    The business energy tax credits are components of the 
general business credit (sec. 38(b)(1)). The business energy 
tax credits, when combined with all other components of the 
general business credit, generally may not exceed for any 
taxable year the excess of the taxpayer's net income tax over 
the greater of (1) 25 percent of net regular tax liability 
above $25,000 or (2) the tentative minimum tax. An unused 
general business credit generally may be carried back one year 
and carried forward 20 years (sec. 39).
    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present-law credit for fuel cell power plant or 
microturbine property.

                           REASONS FOR CHANGE

    The Committee believes that investments in qualified fuel 
cell power plants represent a promising means to produce 
electricity through non-polluting means and from 
nonconventional energy sources. Furthermore, the on-site 
generation of electricity provided by fuel cell power plants, 
as well as that by microturbines, will reduce reliance on the 
United States' electricity grid. The Committee believes that 
providing a tax credit for investment in qualified fuel cell 
and microturbine power plants will encourage investments in 
such systems.

                        EXPLANATION OF PROVISION

    The provision provides a 30 percent business energy credit 
for the purchase of qualified fuel cell power plants for 
businesses. A qualified fuel cell power plant is an integrated 
system comprised of a fuel cell stack assembly and associated 
balance of plant components that converts a fuel into 
electricity using electrochemical means, and which has an 
electricity-only generation efficiency of greater than 30 
percent and generates at least 0.5 kilowatts of electricity 
using an electrochemical process. The credit for any fuel cell 
may not exceed $500 for each 0.5 kilowatts of capacity.
    Additionally, the provision provides a 10 percent credit 
for the purchase of qualifying stationary microturbine power 
plants. A qualified stationary microturbine power plant is 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 
system 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. Such system must have an 
electricity-only generation efficiency of not less that 26 
percent at International Standard Organization conditions and a 
capacity of less than 2,000 kilowatts. The credit is limited to 
the lesser of 10 percent of the basis of the property or $200 
for each kilowatt of capacity.
    The credit is nonrefundable. The taxpayer's basis in the 
property is reduced by the amount of the credit claimed.

                             EFFECTIVE DATE

    The credit for businesses applies to property placed in 
service after the date of enactment and before January 1, 2008 
(January 1, 2007 in the case of microturbines), under rules 
similar to rules of section 48(m) of the Internal Revenue Code 
of 1986 (as in effect on the day before the date of enactment 
of the Revenue Reconciliation Act of 1990).

           E. Energy-Efficient Commercial Buildings Deduction


(Sec. 305 of the bill and new sec. 179B of the Code)

                              PRESENT LAW

    No special deduction is currently provided for expenses 
incurred for energy-efficient commercial building property.

                           REASONS FOR CHANGE

    The Committee recognizes that commercial buildings consume 
a significant amount of energy resources and that reductions in 
commercial energy use have the potential to significantly 
reduce national energy consumption. Accordingly, the Committee 
believes that a special deduction for commercial building 
property (lighting, heating, cooling, ventilation, and hot 
water supply systems) that meets a high energy-efficiency 
standard will encourage construction of buildings that are 
significantly more energy efficient than the norm. The 
Committee further believes that the special deduction will 
encourage innovation to reduce the costs of meeting the energy-
efficiency standard.

                        EXPLANATION OF PROVISION

    The provision provides a deduction equal to energy-
efficient commercial building property expenditures made by the 
taxpayer. Energy-efficient commercial building property 
expenditures are defined as amounts paid or incurred for 
energy-efficient property installed in connection with the new 
construction or reconstruction of property: (1) which is 
depreciable property; (2) which is located in the United 
States, and (3) which is the type of structure to which the 
Standard 90.1-2001 of the American Society of Heating, 
Refrigerating, and Air Conditioning Engineers and the 
Illuminating Engineering Society of North America (``ASHRAE/
IESNA'') is applicable. The deduction is limited to an amount 
equal to $2.25 per square foot of the property for which such 
expenditures are made. The deduction is allowed in the year in 
which the property is placed in service.
    Energy-efficient commercial building property generally 
means any property that reduces total annual energy and power 
costs with respect to the lighting, heating, cooling, 
ventilation, and hot water supply systems of the building by 50 
percent or more in comparison to a building which minimally 
meets the requirements of Standard 90.1-2001 of ASHRAE/IESNA. 
Because of the requirement that in order to qualify, a building 
must fall within the scope of the ASHRAE/IESNA Standard 90.1-
2001, residential rental property that is less than four 
stories does not qualify.
    Certain certification requirements must be met in order to 
qualify for the deduction. The Secretary, in consultation with 
the Secretary of Energy, will promulgate regulations that 
describe methods of calculating and verifying energy and power 
costs. The methods for calculation shall be fuel neutral, such 
that the same energy efficiency features shall qualify a 
building for the deduction under this subsection regardless of 
whether the heating source is a gas or oil furnace or an 
electric heat pump. To allow proper calculations of cost, the 
Secretary shall prescribe the costs per unit of energy and 
power, such as kilowatt hour, kilowatt, gallon of fuel oil, and 
cubic foot or Btu of natural gas, which may be dependent on 
time of usage. If a State has developed annual energy usage and 
cost reduction procedures based on time of usage costs for use 
in the performance standards of the State's building energy 
code before the effective date of this section, the Secretary 
may allow taxpayers in that State to use those annual energy 
usage and cost reduction procedures in lieu of those adopted by 
the Secretary.
    The Secretary shall promulgate procedures for the 
inspection and testing for compliance of buildings that are 
comparable, given the difference between commercial and 
residential buildings, to the requirements in the Mortgage 
Industry National Home Energy Rating Standards. Individuals 
qualified to determine compliance shall only be those 
recognized by one or more organizations certified by the 
Secretary for such purposes. In order that the deduction is 
available immediately, it is expected that the Secretary will 
promptly issue interim guidance with respect to the methods of 
calculating and verifying energy and power costs that relies on 
provisions of ASHRAE/IESNA Standard 90.1-2001 and of the 2001 
California Nonresidential Alternative Calculation Method 
Approval Manual or the 2001 California Residential Alternative 
Calculation Method Approval Manual. The methods for calculation 
need not comply fully with section 11 of ASHRAE/IESNA Standard 
90.1-2001. Such interim guidance will include interim guidance 
as to the qualified computer software and qualified individuals 
necessary to certify eligibility for the deduction.
    When final regulations are adopted, such regulations 
additionally may, with respect to methods of calculating and 
verifying energy and power costs, take into consideration 
appropriate energy savings from design methodologies and 
technologies not otherwise credited in ASHRAE/IESNA Standard 
90.1-2001, the 2001 California Nonresidential Alternative 
Calculation Method Approval Manual, or the 2001 California 
Residential Alternative Calculation Method Approval Manual, 
including the following: (1) natural ventilation, (2) 
evaporative cooling, (3) automatic lighting controls such as 
occupancy sensors, photocells, and timeclocks, (4) daylighting, 
(5) designs utilizing semi-conditioned spaces which maintain 
adequate comfort conditions without air conditioning or without 
heating, (6) improved fan system efficiency, including 
reductions in static pressure, and (7) advanced unloading 
mechanisms for mechanical cooling, such as multiple or variable 
speed compressors. Additionally, the calculation methods may 
take into account the extent of commissioning in the building, 
and allow the taxpayer to take into account measured 
performance which exceeds typical performance.
    For energy-efficient commercial building property public 
property expenditures made by a public entity, such as public 
schools, the interim guidance, as well as final regulations, 
will allow the value of the deduction (determined without 
regard to the tax-exempt status of such entity) to be allocated 
to the person primarily responsible for designing the property 
in lieu of the public entity.

                             EFFECTIVE DATE

    The provision is effective for taxable years beginning 
after the date of enactment for expenditures in connection with 
a building whose construction is completed on or before 
December 31, 2009.

F. Three-Year Applicable Recovery Period for Depreciation of Qualified 
                       Energy Management Devices


(Sec. 306 of the bill and sec. 168 of the Code)

                              PRESENT LAW

    No special recovery period is currently provided for 
depreciation of qualified energy management devices.

                           REASONS FOR CHANGE

    The Committee believes that consumers could better manage 
their electricity use if they had better information concerning 
their usage habits by time of day. In the case of electricity, 
if time-of-day pricing is used, energy management devices that 
provide information to consumers regarding their peak 
electrical use could encourage consumers to defer certain 
electrical use, such as use of a washing machine, to periods of 
the day when electricity prices are lower. In addition to 
potentially reducing consumers' electricity bill, spreading the 
demand for electricity more evenly throughout the day will 
reduce the need for utility investments in generation capacity 
to satisfy peak demand periods.
    The Committee believes that providing a 3-year recovery 
period for qualified energy management devices will provide 
sufficient incentive for utilities to establish time-of-day 
pricing options that will encourage consumers to adjust their 
electricity usage in such a manner to dampen utilities' peak 
load capacity needs and thus reduce the need for investment in 
new capacity to meet peak load demand.

                        EXPLANATION OF PROVISION

    The provision provides a three-year recovery period for 
qualified new energy management devices placed in service by 
any taxpayer who is a supplier of electric energy or is a 
provider of electric energy services. A qualified energy 
management device is any meter or metering device eligible for 
accelerated depreciation under code section 168 and which is 
used by the taxpayer:
          (1) To measure and record electricity usage data on a 
        time-differentiated basis in at least 4 separate time 
        segments per day, and
          (2) To provide such data on at least a monthly basis 
        to both consumers and the taxpayer.

                             EFFECTIVE DATE

    The provision is effective for any qualified energy 
management device placed in service after the date of enactment 
of the Act and before January 1, 2008.

G. Three-Year Applicable Recovery Period for Depreciation of Qualified 
                       Water Submetering Devices


(Sec. 307 of the bill and sec. 168 of the Code)

                              PRESENT LAW

    No special recovery period is currently provided for 
depreciation of qualified water submetering devices.

                           REASONS FOR CHANGE

    The Committee believes that consumers would better manage 
their water use if they paid for water in proportion to the 
water that they actually used. In many cases in multi-unit 
properties, there is not unit by unit metering of water use. 
Rather, the landlord's average per-unit costs for water are 
reflected in rental rates. Thus, individual units have 
virtually no financial incentive to conserve on water use, as 
the cost of any individual's increased water usage is borne by 
all dwellers. The Committee believes that a tax incentive for 
the installation of submeters to enable unit-by-unit charges 
that reflect water usage will rationalize water use and help to 
conserve water resources.

                        EXPLANATION OF PROVISION

    The provision provides a three-year recovery period for 
qualified new water submetering devices placed in service by 
any taxpayer who is an eligible resupplier. An eligible 
resupplier is any taxpayer who purchases and installs qualified 
water submetering devices in every unit in any multi-unit 
property. A qualified water submetering device is anywater 
submetering device eligible for accelerated depreciation under 
code section 168 and which is used by the taxpayer:
          (1) To measure and record water usage data, and
          (2) To provide such data on at least a monthly basis 
        to both consumers and the taxpayer.

                             EFFECTIVE DATE

    The provision is effective for any qualified water 
submetering device placed in service after the date of 
enactment of the Act and before January 1, 2008.

      H. Energy Credit for Combined Heat and Power System Property


(Sec. 308 of the bill and sec. 48 of the Code)

                              PRESENT LAW

    A nonrefundable, 10-percent business energy credit is 
allowed for the cost of new property that is equipment (1) that 
uses solar energy to generate electricity, to heat or cool a 
structure, or to provide solar process heat, or (2) used to 
produce, distribute, or use energy derived from a geothermal 
deposit, but only, in the case of electricity generated by 
geothermal power, up to the electric transmission stage.
    The business energy tax credits are components of the 
general business credit (sec. 38(b)(1)). The business energy 
tax credits, when combined with all other components of the 
general business credit, generally may not exceed for any 
taxable year the excess of the taxpayer's net income tax over 
the greater of (1) 25 percent of net regular tax liability 
above $25,000 or (2) the tentative minimum tax. For credits 
arising in taxable years beginning after December 31, 1997, an 
unused general business credit generally may be carried back 
one year and carried forward 20 years (sec. 39).
    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present-law credit for combined heat and power 
(``CHP'') property.

                           REASONS FOR CHANGE

    The Committee believes that investments in combined heat 
and power systems represent a promising means to achieve 
greater national energy efficiency by encouraging the dual use 
of the energy from the burning of fossil fuels. Furthermore, 
the on-site generation of electricity provided by CHP systems 
will reduce reliance on the United States' electricity grid. 
The Committee believes that providing a tax credit for 
investment in combined heat and power property will encourage 
investments in such systems.

                        EXPLANATION OF PROVISION

    The provision provides a 10-percent credit for the purchase 
of combined heat and power property. CHP property as defined as 
property: (1) 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); (2) which has an 
electrical capacity of more than 50 kilowatts or a mechanical 
energy capacity of more than 67 horsepower or an equivalent 
combination of electrical and mechanical energy capacities; (3) 
which produces at least 20 percent of its total useful energy 
in the form of thermal energy and at least 20 percent in the 
form of electrical or mechanical power (or a combination 
thereof); and (4) the energy efficiency percentage of which 
exceeds 60 percent (70 percent in the case of a system with an 
electrical 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 
capacities.) Also, for purposes of determining whether CHP 
property includes technologies which generate electricity or 
mechanical power using back-pressure steam turbines in place of 
existing pressure-reducing valves, or which make use of waste 
heat from industrial processes such as by using organic 
rankine, stirling, or kalina heat engine systems, the general 
requirements of clause (1), the energy output requirements 
related to heat versus power described under (3), and the 
energy efficiency requirements of (4), above, may be 
disregarded.
    CHP property does include property used to transport the 
energy source to the generating facility or to distribute 
energy produced by the facility.
    If a taxpayer is allowed a credit for CHP property, and the 
property would ordinarily have a depreciation class life of 15 
years or less, the depreciation period for the property is 
treated as having a 22-year class life. The present-law carry 
back rules of the general business credit generally would apply 
except that no credits attributable to combined heat and power 
property may be carried back before the effective date of this 
provision.

                             EFFECTIVE DATE

    The credit applies to property placed in service after the 
date of enactment and before January 1, 2007.

     I. Credit for Energy Efficiency Improvements to Existing Homes


(Sec. 309 of the bill and new sec. 25D of the Code)

                              PRESENT LAW

    A taxpayer may exclude from income the value of any subsidy 
provided by a public utility for the purchase or installation 
of an energy conservation measure. An energy conservation 
measure means any installation or modification primarily 
designed to reduce consumption of electricity or natural gas or 
to improve the management of energy demand with respect to a 
dwelling unit (sec. 136).
    There is no present law credit for energy efficiency 
improvements to existing homes.

                           REASONS FOR CHANGE

    Since residential energy consumption represents a large 
fraction of national energy use, the Committee believes that 
energy savings in this sector of the economy have the potential 
to significantly impact national energy consumption, which will 
reduce reliance on foreign suppliers of oil and reduce 
pollution in general. The Committee further recognizes that 
many existing homes are inadequately insulated. Accordingly, 
the Committee believes that a tax credit for certain energy-
efficiency improvements related to a home's envelope (exterior 
windows (including skylights) and doors, insulation, and 
certain roofing systems) will encourage homeowners to improve 
the insulation of their homes, which in turn will reduce 
national energy consumption.

                        EXPLANATION OF PROVISION

    The provision would provide a 10-percent nonrefundable 
credit for the purchase of qualified energy efficiency 
improvements. The maximum credit for a taxpayer with respect to 
the same dwelling for all taxable years is $300. A qualified 
energy efficiency improvement would be any energy efficiency 
building envelope component that is certified to meet or exceed 
the prescriptive criteria for such a component established by 
the 2000 International Energy Conservation Code, or any 
combination of energy efficiency measures that is certified to 
achieve at least a 30 percent reduction in heating and cooling 
energy usage for the dwelling and (1) that is installed in or 
on a dwelling located in the United States; (2) owned and used 
by the taxpayer as the taxpayer's principal residence; (3) the 
original use of which commences with the taxpayer; and (4) such 
component can reasonably be expected to remain in use for at 
least five years.
    Building envelope components would be: (1) insulation 
materials or systems which are specifically and primarily 
designed to reduce the heat loss or gain for a dwelling, and 
(2) exterior windows (including skylights) and doors.
    Homes shall be certified according to a component-based 
method or a performance-based method. The component-based 
method shall be based on applicable energy-efficiency ratings, 
including current product labeling requirements. Certification 
by the component method shall be provided by a third party, 
such as a local building regulatory authority, a utility, a 
manufactured home production inspection primary inspection 
agency, or a home energy rating organization. The performance-
based method shall be based on a comparison of the projected 
energy consumption of the dwelling in its original condition 
and after the completion of energy efficiency measures. The 
performance-based method of certification shall be conducted by 
an individual or organization recognized by the Secretary of 
the Treasury for such purposes.
    The certification process requires that energy savings to 
the consumer be measured in terms of energy costs. To ensure 
consistent and reasonable energy cost analyses, the Department 
of Energy shall include in its rulemaking related to this bill 
specific reference data to be used for qualification for the 
credit.
    The taxpayer's basis in the property would be reduced by 
the amount of the credit. Special rules would apply in the case 
of condominiums and tenant-stockholders in cooperative housing 
corporations.
    The credit is allowed against the regular and alternative 
minimum tax.

                             EFFECTIVE DATE

    The credit is effective for qualified energy efficiency 
improvements installed on or after the date of enactment and 
before January 1, 2007.

                    TITLE IV--CLEAN COAL INCENTIVES


     A. Investment and Production Credits for Clean Coal Technology


(Secs. 401, 411, and 412 of the bill and new secs. 45I, 45J, and 48A of 
        the Code)

                              PRESENT LAW

    Present law does not provide an investment credit for 
electricity generating units that use coal as a fuel. Nor does 
present law provide a production credit for electricity 
generated at units that use coal as a fuel. However, a 
nonrefundable, 10-percent investment tax credit (``business 
energy credit'') is allowed for the cost of new property that 
is equipment (1) that uses solar energy to generate 
electricity, to heat or cool a structure, or to provide solar 
process heat, or (2) that is used to produce, distribute, or 
use energy derived from a geothermal deposit, but only, in the 
case of electricity generated by geothermal power, up to the 
electric transmission stage (sec. 48). Also, an income tax 
credit is allowed for the production of electricity from either 
qualified wind energy, qualified ``closed-loop'' biomass, or 
qualified poultry waste units placed in service prior to 
January 1, 2004 (sec. 45). The credit allowed equals 1.5 cents 
per kilowatt-hour of electricity sold. The 1.5 cent figure is 
indexed for inflation and equaled 1.8 cents for 2002. The 
credit is allowable for production during the 10-year period 
after a unit is originally placed in service. The business 
energy tax credits and the production tax credit are components 
of the general business credit (sec. 38(b)(1)).

                           REASONS FOR CHANGE

    The Committee recognizes that coal is the nation's most 
abundant fuel source. The Committee is also sensitive to the 
environmental impact of burning coal for the production of 
electricity. For coal to continue to be a viable fuel source, 
the Committee seeks to encourage ways to burn coal in a more 
efficient and environmentally friendly manner. Therefore, the 
Committee supports the development and deployment of the most 
advanced technologies for generating electricity from coal by 
providing investment and production credits to a limited number 
of experimental production-scale electricity generating units 
to reduce the cost of building and operating units that 
represent the frontier of thermal efficiency and pollution 
control.
    Tax-exempt organizations make up a significant percentage 
of the electricity industry in the United States. The Committee 
believes it is important to provide the incentives for 
investment in, and production from, clean coal technologies to 
all producers.

                        EXPLANATION OF PROVISION

In general

    The bill creates three new credits: a production credit for 
electricity produced from qualifying clean coal technology 
units; a production credit for electricity produced from 
qualifying advanced clean coal technology units; and a credit 
for investments in qualifying advanced clean coal technology 
units. Certain persons (public utilities, electric 
cooperatives, Indian tribes, and the Tennessee Valley 
Authority) will be eligible to obtain certifications from the 
Secretary of the Treasury (as described below) for each of 
these credits and sell, trade, or assign the credit to any 
taxpayer. However, any credit sold, traded, or assigned may 
only be sold, traded, or assigned once. Subsequent transfers 
are not permitted.

Credit for investments in qualifying advanced clean coal technology 
        units

    The bill provides a 10-percent investment tax credit for 
qualified investments in advanced clean coal technology units. 
A qualified investment is that amount that would otherwise be a 
qualified investment multiplied by a fraction equal to the 
amount of national megawatt capacity allocated to the taxpayer 
(as described below) divided by the megawatt capacity of the 
qualifying unit. Qualifying advanced clean coal technology 
units must utilize advanced pulverized coal or atmospheric 
fluidized bed combustion technology, pressurized fluidized bed 
combustion technology, integrated gasification combined cycle 
technology, or some other technology certified by the Secretary 
of Energy. Any qualifying advanced clean coal technology unit 
must meet certain capacity standards, thermal efficiency 
standards, and emissions standards for SO2, nitrous 
oxides, particulate emissions, and source emissions standards 
as provided in the Clean Air Act. In addition, a qualifying 
advanced clean coal technology unit must meet certain carbon 
emissions requirements.
    The proposal defines four types of qualifying advanced 
clean coal technology units: (1) advanced pulverized coal or 
atmospheric fluidized bed combustion technology units (2) 
qualifying pressurized fluidized bed combustion technology 
units; (3) integrated gasification combined cycle technology 
units; and (4) other technology units.
    (1) A qualifying advanced pulverized coal or atmospheric 
fluidized bed combustion technology unit is a unit placed in 
service after the date of enactment and before 2013 and having 
a design net heat rate of not more than 8,500 Btu (8,900 Btu if 
the unit is placed in service before 2009).
    (2) A qualifying pressurized fluidized bed combustion 
technology unit is a unit placed in service after the date of 
enactment and before 2017 and having a design net heat rate of 
not more than 7,720 Btu (8,900 Btu if the unit is placed in 
service before 2009 and 8,500 Btu if the unit is placed in 
service after 2008 and before 2013).
    (3) A qualifying integrated gasification combined cycle 
technology unit is a unit placed in service after the date of 
enactment and before 2017 and having a design net heat rate of 
not more than 7,720 Btu (8,900 Btu if the unit is placed in 
service before 2009 and 8,500 Btu if the unit is placed in 
service after 2008 and before 2013).
    (4) A qualifying other technology unit use any other 
technology and is placed in service after the date of enactment 
and before 2017.
    The provision provides that qualifying advanced clean coal 
units must satisfy carbon emissions standards. For units using 
design coal with a heat content of not more than 9,000 Btu per 
pound, the carbon emission rate must be less than 0.60 pound of 
carbon per kilowatt hour (0.51 if the unit qualifies as another 
technology unit). For units using design coal with a heat 
content in excess of 9,000 Btu per pound, the carbon emission 
rate must be less than 0.54 pound of carbon per kilowatt hour 
(0.459 if the unit qualifies as another technology unit).
    To be a qualified investment in advanced clean coal 
technology, the taxpayer must receive a certificate from the 
Secretary of the Treasury. The Secretary may grant certificates 
to investments only to the point that 4,000 megawatts of 
electricity production capacity qualifies for the credit. From 
the potential pool of 4,000 megawatts of capacity, not more 
than 1,000 megawatts in total and not more than 500 megawatts 
in years prior to 2009 shall be allocated to units using 
advanced pulverized coal or atmospheric fluidized bed 
combustion technology. From the potential pool of 4,000 
megawatts of capacity, not more than 500 megawatts in total and 
not more than 250 megawatts in years prior to 2009 shall be 
allocated to units using pressurized fluidized bed combustion 
technology. From the potential pool of 4,000 megawatts of 
capacity, not more than 2,000 megawatts in total and not more 
than 750 megawatts in years prior to 2009 shall be allocated to 
units using integrated gasification combined cycle technology, 
with or without fuel or chemical co-production. From the 
potential pool of 4,000 megawatts of capacity, not more than 
500 in total and not more than 250 megawatts in years prior to 
2009 shall be allocated to any other technology certified by 
the Secretary of Energy.

Production credit for electricity produced from qualifying clean coal 
        technology units

    The bill provides a production credit for electricity 
produced from certain units that have been retrofitted, 
repowered, or replaced with a clean coal technology within ten 
years of the date of enactment. The value of the credit is 0.34 
cents per kilowatt-hour of electricity and the heat value of 
other fuels or chemicals produced at the unit \27\ multiplied 
by the fraction equal to the amount of national megawatt 
capacity limitation (see below) allocated to the qualifying 
unit divided by the total megawatt capacity of the unit. The 
value of the credit is indexed for inflation occurring after 
2003 with the first potential adjustment in 2005. The taxpayer 
may claim the credit throughout the ten-year period commencing 
from the date on which the qualifying unit is placed in 
service.
---------------------------------------------------------------------------
    \27\ Each 3,413 Btu of heat content of the fuel or chemical is 
treated as equivalent to one kilowatt-hour of electricity.
---------------------------------------------------------------------------
    A qualifying clean coal technology unit is a clean coal 
technology unit that meets certain capacity standards, thermal 
efficiency standards, and emissions standards for 
SO2, nitrous oxides, particulate emissions, and 
source emissions standards as provided in the Clean Air Act. In 
addition, a qualifying clean coal technology unit cannot be a 
unit that is receiving or is scheduled to receive funding under 
the Clean Coal Technology Program, the Power Plant Improvement 
Initiative, or the Clean Coal Power Initiative administered by 
the Secretary of the Department of Energy. Lastly, to be a 
qualified clean coal technology unit, the taxpayer must receive 
a certificate from the Secretary of the Treasury. The Secretary 
may grant certificates to units only to the point that 4,000 
megawatts of electricity production capacity qualifies for the 
credit. However, no qualifying unit would be eligible if the 
unit's capacity exceeded 300 megawatts prior to having been 
retrofitted, repowered, or replaced. The maximum eligible 
allocation to any qualifying unit may not exceed 300 megawatts.

Production credit for electricity produced from qualifying advanced 
        clean coal technology

    The bill also provides a production credit for electricity 
produced from any qualified advanced clean coal technology 
electricity generation unit that qualifies for the investment 
credit for qualifying clean coal technology units, as described 
above.\28\ The taxpayer may claim a production credit on the 
sum of each kilowatt-hour of electricity produced and the heat 
value of other fuels or chemicals produced by the taxpayer at 
the unit.\29\ The taxpayer may claim the production credit for 
the 10-year period commencing with the date the qualifying unit 
is placed in service (or the date on which a conventional unit 
was retrofitted or repowered). The value of the credit varies 
depending upon the year the unit is placed in service, whether 
the unit produces solely electricity or electricity and fuels 
or chemicals, and the rated thermal efficiency of the unit.\30\ 
In addition, the value of the credit is reduced for the second 
five years of eligible production. If a unit meets the more 
stringent qualification standards of post-2008 in years before 
2009, the taxpayer may claim the higher post-2008 credit 
amounts. The value of the credit is indexed for inflation 
occurring after 2003 with the first potential adjustment in 
2005. The tables below specify the value of the credit (before 
indexing is applied).
---------------------------------------------------------------------------
    \28\ In the case of a taxpayer who received a megawatt allocation 
for a qualifying advanced clean coal technology unit that is less than 
the rated capacity of such unit, the taxpayer may claim credit on a 
percentage of the electricity produced from the unit. The percentage is 
the percentage that the taxpayer's megawatt allocation represents as a 
percentage of the rated capacity of the unit.
    \29\ Each 3,413 Btu of heat content of the fuel or chemical is 
treated as equivalent to one kilowatt-hour of electricity.
    \30\ Some of the tables in the bill, and below, express the unit's 
efficiency in terms of the units net heat rate and other tables express 
the unit's efficiency in percentage term. In practice, there is no 
difference as one kilowhatt-hour of electricity generally is equivalent 
to 3,413 Btu of heat. Therefore, if one divides 3,413 Btu by the 
efficiency rate one obtains the heat rate. Likewise, given a heat rate, 
one calculates the efficiency by dividing 3,413 Btu by the heat rate.
---------------------------------------------------------------------------
            Advanced clean coal technology units producing solely 
                    electricity

             TABLE 11.--UNITS PLACED IN SERVICE BEFORE 2009
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
 The unit net heat rate, Btu/kWh adjusted for  -------------------------
 the heat content for the design coal is equal    For the      For the
                      to:                        first five  second five
                                                   years        years
------------------------------------------------------------------------
Not more than 8,500...........................       $.0060       $.0038
More than 8,500 but not more than 8,750.......        .0025        .0010
More than 8,750 but less than 8,900...........        .0010        .0010
------------------------------------------------------------------------


      TABLE 12.--UNITS PLACED IN SERVICE AFTER 2008 AND BEFORE 2013
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
 The unit net heat rate, Btu/kWh adjusted for  -------------------------
 the heat content for the design coal is equal    For the      For the
                      to:                        first five  second five
                                                   years        years
------------------------------------------------------------------------
Not more than 7,770...........................       $.0105       $.0090
More than 7,770 but not more than 8,125.......        .0085        .0068
More than 8,125 but less than 8,500...........        .0075        .0055
------------------------------------------------------------------------


      TABLE 13.--UNITS PLACED IN SERVICE AFTER 2012 AND BEFORE 2017
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
 The unit net heat rate, Btu/kWh adjusted for  -------------------------
 the heat content for the design coal is equal    For the      For the
                      to:                        first five  second five
                                                   years        years
------------------------------------------------------------------------
Not more than 7,380...........................       $.0140       $.0115
More than 7,380 but not more than 7,720.......        .0120        .0090
------------------------------------------------------------------------

            Advanced clean coal technology units producing electricity 
                    and a fuel or chemical

             TABLE 14.--UNITS PLACED IN SERVICE BEFORE 2009
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
   The unit design net thermal efficiency is   -------------------------
                   equal to:                      For the      For the
                                                 first five  second five
                                                   years        years
------------------------------------------------------------------------
Not less than 40.6%...........................       $.0060       $.0038
Less than 40.6% but not less than 40%.........        .0025        .0010
Less than 40% but not less than 38.4%.........        .0010        .0010
------------------------------------------------------------------------


      TABLE 15.--UNITS PLACED IN SERVICE AFTER 2008 AND BEFORE 2013
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
   The unit design net thermal efficiency is   -------------------------
                   equal to:                      For the      For the
                                                 first five  second five
                                                   years        years
------------------------------------------------------------------------
Not less than 43.6%...........................       $.0105       $.0090
Less than 43.6% but not less than 42%.........        .0085        .0068
Less than 42% but not less than 40.2%.........        .0075        .0055
------------------------------------------------------------------------


      TABLE 16.--UNITS PLACED IN SERVICE AFTER 2012 AND BEFORE 2017
------------------------------------------------------------------------
                                                    Credit amount per
                                                      kilowatt-hour
   The unit design net thermal efficiency is   -------------------------
                   equal to:                      For the      For the
                                                 first five  second five
                                                   years        years
------------------------------------------------------------------------
Not less than 44.2%...........................       $.0140       $.0115
Less than 44.2% but not less than 43.9%.......        .0120        .0090
------------------------------------------------------------------------

    The credits are part of the general business credit. No 
credit may be carried back to taxable years ending on or before 
the date of enactment.

                             EFFECTIVE DATE

    The provision relating to investment credits for advanced 
clean coal technology units is effective after the date of 
enactment. The provisions relating to production credits are 
effective after the date of enactment.

                    TITLE V--OIL AND GAS PROVISIONS


      A. Tax Credit for Oil and Gas Production From Marginal Wells


(Sec. 501 of the bill and sec. 45K of the Code)

                              PRESENT LAW

    There is no credit for the production of oil and gas from 
marginal wells. The costs of such production may be recovered 
under the Code's depreciation and depletion rules and in other 
cases as a deduction for ordinary and necessary business 
expenses.

                           REASONS FOR CHANGE

    The highly volatile price of oil and gas can result in lost 
production during periods when prices are low. The Committee 
has learned that once a marginally producing well is shut down, 
that source of supply may be forever lost. To increase domestic 
supply, the Committee determined that a tax credit will help 
ensure that supply is not lost as a result of low market 
prices.

                        EXPLANATION OF PROVISION

    The provision would create a new $3 per barrel credit for 
qualified crude oil production and a $0.50 credit per 1,000 
cubic feet of qualified natural gas production. The maximum 
amount of production on which credit could be claimed is 1,095 
barrels or barrel equivalents. In both cases, the credit is 
available only for qualified production from a ``qualified 
marginal well.'' The credit is not available to production 
occurring if the reference price of oil exceeded $18 ($2.00 for 
natural gas). The credit is reduced proportionately as for 
reference prices between $15 and $18 ($1.67 and $2.00 for 
natural gas). Reference prices are determined on a one-year 
look-back basis.
    The terms ``qualified crude oil production'' and 
``qualified natural gas production'' mean domestic crude oil or 
natural gas which is produced from a qualified marginal well. 
Production from a marginal well that is not in compliance with 
the applicable Federal pollution prevention, control and permit 
requirements for any period of time is not considered qualified 
crude oil production or qualified natural gas production. A 
qualified marginal well is defined as (1) a well production 
from which was marginal production for purposes of the Code 
percentage depletion rules or (2) a well that during the 
taxable year had (a) average daily production of not more than 
25 barrel equivalents and (b) produced water at a rate of not 
less than 95 percent of total well effluent.
    The credit is treated as part of the general business 
credit. The credit cannot be carried back to a taxable year 
ending on or before the date of enactment of the provision.

                             EFFECTIVE DATE

    The provision is effective for production in taxable years 
beginning after the date of enactment.

     B. Natural Gas Gathering Lines Treated as Seven-Year Property


(Sec. 502 of the bill and sec. 168 of the Code)

                              PRESENT LAW

    The applicable recovery period for assets placed in service 
under the Modified Accelerated Cost Recovery System is based on 
the ``class life of the property.'' The class lives of assets 
placed in service after 1986 are generally set forth in Revenue 
Procedure 87-56.\31\ Revenue Procedure 87-56 includes two asset 
classes that could describe natural gas gathering lines owned 
by nonproducers of natural gas. Asset class 46.0, describing 
pipeline transportation, provides a class life of 22 years and 
a recovery period of 15 years. Asset class 13.2, describing 
assets used in the exploration for and production of petroleum 
and natural gas deposits, provides a class life of 14 years and 
a depreciation recovery period of seven years. The uncertainty 
regarding the appropriate recovery period of natural gas 
gathering lines has resulted in litigation between taxpayers 
and the IRS. The 10th Circuit Court of Appeals held that 
natural gas gathering lines owned by nonproducers fall within 
the scope of Asset class 13.2 (i.e., seven-year recovery 
period).\32\ More recently, the Tax Court and the U.S. District 
Court for the Eastern District of Michigan, Southern Division, 
held that natural gas gathering lines owned by nonproducers 
fall within the scope of Asset class 46.0 (i.e., 15-year 
recovery period).\33\
---------------------------------------------------------------------------
    \31\ 1987-2 C.B. 674 (as clarified and modified by Rev. Proc. 88-
22, 1988-1 C.B. 785).
    \32\ Duke Energy v. Commissioner, 172 F.3d 1255 (10th Cir. 1999), 
rev'g 109 T.C. 416 (1997). See also True v. United States, 97-2 U.S. 
Tax Cas. (CCH) par. 50,946 (D. Wyo. 1997).
    \33\ Clajon Gas Co., L.P. v. Commissioner, 119 T.C. 197 (2002) and 
Saginaw Bay Pipeline Co. v. United States, 124 F. Supp. 2d 465 (E.D. 
Mich. 2001).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee believes the appropriate recovery period for 
natural gas gathering lines is seven years.

                        EXPLANATION OF PROVISION

    The provision establishes a statutory seven-year recovery 
period and a class life of 10 years for natural gas gathering 
lines. A natural gas gathering line is defined to include any 
pipe, equipment, and appurtenance that is (1) determined to be 
a gathering line by the Federal Energy Regulatory Commission, 
or (2) used to deliver natural gas from the wellhead or a 
common point to the point at which such gas first reaches (a) a 
gas processing plant, (b) an interconnection with an interstate 
transmission line, (c) an interconnection with an intrastate 
transmission line, or (d) a direct interconnection with a local 
distribution company, a gas storage facility, or an industrial 
consumer.

                             EFFECTIVE DATE

    The provision is effective for property placed in service 
after the date of enactment. No inference is intended as to the 
proper treatment of natural gas gathering lines placed in 
service before the date of enactment.

  C. Expensing of Capital Costs Incurred and Credit for Production in 
   Complying With Environmental Protection Agency Sulfur Regulations


(Secs. 503 and 504 of the bill and new secs. 179C and 45L of the Code)

                              PRESENT LAW

    Taxpayers generally may recover the costs of investments in 
refinery property through annual depreciation deductions. 
Present law does not provide a credit for the production of 
low-sulfur diesel fuel.

                           REASONS FOR CHANGE

    The Committee believes it is important for all refiners to 
meet applicable pollution control standards. However, the 
Committee is concerned that the cost of complying with the 
Highway Diesel Fuel Sulfur Control Requirement of the 
Environmental Protection Agency may force some small refiners 
out of business. To maintain this refining capacity and to 
foster compliance with pollution control standards the 
Committee believes it is appropriate to modify cost recovery 
provisions for small refiners to reduce their capital costs of 
complying with the Highway Diesel Fuel Sulfur Control 
Requirement of the Environmental Protection Agency.

                        EXPLANATION OF PROVISION

    The provision generally permits small business refiners to 
claim an immediate deduction (i.e., expensing) for up to 75 
percent of the qualified capital costs paid or incurred for the 
purpose of complying with the Highway Diesel Fuel Sulfur 
Control Requirements of the Environmental Protection Agency. 
Qualified capital costs are those costs paid or incurred and 
otherwise chargeable to the taxpayer's capital account that are 
necessary for the refinery to come into compliance with the EPA 
diesel fuel requirements.
    In addition, the provision provides that a small business 
refiner may claim a credit equal to five cents per gallon for 
each gallon of low sulfur diesel fuel produced at a facility of 
a small business refiner. The total production credit claimed 
by the taxpayer generally is limited to 25 percent of the 
qualified capital costs incurred with respect to expenditures 
at the refinery during the period beginning after the date of 
enactment and ending with the date that is one year after the 
date on which the taxpayer must comply with applicable EPA 
regulations. No deduction is allowed to the taxpayer for 
expenses otherwise allowable as a deduction in an amount equal 
to the amount of production credit claimed during the taxable 
year.
    For these purposes a small business refiner is a taxpayer 
who within the business of refining petroleum products employs 
not more than 1,500 employees directly in refining on business 
days during a taxable year in which the deduction or production 
credit is claimed and had an average daily refinery run (or 
retained production) not exceeding 205,000 barrels per day \34\ 
for the year prior to enactment.
---------------------------------------------------------------------------
    \34\ The refining capacities of all persons that are part of a 
related group are aggregated for purposes of this definition. In 
addition, in any case where refinery through-put or retained production 
of the refinery differs substantially from its average daily output of 
refined product, the Committee intends that capacity be measured by 
reference to the average daily output of refined product.
---------------------------------------------------------------------------
    For taxpayers with an average daily refinery run in the 
year prior to enactment in excess of 155,000 and not greater 
than 205,000 barrels per day, the provision limits otherwise 
qualifying small business refiners to an immediate deduction 
for a percentage of qualifying capital costs equal to 75 
percent less the percentage points determined by the excess of 
the average daily refinery runs over 155,000 barrels per day 
divided by 50,000 barrels per day. In addition, for these 
taxpayers, the limitation on the total production credit that 
may be claimed also is reduced proportionately.
    In the case of a qualifying small business refiner that is 
owned by a cooperative, the cooperative is allowed to elect to 
pass any production credits to patrons of the organization.

                             EFFECTIVE DATE

    The provision is effective for expenses paid or incurred 
after December 31, 2002.

 D. Determination of Small Refiner Exception to Oil Depletion Deduction


(Sec. 505 of the bill and sec. 613A of the Code)

                              PRESENT LAW

    Present law classifies oil and gas producers as independent 
producers or integrated companies. The Code provides numerous 
special tax rules for operations by independent producers. One 
such rule allows independent producers to claim percentage 
depletion deductions rather than deducting the costs of their 
asset, a producing well, based on actual production from the 
well (i.e., cost depletion).
    A producer is an independent producer only if its refining 
and retail operations are relatively small. For example, an 
independent producer may not have refining operations the runs 
from which exceed 50,000 barrels on any day in the taxable year 
during which independent producer status is claimed.

                           REASONS FOR CHANGE

    The Committee believes that the goal of present law, to 
identify producers without significant refining capacity, can 
be achieved while permitting more flexibility to refinery 
operations.

                        EXPLANATION OF PROVISION

    The provision increases the current 50,000-barrel-per-day 
limitation to 60,000. In addition, the provision changes the 
refinery limitation on claiming independent producer status 
from a limit based on actual daily production to a limit based 
on average daily production for the taxable year. Accordingly, 
the average daily refinery run for the taxable year cannot 
exceed 60,000 barrels. For this purpose, the taxpayer 
calculates average daily refinery run by dividing total 
production for the taxable year by the total number of days in 
the taxable year.

                             EFFECTIVE DATE

    The provision is effective for taxable years ending after 
the date of enactment.

  E. Extension of Suspension of Taxable Income Limit With Respect to 
                          Marginal Production


(Sec. 506 of the bill and sec. 613A of the Code)

                              PRESENT LAW

In general

    Depletion, like depreciation, is a form of capital cost 
recovery. In both cases, the taxpayer is allowed a deduction in 
recognition of the fact that an asset--in the case of depletion 
for oil or gas interests, the mineral reserve itself--is being 
expended in order to produce income. Certain costs incurred 
prior to drilling an oil or gas property are recovered through 
the depletion deduction. These include costs of acquiring the 
lease or other interest in the property and geological and 
geophysical costs (in advance of actual drilling).
    Depletion is available to any person having an economic 
interest in a producing property. An economic interest is 
possessed in every case in which the taxpayer has acquired by 
investment any interest in minerals in place, and secures, by 
any form of legal relationship, income derived from the 
extraction of the mineral, to which it must look for a return 
of its capital.\35\ Thus, for example, both working interests 
and royalty interests in an oil- or gas-producing property 
constitute economic interests, thereby qualifying the interest 
holders for depletion deductions with respect to the property. 
A taxpayer who has no capital investment in the mineral deposit 
does not possess an economic interest merely because it 
possesses an economic or pecuniary advantage derived from 
production through a contractual relation.
---------------------------------------------------------------------------
    \35\ Treas. Reg. sec. 1.611-1(b)(1).
---------------------------------------------------------------------------
            Cost depletion
    Two methods of depletion are currently allowable under the 
Internal Revenue Code (the ``Code''): (1) the cost depletion 
method, and (2) the percentage depletion method (secs. 611-
613). Under the cost depletion method, the taxpayer deducts 
that portion of the adjusted basis of the depletable property 
which is equal to the ratio of units sold from that property 
during the taxable year to the number of units remaining as of 
the end of taxable year plus the number of units sold during 
the taxable year. Thus, the amount recovered under cost 
depletion may never exceed the taxpayer's basis in the 
property.
            Percentage depletion and related income limitations
    The Code generally limits the percentage depletion method 
for oil and gas properties to independent producers and royalty 
owners.\36\ Generally, under the percentage depletion method 15 
percent of the taxpayer's gross income from an oil- or gas-
producing property is allowed as a deduction in each taxable 
year (sec. 613A(c)). The amount deducted generally may not 
exceed 100 percent of the net income from that property in any 
year (the ``net-income limitation'') (sec. 613(a)). By 
contrast, for any other mineral qualifying for the percentage 
depletion deduction, such deduction may not exceed 50 percent 
of the taxpayer's taxable income from the depletable property. 
A similar 50-percent net-income limitation applied to oil and 
gas properties for taxable years beginning before 1991. Section 
11522(a) of the Omnibus Budget Reconciliation Act of 1990 
prospectively changed the net-income limitation threshold to 
100 percent only for oil and gas properties, effective for 
taxable years beginning after 1990. The 100-percent net-income 
limitation for marginal wells has been suspended for taxable 
years beginning after December 31, 1997, and before January 1, 
2004.
---------------------------------------------------------------------------
    \36\ Sec. 613A.
---------------------------------------------------------------------------
    Additionally, the percentage depletion deduction for all 
oil and gas properties may not exceed 65 percent of the 
taxpayer's overall taxable income (determined before such 
deduction and adjusted for certain loss carrybacks and trust 
distributions) (sec. 613A(d)(1)).\37\ Because percentage 
depletion, unlike cost depletion, is computed without regard to 
the taxpayer's basis in the depletable property, cumulative 
depletion deductions may be greater than the amount expended by 
the taxpayer to acquire or develop the property.
---------------------------------------------------------------------------
    \37\ Amounts disallowed as a result of this rule may be carried 
forward and deducted in subsequent taxable years, subject to the 65-
percent taxable income limitation for those years.
---------------------------------------------------------------------------
    A taxpayer is required to determine the depletion deduction 
for each oil or gas property under both the percentage 
depletion method (if the taxpayer is entitled to use this 
method) and the cost depletion method. If the cost depletion 
deduction is larger, the taxpayer must utilize that method for 
the taxable year in question (sec. 613(a)).

Limitation of oil and gas percentage depletion to independent producers 
        and royalty owners

    Generally, only independent producers and royalty owners 
(as contrasted to integrated oil companies) are allowed to 
claim percentage depletion. Percentage depletion for eligible 
taxpayers is allowed only with respect to up to 1,000 barrels 
of average daily production of domestic crude oil or an 
equivalent amount of domestic natural gas (sec. 613A(c)). For 
producers of both oil and natural gas, this limitation applies 
on a combined basis.
    In addition to the independent producer and royalty owner 
exception, certain sales of natural gas under a fixed contract 
in effect on February 1, 1975, and certain natural gas from 
geopressured brine,\38\ are eligible for percentage depletion, 
at rates of 22 percent and 10 percent, respectively. These 
exceptions apply without regard to the 1,000-barrel-per-day 
limitation and regardless of whether the producer is an 
independent producer or an integrated oil company.
---------------------------------------------------------------------------
    \38\ This exception is limited to wells, the drilling of which 
began between September 30, 1978, and January 1, 1984.
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee is concerned that, while current oil and gas 
operations may be profitable, the highly volatile nature of oil 
and gas prices could quickly create economic hardships in the 
industry. Thus, to help minimize the adverse effects of future 
price fluctuations, the Committee believes it is appropriate to 
extend the suspension of the 100-percent net-income limitation 
for marginal wells.

                        EXPLANATION OF PROVISION

    The suspension of the 100-percent net-income limitation for 
marginal wells is extended through taxable years beginning 
before January 1, 2007.

                             EFFECTIVE DATE

    The provision is effective on date of enactment.

                F. Amortization of Delay Rental Payments


(Sec. 507 of the bill and new sec. 199A of the Code)

                              PRESENT LAW

    Present law generally requires costs associated with 
inventory and property held for resale to be capitalized rather 
than currently deducted as they are incurred. (sec. 263). Oil 
and gas producers typically contract for mineral production in 
exchange for royalty payments. If mineral production is 
delayed, these contracts provide for ``delay rental payments'' 
as a condition of their extension. In proposed regulations 
issued in 2000, the Treasury Department took the position that 
the uniform capitalization rules of section 263A require delay 
rental payments to be capitalized.\39\
---------------------------------------------------------------------------
    \39\ 65 Fed. Reg. 6090 (2000).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee believes that substantial simplification for 
taxpayers and significant gains in taxpayer compliance and 
reductions in administrative cost can be contained by 
establishing the simple rule that all delay rental payments may 
be amortized over two years, including the basis of abandoned 
property.

                        EXPLANATION OF PROVISION

    The provision allows delay rental payments incurred in 
connection with the development of oil or gas within the United 
States to be amortized over two years. In the case of abandoned 
property, remaining basis may no longer be recovered in the 
year of abandonment of a property as all basis is recovered 
over the two-year amortization period.

                             EFFECTIVE DATE

    The provision applies to delay rental payments paid or 
incurred in taxable years beginning after the date of 
enactment. No inference is intended from the prospective 
effective date of this proposal as to the proper treatment of 
pre-effective date delay rental payments.

       G. Amortization of Geological and Geophysical Expenditures


(Sec. 508 of the bill and new sec. 199 of the Code)

                              PRESENT LAW

In general

    Geological and geophysical expenditures are costs incurred 
by a taxpayer for the purpose of obtaining and accumulating 
data that will serve as the basis for the acquisition and 
retention of mineral properties by taxpayers exploring for 
minerals. A key issue with respect to the tax treatment of such 
expenditures is whether or not they are capital in nature. 
Capital expenditures are not currently deductible as ordinary 
and necessary business expenses, but are allocated to the cost 
of the property.\40\
---------------------------------------------------------------------------
    \40\ Under section 263, capital expenditures are defined generally 
as any amount paid for new buildings or for permanent improvements or 
betterments made to increase the value of any property or estate. 
Treasury regulations define capital expenditures to include amounts 
paid or incurred (1) to add to the value, or substantially prolong the 
useful life, of property owned by the taxpayer or (2) to adapt property 
to a new or different use. Treas. Reg. sec. 1.263(a)-1(b).
---------------------------------------------------------------------------
    Courts have held that geological and geophysical costs are 
capital, and therefore are allocable to the cost of the 
property \41\ acquired or retained.\42\ The costs attributable 
to such exploration are allocable to the cost of the property 
acquired or retained. As described further below, IRS 
administrative rulings have provided further guidance regarding 
the definition and proper tax treatment of geological and 
geophysical costs.
---------------------------------------------------------------------------
    \41\ ``Property'' means an interest in a property as defined in 
section 614 of the Code, and includes an economic interest in a tract 
or parcel of land notwithstanding that a mineral deposit has not been 
established or proved at the time the costs are incurred.
    \42\ See, e.g., Schermerhorn Oil Corporation v. Commissioner, 46 
B.T.A. 151 (1942). By contrast, section 617 of the Code permits a 
taxpayer to elect to deduct certain expenditures incurred for the 
purpose of ascertaining the existence, location, extent, or quality of 
any deposit of ore or other mineral (but not oil and gas). These 
deductions are subject to recapture if the mine with respect to which 
the expenditures were incurred reaches the producing stage.
---------------------------------------------------------------------------

Revenue Ruling 77-188

    In Revenue Ruling 77-188 \43\ (hereinafter referred to as 
the ``1977 ruling''), the IRS provided guidance regarding the 
proper tax treatment of geological and geophysical costs. The 
ruling describes a typical geological and geophysical 
exploration program as containing the following elements:
---------------------------------------------------------------------------
    \43\ 1977-1 C.B. 76.
---------------------------------------------------------------------------
     It is customary in the search for mineral 
producing properties for a taxpayer to conduct an exploration 
program in one or more identifiable project areas. Each project 
area encompasses a territory that the taxpayer determines can 
be explored advantageously in a single integrated operation. 
This determination is made after analyzing certain variables 
such as (1) the size and topography of the project area to be 
explored, (2) the existing information available with respect 
to the project area and nearby areas, and (3) the quantity of 
equipment, the number of personnel, and the amount of money 
available to conduct a reasonable exploration program over the 
project area.
     The taxpayer selects a specific project area from 
which geological and geophysical data are desired and conducts 
a reconnaissance-type survey utilizing various geological and 
geophysical exploration techniques. These techniques are 
designed to yield data that will afford a basis for identifying 
specific geological features with sufficient mineral potential 
to merit further exploration.
     Each separable, noncontiguous portion of the 
original project area in which such a specific geological 
feature is identified is a separate ``area of interest.'' The 
original project area is subdivided into as many small projects 
as there are areas of interest located and identified within 
the original project area. If the circumstances permit a 
detailed exploratory survey to be conducted without an initial 
reconnaissance-type survey, the project area and the area of 
interest will be coextensive.
     The taxpayer seeks to further define the 
geological features identified by the prior reconnaissance-type 
surveys by additional, more detailed, exploratory surveys 
conducted with respect to each area of interest. For this 
purpose, the taxpayer engages in more intensive geological and 
geophysical exploration employing methods that are designed to 
yield sufficiently accurate sub-surface data to afford a basis 
for a decision to acquire or retain properties within or 
adjacent to a particular area of interest or to abandon the 
entire area of interest as unworthy of development by mine or 
well.
    The 1977 ruling provides that if, on the basis of data 
obtained from the preliminary geological and geophysical 
exploration operations, only one area of interest is located 
and identified within the original project area, then the 
entire expenditure for those exploratory operations is to be 
allocated to that one area of interest and thus capitalized 
into the depletable basis of that area of interest. On the 
other hand, if two or more areas of interest are located and 
identified within the original project area, the entire 
expenditure for the exploratory operations is to be allocated 
equally among the various areas of interest.
    If no areas of interest are located and identified by the 
taxpayer within the original project area, then the 1977 ruling 
states that the entire amount of the geological and geophysical 
costs related to the exploration is deductible as a loss under 
section 165. The loss is claimed in the taxable year in which 
that particular project area is abandoned as a potential source 
of mineral production.
    A taxpayer may acquire or retain a property within or 
adjacent to an area of interest, based on data obtained from a 
detailed survey that does not relate exclusively to any 
discrete property within a particular area of interest. 
Generally, under the 1977 ruling, the taxpayer allocates the 
entire amount of geological and geophysical costs to the 
acquired or retained property as a capital cost under section 
263(a). If more than one property is acquired, it is proper to 
determine the amount of the geological and geophysical costs 
allocable to each such property by allocating the entire amount 
of the costs among the properties on the basis of comparative 
acreage.
    If, however, no property is acquired or retained within or 
adjacent to that area of interest, the entire amount of the 
geological and geophysical costs allocable to the area of 
interest is deductible as a loss under section 165 for the 
taxable year in which such area of interest is abandoned as a 
potential source of mineral production.
    In 1983, the IRS issued Revenue Ruling 83-105,\44\ which 
elaborates on the positions set forth in the 1977 ruling by 
setting forth seven factual situations and applying the 
principles of the 1977 ruling to those situations. In addition, 
Revenue Ruling 83-105 explains what constitutes ``abandonment 
as a potential source of mineral production.''
---------------------------------------------------------------------------
    \44\ 1983-2 C.B. 51.
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee believes that substantial simplification for 
taxpayers, significant gains in taxpayer compliance, and 
reductions in administrative cost can be obtained by 
establishing the simple rule that all geological and 
geophysical costs may be amortized over two years, including 
the basis of abandoned property.
    The Committee recognizes that, on average, a two-year 
amortization period accelerates recovery of geological and 
geophysical expenses. The Committee believes that more rapid 
recovery of such expenses will foster increased exploration for 
new sources of supply.

                        EXPLANATION OF PROVISION

    The provision allows geological and geophysical costs 
incurred in connection with oil and gas exploration in the 
United States to be amortized over two years. In the case of 
abandoned property, remaining basis may no longer be recovered 
in the year of abandonment of a property as all basis is 
recovered over the two-year amortization period.

                             EFFECTIVE DATE

    The provision is effective for geological and geophysical 
costs paid or incurred in taxable years beginning after the 
date of enactment. No inference is intended from the 
prospective effective date of this proposal as to the proper 
treatment of pre-effective date geological and geophysical 
costs.

 H. Extension and Modification of Credit for Producing Fuel From a Non-
                          Conventional Source


(Sec. 509 of the bill and new sec. 45J of the Code)

                              PRESENT LAW

    Certain fuels produced from ``non-conventional sources'' 
and sold to unrelated parties are eligible for an income tax 
credit equal to $3 (generally adjusted for inflation) \45\ per 
barrel or BTU oil barrel equivalent (sec. 29). Qualified fuels 
must be produced within the United States.
---------------------------------------------------------------------------
    \45\ The value of the section 29 credit for production in 2002 was 
$6.35 per barrel of oil equivalent.
---------------------------------------------------------------------------
    Qualified fuels include:
         (5) oil produced from shale and tar sands; as produced 
        from geopressured brine, Devonian shale, coal seams, 
        tight formations (``tight sands''), or biomass; and
         (6) liquid, gaseous, or solid synthetic fuels produced 
        from coal (including lignite).
    In general, the credit is available only with respect to 
fuels produced from wells drilled or facilities placed in 
service after December 31, 1979, and before January 1, 1993. An 
exception extends the January 1, 1993 expiration date for 
facilities producing gas from biomass and synthetic fuel from 
coal if the facility producing the fuel is placed in service 
before July 1, 1998, pursuant to a binding contract entered 
into before January 1, 1997.
    The credit may be claimed for qualified fuels produced and 
sold before January 1, 2003 (in the case of non-conventional 
sources subject to the January 1, 1993 expiration date) or 
January 1, 2008 (in the case of biomass gas and synthetic fuel 
facilities eligible for the extension period).

                           REASONS FOR CHANGE

    The Committee concludes that the section 29 credit, on the 
margins, has increased production of oil and natural gas from 
domestic sources and that in the absence of these non-
conventional sources the demand for imported fuels may have 
increased. To increase domestic sources of supply, the 
Committee believes it is appropriate to extend the section 29 
credit to help foster new domestic fuel sources. The Committee 
is also concerned that, without the implicit subsidy of the 
production credit due to the higher extraction costs of certain 
``viscous oil,'' entrepreneurs would not otherwise exploit this 
domestic energy source. Therefore, the Committee believes it is 
appropriate to extend the credit for viscous oil produced from 
new wells or facilities.
    The Committee also recognizes that the credit for 
production of synthetic fuels from coal has been interpreted to 
include fuels that are merely chemical changes to coal that do 
not necessarily enhance the value or environmental performance 
of the feedstock coal. Therefore, the Committee believes it is 
appropriate to extend the section 29 credit only to fuels 
produced from coal that achieve significant environmental and 
value-added improvements. Methane in coal mines is a serious 
safety hazard. In many coal mining operations, the cost of 
collection exceeds the value of the recovered methane so the 
methane is vented directly into the atmosphere. Methane is an 
extremely potent and long-lived greenhouse gas. Therefore, the 
Committee seeks to encourage capture of methane from coal mines 
in particular.
    The Committee recognizes that the world price of oil as the 
nation enters the 21st century has not risen to levels forecast 
in 1978. Therefore, the Committee believes it is appropriate to 
restart the section 29 credit at a level lower than that 
currently available to existing production.
    The Committee believes it is important to study the 
efficacy of the section 29 credit in the case of methane 
recovered from coal seams or so-called ``coal beds.''

                        EXPLANATION OF PROVISION

    The provision extends the placed in service date for 
certain facilities that would otherwise qualify for the section 
29 credit under present law and modifies the amount of the 
credit to equal $3.00 unindexed for inflation. The provision 
also expands the class of facilities that are eligible for the 
credit. In addition, under the provision, the taxpayer would 
not be able to claim any credit for production in excess of a 
daily average of 200,000 cubic feet of gas (or barrel of oil 
equivalent) from a qualifying well or facility.\46\
---------------------------------------------------------------------------
    \46\ The daily average would be computed as total production 
divided by the total number of days the well or facility was in 
production during the year.
---------------------------------------------------------------------------

Clarification of definition of when a facility is placed in service

    The provision clarifies the definition of when a landfill 
gas facility is placed in service, both for facilities 
originally placed in service on or before the date of enactment 
and for facilities placed in service after the date of 
enactment. In general, a landfill gas facility includes wells, 
pipes, and the related components to collect landfill gas 
(i.e., the gas produced from biomass and derived from the bio-
degradation on municipal solid waste). The production of 
landfill gas attributable to wells, pipes, and related 
components placed in service after the date of enactment is 
considered produced from a facility placed in service after the 
date of enactment. Production of landfill gas attributable to 
those wells, pipes, and related components placed in service on 
or before the date of enactment is considered produced from a 
facility placed in service on or before the date of enactment. 
That is, all of the landfill gas produced from a landfill is 
not considered to be from a facility placed in service on the 
date on which the first set of wells, pipes, and related 
components drew gas from the landfill. Rather, as a landfill 
expands and additional integrated sets of wells, pipes, and 
related components are installed to draw off landfill gas, the 
landfill gas drawn from each additional integrated set of 
wells, pipes, and related components is to be considered to be 
produced from a facility placed in service on the date each 
additional integrated set of wells, pipes, and related 
components is placed in service. Thus, a single landfill may 
have several ``facilities'' eligible for the section 29 credit, 
each placed in service on a different date.

Extension for certain non-conventional fuels

    The provision permits taxpayers to claim the section 29 
credit for production of certain non-conventional fuels 
produced at wells placed in service after the date of enactment 
and before January 1, 2007.\47\ Under the provision, qualifying 
fuels are oil from shale or tar sands, and gas from 
geopressured brine, Devonian shale, coal seams, a tight 
formation, or biomass. The value of the credit is re-based to 
$3.00 and the amount is not indexed for inflation. Taxpayers 
may claim the credit for production from the well for each of 
the first three years of production from the qualifying well.
---------------------------------------------------------------------------
    \47\ The provision does not apply to liquid, gaseous, or solid 
synthetic fuels produced from coal as described under present law 
section 29(c)(1)(C), but does provide credit for a new category, 
refined coal, described below.
---------------------------------------------------------------------------

Expansion for fuels from agricultural and animal waste

    The provision adds facilities producing liquid, gaseous, or 
solid fuels, from agricultural and animal waste placed in 
service after the date of enactment and before January 1, 2007, 
to the list of qualified facilities for purposes of the non-
conventional fuel credit. The amount of the credit is equal to 
$3.00 (unindexed) per barrel or Btu oil barrel equivalent, for 
three years of production commencing on the date the facility 
is placed in service. Agricultural and animal waste includes 
by-products, packaging, and any materials associated with 
processing, feeding, selling, transporting, or disposal of 
agricultural or animal products or wastes.

Expansion for ``viscous oil''

    The provision expands section 29 to permit taxpayers to 
claim the section 29 credit for production of certain viscous 
oil produced at wells placed in service after the date of 
enactment and before January 1, 2007. The provision defines 
``viscous oil'' as domestic crude oil produced from any 
property if the crude oil has a weighted average gravity of 22 
degrees API or less (corrected to 60 degrees Fahrenheit). The 
value of the credit for viscous oil also is $3.00 per barrel. 
Taxpayers may claim the credit for production from the well for 
each of the first three years of production from the time the 
well is placed in service. The provision provides that 
qualifying sales to related parties for consumption not in the 
immediate vicinity of the wellhead qualify for the credit.

Expansion for ``refined coal''

    The provision also expands section 29 to include certain 
``refined coal'' as a qualified non-conventional fuel. 
``Refined coal'' is a qualifying liquid, gaseous, or solid 
synthetic fuel produced from coal (including lignite) from 
facilities placed in service after date of enactment and before 
January 1, 2007. Refined coal also would include a qualifying 
fuel derived from high-carbon fly ash produced from facilities 
placed in service after the date of enactment and before 
January 1, 2007.\48\ A qualifying fuel is a fuel that when 
burned emits 20 percent less nitrogen oxide and either sulfur 
dioxide or mercury than the burning of feedstock coal or 
comparable coal predominantly available in the marketplace as 
of January 1, 2003, and if the fuel sells at prices at least 50 
percent greater than the prices of the feedstock coal or 
comparable coal. However, no fuel produced at a qualifying 
advanced clean coal facility (as defined elsewhere in the 
committee bill) would be a qualifying fuel. The amount of 
credit for refined coal also is $3.00 per barrel equivalent. 
Taxpayers may claim the credit for fuel produced during the 
five-year period beginning on the date the facility is placed 
in service.
---------------------------------------------------------------------------
    \48\ No inference is intended that high-carbon fly ash qualified 
previous to the date of enactment.
---------------------------------------------------------------------------

Expansion for coalmine gas

    In addition, the provision permits taxpayers to claim 
credit for coalmine gas captured by the taxpayer and utilized 
as a fuel source or sold by or on behalf of the taxpayer to an 
unrelated person. The term ``coalmine gas'' means any methane 
gas which is being liberated during qualified coal mining 
operations or as a result of past qualified coal mining 
operations, or which is captured 10 years in advance of 
qualified coal mining operations as part of specific plan to 
mine a coal deposit. In the case of coalmine gas that is 
captured in advance of qualified coal mining operations, the 
credit is allowed only after the date the coal extraction 
occurs in the immediate area where the coalmine gas was 
removed. The value of the credit for coalmine methane also is 
$3.00 per Btu oil barrel equivalent (51.7 cents per million Btu 
of heat value in the gas) for gas captured and utilized or 
sold. Taxpayers may claim the credit for gas captured and 
utilized or sold after the date of enactment and before January 
1, 2007.

Extension of credit for certain existing facilities

    The provision extends the present-law credit through 
December 31, 2005 for production from existing facilities 
producing coke, coke gas, or natural gas and by-products 
produced by coal gasification from lignite. The provision 
provides that the credit amount will be $3.00 per Btu oil 
barrel equivalent for production from such facilities after 
December 31, 2002.

Study of coal bed methane gas

    Lastly, the provision directs the Secretary of the Treasury 
to undertake a study of the effect section 29 has had on the 
production of coal bed methane. The study should estimate the 
total amount of credit claimed annually and in aggregate 
related to the production of coal bed methane since the 
enactment of section 29. The study should report the annual 
value of the credit allowable for coal bed methane compared to 
the average annual wellhead price of natural gas (per thousand 
cubic feet of natural gas). The study should estimate the 
incremental increase in production of coal bed methane that has 
resulted from the enactment of section 29. The study should 
estimate the cost to the Federal government, in terms of the 
net tax benefits claimed, per thousand cubic feet of 
incremental coal bed methane produced annually and in aggregate 
since the enactment of section 29.

                             EFFECTIVE DATE

    The provisions apply to fuels sold from qualifying wells 
and facilities after the date of enactment.

     I. Natural Gas Distribution Lines Treated as 15-Year Property


(Sec. 510 of the bill and sec. 168 of the Code)

                              PRESENT LAW

    The applicable recovery period for assets placed in service 
under the Modified Accelerated Cost Recovery System is based on 
the ``class life of the property.'' The class lives of assets 
placed in service after 1986 are generally set forth in Revenue 
Procedure 87-56.\49\ Natural gas distribution pipelines are 
assigned a 20-year recovery period and a class life of 35 
years.
---------------------------------------------------------------------------
    \49\ 1987-2 C.B. 674 (as clarified and modified by Rev. Proc. 88-
22, 1988-1 C.B. 785).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee recognizes the importance of modernizing our 
aging energy infrastructure to meet the demands of the twenty-
first century, and the Committee also recognizes that both 
short-term and long-term solutions are required to meet this 
challenge. The Committee understands that investment in our 
energy infrastructure has not kept pace with the nation's 
needs. In light of this, the Committee believes it is 
appropriate to reduce the recovery period for investment in 
certain energy infrastructure property to encourage investment 
in such property.

                        EXPLANATION OF PROVISION

    The provision establishes a statutory 15-year recovery 
period and a class life of 20 years for natural gas 
distribution lines.

                             EFFECTIVE DATE

    The provision is effective for property placed in service 
after the date of enactment.

                    J. Credit for Alaska Natural Gas


(Sec. 511 of the bill and new sec. 45M of the Code)

                              PRESENT LAW

    Present law does not provide a credit for conventional 
production of natural gas or delivery of fuels to a pipeline. 
However, certain fuels produced from ``non-conventional 
sources'' and sold to unrelated parties are eligible for an 
income tax credit equal to $3 (generally adjusted for 
inflation) per barrel or BTU oil barrel equivalent (sec. 29). 
Qualified fuels must be produced within the United States.
    Qualified fuels include:
          (1) gas produced from geopressured brine, Devonian 
        shale, coal seams, tight formations (``tight sands''), 
        or biomass; and
          (2) liquid, gaseous, or solid synthetic fuels 
        produced from coal (including lignite).
    In general, the credit is available only with respect to 
fuels produced from wells drilled or facilities placed in 
service after December 31, 1979, and before January 1, 1993. An 
exception extends the January 1, 1993 expiration date for 
facilities producing gas from biomass and synthetic fuel from 
coal if the facility producing the fuel is placed in service 
before July 1, 1998, pursuant to a binding contract entered 
into before January 1, 1997.
    The credit may be claimed for qualified fuels produced and 
sold before January 1, 2003 (in the case of non-conventional 
sources subject to the January 1, 1993 expiration date) or 
January 1, 2008 (in the case of biomass gas and synthetic fuel 
facilities eligible for the extension period).

                           REASONS FOR CHANGE

    The Committee recognizes the natural gas in Alaska is an 
important natural resource that can expand domestic energy 
supplies. However, due to the volatility of energy prices, the 
private sector may be unwilling to make the substantial 
investment in a pipeline to bring some of the natural gas to 
the lower 48 States. The Committee believes it is important to 
make this natural gas resource available to the lower 48 States 
and to provide an economic stimulus to the Alaskan economy. The 
Committee believes that a credit against income taxes for 
delivery of natural gas to a transmission pipeline will provide 
a minimum return and the reduced volatility necessary to induce 
the private sector to invest in the pipeline to bring Alaska 
natural gas to the rest of the U.S. market.

                        EXPLANATION OF PROVISION

    The provision provides a credit per million British thermal 
units (Btu) of natural gas for Alaska natural gas entering a 
pipeline \50\ during the 15-year period beginning the later of 
January 1, 2010 or the initial date for the interstate 
transportation of Alaska natural gas. Taxpayers may claim the 
credit against both the regular and minimum tax.
---------------------------------------------------------------------------
    \50\ Natural gas entering a gas processing facility is not 
considered to have entered a pipeline. Rather, the credit applies only 
to pipeline quality gas at the time of entry into the pipeline.
---------------------------------------------------------------------------
    The credit amount for any month is a maximum of 52 cents 
per million Btu of natural gas. The credit phases out as the 
reference price of Alaska natural gas rises above 83 cents per 
million Btu, at a rate of one cent of credit lost per each cent 
by which the reference price of Alaska natural gas exceeds 83 
cents per million Btu. The credit is not available if the 
reference price of Alaska natural gas rises above $1.35 per 
million Btu. The 52-cent and 83-cent figures are indexed for 
inflation after 2002, with the first adjustment for calendar 
year 2004.\51\
---------------------------------------------------------------------------
    \51\ In practice, the $1.35-figure also is indexed for inflation, 
as $1.35 is the sum of the 52-cent credit and the 83-cent price.
    The bill provides that the Secretary can compute the inflation 
adjustment factor for a calendar year in the fourth quarter of the 
preceding year. For example, the adjustment for 2004 is calculated as 
the 2003 GDP deflator over the 2002 GDP deflator, where the 2002 GDP 
deflator is the value of the GDP deflator on June 30, 2002 (as 
determined by the latest available revision from the Department of 
Commerce prior to October 1, 2002). Likewise, the 2003 deflator is the 
value of the GDP deflator on June 30, 2003.
---------------------------------------------------------------------------
    The bill provides that the Secretary of Treasury calculate 
the reference price of Alaska natural gas as the average price 
of natural gas delivered in the lower 48 States less certain 
transportation costs and gas processing costs. The Committee 
intends that an appropriate measure of the price of natural gas 
delivered to the lower 48 States be the monthly Chicago city 
gate price for natural gas as reliably reported in one or more 
trade publications or as reported by the Secretary of Energy. 
Because qualifying natural gas is likely to be transported 
across both the United States and Canada, the Committee intends 
that transportation costs be measured as such costs as 
determined (pursuant to approved tariffs) by the appropriate 
national regulatory body. At the present time, the appropriate 
national regulatory body for transportation of natural gas in 
the United States is the Federal Energy Regulatory Commission. 
At the present time, the Committee understands the appropriate 
national regulatory body for transportation of natural gas in 
Canada is the Canadian National Energy Board. The Committee 
further intends that gas processing costs include all rates and 
charges of whatever kind for firm service assessed with respect 
to the processing of Alaska natural gas as calculated pursuant 
to approved tariffs under the Natural Gas Act (15 U.S.C. 717), 
if such costs are regulated by the Federal government, or as 
calculated under the principles of sec. 482 of the Code, if 
such costs are not regulated by the Federal government.
    Alaska natural gas is any gas derived from an area of the 
State of Alaska lying north of 64 degrees North latitude, but 
not including the Alaska National Wildlife Refuge.
    The credit is part of the general business credit.

                             EFFECTIVE DATE

    The proposal is effective on the date of enactment.

   K. Certain Alaska Pipeline Systems Treated as Seven-Year Property


(Sec. 512 of the bill and sec. 168 of the Code)

                              PRESENT LAW

    The applicable recovery period for assets placed in service 
under the Modified Accelerated Cost Recovery System is based on 
the ``class life of the property.'' The class lives of assets 
placed in service after 1986 are generally set forth in Revenue 
Procedure 87-56.\52\ Assets used in the private, commercial, 
and contract carrying of petroleum, gas and other products by 
means of pipes and conveyors are assigned a 15-year recovery 
period and a class life of 22 years.
---------------------------------------------------------------------------
    \52\ 1987-2 C.B. 674 (as clarified and modified by Rev. Proc. 88-
22, 1988-1 C.B. 785).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee recognizes that, on our present course, the 
nation will be ever more reliant on foreign governments, that 
do not always have America's interest at heart, for oil and 
natural gas. The Committee recognizes that even with 
conservation efforts and alternative sources of energy that our 
nation's long-term security depends on reducing our reliance on 
foreign energy sources. In light of this, the Committee 
believes it is appropriate to reduce the recovery period, and 
thus the cost of capital, for investment in natural gas 
pipeline systems in Alaska that meet certain requirements.

                        EXPLANATION OF PROVISION

    The provision establishes a statutory seven-year recovery 
period and a class life of 10 years for any natural gas 
pipeline system, located in Alaska, that has a capacity greater 
than five hundred billion Btu of natural gas per day and is 
placed in service after 2014. For purposes of the proposal, a 
natural gas pipeline system is defined as any system used in 
the carrying of natural gas by means of pipes, including pipe, 
trunk lines, related equipment, and appurtenances. It does not 
include any gas treatment plant related to such pipeline.

                             EFFECTIVE DATE

    The proposal is effective on the date of enactment.

  L. Exempt Certain Prepayments for Natural Gas From Tax-Exempt Bond 
                            Arbitrage Rules


(Sec. 513 of the bill and sec. 148 of the Code)

                              PRESENT LAW

    Interest on bonds issued by States or local governments to 
finance activities carried out or paid for by those entities 
generally is exempt from income tax (sec. 103). Restrictions 
are imposed on the ability of States or local governments to 
invest the proceeds of these bonds for profit (the ``arbitrage 
restrictions''). One such restriction limits the use of bond 
proceeds to acquire ``investment-type property.'' A prepayment 
for property or services may give rise to investment-type 
property. A prepayment can produce prohibited arbitrage profits 
when the discount received for prepaying the costs exceeds the 
yield on the tax-exempt bonds. In general, prohibited 
prepayments include all prepayments that are not customary in 
an industry by both beneficiaries of tax-exempt bonds and other 
persons using taxable financing for the same transaction.
    On April 17, 2002, the Department of the Treasury issued 
proposed regulations regarding arbitrage and private activity 
restrictions applicable to tax-exempt bonds issued by State and 
local governments. The proposed regulations add an exception to 
the definition of investment-type property for certain natural 
gas prepayments that are made by or for one or more utilities 
that are owned by a governmental person.\53\ The exception 
applies if at least 95 percent of the natural gas purchased 
with the prepayment is to be (1) consumed by retail customers 
in the service area of a municipal gas utility, or (2) used to 
produce electricity that will be furnished to retail customers 
that a municipal electric utility is obligated to serve under 
State or Federal law. An obligation that arises solely because 
of a contract is not an obligation to serve under State or 
Federal law. For this purpose, the service area of a municipal 
gas utility is defined as (1) any area throughout which the 
municipal utility provided (at all times during the five-year 
period ending on the issue date) gas transmission or 
distribution service, and any area that is contiguous to such 
an area, or (2) any area where the municipal utility is 
obligated under State or Federal law to provide gas 
distribution services as provided in such law. Issuers may 
apply principles similar to the rules governing private use to 
cure a violation of the 95 percent requirement.\54\
---------------------------------------------------------------------------
    \53\ Prop. Treas. Reg. sec. 1.148-1(e)(2)(ii).
    \54\ See Treas. Reg. 1.141-12.
---------------------------------------------------------------------------
    A prepayment will not fail to meet the requirements for 
prepaid gas contracts by reason of any commodity swap contract 
that may be entered into between the issuer and an unrelated 
party (other than the gas supplier), or between the gas 
supplier and an unrelated party (other than the issuer), so 
long as each swap contract is an independent contract. A swap 
contract is an independent contract if the obligation of each 
party to perform under the swap contract is not dependent on 
performance by any person (other than the other party to the 
swap contract) under another contract (for example, a gas 
contract or another swap contract). A natural gas commodity 
swap contract will not fail to be an independent contract 
solely because the swap contract may terminate in the event of 
a failure of a gas supplier to deliver gas for which the swap 
contract is a hedge.\55\ The Commissioner may, by published 
guidance, set forth additional circumstances in which a 
prepayment does not give rise to investment-type property.
---------------------------------------------------------------------------
    \55\ Internal Revenue Service, Clarification of Proposed 
Regulations Relating to Tax-Exempt Bonds Issued by State or Local 
Governments, Notice 2002-52, 2002-30 IRB 1 (July 03, 2002).
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The Committee determined that it was appropriate to 
complement the proposed Treasury regulations with a safe harbor 
that provides certainty on the date of issuance that 
prepayments for natural gas within the safe harbor will not 
violate the arbitrage rules. This provision will ensure 
adequate supplies of natural gas at predictable prices for 
natural gas utility customers without sacrificing to a great 
degree the appropriate present-law limitations regarding tax-
exempt bond issuance for the purchase of investment property. 
The Committee believes that this proposal strikes an 
appropriate balance between these two competing policies. The 
creation of this safe harbor is not intended to limit the 
Secretary's regulatory authority to identify other situations 
in which prepayments do not give rise to investment type 
property.

                        EXPLANATION OF PROVISION

In general

    The provision creates a safe harbor exception to the 
general rule that tax-exempt bond-financed prepayments violate 
the arbitrage restrictions. The term ``investment type 
property'' does not include a prepayment under a qualified 
natural gas supply contract. The provision also provides that 
such prepayments are not treated as private loans for purposes 
of the private business tests.
    Under the provision, a prepayment financed with tax-exempt 
bond proceeds for the purpose of obtaining a supply of natural 
gas for service area customers of a governmental utility is not 
treated as the acquisition of investment-type property. A 
contract is a qualified natural gas supply contract if the 
volume of natural gas secured for any year covered by the 
prepayment does not exceed the sum of (1) the average annual 
natural gas purchased (other than for resale) by customers of 
the utility within the service area of the utility (``retail 
natural gas consumption'') during the testing period, and (2) 
the amount of natural gas that is needed to fuel transportation 
of the natural gas to the governmental utility. The testing 
period is the 5-calendar-year period immediately preceding the 
calendar year in which the bonds are issued. A retail customer 
is one who does not purchase natural gas for resale. Natural 
gas used to generate electricity by a governmental utility is 
counted as retail natural gas consumption if the electricity 
was sold to retail customers within the service area of the 
governmental electric utility.
    With respect to qualified natural gas supply contracts 
entered into by joint action agencies acting for or on behalf 
of one or more governmental utilities, the requirements of the 
safe harbor are tested at the utility level. A joint action 
agency shall be treated as the agent of the utility when 
selling directly to a retail customer within that utility's 
service area.

Adjustments

    The volume of gas permitted by the general rule is reduced 
by natural gas otherwise available on the date of issuance. 
Specifically, the amount of natural gas permitted to be 
acquired under a qualified natural gas supply contract for any 
period is to be reduced by the applicable share of natural gas 
held by the utility on the date of issuance of the bonds and 
natural gas that the utility has a right to acquire for the 
prepayment period (determined as of the date of issuance).\56\ 
For purposes of the preceding sentence, applicable share means, 
with respect to any period, the natural gas allocable to such 
period if the gas were allocated ratably over the period to 
which the prepayment relates.
---------------------------------------------------------------------------
    \56\ For example, natural gas otherwise available on the date the 
bonds are issued includes supply covered by other prepayment contracts 
for the period, and supply held in storage or subject to an option to 
purchase by such utility that is available for retail natural gas 
consumption during the period covered by the prepayment. It does not 
include supply that could be purchased on the open market during the 
prepayment period.
---------------------------------------------------------------------------
    For purposes of the safe harbor, if after the close of the 
testing period and before the issue date of the bonds (1) the 
governmental utility enters into a contract to supply natural 
gas (other than for resale) for use by a business at a property 
within the service area of such utility and (2) the gas 
consumption for such property was not included in the testing 
period or the ratable amount of natural gas to be supplied 
under the contract is significantly greater than the ratable 
amount of gas supplied to such property during the testing 
period, then the amount of gas permitted to be purchased may be 
increased to accommodate the contract.
    The average annual retail natural gas consumption 
calculation for purposes of the safe harbor, however, is not to 
exceed the annual amount of natural gas reasonably expected to 
be purchased (other than for resale) by persons who are located 
within the service area of such utility and who, as of the date 
of issuance of the issue, are customers of such utility.

Intentional acts

    The safe harbor does not apply if the utility engages in 
intentional acts to render the volume of natural gas covered by 
the prepayment to be in excess of that needed for (1) retail 
natural gas consumption, and (2) the amount of natural gas that 
is needed to fuel transportation of the natural gas to the 
governmental utility. Sales to dispose of excess gas outside 
the service area that are necessitated by circumstances beyond 
the control of the utility, such as weather conditions, are not 
considered intentional acts to render the prepaid gas supply in 
excess of the utility's needs.

Definition of service area

    Service area is defined as (1) any area throughout which 
the governmental utility provided (at all times during the 
testing period) in the case of a natural gas utility, natural 
gas transmission or distribution service, or in the case of an 
electric utility, electric distribution service; (2) limited 
areas contiguous to such areas, and (3) any area recognized as 
the service area of the governmental utility under State or 
Federal law. Contiguous areas are limited to any area within a 
county contiguous to the area described in (1) in which retail 
customers of the utility are located if such area is not also 
served by another utility providing the same service.

Ruling request for higher prepayment amounts

    Upon written request, the Secretary may allow an issuer to 
prepay for an amount of gas greater than that allowed by the 
safe harbor based on objective evidence of growth in gas 
consumption or population that demonstrates that the amount 
permitted by the exception is insufficient.

                             EFFECTIVE DATE

    The provision is effective for obligations issued after the 
date of enactment.

          TITLE VI--ELECTRIC UTILITY RESTRUCTURING PROVISIONS


  A. Modifications to Special Rules for Nuclear Decommissioning Costs


(Sec. 601 of the bill and sec. 468A of the Code)

                              PRESENT LAW

Overview

    Special rules dealing with nuclear decommissioning reserve 
funds were adopted by Congress in the Deficit Reduction Act of 
1984 (``1984 Act''), when tax issues regarding the time value 
of money were addressed generally. Under general tax accounting 
rules, a deduction for accrual basis taxpayers is deferred 
until there is economic performance for the item for which the 
deduction is claimed. However, the 1984 Act contains an 
exception under which a taxpayer responsible for nuclear 
powerplant decommissioning may elect to deduct contributions 
made to a qualified nuclear decommissioning fund for future 
decommissioning costs. Taxpayers who do not elect this 
provision are subject to general tax accounting rules.

Qualified nuclear decommissioning fund

    A qualified nuclear decommissioning fund (a ``qualified 
fund'') is a segregated fund established by a taxpayer that is 
used exclusively for the payment of decommissioning costs, 
taxes on fund income, management costs of the fund, and for 
making investments. The income of the fund is taxed at a 
reduced rate of 20 percent for taxable years beginning after 
December 31, 1995.\57\
---------------------------------------------------------------------------
    \57\ As originally enacted in 1984, a qualified fund paid tax on 
its earnings at the top corporate rate and, as a result, there was no 
present-value tax benefit of making deductible contributions to a 
qualified fund. Also, as originally enacted, the funds in the trust 
could be invested only in certain low risk investments. Subsequent 
amendments to the provision have reduced the rate of tax on a qualified 
fund to 20 percent and removed the restrictions on the types of 
permitted investments that a qualified fund can make.
---------------------------------------------------------------------------
    Contributions to a qualified fund are deductible in the 
year made to the extent that these amounts were collected as 
part of the cost of service to ratepayers (the ``cost of 
service requirement'').\58\ Funds withdrawn by the taxpayer to 
pay for decommissioning costs are included in the taxpayer's 
income, but the taxpayer also is entitled to a deduction for 
decommissioning costs as economic performance for such costs 
occurs.
---------------------------------------------------------------------------
    \58\ Taxpayers are required to include in gross income customer 
charges for decommissioning costs (sec. 88).
---------------------------------------------------------------------------
    Accumulations in a qualified fund are limited to the amount 
required to fund decommissioning costs of a nuclear powerplant 
for the period during which the qualified fund is in existence 
(generally post-1984 decommissioning costs of a nuclear 
powerplant). For this purpose, decommissioning costs are 
considered to accrue ratably over a nuclear powerplant's 
estimated useful life. In order to prevent accumulations of 
funds over the remaining life of a nuclear powerplant in excess 
of those required to pay future decommissioning costs of such 
nuclear powerplant and to ensure that contributions to a 
qualified fund are not deducted more rapidly than level funding 
(taking into account an appropriate discount rate), taxpayers 
must obtain a ruling from the IRS to establish the maximum 
annual contribution that may be made to a qualified fund (the 
``ruling amount''). In certain instances (e.g., change in 
estimates), a taxpayer is required to obtain a new ruling 
amount to reflect updated information.
    A qualified fund may be transferred in connection with the 
sale, exchange or other transfer of the nuclear powerplant to 
which it relates. If the transferee is a regulated public 
utility and meets certain other requirements, the transfer will 
be treated as a nontaxable transaction. No gain or loss will be 
recognized on the transfer of the qualified fund and the 
transferee will take the transferor's basis in the fund.\59\ 
The transferee is required to obtain a new ruling amount from 
the IRS or accept a discretionary determination by the IRS.\60\
---------------------------------------------------------------------------
    \59\ Treas. reg. sec. 1.468A-6.
    \60\ Treas. reg. sec. 1.468A-6(f).
---------------------------------------------------------------------------

Nonqualified nuclear decommissioning funds

    Federal and State regulators may require utilities to set 
aside funds for nuclear decommissioning costs in excess of the 
amount allowed as a deductible contribution to a qualified 
fund. In addition, taxpayers may have set aside funds prior to 
the effective date of the qualified fund rules.\61\ The 
treatment of amounts set aside for decommissioning costs prior 
to 1984 varies. Some taxpayers may have received no tax benefit 
while others may have deducted such amounts or excluded such 
amounts from income. Since 1984, taxpayers have been required 
to include in gross income customer charges for decommissioning 
costs (sec. 88), and a deduction has not been allowed for 
amounts set aside to pay for decommissioning costs except 
through the use of a qualified fund. Income earned in a 
nonqualified fund is taxable to the fund's owner as it is 
earned.
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    \61\ These funds are generally referred to as ``nonqualified 
funds.''
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                           REASONS FOR CHANGE

    The Committee does not believe a utility should be denied 
the opportunity to contribute to a qualified fund simply 
because it operates in a deregulated environment. The Committee 
also believes that it is appropriate to permit all 
decommissioning costs associated with a nuclear powerplant to 
be funded through a qualified fund. In addition, the Committee 
recognizes the importance of providing clear and concise rules 
to minimize disputes between taxpayers and the IRS.

                        EXPLANATION OF PROVISION

Repeal of cost of service requirement

    The provision repeals the cost of service requirement for 
deductible contributions to a nuclear decommissioning fund. 
Thus, all taxpayers, including unregulated taxpayers, would be 
allowed a deduction for amounts contributed to a qualified 
fund.

Permit contributions to a qualified fund for pre-1984 decommissioning 
        costs

    The proposal also repeals the limitation that a qualified 
fund only accumulate an amount sufficient to pay for a nuclear 
powerplant's decommissioning costs incurred during the period 
that the qualified fund is in existence (generally post-1984 
decommissioning costs). Thus, any taxpayer is permitted to 
accumulate an amount sufficient to cover the present value of 
100 percent of a nuclear powerplant's estimated decommissioning 
costs in a qualified fund. The proposal does not change the 
requirement that contributions to a qualified fund not be 
deducted more rapidly than level funding.

Clarify treatment of transfers of qualified funds

    The provision clarifies the Federal income tax treatment of 
the transfer of a qualified fund. No gain or loss would be 
recognized to the transferor or the transferee (or the 
qualified fund) as a result of the transfer of a qualified fund 
in connection with the transfer of the power plant with respect 
to which such fund was established.

Exception to ruling amount for certain decommissioning costs

    The provision permits a taxpayer to make contributions to a 
qualified fund in excess of the ruling amount in one 
circumstance. Specifically, a taxpayer is permitted to 
contribute up to the present value of the amount required to 
fund a nuclear powerplant's decommissioning costs which under 
present law section 468A(d)(2)(A) is not permitted to be 
accumulated in a qualified fund (generally pre-1984 
decommissioning costs).\62\ It is anticipated that an amount 
that is permitted to be contributed under this special rule 
shall be determined using the estimate of total decommissioning 
costs used for purposes of determining the taxpayer's most 
recent ruling amount. Any amount transferred to the qualified 
fund under this special rule that has not previously been 
deducted, or excluded from gross income is allowed as a 
deduction over the remaining useful life of the nuclear 
powerplant.\63\ If a qualified fund that has received amounts 
under this rule is transferred to another person, that person 
will be entitled to the deduction at the same time and in the 
same manner as the transferor. Thus, if the transferor was not 
subject to tax at the time and thus would have been unable to 
use the deduction, the transferee will similarly not be able to 
utilize the deduction.
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    \62\ The ability to transfer property into a qualified fund under 
this special rule is available only to the extent the taxpayer has not 
obtained a new ruling amount incorporating the repeal of the limitation 
that a qualified fund only accumulate an amount sufficient to pay for 
decommissioning costs of a nuclear powerplant incurred during the 
period that the fund is in existence (generally post 1984 
decommissioning costs).
    \63\ A taxpayer recognizes no gain or loss on the contribution of 
property to a qualified fund under this special rule. The qualified 
fund will take a transferred (carryover) basis in such property. 
Correspondingly, a taxpayer's deduction (over the estimated life of the 
nuclear powerplant) is to be based on the adjusted tax basis of the 
property contributed rather than the fair market value of such 
property.
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                             EFFECTIVE DATE

    The provision is effective for taxable years beginning 
after date of enactment.

             B. Treatment of Certain Income of Cooperatives


(Sec. 602 of the bill and sec. 501 of the Code)

                              PRESENT LAW

In general

    Under present law, an entity must be operated on a 
cooperative basis in order to be treated as a cooperative for 
Federal income tax purposes. Although not defined by statute or 
regulation, the two principal criteria for determining whether 
an entity is operating on a cooperative basis are: (1) 
ownership of the cooperative by persons who patronize the 
cooperative; and (2) return of earnings to patrons in 
proportion to their patronage. The IRS requires that 
cooperatives must operate under the following principles: (1) 
subordination of capital in control over the cooperative 
undertaking and in ownership of the financial benefits from the 
cooperative; (2) democratic control by the members of the 
cooperative; (3) vesting in and allocation among the members of 
all excess of operating revenues over the expenses incurred to 
generate revenues in proportion to their participation in the 
cooperative (patronage); and (4) operation at cost (not 
operating for profit or below cost).\64\
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    \64\ Announcement 96-24, Proposed Examination Guidelines Regarding 
Rural Electric Cooperatives, 1996-16 I.R.B. 35.
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    In general, cooperative members are those who participate 
in the management of the cooperative and who share in patronage 
capital. As described below, income from the sale of electric 
energy by an electric cooperative may be member or non-member 
income to the cooperative, depending on the membership status 
of the purchaser. A municipal corporation may be a member of a 
cooperative.
    For Federal income tax purposes, a cooperative generally 
computes its income as if it were a taxable corporation, with 
one exception--the cooperative may exclude from its taxable 
income distributions of patronage dividends. In general, 
patronage dividends are the profits of the cooperative that are 
rebated to its patrons pursuant to a pre-existing obligation of 
the cooperative to do so. The rebate must be made in some 
equitable fashion on the basis of the quantity or value of 
business done with the cooperative.
    Except for tax-exempt farmers' cooperatives, cooperatives 
that are subject to the cooperative tax rules of subchapter T 
of the Code (sec. 1381, et seq.) are permitted a deduction for 
patronage dividends from their taxable income only to the 
extent of net income that is derived from transactions with 
patrons who are members of the cooperative (sec. 1382). The 
availability of such deductions from taxable income has the 
effect of allowing the cooperative to be treated like a conduit 
with respect to profits derived from transactions with patrons 
who are members of the cooperative.
    Cooperatives that qualify as tax-exempt farmers' 
cooperatives are permitted to exclude patronage dividends from 
their taxable income to the extent of all net income, including 
net income that is derived from transactions with patrons who 
are not members of the cooperative, provided the value of 
transactions with patrons who are not members of the 
cooperative does not exceed the value of transactions with 
patrons who are members of the cooperative (sec. 521).

Taxation of electric cooperatives exempt from subchapter T

    In general, the cooperative tax rules of subchapter T apply 
to any corporation operating on a cooperative basis (except 
mutual savings banks, insurance companies, other tax-exempt 
organizations, and certain utilities), including tax-exempt 
farmers' cooperatives (described in sec. 521(b)). However, 
subchapter T does not apply to an organization that is 
``engaged in furnishing electric energy, or providing telephone 
service, to persons in rural areas'' (sec. 1381(a)(2)(C)). 
Instead, electric cooperatives are taxed under rules that were 
generally applicable to cooperatives prior to the enactment of 
subchapter T in 1962. Under these rules, an electric 
cooperative can exclude patronage dividends from taxable income 
to the extent of all net income of the cooperative, including 
net income derived from transactions with patrons who are not 
members of the cooperative.\65\
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    \65\ See Rev. Rul. 83-135, 1983-2 C.B. 149.
---------------------------------------------------------------------------

Tax exemption of rural electric cooperatives

    Section 501(c)(12) provides an income tax exemption for 
rural electric cooperatives if at least 85 percent of the 
cooperative's income consists of amounts collected from members 
for the sole purpose of meeting losses and expenses of 
providing service to its members. The IRS takes the position 
that rural electric cooperatives also must comply with the 
fundamental cooperative principles described above in order to 
qualify for tax exemption under section 501(c)(12).\66\ The 85-
percent test is determined without taking into account any 
income from qualified pole rentals and cancellation of 
indebtedness income from the prepayment of a loan under 
sections 306A, 306B, or 311 of the Rural Electrification Act of 
1936 (as in effect on January 1, 1987). The exclusion for 
cancellation of indebtedness income applies to such income 
arising in 1987, 1988, or 1989 on debt that either originated 
with, or is guaranteed by, the Federal Government. Rural 
electric cooperatives generally are subject to the tax on 
unrelated trade or business income under section 511.
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    \66\ Rev. Rul. 72-36, 1972-1 C.B. 151.
---------------------------------------------------------------------------

                           REASONS FOR CHANGE

    The purpose of the 85-percent test under section 501(c)(12) 
is to ensure that the primary activities of a tax-exempt 
electric cooperative fulfill the statutory purpose of providing 
electricity services to the members of the cooperative. 
Similarly, the fundamental cooperative principles described 
above are the defining characteristics of a cooperative upon 
which the Federal tax rules condition conduit treatment.
    The Committee believes that the nature of an electric 
cooperative's activities does not change because it has income 
from open access transactions with non-members or from nuclear 
decommissioning transactions (as these terms are defined in the 
bill). Accordingly, the Committee believes that the 85-percent 
test for tax exemption under present law should be applied 
without regard to such income. The Committee intends that the 
term ``open access transaction'' shall be applied in a manner 
that allows an electric cooperative to carry out its statutory 
purpose in a restructured electric energy market environment 
without adversely impacting its tax-exempt status.
    For similar reasons, the Committee believes that the 85-
percent test for tax exemption under present law should be 
applied without regard to cancellation of indebtedness income 
from the prepayment of certain loans that are provided, 
insured, or guaranteed by the Federal government, as well as 
income from certain transactions that would otherwise qualify 
for deferred gain recognition under section 1031 or 1033.
    The Committee further believes that electric energy sales 
to non-members should not result in a loss of tax-exempt status 
or cooperative status to the extent that such sales are 
necessary to replace lost sales of electric energy to members 
as a result of restructuring of the electric energy industry. 
Accordingly, the Committee believes that replacement electric 
energy sales to non-members (defined as ``load loss 
transactions'' in the bill) should be treated, for a limited 
period of time, as member income in applying the 85-percent 
test for tax exemption of rural electric cooperatives. The 
Committee believes that such treatment also should apply for 
purposes of determining whether tax-exempt and taxable electric 
cooperatives comply with the fundamental cooperative 
principles. Finally, the Committee believes that income from 
replacement electric energy sales should not be subject to the 
tax on unrelated trade or business income under Code section 
511.

                        EXPLANATION OF PROVISION

Treatment of income from open access transactions

    The bill provides that income received or accrued by a 
rural electric cooperative from any ``open access transaction'' 
(other than income received or accrued directly or indirectly 
from a member of the cooperative) is excluded in determining 
whether a rural electric cooperative satisfies the 85-percent 
test for tax exemption under section 501(c)(12). The term 
``open access transaction'' is defined as--
          (1) The provision or sale of electric energy 
        transmission services or ancillary services on a 
        nondiscriminatory open access basis: (i) pursuant to an 
        open access transmission tariff filed with and approved 
        by the Federal Energy Regulatory Commission (``FERC'') 
        (including acceptable reciprocity tariffs), but only if 
        (in the case of a voluntarily filed tariff) the 
        cooperative files a report with FERC within 90 days of 
        enactment of this provision relating to whether or not 
        the cooperative will join a regional transmission 
        organization (``RTO''); or (ii) under an RTO agreement 
        approved by FERC (including an agreement providing for 
        the transfer of control--but not ownership--of 
        transmission facilities); \67\
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    \67\ Under this provision, references to FERC are treated as 
including references to the Public Utility Commission of Texas or the 
Rural Utilities Service.
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          (2) The provision or sale of electric energy 
        distribution services or ancillary services on a 
        nondiscriminatory open access basis to end-users served 
        by distribution facilities owned by the cooperative or 
        its members; or
          (3) The delivery or sale of electric energy on a 
        nondiscriminatory open access basis, provided that such 
        electric energy is generated by a generation facility 
        that is directly connected to distribution facilities 
        owned by the cooperative (or its members) which owns 
        the generation facility.
    For purposes of the 85-percent test, the bill also provides 
that income received or accrued by a rural electric cooperative 
from any ``open access transaction'' is treated as an amount 
collected from members for the sole purpose of meeting losses 
and expenses if the income is received or accrued indirectly 
from a member of the cooperative.

Treatment of income from nuclear decommissioning transactions

    The bill provides that income received or accrued by a 
rural electric cooperative from any ``nuclear decommissioning 
transaction'' also is excluded in determining whether a rural 
electric cooperative satisfies the 85-percent test for tax 
exemption under section 501(c)(12). The term ``nuclear 
decommissioning transaction'' is defined as--
          (1) Any transfer into a trust, fund, or instrument 
        established to pay any nuclear decommissioning costs if 
        the transfer is in connection with the transfer of the 
        cooperative's interest in a nuclear powerplant or 
        nuclear powerplant unit;
          (2) Any distribution from a trust, fund, or 
        instrument established to pay any nuclear 
        decommissioning costs; or
          (3) Any earnings from a trust, fund, or instrument 
        established to pay any nuclear decommissioning costs.

Treatment of income from asset exchange or conversion transactions

    The bill provides that gain realized by a tax-exempt rural 
electric cooperative from a voluntary exchange or involuntary 
conversion of certain property is excluded in determining 
whether a rural electric cooperative satisfies the 85-percent 
test for tax exemption under section 501(c)(12). This provision 
only applies to the extent that: (1) the gain would qualify for 
deferred recognition under section 1031 (relating to exchanges 
of property held for productive use or investment) or section 
1033 (relating to involuntary conversions); and (2) the 
replacement property that is acquired by the cooperative 
pursuant to section 1031 or section 1033 (as the case may be) 
constitutes property that is used, or to be used, for the 
purpose of generating, transmitting, distributing, or selling 
electricity or methane-based natural gas.

Treatment of cancellation of indebtedness income from prepayment of 
        certain loans

    The bill provides that income from the prepayment of any 
loan, debt, or obligation of a tax-exempt rural electric 
cooperative that is originated, insured, or guaranteed by the 
Federal Government under the Rural Electrification Act of 1936 
is excluded in determining whether the cooperative satisfies 
the 85-percent test for tax exemption under section 501(c)(12).

Treatment of income from load loss transactions

    Tax-exempt rural electric cooperatives.--The bill provides 
that income received or accrued by a tax-exempt rural electric 
cooperative from a ``load loss transaction'' is treated under 
501(c)(12) as income collected from members for the sole 
purpose of meeting losses and expenses of providing service to 
its members. Therefore, income from load loss transactions is 
treated as member income in determining whether a rural 
electric cooperative satisfies the 85-percent test for tax 
exemption under section 501(c)(12). The bill also provides that 
income from load loss transactions does not cause a tax-exempt 
electric cooperative to fail to be treated for Federal income 
tax purposes as a mutual or cooperative company under the 
fundamental cooperative principles described above.
    The term ``load loss transaction'' is generally defined as 
any wholesale or retail sale of electric energy (other than to 
a member of the cooperative) to the extent that the aggregate 
amount of such sales during a seven-year period beginning with 
the ``start-up year'' does not exceed the reduction in the 
amount of sales of electric energy during such period by the 
cooperative to members. The ``start-up year'' is defined as the 
calendar year which includes the date of enactment of this 
provision or, if later, at the election of the cooperative: (1) 
the first year that the cooperative offers nondiscriminatory 
open access; or (2) the first year in which at least 10 percent 
of the cooperative's sales of electric energy are to patrons 
who are not members of the cooperative.
    The bill also excludes income received or accrued by rural 
electric cooperatives from load loss transactions from the tax 
on unrelated trade or business income.
    Taxable electric cooperatives.--The bill provides that the 
receipt or accrual of income from load loss transactions by 
taxable electric cooperatives is treated as income from patrons 
who are members of the cooperative. Thus, income from a load 
loss transaction is excludible from the taxable income of a 
taxable electric cooperative if the cooperative distributes 
such income pursuant to a pre-existing contract to distribute 
the income to a patron who is not a member of the cooperative. 
The bill also provides that income from load loss transactions 
does not cause a taxable electric cooperative to fail to be 
treated for Federal income tax purposes as a mutual or 
cooperative company under the fundamental cooperative 
principles described above.

                             EFFECTIVE DATE

    This provision is effective for taxable years beginning 
after the date of enactment.

    C. Sales or Dispositions to Implement Federal Energy Regulatory 
           Commission or State Electric Restructuring Policy


(Sec. 603 of the bill and sec. 451 of the Code)

                              PRESENT LAW

    Generally, a taxpayer recognizes gain to the extent the 
sales price (and any other consideration received) exceeds the 
seller's basis in the property. The recognized gain is subject 
to current income tax unless the gain is deferred or not 
recognized under a special tax provision.

                           REASONS FOR CHANGE

    The Committee recognizes that electric deregulation has 
been occurring, and is continuing to occur, at both the Federal 
and State level. Federal and state energy regulators are 
calling for the ``unbundling'' of electric transmission assets 
held by vertically integrated utilities, with the transmission 
assets ultimately placed under the ownership or control of 
independent transmission providers (or other similarly-approved 
operators). This policy is intended to improve transmission 
management and facilitate the formation of competitive markets. 
To facilitate the implementation of these policy objectives, 
the Committee believes it is appropriate to assist taxpayers in 
moving forward with industry restructuring by providing a tax 
deferral for gain associated with certain dispositions of 
electric transmission assets.

                        EXPLANATION OF PROVISION

    The provision permits a taxpayer to elect to recognize gain 
from a qualifying electric transmission transaction ratably 
over an eight-year period beginning in the year of sale. A 
qualifying electric transmission transaction is the sale or 
other disposition of property used by the taxpayer in the trade 
or business of providing electric transmission services, or an 
ownership interest in such an entity, to an independent 
transmission company \68\ prior to January 1, 2008.
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    \68\ In general, an independent transmission company is defined as: 
(1) a regional transmission organization approved by the FERC; (2) a 
person (i) who the FERC determines under section 203 of the Federal 
Power Act is not a ``market participant'' and (ii) whose transmission 
facilities are placed under the operational control of a FERC-approved 
regional transmission organization before the close of the period 
specified in such authorization, but not later than January 1, 2008; or 
(3) in the case of facilities subject to the exclusive jurisdiction of 
the Public Utility Commission of Texas, a person who is approved by 
that commission as consistent with Texas state law regarding an 
independent transmission organization.
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    A taxpayer electing the application of the provision is 
required to attach a statement to that effect in the tax return 
for the taxable year in which the transaction takes place in 
the manner as the Secretary shall prescribe. The election shall 
be binding for that taxable year and all subsequent taxable 
years.\69\
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    \69\ The provision also provides that the installment sale rules 
shall not apply to any qualifying electric transmission transaction 
that elects the application of this provision.
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                             EFFECTIVE DATE

    The provision is effective for transactions occurring after 
the date of enactment.

                    TITLE VII--ADDITIONAL PROVISIONS


 A. Extension of Accelerated Depreciation and Wage Credit Benefits on 
                          Indian Reservations


(Sec. 701 of the bill and secs. 45A and 168(j) of the Code)

                              PRESENT LAW

    Present law includes the following tax incentives for 
businesses located within Indian reservations.

Accelerated depreciation

    With respect to certain property used in connection with 
the conduct of a trade or business within an Indian 
reservation, depreciation deductions under section 168(j) will 
be determined using the following recovery periods:

                                                                        
                                                                In years
3-year property...................................................     2
5-year property...................................................     3
7-year property...................................................     4
10-year property..................................................     6
15-year property..................................................     9
20-year property..................................................    12
Nonresidential real property......................................    22

    ``Qualified Indian reservation property'' eligible for 
accelerated depreciation includes property which is (1) used by 
the taxpayer predominantly in the active conduct of a trade or 
business within an Indian reservation, (2) not used or located 
outside the reservation on a regular basis, (3) not acquired 
(directly or indirectly) by the taxpayer from a person who is 
related to the taxpayer (within the meaning of section 
465(b)(3)(C)), and (4) described in the recovery-period table 
above. In addition, property is not ``qualified Indian 
reservation property'' if it is placed in service for purposes 
of conducting gaming activities. Certain ``qualified 
infrastructure property'' may be eligible for the accelerated 
depreciation even if located outside an Indian reservation, 
provided that the purpose of such property is to connect with 
qualified infrastructure property located within the 
reservation (e.g., roads, power lines, water systems, railroad 
spurs, and communications facilities).
    The depreciation deduction allowed for regular tax purposes 
is also allowed for purposes of the alternative minimum tax. 
The accelerated depreciation for Indian reservations is 
available with respect to property placed in service on or 
after January 1, 1994, and before January 1, 2005.

Indian employment credit

    In general, a credit against income tax liability is 
allowed to employers for the first $20,000 of qualified wages 
and qualified employee health insurance costs paid or incurred 
by the employer with respect to certain employees (sec. 45A). 
The credit is equal to 20 percent of the excess of eligible 
employee qualified wages and health insurance costs during the 
current year over the amount of such wages and costs incurred 
by the employer during 1993. The credit is an incremental 
credit, such that an employer's current-year qualified wages 
and qualified employee health insurance costs (up to $20,000 
per employee) are eligible for the credit only to the extent 
that the sum of such costs exceeds the sum of comparable costs 
paid during 1993. No deduction is allowed for the portion of 
the wages equal to the amount of the credit.
    Qualified wages means wages paid or incurred by an employer 
for services performed by a qualified employee. A qualified 
employee means any employee who is an enrolled member of an 
Indian tribe or the spouse of an enrolled member of an Indian 
tribe, who performs substantially all of the services within an 
Indian reservation, and whose principal place of abode while 
performing such services is on or near the reservation in which 
the services are performed. An employee will not be treated as 
a qualified employee for any taxable year of the employer if 
the total amount of wages paid or incurred by the employer with 
respect to such employee during the taxable year exceeds an 
amount determined at an annual rate of $30,000 (adjusted for 
inflation after 1993).
    The wage credit is available for wages paid or incurred on 
or after January 1, 1994, in taxable years that begin before 
December 31, 2004.

                           REASONS FOR CHANGE

    The Committee recognizes the significant potential on 
Indian lands for development of energy resources and other 
projects. The special nature of Native American tribes and high 
poverty rates in certain areas in some circumstances create 
unique barriers to development that these incentives help 
overcome. The Committee understands that a significant portion 
of these incentives are used in development of energy projects.
    The Committee concluded that extending the accelerated 
depreciation and wage credit tax incentives within Indian 
reservations will both increase the supply of energy and expand 
business and employment opportunities in these areas.

                        EXPLANATION OF PROVISION

Accelerated depreciation

    The provision extends the accelerated depreciation 
incentive for one year (to property placed in service before 
January 1, 2006).

Indian employment credit

    The provision extends the Indian employment credit 
incentive for one year (to taxable years beginning before 
January 1, 2006).

                             EFFECTIVE DATE

    The provision is effective on the date of enactment.

                              B. GAO Study


(Sec. 702 of the bill)

                              PRESENT LAW

    Present law does not require study of the present law 
provisions relating to clean fuel vehicles and electric 
vehicles.

                           REASONS FOR CHANGE

    The Committee believes it is important to gain information 
on the value of benefits compared to costs in order to make 
informed decisions regarding the propriety of special tax 
treatment of various products or technologies designed to 
reduce dependence on petroleum, reduce emissions of pollutants, 
or to promote energy conservation. The Committee believes it is 
important to have measures of the amount of conservation or 
reduction in pollution that results from provisions designed to 
achieve such results.

                        EXPLANATION OF PROVISION

    The bill directs the Comptroller General to undertake an 
ongoing analysis of the effectiveness of the tax credits 
allowed to alternative motor vehicles and the tax credits 
allowed to various alternative fuels under Title II of the bill 
and the tax credits and enhanced deductions allowed for energy 
conservation and efficiency under Title III of the bill. The 
studies should estimate the energy savings and reductions in 
pollutants achieved from taxpayer utilization of these 
provisions. The studies should estimate the dollar value of the 
benefits of reduced energy consumption and reduced air 
pollution in comparison to estimates of the revenue cost of 
these provisions to the U.S. Treasury. The studies should 
include an analysis of the distribution of the taxpayers who 
utilize these provisions by income and other relevant 
characteristics.
    The bill directs the Comptroller General to submit annual 
reports to Congress beginning not later than December 31, 2004.

                             EFFECTIVE DATE

    The provision is effective on the date of enactment.

C. Repeal Certain Excise Taxes on Rail Diesel Fuel and Inland Waterway 
                              Barge Fuels


(Sec. 703 of the bill and secs. 4041 and 4042 of the Code)

                              PRESENT LAW

    Under present law, diesel fuel used in trains is subject to 
a 4.4-cents-per gallon excise tax. Revenues from 4.3 cents per 
gallon of this excise tax are retained in the General Fund of 
the Treasury. The remaining 0.1-cent per gallon is deposited in 
the Leaking Underground Storage Tank (``LUST'') Trust Fund.\70\
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    \70\ The 0.1 cent per gallon for the LUST Trust Fund applies so 
long as there is a tax imposed on rail diesel and the LUST Trust Fund 
tax is in effect (secs. 4041(d)(1) and (3), and 4081(d)(3)).
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    Similarly, fuel used in barges operating on the designated 
inland waterways system is subject to a 4.3-cents-per-gallon 
General Fund excise tax. This tax is in addition to the 20.1-
cents-per-gallon tax rates that is imposed on fuels used in 
these barges to fund the Inland Waterways Trust Fund and the 
Leaking Underground Storage Tank Trust Fund.
    In both cases, the 4.3-cents-per-gallon excise tax rates 
are permanent. The LUST Trust Fund tax is scheduled to expire 
after March 31, 2005.

                           REASONS FOR CHANGE

    The Committee notes that in 1993, the Congress enacted the 
present-law 4.3-cents-per-gallon excise tax on motor fuels as a 
deficit reduction measure, with the receipts payable to the 
General Fund. Since that time, the Congress has diverted the 
4.3-cents-per-gallon excise tax for most uses to specified 
trust funds that provide benefits for those motor fuel users 
who ultimately bear the burden of these taxes. As a result, the 
Committee finds that generally only rail and barge operators 
remain as motor fuel users subject to the 4.3-cents-per-gallon 
excise tax who receive no benefits from a dedicated trust fund 
as a result of their tax burden. The Committee observes that 
rail and barge operators compete with other transportation 
service providers who benefit from expenditures paid from 
dedicated trust funds. The Committee concludes that it is 
inequitable and distortive of transportation decisions to 
continue to impose the 4.3-cents-per-gallon excise tax on 
diesel fuel used in trains and barges.

                        EXPLANATION OF PROVISION

    The 4.3-cents-per-gallon General Fund excise tax rate on 
diesel fuel used in trains and fuels used in barges operating 
on the designated inland waterways system is repealed. The 0.1 
cent per gallon for the Leaking Underground Storage Tank 
(``LUST'') Trust Fund is unchanged by the provision.

                             EFFECTIVE DATE

    The proposal is effective on January 1, 2004.

       D. Modify Research Credit for Research Relating to Energy


(Sec. 704 of the bill and sec. 41 of the Code)

                              PRESENT LAW

General rule

    Section 41 provides for a research tax credit equal to 20 
percent of the amount by which a taxpayer's qualified research 
expenses for a taxable year exceed its base amount for that 
year. The research tax credit is scheduled to expire and 
generally will not apply to amounts paid or incurred after June 
30, 2004.
    A 20-percent research tax credit also applied to the excess 
of (1) 100 percent of corporate cash expenses (including grants 
or contributions) paid for basic research conducted by 
universities (and certain nonprofit scientific research 
organizations) over (2) the sum of (a) the greater of two 
minimum basic research floors plus (b) an amount reflecting any 
decrease in nonresearch giving to universities by the 
corporation as compared to such giving during a fixed-base 
period, as adjusted for inflation. This separate credit 
computation is commonly referred to as the university basic 
research credit (see sec. 41(e)).

Alternative incremental research credit regime

    Taxpayers are allowed to elect an alternative incremental 
research credit regime.\71\ If a taxpayer elects to be subject 
to this alternative regime, the taxpayer is assigned a three-
tiered fixed-base percentage (that is lower than the fixed-base 
percentage otherwise applicable under present law) and the 
credit rate likewise is reduced. Under the alternative credit 
regime, a credit rate of 2.65 percent applies to the extent 
that a taxpayer's current-year research expenses exceed a base 
amount computed by using a fixed-base percentage of one percent 
(i.e., the base amount equals one percent of the taxpayer's 
average gross receipts for the four preceding years) but do not 
exceed a base amount computed by using a fixed-base percentage 
of 1.5 percent. A credit rate of 3.2 percent applies to the 
extent that a taxpayer's current-year research expenses exceed 
a base amount computed by using a fixed-base percentage of 1.5 
percent but do not exceed a base amount computed by using a 
fixed-base percentage of two percent. A credit rate of 3.75 
percent applies to the extent that a taxpayer's current-year 
research expenses exceed a base amount computed by using a 
fixed-base percentage of two percent. An election to be subject 
to this alternative incremental credit regime may be made for 
any taxable year beginning after June 30, 1996, and such an 
election applies to that taxable year and all subsequent years 
unless revoked with the consent of the Secretary of the 
Treasury.
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    \71\ Sec. 41(c)(4).
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Eligible expenses

    Qualified research expenses eligible for the research tax 
credit consist of: (1) in-house expenses of the taxpayer for 
wages and supplies attributable to qualified research; (2) 
certain time-sharing costs for computer use in qualified 
research; and (3) 65 percent of amounts paid or incurred by the 
taxpayer to certain other persons for qualified research 
conducted on the taxpayer's behalf (so-called contract research 
expenses). In the case of amounts paid to a research 
consortium, 75 percent of amounts paid for qualified research 
is treated as qualified research expenses eligible for the 
research credit (rather than 65 percent under the general rule) 
if (1) such research consortium is a tax-exempt organization 
that is described in section 501(c)(3) (other than a private 
foundation) or section 501(c)(6) and is organized and operated 
primarily to conduct scientific research, and (2) such 
qualified research is conducted by the consortium on behalf of 
the taxpayer and one or more persons not related to the 
taxpayer.
    To be eligible for the credit, the research must not only 
satisfy the requirements of present-law section 174 for the 
deduction for research expenses, but must be undertaken for the 
purpose of discovering information that is technological in 
nature, the application of which is intended to be useful in 
the development of a new or improved business component of the 
taxpayer, and substantially all of the activities of which must 
constitute elements of a process of experimentation for 
functional aspects, performance, reliability, or quality of a 
business component.

                           REASONS FOR CHANGE

    The Committee believes that research into energy production 
and energy conservation will help reduce pollution and enhance 
energy independence in the future.

                        EXPLANATION OF PROVISION

    The bill modifies the present-law research credit as it 
applies to qualified energy research. In particular, the 
provision provides that the taxpayer may claim a credit equal 
to 20 percent of the taxpayer's expenditures on qualified 
energy research undertaken by an energy research 
consortium.\72\ The amount of credit claimed is determined only 
by regard to such expenditures by the taxpayer within the 
taxable year. Unlike the general rule for the research credit, 
the 20-percent credit for research by an energy research 
consortium applies to all such expenditures, not only those in 
excess of a base amount however determined. An energy research 
consortium is a qualified research consortium as under present 
law that also is organized and operated primarily to conduct 
energy research and development in the public interest and to 
which at least five unrelated persons paid, or incurred 
amounts, to such organization within the calendar year. In 
addition, to be a qualified energy research consortium no 
single person shall pay or incur more than 50 percent of the 
total amounts received by the research consortium during the 
calendar year.
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    \72\ Allowable expenditures for the purpose of the credit include 
contributions to an energy research consortium.
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    The bill also provides that 100 percent of amounts paid or 
incurred by the taxpayer to eligible small businesses, 
universities, and Federal for qualified energy research would 
constitute qualified research expenses as contract research 
expenses, rather than 65 percent of qualified research 
expenditures allowed under present law. An eligible small 
business for this purpose is a business in which the taxpayer 
does not own a 50 percent or greater interest and the business 
has employed, on average, 500 or fewer employees in the two 
preceding calendar years.
    Qualified energy research expenditures are expenditures 
that would otherwise qualify for the research credit under 
present law and relate to the production, supply, and 
conservation of energy, including otherwise qualifying research 
expenditures related to alternative energy sources or the use 
of alternative energy sources. For example, research relating 
to hydrogen fuel cell vehicles would qualify under this 
provision, if the research expenditures otherwise satisfy the 
criteria of present-law sec. 41. Likewise, otherwise qualifying 
research undertaken to improve the energy-efficiency of 
lighting would qualify under this provision.

                             EFFECTIVE DATE

    The provision is effective for amounts paid or incurred 
after the date of enactment in taxable years ending after such 
date.

                     TITLE VIII--REVENUE PROVISIONS


             A. Provisions Designed to Curtail Tax Shelters


1. Penalty for failure to disclose reportable transactions (sec. 801 of 
        the bill and new sec. 6707A of the Code)

                              PRESENT LAW

    Regulations under section 6011 require a taxpayer to 
disclose with its tax return certain information with respect 
to each ``reportable transaction'' in which the taxpayer 
participates.\73\
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    \73\ On February 27, 2003, the Treasury Department and the IRS 
released final regulations regarding the disclosure of reportable 
transactions. In general, the regulations are effective for 
transactions entered into on or after February 28, 2003.
    The discussion of present law refers to the new regulations. The 
rules that apply with respect to transactions entered into on or before 
February 28, 2003, are contained in Treas. Reg. sec. 1.6011-4T in 
effect on the date the transaction was entered into.
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    There are six categories of reportable transactions. The 
first category is any transaction that is the same as (or 
substantially similar to) \74\ a transaction that is specified 
by the Treasury Department as a tax avoidance transaction whose 
tax benefits are subject to disallowance under present law 
(referred to as a ``listed transaction'').\75\
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    \74\ The regulations clarify that the term ``substantially 
similar'' includes any transaction that is expected to obtain the same 
or similar types of tax consequences and that is either factually 
similar or based on the same or similar tax strategy. Further, the term 
must be broadly construed in favor of disclosure. Treas. Reg. sec. 1-
6011-4(c)(4).
    \75\ Treas. Reg. sec. 1.6011-4(b)(2).
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    The second category is any transaction that is offered 
under conditions of confidentiality. In general, if a 
taxpayer's disclosure of the structure or tax aspects of the 
transaction is limited in any way by an express or implied 
understanding or agreement with or for the benefit of any 
person who makes or provides a statement, oral or written, as 
to the potential tax consequences that may result from the 
transaction, it is considered offered under conditions of 
confidentiality (whether or not the understanding is legally 
binding).\76\
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    \76\ Treas. Reg. sec. 1.6011-4(b)(3).
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    The third category of reportable transactions is any 
transaction for which (1) the taxpayer has the right to a full 
or partial refund of fees if the intended tax consequences from 
the transaction are not sustained or, (2) the fees are 
contingent on the intended tax consequences from the 
transaction being sustained.\77\
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    \77\ Treas. Reg. sec. 1.6011-4(b)(4).
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    The fourth category of reportable transactions relates to 
any transaction resulting in a taxpayer claiming a loss (under 
section 165) of at least (1) $10 million in any single year or 
$20 million in any combination of years by a corporate taxpayer 
or a partnership with only corporate partners; (2) $2 million 
in any single year or $4 million in any combination of years by 
all other partnerships, S corporations, trusts, and 
individuals; or (3) $50,000 in any single year for individuals 
or trusts if the loss arises with respect to foreign currency 
translation losses.\78\
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    \78\ Treas. Reg. sec. 1.6011-4(b)(5). IRS Rev. Proc. 2003-24, 2003-
11 I.R.B. 599, exempts certain types of losses from this reportable 
transaction category.
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    The fifth category of reportable transactions refers to any 
transaction done by certain taxpayers \79\ in which the tax 
treatment of the transaction differs (or is expected to differ) 
by more than $10 million from its treatment for book purposes 
(using generally accepted accounting principles) in any 
year.\80\
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    \79\ The significant book-tax category applies only to taxpayers 
that are reporting companies under the Securities Exchange Act of 1934 
or business entities that have $250 million or more in gross assets.
    \80\ Treas. Reg. sec. 1.6011-4(b)(6). IRS Rev. Proc. 2003-25, 2003-
11 I.R.B. 601, exempts certain types of transactions from this 
reportable transaction category.
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    The final category of reportable transactions is any 
transaction that results in a tax credit exceeding $250,000 
(including a foreign tax credit) if the taxpayer holds the 
underlying asset for less than 45 days.\81\
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    \81\ Treas. Reg. sec. 1.6011-4(b)(7).
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    Under present law, there is no specific penalty for failing 
to disclose a reportable transaction; however, such a failure 
may jeopardize a taxpayer's ability to claim that any income 
tax understatement attributable to such undisclosed transaction 
is due to reasonable cause, and that the taxpayer acted in good 
faith.\82\
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    \82\ Section 6664(c) provides that a taxpayer can avoid the 
imposition of a section 6662 accuracy-related penalty in cases where 
the taxpayer can demonstrate that there was reasonable cause for the 
underpayment and that the taxpayer acted in good faith. On December 31, 
2002, the Treasury Department and IRS issued proposed regulations under 
sections 6662 and 6664 (REG-126016-01) that limit the defenses 
available to the imposition of an accuracy-related penalty in 
connection with a reportable transaction when the transaction is not 
disclosed.
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                           REASONS FOR CHANGE

    The Committee is aware that individuals and corporations 
are increasingly using sophisticated transactions to avoid or 
evade Federal income tax.\83\ Such a phenomenon could pose a 
serious threat to the efficacy of the tax system because of 
both the potential loss of revenue and the potential threat to 
the integrity and perceived fairness of the self-assessment 
system.
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    \83\ In this regard, the Committee has concerns with the outcomes 
and rationales used by courts in some recent decisions involving tax-
motivated transactions. For a more detailed discussion of recent court 
decisions and other developments regarding tax shelters, see Joint 
Committee on Taxation, Background and Present Law Relating to Tax 
Shelters (JCX 19-02), March 19, 2002.
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    The Committee over two years ago began working on 
legislation to address this significant compliance problem. In 
addition, the Treasury Department, using the tools available, 
issued regulations requiring disclosure of certain transactions 
and requiring organizers and promoters of tax-engineered 
transactions to maintain customer lists and make these lists 
available to the IRS. Nevertheless, the Committee believes that 
additional legislation is needed to provide the Treasury 
Department with additional tools to assist its efforts to 
curtail abusive transactions. Moreover, the Committee believes 
that a penalty for failing to make the required disclosures, 
when the imposition of such penalty is not dependent on the tax 
treatment of the underlying transaction ultimately being 
sustained, will provide an additional incentive for taxpayers 
to satisfy their reporting obligations under the new disclosure 
provisions.

                        EXPLANATION OF PROVISION

In general

    The bill creates a new penalty for any person who fails to 
include with any return or statement any required information 
with respect to a reportable transaction. The new penalty 
applies without regard to whether the transaction ultimately 
results in an understatement of tax, and applies in addition to 
any accuracy-related penalty that may be imposed.

Transactions to be disclosed

    The bill does not define the terms ``listed transaction'' 
\84\ or ``reportable transaction,'' nor does the bill explain 
the type of information that must be disclosed in order to 
avoid the imposition of a penalty. Rather, the bill authorizes 
the Treasury Department to define a ``listed transaction'' and 
a ``reportable transaction'' under section 6011.
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    \84\ The provision states that, except as provided in regulations, 
a listed transaction means a reportable transaction, which is the same 
as, or substantially similar to, a transaction specifically identified 
by the Secretary as a tax avoidance transaction for purposes of section 
6011. For this purpose, it is expected that the definition of 
``substantially similar'' will be the definition used in Treas. Reg. 
sec. 1.6011-4(c)(4). However, the Secretary may modify this definition 
(as well as the definitions of ``listed transaction'' and ``reportable 
transactions'') as appropriate.
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Penalty rate

    The penalty for failing to disclose a reportable 
transaction is $50,000. The amount is increased to $100,000 if 
the failure is with respect to a listed transaction. For large 
entities and high net worth individuals, the penalty amount is 
doubled (i.e., $100,000 for a reportable transaction and 
$200,000 for a listed transaction). The penalty cannot be 
waived with respect to a listed transaction. As to reportable 
transactions, the penalty can be rescinded (or abated) only if: 
(1) the taxpayer on whom the penalty is imposed has a history 
of complying with the Federal tax laws, (2) it is shown that 
the violation is due to an unintentional mistake of fact, (3) 
imposing the penalty would be against equity and good 
conscience, and (4) rescinding the penalty would promote 
compliance with the tax laws and effective tax administration. 
The authority to rescind the penalty can only be exercised by 
the IRS Commissioner personally or the head of the Office of 
Tax Shelter Analysis. Thus, the penalty cannot be rescinded by 
a revenue agent, an Appeals officer, or any other IRS 
personnel. The decision to rescind a penalty must be 
accompanied by a record describing the facts and reasons for 
the action and the amount rescinded. There will be no taxpayer 
right to appeal a refusal to rescind a penalty. The IRS also is 
required to submit an annual report to Congress summarizing the 
application of the disclosure penalties and providing a 
description of each penalty rescinded under this provision and 
the reasons for the rescission.
    A ``large entity'' is defined as any entity with gross 
receipts in excess of $10 million in the year of the 
transaction or in the preceding year. A ``high net worth 
individual'' is defined as any individual whose net worth 
exceeds $2 million, based on the fair market value of the 
individual's assets and liabilities immediately before entering 
into the transaction.
    A public entity that is required to pay a penalty for 
failing to disclose a listed transaction (or is subject to an 
understatement penalty attributable to a non-disclosed listed 
transaction or a non-disclosed reportable avoidance transaction 
\85\) must disclose the imposition of the penalty in reports to 
the Securities and Exchange Commission for such period as the 
Secretary shall specify. The bill applies without regard to 
whether the taxpayer determines the amount of the penalty to be 
material to the reports in which the penalty must appear, and 
treats any failure to disclose a transaction in such reports as 
a failure to disclose a listed transaction. A taxpayer must 
disclose a penalty in reports to the Securities and Exchange 
Commission once the taxpayer has exhausted its administrative 
and judicial remedies with respect to the penalty (or if 
earlier, when paid).
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    \85\ A reportable avoidance transaction is a reportable transaction 
with a significant tax avoidance purpose.
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                             EFFECTIVE DATE

    The bill is effective for returns and statements the due 
date for which is after the date of enactment.

2. Modifications to the accuracy-related penalties for listed 
        transactions and reportable transactions having a significant 
        tax avoidance purpose (sec. 802 of the bill and new sec. 6662A 
        of the Code)

                              PRESENT LAW

    The accuracy-related penalty applies to the portion of any 
underpayment that is attributable to (1) negligence, (2) any 
substantial understatement of income tax, (3) any substantial 
valuation misstatement, (4) any substantial overstatement of 
pension liabilities, or (5) any substantial estate or gift tax 
valuation understatement. If the correct income tax liability 
exceeds that reported by the taxpayer by the greater of 10 
percent of the correct tax or $5,000 ($10,000 in the case of 
corporations), then a substantial understatement exists and a 
penalty may be imposed equal to 20 percent of the underpayment 
of tax attributable to the understatement.\86\ The amount of 
any understatement generally is reduced by any portion 
attributable to an item if (1) the treatment of the item is 
supported by substantial authority, or (2) facts relevant to 
the tax treatment of the item were adequately disclosed and 
there was a reasonable basis for its tax treatment.\87\
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    \86\ Sec. 6662.
    \87\ Sec. 6662(d)(2)(B).
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    Special rules apply with respect to tax shelters.\88\ For 
understatements by non-corporate taxpayers attributable to tax 
shelters, the penalty may be avoided only if the taxpayer 
establishes that, in addition to having substantial authority 
for the position, the taxpayer reasonably believed that the 
treatment claimed was more likely than not the proper treatment 
of the item. This reduction in the penalty is unavailable to 
corporate tax shelters.
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    \88\ Sec. 6662(d)(2)(C).
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    The understatement penalty generally is abated (even with 
respect to tax shelters) in cases in which the taxpayer can 
demonstrate that there was ``reasonable cause'' for the 
underpayment and that the taxpayer acted in good faith.\89\ The 
relevant regulations provide that reasonable cause exists where 
the taxpayer ``reasonably relies in good faith on an opinion 
based on a professional tax advisor's analysis of the pertinent 
facts and authorities [that] * * * unambiguously concludes that 
there is a greater than 50-percent likelihood that the tax 
treatment of the item will be upheld if challenged'' by the 
IRS.\90\
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    \89\ Sec. 6664(c).
    \90\ Treas. Reg. sec. 1.6662-4(g)(4)(i)(B); Treas. Reg. sec. 
1.6664-4(c).
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                           REASONS FOR CHANGE

    Because the Treasury shelter initiative emphasizes 
combating abusive tax avoidance transactions by requiring 
increased disclosure of such transactions by all parties 
involved, the Committee believes that taxpayers should be 
subject to a strict liability penalty on an understatement of 
tax that is attributable to non-disclosed listed transactions 
or non-disclosed reportable transactions that have a 
significant purpose of tax avoidance. Furthermore, in order to 
deter taxpayers from entering into tax avoidance transactions, 
the Committee believes that a more meaningful (but less 
stringent) accuracy-related penalty should apply to such 
transactions even when disclosed.

                        EXPLANATION OF PROVISION

In general

    The bill modifies the present-law accuracy related penalty 
by replacing the rules applicable to tax shelters with a new 
accuracy-related penalty that applies to listed transactions 
and reportable transactions with a significant tax avoidance 
purpose (hereinafter referred to as a ``reportable avoidance 
transaction'').\91\ The penalty rate and defenses available to 
avoid the penalty vary depending on whether the transaction was 
adequately disclosed.
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    \91\ The terms ``reportable transaction'' and ``listed 
transaction'' have the same meanings as used for purposes of the 
penalty for failing to disclose reportable transactions.
---------------------------------------------------------------------------
            Disclosed transactions
    In general, a 20-percent accuracy-related penalty is 
imposed on any understatement attributable to an adequately 
disclosed listed transaction or reportable avoidance 
transaction. The only exception to the penalty is if the 
taxpayer satisfies a more stringent reasonable cause and good 
faith exception (hereinafter referred to as the ``strengthened 
reasonable cause exception''), which is described below. The 
strengthened reasonable cause exception is available only if 
the relevant facts affecting the tax treatment are adequately 
disclosed, there is or was substantial authority for the 
claimed tax treatment, and the taxpayer reasonably believed 
that the claimed tax treatment was more likely than not the 
proper treatment.
            Undisclosed transactions
    If the taxpayer does not adequately disclose the 
transaction, the strengthened reasonable cause exception is not 
available (i.e., a strict-liability penalty applies), and the 
taxpayer is subject to an increased penalty rate equal to 30 
percent of the understatement.
    In addition, a public entity that is required to pay the 30 
percent penalty must disclose the imposition of the penalty in 
reports to the SEC for such periods as the Secretary shall 
specify. The disclosure to the SEC applies without regard to 
whether the taxpayer determines the amount of the penalty to be 
material to the reports in which the penalty must appear, and 
any failure to disclose such penalty in the reports is treated 
as a failure to disclose a listed transaction. A taxpayer must 
disclose a penalty in reports to the SEC once the taxpayer has 
exhausted its administrative and judicial remedies with respect 
to the penalty (or if earlier, when paid).
    Once the 30 percent penalty has been included in the 
Revenue Agent Report, the penalty cannot be compromised for 
purposes of a settlement without approval of the Commissioner 
personally or the head of the Office of Tax Shelter Analysis. 
Furthermore, the IRS is required to submit an annual report to 
Congress summarizing the application of this penalty and 
providing a description of each penalty compromised under this 
provision and the reasons for the compromise.

Determination of the understatement amount

    The penalty is applied to the amount of any understatement 
attributable to the listed or reportable avoidance transaction 
without regard to other items on the tax return. For purposes 
of this bill, the amount of the understatement is determined as 
the sum of (1) the product of the highest corporate or 
individual tax rate (as appropriate) and the increase in 
taxable income resulting from the difference between the 
taxpayer's treatment of the item and the proper treatment of 
the item (without regard to other items on the tax return),\92\ 
and (2) the amount of any decrease in the aggregate amount of 
credits which results from a difference between the taxpayer's 
treatment of an item and the proper tax treatment of such item.
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    \92\ For this purpose, any reduction in the excess of deductions 
allowed for the taxable year over gross income for such year, and any 
reduction in the amount of capital losses which would (without regard 
to section 1211) be allowed for such year, shall be treated as an 
increase in taxable income.
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    Except as provided in regulations, a taxpayer's treatment 
of an item shall not take into account any amendment or 
supplement to a return if the amendment or supplement is filed 
after the earlier of when the taxpayer is first contacted 
regarding an examination of the return or such other date as 
specified by the Secretary.

Strengthened reasonable cause exception

    A penalty is not imposed under the bill with respect to any 
portion of an understatement if it shown that there was 
reasonable cause for such portion and the taxpayer acted in 
good faith. Such a showing requires (1) adequate disclosure of 
the facts affecting the transaction in accordance with the 
regulations under section 6011,\93\ (2) that there is or was 
substantial authority for such treatment, and (3) that the 
taxpayer reasonably believed that such treatment was more 
likely than not the proper treatment. For this purpose, a 
taxpayer will be treated as having a reasonable belief with 
respect to the tax treatment of an item only if such belief (1) 
is based on the facts and law that exist at the time the tax 
return (that includes the item) is filed, and (2) relates 
solely to the taxpayer's chances of success on the merits and 
does not take into account the possibility that (a) a return 
will not be audited, (b) the treatment will not be raised on 
audit, or (c) the treatment will be resolved through settlement 
if raised.
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    \93\ See the previous discussion regarding the penalty for failing 
to disclose a reportable transaction.
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    A taxpayer may (but is not required to) rely on an opinion 
of a tax advisor in establishing its reasonable belief with 
respect to the tax treatment of the item. However, a taxpayer 
may not rely on an opinion of a tax advisor for this purpose if 
the opinion (1) is provided by a ``disqualified tax advisor,'' 
or (2) is a ``disqualified opinion.''
            Disqualified tax advisor
    A disqualified tax advisor is any advisor who (1) is a 
material advisor \94\ and who participates in the organization, 
management, promotion or sale of the transaction or is related 
(within the meaning of section 267 or 707) to any person who so 
participates, (2) is compensated directly or indirectly \95\ by 
a material advisor with respect to the transaction, (3) has a 
fee arrangement with respect to the transaction that is 
contingent on all or part of the intended tax benefits from the 
transaction being sustained, or (4) as determined under 
regulations prescribed by the Secretary, has a continuing 
financial interest with respect to the transaction.
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    \94\ The term ``material advisor'' (defined below in connection 
with the new information filing requirements for material advisors) 
means any person who provides any material aid, assistance, or advice 
with respect to organizing, promoting, selling, implementing, or 
carrying out any reportable transaction, and who derives gross income 
in excess of $50,000 in the case of a reportable transaction 
substantially all of the tax benefits from which are provided to 
natural persons ($250,000 in any other case).
    \95\ This situation could arise, for example, when an advisor has 
an arrangement or understanding (oral or written) with an organizer, 
manager, or promoter of a reportable transaction that such party will 
recommend or refer potential participants to the advisor for an opinion 
regarding the tax treatment of the transaction.
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    Organization, management, promotion or sale of a 
transaction.--A material advisor is considered as participating 
in the ``organization'' of a transaction if the advisor 
performs acts relating to the development of the transaction. 
This may include, for example, preparing documents (1) 
establishing a structure used in connection with the 
transaction (such as a partnership agreement), (2) describing 
the transaction (such as an offering memorandum or other 
statement describing the transaction), or (3) relating to the 
registration of the transaction with any federal, state or 
local government body.\96\ Participation in the ``management'' 
of a transaction means involvement in the decision-making 
process regarding any business activity with respect to the 
transaction. Participation in the ``promotion or sale'' of a 
transaction means involvement in the marketing or solicitation 
of the transaction to others. Thus, an advisor who provides 
information about the transaction to a potential participant is 
involved in the promotion or sale of a transaction, as is any 
advisor who recommends the transaction to a potential 
participant.
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    \96\ An advisor should not be treated as participating in the 
organization of a transaction if the advisor's only involvement with 
respect to the organization of the transaction is the rendering of an 
opinion regarding the tax consequences of such transaction. However, 
such an advisor may be a ``disqualified tax advisor'' with respect to 
the transaction if the advisor participates in the management, 
promotion or sale of the transaction (or if the advisor is compensated 
by a material advisor, has a fee arrangement that is contingent on the 
tax benefits of the transaction, or as determined by the Secretary, has 
a continuing financial interest with respect to the transaction).
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            Disqualified opinion
    An opinion may not be relied upon if the opinion (1) is 
based on unreasonable factual or legal assumptions (including 
assumptions as to future events), (2) unreasonably relies upon 
representations, statements, finding or agreements of the 
taxpayer or any other person, (3) does not identify and 
consider all relevant facts, or (4) fails to meet any other 
requirement prescribed by the Secretary.

Coordination with other penalties

    Any understatement upon which a penalty is imposed under 
this bill is not subject to the accuracy-related penalty under 
section 6662. However, such understatement is included for 
purposes of determining whether any understatement (as defined 
in sec. 6662(d)(2)) is a substantial understatement as defined 
under section 6662(d)(1).
    The penalty imposed under this provision shall not apply to 
any portion of an understatement to which a fraud penalty is 
applied under section 6663.

                             EFFECTIVE DATE

    The bill is effective for taxable years ending after the 
date of enactment.

3. Tax shelter exception to confidentiality privileges relating to 
        taxpayer communications (sec. 803 of the bill and sec. 7525 of 
        the Code)

                              PRESENT LAW

    In general, a common law privilege of confidentiality 
exists for communications between an attorney and client with 
respect to the legal advice the attorney gives the client. The 
Code provides that, with respect to tax advice, the same common 
law protections of confidentiality that apply to a 
communication between a taxpayer and an attorney also apply to 
a communication between a taxpayer and a federally authorized 
tax practitioner to the extent the communication would be 
considered a privileged communication if it were between a 
taxpayer and an attorney. This rule is inapplicable to 
communications regarding corporate tax shelters.

                           REASONS FOR CHANGE

    The Committee believes that the rule currently applicable 
to corporate tax shelters should be applied to all tax 
shelters, regardless of whether or not the participant is a 
corporation.

                        EXPLANATION OF PROVISION

    The bill modifies the rule relating to corporate tax 
shelters by making it applicable to all tax shelters, whether 
entered into by corporations, individuals, partnerships, tax-
exempt entities, or any other entity. Accordingly, 
communications with respect to tax shelters are not subject to 
the confidentiality provision of the Code that otherwise 
applies to a communication between a taxpayer and a federally 
authorized tax practitioner.

                             EFFECTIVE DATE

    The bill is effective with respect to communications made 
on or after the date of enactment.

4. Disclosure of reportable transactions by material advisors (secs. 
        804 and 805 of the bill and secs. 6111 and 6707 of the Code)

                              PRESENT LAW

Registration of tax shelter arrangements

    An organizer of a tax shelter is required to register the 
shelter with the Secretary not later than the day on which the 
shelter is first offered for sale.\97\ A ``tax shelter'' means 
any investment with respect to which the tax shelter ratio \98\ 
for any investor as of the close of any of the first five years 
ending after the investment is offered for sale may be greater 
than two to one and which is: (1) required to be registered 
under Federal or State securities laws, (2) sold pursuant to an 
exemption from registration requiring the filing of a notice 
with a Federal or State securities agency, or (3) a substantial 
investment (greater than $250,000 and at least five 
investors).\99\
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    \97\ Sec. 6111(a).
    \98\ The tax shelter ratio is, with respect to any year, the ratio 
that the aggregate amount of the deductions and 350 percent of the 
credits, which are represented to be potentially allowable to any 
investor, bears to the investment base (money plus basis of assets 
contributed) as of the close of the tax year.
    \99\ Sec. 6111(c).
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    Other promoted arrangements are treated as tax shelters for 
purposes of the registration requirement if: (1) a significant 
purpose of the arrangement is the avoidance or evasion of 
Federal income tax by a corporate participant; (2) the 
arrangement is offered under conditions of confidentiality; and 
(3) the promoter may receive fees in excess of $100,000 in the 
aggregate.\100\
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    \100\ Sec. 6111(d).
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    In general, a transaction has a ``significant purpose of 
avoiding or evading Federal income tax'' if the transaction: 
(1) is the same as or substantially similar to a ``listed 
transaction,'' \101\ or (2) is structured to produce tax 
benefits that constitute an important part of the intended 
results of the arrangement and the promoter reasonably expects 
to present the arrangement to more than one taxpayer.\102\ 
Certain exceptions are provided with respect to the second 
category of transactions.\103\
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    \101\ Treas. Reg. sec. 301.6111-2(b)(2).
    \102\ Treas. Reg. sec. 301.6111-2(b)(3).
    \103\ Treas. Reg. sec. 301.6111-2(b)(4).
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    An arrangement is offered under conditions of 
confidentiality if: (1) an offeree has an understanding or 
agreement to limit the disclosure of the transaction or any 
significant tax features of the transaction; or (2) the 
promoter knows, or has reason to know that the offeree's use or 
disclosure of information relating to the transaction is 
limited in any other manner.\104\
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    \104\ The regulations provide that the determination of whether an 
arrangement is offered under conditions of confidentiality is based on 
all the facts and circumstances surrounding the offer. If an offeree's 
disclosure of the structure or tax aspects of the transaction are 
limited in any way by an express or implied understanding or agreement 
with or for the benefit of a tax shelter promoter, an offer is 
considered made under conditions of confidentiality, whether or not 
such understanding or agreement is legally binding. Treas. Reg. sec. 
301.6111-2(c)(1).
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Failure to register tax shelter

    The penalty for failing to timely register a tax shelter 
(or for filing false or incomplete information with respect to 
the tax shelter registration) generally is the greater of one 
percent of the aggregate amount invested in the shelter or 
$500.\105\ However, if the tax shelter involves an arrangement 
offered to a corporation under conditions of confidentiality, 
the penalty is the greater of $10,000 or 50 percent of the fees 
payable to any promoter with respect to offerings prior to the 
date of late registration. Intentional disregard of the 
requirement to register increases the penalty to 75 percent of 
the applicable fees.
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    \105\ Sec. 6707.
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    Section 6707 also imposes (1) a $100 penalty on the 
promoter for each failure to furnish the investor with the 
required tax shelter identification number, and (2) a $250 
penalty on the investor for each failure to include the tax 
shelter identification number on a return.

                           REASONS FOR CHANGE

    The Committee has been advised that the current promoter 
registration rules have not proven particularly effective, in 
part because the rules are not appropriate for the kinds of 
abusive transactions now prevalent, and because the limitations 
regarding confidential corporate arrangements have proven easy 
to circumvent.
    The Committee believes that providing a single, clear 
definition regarding the types of transactions that must be 
disclosed by taxpayers and material advisors, coupled with more 
meaningful penalties for failing to disclose such transactions, 
are necessary tools if the effort to curb the use of abusive 
tax avoidance transactions is to be effective.

                        EXPLANATION OF PROVISION

Disclosure of reportable transactions by material advisors

    The bill repeals the present law rules with respect to 
registration of tax shelters. Instead, the bill requires each 
material advisor with respect to any reportable transaction 
(including any listed transaction) \106\ to timely file an 
information return with the Secretary (in such form and manner 
as the Secretary may prescribe). The return must be filed on 
such date as specified by the Secretary.
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    \106\ The terms ``reportable transaction'' and ``listed 
transaction'' have the same meaning as previously described in 
connection with the taxpayer-related provisions.
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    The information return will include (1) information 
identifying and describing the transaction, (2) information 
describing any potential tax benefits expected to result from 
the transaction, and (3) such other information as the 
Secretary may prescribe. It is expected that the Secretary may 
seek from the material advisor the same type of information 
that the Secretary may request from a taxpayer in connection 
with a reportable transaction.\107\
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    \107\ See the previous discussion regarding the disclosure 
requirements under new section 6707A.
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    A ``material advisor'' means any person (1) who provides 
material aid, assistance, or advice with respect to organizing, 
promoting, selling, implementing, or carrying out any 
reportable transaction, and (2) who directly or indirectly 
derives gross income in excess of $250,000 ($50,000 in the case 
of a reportable transaction substantially all of the tax 
benefits from which are provided to natural persons) for such 
advice or assistance.
    The Secretary may prescribe regulations which provide (1) 
that only one material advisor has to file an information 
return in cases in which two or more material advisors would 
otherwise be required to file information returns with respect 
to a particular reportable transaction, (2) exemptions from the 
requirements of this section, and (3) other rules as may be 
necessary or appropriate to carry out the purposes of this 
section (including, for example, rules regarding the 
aggregation of fees in appropriate circumstances).

Penalty for failing to furnish information regarding reportable 
        transactions

    The bill repeals the present law penalty for failure to 
register tax shelters. Instead, the bill imposes a penalty on 
any material advisor who fails to file an information return, 
or who files a false or incomplete information return, with 
respect to a reportable transaction (including a listed 
transaction).\108\ The amount of the penalty is $50,000. If the 
penalty is with respect to a listed transaction, the amount of 
the penalty is increased to the greater of (1) $200,000, or (2) 
50 percent of the gross income of such person with respect to 
aid, assistance, or advice which is provided with respect to 
the transaction before the date the information return that 
includes the transaction is filed. Intentional disregard by a 
material advisor of the requirement to disclose a listed 
transaction increases the penalty to 75 percent of the gross 
income.
---------------------------------------------------------------------------
    \108\ The terms ``reportable transaction'' and ``listed 
transaction'' have the same meaning as previously described in 
connection with the taxpayer-related provisions.
---------------------------------------------------------------------------
    The penalty cannot be waived with respect to a listed 
transaction. As to reportable transactions, the penalty can be 
rescinded (or abated) only in exceptional circumstances.\109\ 
All or part of the penalty may be rescinded only if: (1) the 
material advisor on whom the penalty is imposed has a history 
of complying with the Federal tax laws, (2) it is shown that 
the violation is due to an unintentional mistake of fact, (3) 
imposing the penalty would be against equity and good 
conscience, and (4) rescinding the penalty would promote 
compliance with the tax laws and effective tax administration. 
The authority to rescind the penalty can only be exercised by 
the Commissioner personally or the head of the Office of Tax 
Shelter Analysis; this authority to rescind cannot otherwise be 
delegated by the Commissioner. Thus, the penalty cannot be 
rescinded by a revenue agent, an Appeals officer, or other IRS 
personnel. The decision to rescind a penalty must be 
accompanied by a record describing the facts and reasons for 
the action and the amount rescinded. There will be no right to 
appeal a refusal to rescind a penalty. The IRS also is required 
to submit an annual report to Congress summarizing the 
application of the disclosure penalties and providing a 
description of each penalty rescinded under this provision and 
the reasons for the rescission.
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    \109\ The Secretary's present-law authority to postpone certain 
tax-related deadlines because of Presidentially-declared disasters 
(sec. 7508A) will also encompass the authority to postpone the 
reporting deadlines established by the provision.
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                             EFFECTIVE DATE

    The provision requiring disclosure of reportable 
transactions by material advisors applies to transactions with 
respect to which material aid, assistance or advice is provided 
after the date of enactment.
    The provision imposing a penalty for failing to disclose 
reportable transactions applies to returns the due date for 
which is after the date of enactment.

5. Investor lists and modification of penalty for failure to maintain 
        investor lists (secs. 804 and 806 of the bill and secs. 6112 
        and 6708 of the Code)

                              PRESENT LAW

Investor lists

    Any organizer or seller of a potentially abusive tax 
shelter must maintain a list identifying each person who was 
sold an interest in any such tax shelter with respect to which 
registration was required under section 6111 (even though the 
particular party may not have been subject to confidentiality 
restrictions).\110\ Recently issued regulations under section 
6112 contain rules regarding the list maintenance 
requirements.\111\ In general, the regulations apply to 
transactions that are potentially abusive tax shelters entered 
into, or acquired after, February 28, 2003.\112\
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    \110\ Sec. 6112.
    \111\ Treas. Reg. sec. 301-6112-1.
    \112\ A special rule applies the list maintenance requirements to 
transactions entered into after February 28, 2000 if the transaction 
becomes a listed transaction (as defined in Treas. Reg. 1.6011-4) after 
February 28, 2003.
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    The regulations provide that a person is an organizer or 
seller of a potentially abusive tax shelter if the person is a 
material advisor with respect to that transaction.\113\ A 
material advisor is defined as any person who is required to 
register the transaction under section 6111, or expects to 
receive a minimum fee of (1) $250,000 for a transaction that is 
a potentially abusive tax shelter if all participants are 
corporations, or (2) $50,000 for any other transaction that is 
a potentially abusive tax shelter.\114\ For listed transactions 
(as defined in the regulations under section 6011), the minimum 
fees are reduced to $25,000 and $10,000, respectively.
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    \113\ Treas. Reg. sec. 301.6112-1(c)(1).
    \114\ Treas. Reg. sec. 301.6112-1(c)(2) and (3).
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    A potentially abusive tax shelter is any transaction that 
(1) is required to be registered under section 6111, (2) is a 
listed transaction (as defined under the regulations under 
section 6011), or (3) any transaction that a potential material 
advisor, at the time the transaction is entered into, knows is 
or reasonably expects will become a reportable transaction (as 
defined under the new regulations under section 6011).\115\
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    \115\ Treas. Reg. sec. 301.6112-1(b).
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    The Secretary is required to prescribe regulations which 
provide that, in cases in which two or more persons are 
required to maintain the same list, only one person would be 
required to maintain the list.\116\
---------------------------------------------------------------------------
    \116\ Sec. 6112(c)(2).
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Penalties for failing to maintain investor lists

    Under section 6708, the penalty for failing to maintain the 
list required under section 6112 is $50 for each name omitted 
from the list (with a maximum penalty of $100,000 per year).

                           REASONS FOR CHANGE

    The Committee has been advised that the present-law 
penalties for failure to maintain customer lists are not 
meaningful and that promoters often have refused to provide 
requested information to the IRS. The Committee believes that 
requiring material advisors to maintain a list of advisees with 
respect to each reportable transaction, coupled with more 
meaningful penalties for failing to maintain an investor list, 
are important tools in the ongoing efforts to curb the use of 
abusive tax avoidance transactions.

                        EXPLANATION OF PROVISION

Investor lists

    Each material advisor \117\ with respect to a reportable 
transaction (including a listed transaction) \118\ is required 
to maintain a list that (1) identifies each person with respect 
to whom the advisor acted as a material advisor with respect to 
the reportable transaction, and (2) contains other information 
as may be required by the Secretary. In addition, the bill 
authorizes (but does not require) the Secretary to prescribe 
regulations which provide that, in cases in which 2 or more 
persons are required to maintain the same list, only one person 
would be required to maintain the list.
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    \117\ The term ``material advisor'' has the same meaning as when 
used in connection with the requirement to file an information return 
under section 6111.
    \118\ The terms ``reportable transaction'' and ``listed 
transaction'' have the same meaning as previously described in 
connection with the taxpayer-related provisions.
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Penalty for failing to maintain investor lists

    The bill modifies the penalty for failing to maintain the 
required list by making it a time-sensitive penalty. Thus, a 
material advisor who is required to maintain an investor list 
and who fails to make the list available upon written request 
by the Secretary within 20 business days after the request will 
be subject to a $10,000 per day penalty. The penalty applies to 
a person who fails to maintain a list, maintains an incomplete 
list, or has in fact maintained a list but does not make the 
list available to the Secretary. The penalty can be waived if 
the failure to make the list available is due to reasonable 
cause.\119\
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    \119\ In no event will failure to maintain a list be considered 
reasonable cause for failing to make a list available to the Secretary.
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                             EFFECTIVE DATE

    The provision requiring a material advisor to maintain an 
investor list applies to transactions with respect to which 
material aid, assistance or advice is provided after the date 
of enactment.
    The provision imposing a penalty for failing to maintain 
investor lists applies to requests made after the date of 
enactment.

6. Penalties on promoters of tax shelters (sec. 807 of the bill and 
        sec. 6700 of the Code)

                              PRESENT LAW

    A penalty is imposed on any person who organizes, assists 
in the organization of, or participates in the sale of any 
interest in, a partnership or other entity, any investment plan 
or arrangement, or any other plan or arrangement, if in 
connection with such activity the person makes or furnishes a 
qualifying false or fraudulent statement or a gross valuation 
overstatement.\120\ A qualified false or fraudulent statement 
is any statement with respect to the allowability of any 
deduction or credit, the excludability of any income, or the 
securing of any other tax benefit by reason of holding an 
interest in the entity or participating in the plan or 
arrangement which the person knows or has reason to know is 
false or fraudulent as to any material matter. A ``gross 
valuation overstatement'' means any statement as to the value 
of any property or services if the stated value exceeds 200 
percent of the correct valuation, and the value is directly 
related to the amount of any allowable income tax deduction or 
credit.
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    \120\ Sec. 6700.
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    The amount of the penalty is $1,000 (or, if the person 
establishes that it is less, 100 percent of the gross income 
derived or to be derived by the person from such activity). A 
penalty attributable to a gross valuation misstatement can be 
waived on a showing that there was a reasonable basis for the 
valuation and it was made in good faith.

                           REASONS FOR CHANGE

    The Committee believes that the present-law penalty rate is 
insufficient to deter the type of conduct that gives rise to 
the penalty.

                        EXPLANATION OF PROVISION

    The bill modifies the penalty amount to equal 50 percent of 
the gross income derived by the person from the activity for 
which the penalty is imposed. The new penalty rate applies to 
any activity that involves a statement regarding the tax 
benefits of participating in a plan or arrangement if the 
person knows or has reason to know that such statement is false 
or fraudulent as to any material matter. The enhanced penalty 
does not apply to a gross valuation overstatement.

                             EFFECTIVE DATE

    The bill is effective for activities after the date of 
enactment.

           B. Provisions To Discourage Corporate Expatriation


1. Tax treatment of inversion transactions (sec. 821 of the bill and 
        new sec. 7874 of the Code)

                              PRESENT LAW

Determination of corporate residence

    The U.S. tax treatment of a multinational corporate group 
depends significantly on whether the top-tier ``parent'' 
corporation of the group is domestic or foreign. For purposes 
of U.S. tax law, a corporation is treated as domestic if it is 
incorporated under the law of the United States or of any 
State. All other corporations (i.e., those incorporated under 
the laws of foreign countries) are treated as foreign. Thus, 
place of incorporation determines whether a corporation is 
treated as domestic or foreign for purposes of U.S. tax law, 
irrespective of other factors that might be thought to bear on 
a corporation's ``nationality,'' such as the location of the 
corporation's management activities, employees, business 
assets, operations, or revenue sources, the exchanges on which 
the corporation's stock is traded, or the residence of the 
corporation's managers and shareholders.

U.S. taxation of domestic corporations

    The United States employs a ``worldwide'' tax system, under 
which domestic corporations generally are taxed on all income, 
whether derived in the United States or abroad. In order to 
mitigate the double taxation that may arise from taxing the 
foreign-source income of a domestic corporation, a foreign tax 
credit for income taxes paid to foreign countries is provided 
to reduce or eliminate the U.S. tax owed on such income, 
subject to certain limitations.
    Income earned by a domestic parent corporation from foreign 
operations conducted by foreign corporate subsidiaries 
generally is subject to U.S. tax when the income is distributed 
as a dividend to the domestic corporation. Until such 
repatriation, the U.S. tax on such income is generally 
deferred. However, certain anti-deferral regimes may cause the 
domestic parent corporation to be taxed on a current basis in 
the United States with respect to certain categories of passive 
or highly mobile income earned by its foreign subsidiaries, 
regardless of whether the income has been distributed as a 
dividend to the domestic parent corporation. The main anti-
deferral regimes in this context are the controlled foreign 
corporation rules of subpart F \121\ and the passive foreign 
investment company rules.\122\ A foreign tax credit is 
generally available to offset, in whole or in part, the U.S. 
tax owed on this foreign-source income, whether repatriated as 
an actual dividend or included under one of the anti-deferral 
regimes.
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    \121\ Secs. 951-964.
    \122\ Secs. 1291-1298.
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U.S. taxation of foreign corporations

    The United States taxes foreign corporations only on income 
that has a sufficient nexus to the United States. Thus, a 
foreign corporation is generally subject to U.S. tax only on 
income that is ``effectively connected'' with the conduct of a 
trade or business in the United States. Such ``effectively 
connected income'' generally is taxed in the same manner and at 
the same rates as the income of a U.S. corporation. An 
applicable tax treaty may limit the imposition of U.S. tax on 
business operations of a foreign corporation to cases in which 
the business is conducted through a ``permanent establishment'' 
in the United States.
    In addition, foreign corporations generally are subject to 
a gross-basis U.S. tax at a flat 30-percent rate on the receipt 
of interest, dividends, rents, royalties, and certain similar 
types of income derived from U.S. sources, subject to certain 
exceptions. The tax generally is collected by means of 
withholding by the person making the payment. This tax may be 
reduced or eliminated under an applicable tax treaty.

U.S. tax treatment of inversion transactions

    Under present law, U.S. corporations may reincorporate in 
foreign jurisdictions and thereby replace the U.S. parent 
corporation of a multinational corporate group with a foreign 
parent corporation. These transactions are commonly referred to 
as ``inversion'' transactions. Inversion transactions may take 
many different forms, including stock inversions, asset 
inversions, and various combinations of and variations on the 
two. Most of the known transactions to date have been stock 
inversions. In one example of a stock inversion, a U.S. 
corporation forms a foreign corporation, which in turn forms a 
domestic merger subsidiary. The domestic merger subsidiary then 
merges into the U.S. corporation, with the U.S. corporation 
surviving, now as a subsidiary of the new foreign corporation. 
The U.S. corporation's shareholders receive shares of the 
foreign corporation and are treated as having exchanged their 
U.S. corporation shares for the foreign corporation shares. An 
asset inversion reaches a similar result, but through a direct 
merger of the top-tier U.S. corporation into a new foreign 
corporation, among other possible forms. An inversion 
transaction may be accompanied or followed by further 
restructuring of the corporate group. For example, in the case 
of a stock inversion, in order to remove income from foreign 
operations from the U.S. taxing jurisdiction, the U.S. 
corporation may transfer some or all of its foreign 
subsidiaries directly to the new foreign parent corporation or 
other related foreign corporations.
    In addition to removing foreign operations from the U.S. 
taxing jurisdiction, the corporate group may derive further 
advantage from the inverted structure by reducing U.S. tax on 
U.S.-source income through various ``earnings stripping'' or 
other transactions. This may include earnings stripping through 
payment by a U.S. corporation of deductible amounts such as 
interest, royalties, rents, or management service fees to the 
new foreign parent or other foreign affiliates. In this 
respect, the post-inversion structure enables the group to 
employ the same tax-reduction strategies that are available to 
other multinational corporate groups with foreign parents and 
U.S. subsidiaries, subject to the same limitations. These 
limitations under present law include section 163(j), which 
limits the deductibility of certain interest paid to related 
parties, if the payor's debt-equity ratio exceeds 1.5 to 1 and 
the payor's net interest expense exceeds 50 percent of its 
``adjusted taxable income.'' More generally, section 482 and 
the regulations thereunder require that all transactions 
between related parties be conducted on terms consistent with 
an ``arm's length'' standard, and permit the Secretary of the 
Treasury to reallocate income and deductions among such parties 
if that standard is not met.
    Inversion transactions may give rise to immediate U.S. tax 
consequences at the shareholder and/or the corporate level, 
depending on the type of inversion. In stock inversions, the 
U.S. shareholders generally recognize gain (but not loss) under 
section 367(a), based on the difference between the fair market 
value of the foreign corporation shares received and the 
adjusted basis of the domestic corporation stock exchanged. To 
the extent that a corporation's share value has declined, and/
or it has many foreign or tax-exempt shareholders, the impact 
of this section 367(a) ``toll charge'' is reduced. The transfer 
of foreign subsidiaries or other assets to the foreign parent 
corporation also may give rise to U.S. tax consequences at the 
corporate level (e.g., gain recognition and earnings and 
profits inclusions under sections 1001, 311(b), 304, 367, 1248 
or other provisions). The tax on any income recognized as a 
result of these restructurings may be reduced or eliminated 
through the use of net operating losses, foreign tax credits, 
and other tax attributes.
    In asset inversions, the U.S. corporation generally 
recognizes gain (but not loss) under section 367(a) as though 
it had sold all of its assets, but the shareholders generally 
do not recognize gain or loss, assuming the transaction meets 
the requirements of a reorganization under section 368.

                           REASONS FOR CHANGE

    The Committee believes that inversion transactions 
resulting in a minimal presence in a foreign country of 
incorporation are a means of avoiding U.S. tax and should be 
curtailed. In particular, these transactions permit 
corporations and other entities to continue to conduct business 
in the same manner as they did prior to the inversion, but with 
the result that the inverted entity avoids U.S. tax on foreign 
operations and may engage in earnings-stripping techniques to 
avoid U.S. tax on domestic operations. The Committee believes 
that certain inversion transactions (involving 80 percent or 
greater identity of stock ownership) have little or no non-tax 
effect or purpose and should be disregarded for U.S. tax 
purposes. The Committee believes that other inversion 
transactions (involving greater than 50 but less than 80 
percent identity of stock ownership) may have sufficient non-
tax effect and purpose to be respected, but warrant heightened 
scrutiny and other restrictions to ensure that the U.S. tax 
base is not eroded through related-party transactions.

                        EXPLANATION OF PROVISION

In general

    The provision defines two different types of corporate 
inversion transactions and establishes a different set of 
consequences for each type. Certain partnership transactions 
also are covered.

Transactions involving at least 80 percent identity of stock ownership

    The first type of inversion is a transaction in which, 
pursuant to a plan or a series of related transactions: (1) a 
U.S. corporation becomes a subsidiary of a foreign-incorporated 
entity or otherwise transfers substantially all of its 
properties to such an entity; \123\ (2) the former shareholders 
of the U.S. corporation hold (by reason of holding stock in the 
U.S. corporation) 80 percent or more (by vote or value) of the 
stock of the foreign-incorporated entity after the transaction; 
and (3) the foreign-incorporated entity, considered together 
with all companies connected to it by a chain of greater than 
50 percent ownership (i.e., the ``expanded affiliated group''), 
does not have substantial business activities in the entity's 
country of incorporation, compared to the total worldwide 
business activities of the expanded affiliated group. The 
provision denies the intended tax benefits of this type of 
inversion by deeming the top-tier foreign corporation to be a 
domestic corporation for all purposes of the Code.\124\
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    \123\ It is expected that the Treasury Secretary will issue 
regulations applying the term ``substantially all'' in this context and 
will not be bound in this regard by interpretations of the term in 
other contexts under the Code.
    \124\ Since the top-tier foreign corporation is treated for all 
purposes of the Code as domestic, the shareholder-level ``toll charge'' 
of sec. 367(a) does not apply to these inversion transactions. However, 
with respect to inversion transactions completed before 2004, regulated 
investment companies and certain similar entities are allowed to elect 
to recognize gain as if sec. 367(a) did apply.
---------------------------------------------------------------------------
    Except as otherwise provided in regulations, the provision 
does not apply to a direct or indirect acquisition of the 
properties of a U.S. corporation no class of the stock of which 
was traded on an established securities market at any time 
within the four-year period preceding the acquisition. In 
determining whether a transaction would meet the definition of 
an inversion under the provision, stock held by members of the 
expanded affiliated group that includes the foreign 
incorporated entity is disregarded. For example, if the former 
top-tier U.S. corporation receives stock of the foreign 
incorporated entity (e.g., so-called ``hook'' stock), the stock 
would not be considered in determining whether the transaction 
meets the definition. Stock sold in a public offering (whether 
initial or secondary) or private placement related to the 
transaction also is disregarded for these purposes. 
Acquisitions with respect to a domestic corporation or 
partnership are deemed to be ``pursuant to a plan'' if they 
occur within the four-year period beginning on the date which 
is two years before the ownership threshold under the provision 
is met with respect to such corporation or partnership.
    Transfers of properties or liabilities as part of a plan a 
principal purpose of which is to avoid the purposes of the 
provision are disregarded. In addition, the Treasury Secretary 
is granted authority to prevent the avoidance of the purposes 
of the provision, including avoidance through the use of 
related persons, pass-through or other noncorporate entities, 
or other intermediaries, and through transactions designed to 
qualify or disqualify a person as a related person, a member of 
an expanded affiliated group, or a publicly traded corporation. 
Similarly, the Treasury Secretary is granted authority to treat 
certain non-stock instruments as stock, and certain stock as 
not stock, where necessary to carry out the purposes of the 
provision.

Transactions involving greater than 50 percent but less than 80 percent 
        identity of stock ownership

    The second type of inversion is a transaction that would 
meet the definition of an inversion transaction described 
above, except that the 80-percent ownership threshold is not 
met. In such a case, if a greater-than-50-percent ownership 
threshold is met, then a second set of rules applies to the 
inversion. Under these rules, the inversion transaction is 
respected (i.e., the foreign corporation is treated as 
foreign), but: (1) any applicable corporate-level ``toll 
charges'' for establishing the inverted structure may not be 
offset by tax attributes such as net operating losses or 
foreign tax credits; (2) the IRS is given expanded authority to 
monitor related-party transactions that may be used to reduce 
U.S. tax on U.S.-source income going forward; and (3) section 
163(j), relating to ``earnings stripping'' through related-
party debt, is strengthened. These measures generally apply for 
a 10-year period following the inversion transaction. In 
addition, inverting entities are required to provide 
information to shareholders or partners and the IRS with 
respect to the inversion transaction.
    With respect to ``toll charges,'' any applicable corporate-
level income or gain required to be recognized under sections 
304, 311(b), 367, 1001, 1248, or any other provision with 
respect to the transfer of controlled foreign corporation stock 
or other assets by a U.S. corporation as part of the inversion 
transaction or after such transaction to a related foreign 
person is taxable, without offset by any tax attributes (e.g., 
net operating losses or foreign tax credits). To the extent 
provided in regulations, this rule will not apply to certain 
transfers of inventory and similar transactions conducted in 
the ordinary course of the taxpayer's business.
    In order to enhance IRS monitoring of related-party 
transactions, the provision establishes a new pre-filing 
procedure. Under this procedure, the taxpayer will be required 
annually to submit an application to the IRS for an agreement 
that all return positions to be taken by the taxpayer with 
respect to related-party transactions comply with all relevant 
provisions of the Code, including sections 163(j), 267(a)(3), 
482, and 845. The Treasury Secretary is given the authority to 
specify the form, content, and supporting information required 
for this application, as well as the timing for its submission.
    The IRS will be required to take one of the following three 
actions within 90 days of receiving a complete application from 
a taxpayer: (1) conclude an agreement with the taxpayer that 
the return positions to be taken with respect to related-party 
transactions comply with all relevant provisions of the Code; 
(2) advise the taxpayer that the IRS is satisfied that the 
application was made in good faith and substantially complies 
with the requirements set forth by the Treasury Secretary for 
such an application, but that the IRS reserves substantive 
judgment as to the tax treatment of the relevant transactions 
pending the normal audit process; or (3) advise the taxpayer 
that the IRS has concluded that the application was not made in 
good faith or does not substantially comply with the 
requirements set forth by the Treasury Secretary.
    In the case of a compliance failure described in (3) above 
(and in cases in which the taxpayer fails to submit an 
application), the following sanctions will apply for the 
taxable year for which the application was required: (1) no 
deductions or additions to basis or cost of goods sold for 
payments to foreign related parties will be permitted; (2) any 
transfers or licenses of intangible property to related foreign 
parties will be disregarded; and (3) any cost-sharing 
arrangements will not be respected. In such a case, the 
taxpayer may seek direct review by the U.S. Tax Court of the 
IRS's determination of compliance failure.
    If the IRS fails to act on the taxpayer's application 
within 90 days of receipt, then the taxpayer will be treated as 
having submitted in good faith an application that 
substantially complies with the above-referenced requirements. 
Thus, the deduction disallowance and other sanctions described 
above will not apply, but the IRS will be able to examine the 
transactions at issue under the normal audit process. The IRS 
is authorized to request that the taxpayer extend this 90-day 
deadline in cases in which the IRS believes that such an 
extension might help the parties to reach an agreement.
    The ``earnings stripping'' rules of section 163(j), which 
deny or defer deductions for certain interest paid to foreign 
related parties, are strengthened for inverted corporations. 
With respect to such corporations, the provision eliminates the 
debt-equity threshold generally applicable under section 163(j) 
and reduces the 50-percent thresholds for ``excess interest 
expense'' and ``excess limitation'' to 25 percent.
    In cases in which a U.S. corporate group acquires 
subsidiaries or other assets from an unrelated inverted 
corporate group, the provisions described above generally do 
not apply to the acquiring U.S. corporate group or its related 
parties (including the newly acquired subsidiaries or assets) 
by reason of acquiring the subsidiaries or assets that were 
connected with the inversion transaction. The Treasury 
Secretary is given authority to issue regulations appropriate 
to carry out the purposes of this provision and to prevent its 
abuse.

Partnership transactions

    Under the proposal, both types of inversion transactions 
include certain partnership transactions. Specifically, both 
parts of the provision apply to transactions in which a 
foreign-incorporated entity acquires substantially all of the 
properties constituting a trade or business of a domestic 
partnership (whether or not publicly traded), if after the 
acquisition at least 80 percent (or more than 50 percent but 
less than 80 percent, as the case may be) of the stock of the 
entity is held by former partners of the partnership (by reason 
of holding their partnership interests), and the ``substantial 
business activities'' test is not met. For purposes of 
determining whether these tests are met, all partnerships that 
are under common control within the meaning of section 482 are 
treated as one partnership, except as provided otherwise in 
regulations. In addition, the modified ``toll charge'' 
provisions apply at the partner level.

                             EFFECTIVE DATE

    The regime applicable to transactions involving at least 80 
percent identity of ownership applies to inversion transactions 
completed after March 20, 2002. The rules for inversion 
transactions involving greater-than-50-percent identity of 
ownership apply to inversion transactions completed after 1996 
that meet the 50-percent test and to inversion transactions 
completed after 1996 that would have met the 80-percent test 
but for the March 20, 2002 date.

2. Excise tax on stock compensation of insiders of inverted 
        corporations (sec. 822 of the bill and new sec. 5000A and sec. 
        275(a) of the Code)

                              PRESENT LAW

    The income taxation of a nonstatutory \125\ compensatory 
stock option is determined under the rules that apply to 
property transferred in connection with the performance of 
services (sec. 83). If a nonstatutory stock option does not 
have a readily ascertainable fair market value at the time of 
grant, which is generally the case unless the option is 
actively traded on an established market, no amount is included 
in the gross income of the recipient with respect to the option 
until the recipient exercises the option.\126\ Upon exercise of 
such an option, the excess of the fair market value of the 
stock purchased over the option price is included in the 
recipient's gross income as ordinary income in such taxable 
year.
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    \125\ Nonstatutory stock options refer to stock options other than 
incentive stock options and employee stock purchase plans, the taxation 
of which is determined under sections 421-424.
    \126\ If an individual receives a grant of a nonstatutory option 
that has a readily ascertainable fair market value at the time the 
option is granted, the excess of the fair market value of the option 
over the amount paid for the option is included in the recipient's 
gross income as ordinary income in the first taxable year in which the 
option is either transferable or not subject to a substantial risk of 
forfeiture.
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    The tax treatment of other forms of stock-based 
compensation (e.g., restricted stock and stock appreciation 
rights) is also determined under section 83. The excess of the 
fair market value over the amount paid (if any) for such 
property is generally includable in gross income in the first 
taxable year in which the rights to the property are 
transferable or are not subject to substantial risk of 
forfeiture.
    Shareholders are generally required to recognize gain upon 
stock inversion transactions. An inversion transaction is 
generally not a taxable event for holders of stock options and 
other stock-based compensation.

                           REASONS FOR CHANGE

    The Committee believes that certain inversion transactions 
are a means of avoiding U.S. tax and should be curtailed. The 
Committee is concerned that, while shareholders are generally 
required to recognize gain upon stock inversion transactions, 
executives holding stock options and certain stock-based 
compensation are not taxed upon such transactions. Since such 
executives are often instrumental in deciding whether to engage 
in inversion transactions, the Committee believes that, upon 
certain inversion transactions, it is appropriate to impose an 
excise tax on certain executives holding stock options and 
stock-based compensation.

                        EXPLANATION OF PROVISION

    Under the provision, specified holders of stock options and 
other stock-based compensation are subject to an excise tax 
upon certain inversion transactions. The provision imposes a 20 
percent excise tax on the value of specified stock compensation 
held (directly or indirectly) by or for the benefit of a 
disqualified individual, or a member of such individual's 
family, at any time during the 12-month period beginning six 
months before the corporation's inversion date. Specified stock 
compensation is treated as held for the benefit of a 
disqualified individual if such compensation is held by an 
entity, e.g., a partnership or trust, in which the individual, 
or a member of the individual's family, has an ownership 
interest.
    A disqualified individual is any individual who, with 
respect to a corporation, is, at any time during the 12-month 
period beginning on the date which is six months before the 
inversion date, subject to the requirements of section 16(a) of 
the Securities and Exchange Act of 1934 with respect to the 
corporation, or any member of the corporation's expanded 
affiliated group,\127\ or would be subject to such requirements 
if the corporation (or member) were an issuer of equity 
securities referred to in section 16(a). Disqualified 
individuals generally include officers (as defined by section 
16(a)),\128\ directors, and 10-percent owners of private and 
publicly-held corporations.
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    \127\ An expanded affiliated group is an affiliated group (under 
section 1504) except that such group is determined without regard to 
the exceptions for certain corporations and is determined applying a 
greater than 50 percent threshold, in lieu of the 80 percent test.
    \128\ An officer is defined as the president, principal financial 
officer, principal accounting officer (or, if there is no such 
accounting officer, the controller), any vice-president in charge of a 
principal business unit, division or function (such as sales, 
administration or finance), any other officer who performs a policy-
making function, or any other person who performs similar policy-making 
functions.
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    The excise tax is imposed on a disqualified individual of 
an inverted corporation only if gain (if any) is recognized in 
whole or part by any shareholder by reason of either the 80 
percent or 50 percent identity of stock ownership corporate 
inversion transactions previously described in the provision.
    Specified stock compensation subject to the excise tax 
includes any payment \129\ (or right to payment) granted by the 
inverted corporation (or any member of the corporation's 
expanded affiliated group) to any person in connection with the 
performance of services by a disqualified individual for such 
corporation (or member of the corporation's expanded affiliated 
group) if the value of the payment or right is based on, or 
determined by reference to, the value or change in value of 
stock of such corporation (or any member of the corporation's 
expanded affiliated group). In determining whether such 
compensation exists and valuing such compensation, all 
restrictions, other than non-lapse restrictions, are ignored. 
Thus, the excise tax applies, and the value subject to the tax 
is determined, without regard to whether such specified stock 
compensation is subject to a substantial risk of forfeiture or 
is exercisable at the time of the inversion transaction. 
Specified stock compensation includes compensatory stock and 
restricted stock grants, compensatory stock options, and other 
forms of stock-based compensation, including stock appreciation 
rights, phantom stock, and phantom stock options. Specified 
stock compensation also includes nonqualified deferred 
compensation that is treated as though it were invested in 
stock or stock options of the inverting corporation (or 
member). For example, the provision applies to a disqualified 
individual's deferred compensation if company stock is one of 
the actual or deemed investment options under the nonqualified 
deferred compensation plan.
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    \129\ Under the provision, any transfer of property is treated as a 
payment and any right to a transfer of property is treated as a right 
to a payment.
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    Specified stock compensation includes a compensation 
arrangement that gives the disqualified individual an economic 
stake substantially similar to that of a corporate shareholder. 
Thus, the excise tax does not apply where a payment is simply 
triggered by a target value of the corporation's stock or where 
a payment depends on a performance measure other than the value 
of the corporation's stock. Similarly, the tax does not apply 
if the amount of the payment is not directly measured by the 
value of the stock or an increase in the value of the stock. 
For example, an arrangement under which a disqualified 
individual is paid a cash bonus of $500,000 if the 
corporation's stock increased in value by 25 percent over two 
years or $1,000,000 if the stock increased by 33 percent over 
two years is not specified stock compensation, even though the 
amount of the bonus generally is keyed to an increase in the 
value of the stock. By contrast, an arrangement under which a 
disqualified individual is paid a cash bonus equal to $10,000 
for every $1 increase in the share price of the corporation's 
stock is subject to the provision because the direct connection 
between the compensation amount and the value of the 
corporation's stock gives the disqualified individual an 
economic stake substantially similar to that of a shareholder.
    The excise tax applies to any such specified stock 
compensation previously granted to a disqualified individual 
but cancelled or cashed-out within the six-month period ending 
with the inversion transaction, and to any specified stock 
compensation awarded in the six-month period beginning with the 
inversion transaction. As a result, for example, if a 
corporation were to cancel outstanding options three months 
before the transaction and then reissue comparable options 
three months after the transaction, the tax applies both to the 
cancelled options and the newly granted options. It is intended 
that the Treasury Secretary issue guidance to avoid double 
counting with respect to specified stock compensation that is 
cancelled and then regranted during the applicable twelve-month 
period.
    Specified stock compensation subject to the tax does not 
include a statutory stock option or any payment or right from a 
qualified retirement plan or annuity, a tax-sheltered annuity, 
a simplified employee pension, or a simple retirement account. 
In addition, under the provision, the excise tax does not apply 
to any stock option that is exercised during the six-month 
period before the inversion or to any stock acquired pursuant 
to such exercise. The excise tax also does not apply to any 
specified stock compensation which is sold, exchanged, 
distributed or cashed-out during such period in a transaction 
in which gain or loss is recognized in full.
    For specified stock compensation held on the inversion 
date, the amount of the tax is determined based on the value of 
the compensation on such date. The tax imposed on specified 
stock compensation cancelled during the six-month period before 
the inversion date is determined based on the value of the 
compensation on the day before such cancellation, while 
specified stock compensation granted after the inversion date 
is valued on the date granted. Under the provision, the 
cancellation of a non-lapse restriction is treated as a grant.
    The value of the specified stock compensation on which the 
excise tax is imposed is the fair value in the case of stock 
options (including warrants and other similar rights to acquire 
stock) and stock appreciation rights and the fair market value 
for all other forms of compensation. For purposes of the tax, 
the fair value of an option (or a warrant or other similar 
right to acquire stock) or a stock appreciation right is 
determined using an appropriate option-pricing model, as 
specified or permitted by the Treasury Secretary, that takes 
into account the stock price at the valuation date; the 
exercise price under the option; the remaining term of the 
option; the volatility of the underlying stock and the expected 
dividends on it; and the risk-free interest rate over the 
remaining term of the option. Options that have no intrinsic 
value (or ``spread'') because the exercise price under the 
option equals or exceeds the fair market value of the stock at 
valuation nevertheless have a fair value and are subject to tax 
under the provision. The value of other forms of compensation, 
such as phantom stock or restricted stock, are the fair market 
value of the stock as of the date of the inversion transaction. 
The value of any deferred compensation that could be valued by 
reference to stock is the amount that the disqualified 
individual would receive if the plan were to distribute all 
such deferred compensation in a single sum on the date of the 
inversion transaction (or the date of cancellation or grant, if 
applicable). It is expected that the Treasury Secretary issue 
guidance on valuation of specified stock compensation, 
including guidance similar to the revenue procedures issued 
under section 280G, except that the guidance would not permit 
the use of a term other than the full remaining term. Pending 
the issuance of guidance, it is intended that taxpayers could 
rely on the revenue procedures issued under section 280G 
(except that the full remaining term must be used).
    The excise tax also applies to any payment by the inverted 
corporation or any member of the expanded affiliated group made 
to an individual, directly or indirectly, in respect of the 
tax. Whether a payment is made in respect of the tax is 
determined under all of the facts and circumstances. Any 
payment made to keep the individual in the same after-tax 
position that the individual would have been in had the tax not 
applied is a payment made in respect of the tax. This includes 
direct payments of the tax and payments to reimburse the 
individual for payment of the tax. It is expected that the 
Treasury Secretary issue guidance on determining when a payment 
is made in respect of the tax and that such guidance would 
include certain factors that give rise to a rebuttable 
presumption that a payment is made in respect of the tax, 
including a rebuttable presumption that if the payment is 
contingent on the inversion transaction, it is made in respect 
to the tax. Any payment made in respect of the tax is 
includible in the income of the individual, but is not 
deductible by the corporation.
    To the extent that a disqualified individual is also a 
covered employee under section 162(m), the $1,000,000 limit on 
the deduction allowed for employee remuneration for such 
employee is reduced by the amount of any payment (including 
reimbursements) made in respect of the tax under the provision. 
As discussed above, this includes direct payments of the tax 
and payments to reimburse the individual for payment of the 
tax.
    The payment of the excise tax has no effect on the 
subsequent tax treatment of any specified stock compensation. 
Thus, the payment of the tax has no effect on the individual's 
basis in any specified stock compensation and no effect on the 
tax treatment for the individual at the time of exercise of an 
option or payment of any specified stock compensation, or at 
the time of any lapse or forfeiture of such specified stock 
compensation. The payment of the tax is not deductible and has 
no effect on any deduction that might be allowed at the time of 
any future exercise or payment.
    Under the provision, the Treasury Secretary is authorized 
to issue regulations as may be necessary or appropriate to 
carry out the purposes of the section.

                             EFFECTIVE DATE

    The provision is effective as of July 11, 2002, except that 
periods before July 11, 2002, are not taken into account in 
applying the tax to specified stock compensation held or 
cancelled during the six-month period before the inversion 
date.

3. Reinsurance agreements (sec. 823 of the bill and sec. 845(a) of the 
        Code)

                              PRESENT LAW

    In the case of a reinsurance agreement between two or more 
related persons, present law provides the Treasury Secretary 
with authority to allocate among the parties or recharacterize 
income (whether investment income, premium or otherwise), 
deductions, assets, reserves, credits and any other items 
related to the reinsurance agreement, or make any other 
adjustment, in order to reflect the proper source and character 
of the items for each party.\130\ For this purpose, related 
persons are defined as in section 482. Thus, persons are 
related if they are organizations, trades or businesses 
(whether or not incorporated, whether or not organized in the 
United States, and whether or not affiliated) that are owned or 
controlled directly or indirectly by the same interests. The 
provision may apply to a contract even if one of the related 
parties is not a domestic company.\131\ In addition, the 
provision also permits such allocation, recharacterization, or 
other adjustments in a case in which one of the parties to a 
reinsurance agreement is, with respect to any contract covered 
by the agreement, in effect an agent of another party to the 
agreement, or a conduit between related persons.
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    \130\ Sec. 845(a).
    \131\ See S. Rep. No. 97-494, ``Tax Equity and Fiscal 
Responsibility Act of 1982,'' July 12, 1982, 337 (describing provisions 
relating to the repeal of modified coinsurance provisions).
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                           REASONS FOR CHANGE

    The Committee is concerned that reinsurance transactions 
are being used to allocate income, deductions, or other items 
inappropriately among U.S. and foreign related persons. The 
Committee is concerned that foreign related party reinsurance 
arrangements may be a technique for eroding the U.S. tax base. 
The Committee believes that the provision of present law 
permitting the Treasury Secretary to allocate or recharacterize 
items related to a reinsurance agreement should be applied to 
prevent misallocation, improper characterization, or to make 
any other adjustment in the case of such reinsurance 
transactions between U.S. and foreign related persons (or 
agents or conduits). The Committee also wishes to clarify that, 
in applying the authority with respect to reinsurance 
agreements, the amount, source or character of the items may be 
allocated, recharacterized or adjusted.

                        EXPLANATION OF PROVISION

    The provision clarifies the rules of section 845, relating 
to authority for the Treasury Secretary to allocate items among 
the parties to a reinsurance agreement, recharacterize items, 
or make any other adjustment, in order to reflect the proper 
source and character of the items for each party. The proposal 
authorizes such allocation, recharacterization, or other 
adjustment, in order to reflect the proper source, character or 
amount of the item. It is intended that this authority \132\ be 
exercised in a manner similar to the authority under section 
482 for the Treasury Secretary to make adjustments between 
related parties. It is intended that this authority be applied 
in situations in which the related persons (or agents or 
conduits) are engaged in cross-border transactions that require 
allocation, recharacterization, or other adjustments in order 
to reflect the proper source, character or amount of the item 
or items. No inference is intended that present law does not 
provide this authority with respect to reinsurance agreements.
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    \132\ The authority to allocate, recharacterize or make other 
adjustments was granted in connection with the repeal of provisions 
relating to modified coinsurance transactions.
---------------------------------------------------------------------------
    No regulations have been issued under section 845(a). It is 
expected that the Treasury Secretary will issue regulations 
under section 845(a) to address effectively the allocation of 
income (whether investment income, premium or otherwise) and 
other items, the recharacterization of such items, or any other 
adjustment necessary to reflect the proper amount, source or 
character of the item.

                             EFFECTIVE DATE

    The provision is effective for any risk reinsured after 
April 11, 2002.

                     C. Extension of IRS User Fees


(Sec. 831 of the bill and new sec. 7529 of the Code)

                              PRESENT LAW

    The IRS provides written responses to questions of 
individuals, corporations, and organizations relating to their 
tax status or the effects of particular transactions for tax 
purposes. The IRS generally charges a fee for requests for a 
letter ruling, determination letter, opinion letter, or other 
similar ruling or determination. Public Law 104-117 \133\ 
extended the statutory authorization for these user fees \134\ 
through September 30, 2003.
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    \133\ An Act to provide that members of the Armed Forces performing 
services for the peacekeeping efforts in Bosnia and Herzegovina, 
Croatia, and Macedonia shall be entitled to tax benefits in the same 
manner as if such services were performed in a combat zone, and for 
other purposes (March 20, 1996).
    \134\ These user fees were originally enacted in section 10511 of 
the Revenue Act of 1987 (Pub. L. 100-203, December 22, 1987).
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                           REASONS FOR CHANGE

    The Committee believes that it is appropriate to provide a 
further extension of these user fees.

                        EXPLANATION OF PROVISION

    The bill extends the statutory authorization for these user 
fees through September 30, 2013. The bill also moves the 
statutory authorization for these fees into the Code.\135\
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    \135\ The proposal also moves into the Code the user fee provision 
relating to pension plans that was enacted in section 620 of the 
Economic Growth and Tax Relief Reconciliation Act of 2001 (Pub. L. 107-
16, June 7, 2001).
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                             EFFECTIVE DATE

    The provision, including moving the statutory authorization 
for these fees into the Code and repealing the off-Code 
statutory authorization for these fees, is effective for 
requests made after the date of enactment.

  D. Add Vaccines Against Hepatitis A to the List of Taxable Vaccines


(Sec. 842 of the bill and sec. 4132 of the Code)

                              PRESENT LAW

    A manufacturer's excise tax is imposed at the rate of 75 
cents per dose \136\ on the following vaccines routinely 
recommended for administration to children: diphtheria, 
pertussis, tetanus, measles, mumps, rubella, polio, HIB 
(haemophilus influenza type B), hepatitis B, varicella (chicken 
pox), rotavirus gastroenteritis, and streptococcus pneumoniae. 
The tax applied to any vaccine that is a combination of vaccine 
components equals 75 cents times the number of components in 
the combined vaccine.
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    \136\ Sec. 4131
---------------------------------------------------------------------------
    Amounts equal to net revenues from this excise tax are 
deposited in the Vaccine Injury Compensation Trust Fund to 
finance compensation awards under the Federal Vaccine Injury 
Compensation Program for individuals who suffer certain 
injuries following administration of the taxable vaccines. This 
program provides a substitute Federal, ``no fault'' insurance 
system for the State-law tort and private liability insurance 
systems otherwise applicable to vaccine manufacturers. All 
persons immunized after September 30, 1988, with covered 
vaccines must pursue compensation under this Federal program 
before bringing civil tort actions under State law.

                           REASONS FOR CHANGE

    The Committee is aware that the Centers for Disease Control 
and Prevention have recommended that children in 17 highly 
endemic States be inoculated with a hepatitis A vaccine. The 
population of children in the affected States exceeds 20 
million. Several of the affected States mandate childhood 
vaccination against hepatitis A. The Committee is aware that 
the Advisory Commission on Childhood Vaccines has recommended 
that the vaccine excise tax be extended to cover vaccines 
against hepatitis A. For these reasons, the Committee believes 
it is appropriate to include vaccines against hepatitis A as 
part of the Vaccine Injury Compensation Program. Making the 
hepatitis A vaccine taxable is a first step.\137\ In the 
unfortunate event of an injury related to this vaccine, 
families of injured children are eligible for the no-fault 
arbitration system established under the Vaccine Injury 
Compensation Program rather than going to Federal Court to seek 
compensatory redress.
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    \137\ The Committee recognizes that, to become covered under the 
Vaccine Injury Compensation Program, the Secretary of Health and Human 
Services also must list the hepatitis A vaccine on the Vaccine Injury 
Table.
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                        EXPLANATION OF PROVISION

    The bill adds any vaccine against hepatitis A to the list 
of taxable vaccines. The bill also makes a conforming amendment 
to the trust fund expenditure purposes.

                             EFFECTIVE DATE

    The provision is effective for vaccines sold beginning on 
the first day of the first month beginning more than four weeks 
after the date of enactment.

                E. Individual Expatriation to Avoid Tax


(Sec. 833 of the bill and secs. 877, 2107, 2501, and 6039 of the Code)

                              PRESENT LAW

    U.S. citizens and residents generally are subject to U.S. 
income taxation on their worldwide income. The U.S. tax may be 
reduced or offset by a credit allowed for foreign income taxes 
paid with respect to foreign source income. Nonresidents who 
are not U.S. citizens are taxed at a flat rate of 30 percent 
(or a lower treaty rate) on certain types of passive income 
derived from U.S. sources, and at regular graduated rates on 
net profits derived from a U.S. trade or business.
    An individual who relinquishes his or her U.S. citizenship 
or terminates his or her U.S. residency \138\ with a principal 
purpose of avoiding U.S. taxes is subject to an alternative 
method of income taxation for the 10 taxable years ending after 
the citizenship relinquishment or residency termination (the 
``alternative tax regime''). The alternative tax regime 
modifies the rules generally applicable to the taxation of 
nonresident noncitizens. For the 10-year period, the individual 
is subject to tax only on U.S.-source income at the rates 
applicable to U.S. citizens, rather than the rates applicable 
to nonresident noncitizens. However, for this purpose, U.S.-
source income has a broader scope than it does for normal U.S. 
Federal tax purposes and includes, for example, gain from the 
sale of U.S. corporate stock or debt obligations. The 
alternative tax regime applies only if it results in a higher 
U.S. tax liability than the liability that would result if the 
individual were taxed as a nonresident noncitizen.
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    \138\ The alternative tax regime applies to long-term residents of 
the United States that have terminated their residency with a principal 
purpose of avoiding U.S. tax. A ``long-term resident'' is any 
individual who was a lawful permanent resident of the United States for 
at least 8 out of the 15 taxable years ending with the year in which 
such termination occurs. In applying the 8-year test, an individual is 
not considered to be a lawful permanent resident for any year in which 
the individual is treated as a resident of another country under a 
treaty tiebreaker rule (and the individual does not elect to waive the 
benefits of such treaty).
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    In addition, the alternative tax regime includes special 
estate and gift tax rules. Under present law, estates of 
nonresident noncitizens are subject to U.S. estate tax on U.S.-
situated property. For these purposes, stock in a foreign 
corporation generally is not treated as U.S.-situated property, 
even if the foreign corporation itself owns U.S.-situated 
property. However, a special estate tax rule (sec. 2107) 
applies to former citizens and former long-term residents who 
are subject to the alternative tax regime. Under this rule, 
certain closely-held foreign stock owned by the former citizen 
or former long-term resident is includible in his or her gross 
estate to the extent that the foreign corporation owns U.S.-
situated assets, if the former citizen or former long-term 
resident dies within 10 years of citizenship relinquishment or 
residency termination. This rule prevents former citizens and 
former long-term residents who are subject to the alternative 
tax regime from avoiding U.S. estate tax through the expedient 
of transferring U.S.-situated assets to a foreign corporation 
(subject to income tax on any appreciation under section 367). 
In addition, under the alternative tax regime, the individual 
is subject to gift tax on gifts of U.S.-situated intangibles, 
such as U.S. stock, made during the 10 years following 
citizenship relinquishment or residency termination.
    Anti-abuse rules are provided to prevent the circumvention 
of the alternative tax regime. Accordingly, the alternative tax 
regime generally applies to exchanges of property that give 
rise to U.S.-source income for property that gives rise to 
foreign source income. In addition, amounts earned by former 
citizens and former long-term residents through controlled 
foreign corporations are subject to the alternative tax regime, 
and the 10-year liability period is suspended during any time 
at which a former citizen's or former long-term resident's risk 
of loss with respect to property subject to the alternative tax 
regime is substantially diminished, among other measures.
    A U.S. citizen who relinquishes citizenship or a long-term 
resident who terminates residency is treated as having done so 
with a principal purpose of tax avoidance (and, thus, generally 
is subject to the alternative tax regime described above) if: 
(1) the individual's average annual U.S. Federal income tax 
liability for the five taxable years preceding citizenship 
relinquishment or residency termination exceeds $100,000; or 
(2) the individual's net worth on the date of citizenship 
relinquishment or residency termination equals or exceeds 
$500,000. These amounts are adjusted annually for inflation. 
Certain categories of individuals may avoid being deemed to 
have a tax avoidance purpose for relinquishing citizenship or 
terminating residency by submitting a ruling request to the IRS 
regarding whether the individual relinquished citizenship or 
terminated residency principally for tax reasons.
    Under present law, the Immigration and Nationality Act 
governs the determination of when a U.S. citizen is treated for 
U.S. Federal tax purposes as having relinquished citizenship. 
Similarly, an individual's U.S. residency is considered 
terminated for U.S. Federal tax purposes when the individual 
ceases to be a lawful permanent resident under the immigration 
law (or is treated as a resident of another country under a tax 
treaty and does not waive the benefits of such treaty). In view 
of this reliance on immigration-law status, it is possible in 
many instances for a U.S. citizen or resident to convert his or 
her Federal tax status to that of a nonresident noncitizen 
without notifying the IRS.
    Individuals subject to the alternative tax regime are 
required to provide certain tax information, including tax 
identification numbers, upon relinquishment of citizenship or 
termination of residency (on IRS Form 8854, Expatriation 
Initial Information Statement). In the case of an individual 
with a net worth of at least $500,000, the individual also must 
provide detailed information about the individual's assets and 
liabilities. The penalty for the failure to provide the 
required tax information is the greater of $1,000 or five 
percent of the tax imposed under the alternative tax regime for 
the year.\139\ In addition, the U.S. Department of State and 
other governmental agencies are required to provide this 
information to the IRS.
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    \139\ The penalty applies for each year of the 10-year period 
beginning on the date the individual ceases to be a U.S. citizen or 
resident.
---------------------------------------------------------------------------
    Former citizens and former long-term residents who are 
subject to the alternative tax regime also are required to file 
annual income tax returns, but only in the event that they owe 
U.S. Federal income tax. If a tax return is required, the 
former citizen or former long-term resident is required to 
provide the IRS with a statement setting forth (generally by 
category) all items of U.S.-source and foreign-source gross 
income, but no detailed information with respect to all assets 
held by the individual.

                           REASONS FOR CHANGE

    There are several difficulties in administering the 
present-law alternative tax regime. One such difficulty is that 
the IRS is required to determine the subjective intent of 
taxpayers who relinquish citizenship or terminate residency. 
The present-law presumption of a tax-avoidance purpose in cases 
in which objective income tax liability or net worth thresholds 
are exceeded mitigates this problem to some extent. However, 
the present-law rules still require the IRS to make subjective 
determinations of intent in cases involving taxpayers who fall 
below these thresholds, as well for certain taxpayers who 
exceed these thresholds but are nevertheless allowed to seek a 
ruling from the IRS to the effect that they did not have a 
principal purpose of tax avoidance. The Committee believes that 
the replacement of the subjective determination of tax 
avoidance as a principal purpose for citizenship relinquishment 
or residency termination with objective rules will result in 
easier administration of the tax regime for individuals who 
relinquish their citizenship or terminate residency.
    Similarly, present-law information-reporting and return-
filing provisions do not provide the IRS with the information 
necessary to administer the alternative tax regime. Although 
individuals are required to file tax information statements 
upon the relinquishment of their citizenship or termination of 
their residency, difficulties have been encountered in 
enforcing this requirement. The Committee believes that the tax 
benefits of citizenship relinquishment or residency termination 
should be denied an individual until he or she provides the 
information necessary for the IRS to enforce the alternative 
tax regime. The Committee also believes an annual report 
requirement and a penalty for the failure to comply with such 
requirement are needed to provide the IRS with sufficient 
information to monitor the compliance of former U.S. citizens 
and long-term residents.
    Individuals who relinquish citizenship or terminate 
residency for tax reasons often do not want to fully sever 
their ties with the United States; they hope to retain some of 
the benefits of citizenship or residency without being subject 
to the U.S. tax system as a U.S. citizen or resident. These 
individuals generally may continue to spend significant amounts 
of time in the United States following citizenship 
relinquishment or residency termination--approximately four 
months every year--without being treated as a U.S. resident. 
The Committee believes that provisions in the bill that impose 
full U.S. taxation if the individual is present in the United 
States for more than 30 days in a calendar year will 
substantially reduce the incentives to relinquish citizenship 
or terminate residency for individuals who desire to maintain 
significant ties to the United States.
    With respect to the estate and gift tax rules, the 
Committee is concerned that present-law does not adequately 
address opportunities for the avoidance of tax on the value of 
assets held by a foreign corporation whose stock the individual 
transfers. Thus, the provision imposes gift tax under the 
alternative tax regime in the case of gifts of certain stock of 
a closely held foreign corporation.

                        EXPLANATION OF PROVISION

In general

    The provision provides: (1) objective standards for 
determining whether former citizens or former long-term 
residents are subject to the alternative tax regime; (2) tax-
based (instead of immigration-based) rules for determining when 
an individual is no longer a U.S. citizen or long-term resident 
for U.S. Federal tax purposes; (3) the imposition of full U.S. 
taxation for individuals who are subject to the alternative tax 
regime and who return to the United States for extended 
periods; (4) imposition of U.S. gift tax on gifts of stock of 
certain closely-held foreign corporations that hold U.S.-
situated property; and (5) an annual return-filing requirement 
for individuals who are subject to the alternative tax regime, 
for each of the 10 years following citizenship relinquishment 
or residency termination.\140\
---------------------------------------------------------------------------
    \140\ These provisions reflect recommendations contained in Joint 
Committee on Taxation, Review of the Present Law Tax and Immigration 
Treatment of Relinquishment of Citizenship and Termination of Long-Term 
Residency, (JCS-2-03), February 2003.
---------------------------------------------------------------------------

Objective rules for the alternative tax regime

    The provision replaces the subjective determination of tax 
avoidance as a principal purpose for citizenship relinquishment 
or residency termination under present law with objective 
rules. Under the provision, a former citizen or former long-
term resident would be subject to the alternative tax regime 
for a 10-year period following citizenship relinquishment or 
residency termination, unless the former citizen or former 
long-term resident: (1) establishes that his or her average 
annual net income tax liability for the five preceding years 
does not exceed $122,000 (adjusted for inflation) and his or 
her net worth does not exceed $2 million, or alternatively 
satisfies limited, objective exceptions for dual citizens and 
minors who have had no substantial contact with the United 
States; and (2) certifies under penalties of perjury that he or 
she has complied with all U.S. Federal tax obligations for the 
preceding five years and provides such evidence of compliance 
as the Secretary of the Treasury may require.
    The monetary thresholds under the provision replace the 
present-law inquiry into the taxpayer's intent. In addition, 
the provision eliminates the present-law process of IRS ruling 
requests.
    If a former citizen exceeds the monetary thresholds, that 
person is excluded from the alternative tax regime if he or she 
falls within the exceptions for certain dual citizens and 
minors (provided that the requirement of certification and 
proof of compliance with Federal tax obligations is met). These 
exceptions provide relief to individuals who have never had 
substantial connections with the United States, as measured by 
certain objective criteria, and eliminate IRS inquiries as to 
the subjective intent of such taxpayers.
    In order to be excepted from the application of the 
alternative tax regime under the provision, whether by reason 
of falling below the net worth and income tax liability 
thresholds or qualifying for the dual-citizen or minor 
exceptions, the former citizen or former long-term resident 
also is required to certify, under penalties of perjury, that 
he or she has complied with all U.S. Federal tax obligations 
for the five years preceding the relinquishment of citizenship 
or termination of residency and to provide such documentation 
as the Secretary of the Treasury may require evidencing such 
compliance (e.g., tax returns, proof of tax payments). Until 
such time, the individual remains subject to the alternative 
tax regime. It is intended that the IRS should continue to 
verify that the information submitted was accurate, and it is 
intended that the IRS should randomly audit such persons to 
assess compliance.

Termination of U.S. citizen or long-term resident status for U.S. 
        Federal income tax purposes

    Under the provision, an individual continues to be treated 
as a U.S. citizen or long-term resident for U.S. Federal tax 
purposes, including for purposes of section 7701(b)(10), until 
the individual: (1) gives notice of an expatriating act or 
termination of residency (with the requisite intent to 
relinquish citizenship or terminate residency) to the Secretary 
of State or the Secretary of Homeland Security, respectively; 
and (2) provides a statement in accordance with section 6039G.

Sanction for individuals subject to the individual tax regime who 
        return to the United States for extended periods

    The alternative tax regime does not apply to any individual 
for any taxable year during the 10-year period following 
citizenship relinquishment or residency termination if such 
individual is present in the United States for more than 30 
days in the calendar year ending in such taxable year. Such 
individual is treated as a U.S. citizen or resident for such 
taxable year.
    Similarly, if an individual subject to the alternative tax 
regime is present in the United States for more than 30 days in 
any calendar year ending during the 10-year period following 
citizenship relinquishment or residency termination, and the 
individual dies during that year, he or she is treated as a 
U.S. resident, and the individual's worldwide estate is subject 
to U.S. estate tax. Likewise, if an individual subject to the 
alternative tax regime is present in the United States for more 
than 30 days in any year during the 10-year period following 
citizenship relinquishment or residency termination, the 
individual is subject to U.S. gift tax on any transfer of his 
or her worldwide assets by gift during that taxable year.
    For purposes of these rules, an individual is treated as 
present in the United States on any day if such individual is 
physically present in the United States at any time during that 
day, with no exceptions. The present-law exceptions from being 
treated as present in the United States for residency purposes 
\141\ do not apply for this purpose.
---------------------------------------------------------------------------
    \141\ Sections 7701(b)(3)(D), 7701(b)(5) and 7701(b)(7)(B)-(D).
---------------------------------------------------------------------------

Imposition of gift tax with respect to stock of certain closely held 
        foreign corporations

    Gifts of stock of certain closely-held foreign corporations 
by a former citizen or former long-term resident who is subject 
to the alternative tax regime are subject to gift tax under 
this provision, if the gift is made within the 10-year period 
after citizenship relinquishment or residency termination. The 
gift tax rule applies if: (1) the former citizen or former 
long-term resident, before making the gift, directly or 
indirectly owns 10 percent or more of the total combined voting 
power of all classes of stock entitled to vote of the foreign 
corporation; and (2) directly or indirectly, is considered to 
own more than 50 percent of (a) the total combined voting power 
of all classes of stock entitled to vote in the foreign 
corporation, or (b) the total value of the stock of such 
corporation. If this stock ownership test is met, then taxable 
gifts of the former citizen or former long-term resident 
include that proportion of the fair market value of the foreign 
stock transferred by the individual, at the time of the gift, 
which the fair market value of any assets owned by such foreign 
corporation and situated in the United States (at the time of 
gift) bears to the total fair market value of all assets owned 
by such foreign corporation (at the time of gift).
    This gift tax rule applies to a former citizen or former 
long-term resident who is subject to the alternative tax regime 
and who owns stock in a foreign corporation at the time of the 
gift, regardless of how such stock was acquired (e.g., whether 
issued originally to the donor, purchased, or received as a 
gift or bequest).

Annual return

    The provision requires former citizens and former long-term 
residents to file an annual return for each year following 
citizenship relinquishment or residency termination in which 
they are subject to the alternative tax regime. The annual 
return is required even if no U.S. Federal income tax is due. 
The annual return requires certain information, including 
information on the permanent home of the individual, the 
individual's country of residency, the number of days the 
individual was present in the United States for the year, and 
detailed information about the individual's income and assets 
that are subject to the alternative tax regime. This 
requirement includes information relating to foreign stock 
potentially subject to the special estate tax rule of section 
2107(b) and the gift tax rules of this provision.
    If the individual fails to file the statement in a timely 
manner or fails correctly to include all the required 
information, the individual is required to pay a penalty of 
$5,000. The $5,000 penalty does not apply if it is shown that 
the failure is due to reasonable cause and not to willful 
neglect.

                             EFFECTIVE DATE

    The provisions apply to individuals who relinquish 
citizenship or terminate long-term residency after February 27, 
2003.

                     II. BUDGET EFFECTS OF THE BILL


                         A. Committee Estimates

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the following statement is made 
concerning the estimated budget effects of the revenue 
provisions of the ``Energy Tax Incentives Act of 2003'' as 
reported.


                B. Budget Authority and Tax Expenditures


Budget authority

    In compliance with section 308(a)(1) of the Budget Act, the 
Committee states that the revenue provisions of the bill as 
reported involve no new or increased budget authority.

Tax expenditures

    In compliance with section 308(a)(2) of the Budget Act, the 
Committee states that the revenue-reducing provisions of the 
bill involve increased tax expenditures (see revenue table in 
Part III. A., above).

            C. Consultation With Congressional Budget Office

    In accordance with section 403 of the Budget Act, the 
Committee advises that the Congressional Budget Office 
submitted the following statement on this bill:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 23, 2003.
Hon. Charles E. Grassley,
Chairman, Committee on Finance,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for the Energy Tax 
Incentives Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Annie 
Bartsch (for revenues), and Lisa Cash Driskill (for spending).
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 1149--Energy Tax Incentives Act of 2003

    Summary: The Energy Tax Incentives Act would amend numerous 
provisions of tax law mainly relating to energy. The bill would 
enhance and create credits for the use and development of 
energy-efficient technologies, amend tax rules to provide 
deductions for certain devices and credits for businesses that 
provide energy, and enhance and create credits and deductions 
for the production of oil, gas, and other types of fuel. The 
bill also would provide tax credits for production of biodiesel 
fuels, which would result in changes in the subsidies provided 
through the U.S. Department of Agriculture (USDA) for certain 
crops. Certain tax credits would be available to the Tennessee 
Valley Authority (TVA) and rural electric cooperatives in the 
form of credits that could be used as payments owed to the 
Treasury. The bill also would raise revenue by changing the tax 
treatment of inversion transactions and altering requirements 
for reportable transactions and tax shelters. Provisions of the 
bill would generally take effect in 2003, but some provisions 
would take effect in 2004, and some provisions would expire 
during the 2007-2013 period.
    The Congressional Budget Office (CBO) and the Joint 
Committee on Taxation (JCT) estimate that enacting the bill 
would decrease government receipts by $457 million in 2003, by 
about $15.8 billion over the 2003-2008 period, and by about 
$15.6 billion over the 2003-2013 period. CBO estimates that 
provisions in the bill affecting TVA, rural electric 
cooperatives, USDA, and the Internal Revenue Service (IRS) 
would result in an increase in direct spending of $20 million 
in 2003, an increase of $29 million over the 2003-2008 period, 
and a decrease of $41 million over the 2003-2013 period. CBO 
also estimates that certain provisions requiring studies and 
reports would have an insignificant impact on spending subject 
to appropriation.
    CBO has reviewed section 702 and found no intergovernmental 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
That section would require the General Accounting Office (GAO) 
to analyze the effectiveness of alternative vehicle and fuel 
credits and would impose no costs on state, local, or tribal 
governments. JCT has determined that the remaining provisions 
contain no intergovernmental mandates as defined in UMRA.
    JTC has determined that the provisions relating to the tax 
treatment of corporate inversion transactions, tax shelters, 
the alternative tax regime for individuals who expatriate. 
reinsurance agreements, the excise tax on stock compensation of 
insiders of inverted corporations, and the excise tax on 
vaccines against hepatitis A all contain private sector 
mandates as defined in UMRA. The cost of complying with the 
mandates would not exceed the threshold established by UMRA 
($117 million in 2003, adjusted annually for inflation). CBO 
has determined that sections 702 and 831 of the bill contain no 
new private-sector mandates as defined in UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of the bill is shown in the table on the 
following page. All revenue estimates were provided by JCT 
except for two provisions. For the years after 2006, CBO 
estimated the revenue effects of the provision providing income 
and excise tax credits for biodiesel fuel mixtures. In 
addition, CBO estimated the effect of the provision extending 
IRS user fees.

Basis of estimate

            Revenues
    Several provisions would compose a significant portion of 
the effect on revenues if enacted. Those provisions would 
extend the credit for producing energy from certain sources, 
extend the credit for purchase of alternative motor vehicles, 
and modify the credit for purchase of electric vehicles. They 
also would allow geological and geophysical expenditures to be 
amortized over two years, establish a statutory 15-year 
recovery period for natural gas distribution lines, expand the 
credit for certain qualifying fuels produced from coal to fuels 
produced in facilities placed in service after the date of 
enactment, provide credits for biodiesel fuel purchases, and 
modify the rules governing certain requirements for 
contributions to, and transfers of, qualified nuclear 
decommissioning funds. The bill also contains several 
provisions relating to tax shelters and reportable 
transactions. JCT estimates that these provisions would, if 
enacted, reduce revenues by $457 million in 2002, about $15.8 
billion over the 2003-2008 period, and by about $15.5 billion 
over the 2003-2013 period.

----------------------------------------------------------------------------------------------------------------
                                                            By fiscal year, in millions of dollars--
                                               -----------------------------------------------------------------
                                                   2003       2004       2005       2006       2007       2008
----------------------------------------------------------------------------------------------------------------
                                               CHANGES IN REVENUES

Estimated revenues............................       -457     -2,186     -3,618     -4,518     -3,691     -1,298

                                         CHANGES IN DIRECT SPENDING \1\

Tax credits for TVA:
    Estimated budget authority................          0          0         10         10         10         10
    Estimated outlays.........................          0          0         10         10         10         10
Tax credits for rural electric cooperatives:
    Estimated budget authority................         20          0          0          0          0          0
    Estimated outlays.........................         20          0          0          0          0          0
Biodiesel farm program savings:
    Estimated budget authority................          0         -2         -4        -11        -14        -18
    Estimated outlays.........................          0         -2         -4        -11        -14        -18
Extension of IRS user fees:
    Estimated budget authority................          0          3          3          4          4          4
    Estimated outlays.........................          0          3          3          4          4          4
Total changes in direct spending:
    Estimated budget authority................         20          1          9          3          0         -4
    Estimated outlays.........................         20          1          9          3          0        -4
----------------------------------------------------------------------------------------------------------------
\1\ Implementing the bill would also affect discretionary spending, but those costs would be less than $500,000
  a year.

Sources: CBO and the Joint Committee on Taxation.

    The bill would provide income and excise tax credits for 
purchases of biodiesel fuel mixtures (a combination of diesel 
fuel and vegetable oil or animal fat). The provision would 
expire on December 31, 2005, and JCT estimated the effects of 
the provision assuming that expiration date. However, budget 
law requires CBO to treat excise taxes dedicated to trust funds 
as permanent, even if they expire during the projection period. 
Thus, CBO estimates that the provision would reduce revenues by 
an additional $522 million from 2006 through 2013.
    In addition, the bill would extend the period during which 
IRS may charge fees on businesses for providing ruling, 
opinion, and determination letters. Under current law, IRS's 
authority to charge such fees will expire at the end of fiscal 
year 2003. The bill would extend the authority to charge such 
fees until September 30, 2013. Based on the amount of fees 
collected in recent years and on information from IRS, CBO 
estimates that extending the fees would increase governmental 
receipts by $176 million over the 2004-2008 period and $386 
million over the 2004-2013 period.
            Direct spending
    Effect of Biodiesel Tax Credits on Farm Programs. Because 
of the bill's incentives to sell and use biodiesel fuels, JCT 
and CBO have estimated that use of these fuel mixtures would 
increase. Because the vegetable oil in the mixtures is expected 
to be primarily derived from soybeans and a few other oilseeds, 
the price of these oilseeds would increase. (Qualifying 
vegetable oils may be derived from corn, soybeans, and a list 
of other oil seeds.) Higher commodity prices would result in 
lower costs of farm price-support and income-support programs 
administered by USDA. CBO estimates these changes in the demand 
for soybeans and other sources of vegetable oils would reduce 
federal spending by about $50 million over the 2004-2008 
period, and by $190 million over the 2004-2013 period.
    Use of Credits for Federal Payments by TVA and Rural 
Electric Cooperatives. The bill would establish tax credits for 
electric power producers using certain clean coal and renewable 
technologies. Although exempt from taxation, TVA and rural 
electric cooperatives would be eligible to take such credits in 
the form of cash-equivalent credits that could be used to repay 
amounts they owe to the Treasury. We estimate that the 
provisions would cost $20 million in 2003, $100 million over 
the 2003-2008 period, and $110 million over the 2003-2013 
period.
    CBO expects that TVA will make significant investments in 
pollution control and clean coal technologies over the next 10 
years and thus would be eligible for the cash-equivalent 
credits authorized by the bill. TVA could use such credits to 
reduce its payment to the Treasury for past appropriations. TVA 
could then pass such savings on to its customers by lowering 
the price it charges for electricity. We estimate that this 
price adjustment would reduce TVA's power revenues by an 
average of $10 million a year beginning in 2005, when we expect 
the agency would revise its rates. Hence, CBO estimates that 
this provision would cost a total of about $90 million over the 
2003-2013 period.
    Rural electric cooperatives would be eligible for both the 
clean coal technology and renewable energy tax credits offered 
under the bill. Based on information from industry analysts, 
CBO expects that rural electric cooperatives would make 
investments in technologies that would qualify for such credits 
over the next several years. The bill would allow the credits 
to be sold or traded to certain other taxable entities, or used 
to prepay loans held by the federal government. For this 
estimate, we assume that around 15 percent of eligible 
cooperatives would prepay their federal loans with the Rural 
Utilities Service, rather than trade the credits.
    The authority provided by the bill to prepay federal loans 
with non-cash credits would be considered a loan modification. 
Under the Federal Credit Reform Act, the cost of a loan 
modification is the change in the subsidy cost of the loan (on 
a present-value basis) because of the modified loan terms. CBO 
estimates that the cost of this provision would be about $20 
million and would be recorded in 2003, the assumed year of 
enactment.
    Extension of IRS User Fees. As noted above, the bill would 
adjust and extend the authority of the IRS to charge taxpayers 
fees for certain rulings, opinion letters, and determinations 
through September 30, 2013. The IRS has the authority to retain 
and spend a small portion of these fees without further 
appropriation. CBO estimates that continuing the fees would 
increase direct spending by a total of $18 million over the 
2004-2008 period and by $39 million over the 2004-2013 period.
            Spending subject to appropriation
    The bill would require GAO and the Department of the 
Treasury to provide annual reports on energy tax incentives. 
Based on information from these agencies, CBO expects that 
preparing the reports would cost less than $500,000 per year, 
assuming availability of appropriated funds.
    Summary of the effect on revenues and direct spending: The 
overall effects of the bill on revenues and direct spending 
over the 2003-2013 period are shown in the following table.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   By fiscal year, in millions of dollars--
                                                     ---------------------------------------------------------------------------------------------------
                                                        2003     2004      2005      2006      2007      2008      2009    2010    2011    2012    2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in receipts.................................     -457    -2,186    -3,618    -4,518    -3,691    -1,298     -274     178     284      83     146
Changes in outlays..................................       20         1         9         3         0        -4       -8     -11     -14     -18     -19
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: CBO and the Joint Committee on Taxation.

    Impact on state, local, and tribal governments: CBO has 
reviewed section 702 and found no intergovernmental mandates as 
defined in UMRA. That section would require GAO to analyze the 
effectiveness of alternative vehicle and fuel credits and would 
impose no costs on state, local, or tribal governments. JCT has 
determined that the remaining provisions contain no 
intergovernmental mandates as defined in UMRA.
    Impact on private sector: JCT has determined that the 
provisions relating to the tax treatment of corporate inversion 
transactions, tax shelters, the alternative tax regime for 
individuals who expatriate, agreements, the excise tax on stock 
compensation of insiders of inverted corporations, reinsurance, 
and the excise tax on vaccines against hepatitis A all contain 
private-sector mandates as defined in UMRA. The cost of 
complying with the mandates would not exceed the threshold 
established by UMRA ($117 million in 2003, adjusted annually 
for inflation). CBO has determined that sections 702 and 831 of 
the bill contain no new private-sector mandates as defined in 
UMRA.
    Estimate prepared by: Federal revenues: Annie Bartsch; 
federal spending: Lisa Cash Driskill, Dave Hull, and Matthew 
Pickford; impact on state, local, and tribal governments: Greg 
Waring; and impact on the private sector: Paige Piper/Bach.
    Estimate approved by: G. Thomas Woodward, Assistant 
Director for Tax Analysis; and Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      III. VOTES OF THE COMMITTEE

    In compliance with paragraph 7(b) of rule XXVI of the 
standing rules of the Senate, the following statements are made 
concerning the rollcall votes in the Committee's consideration 
of the ``Energy Tax Incentives Act of 2003.''

Motion to report the Bill

    An original bill, the ``Energy Tax Incentives Act of 
2003,'' was ordered favorably reported, by a record vote on 
April 2, 2003:
    Yeas.--Senators Grassley, Hatch, Lott, Snowe, Thomas, 
Santorum (proxy), Frist (proxy), Smith, Bunning, Baucus, 
Rockefeller (proxy), Daschle (proxy), Breaux, Conrad (proxy), 
Jeffords (proxy), Bingaman (proxy), Kerry (proxy), Lincoln.
    Nays.--Senators Nickles, Kyl.

Votes on other amendments

    The Committee accepted an amendment by Senator Bingaman to 
expand the research credit to 100 percent of expenses for 
energy related research by universities and 20 percent for 
payments to research consortiums for energy research. The 
Committee rejected a motion by Senators Baucus and Graham, to 
extend Superfund taxes, by record vote:
    Yeas.--Senators Snowe, Baucus, Rockefeller, Daschle, 
Conrad, Graham (proxy), Jeffords, Bingaman, Kerry (proxy).
    Nays.--Senators Grassley, Hatch, Nickles, Lott, Kyl, 
Thomas, Santorum, Frist (proxy), Smith, Bunning, Breaux, 
Lincoln.
    The Committee rejected a motion by Senators Baucus, 
Rockefeller, Daschle, Breaux, Conrad, Graham, Jeffords, 
Bingaman, Kerry and Lincoln regarding tax shelter transparency 
and enforcement, by record vote:
    Yeas.--Baucus, Rockefeller, Daschle, Breaux, Conrad, Graham 
(proxy), Jeffords, Bingaman, Kerry (proxy), Lincoln.
    Nays.--Senators Grassley, Hatch, Nickles, Lott, Snowe, Kyl, 
Thomas, Santorum, Frist (proxy), Smith, Bunning.
    The Committee rejected a modified amendment by Senator 
Jeffords, regarding the motor fuel excise tax on diesel fuel 
used by railroads, by record vote:
    Yeas.--Baucus, Rockefeller (proxy), Jeffords, Kerry 
(proxy).
    Nays.--Grassley, Hatch (proxy), Nickles, Lott, Snowe, Kyl, 
Thomas, Santorum (proxy), Frist (proxy), Smith, Bunning, 
Daschle, Breaux, Conrad, Bingaman, Lincoln.
    The Committee accepted an amendment by Senator Lott 
regarding the immediate repeal of 4.3 cents tax on diesel used 
by rails and barges, by voice vote.
    The Committee accepted an amendment by Senator Conrad to 
provide credit for business installations of stationary 
microturbine power plants. (Senator Kyl objected.)
    The Committee rejected an amendment by Senator Nickles to 
strike section 29 of the Chairman's mark, by rollcall vote:
    Ayes.--Senators Nickles, Lott, Kyl, Bunning.
    Nays.--Senators Grassley, Hatch (proxy), Snowe, Thomas, 
Santorum (proxy), Frist (proxy), Smith, Baucus, Rockefeller 
(proxy), Daschle (proxy), Breaux, Conrad (proxy), Graham 
(proxy), Jeffords (proxy), Bingaman (proxy), Kerry (proxy), 
Lincoln.
    The Committee accepted an amendment by Senator Lincoln to 
modify section 29 of the Internal Revenue Code with respect to 
the definition of a landfill gas facility and to modify section 
45 of the Internal Revenue Code for the production of 
electricity to include electricity produced from facilities 
that burn municipal solid waste. The amendment was modified to 
include the President's Budget Proposal of definition change 
for landfill gas placed in service date and to amend the 
extension of Internal Revenue Service user fees.

                IV. REGULATORY IMPACT AND OTHER MATTERS


                          A. Regulatory Impact

    Pursuant to paragraph 11(b) of rule XXVI of the Standing 
Rules of the Senate, the Committee makes the following 
statement concerning the regulatory impact that might be 
incurred in carrying out the provisions of the bill as amended.

Impact on individuals and businesses

    With respect to individuals and businesses, the bill 
modifies the rules relating to (1) tax benefits for alternative 
fuels; (2) coal production; (3) oil and gas production; (4) 
energy conservation; and (5) electric industry participants 
involved in industry restructuring activities. Taxpayers may 
elect whether to avail themselves of the provisions of the 
bill. Thus, the provisions do not impose increased regulatory 
burdens on individuals or businesses. Certain provisions of the 
bill, such as the provision relating to transfers of 
decommissioning funds associated with nuclear generating 
facilities, simplify the present-law rules and, therefore, 
reduce burdens on taxpayers electing to utilize the provision. 
Thus, the bill does not impose increased regulatory burdens on 
individuals and businesses.

Impact on personal privacy and paperwork

    The provisions of the bill do not impact personal privacy. 
Individuals may elect whether to avail themselves of the 
provisions of the bill. Thus, the bill does not impose 
increased paperwork burdens on individuals. Individuals who 
elect to take advantage of the bill may in some cases need to 
keep records in order to demonstrate that they qualify for the 
tax treatment provided by the bill. In some cases the bill 
simplifies present law, thus reducing recordkeeping 
requirements.

                     B. Unfunded Mandates Statement

    This information is provided in accordance with section 423 
of the Unfunded Mandates Reform Act of 1995 (P.L. 104-4).
    The Committee has determined that four of the revenue 
provisions of the bill impose Federal mandates on the private 
sector. The four provisions are (1) the provisions to curtail 
tax shelters; (2) tax treatment of corporate inversion 
transactions; (3) the excise tax on stock compensation of 
insiders of inverted corporations; and (4) the revisions to the 
alternative tax regime for individuals who expatriate. The 
Committee has determined that the remaining revenue provisions 
of the bill do not impose a Federal intergovernmental mandate 
on State, local, or tribal governments.

                       C. Tax Complexity Analysis

    Section 4022(b) of the Internal Revenue Service Reform and 
Restructuring Act of 1998 (the ``IRS Reform Act'') requires the 
Joint Committee on Taxation (in consultation with the Internal 
Revenue Service and the Department of the Treasury) to provide 
a tax complexity analysis. The complexity analysis is required 
for all legislation reported by the Senate Committee on 
Finance, the House Committee on Ways and Means, or any 
committee of conference if the legislation includes a provision 
that directly or indirectly amends the Internal Revenue Code 
(the ``Code'') and has widespread applicability to individuals 
or small businesses.
    The staff of the Joint Committee on Taxation has determined 
that a complexity analysis is not required under section 
4022(b) of the IRS Reform Act because the bill contains no 
provisions that amend the Internal Revenue Code and that have 
``widespread applicability'' to individuals or small 
businesses.

        V. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    In the opinion of the Committee, it is necessary in order 
to expedite the business of the Senate, to dispense with the 
requirements of paragraph 12 of rule XXVI of the Standing Rules 
of the Senate (relating to the showing of changes in existing 
law made by the bill as reported by the Committee).

                                
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