[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Rules and Regulations]
[Pages 2842-2871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00331]
[[Page 2841]]
Vol. 90
Monday,
No. 7
January 13, 2025
Part III
Department of the Treasury
-----------------------------------------------------------------------
Internal Revenue Service
-----------------------------------------------------------------------
26 CFR Part 1
Guidance on Clean Electricity Low-Income Communities Bonus Credit
Amount Program; Final Rule
Federal Register / Vol. 90 , No. 7 / Monday, January 13, 2025 / Rules
and Regulations
[[Page 2842]]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 10025]
RIN 1545-BR26
Guidance on Clean Electricity Low-Income Communities Bonus Credit
Amount Program
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations concerning the
program to allocate clean electricity low-income communities bonus
credit amounts established pursuant to the Inflation Reduction Act of
2022 for calendar years 2025 and succeeding years. Applicants investing
in certain clean electricity generation facilities that produce
electricity without combustion and gasification may apply for an
allocation of capacity limitation to increase the amount of the clean
electricity investment credit for the taxable year in which the
facility is placed in service. This document provides definitions and
requirements that are applicable for the program. The final regulations
affect taxpayers seeking allocations of capacity limitation to claim an
increased clean electricity investment credit.
DATES: These regulations are effective on January 13, 2025.
FOR FURTHER INFORMATION CONTACT: Concerning these final regulations,
Whitney Brady, IRS Office of Associate Chief Counsel (Passthroughs &
Special Industries) at (202) 317-6853 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Authority
This document amends the Income Tax Regulations (26 CFR part 1) by
adding regulations authorized to be issued by the Secretary of the
Treasury or her delegate (Secretary) under sections 48E(i) and 7805(a)
of the Internal Revenue Code (Code) regarding the application of
section 48E(h) of the Code (final regulations).
Section 48E(i) provides an express delegation of authority to the
Secretary to provide guidance regarding the implementation of section
48E, stating, ``[n]ot later than January 1, 2025, the Secretary shall
issue guidance regarding implementation of this section.''
The final regulations are also issued under the express delegation
of authority under section 7805(a), which provides that ``the Secretary
shall prescribe all needful rules and regulations for the enforcement
of [the Code], including all rules and regulations as may be necessary
by reason of any alteration of law in relation to internal revenue.''
Background
I. Overview
Section 13702 of Public Law 117-169, 136 Stat. 1818, 1921 (August
16, 2022), commonly known as the Inflation Reduction Act of 2022 (IRA),
added new section 48E(h) to the Code to authorize the Secretary to
establish a program for calendar years 2025 and succeeding years to
award allocations of capacity limitation (Capacity Limitation) that
increase the amount of the new clean electricity investment credit
determined under section 48E(a) (section 48E credit) with respect to
eligible property that is part of an applicable facility. This document
contains final definitions and rules relating to the allocation of
Capacity Limitation for calendar year 2025 and succeeding years,
requirements related to claiming the increase under section 48E(h), and
recapture provisions.
II. Increase to Section 48E Credit
The amount of section 48E credit for a taxable year generally is
calculated by multiplying the qualified investment for such taxable
year with respect to any qualified facility placed in service during
that taxable year by the applicable percentage (as defined in section
48E(a)(2)). If an applicable facility is awarded an allocation of
Capacity Limitation, section 48E(h) increases the amount of the section
48E credit with respect to the applicable facility by increasing the
applicable percentage used to calculate the amount of the section 48E
credit (section 48E(h) Increase). The term applicable facility is
defined in section 48E(h)(2) to mean any qualified facility that (i) is
not described in section 45Y(b)(2)(B) of the Code (relating to
combustion and gasification facilities); (ii) has a maximum net output
of less than five megawatts (MW) (as measured in alternating current
(AC)); and (iii) is described in at least one of four categories in
section 48E(h)(2)(A)(iii) (as further described in part III of this
Background).
III. Clean Electricity Low-Income Communities Bonus Credit Amount
Program
A. In General
Section 48E(h)(4)(A) directs the Secretary to establish a program,
not later than January 1, 2025, to allocate amounts of Capacity
Limitation to applicable facilities. Section 48E(h)(4) also provides
that in establishing a program the Secretary establish procedures for
an efficient allocation process. Section 48E(h)(4) contemplates the
collection and review of applications to consider facilities for an
allocation.
B. Facility Categories and Increase Amount
Depending on the category of the facility, an allocation of
Capacity Limitation may result in a section 48E(h) Increase equal to
either 10 percentage points or 20 percentage points. Section
48E(h)(1)(A)(i) provides for a section 48E(h) Increase of 10 percentage
points for eligible property that is located in a low-income community,
as defined in section 45D(e) of the Code (Category 1 facility), or on
Indian land, as defined in section 2601(2) of the Energy Policy Act of
1992 (25 U.S.C. 3501(2)) (Category 2 facility). Section
48E(h)(1)(A)(ii) provides for a section 48E(h) Increase of 20
percentage points for eligible property that is part of a qualified
low-income residential building project (Category 3 facility) or a
qualified low-income economic benefit project (Category 4 facility).
C. Capacity Limitation
Under section 48E(h)(4)(C), the total annual Capacity Limitation
that may be allocated is 1.8 gigawatts of direct current capacity for
each of the calendar years during the period beginning on January 1,
2025, and ending on December 31 of the applicable year (as defined in
section 45Y(d)(3)), and zero thereafter. Under section 48E(h)(4)(D)(i),
if the annual Capacity Limitation for any calendar year exceeds the
aggregate amount allocated for such year, the excess is carried forward
to the next year. No amount of Capacity Limitation may be carried to
any calendar year after the third calendar year following the
applicable year (as defined in section 45Y(d)(3)). Under section
48E(h)(4)(D)(ii), if the annual Capacity Limitation for calendar year
2024 under section 48(e)(4)(D) of the Code exceeds the aggregate amount
allocated for such year, the excess amount may be carried over and
applied to the annual Capacity Limitation under section 48E(h) for
calendar year 2025. The annual Capacity Limitation for calendar year
2025 shall be increased by the amount of such excess.
D. Allocation Amount
Section 48E(h)(1)(B) provides that any section 48E(h) Increase for
any taxable year with respect to all eligible property
[[Page 2843]]
that is part of a facility shall not exceed the amount which bears the
same ratio to the amount of such increase as the amount of the Capacity
Limitation allocated to such facility bears to the total megawatt
nameplate capacity of such facility, as measured in direct current.
Therefore, if an allocation is made to a particular applicable
facility, the Capacity Limitation amount allocated is based on the
nameplate capacity of that applicable facility.
E. Claiming the Section 48E(h) Increase
Taxpayers that own an applicable facility which received an
allocation may claim the section 48E(h) Increase once the applicable
facility has been placed in service, as part of its claim for the
section 48E credit. For a taxpayer to claim the section 48E(h) Increase
for any property which is part of the applicable facility, section
48E(h)(4)(E)(i) requires that the eligible property be placed in
service within 4 years after the date of allocation.
IV. Notice of Proposed Rulemaking
On September 3, 2024, the Department of the Treasury (Treasury
Department) and the IRS published in the Federal Register (89 FR 71193)
a notice of proposed rulemaking (REG-108920-24, 2024-38 I.R.B. 607),
corrected in 89 FR 77467 on September 23, 2024, under section 48E(h)
(Proposed Regulations) relating to the Program. Comments were requested
in response to the Proposed Regulations by October 3, 2024, and a
public hearing on the Proposed Regulations was held on October 17,
2024. On September 27, 2024, the Treasury Department held a
consultation with Tribal leaders on the Proposed Regulations.
The areas of comment and the revisions to the Proposed Regulations
are discussed in the following Summary of Comments and Explanation of
Revisions section of this preamble. Other minor, editorial, and
clarifying revisions made to the Proposed Regulations as adopted in
these final regulations are not discussed in the Summary of Comments
and Explanation of Revisions section of this preamble.
V. Additional Guidance
As announced in the Proposed Regulations, the Treasury Department
and the IRS are also providing procedural guidance applicable to the
Program opening in calendar year 2025 and future Program years which
will be provided in guidance published in the Internal Revenue
Bulletin. These procedural rules provide guidance necessary to
implement the Program, including, in relevant part, information an
applicant must submit, the application review process, and the manner
of obtaining an allocation. Many of the procedural aspects of the
Program will be similar to the Low-Income Communities Bonus Credit
Program established under section 48(e) available for calendar years
2023 and 2024.
Summary of Comments and Explanation of Revisions
I. Overview
The Treasury Department and the IRS received 45 written comments in
response to the Proposed Regulations. The comments are available for
public inspection at https://www.regulations.gov or upon request. After
full consideration of all comments received, the testimony heard at the
public hearing, and the consultation with Tribal leaders, these final
regulations adopt the Proposed Regulations with modifications in
response to the comments and testimony as described in this Summary of
Comments and Explanation of Revisions.
Comments summarizing the statute or the Proposed Regulations,
recommending statutory revisions, grammatical edits, and addressing
issues that are outside the scope of this rulemaking (such as revising
other Federal regulations, recommending changes to tax forms, website
portals, or procedural guidance published in the Internal Revenue
Bulletin) are generally not addressed in this Summary of Comments and
Explanation of Revisions or adopted in these final regulations. In
addition to addressing the comments received in response to the
Proposed Regulations, the final regulations also include non-
substantive grammatical or stylistic changes to the Proposed
Regulations. Unless otherwise indicated in this Summary of Comments and
Explanation of Revisions, provisions of the Proposed Regulations with
respect to which no comments were received are adopted without
substantive change.
II. General Rules
A. In General
Consistent with section 48E(h)(1), proposed Sec. 1.48E(h)-1(a)(1)
would provide that for purposes of section 46 of the Code, if an
allocation of Capacity Limitation is made with respect to eligible
property (as defined in proposed Sec. 1.48E(h)-1(c)) that is part of
any applicable facility (as defined in proposed Sec. 1.48E(h)-1(b))
placed in service in connection with low-income communities under the
Program established under section 48E(h)(4), the applicable percentage
used to calculate the amount of the section 48E credit is increased
under section 48E(h)(1). The final regulations adopt this rule.
B. Certain Terms
Proposed Sec. 1.48E(h)-1(a)(2) would describe certain terms used
in the Proposed Regulations. Proposed Sec. 1.48E(h)-1(a)(2)(i) would
explain that the term applicant would be used interchangeably with
taxpayer in accordance with the context of a particular rule. Proposed
Sec. 1.48E(h)-1(a)(2)(ii) would explain that the term Internal Revenue
Bulletin has the meaning provided in Sec. 601.601. The final
regulations adopt these terms and descriptions with certain additions
to define the term applicant. Section 1.48E(h)-1(a)(2)(i) of the final
regulations adds language to clarify that the owner of the facility,
and the taxpayer which intends to claim the section 48E credit, is the
applicant. The final regulations further clarify that disregarded
entities are not eligible applicants and may not apply for an
allocation. Instead, the regarded taxpayer that owns the disregarded
entity is the applicant for purposes of the Program.
III. Applicable Facility
A. Definition of Applicable Facility
The term applicable facility is defined in section 48E(h)(2)(A) to
mean any qualified facility (as defined in section 48E(b)(3)) that (i)
is not described in section 45Y(b)(2)(B) (related to combustion and
gasification facilities); (ii) has a maximum net output of less than 5
MW (as measured in AC); and (iii) is described in at least one of the
four categories described in section 48E(h)(2)(A)(iii). Consistent with
section 48E(h)(2)(A), proposed Sec. 1.48E(h)-1(b)(1) would define an
applicable facility to mean any qualified facility (as defined in
section 48E(b)(3)) that (i) is a non-combustion and gasification
facility for which the Secretary has determined has a greenhouse gas
(GHG) emissions rate of not greater than zero in guidance published
either in the Federal Register or in the Internal Revenue Bulletin as
of the opening date for a Program year; (ii) has a maximum net output
of less than 5 MW (as measured in AC); and (iii) is described in at
least one of the four categories described in section 48E(h)(2)(A)(iii)
and proposed Sec. 1.48E(h)-1(b)(2).
Several commenters requested the final regulations revise the
definition of applicable facility to include additional types of
technologies that do not otherwise meet the definition of an applicable
facility as defined under
[[Page 2844]]
section 48E(h)(2)(A). Section 48E(h)(2)(A) defines applicable facility
by referencing the section 48E(b)(3) definition of qualified facility.
Section 48E(h)(2)(A) provides that a qualified facility that is a
combustion and gasification (C&G) facility is not eligible for the
Program. However, whether a qualified facility is a C&G facility or not
is beyond the scope of these regulations under section 48E(h). On June
3, 2024, the Treasury Department and the IRS published in the Federal
Register (89 FR 47792) a notice of proposed rulemaking (REG-119283-23)
under sections 45Y and 48E (48E Proposed Regulations) that would
provide definitions and rules for section 48E generally, including the
types of qualified facilities that are C&G and the types of qualified
facilities that are non-C&G. The 48E Proposed Regulations requested
comments on types of qualified facilities, and such comments will be
addressed in the final regulations under section 48E. A facility must
first be a qualified facility that is eligible to claim the investment
credit under section 48E for the facility to be considered an
applicable facility under the Program. Information and rules for
qualified facilities and the types of categories of non-C&G-facilities
will be included in other guidance, under section 48E, published in the
Federal Register or the Internal Revenue Bulletin. Consistent with the
statute, final Sec. 1.48E(h)-1(b)(1) adopts the proposed rule without
revision.
B. Four Categories of Applicable Facilities
Section 48E(h)(2)(A)(iii) establishes four categories of applicable
facilities as facilities that are located in a low-income community (as
defined in section 45D(e)) or on Indian land (as defined in section
2601(2) of the Energy Policy Act of 1992 (25 U.S.C. 3501(2))), or
facilities that are part of a qualified low-income residential building
project or a qualified low-income economic benefit project. The amount
of the section 48E(h) Increase is 10 percentage points for facilities
located in a low-income community or on Indian land, and 20 percentage
points for facilities which are part of a qualified low-income
residential building project or part of a qualified low-income economic
benefit project.
Proposed Sec. 1.48E(h)-1(b)(2) would generally adopt the statutory
language to define each of the four facility categories, with minimal
modifications to shorten references to the categories as Category 1, 2,
3, or 4, and to clarify specific category requirements.
Proposed Sec. 1.48E(h)-1(b)(2)(i) would provide that a facility is
a Category 1 facility if it is located in a low-income community (as
defined in section 45D(e)). Proposed Sec. 1.48E(h)-1(b)(2)(i) would
also provide clarifying language to explain the term low-income
community generally is defined under section 45D(e)(1) as any
population census tract for which the poverty rate for such tract is at
least 20 percent, or, in the case of a tract not located within a
metropolitan area, the median family income for such tract does not
exceed 80 percent of statewide median family income, or in the case of
a tract located within a metropolitan area, the median family income
for such tract does not exceed 80 percent of the greater of statewide
median family income or the metropolitan area median family income.
Proposed Sec. 1.48E(h)-1(b)(2)(i) additionally would explain that
the term low-income community also includes the modifications in
sections 45D(e)(4) and (5) for tracts with low population and
modification of the income requirement for census tracts with high
migration rural counties. Proposed Sec. 1.48E(h)-1(b)(2)(i) also would
provide that low-income community information for the New Markets Tax
Credit (NMTC) can be found at the U.S. Department of Treasury,
Community Development Financial Institutions (CDFI) Fund website and
its web page mapping tool, https://www.cdfifund.gov/cims. Proposed
Sec. 1.48E(h)-1(b)(2)(i) then would clarify that the poverty rate for
a census tract generally is based on the most recently released ACS
low-income community data for the NMTC. Proposed Sec. 1.48E(h)-
1(b)(2)(i) would provide, however, if updated data is released, a
taxpayer, in its application, can choose to base the poverty rate for
any population census tract on either the prior version of the ACS low-
income community data or the updated ACS low-income community data for
a period of 1 year following the date of the release of the updated
data. Proposed Sec. 1.48E(h)-1(b)(2)(i) would provide that after the
1-year transition period, the updated ACS low-income community data
must be used.
Additionally, proposed Sec. 1.48E(h)-1(b)(2)(i) would provide that
population census tracts that satisfy the definition of low-income
community at the time of application are considered to continue to meet
the definition of low-income community for the duration of the
recapture period unless the location of the facility changes.
One commenter opposed reliance on the NMTC definitions to identify
communities. This commenter cautioned that the NMTC definition may
inadvertently exclude certain disadvantaged areas due to changes in
census tracts and reliance on outdated data. This commenter suggested
that, instead, the Program should use alternative metrics to identify
low-income communities like the Climate and Economic Justice Screening
Tool (CEJST) and allowing for case-by-case evaluations for community-
level qualifications.
Section 48E(h)(2)(A)(iii)(I) requires that a Category 1 facility be
located in a low-income community census tract as defined under section
45D(e) for purposes of the NMTC. Therefore, the section 45D(e)
definition of low-income community census tracts must be used to
determine whether a facility is located in a low-income community
census tract for purposes of determining Category 1 eligibility under
this Program. The statute does not permit another metric to identify
communities as low-income that have not been identified as low-income
community census tracts by the CDFI Fund, for purposes of NMTC.
Finally, the Program includes the use of CEJST data under the
Additional Selection Criteria Geographic Criteria. These comments are
not adopted and final Sec. 1.48E(h)-1(b)(2)(i) retains the language
from the proposed rule.
One commenter expressed support for the ability of a developer to
choose to base the poverty rate for any population census tract on
either the prior version of the ACS low-income community data or the
updated ACS low-income community data. The CDFI Fund uses the ACS five-
year data to determine the low-income community census tracts for
purposes of the NMTC. When the CDFI Fund updates the low-income census
tract determination based on the most recent 5-year ACS data, the CDFI
Fund allows for a one-year transition period for reliance purposes. The
final regulations adopt the CDFI Fund's one-year transition period to
allow for the same reliance; however, the final regulations clarify
that Sec. 1.48E(h)-1(b)(2)(i) does not provide a blanket ability for
applicants to select between prior and current official ACS data. The
last update to the low-income community census tracts for the NMTC
occurred on September 1, 2023. The transition period, and, therefore,
the ability to utilize either the prior or updated data to claim that a
facility is located in a low-income area also ended on September 1,
2024. The Treasury Department anticipates the next update will occur in
2028. When a subsequent update occurs, the transition period will
[[Page 2845]]
again allow for taxpayers to use either the prior or updated data to
determine whether their facility is located in a low-income community
census tract.
Proposed Sec. 1.48E(h)-1(b)(2)(ii) would provide that, consistent
with section 48E(h)(2)(A)(iii)(I), a facility is a Category 2 facility
if it is located on Indian land as defined in section 2601(2) of the
Energy Policy Act of 1992 (25 U.S.C. 3501(2)). No comments were
received on this rule, and, accordingly, the final regulations adopt
this rule without modification.
Section 48E(h)(2)(A)(iii)(II) defines an applicable facility in
part to include a qualified facility that is part of a qualified low-
income residential building project. Section 48E(h)(2)(B) further
describes a facility as part of a ``qualified low-income residential
building project'' if it is installed on a residential building that
participates in a covered housing program (as defined in section
41411(a) of the Violence Against Women Act of 1994 (34 U.S.C.
12491(a)(3)) (VAWA), a housing assistance program administered by the
Department of Agriculture under title V of the Housing Act of 1949, a
housing program administered by a tribally designated housing entity
(as defined in section 4(22) of the Native American Housing Assistance
and Self-Determination Act of 1996 (25 U.S.C. 4103(22))), or such other
affordable housing programs as the Secretary may provide, and requires
that the financial benefits of the electricity produced by such
facility are allocated equitably among the occupants of the dwelling
units of such building.
Consistent with the statute, proposed Sec. 1.48E(h)-1(b)(2)(iii)
would define a facility as a Category 3 facility if it is part of a
qualified low-income residential building project, and further would
provide that a facility will be treated as part of a qualified low-
income residential building project if such facility is installed on a
residential rental building that participates in a covered housing
program or other affordable housing program described in section
48E(h)(2)(B)(i) and the financial benefits of the electricity produced
by such facility are allocated equitably among the occupants of the
dwelling units of such building as provided in proposed Sec. 1.48E(h)-
1(e). Proposed Sec. 1.48E(h)-1(b)(2)(iii) also would include the term
Qualified Residential Property to separately refer to the residential
rental building (as opposed to the Category 3 facility). Proposed Sec.
1.48E(h)-1(b)(2)(iii) additionally would clarify that the Qualified
Residential Property, and not just its tenants, must participate in a
covered housing program or other affordable housing program described
in section 48E(h)(2)(B)(i). Proposed Sec. 1.48E(h)-1(b)(2)(iii) would
further clarify that a Qualified Residential Property could either be a
multifamily rental property or single-family rental property.
Additionally, proposed Sec. 1.48E(h)-1(b)(2)(iii) would clarify that a
facility does not need to be installed directly on the building to be
considered installed on a Qualified Residential Property if the
facility is installed on the same or an adjacent parcel of land as the
Qualified Residential Property and the other requirements to be a
Category 3 facility are satisfied. No comments were submitted on this
definition. These final regulations adopt the proposed rule without
modification.
The preamble to the Proposed Regulations would include an
illustrative list of eligible Federal housing programs for Category 3.
The Treasury Department and the IRS, in consultation with other Federal
agencies, developed the illustrative list of Federal housing programs
and policies that meet the requirements in section 48E(h)(2)(B)(i) of
being covered under section 41411(a) of VAWA, administered by the
Department of Agriculture under title V of the Housing Act of 1949, or
administered by a tribally designated housing entity (as defined in
section 4(22) of the Native American Housing Assistance and Self-
Determination Act of 1996). The eligible Federal housing program list
will be included in guidance published in the Internal Revenue
Bulletin, and the list may be updated in future guidance published in
the Internal Revenue Bulletin.
Section 48E(h)(2)(B)(i) also authorizes the Secretary to add other
affordable housing programs to the list of eligible programs. The
Proposed Regulations requested comment on whether other affordable
housing programs should be added to the list of eligible programs, and
specifically whether and under what conditions certain state programs
should be added to the list.
Several commenters named specific state housing programs and
requested addition of those programs as eligible Category 3 housing
programs. However, those commenters did not explain why the specific
program should be included and what comprehensive set of criteria
warrant the inclusion of these specific programs over others. One
commenter suggested that any property with a 100 percent affordability
covenant that has a minimum of 10 years remaining should be included as
an eligible program. Similarly, another commenter recommended that
state-subsidized affordability restricted housing programs that have
affordability restrictions equal to or greater than federal programs
listed in the Proposed Regulations, should qualify for Category 3. As
an additional recommendation, this commenter suggested guidelines for
Naturally Occurring Affordable Housing (NOAH), and provided an example
stating that eligibility could be considered if the housing is owned by
a non-profit or a LLC with a non-profit as the single member and the
property is located in a Justice 40 community or where the average rent
does not exceed Department of Housing and Urban Development (HUD) fair
market rent. Another commenter urged expansion of the list of
affordable housing programs eligible to include state and local
programs that provide rental assistance and/or capital investments in
affordable housing. This commenter also suggested that state and local
programs with affordability and compliance requirements like the
Federal programs currently qualifying for Category 3 should be
eligible. Similarly, another commenter suggested the inclusion of any
state-funded low-income housing or transitional housing program where
eligibility for assistance under such program is equivalent to
eligibility criteria for any of the enumerated federal covered housing
programs.
At this time, the Treasury Department and the IRS have determined
that the list of eligible housing programs should only include Federal
housing programs, not State and local programs. The statute requires
the building participate in a covered hosing program or other
affordable housing program; it is not sufficient that the building has
certain characteristics, such as being owned by a tax-exempt entity.
Additionally, the statute enumerates programs that are eligible based
only on their inclusion under VAWA or because the programs are
administered by the USDA or a Tribally designated housing entity. There
are no standard criteria across these eligible programs which can be
applied to objectively consider other programs. Additionally, comments
did not provide a comprehensive set of criteria that could be used to
determine what additional affordable housing programs should be
included. The Treasury Department, under the authority granted under
section 48E(h)(2)(B)(i), may decide in the future to include additional
programs for Category 3. If additional, specific housing programs are
deemed eligible, or if a process is later developed to consider housing
programs for inclusion, that information will be
[[Page 2846]]
announced through guidance published in the Internal Revenue Bulletin.
Regarding Federal housing programs, commenters recommended
additional housing programs, including programs administered by the
Department of Hawaiian Home Lands, Native Hawaiian Organizations, and
Hawaiian Homestead Associations. In consultation with HUD, the Treasury
Department and the IRS have adopted changes to the list of eligible
housing programs for Category 3. For the Program year beginning in
calendar year 2025, HUD project based vouchers under Section 8 of the
United States Housing Act of 1937 and housing programs administered by
the Department of Hawaiian Home Lands as defined in Title VIII of the
Native American Housing Assistance and Self-Determination Act of 1996
(24 CFR 1006.10), Hawaiian Homestead Associations (HHA) as defined in
43 CFR 48.6, and DHHL or HHA lands administered by Native Hawaiian
Organizations as defined in 13 CFR 124.3, have been added to the list
of eligible housing programs. Guidance published in the Internal
Revenue Bulletin, as updated, will contain the complete list of
eligible housing programs for Category 3.
Section 48E(h)(2)(A)(iii)(II) defines an applicable facility in
part to include a qualified facility that is part of a qualified low-
income economic benefit project. Section 48E(h)(2)(C) provides that a
facility will be treated as part of a qualified low-income economic
benefit project if at least 50 percent of the financial benefits of the
electricity produced by such facility are provided to households with
income of less than 200 percent of the poverty line (as defined in
section 36B(d)(3)(A) of the Code) applicable to a family of the size
involved, or less than 80 percent of area median gross income (as
determined under section 142(d)(2)(B) of the Code).
Consistent with section 48E(h)(2)(A)(iii)(II), proposed Sec.
1.48E(h)-1(b)(2)(iv), would define a Category 4 facility as a facility
that is part of a qualified low-income economic benefit project.
Proposed Sec. 1.48E(h)-1(b)(2)(iv) would further provide that a
facility will be treated as part of a qualified low-income economic
benefit project if at least 50 percent of the financial benefits of the
electricity produced by the facility are provided to households with
income of less than 200 percent of the poverty line (as defined in
section 36B(d)(3)(A)) applicable to a family of the size involved, or
80 percent of area median gross income (as determined under section
142(d)(2)(B)).
No comments were submitted regarding proposed Sec. 1.48E(h)-
1(b)(2)(iv). The final regulations adopt the proposed rule without
modification.
C. Less Than Five Megawatts Requirement
Section 48E(h)(2)(A)(ii) requires that an applicable facility have
a maximum net output of less than 5 megawatts (as measured in AC),
referred to in this preamble as the less than five megawatts
requirement. Proposed Sec. 1.48E(h)-1(b)(3)(i) would provide that the
less than five megawatts requirement is measured at the level of the
applicable facility in accordance with section 48E(h)(2)(A)(ii).
Proposed Sec. 1.48E(h)-1(b)(3)(i) additionally would clarify that the
maximum net output of an applicable facility is measured only by
nameplate generating capacity of the applicable facility, which
includes only functionally interdependent components of the applicable
facility, at the time the applicable facility is placed in service.
Proposed Sec. 1.48E(h)-1(b)(3)(i) would provide that components of
property are functionally interdependent if the placing in service of
each component is dependent upon placing in service other components to
produce electricity.
Proposed Sec. 1.48E(h)-1(b)(3)(ii) would further provide that the
determination of whether an applicable facility has a maximum net
output of less than 5 megawatts (MW) (as measured in AC) is based on
the nameplate capacity of the applicable facility. Proposed Sec.
1.48E(h)-1(b)(3)(ii) would additionally state that the nameplate
capacity for purposes of the less than five megawatts requirement is
the maximum electrical generating output in MW that the applicable
facility is capable of producing on a steady state basis and during
continuous operation under standard conditions, as measured by the
manufacturer and consistent with the definition of nameplate capacity
provided in 40 CFR 96.202. Proposed Sec. 1.48E(h)-1(b)(3)(ii) would
also state that if applicable, the International Standard Organization
conditions should be used to measure the maximum electrical generating
output of an applicable facility.
The Proposed Regulations requested comments on other approaches to
address this statutory requirement that would further the purpose of
efficient allocation of a Federal tax credit program with a national
impact and would advance the goals of the Program to incentivize
additional deployment of qualified facilities in low-income
communities. The preamble to the Proposed Regulations stated that these
approaches could include rules that would aggregate the capacity of
qualified facilities with integrated operations (that is, qualified
facilities that are owned by the same taxpayer, placed in service in
the same taxable year, and transmit electricity generated by the
facilities through the same point of interconnection or, if the
facilities are not grid-connected, to the same end user(s)) solely for
the purposes of whether an application meets the less than five
megawatts requirement under section 48E(h)(2)(A)(ii).
Further, the preamble to the Proposed Regulations explained that
the Treasury Department and the IRS intended to deprioritize review of
applications for an applicable facility that together with other
qualified facilities (1) share a point of interconnection, (2) produce
electricity using the same technology, (3) are owned by the same
taxpayer, and (4) have an aggregate total maximum net output (as
determined by the sum of the maximum net output of the applicable
facility and each qualified facility under proposed Sec. 1.48E(h)-
1(b)(3)(ii)) equal to or greater than five megawatts (as measured in
AC). Deprioritized applications would be considered after other
applications in the current allocation round, or a subsequent
allocation round at the Secretary's discretion.
One commenter stated that the proposed less than 5 MW requirement
may allow larger projects to be deceptively segmented into smaller ones
to manufacture a false qualification for the bonus credit. This
commenter supported the inclusion of stricter aggregation rules to
prevent developers from dividing larger projects to monopolize
allocations intended for genuinely small facilities. Another commenter
expressed support for the proposal to aggregate capacity of qualified
facilities with integrated operations. This commenter, however,
recommended using only one factor to aggregate facilities, a common
point of interconnection. Another commenter suggested that, in
evaluating related qualified facilities, the final regulations should
consider whether an application is for a project where the developer
and its affiliates have multiple interconnection agreements on the same
property.
Section 48E(h)(4)(A) provides that ``[i]n establishing such program
and to carry out the purposes of this subsection, the Secretary shall
provide procedures to allow for an efficient allocation process.'' To
further the aims of an efficient allocation process, the Treasury
Department and the IRS agree with commenters that the final
[[Page 2847]]
regulations should include an aggregation rule to clarify the scope of
applications. Clear parameters of what constitutes an ``applicable
facility'' for purposes of an application to the Program provides
certainty for applicants preparing and submitting applications and for
the IRS in its review of applications. For example, the definition of a
qualified facility, as defined under the 48E Proposed Regulations, may
give the impression to the taxpayer that they must submit multiple
applications for a 3 MW solar facility with multiple inverters. Such a
result would not create an efficient allocation process. Furthermore,
because section 48E(h) is subject to a finite annual Capacity
Limitation, the Treasury Department and the IRS believe allocating
amounts of Capacity Limitation to a group of related qualified
facilities with an aggregate total maximum net output equal to or
greater than 5 MW (as measured in AC) could concentrate allocations
(and the benefits of clean energy development) in a smaller number of
communities, rather than making them more broadly available, which
would not further the purpose of an efficient allocation of a Federal
tax credit. Accordingly, the final regulations revise the nameplate
capacity measurement test to determine whether an applicable facility
has a maximum net output of less than 5 MW (as measured in AC).
Solely for the purposes of the less than five megawatts requirement
for the Program, if an applicable facility has integrated operations
with one or more other qualified facilities of the same technology
type, then the aggregate nameplate capacity of the applicable facility
and other qualified facility must be used to determine the maximum net
output of an applicable facility, including in determining eligibility
for an allocation of Capacity Limitation. This approach provides
clarity to applicants, creates a more efficient allocation process
relative to other approaches because it streamlines application intake
and processing, and helps address commenters' concerns about fairness
in the allocation process.
The final regulations provide at newly added Sec. 1.48E-
1(b)(3)(iv) that solely for the purposes of the less than five
megawatts requirement for the Program, an applicable facility is
treated as having integrated operations with one or more other
qualified facilities of the same technology type, if the facilities
are: (i) owned by the same or related taxpayers; (ii) placed in service
in the same taxable year; and (iii) transmit electricity generated by
the facilities through the same point of interconnection or, if the
facilities are not grid-connected or are delivering electricity
directly to an end user behind a utility meter, are able to support the
same end user. The final regulations also provide a definition for
related taxpayers in newly added Sec. 1.48E-1(b)(4). For purposes of
the less than five megawatts requirement, the term related taxpayers
means members of a group of trades or businesses that are under common
control (as defined in Sec. 1.52-1(b)). Related taxpayers are treated
as one taxpayer in determining whether an applicable facility has
integrated operations.
One commenter requested clarification as to whether facilities with
exactly 5 MW are eligible for the Program, or whether projects must
restrict their inverter output to 4.99 MW (as measured in AC) to
qualify. The statutory language requires that an applicable facility
have a maximum net output of less than 5 MW (as measured in AC), and
the final regulations provide a nameplate capacity test to determine
whether an applicable facility satisfies the statutory requirement.
Accordingly, facilities with a maximum net output of 5 MW (as measured
in AC) or greater are not applicable facilities and are not eligible.
Furthermore, derating or restricting an inverter to get below 5 MW (as
measured in AC) would only change the output of the facility but would
not change the maximum net output (or nameplate capacity) of the
facility.
The Treasury Department and the IRS are aware that certain
technologies generate electricity in direct current, not alternating
current, and therefore, it is unclear how to determine whether an
applicable facility has a maximum net output of less than 5 MW (as
measured in AC).
For applicable facilities that generate electrical output in direct
current, the final regulations provide an alternative nameplate
capacity measurement at newly added Sec. 1.48E-1(b)(3)(iii). Only for
qualified facilities that generate electricity in direct current, the
taxpayer may choose to determine the maximum net output (in alternating
current) of the applicable facility by using the lesser of: (i)
nameplate generating capacity of the applicable facility in direct
current, which is deemed the nameplate generating capacity of the
applicable facility in alternating current; or (ii) the nameplate
capacity of the first component of property that inverts the direct
current electricity into alternating current.
D. Eligible Property
Section 48E(h)(3) defines eligible property as a qualified
investment with respect to any applicable facility. Section 48E(b)
describes a qualified investment with respect to a qualified facility.
Generally, for purposes of section 48E(a), section 48E(b)(1)(A) and
(b)(1)(B) provide that the qualified investment with respect to a
qualified facility for any taxable year is the sum of the basis of any
qualified property placed in service by the taxpayer during such
taxable year that is part of a qualified facility, plus the amount of
expenditures that are paid or incurred by the taxpayer for qualified
interconnection property.
Consistent with section 48E(h)(3), proposed Sec. 1.48E(h)-1(c)
would define eligible property as a qualified investment (as defined in
section 48E(b)) \1\ with respect to any applicable facility. The
preamble to the Proposed Regulations explained that pursuant to section
48E(h)(3), eligible property does not include any qualified investment
with respect to energy storage technology.
---------------------------------------------------------------------------
\1\ See proposed Sec. 1.48E-2(d), as proposed in the notice of
proposed rulemaking (REG-119283-23) published in the Federal
Register (89 FR 47792) on June 3, 2024, and corrected on July 18,
2024 at 89 FR 58305, for more information regarding the definition
of ``qualified investment.''
---------------------------------------------------------------------------
Several commenters objected to the exclusion of energy storage
technology as eligible property for purposes of the section 48E(h)
Increase. Some commenters requested that the final regulations should
include energy storage technology as eligible property for purposes of
the Program. These commenters cited to the inclusion of co-located
energy storage technology as eligible property for purposes of the
predecessor program under section 48(e). One commenter asserted that
the proposed rule was wrong, and that certain energy storage technology
should be includable as a qualified investment by distinguishing
between stand-alone energy storage technology and energy storage
technology associated with a qualified facility. This commenter
asserted that associated energy storage technology is an integral part
of the qualified facility and should be includable as a qualified
investment. Another commenter similarly requested that the final
regulations under sections 48E and 45Y classify energy storage
technology as an integral part of the qualified facility, and
therefore, further requested that energy storage technology be eligible
for the section 48E(h) Increase. Alternatively, this commenter
suggested that the final regulations
[[Page 2848]]
clarify that facilities that include energy storage technology remain
eligible for the bonus credit for the portion of the system that is a
qualified facility.
Section 48E(a) defines and provides an investment credit for energy
storage technology distinct and separate from a credit for a qualified
facility. Eligible property under section 48E(h) only includes a
qualified investment with respect to an applicable facility, and
therefore, the statute does not support inclusion of energy storage
technology in the section 48E(h) Program. If an applicant has a system
that includes both an applicable facility and energy storage
technology, the applicable facility would still be eligible for a
credit under section 48E and the section 48E(h) Increase. Accordingly,
the final regulations do not adopt these comments.
E. Location
Proposed Sec. 1.48E(h)-1(d)(1) would treat an applicable facility
as located in a low-income community or on Indian land under section
48E(h)(2)(A)(iii)(I) or located in a geographic area under the
Additional Selection Criteria (see part VI.B. of this Summary of
Comments and Explanation of Revisions) if the facility satisfies the
nameplate capacity test (Nameplate Capacity Test for Location) provided
in proposed Sec. 1.48E(h)-1(d)(2). Proposed Sec. 1.48E(h)-1(d)(2)
would describe the Nameplate Capacity Test for Location, which provides
that an applicable facility would be considered located in or on the
relevant geographic area described in proposed Sec. 1.48E(h)-1(d)(1)
if 50 percent or more of the applicable facility's nameplate capacity
is in a qualifying area. The purpose of this proposed rule is to
provide applicants that have an applicable facility that is not
entirely located in a qualifying area a means to evaluate eligibility.
For example, if an applicant's applicable facility is sited on the
boundary of a qualifying area, the Nameplate Capacity Test for Location
is used to determine if the applicable facility is deemed located in
the qualifying area.
One commenter recommended that devices that are offshore but are
eligible for section 48E and can attribute their nameplate capacity to
where their power conditioning equipment is onshore should be able to
satisfy the Nameplate Capacity Test for Location. This commenter noted
that this recommendation is consistent with the Nameplate Capacity
Attribution Rule found in Notice 2024-30, 16 I.R.B. 878. The final
regulations do not adopt this comment because it is not in accordance
with the Program's requirements. The commenter's suggestion stems from
guidance issued for an increased credit rate for qualifying facilities
located in specific energy communities. The statutory requirements for
the location of an applicable facility eligible for the Program are
different than for a qualifying facility eligible for the energy
communities bonus. Moreover, the Treasury Department and the IRS do not
expect applicable facilities to be located offshore outside of the
boundaries of a qualifying area. Accordingly, for the purposes of the
Program, the Nameplate Capacity Test for Location requires that an
applicable facility be located in a qualifying area. The final
regulations adopt Sec. 1.48E(h)-1(d)(1) as proposed.
IV. Financial Benefits for Category 3 and Category 4 Allocations
A. In General
Section 48E(h)(2)(D) provides that electricity acquired at a below-
market rate will not fail to be taken into account as a financial
benefit. The Proposed Regulations would propose definitions and
requirements related to the term financial benefit under section
48E(h)(2)(D), as well as a manner to apply such definitions and
requirements, appropriately, to qualified low-income residential
building projects (section 48E(h)(2)(B)) and qualified low-income
economic benefit projects (section 48E(h)(2)(C)). The proposed
definitions and requirements for financial benefits were different for
an allocation under Category 3 (section 48E(h)(2)(B)) and Category 4
(section 48E(h)(2)(C)) and these definitions remain different for each
respective category in the final regulations, because the statutory
language provides distinct financial benefit requirements for these
categories. A Summary of Comments and Explanation of Revisions for
financial benefits for Category 3 facilities is presented below in
section IV.C. and for Category 4 in section IV.D.
B. Renewable Energy Certificates (RECs)
For both Category 3 and Category 4, commenters requested clarity on
whether RECs are included in the determination of financial benefits.
Commenters generally opposed including RECs as part of the financial
benefits determination. Section 48E(h)(2)(B)(ii) and (C) both require
distribution of the ``financial benefits of the electricity produced''
by a facility. The Treasury Department and the IRS, understand that
accessibility and inclusion of RECs vary across the U.S. depending on
the relevant region or state's regulations and overall market. RECs
represent environmental or renewable ``attributes'' or ``benefits''
associated with renewable energy generation and RECs are environmental
commodities that can be traded separately from wholesale electricity
markets. RECs are issued in situations when electricity is generated
from a renewable facility and the ability of the owner of the renewable
facility to sell RECs has the potential to generate revenue and a
financial benefit for the owner. For this reason, any revenue generated
by the sale of RECs should be included in determining financial
benefits for both Category 3 and Category 4. Similarly, any other
certificates or credits (excluding Federal tax credits) that are
related to electricity production and that yield revenue to the owner
as a result of electricity generated should be included in determining
financial benefits. This clarification does not impact any of the
Proposed Regulations under Category 3. There were additional comments
regarding RECs and the manner by which RECs must be included in
determining the bill credit discount rate for Category 4. These
comments are summarized and addressed in section IV.D. of this Summary
of Comments and Explanations of Revisions.
C. Financial Benefits for Qualified Low-Income Residential Building
Projects
For a facility to be treated as part of a qualified low-income
residential building project (Category 3 facility), section
48E(h)(2)(B)(ii) provides that the financial benefits of the
electricity produced by such facility must be allocated equitably among
the occupants of the dwelling units of a Qualified Residential
Property.
Consistent with the statute, proposed Sec. 1.48E(h)-1(e)(1) would
provide that, to satisfy the requirements of a Category 3 facility, the
financial benefits of the electricity produced by the facility must be
allocated equitably among the occupants of the dwelling units of the
Qualified Residential Property. Proposed Sec. 1.48E(h)-1(e)(1) would
also clarify that the same rules for financial benefits for Category 3
facilities apply to both multi-family and single-family Qualified
Residential Property. No comments were submitted regarding this
proposed rule, and the final regulations adopt this proposed rule for
Category 3 financial benefits without modification.
Proposed Sec. 1.48E(h)-1(e)(2) would require that at least 50
percent of the financial value of the electricity produced by the
facility (as defined in proposed Sec. 1.48E(h)-1(e)(3)) must be
equitably allocated to the Qualified Residential Property's occupants
that
[[Page 2849]]
are designated as low-income occupants under the housing program.
Proposed Sec. 1.48E(h)-1(e)(3) would further define the financial
value of the electricity produced by the applicable facility as the
greater of: (i) 25 percent of the gross financial value (as defined in
proposed Sec. 1.48E(h)-1(e)(4)) of the annual electricity produced by
the applicable facility, or (ii) the net financial value (as defined in
proposed Sec. 1.48E(h)-1(e)(5)) of the annual electricity produced by
the applicable facility. These requirements recognize that not all the
financial value of the electricity produced can be passed on to
building occupants because a certain percentage can be assumed to be
dedicated to lowering the operational costs of electricity consumption
for common areas, which benefits all building occupants.
Proposed Sec. 1.48E(h)-1(e)(4) would then provide that the gross
financial value of the annual electricity produced by the applicable
facility is the sum of: (i) the total self-consumed kilowatt-hours
produced by the applicable facility multiplied by the Qualified
Residential Property's metered volumetric price of electricity, (ii)
the total exported kilowatt-hours produced by the applicable facility
multiplied by the Qualified Residential Property's volumetric export
compensation rate for kilowatt-hours of electricity, and (iii) the sale
of any attributes associated with the applicable facility's production
(including, for example, any Federal, State or Tribal renewable energy
certificates or incentives), if separate from the metered price of
electricity or export compensation rate.
Additionally, the proposed definition of net financial value in
Sec. 1.48E(h)-1(e)(5) would account for the specific nature of
facilities serving low-income residential buildings and facility
ownership. In the case of common ownership, when the facility owner is
also the Qualified Residential Property owner, proposed Sec. 1.48E(h)-
1(e)(5)(i) would define net financial value as the gross financial
value of the annual electricity produced minus the annual average (or
levelized) cost of the applicable facility over the useful life of the
facility (including debt service, maintenance, replacement reserve,
capital expenditures, and any other costs associated with constructing,
maintaining, and operating the facility). For third-party ownership,
when the facility and the Qualified Residential Property are not
commonly owned and the facility owner enters into a power purchase
agreement or other contract for electricity services with the Qualified
Residential Property owner and/or building occupants, proposed Sec.
1.48E(h)-1(e)(5)(ii) would define net financial value as the gross
financial value of the annual electricity produced minus any payments
made by the building owner and/or building occupants to the applicable
facility owner for electricity services associated with the applicable
facility in a given year.
A commenter stated that the proposed methodology and calculations
established to calculate net financial value and gross financial value
are too restrictive and hinder the ability for qualified low-income
residential buildings to participate. This commenter also asserted that
the required financial benefits would exceed the value of the credit.
Two commenters requested that the final regulations eliminate the
``greater of'' language in proposed Sec. 1.48E(h)-1(e)(3) and replace
it with ``either'' to allow applicants to choose between using the
gross financial value or the net financial value. These commenters
asserted that using either method would still result in the 50 percent
minimum requirement under the Proposed Regulations to be met.
The Treasury Department and the IRS do not agree with comment
observing that the calculations for Category 3 financial benefits will
hinder the ability for qualified low-income residential buildings to
participate. No other comments were submitted suggesting that the
calculations will restrict the participation of low-income residential
buildings. The calculations provide clear parameters for applicants and
financial benefits to residents. This comment is not adopted with
respect to eliminating the ``greater of'' requirement. The ``greater
of'' language helps implement the statutory requirement for the
equitable distribution of financial benefits to tenants and supports
the Program's objectives of providing financial benefits directly to
households. Additionally, while the statute requires that the financial
benefits of the electricity produced be shared with occupants, the
final regulations already recognize that not all the financial value of
the electricity produced can be passed on to building occupants, and
that a certain portion can be used for lowering the operational costs
of electricity consumption for common areas, which benefits all
building occupants.
Proposed Sec. 1.48E(h)-1(e)(5)(iii) would provide different rules
to ensure an equitable allocation of financial benefits regardless of
whether the financial value is distributed to building occupants via
utility bill savings or through some other means. If financial value is
distributed via utility bill savings, proposed Sec. 1.48E(h)-
1(e)(5)(iii)(A) would provide that financial benefits will be
considered to be allocated equitably if at least 50 percent of the
financial value of the electricity produced by the applicable facility
is distributed as utility bill savings in equal shares to each building
dwelling unit among the Qualified Residential Property's occupants that
are designated as low-income under the covered housing program or other
affordable housing program (described in section 48E(h)(2)(B)(i)) or
alternatively distributed in proportional shares based on each low-
income dwelling unit's square footage, or each low-income dwelling
unit's number of occupants. Proposed Sec. 1.48E(h)-1(e)(5)(iii)(A)
also would provide that for any occupant(s) who chooses to not receive
utility bill savings, the portion of the financial value that would
otherwise be distributed to non-participating occupants must be instead
distributed to all participating occupants. Proposed Sec. 1.48E(h)-
1(e)(5)(iii)(A) would further clarify that no less than 50 percent of
the Qualified Residential Property's occupants that are designated as
low-income must participate and receive utility bill savings for the
applicable facility to use this method of benefit distribution.
Additionally, proposed Sec. 1.48E(h)-1(e)(5)(iii)(A) would provide
that in the case of a solar facility, applicants must follow the HUD
guidance on Treatment of Financial Benefits to HUD-Assisted Tenants
Resulting from Participation in Solar Programs Notice (Housing Notice
2023-09), located at https://www.hud.gov/sites/dfiles/OCHCO/documents/2023-09hsgn.pdf, or future HUD guidance, or other guidance or notices
from the Federal agency that oversees the applicable housing program
identified in section 48E(h)(2)(B) to ensure that tenants' annual
income for rent calculations or other requirements impacting total
tenant payment are not impacted negatively by the distribution of
financial value. In the case of any other applicable facility,
applicants must follow future HUD guidance, or other guidance from the
Federal agency that oversees the applicable housing program. In the
absence of future guidance from a Federal agency, applicants should
apply principles similar to those articulated in the HUD guidance in
the case of any other applicable facility.
Proposed Sec. 1.48E(h)-1(e)(5)(iii)(B) would provide that if
financial value is
[[Page 2850]]
not distributed via utility bill savings, financial benefits will be
considered to be allocated equitably if at least 50 percent of the
financial value of the electricity produced by the applicable facility
is distributed to occupants using one or more methods described in
Housing Notice 2023-09 located at https://www.hud.gov/sites/dfiles/OCHCO/documents/2023-09hsgn.pdf, or future HUD guidance, or other
guidance or notices from the Federal agency that oversees the
applicable housing program identified in section 48E(h)(2)(B). In the
case of a solar facility, applicants must comply with HUD guidance, or
future HUD guidance, for how residents of master-metered HUD-assisted
housing can benefit from owners' sharing of financial benefits accrued
from an investment in solar electricity generation to ensure that
tenants' utility allowances and annual income for rent calculations are
not negatively impacted. Applicants should apply principles similar to
those articulated in the HUD guidance in the case of any other
applicable facility.
No comments were submitted regarding the required methods of
delivery of financial benefits for Category 3 facilities. The Proposed
Regulations would cite to specific HUD guidance on benefits sharing. In
consultation with HUD, the Treasury Department and the IRS understand
that HUD's Office of Multifamily Housing, Office of Public and Indian
Housing, Office of Native American Programs, and other offices may
publish guidance on benefits sharing relevant Category 3 applicable
facilities. Accordingly, the final regulations adopt Sec. 1.48E(h)-
1(e)(5)(iii)(A) and (B) as proposed with minor clarifications to
reflect HUD guidance on benefits sharing.
To strengthen Program compliance and to provide clarity to
applicants regarding how they can demonstrate that statutory
requirements are met, proposed Sec. 1.48E(h)-1(e)(6)(i) would provide
that a Category 3 facility owner must prepare a Benefits Sharing
Statement. Proposed Sec. 1.48E(h)-1(e)(6)(i) would further state that
the Benefits Sharing Statement is required to include (A) a calculation
of the facility's gross financial value using the method described in
proposed Sec. 1.48E(h)-1(e)(4), (B) a calculation of the facility's
net financial value using the method described in proposed Sec.
1.48E(h)-1(e)(5), (C) a calculation of the financial value required to
be distributed to building occupants using the method described in
proposed Sec. 1.48E(h)-1(e)(3), (D) a description of the means through
which the required financial value will be distributed to building
occupants, and (E) if the facility and Qualified Residential Property
are separately owned, an indication of which entity will be responsible
for the distribution of benefits to the occupants.
Proposed Sec. 1.48E(h)-1(e)(6)(ii) would provide that the
Qualified Residential Property owner must formally notify the occupants
of units in the Qualified Residential Property of the development of
the facility and planned distribution of benefits.
No comments were received on the Benefits Sharing Statement or the
requirement to notify. Accordingly, the final regulations adopt these
rules without modification.
D. Financial Benefits in Qualified Low-Income Economic Benefit Projects
For a facility to be treated as part of a qualified low-income
economic benefit project, section 48E(h)(2)(C) requires that at least
50 percent of the financial benefits of the electricity produced by the
facility be provided to qualifying low-income households.
Proposed Sec. 1.48E(h)-1(f)(1) would add the term Qualifying
Households to refer to households which meet the income requirements
under section 48E(h)(2)(C)(i) or (ii) and would provide that to satisfy
the requirements of a Category 4 facility:
(i) The facility must serve multiple Qualifying Households under
section 48E(h)(2)(C)(i) or (ii);
(ii) At least 50 percent of the facility's total output in
kilowatts (kW) must be assigned to Qualifying Households; and
(iii) Each Qualifying Household must be provided a bill credit
discount rate (as defined in proposed Sec. 1.48E(h)-1(f)(2)) of at
least 30 percent.
Proposed Sec. 1.48E(h)-1(f)(2)(i) would additionally define a bill
credit discount rate as the difference between the financial benefit
provided to a Qualifying Household (including utility bill credits,
reductions in a Qualifying Household's electricity rate, or other
monetary benefits accrued by the Qualifying Household on its utility
bill) and the cost of participating in the energy purchasing program
(including subscription payments for zero-carbon energy and any other
fees or charges), expressed as a percentage of the financial benefit
distributed to the Qualifying Household. Proposed Sec. 1.48E(h)-
1(f)(2)(i) also would clarify that the bill credit discount rate can be
calculated by starting with the financial benefit provided to the
Qualifying Household, subtracting all payments made by the Qualifying
Household (or payments remitted on behalf of the Qualifying Household
through net crediting, consolidated billing, or similar arrangements)
to the facility owner and any related third parties as a condition of
receiving that financial benefit, then dividing that difference by the
financial benefit distributed to the Qualifying Household.
While several commenters supported the proposed bill credit
discount rate of 30 percent, many commenters opposed the increase from
the 20 percent bill credit discount rate under the predecessor program.
These commenters asserted that the market and industry have not
sufficiently evolved to account for a bill credit discount rate of 30
percent. Several comments stated that an increase in the bill credit
discount rate would favor States with higher utility rates and already
established solar markets, while having a negative impact on States
with already low electricity prices, or with no or emerging clean
energy programs. Commenters who opposed the 30 percent bill credit
discount rate generally supported reinstating the 20 percent rate from
the predecessor program. Several commenters stated that projects are
already in development based on the 20 percent bill credit discount
rate from the predecessor program under section 48(e), and the
commentors contended that the bill credit discount rate should remain
the same. Some commenters also opposed a phased-in approach to
increasing the bill credit discount rate citing a lack of Program data
to support any increase. Two commenters, however, expressed support for
a phased-in approach. Alternatively, some commenters suggested a tiered
approach to the bill credit discount rate within Category 4 by
adjusting the required bill credit discount rate based on regional
market conditions.
After consideration of the comments, the final regulations adopt a
bill credit discount rate of 20 percent. The 20 percent bill credit
discount rate--as opposed to a 30 percent bill credit discount rate--
supports the Program's goal of national impact by allowing a broader
range of facilities to apply under Category 4. Given the uncertainty of
how the market will evolve and yearslong industry development
timelines, the final regulations do not adjust the bill credit discount
rate over time. Therefore, as finalized, Sec. 1.48E(h)-1(f)(1)(iii)
provides ``[e]ach Qualifying Household must be provided a bill credit
discount rate (as defined in Sec. 1.48E(h)-1(f)(2)) of at least 20
percent.'' The final regulations adopt the rest of the proposed Sec.
1.48E(h)-1(f)(1)(i) and (ii) without modification.
[[Page 2851]]
Proposed Sec. 1.48E(h)-1(f)(2)(ii) would provide that in cases in
which the Qualifying Household has no or only a nominal cost of
participation, and financial benefits are delivered through a utility
or government body, the bill credit discount rate should be calculated
as the financial benefit provided to a Qualifying Household (including
utility bill credits, reductions in a Qualifying Household's
electricity rate, or other monetary benefits accrued by a Qualifying
Household on their utility bill) divided by the total value of the
electricity produced by the facility and assigned to the Qualifying
Household (including any electricity services, products, and credits
provided in conjunction with the electricity produced by such
facility), as measured by the utility, independent system operator
(ISO), or other off-taker procuring electricity (and related services,
products, and credits) from the facility. Proposed Sec. 1.48E(h)-
1(f)(2)(iv) would clarify that the bill credit discount rate is
calculated on an annual basis. Proposed Sec. 1.48E(h)-1(f)(2)(v) would
provide examples to clarify the application of proposed Sec. 1.48E(h)-
1(f)(2).
Proposed Sec. 1.48E(h)-1(f)(2)(iii) would provide that if the
facility derives financial value from the production of electricity in
a manner such that this value cannot be directly applied to the
Qualifying Household's utility bill (for example, renewable energy
certificate payments made directly to the facility owner), then no less
than 30 percent of that monetary value must also be provided to the
Qualifying Household, either through a greater bill credit discount on
the Qualifying Household's utility bill than would otherwise be derived
from the method described in proposed Sec. 1.48E(h)-1(f)(1)(i) or
through other means.
As previously addressed in section IV, generally, of this Summary
of Comments and Explanation of Revisions, the final regulations clarify
that RECs are included in the financial benefits calculation for both
Category 3 and Category 4. Commenters stated that any RECs would
already be included in the general bill credit discount calculation
provided for under proposed Sec. 1.48E(h)-1(f)(1). Commenters,
therefore, questioned why proposed Sec. 1.48E(h)-1(f)(2)(iii) would
separate out any RECs, when the RECs would generally be included in
determining the pool of financial benefits. The Treasury Department and
the IRS understand commenters' concern and agree that clarity is
warranted. The final regulations do not adopt proposed Sec. 1.48E(h)-
1(f)(2)(iii). Rather, the final regulations clarify that the value
derived from the sale of RECs (if any) are included within the
financial value calculation associated with the requirement that at
least 50 percent of the total financial value of the facility's total
production in kilowatts must be assigned to Qualifying Households.
Specifically, Sec. 1.48E(h)-1(f)(1) is revised to clarify that the
financial value calculation associated with the 50 percent requirement
must include other values from electricity production (including any
electricity services, products, and credits or certificates such as
RECs provided in connection with the electricity produced by such
facility, but excluding Federal tax credits), as measured by the
utility, independent system operator, or other off-taker procuring
electricity (and related services, products, and credits of
certificates) from the facility.
Notwithstanding that provision, the Treasury Department and the IRS
agree with commenters that any monetary value from the sale of RECs (if
any) would already be included in the financial benefits value and
general bill credit discount described under Sec. 1.48E(h)-1(f)(2)(i).
As such, there is no reason to separately identify such possible REC
value in the general bill credit discount rate described therein.
However, the value from the sale of RECs is appropriately included
under Sec. 1.48E(h)-1(f)(2)(ii) related to the bill credit discount
requirements when there is no or nominal cost of participation, in this
case focused on the total financial value of the electricity produced
by the facility. Specifically, as described in Sec. 1.48E(h)-
1(f)(2)(ii), the financial value of electricity produced by the
facility includes the sale of any attributes associated with the
applicable facility's production (including, for example, any Federal,
State, Tribal, or utility incentives or renewable energy certificates
but excluding any Federal tax credits). In recognition that utilities
may have incentives associated with the production of electricity, the
final regulations revise proposed Sec. 1.48E(h)-1(e)(4) to include
utility incentives in the parenthetical examples of attributes with
financial value. The final regulations at Sec. 1.48E(h)-1(f)(2) also
include minor edits for clarity, including revisions to Sec. 1.48E(h)-
1(f)(2)(iv)(C) (Example 3), to clarify the calculation of financial
benefits for Category 4 facilities when there is no or nominal cost of
participation.
The preamble to the Proposed Regulations also stated that the
Treasury Department and the IRS were considering adding other methods,
apart from bill credit discounts, for financial benefits to be shared
with Qualifying Households. The Proposed Regulations requested comments
on alternative methods for delivering financial benefits in cases in
which bill credit discounts are not available or are not feasible for
covered technologies. The Proposed Regulations also requested comment
on how alternative financial benefits could be verified and how to
limit the potential impact of financial benefits on potential
recipients' income taxes and eligibility for public assistance
programs.
Comments were mixed regarding the inclusion of alternative
financial benefits, other than the bill credit discount rate in
Category 4. Although several commenters opposed alternative financial
benefit delivery methods, many commenters supported alternatives and
requested that the framework for other methods allowed under Category 3
be applied to Category 4. A commenter stated that some Federally
assisted housing is not able to apply under Category 3 because the
housing does not have the proper roof or adequate parcel size to
support the facility. In these situations, the commenter stated that
households in master-metered buildings should be able to benefit as a
Category 4 project and the financial benefits should be applied as they
are in Category 3. A commenter suggested that Category 4 benefits could
be defined and distributed using the same HUD documents, verification
protocols, and Benefit Sharing Statement as used in Category 3. Another
commenter similarly suggested that HUD regulations should be
promulgated to allow for building improvements, and list, as an
example, adding wi-fi service for tenants. Regarding the tax treatment
of financial benefits for the residents of the Qualifying Households,
one commenter requested that the final regulations provide that
financial benefits are not taxable.
The statutory requirements for a Category 4 facility are distinctly
different than Category 3 facility requirements. For example, the
statutory language under section 48E(h)(2)(C) requires Category 4
financial benefits be ``provided to households'' that meet specific
income limits. An applicant is required to demonstrate that the
participating households meet the statutory income limits, and further,
prove that a minimum of fifty percent of the financial benefits of the
electricity produced by the facility are distributed to Qualifying
Households. In contrast, the statutory language for Category 3 requires
that the financial benefits be allocated equitably to the occupants of
[[Page 2852]]
the residential rental building with which this energy facility is
associated. The alternative financial benefit options to bill credit
discount that are provided under Category 3 may be provided indirectly
to the building as a whole as long as the benefit is equitably
distributed among the occupants of the dwelling units of the building.
Because of this requirement, alternative financial delivery methods
that serve the whole building can be easily distributed for Category 3
facilities because all occupants must be within the residential rental
building.
Further, investments in applicable facilities may require other
investments, such as a new roof that can support a solar installation.
Whether an applicant chooses to make such investments in order to be
eligible for to apply under a certain category is a decision that is
unique to each applicant and is outside the scope of these final
regulations.
Therefore, Sec. 1.48E(h)-1(f) of the final regulations do not
adopt these comments. The final regulations also do not adopt the
comments related to promulgating HUD regulations because such
regulations are issued pursuant to HUD's authority. Lastly, the final
regulations do not adopt comments regarding the tax treatment of
financial benefits because that is outside of the scope of these
regulations.
Proposed Sec. 1.48E(h)-1(f)(3)(i) would require applicants to
establish that financial benefits are provided to Qualifying Households
as defined in proposed Sec. 1.48E(h)-1(f)(1), by submitting
documentation in accordance with guidance published in the Internal
Revenue Bulletin. The Proposed Regulations also would provide that a
Qualifying Household's low-income status is determined at the time the
household enrolls in the subscription program and does not need to be
re-verified.
Proposed Sec. 1.48E(h)-1(f)(3)(ii) would further provide methods
that applicants could use to establish that a household is a Qualifying
Household, including the ability to use categorical eligibility or
other income verification methods. Proposed Sec. 1.48E(h)-
1(f)(3)(ii)(A) would provide that categorical eligibility consists of
obtaining proof of the household's participation in a needs-based
Federal, State, Tribal, or utility program with income limits at or
below the qualifying income level required to be a Qualifying
Household, and included a non-exclusive list of Federal programs which
could be used for categorical eligibility verification. Proposed Sec.
1.48E(h)-1(f)(3)(ii)(A) would also clarify that the qualifying income
level for a Qualifying Household is based on where such household is
located.
Proposed Sec. 1.48E(h)-1(f)(3)(ii)(B) would provide other income
verification methods including paystubs, Federal or State tax returns,
or income verification through crediting agencies and commercial data.
Proposed Sec. 1.48E(h)-1(f)(3)(ii)(C) would provide that a self-
attestation from a household is not a permissible method to establish a
household is a Qualifying Household but clarified that this prohibition
on direct self-attestation from a household did not extend to
categorical eligibility for needs-based programs with income limits
that rely on self-attestation for verification of income.
Commenters requested clarifications of and additions to the income
verification methods. One commenter observed that, without
clarification or modification, the requirements set forth in Proposed
Regulations will not lead to verification methods that demonstrate that
a particular household necessarily meets the income parameters of
section 48(e)(2)(C).
In response to these comments, the documentation requirements have
been modified in the final regulations for Category 4. The predecessor
program under section 48(e) required taxpayers who had been awarded an
allocation for a Category 4 facility to submit a spreadsheet showing a
calculation of the projected financial benefits for the facility and a
list of subscribers with the method used to verify income for each
subscriber. The final regulations eliminate the subscriber list as a
Category 4 documentation requirement under the section 48E(h) Program
and modify the spreadsheet documentation rule to instead require the
submission of a statement by the applicant to demonstrate how the
applicant will fulfill the financial benefits distribution
requirements.
The final regulations provide at Sec. 1.48E-1(f)(3) that a
Demonstration of Financial Benefits statement is required, which
includes certain information to demonstrate that the financial benefits
requirements will be met based on the expected annual energy produced
by the as-built facility at the time it is placed in service and during
the recapture period under section 48E(h)(5) and Sec. 1.48E(h)-1(n).
The statement must include a calculation of the total financial value
of annual electricity production, the bill credit discount rate
calculation, and a description of the means of distributing the
required benefits to Qualifying Households. With the Demonstration of
Financial Benefits statement, the taxpayer must provide documentation
showing the facility is enrolled in a utility tariff, program, or other
arrangement to distribute financial benefits to Qualifying Households.
Additional information regarding the Demonstration of Financial
Benefits statement will be included in guidance published in the
Internal Revenue Bulletin to explain submission requirements at
application and at placed in service reporting.
Section 1.48E(h)-1(f)(4) of the final regulations retains portions
of the income verification rules as a recordkeeping requirement. With
the decision to exclude the predecessor program subscriber list
requirement from the Program under section 48E(h), taxpayers will not
be required to directly report the method of verification used for each
household as part of placed in service reporting. However, to submit an
accurate application and Demonstration of Financial Benefits
statements, and to appropriately claim the section 48E(h) Increase,
taxpayers must have a process to verify that the requisite percentage
of their subscribers are Qualifying Households, so that the taxpayer
will be able to fulfill the Category 4 financial benefits requirements
under section 48E(h)(2)(C) and Sec. 1.48E(h)-1(f)(1) and (2).
Moreover, in the event of an audit, taxpayers must be able to provide
documentation to prove, that, for each year of the recapture period,
the taxpayer has fulfilled the financial benefits requirements under
section 48E(h)(2)(C) and Sec. 1.48E(h)-1(f)(1) and (2), validly
claimed the credit, and is qualified to retain the section 48E(h)
Increase. See the recapture rules under Sec. 1.48E(h)-1(n) and section
48E(h)(5).
Regarding comments requesting more clarity and additions to the
list of needs-based programs which can be used for categorical
eligibility verification, the final regulations will not provide an
exhaustive list of Federal or Tribal programs and will not provide any
list regarding State or utility programs. The list included in the
Proposed Regulations was limited to examples where it could readily be
established that the Federal programs have the same income limit
requirements as this Program does for Category 4 Qualifying Households.
The illustrative list was intended to provide examples of types of
programs which are need-based and that would demonstrate that the
household is a Qualifying Household based on participation in that
program. To prevent further confusion, the illustrative list of Federal
programs is not included in the final regulations. For reference
purposes, the illustrative list of Federal programs from the Proposed
Regulations will be included
[[Page 2853]]
in procedural guidance for the Program that will be published in the
Internal Revenue Bulletin.
Regarding a list of State or utility level eligible programs, such
programs are too numerous and varied for the Treasury Department and
the IRS to provide a list, even just for illustrative purposes.
Moreover, whether a household meets the income limits is dependent on
the location of that household. Therefore, it is the responsibility of
the taxpayer seeking the section 48E(h) Increase, to determine whether
a program, Federal or otherwise, has the same income limitations as
required for Qualifying Households, and, if documentation proving that
a member or members of a household participate in such is sufficient to
qualify that household as a Qualifying Household.
The final regulations also do not adopt the proposed rule regarding
state agency documentation. The proposed rule was only intended to
clarify that documentation from State agencies may be acceptable
provided the program associated with the documentation had the same
income limit requirements. However, the general rule already provides
that State program documentation is acceptable for categorical
eligibility, and therefore this additional rule was unnecessary.
Section 1.48E(h)-1(f)(4)(ii) provides that applicants may use
categorical eligibility verification or direct income verification
methods to establish that a household is a Qualifying Household.
Section 1.48E(h)-1(f)(4)(ii) provides that applicants may use
categorical eligibility verification or direct income verification
methods to establish that a household is a Qualifying Household.
Section 1.48E(h)-1(f)(4)(ii)(A) defines categorical eligibility
consistent with the general definition from the Proposed Regulations,
excluding the illustrative list of Federal programs and the discussion
of state agencies. Section 1.48E(h)-1(f)(4)(ii) also includes language
that an individual in the household must currently be approved for
assistance from or participation in a program with an award letter or
other written documentation within the last 12 months for enrollment in
that program to establish categorical eligibility of the household.
This language was adopted from another paragraph in the same section of
the Proposed Regulations. Finally, the term other income verification
methods, from the Proposed Regulations has been revised to direct
income verification, but otherwise Sec. 1.48E(h)-1(f)(4)(ii) adopts
the language from the Proposed Regulations.
V. Annual Capacity Limitation
Under section 48E(h)(4)(C), the total annual Capacity Limitation is
1.8 gigawatts of DC capacity for each calendar year during the period
beginning on January 1, 2025, and ending on December 31 of the
applicable year (as defined in section 45Y(d)(3)), and zero thereafter.
Proposed Sec. 1.48E(h)-1(g)(1) would provide that the Capacity
Limitation would be divided across the four facility categories
described in section 48E(h)(2)(A)(iii) and proposed Sec. 1.48E(h)-
1(b)(2), and that the distribution of the annual Capacity Limitation
would be announced in future guidance published in the Internal Revenue
Bulletin.
Some commenters requested that the Program retain the Capacity
Limitation distributions established for the predecessor program under
section 48(e). These commenters observed that maintaining the
distribution will encourage facility development in categories that
were undersubscribed in the predecessor program. To promote facility
development in categories that were undersubscribed in the predecessor
program and to provide greater certainty in the Program, the Treasury
Department and the IRS revise proposed Sec. 1.48E(h)-1(g)(1), and
Sec. 1.48E(h)-1(g)(1) of the final regulations provides, in added
Table 1, the annual Capacity Limitation distribution across facility
categories for each Program year. Additionally, Table 2 has been added
to new Sec. 1.48E(h)-1(g)(2) to provide the distribution of Capacity
Limitation within Category to the Category 1 sub-reservations
(described in Sec. 1.48E(h)-1(i) of the final regulations and Section
VII of these Summary of Comments and Explanation of Revisions).
Proposed Sec. 1.48E(h)-1(g)(1) would also provide that, after the
Capacity Limitation for each facility category is established in
guidance published in the Internal Revenue Bulletin, it may be
reallocated later across facility categories and sub-reservation in the
event one category or sub-reservation is oversubscribed and another has
excess capacity. Proposed Sec. 1.48E(h)-1(g)(1) would also clarify
that a facility category or sub-reservation is oversubscribed if it
receives qualified applications in excess of Capacity Limitation
reserved for the facility category or sub-reservation.
To provide clarity on the redistribution process of Capacity
Limitation during a Program year, the final regulations add procedural
rules to Sec. 1.48E(h)-1(g)(2)(i) through (iv). These procedural rules
detail the process by which the annual Capacity Limitation described in
Sec. 1.48E(h)-1(g)(1) will be redistributed in the event that some
categories are undersubscribed and others oversubscribed. Additionally,
Sec. 1.48E(h)-1(g)(3) includes the definition for oversubscribed that
was proposed in Sec. 1.48E(h)-1(g)(1) and adds a coordinating
definition for the term undersubscribed.
Proposed Sec. 1.48E(h)-1(g)(2) would provide that if the annual
Capacity Limitation for any calendar year exceeds the aggregate amount
of annual Capacity Limitation allocated for a calendar year under
proposed Sec. 1.48E(h)-1(g)(1), then the annual Capacity Limitation
for the succeeding calendar year shall be increased by the amount of
such excess. No comments were received on this proposed rule. The final
regulations adopt this rule with some clarifications at Sec. 1.48E(h)-
1(g)(4). The final regulations provide that any unallocated Capacity
Limitation carried over from the preceding year will be equally
distributed across Category 1, 2, 3, and 4, and further equally
distributed across non-Additional Selection Criteria and Additional
Selection Criteria reservations. Section 1.48E(h)-1(g)(3) also provides
that within Category 1, the portion distributed from the carried over
Capacity Limitation will be equally distributed across Category 1 sub-
reservations and further across the reserves for Additional Selection
Criteria within those sub-reservations.
Finally, Sec. 1.48E(h)-1(g)(5) has been added to the final
regulations to clarify how allocations of Capacity Limitation in DC,
which is stipulated in section 48E(h)(4)(C), are made to facilities
which have a nameplate capacity measured in AC. Section 1.48E(h)-
1(g)(5) provides that applicable facilities that have a nameplate
capacity in AC and that are awarded an allocation, will be awarded an
amount of Capacity Limitation in DC that is equal to the facility's
reported nameplate capacity in AC.
VI. Additional Selection Criteria
Proposed Sec. 1.48E(h)-1(h)(1) would provide that at least 50
percent of the total Capacity Limitation in each facility category will
be reserved for facilities meeting criteria described in proposed Sec.
1.48E(h)-1(h)(2) (relating to ownership criteria) and proposed Sec.
1.48E(h)-1(h)(3) (relating to geographic criteria). In the Proposed
Regulations and in these final regulations the ownership criteria and
the geographic criteria are collectively referred to as Additional
Selection Criteria.
[[Page 2854]]
Proposed Sec. 1.48E(h)-1(h)(1) would also provide that, after the
reservation of Capacity Limitation for qualified facilities meeting the
Additional Selection Criteria described in proposed Sec. 1.48E(h)-
1(h)(2) and (3) is established in guidance published in the Internal
Revenue Bulletin, it may be reallocated later across facility
categories and sub-reservations in the event one category or sub-
reservation within a category is oversubscribed and another has excess
capacity.
No comments were submitted directly addressing these general
Proposed Regulations for Additional Selection Criteria. However, one
commenter encouraged consideration of other potential Additional
Selection Criteria, such as facilities that provide increased financial
benefits to qualifying low-income households or that are located on
previously developed sites, such as building rooftops, at brownfield
sites, and co-located with other infrastructure, because projects that
meet these criteria could create greater community impact.
The final regulations do not adopt this recommendation because the
commenter did not establish how other potential Additional Selection
Criteria could potentially create greater community impact. Further,
apart from Additional Selection Criteria, the Program reserves Capacity
Limitation for BTM facilities located on rooftops. The Additional
Selection Criteria established under proposed Sec. 1.48E(h)-1(h)
allows applicants to be evaluated for eligibility under the Additional
Selection Criteria, and therefore, an increased chance for an
allocation award based on characteristics of the applicant and
facility, and without the need to compare applicants.
The final regulations generally adopt proposed Sec. 1.48E(h)-
1(h)(1) with the addition that if eligible applications for facilities
that meet at least one of the two Additional Selection Criteria
categories received during the initial 30-day period total less than 50
percent of the Capacity Limitation for a category, then additional
Capacity Limitation would be reserved during the rolling application
period such that 50 percent of the total Capacity Limitation in the
category would be reserved for these facilities.
However, the final regulations revise Sec. 1.48E(h)-1(h)(1) to
account for the inclusion of the distribution of annual Capacity
Limitation across categories and the redistribution within a Program
year in these final regulations under Sec. 1.48E(h)-1(g). The final
regulations clarify that, at the beginning of an application period,
the reservation for Additional Selection Criteria applicants is 50
percent of the Capacity Limitation reserved for each category or
Category 1 sub-reservation. The final regulations retain the
informational language that specific procedures under Additional
Selection Criteria will be provided in guidance published in the
Internal Revenue Bulletin.
Comments regarding specific criteria under either the Ownership
Criteria category or the Geographic Criteria category are summarized
and addressed where appropriate in the sections following this
paragraph.
A. Ownership Criteria
1. In General
Proposed Sec. 1.48E(h)-1(h)(2)(i) would provide criteria based on
ownership (Ownership Criteria), stating that the Ownership Criteria
category is based on characteristics of the applicant that owns the
applicable facility. Proposed Sec. 1.48E(h)-1(h)(2)(i) would provide
that an applicable facility meets the Ownership Criteria if it is owned
by a Tribal enterprise, an Alaska Native Corporation, a Native Hawaiian
Organization, a renewable energy cooperative, or a qualified tax-exempt
entity.
No comments were submitted regarding this general definition, and,
therefore, the final regulations adopt this general rule without
modification.
2. Indirect Ownership
Proposed Sec. 1.48E(h)-1(h)(2)(ii)(A) would provide that if an
applicant wholly owns an entity that is the owner of an applicable
facility, and the entity is disregarded as separate from its owner for
Federal income tax purposes (disregarded entity), then the applicant,
and not the disregarded entity, is treated as the owner of the
applicable facility for purposes of the Ownership Criteria. No comments
were submitted on this proposed rule. Section 1.48E(h)-1(h)(2)(ii)(A)
of the final regulations adopts the proposed rule with a clarification
that disregarded entities are not eligible for an award and may not
submit an application. The final regulations at Sec. 1.48E(h)-
1(h)(2)(ii)(A) also provide that for entities wholly owned and
chartered under Tribal law and corporations incorporated under the
authority of either section 17 of the Indian Reorganization Act of
1934, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian Welfare Act,
25 U.S.C. 5203, an application may be made as a Tribal Enterprise.
3. Partner Qualifying Partnership
Proposed Sec. 1.48E(h)-1(h)(2)(ii)(B) would provide that if an
applicant is an entity classified as a partnership for Federal income
tax purposes, and an entity described in proposed Sec. 1.48E(h)-
1(h)(2)(i)(A) through (E) owns at least a one percent interest (either
directly or indirectly) in each material item of partnership income,
gain, loss, deduction, and credit and is a managing member or general
partner (or similar title) under State or Tribal law of the partnership
(or directly owns 100 percent of the equity interests in the managing
member or general partner) at all times during the existence of the
partnership, the applicable facility will be deemed to meet the
ownership criteria. Proposed Sec. 1.48E(h)-1(h)(2)(ii)(B) would
provide that if the partnership becomes the owner of the facility after
an allocation is made to an entity described in proposed Sec.
1.48E(h)-1(h)(2)(i)(A) through (E), the transfer of the facility to the
partnership is not a disqualification event for purposes of proposed
Sec. 1.48E(h)-1(m)(5), so long as the requirements of proposed Sec.
1.48E(h)-1(m)(5) are satisfied. Proposed Sec. 1.48E(h)-1(h)(2)(ii)(B)
would provide that the original applicant and the successor partnership
should refer to guidance published in the Internal Revenue Bulletin for
the procedures to request a transfer of the Capacity Limitation
allocation to the successor partnership.
No comments were received on this proposed rule. The final
regulations adopt the proposed rules without modification at Sec.
1.48E(h)-1(h)(2)(ii)(B).
4. Definitions
i. Tribal Enterprise
Proposed Sec. 1.48E(h)-1(h)(2)(iii) would provide that a ``Tribal
enterprise'' for purposes of the Ownership Criteria is an entity that
is (1) owned at least 51 percent directly by an Indian Tribal
government (as defined in section 30D(g)(9) of the Code), or owned at
least 51 percent indirectly through an entity that is wholly owned by
the Indian Tribal government and is created either under the Tribal
laws of the Indian Tribal government or through a corporation
incorporated under the authority of either section 17 of the Indian
Reorganization Act of 1934, 25 U.S.C. 5124, or section 3 of the
Oklahoma Indian Welfare Act, 25 U.S.C. 5203, and (2) subject to Tribal
government rules, regulations, and/or codes that regulate the
operations of the entity.
ii. Alaska Native Corporation
Proposed Sec. 1.48E(h)-1(h)(2)(iv) would provide that an ``Alaska
Native Corporation'' for purposes of the
[[Page 2855]]
Ownership Criteria is defined in section 3 of the Alaska Native Claims
Settlement Act, 43 U.S.C. 1602(m).
iii. Native Hawaiian Organization
Proposed Sec. 1.48E(h)-1(h)(2)(v) would provide that a ``Native
Hawaiian Organization'' for purposes of the Ownership Criteria is
defined in 13 CFR 124.3.
iv. Renewable Energy Cooperative
Proposed Sec. 1.48E(h)-1(h)(2)(vi) would provide that a
``renewable energy cooperative'' for purposes of the Ownership Criteria
is an entity that develops applicable facilities and is either (1) a
consumer or purchasing cooperative controlled by its members with each
member having an equal voting right and with each member having rights
to profit distributions based on patronage as defined by proportion of
volume of energy or energy credits purchased (kWh), volume of financial
benefits delivered ($), or volume of financial payments made ($), and
in which at least 50 percent of the patronage in the qualified facility
is by cooperative members who are low-income households (as defined in
section 48E(h)(2)(C)); or (2) a worker cooperative controlled by its
worker-members with each member having an equal voting right.
v. Qualified Tax-Exempt Entity
Proposed Sec. 1.48E(h)-1(h)(2)(vii) would provide that a
``qualified tax-exempt entity'' for purposes of the Ownership Criteria
is:
(1) An organization exempt from the tax imposed by subtitle A of
the Code by reason of being described in section 501(c)(3) or (d) of
the Code;
(2) Any State, the District of Columbia, or political subdivision
thereof, or any agency or instrumentality of any of the foregoing;
(3) An Indian Tribal government (as defined in section 30D(g)(9)),
a political subdivision thereof, or any agency or instrumentality of
any of the foregoing; or
(4) Any corporation described in section 501(c)(12) operating on a
cooperative basis that is engaged in furnishing electric energy to
persons in rural areas.
No comments were submitted regarding the proposed definitions of
Tribal Enterprise, Alaska Native Corporation, Native Hawaiian
Organization, and Renewable Energy Cooperative. The final regulations
adopt the proposed definitions without change, except that corporation
in the definition of Tribal enterprise is replaced with ``entity.''
However, several commenters representing the low-income housing
credit (commonly referred to as LIHTC) industry stated that the
definition of qualified tax-exempt entity should be revised to reflect
LIHTC partnership structure. According to these commenters, a LIHTC
partnership generally has an investor with a 99.9 percent ownership
interest and the tax-exempt or nonprofit entity has an 0.01 percent
ownership interest. Because the Proposed Regulations require that a
qualified tax-exempt entity own a one percent interest in each material
item of the partnership to qualify the partnership for Additional
Selection Criteria, these commenters asserted that this requirement is
incompatible with the ownership structure commonly used for LIHTC
financed developments. These commenters alternatively requested the
final regulations clarify that a special allocation of depreciation and
any associated credits would not be considered to be a ``material
item'' in determining one percent ownership.
The Treasury and the IRS understand commenters' concerns and the
unintended impacts to LIHTC applicants that are seeking to install
clean energy facilities on their qualified low-income residential
building projects. Accordingly, the final regulations at Sec. 1.48E-
1(h)(2)(ii)(C) revise the Ownership Criteria to allow an applicant to
include any partnership that (1) owns an applicable facility connected
to a residential building to which credits under section 42 of the Code
are reasonably anticipated or have been determined and (2) has a
partner for Federal income tax purposes that is a qualified tax-exempt
(or another eligible entity identified Sec. 1.48E(h)-1(h)(2)(i)(A)
through (E)) to qualify the partnership for the purposes of Ownership
Criteria. Section 1.48E-1(h)(2)(ii)(C) of the final regulations
provides that the transfer of the facility to the partnership is not a
disqualification event for purposes of Sec. 1.48E(h)-1(m)(5) or
subject to recapture for purposes of Sec. 1.48E(h)-1(m), so long as
the requirements of Sec. 1.48E(h)-1(m)(5) are satisfied. This
modification is limited only to applicable facilities that are part of
a section 42 LIHTC building.
5. Emerging Market Business
The preamble to the Proposed Regulations indicated that the
Treasury Department and the IRS were proposing not to carry over to the
Program under section 48E(h), the qualified renewable energy company
(QREC) category of Ownership Criteria described in Sec. 1.48(e)-
1(h)(2)(vi) from the predecessor program under section 48(e). However,
the preamble further stated that the Treasury Department and the IRS
considered including a category for emerging market businesses, defined
as those businesses that do not have large market shares that could be
demonstrated by the number of employees, annual revenue, and other
factors, similar to the QREC category from the predecessor Program
under section 48(e). The Proposed Regulations requested comment on
options to include an Ownership Criteria category for emerging market
businesses, similar to the former QREC category. This request
specifically asked for comments on how an administrable emerging market
business Ownership Criteria category could be structured, including
what thresholds a definition should include to define market share and
size, age of business, the number of employees (both minimum and
maximum) and/or annual gross receipts generated by an emerging market
business, and the supporting documentation that could be provided as
part of the application to verify an applicant meets such criteria.
Some commenters expressed general support for including an emerging
market business category but offered no further detail or advice.
Several other commenters noted that they qualified as QRECs under the
section 48(e) program and asked that the final regulations use the same
criteria for ``emerging market business'' Ownership Criteria. One
commenter stated that they understood that this particular Ownership
Criteria might be more burdensome than the other criteria in the
Ownership Criteria category but asked that the QREC criteria be
retained in the section 48E(h) Program and final regulations. This
commenter seemed focused on burden to the potential applicants by
stating that the QREC requirements for majority ownership by
individuals and company size thresholds were workable, and that it
would not be an undue burden for companies in the QREC size range to
provide tax returns, financial statements, operating agreements, and
other business organizational documents.
The QREC category, as with all Additional Selection Criteria, was
intended to help create a more efficient allocation process and help
ensure that allocations were made to the types of applicants and
projects that support the purposes of the Program. However, the QREC
criteria instead resulted in a disproportionate administrative burden.
Applicants frequently applied as QRECs that did not meet the criteria
or failed to submit complete information, causing
[[Page 2856]]
delays in the allocation process across the program. In response to
these comments and in part based on their administration of the
predecessor program under section 48(e), the Treasury Department and
the IRS have clarified and streamlined the QREC definition used in the
predecessor section 48(e) program to make this criterion more
administrable. Specifically, the QREC definition was revised to provide
more detail on affiliated entities so as to provide taxpayer certainty
and promote sound tax administration. Section 1.48E(h)-1(h)(2)(i)(F)
has been added to the final regulations to include QREC as an eligible
Ownership Criteria category, and Sec. 1.48E(h)-1(h)(2)(viii) has been
added to the final regulations to define QREC. The final regulations
provide several changes from the section 48(e) program QREC definition.
First, the definition provided in the final regulations clarifies
that QRECs must have a general business purpose to serve low-income
communities or low-income households. Second, the final regulations
remove the option that at least 51 percent of the entity's ownership
interest are owned or controlled by a Community Development Corporation
(as defined in 13 CFR 124.3), an agricultural or horticultural
cooperative (as defined in section 199A(g)(4)(A) of the Code), an
Indian Tribal government (as defined in section 30D(g)(9)), an Alaska
Native corporation (as defined in section 3 of the Alaska Native Claims
Settlement Act, 43 U.S.C. 1602(m)), or a Native Hawaiian organization
(as defined in 13 CFR 124.3). These entities are removed from the
definition because they are eligible for Additional Selection Criteria
as other Ownership criteria. Therefore, the final regulations provide
that at least 51 percent of the entity's equity interests are owned and
controlled by one or more individuals. Third, the final regulations
clarify that entity affiliation for the purposes of determining both
the number of full-time equivalent employees and annual gross receipts
is defined as: (1) 25 percent or more of an entity's board seats,
voting rights, or equity interests, are cumulatively held by another
entity and related entities (as described in described in sections
267(b) or 707(b)(1) of the Code); or (2) one or more of an entities'
officers, directors, managing members or partners with authority over
the board of directors or management and operations also have authority
over the board of directors or management and operations of another
entity. Lastly, the final regulations remove the requirement included
in the section 48(e) program that a QREC must have provided solar
services as a contractor or subcontractor to qualified solar or wind
facilities as defined in section 48(e)(2)(A) with at least 100 kW of
cumulative nameplate capacity located in one or more low-income
communities as defined in section 48(e)(2)(A)(iii)(I).
Proposed Sec. 1.48E(h)-1(h)(2)(ii)(B), regarding a partner
qualifying a partnership for purposes of the Ownership Criteria, has
also been revised to note that this paragraph is not applicable to QREC
applicants. Under the regulations for the predecessor program under
section 48(e), a partner that qualified as a QREC and held the
requisite interest amount in the partnership could qualify the
partnership as a QREC. Moreover, a QREC that received an allocation was
permitted to transfer the allocation to a partnership without
triggering disqualification if the original applicant that qualified as
a QREC remained in the partnership and met the requisite interest
requirements in the partnership. This inclusion of QRECs under Sec.
1.48(e)-1(h)(2)(ii)(B) (the regulations for the predecessor program
under section 48(e)), at times, proved to be incompatible with the
purpose of establishing QRECs as an Ownership Criteria category, which
was to prioritize small, emerging market businesses for an allocation.
Instead, some applicants utilized the presence of a small business
partner to then qualify a partnership that is not a small business.
Moreover, the inclusion of QRECs to qualify a partnership was often in
conflict with the QREC affiliated entities threshold requirements.
Therefore, to eliminate confusion and any conflict between the
Ownership Criteria provision, these final regulations for the program
under section 48E(h) exclude QRECs from the partner qualifying a
partnership provisions under Sec. 1.48E(h)-1(h)(2)(ii)(B).
B. Geographic Criteria
Proposed Sec. 1.48E(h)-1(h)(3) would provide criteria based on
geography (Geographic Criteria). As described in the preamble of the
Proposed Regulations, the Geographic Criteria category is based on
where the facility will be placed in service. Geographic Criteria do
not apply to Category 2 facilities. To meet the Geographic Criteria, a
facility needs to be located in a Persistent Poverty County (PPC) \2\
as described in proposed Sec. 1.48E(h)-1(h)(3)(ii) or in certain
census tracts identified on the CEJST \3\ and as described in proposed
Sec. 1.48E(h)-1(h)(3)(iii).
---------------------------------------------------------------------------
\2\ https://www.ers.usda.gov/data-products/county-typology-codes/.
\3\ https://screeningtool.geoplatform.gov/en/#3/33.47/-97.5, or
a successor website such as IRS.gov.
---------------------------------------------------------------------------
Proposed Sec. 1.48E(h)-1(h)(3)(ii) would describe a PPC as any
county where 20 percent or more of residents have experienced high
rates of poverty over the past 30 years. Proposed Sec. 1.48E(h)-
1(h)(3)(ii) would provide that for purposes of the Program, the
Proposed Regulations would use the PPC measure adopted by the United
States Department of Agriculture (USDA) to make this determination.
No comments were received recommending modification of these rules,
and the Proposed Regulations related to Geographic Criteria are adopted
in the final regulations at Sec. 1.48E(h)-1(h)(3)(ii) without
modification.
VII. Sub-Reservations of Allocation for Facilities Located in a Low-
Income Community
Proposed Sec. 1.48E(h)-1(i)(1) would subdivide the Capacity
Limitation reservation for facilities seeking a Category 1 allocation
with a portion of the Capacity Limitation specifically reserved for
eligible residential behind the meter (BTM) facilities, including
rooftop solar. This is because the sub-reservation of a substantial
portion of the allocation in Category 1 for eligible residential BTM
facilities would help ensure that allocations predominantly are awarded
to facilities serving residences and consumers, rather than facilities
serving businesses. Proposed Sec. 1.48E(h)-1(i)(1) would reserve the
remaining Capacity Limitation in Category 1 for applicants with front
of the meter (FTM) facilities as well as non-residential BTM
facilities. Proposed Sec. 1.48E(h)-1(i)(1) would clarify that the
specific amounts of the Category 1 sub-reservations will be provided in
future guidance published in the Internal Revenue Bulletin that is
applicable to a Program year based on factors such as promoting
efficient allocation of Capacity Limitation and allowing like-projects
to compete for an allocation. Proposed Sec. 1.48E(h)-1(i)(1) would
provide that after the sub-reservation is established in guidance
published in the Internal Revenue Bulletin, it may be reallocated later
in the event it has excess capacity.
One commenter generally supported the proposal contained in the
Proposed Regulations to create a sub-reservation of Category 1 Capacity
Limitation for
[[Page 2857]]
residential BTM facilities under proposed Sec. 1.48E(h)-1(i). No other
comments were submitted on this proposal. The final regulations under
Sec. 1.48E(h)-1(i) adopt the proposed rule without modification.
VIII. Application and Selection Process
Section 48E(h)(4)(A) provides that ``[i]n establishing such program
and to carry out the purposes of this subsection, the Secretary shall
provide procedures to allow for an efficient allocation process.'' In
part based on their administration of the predecessor program under
section 48(e), the Treasury Department and the IRS anticipate that the
number of eligible applicants within any given category seeking an
allocation may exceed the total Capacity Limitation allocation
available to be allocated. Accordingly, the Treasury Department and the
IRS are designing an application process that both ensures that
allocations are awarded to facilities that advance the program goals
and facilitates an efficient allocation process.
Proposed Sec. 1.48E(h)-1(j)(1) would provide that applications for
a Capacity Limitation allocation will be evaluated according to the
procedures specified in guidance published in the Internal Revenue
Bulletin. Based on feedback received with respect to the section 48(e)
predecessor program and an assessment of operational capabilities set
up to administer the Program under section 48E(h), the preamble to the
Proposed Regulations explained that the expected process would include
one or more initial application windows in which applications received
by a certain time and date would be evaluated together, followed by a
rolling application process. The final regulations add Sec. 1.48E(h)-
1(j)(4) to establish the annual application period. Section 1.48E(h)-
1(j)(4) also adds certain procedural rules to explain the initial 30-
day application window in which applications received by a certain time
and date would be evaluated together, followed by a rolling application
process. Additionally, Sec. 1.48E(h)-1(j)(4) explains the process by
which Additional Selection Criteria applications are prioritized for
review and allocations from a particular reservation of Capacity
Limitation.
Section 48E(h)(4)(A) directs the Secretary to provide procedures to
allow for an efficient allocation process. Additionally, section
48E(h)(4)(E)(i) requires that facilities allocated an amount of
Capacity Limitation be placed in service within four years of the date
of allocation. To promote efficient allocation, and to ensure that
allocations will be awarded to facilities that are sufficiently viable
and well defined to allow for a review for an allocation, and
sufficiently advanced such that they are likely to meet the four-year
placed in service deadline, proposed Sec. 1.48E(h)-1(j)(2) would
require applicants, when applying for an allocation, to submit certain
information, documentation, and attestations that demonstrate project
eligibility and viability. Proposed Sec. 1.48E(h)-1(j)(2) would
clarify that the specific information, documentation, and attestations
to be submitted will be provided in guidance published in the Internal
Revenue Bulletin that is applicable to a Program year.
Several comments discussed documentation requirements and related
procedural requirements. These comments specifically requested
exemptions from having to provide documentation or requested the
ability to provide alternate documentation due to circumstances
specific to that commenter or specific to a State or utility. Comments
regarding specific documentation or procedural requirements are outside
the scope of these regulations. State and local rules for energy-
generating facilities and low-income clean energy programs vary
considerably, and procedures for those rules may not be relevant to or
compatible with the requirements under section 48E(h). Consistent with
the statute, the Treasury Department and the IRS seek to establish an
efficient application and allocation process, as well as promote
certainty for applicants as to how their application is being reviewed.
To do so, documentation and procedural requirements must be
standardized to the extent appropriate and possible, and it would not
promote sound tax administration to create separate requirements for
each applicant based on their specific circumstances. The Treasury
Department and the IRS will periodically assess the Program to
determine whether to make any changes to the Program's application
process. Specific information related to documentation and procedural
requirements will be provided in guidance published in the Internal
Revenue Bulletin. The Treasury Department and the IRS expect that the
specific application information, documentation, and attestation
requirements provided in procedural guidance applicable to the Program
published in the Internal Revenue Bulletin will be substantially
similar to requirements applicable the section 48(e) Low-Income
Communities Bonus Program provided in Revenue Procedure 2024-19, 2024-
16 I.R.B. 899. Like the section 48(e) program, some requirements may
differ for FTM and BTM facilities and other requirements may differ by
facility category and Additional Selection Criteria. The final
regulations under Sec. 1.48E(h)-1(j)(1) through (2) adopt the proposed
rules without modification.
Although no specific comments were submitted in response to the
Proposed Regulations regarding recordkeeping, the Treasury Department
and the IRS determined that, in the interest of sound tax
administration, a record retention rule is necessary in addition to the
specific information, documentation, and attestation requirements set
forth in the Proposed Regulations. Consistent with the current
applicable periods of limitations under section 6501 of the Code on
assessment and collection of tax under chapter 1 with respect to the
applicable taxpayer's return filed for the taxable year, Sec.
1.48E(h)-1(o) of the final regulations provide that the applicant is
required to retain records and materials related to the application for
the following periods: (1) for at least 6 years after the due date
(with extensions) for filing the Federal income tax return after the
tax year that return is filed to claim the increase in the section 48E
credit; and (2) for at least 6 years after the due date (with
extensions) for filing the Federal income tax return for the last year
that the applicant could be subject to recapture as described in Sec.
1.48E(h)-1(n). These records are considered general tax records under
Sec. 1.6001-1(e), and they are required for the IRS to validate that
taxpayers have met the regulatory requirements and are entitled to
receive the section 48E(h) Increase.
Proposed Sec. 1.48E(h)-1(j)(3) would provide that there is no
administrative appeal of Capacity Limitation allocation decisions. No
comments were submitted on this provision, and the final regulations at
Sec. 1.48E(h)-1(j)(3) adopt this rule without modification.
IX. Placed in Service
A. Documentation and Attestations To Be Submitted When Facility Is
Placed in Service
Proposed Sec. 1.48E(h)-1(k)(1) would require facilities that
received a Capacity Limitation allocation to report to the Department
of Energy (DOE) the date the applicable facility was placed in service.
Proposed Sec. 1.48E(h)-1(k)(2) would require facilities that received
a Capacity Limitation to submit additional documentation or complete
additional attestations with this reporting. At the time of
application, applicants would not necessarily be able
[[Page 2858]]
to demonstrate compliance with certain eligibility requirements, as the
facility would not yet be operating at that time. Requiring placed in
service reporting will allow for final verification that the facilities
that were awarded a Capacity Limitation Allocation have met certain
eligibility requirements under the Program. Therefore, proposed Sec.
1.48E(h)-1(k)(2) would require facilities awarded a Capacity Limitation
to submit final eligibility information at the time of placed in
service.
Proposed Sec. 1.48E(h)-1(k)(3) would provide that the DOE will
review the placed in service documentation and attestations to
determine if the facility meets the eligibility criteria for the owner
to claim an increased applicable percentage. Proposed Sec. 1.48E(h)-
1(k)(3) would provide that the DOE then provides a recommendation to
the IRS regarding whether the facility continues to meet the
eligibility requirements for the facility to retain its allocation or
if the facility should be disqualified (as provided in proposed Sec.
1.48E(h)-1(m)). Proposed Sec. 1.48E(h)-1(k)(3) would generally provide
that the IRS reviews recommendations, and if deemed appropriate, issues
the final eligibility letter.
No comments were submitted regarding documentation and attestations
to be submitted when placed in service. The final regulations adopt
proposed Sec. 1.48E(h)-1(k) with minor edits to clarify technical
procedures.
B. Placed in Service Prior to Allocation Award
Proposed Sec. 1.48E(h)-1(l)(1) would provide that facilities that
are placed in service prior to being awarded an allocation of Capacity
Limitation will not be eligible to receive an allocation. Proposed
Sec. 1.48E(h)-1(l)(2) would provide that if a facility is placed in
service after the application is submitted, but prior to the allocation
of Capacity Limitation, and the facility is awarded an allocation, the
allocation will be rescinded.
Several commenters recommend that Sec. 1.48E(h)-1(l)(2) be
modified so that an award is not rescinded if a Category 1 facility is
placed in service after submitting an application but prior to
receiving the allocation award. These commenters asserted that this
rule is problematic and disruptive in practice for residential-serving
rooftop solar projects that have shorter development timelines.
The Treasury Department and the IRS do not adopt this
recommendation, and Sec. 1.48E(h)-1(l)(2) is adopted without
modification. Awarding an allocation to facilities that have already
been placed in service would be inconsistent with the statute and the
goal of the Program to promote investment in new clean electricity
facilities. Section 48E(h)(4)(E)(i) provides that a facility must be
placed in service within four years of receiving an allocation of
Capacity Limitation, indicating that allocations should be made to new
facilities that have not yet been placed in service. Accordingly,
facilities placed in service prior to being awarded an allocation of
Capacity Limitation are ineligible to receive an allocation. The final
regulations maintain the use of a Category 1 sub-reservation for
facilities that serve BTM facilities to support timely review of
applications serving residential-serving rooftop solar projects that
have shorter development timelines.
X. Post-Allocation Compliance
A. Disqualification After Receiving an Allocation
Proposed Sec. 1.48E(h)-1(m) would provide that a facility that was
awarded a Capacity Limitation allocation is disqualified and loses its
allocation if prior to or upon the facility being placed in service:
(1) the location where the facility will be placed in service changes;
(2) the maximum net output of the facility increases such that it
exceeds the less than five megawatt requirement provided in section
48E(h)(2)(A)(ii) or the nameplate capacity decreases by the greater of
2 kW or 25 percent of the Capacity Limitation awarded in the
allocation; (3) the facility cannot satisfy the financial benefits
requirements under section 48E(h)(2)(B)(ii) and proposed Sec.
1.48E(h)-1(e) as planned (if applicable) or cannot satisfy the
financial benefits requirements under section 48E(h)(2)(C) and proposed
Sec. 1.48E(h)-1(f) as planned (if applicable); (4) the eligible
property that is part of the facility that received the Capacity
Limitation allocation is not placed in service within four years after
the date the applicant was notified of the allocation of Capacity
Limitation to the facility or the facility that received the Capacity
Limitation allocation is placed in service ahead of allocation of
award; or (5) the facility received a Capacity Limitation allocation
based, in part, on meeting the Ownership Criteria and ownership of the
facility changes prior to the facility being placed in service, unless
the original applicant transfers the facility to an entity classified
as a partnership for Federal income tax purposes and retains at least a
one percent interest (either directly or indirectly) in each material
item of partnership income, gain, loss, deduction, and credit of such
partnership and is a managing member or general partner (or similar
title) under State or Tribal law of the partnership (or directly owns
100 percent of the equity interests in the managing member or general
partner) at all times during the existence of the partnership. No
comments were received related to proposed Sec. 1.48E(h)-1(m), and
this rule is adopted without modification.
B. Recapture of Section 48E(h) Increase
Section 48E(h)(5) requires the Secretary, by regulations or other
guidance, to provide rules for recapturing the benefit of any section
48E(h) Increase with respect to any property that ceases to be property
eligible for such section 48E(h) Increase (but that does not cease to
be investment credit property within the meaning of section 50(a) of
the Code). The period and percentage of such recapture is determined
under rules similar to the rules of section 50(a). To the extent
provided by the Secretary, such recapture may not apply with respect to
any property if, within 12 months after the date the applicant becomes
aware (or reasonably should have become aware) of such property ceasing
to be property eligible for such section 48E(h) Increase, the
eligibility of such property for such section 48E(h) Increase is
restored. Such restoration of a section 48E(h) Increase is not
available more than once with respect to any facility.
Proposed Sec. 1.48E(h)-1(n)(1) would provide that if, at any time
during the five year recapture period beginning on the date that an
applicable facility under section 48E(h) is placed in service, there is
a recapture event under proposed Sec. 1.48E(h)-1(n)(3) with respect to
such property, then the Federal income tax imposed on the taxpayer by
chapter 1 of the Code for the taxable year in which the recapture event
occurs is increased by the recapture percentage of the benefit of the
increase in the section 48E credit. Proposed Sec. 1.48E(h)-1(n)(1)
would provide that the recapture percentage is determined according to
the table provided in section 50(a)(1)(B).
Proposed Sec. 1.48E(h)-1(n)(2) would provide that recapture under
proposed Sec. 1.48E(h)-1(n)(1) may not have applied with respect to
any property if, within 12 months after the date the applicant becomes
aware (or reasonably should have become aware) of such property ceasing
to be property eligible for such increase in the credit allowed under
section 48E(a), the eligibility of such property for such increase
pursuant to section 48E(h) is restored. Proposed
[[Page 2859]]
Sec. 1.48E(h)-1(n)(2) would provide that such restoration of an
increase pursuant to section 48E(h) is not available more than once
with respect to any facility.
Proposed Sec. 1.48E(h)-1(n)(3) would describe that the following
circumstances result in a recapture event if the property ceases to be
eligible for the increased credit under section 48E(h): (1) property
described in section 48E(h)(2)(A)(iii)(II) fails to provide financial
benefits over the 5-year period after its original placed in service
date; (2) property described under section 48E(h)(2)(B) ceases to
allocate the financial benefits equitably among the occupants of the
dwelling units, such as not passing on to residents the required net
energy savings of the electricity; (3) property described under section
48E(h)(2)(C) ceases to provide at least 50 percent of the financial
benefits of the electricity produced to Qualifying Households as
described under section 48E(h)(2)(C)(i) or (ii), or fails to provide
those households the required minimum 30 percent bill credit discount
rate; (4) for property described under section 48E(h)(2)(B), the
residential rental building the facility is a part of ceases to
participate in a covered housing program or any other housing program
described in section 48E(h)(2)(B)(i), if applicable; and (5) a facility
increases its maximum net output such that the facility's maximum net
output is 5 MW AC or greater.
Proposed Sec. 1.48E(h)-1(n)(4) would provide that any event that
results in recapture under section 50(a) also will result in recapture
of the benefit of the increase in the section 48E credit by reason of
section 48E(h). Proposed Sec. 1.48E(h)-1(n)(4) would provide that the
exception to the application of recapture provided in proposed Sec.
1.48E(h)-1(n)(2) did not apply in the case of a recapture event under
section 50(a).
No comments were received related to the recapture provisions
contained in the Proposed Regulations. Accordingly, these recapture
provisions are adopted in the final regulations without modification.
Applicability Date
The final regulations set forth apply to applicable facilities that
are placed in service after December 31, 2024, and during taxable years
ending on or after January 13, 2025.
Special Analyses
I. Regulatory Planning and Review--Economic Analysis
Pursuant to the Memorandum of Agreement, Review of Treasury
Regulations under Executive Order 12866 (June 9, 2023), tax regulatory
actions issued by the IRS are not subject to the requirements of
section 6 of Executive Order 12866, as amended. Therefore, a regulatory
impact assessment is not required.
II. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA)
requires that a Federal agency obtain the approval of OMB before
collecting information from the public, whether such collection of
information is mandatory, voluntary, or required to obtain or retain a
benefit. The collections of information in these final regulations
contain reporting and recordkeeping requirements that are required to
obtain the section 48E(h) Increase. This information in the collections
of information would generally be used for tax compliance purposes and
by taxpayers to facilitate proper reporting and compliance. A Federal
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.
The recordkeeping requirements mentioned within this final
regulation are considered general tax records under Sec. 1.6001-1(e).
These records are required for IRS to validate that taxpayers have met
the regulatory requirements and are entitled to receive the section
48E(h) Increase. For PRA purposes, general tax records are already
approved by OMB under 1545-0123 for business filers, 1545-0074 for
individual filers, and 1545-0047 for tax-exempt organizations.
The final regulations also provide reporting requirements related
to providing attestations and supporting documentation for initial
application, supplemental documentation for specific facilities, and to
confirm a facility is placed in service as detailed in these final
regulations. These attestations and documentation would allow IRS to
allocate Capacity Limitation and ensure taxpayers keep and maintain
compliance for the credits. To assist with the collections of
information, the IRS will procure certain administration services for
the Program. Among other things, these administration services will
include establishing a website portal to review the applications for
eligibility criteria and providing recommendations to the IRS regarding
the selection of applications for an allocation of Capacity Limitation.
These collection requirements will be submitted to the Office of
Management and Budget (OMB) under 1545-2327 for review and approval in
accordance with 5 CFR 1320.11. The likely respondents are business
filers, individual filers, and tax-exempt organization filers. A
summary of paperwork burden estimates for the application and
attestations is as follows:
Estimated number of respondents: 70,000.
Estimated burden per response: 60 minutes.
Estimated frequency of response: 1 for initial applications, 1 for
follow-up documentation, and 1 for projects placed in service.
Estimated total burden hours: 210,000 burden hours.
The IRS solicited feedback on the collection requirements for the
application, supporting documentation, and attestations. Although no
public comments received by the IRS were directed specifically at the
PRA or on the collection requirements, several commenters generally
expressed concerns about the burdens associated with the documentation
requirements contained in the Proposed Regulations. As described in the
relevant portions of this preamble, the Treasury Department and the IRS
believe that the documentation requirements are necessary to administer
the Program.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes
certain requirements with respect to Federal rules that are subject to
the notice and comment requirements of section 553(b) of the
Administrative Procedure Act (5 U.S.C. 551 et seq.) and that are likely
to have a significant economic impact on a substantial number of small
entities. Unless an agency determines that a proposal will not have a
significant economic impact on a substantial number of small entities,
section 604 of the RFA requires the agency to present a final
regulatory flexibility analysis (FRFA) of the final regulations. The
Treasury Department and the IRS have not determined whether the final
regulations will likely have a significant economic impact on a
substantial number of small entities. This determination requires
further study and an FRFA is provided in these final regulations.
Pursuant to section 7805(f) of the Code, these final regulations
were submitted to the Chief Counsel of Advocacy of the Small Business
Administration, and no comments were received.
[[Page 2860]]
1. Need for and Objectives of the Rule
The final regulations provide guidance to potential applicants to
determine eligibility to apply for an allocation of Capacity Limitation
under section 48E(h), and, in general, to taxpayers awarded an
allocation of Capacity Limitation to understand the requirement to
claim the section 48E(h) Increase. The final regulations are expected
to encourage applicants to invest in applicable facilities. Thus, the
Treasury Department and the IRS intend and expect that the final rule
will deliver benefits across the economy and environment that will
beneficially impact various industries.
2. Significant Issues Raised by Public Comments in Response to the IRFA
There were no comments filed that specifically addressed the
Proposed Regulations and policies presented in the IRFA. Additionally,
no comments were filed by the Chief Counsel of Advocacy of the Small
Business Administration.
3. Affected Small Entities
The Small Business Administration estimates in its 2018 Small
Business Profile that 99.9 percent of United States businesses meet its
definition of a small business. The applicability of the final
regulations does not depend on the size of the business, as defined by
the Small Business Administration. As described more fully in the
preamble to this final regulation and in the FRFA, these rules may
affect a variety of different businesses across serval different
industries.
4. Impact of the Rules
The recordkeeping and reporting requirements would increase for
applicants that participate in the Program. Although the Treasury
Department and the IRS do not have sufficient data to determine
precisely the likely extent of the increased costs of compliance, the
estimated burden of complying with the recordkeeping and reporting
requirements are described in section II. (Paperwork Reduction Act) of
the Special Analyses. In particular, section II. of the Special
Analyses contains a summary of paperwork burden estimates for the
application, supporting documentation, and submissions when projects
are placed in service. The IRS solicited feedback on the collection
requirements for the application, supporting documentation, and
attestations. Although no public comments received by the IRS were
directed specifically at the PRA or on the collection requirements,
several commenters generally expressed concerns about the burdens
associated with the documentation requirements contained in the
Proposed Rule. As described in the relevant portions of this preamble,
the Treasury Department and the IRS believe that the documentation
requirements are necessary to administer the Program.
5. Steps Taken To Minimize Impacts on Small Entities and Alternatives
Considered
The Treasury Department and the IRS considered alternatives to the
final regulations. For example, the Treasury Department and the IRS
considered requests from stakeholders that potential applicants be able
to place a facility in service before applying for or receiving an
allocation of Capacity Limitation. The Treasury Department and the IRS
determined it would not be possible to accommodate this request in the
final regulations because the statutory language under section
48E(h)(4)(E)(i) requires that the facility be placed in service by a
date that is 4 years after the date of the allocation. Moreover,
facilities that were placed in service prior to the allocation process
do not increase adoption of and access to renewable energy facilities,
as compared to the absence of the Program, and so do not further
Program goals.
Another example is the revisions to the list of eligible housing
programs that can be found in the Summary of Comments and Explanation
of Revisions section of this document. In the preamble to Treasury
Decision 9979, applicable to the Low-Income Communities Bonus Credit
Program established under section 48(e), the HUD tenant-based rental
assistance under section 8 of the United States Housing Act of 1937 was
included as eligible housing program. The Treasury Department and the
IRS considered retaining tenant-based housing assistance programs.
However, after consulting with HUD, it was determined that tenant-based
assistance is assistance that can only be attributed to a particular
tenant, and not a building. Under section 48E(h)(2)(B), for a facility
to qualify as a being part of a qualified low-income residential
building project, the facility must be installed on a residential
rental building that participates in a covered housing program or other
affordable housing program (that is, a Qualified Residential Property).
Tenant-based housing assistance programs applicable to a particular
tenant do not qualify the building in which the tenant resides as
participating in a covered housing program or other affordable housing
program. Therefore, because tenant-based assistance under Section 8
does not comport with the requirements under section 48E(h)(2)(B),
tenant-based housing assistance programs under Section 8 have been
removed as an eligible housing program for purposes of the Program
under section 48E(h).
Additionally, the Treasury Department and the IRS considered
excluding the sub-reservation for Category 1 facilities for eligible
residential BTM facilities but concluded that this sub-reservation
should be included in the Program. The sub-reservation of a substantial
portion of the allocation in Category 1 for eligible residential BTM
facilities would help ensure that allocations are predominantly awarded
to facilities serving residences and consumers, rather than facilities
serving businesses.
IV. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits and take
certain other actions before issuing a final rule that includes any
Federal mandate that may result in expenditures in any one year by a
State, local, or Indian Tribal government, in the aggregate, or by the
private sector, of $100 million (updated annually for inflation). This
final rule does not include any Federal mandate that may result in
expenditures by State, local, or Indian Tribal governments, or by the
private sector in excess of that threshold.
V. Executive Order 13132: Federalism
Executive Order 13132 (Federalism) prohibits an agency from
publishing any rule that has federalism implications if the rule either
imposes substantial, direct compliance costs on State and local
governments, and is not required by statute, or preempts State law,
unless the agency meets the consultation and funding requirements of
section 6 of the Executive order. These regulations do not have
federalism implications and does not impose substantial direct
compliance costs on State and local governments or preempt State law
within the meaning of the Executive order.
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments) prohibits an agency from publishing any rule that
has Tribal implications if the rule either imposes substantial, direct
compliance costs on Indian Tribal governments, and is not required by
statute, or preempts Tribal
[[Page 2861]]
law, unless the agency meets the consultation and funding requirements
of section 5 of the Executive order. These regulations do not have
substantial direct effects on one or more Federally recognized Indian
tribes and does not impose substantial direct compliance costs on
Indian Tribal governments within the meaning of the Executive order.
Nevertheless, on September 27, 2024, the Treasury Department and
the IRS held a consultation with Tribal leaders requesting assistance
in addressing questions related to Low-Income Communities Bonus Credit
Amount Program, which informed the development of these regulations.
VII. Congressional Review Act
Pursuant to the Congressional Review Act (CRA) (5 U.S.C. 801 et
seq.), the Office of Information and Regulatory Affairs has determined
that this rule meets the criteria set forth in 5 U.S.C. 804(2).
VIII. Immediate Effective Date
These final regulations have an effective date of January 13, 2025.
To the extent that a good cause statement is necessary under any
provision of law, the Treasury Department and the IRS find that there
would be good cause to make this rule immediately effective upon
publication in the Federal Register. The IRA added the section 48E
credit to the Code, and provided that the section 48E credit applies to
property placed in service after December 31, 2024. Pursuant to the
IRA, section 48E(h)(4)(A) directs the Secretary, not later than January
1, 2025, to establish a program to allocate amounts of Capacity
Limitation to applicable facilities and to ``provide procedures to
allow for an efficient allocation'' of Capacity Limitation to
applicable facilities. In addition, the public already has been
provided notice of the general contents of the rules in the proposed
regulations and their proposed applicability to applicable facilities
placed in service after December 31, 2024, and during taxable years
ending on or after the date of publication of these final regulations.
As provided in the IRA, section 48E(h) replaces the existing low-income
communities bonus credit program for applicable facilities placed in
service after December 31, 2024. The statute and proposed regulations,
therefore, provide notice that the rules will apply to applicable
facilities placed in service beginning in 2025, and provide notice of
the qualification requirements being promulgated in this final rule.
The Treasury Department and the IRS have determined that an
expedited effective date of the final regulations is appropriate here
because of the January 1, 2025, deadline to establish the Program and
to provide certainty to taxpayers.
Consistent with Executive Order 14008 (January 27, 2021), and
commenters' requests for final rules, the Treasury Department and the
IRS have determined that an expedited effective date of the final
regulations is appropriate here given the statutory deadline to
establish the Program and to provide certainty to taxpayers. The final
regulations provide needed rules on what the law requires for taxpayers
to begin job-generating construction of capital-intensive projects
qualifying for section 48E(h). Making the final regulations effective
as soon as possible will also prevent delays in enabling low-income
households to access cost-saving clean electricity in 2025 given the
transition from section 48(e) to section 48E(h). Accordingly, to the
extent that a finding of good cause is necessary, the Treasury
Department and the IRS have found good cause for the rules in this
Treasury decision to take effect on the date of publication in the
Federal Register.
Statement of Availability of IRS Documents
Guidance cited in this preamble is published in the Internal
Revenue Bulletin and is available from the Superintendent of Documents,
U.S. Government Publishing Office, Washington, DC 20402, or by visiting
the IRS website at https://www.irs.gov.
Drafting Information
The principal author of these regulations is the Office of the
Associate Chief Counsel (Passthroughs and Special Industries), IRS.
However, other personnel from the Treasury Department and the IRS
participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Amendments to the Regulations
Accordingly, 26 CFR part 1 is amended as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 is amended by adding an
entry for Sec. 1.48E(h)-1 in numerical order to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
* * * * *
Section 1.48E(h)-1 also issued under 26 U.S.C. 48E(i).
* * * * *
0
Par. 2. Sections 1.48E(h)-0 and 1.48E(h)-1 are added to read as
follows:
Sec. 1.48E(h)-0 Table of contents.
This section lists the captions contained in Sec. 1.48E(h)-1.
Sec. 1.48E(h)-1 Clean Electricity Low-Income Communities Bonus
Credit Amount Program.
(a) Overview.
(1) General rule.
(2) Certain terms used in this section.
(i) Applicant.
(ii) Disregarded entity.
(iii) Internal Revenue Bulletin.
(b) Applicable facility defined.
(1) In general.
(2) Facility categories.
(i) Category 1 facility.
(ii) Category 2 facility.
(iii) Category 3 facility.
(iv) Category 4 facility.
(3) Less than five megawatts requirement.
(i) In general.
(ii) Nameplate capacity for purposes of the less than five
megawatts requirement.
(iii) Nameplate capacity for an applicable facility that
generates in direct current for purposes of the less than five
megawatts requirement.
(iv) Integrated operations.
(4) Related taxpayers.
(c) Eligible property.
(d) Location.
(1) In general.
(2) Nameplate Capacity Test for Location.
(3) Nameplate capacity for purpose of Nameplate Capacity Test
for Location.
(e) Financial benefits for a Category 3 facility.
(1) In general.
(2) Threshold requirement.
(3) Financial value of the electricity produced by the facility.
(4) Gross financial value defined.
(5) Net financial value defined.
(i) Common ownership.
(ii) Third-party ownership.
(iii) Equitable allocation of financial benefits.
(A) If financial value distributed via utility bill savings.
(B) If financial value is not distributed via utility bill
savings.
(6) Benefits sharing statement.
(i) In general.
(ii) Notification requirement.
(f) Financial benefits for a Category 4 facility.
(1) In general.
(2) Bill credit discount rate.
(i) With cost to participate.
(ii) No or nominal cost of participation.
(iii) Calculation on annual basis.
(iv) Examples.
(A) Example 1.
(B) Example 2.
(C) Example 3.
(3) Demonstration of financial benefits statement.
(4) Low-income verification and recordkeeping.
[[Page 2862]]
(i) In general.
(ii) Methods of verification.
(A) Categorical eligibility.
(B) Direct income verification methods.
(C) Impermissible verification method.
(g) Annual Capacity Limitation.
(1) In general.
(2) Sub-reservations.
(3) Redistribution within Program year.
(4) Carryover of unallocated Annual Capacity Limitation.
(5) Allocations to applicable facilities with nameplate capacity
in alternating current.
(h) Reservations of Capacity Limitation allocation for
facilities that meet certain Additional Selection Criteria.
(1) In general.
(2) Ownership criteria.
(i) In general.
(ii) Indirect ownership.
(A) Disregarded entities.
(B) Partner qualifying partnership under ownership criteria.
(C) Partner qualifying partnership involving low-income housing
credit under ownership criteria.
(iii) Tribal enterprise.
(iv) Alaska Native Corporation.
(v) Native Hawaiian Organization.
(vi) Renewable energy cooperative.
(vii) Qualified tax-exempt entity.
(viii) Qualified renewable energy company.
(3) Geographic criteria.
(i) In general.
(ii) Persistent Poverty County.
(iii) Certain census tracts under Climate and Economic Justice
Screening Tool.
(A) Energy burden.
(B) PM2.5.
(C) Low-income.
(i) Sub-reservations of allocation for Category 1 facilities.
(1) In general.
(2) Definitions.
(i) Behind the meter (BTM) facility.
(ii) Eligible residential BTM facility.
(iii) FTM facility.
(j) Process of application evaluation.
(1) In general.
(2) Information required as part of application.
(3) No administrative appeal of Capacity Limitation allocation
decisions.
(4) Application period.
(i) Opening and closing dates.
(ii) Initial 30-day period.
(iii) Applications submitted after the initial 30-day period.
(A) In general.
(B) Additional Selection Criteria Applications submitted after
the initial 30-day period.
(k) Placed in service.
(1) Requirement to report date placed in service.
(2) Requirement to submit final eligibility information at
placed in service time.
(3) Confirmation.
(4) Definition of placed in service.
(l) Facilities placed in service prior to an allocation award.
(1) In general.
(2) Rejection or rescission.
(m) Disqualification.
(n) Recapture of section 48E(h) Increase to the section 48E(a)
credit.
(1) In general.
(2) Exception to application of recapture.
(3) Recapture events.
(4) Section 50(a) recapture.
(o) Record retention.
(p) Applicability date.
Sec. 1.48E(h)-1 Clean Electricity Low-Income Communities Bonus Credit
Amount Program.
(a) Overview--(1) General rule. For purposes of section 46 of the
Internal Revenue Code (Code), if an allocation of the capacity
limitation (Capacity Limitation) is made with respect to eligible
property (as defined in paragraph (c) of this section) that is part of
any applicable facility (as defined in paragraph (b) of this section)
placed in service in connection with low-income communities under the
Clean Electricity Low-Income Communities Bonus Credit Amount Program
(Program) established under section 48E(h)(4), the applicable
percentage used to calculate the amount of the clean electricity
investment credit determined under section 48E(a) (section 48E credit)
is increased under section 48E(h)(1).
(2) Certain terms used in this section. In this section:
(i) Applicant. The terms applicant and taxpayer are used
interchangeably as the context may require. An applicant is the
taxpayer that owns the applicable facility and that intends to claim
the section 48E credit and will be applying for an allocation of
Capacity Limitation for purposes of the section 48E(h) Increase. A
disregarded entity is not eligible to be an applicant. The regarded
taxpayer that owns the disregarded entity is the owner of the
applicable facility and, therefore, the applicant, for purposes of the
Program and this section.
(ii) Disregarded entity. The term disregarded entity means an
entity that is disregarded as separate from its owner for Federal
income tax purposes.
(iii) Internal Revenue Bulletin. The term Internal Revenue Bulletin
has the meaning provided in Sec. 601.601 of this chapter.
(b) Applicable facility defined--(1) In general. An applicable
facility means any qualified facility (as defined in section 48E(b)(3))
that--
(i) Is a non-combustion and gasification facility for which the
Secretary of the Treasury or her delegate has determined has a
greenhouse gas (GHG) emissions rate of not greater than zero and
announced in guidance published either in the Federal Register or in
the Internal Revenue Bulletin as of the opening date for a Program
year;
(ii) Has a maximum net output of less than five megawatts (MW) (as
measured in alternating current (AC)); and
(iii) Is described in at least one of the four categories described
in section 48E(h)(2)(A)(iii) and paragraph (b)(2) of this section.
(2) Facility categories--(i) Category 1 facility. A facility is a
Category 1 facility if it is located in a low-income community. The
term low-income community is defined under section 45D(e)(1) of the
Code as any population census tract for which the poverty rate is at
least 20 percent based on the most recently released American Community
Survey (ACS) low-income community data currently used for the New
Markets Tax Credit (NMTC) under section 45D, or, in the case of a tract
not located within a metropolitan area, the median family income for
such tract does not exceed 80 percent of statewide median family
income, or, in the case of a tract located within a metropolitan area,
the median family income for such tract does not exceed 80 percent of
the greater of statewide median family income or the metropolitan area
median family income. The term low-income community also includes the
modifications in section 45D(e)(4) and (5) for tracts with low
population and modification of the income requirement for census tracts
with high migration rural counties. Low-income community information
for NMTC can be found at https://www.cdfifund.gov/cims3. For purposes
of this paragraph (b)(2)(i), if updated ACS low-income community data
is released for the NMTC, a taxpayer can choose to base the poverty
rate for any population census tract on either the prior version of the
ACS low-income community data for the NMTC program or the updated ACS
low-income community data for the NMTC program for a period of 1 year
following the date of the release of the updated data. After the 1-year
transition period, the updated ACS low-income community data for the
NMTC program must be used to determine the poverty rate for any
population census tract. Population census tracts that satisfy the
definition of low-income community at the time of application are
considered to continue to meet the definition of low-income community
for the duration of the recapture period described in paragraph (n)(1)
of this section unless the location of the facility changes.
(ii) Category 2 facility. A facility is a Category 2 facility if it
is located on Indian land. The term Indian land is defined in section
2601(2) of the Energy Policy Act of 1992 (25 U.S.C. 3501(2)).
(iii) Category 3 facility. A facility is a Category 3 facility if
it is part of a qualified low-income residential building project. A
facility will be treated as part of a qualified low-income
[[Page 2863]]
residential building project if such facility is installed on a
residential rental building that participates in a covered housing
program or other affordable housing program as described in section
48E(h)(2)(B)(i) (Qualified Residential Property) and the financial
benefits of the electricity produced by such facility are allocated
equitably among the occupants of the dwelling units of such building as
provided in paragraph (e) of this section. A Qualified Residential
Property could either be a multifamily rental property or single-family
rental property. However, the building, and not merely the tenants,
must participate in a covered housing program or other affordable
housing program described in section 48E(h)(2)(B)(i). A facility does
not need to be installed directly on the building to be considered
installed on a Qualified Residential Property if the facility is
installed on the same or an adjacent parcel of land as the Qualified
Residential Property, and the other requirements to be a Category 3
facility are satisfied.
(iv) Category 4 facility. A facility is a Category 4 facility if it
is part of a qualified low-income economic benefit project. A facility
will be treated as part of a qualified low-income economic benefit
project if, as provided in paragraph (f) of this section, at least 50
percent of the financial benefits of the electricity produced by such
facility are provided to households with income of less than--
(A) Two-hundred percent of the poverty line (as defined in section
36B(d)(3)(A) of the Code) applicable to a family of the size involved;
or
(B) Eighty percent of area median gross income (as determined under
section 142(d)(2)(B) of the Code).
(3) Less than five megawatts requirement--(i) In general. For
purposes of this paragraph (b), the less than five megawatts
requirement in paragraph (b)(1)(ii) of this section is measured at the
level of the applicable facility in accordance with section
48E(h)(2)(A)(ii). The maximum net output of an applicable facility is
measured only by nameplate generating capacity of the applicable
facility, which includes only functionally interdependent components of
the applicable facility, at the time the applicable facility is placed
in service. Components of property are functionally interdependent if
the placing in service of each component is dependent upon placing in
service other components to produce electricity.
(ii) Nameplate capacity for purposes of the less than five
megawatts requirement. The determination of whether an applicable
facility has a maximum net output of less than 5 MW (as measured in AC)
is based on the nameplate capacity of the applicable facility. If an
applicable facility has integrated operations with one or more other
qualified facilities of the same technology type, then the aggregate
nameplate capacity of the applicable facility and each other qualified
facility is used to determine whether the less than five megawatts
requirement in paragraph (b)(1)(ii) of this section is met. If an
applicable facility has a maximum net output equal to or more than 5MW
(as measured in AC), it is not eligible for the Program. The nameplate
capacity for purposes of the less than five megawatts requirement in
paragraph (b)(1)(ii) of this section is the maximum electrical
generating output in MW that the applicable facility is capable of
producing on a steady state basis and during continuous operation under
standard conditions, as measured by the manufacturer and consistent
with the definition of nameplate capacity provided in 40 CFR 96.202. If
applicable, the International Standard Organization conditions should
be used to measure the maximum electrical generating output of an
applicable facility.
(iii) Nameplate capacity for an applicable facility that generates
in direct current for purposes of the less than five megawatts
requirement. Only for applicable facilities that generate electricity
in direct current, the taxpayer may choose to determine the maximum net
output (in alternating current) of the applicable facility by using the
lesser of:
(A) The nameplate generating capacity of the applicable facility in
direct current, which is deemed the nameplate generating capacity of
the applicable facility in alternating current; or
(B) The nameplate capacity of the first component of property that
inverts the direct current electricity into alternating current.
(iv) Integrated operations. For the purposes of the less than five
megawatts requirement in paragraph (b)(1)(ii) of this section, an
applicable facility is treated as having integrated operations with one
or more other qualified facilities of the same technology type if the
facilities are:
(A) Owned by the same or related taxpayers;
(B) Placed in service in the same taxable year; and
(C) Transmit electricity generated by the facilities through the
same point of interconnection or, if the facilities are not grid-
connected or are delivering electricity directly to an end user behind
a utility meter, are able to support the same end user.
(4) Related taxpayers--(i) Definition. For purposes of this
paragraph (b), the term related taxpayers means members of a group of
trades or businesses that are under common control (as defined in Sec.
1.52-1(b)).
(ii) Related taxpayer rule. For purposes of this paragraph (b),
related taxpayers are treated as one taxpayer in determining whether an
applicable facility has integrated operations.
(c) Eligible property. Eligible property means a qualified
investment (as defined in section 48E(b)) with respect to any
applicable facility.
(d) Location--(1) In general. An applicable facility is treated as
located in a low-income community or located on Indian land under
section 48E(h)(2)(A)(iii)(I) if the applicable facility satisfies the
requirements of the Nameplate Capacity Test for Location of paragraph
(d)(2) of this section. Similarly, an applicable facility is treated as
located in a geographic area under the Additional Selection Criteria
described in paragraph (h) of this section if it satisfies the
Nameplate Capacity Test for Location.
(2) Nameplate Capacity Test for Location. An applicable facility
satisfies the requirements of the Nameplate Capacity Test for Location
of this paragraph (d)(2) and is considered located in or on the
relevant geographic area described in paragraph (d)(1) of this section
if 50 percent or more of the applicable facility's nameplate capacity
is in a qualifying area. The percentage of an applicable facility's
nameplate capacity (as defined in paragraph (d)(3) of this section)
that is in a qualifying area is determined by dividing the nameplate
capacity of the applicable facility's electricity-generating units that
are located in the qualifying area by the total nameplate capacity of
all the electricity-generating units of the applicable facility.
(3) Nameplate capacity for purpose of Nameplate Capacity Test for
Location. Nameplate capacity for an electricity generating unit means
the maximum electrical output that the applicable facility is capable
of producing on a steady state basis and during continuous operation
under standard conditions, as measured by the manufacturer and
consistent with the definition of nameplate capacity provided in 40 CFR
96.202. If applicable, the International Standard Organization
conditions should be used to measure the maximum electrical generating
output. For purposes of assessing the Nameplate Capacity Test,
electricity-generating units that generate direct current (DC)
[[Page 2864]]
power before converting to AC (for example, solar photovoltaic), should
use nameplate capacity in DC, otherwise the nameplate capacity in AC
should be used.
(e) Financial benefits for a Category 3 facility--(1) In general.
To satisfy the requirements of a Category 3 facility as provided in
paragraph (b)(2)(iii) of this section, the financial benefits of the
electricity produced by the facility must be allocated equitably among
the occupants of the dwelling units of the Qualified Residential
Property. The same rules for financial benefits for Category 3
facilities apply to both multi-family property and single-family
Qualified Residential Property.
(2) Threshold requirement. At least 50 percent of the financial
benefits of the electricity produced by the applicable facility (as
defined in paragraph (e)(3) of this section) must be allocated
equitably to the Qualified Residential Property's occupants that are
designated as low-income occupants under the covered housing program or
other affordable housing program.
(3) Financial value of the electricity produced by the facility.
Financial benefits are calculated as the financial value of the
electricity produced by the applicable facility. For purposes of this
paragraph (e), financial value of the electricity produced by the
facility means the greater of:
(i) 25 percent of the gross financial value (as defined in
paragraph (e)(4) of this section) of the annual electricity produced by
the applicable facility; or
(ii) The net financial value (as defined in paragraph (e)(5) of
this section) of the annual electricity produced by the applicable
facility.
(4) Gross financial value defined. For purposes of this paragraph
(e), gross financial value of the annual electricity produced by the
applicable facility means the sum of:
(i) The total self-consumed kilowatt-hours produced by the
applicable facility multiplied by the Qualified Residential Property's
metered volumetric price of electricity;
(ii) The total exported kilowatt-hours produced by the applicable
facility multiplied by the Qualified Residential Property's volumetric
export compensation rate for the type of electricity produced by the
applicable facility per kilowatt-hour; and
(iii) The sale of any attributes associated with the applicable
facility's production (including, for example, any Federal, State,
Tribal, or utility incentives or renewable energy certificates), if
separate from the metered price of electricity or export compensation
rate.
(5) Net financial value defined--(i) Common ownership. For purposes
of this paragraph (e), if the facility and Qualified Residential
Property are commonly owned, net financial value means:
(A) The gross financial value of the annual electricity produced;
minus
(B) The annual average (or levelized) cost of the applicable
facility over the useful life of the facility (including debt service,
maintenance, replacement reserve, capital expenditures, and any other
costs associated with constructing, maintaining, and operating the
facility).
(ii) Third-party ownership. For purposes of this paragraph (e), if
the facility and the Qualified Residential Property are not commonly
owned and the facility owner enters into a power purchase agreement or
other contract for electricity services with the Qualified Residential
Property owner and/or building occupants, net financial value means:
(A) The gross financial value of the annual electricity produced;
minus
(B) Any payments made by the building owner and/or building
occupants to the facility owner for electricity services associated
with the facility in a given year.
(iii) Equitable allocation of financial benefits. Paragraphs
(e)(5)(iii)(A) and (B) of this section provide rules regarding an
equitable allocation of financial benefits in circumstances where
financial value is distributed to building occupants via utility bill
savings or via different means, respectively. Distributed financial
benefits or investments previously made to the Qualified Residential
Property are not considered eligible financial benefits for this
purpose.
(A) If financial value distributed via utility bill savings. If
financial value is distributed via utility bill savings, financial
benefits will be considered to be allocated equitably if at least 50
percent of the financial value of the electricity produced by the
facility is distributed as utility bill savings in equal shares to each
building dwelling unit among the Qualified Residential Property's
occupants that are designated as low-income under the covered housing
program or other affordable housing program (described in section
48E(h)(2)(B)(i)) or alternatively distributed in proportional shares
based on each low-income dwelling unit's square footage, or each low-
income dwelling unit's number of occupants. For any occupant(s) who
choose to not receive utility bill savings (for example, who exercise
their right to not participate in or to opt out of a community solar
subscription in their applicable jurisdictions), the portion of the
financial value that would otherwise be distributed to non-
participating occupants must be distributed instead to all
participating occupants. No less than 50 percent of the Qualified
Residential Property's occupants that are designated as low-income must
participate and receive utility bill savings for the facility to use
this method of benefit distribution. In the case of a solar facility,
applicants must follow guidance published by the Department of Housing
and Urban Development (HUD) regarding benefits sharing, such as
Treatment of Financial Benefits to HUD-Assisted Tenants Resulting from
Participation in Solar Programs Notice (Housing Notice 2023-09),
located at https://www.hud.gov/sites/dfiles/OCHCO/documents/2023-09hsgn.pdf, or other applicable HUD guidance, or other guidance or
notices from the Federal agency that oversees the applicable housing
program identified in section 48E(h)(2)(B) to ensure that tenants'
annual income for rent calculations or other requirements impacting
total tenant payment are not negatively impacted by the distribution of
financial value. In the case of any other applicable facility,
applicants must follow applicable HUD guidance on benefits sharing, or
other guidance from the Federal agency that oversees the applicable
housing program. In the absence of applicable guidance from a Federal
agency, applicants should apply principles similar to those articulated
in HUD guidance in the case of any other applicable facility.
(B) If financial value is not distributed via utility bill savings.
If financial value is not distributed via utility bill savings,
financial benefits will be considered to be allocated equitably if at
least 50 percent of the financial value of the electricity produced by
the facility is distributed to occupants using one or more methods
described in HUD guidance regarding benefits sharing for master-metered
HUD-assisted housing, such as the Treatment of Financial Benefits to
HUD-Assisted Tenants Resulting from Participation in Solar Programs
Notice (Housing Notice 2023-09) located at https://www.hud.gov/sites/dfiles/OCHCO/documents/2023-09hsgn.pdf, or other applicable HUD
guidance, or other guidance or notices from the Federal agency that
oversees the applicable housing program identified in section
48E(h)(2)(B). In the case of a solar facility, applicants must comply
with applicable HUD guidance for how residents of master-metered HUD-
assisted housing can benefit from owners' sharing of financial benefits
[[Page 2865]]
accrued from an investment in solar electricity generation to ensure
that HUD-assisted tenants' calculations for utility allowances and
annual income for rent are not negatively impacted. In the absence of
applicable guidance from a Federal agency, applicants should apply
principles similar to those articulated in HUD guidance in the case of
any other applicable facility.
(6) Benefits sharing statement--(i) In general. The facility owner
must prepare a Benefits sharing statement to submit at placed in
service reporting, which must include:
(A) A calculation of the facility's gross financial value using the
method described paragraph (e)(4) of this section;
(B) A calculation of the facility's net financial value using the
method described in paragraph (e)(5) of this section;
(C) A calculation of the financial value required to be distributed
to building occupants using the method described in paragraph (e)(3) of
this section;
(D) A description of the means through which the required financial
value will be distributed to building occupants; and
(E) If the facility and Qualified Residential Property are
separately owned, specify which entity will be responsible for the
distribution of benefits to the occupants.
(ii) Notification requirement. The Qualified Residential Property
owner must formally notify the occupants of units in the Qualified
Residential Property of the development of the facility and planned
distribution of benefits.
(f) Financial benefits for a Category 4 facility--(1) In general.
The requirements of each of paragraph (f)(1)(i) through (iii) of this
section must be met to satisfy the requirements of a Category 4
facility as provided in paragraph (b)(2)(iv) of this section.
(i) The facility must serve multiple qualifying low-income
households under section 48E(h)(2)(C)(i) or (ii) (Qualifying
Household).
(ii) At least 50 percent of the total financial benefits of the
electricity produced by the applicable facility must be assigned to
Qualifying Households. Total financial benefits is calculated as the
sum of all value from electricity production as measured by the
utility, independent system operator, or other off-taker procuring
electricity, and any additional value (including, for example, any
electricity services, products, and credits or certificates such as
RECs provided in connection with the electricity produced by such
facility, but excluding any Federal tax credits), from the facility.
(iii) Each Qualifying Household must be provided a bill credit
discount rate (as defined in paragraph (f)(2) of this section) of at
least 20 percent.
(2) Bill credit discount rate--(i) With cost to participate. A bill
credit discount rate is the difference between the amount of the total
financial benefits provided to a Qualifying Household (including
utility bill credits, reductions in a Qualifying Household's
electricity rate, or other monetary benefits accrued by the Qualifying
Household on their utility bill) and the cost by a Qualifying Household
for participating in the program (including, but not limited to
subscription payments for zero carbon and any other fees or charges,
such as consolidated billing fees), expressed as a percentage of the
amount of the total financial benefits provided to a Qualifying
Household. The bill credit discount rate must be calculated by starting
with the amount of the total financial benefits provided to a
Qualifying Household, subtracting all payments made by a Qualifying
Household (or payments remitted on behalf of the Qualifying Household
through net crediting, consolidated billing, or similar arrangements)
to the facility owner and any related third parties as a condition of
receiving that financial benefit to determine the net financial benefit
(cost savings) to a Qualified Household, then dividing that difference
by the amount of the total financial benefit provided to the Qualifying
Household.
(ii) No or nominal cost of participation. In cases in which the
Qualifying Household has no or only a nominal cost of participation,
and financial benefits are delivered through a utility or government
body, the bill credit discount rate must be calculated as the net
financial benefits (cost savings) provided to a Qualifying Household
(including utility bill credits, reductions in a Qualifying Household's
electricity rate, or other monetary benefits accrued by a Qualifying
Household on their utility bill) divided by the amount of the total
financial benefit assigned to a Qualifying Household.
(iii) Calculation on annual basis. In all instances, the bill
credit discount rate is calculated on an annual basis.
(iv) Examples. The provisions of this paragraph (f)(2) may be
illustrated by the following examples:
(A) Example 1. A Qualifying Household signs a community solar
subscription agreement with the facility owner. Each month, the
facility owner will assign a portion of the electricity generated (or
its value) by the facility to the household's utility bill, and the
household will pay the facility owner. The amount the household pays
the facility owner cannot exceed 80 percent of the monetary value of
the assigned generation. The remaining 20 percent is a cost savings to
the household on electricity. In this example, over the course of the
first year the facility owner or their agent cause $180 in utility bill
credits to be placed on the Qualifying Household's bill, and the
Qualifying Household pays $144, inclusive of any upfront fees. The
subsequent year, due to variation in solar generation and/or the
compensation paid by the utility for solar generation, the facility
owner, in accordance with the community solar subscription agreement,
causes $240 in bill credits to be provided to the Qualifying
Household's bill and the household pays $192. In each year of facility
operation described within this example, a bill credit discount rate of
20 percent is maintained (($180-$144)/$180 = 20%) and (($240-$192)/$240
= 20%), respectively.
(B) Example 2. Due to the regulatory structure of the applicable
jurisdiction or program, the terms of the community solar subscription,
the use of a net-crediting mechanism, or other reason, the Qualifying
Household does not make a direct payment to the facility owner, but
rather payment is remitted on their behalf by the utility. In this
example, over the course of the first year the facility owner or their
agent cause $200 in utility bill credits to be placed on the Qualifying
Household's bill, and the Qualifying Household's utility remits $160 to
the facility owner, inclusive of any upfront fees. The subsequent year,
due to variation in solar generation and/or the compensation paid by
the utility for solar generation, the facility owner, in accordance
with the community solar subscription agreement, causes $240 in bill
credits to be provided to the Qualifying Household's bill and the
utility remits $192 to the facility owner. In each year of facility
operation described within this example, a bill credit discount rate of
20 percent is maintained (($200-$160)/$200 = 20%) and (($240-$192)/$240
= 20%), respectively.
(C) Example 3. Assume the facility is part of a program by which
the financial benefits are delivered to 100 Qualifying Households
through a utility or government body, and each Qualifying Household
pays no cost to participate. Assume that the financial value of the
electricity produced by the facility's total output is $120,000 in the
first year and $160,000 in the second year.
[[Page 2866]]
Assume that 50% of the facility's financial value of the electricity is
assigned to Qualifying Households and is therefore calculated as
$60,000 in the first year ($120,000 x 50% = $60,000) and $80,000 in the
second year ($160,000 x 50% = $80,000). Assume further that each
Qualifying Household is assigned the same total financial benefit ($600
in the first year and $800 in the second year). If the bill credit
discount rate for each Qualifying Household is 20 percent in each year,
the net financial benefits (or cost savings) provided to each
Qualifying Household is $120 in the first year ($120/$600 = 20%) and
$160 in the second year ($160/$800 = 20%).
(3) Demonstration of financial benefits statement. The facility
owner must prepare a Demonstration of Financial Benefits Statement,
which must include:
(i) A calculation of the total financial benefits of annual
electricity production, as described in paragraph (f)(1)(ii) of this
section;
(ii) The percent of the total financial benefits provided and/or
assigned to Qualifying Households;
(iii) The bill credit discount rate method used (with cost to
participate or no or nominal cost of participation);
(iv) A calculation of the bill credit discount rate;
(v) A description of the means of distributing the required
benefits to Qualifying Households; and
(vi) Documentation that the facility is enrolled in the applicable
utility tariff, program, or other arrangement used to distribute
financial benefits to Qualifying Households.
(4) Low-income verification and recordkeeping--(i) In general.
Taxpayers must verify that a household meets the income limits under
section 48E(h)(2)(C)(i) or (ii), whichever is applicable to the
household based on the household's location, for the household to be a
Qualifying Household under paragraph (f)(1)(i) of this section. A
household's low-income status is determined at the time the household
enrolls in the subscription program and does not need to be re-
verified. The qualifying income level for a Qualifying Household is
based on where such household is located. Taxpayers must additionally
maintain records of the verification for each household that prove the
taxpayer has provided requisite percentage of financial benefits to
Qualifying Households.
(ii) Methods of verification. Applicants may use categorical
eligibility verification or direct income verification methods, but not
an impermissible verification method described in paragraph
(f)(4)(ii)(C) of this section, to establish that a household is a
Qualifying Household.
(A) Categorical eligibility. Categorical eligibility consists of
obtaining proof of the household's participation in a needs-based
Federal, State, Tribal, or utility program with income limits at or
below the qualifying income level required to be a Qualifying
Household. An individual in the household must currently be approved
for assistance from or participation in a program with an award letter
or other written documentation within the last 12 months for enrollment
in that program to establish categorical eligibility of the household.
(B) Direct income verification methods. Documentation like
paystubs, Federal or State tax returns, or income verification through
crediting agencies and commercial data sources can be used to establish
that a household is a Qualifying Household.
(C) Impermissible verification method. A self-attestation from a
member or members of a household is not a permissible method to
establish a household is a Qualifying Household. This prohibition on
direct self-attestation from a household, for purposes of this Program,
does not extend to categorical eligibility verification where the
eligible needs-based Federal, State, Tribal, or utility programs with
income limits rely on self-attestation for verification of income, and
the taxpayer has obtained proof of a member or members of a household's
participation in such a program.
(g) Annual Capacity Limitation--(1) In general. Under section
48E(h)(4)(C), the total annual Capacity Limitation is 1.8 gigawatts of
DC capacity (Annual Capacity Limitation) for each calendar year of the
Program. The Annual Capacity Limitation for each Program year is
divided across the four facility categories described in section
48E(h)(2)(A)(iii) and paragraph (b)(2) of this section based on factors
such as the anticipated number of applications that are expected for
each category and the amount of Capacity Limitation that needs to be
reserved for each category to encourage market participation in each
category. The initial distribution of the Annual Capacity Limitation
for each Program year is:
Table 1 to Paragraph (g)(1) of This Section
------------------------------------------------------------------------
Category Capacity limitation (DC)
------------------------------------------------------------------------
1: Located in a Low-Income Community....... 600 MW.
2: Located on Indian Land.................. 200 MW.
3: Qualified Low-Income Residential 200 MW.
Building Project.
4: Qualified Low-Income Economic Benefit 800 MW.
Project.
------------------------------------------------------------------------
(2) Sub-reservations. The reservation of Capacity Limitation for
Category 1 is further divided into Category 1 sub-reservations, which
are described in paragraph (i) of this section. The category 1 sub-
reservation distribution of Capacity Limitation is:
Table 2 to Paragraph (g)(2) of This Section
------------------------------------------------------------------------
Eligible Residential BTM facilities 400 MW.
------------------------------------------------------------------------
Eligible FTM facilities and non-residential 200 MW.
BTM facilities.
------------------------------------------------------------------------
(3) Redistribution within Program year. At the close of the
application period for a Program year, if some categories or sub-
reservations are undersubscribed, while others are oversubscribed,
capacity will be redistributed within the Program year for allocation
to applicants in another Category or sub-reservation. A category or
sub-reservation is undersubscribed if the amount of capacity applied
for in all eligible applications within a reservation is less than the
amount of the Capacity Limitation portion distributed to that
reservation. A category or sub-reservation is oversubscribed if the
amount of capacity applied for in all eligible applications within a
particular reservation is in excess of the Capacity Limitation portion
distributed to that reservation. Capacity Limitation will be
redistributed within a Program year in the following manner:
(i) Capacity will first be redistributed within a category from the
undersubscribed reservation to the oversubscribed reservation. For
example, if the Additional Selection Criteria reservation is
undersubscribed while the non-Additional Selection Criteria reservation
is oversubscribed, the remaining capacity reservation for the
Additional Selection Criteria will be redistributed to and increase the
non-Additional Selection Criteria reservation or sub-reservation in the
same category.
(ii) If there is remaining capacity in a category after
redistribution under paragraph (g)(3)(i) of this section, or, in
general, if a category is, as a whole,
[[Page 2867]]
undersubscribed such that paragraph (g)(3)(i) of this section does not
apply to that category, then, any remaining capacity in any category
will be redistributed to and increase the reservation for Category 1
residential BTM facilities, but only if Category 1 residential BTM is
oversubscribed. If both the Additional Selection Criteria and non-
Additional Section Criteria reservations are oversubscribed for
Category 1 residential BTM, then consistent with paragraph (h)(1) of
this section, the redistributed capacity limitation will first increase
the reservation for Additional Selection Criteria applications, and
then if any capacity is remaining it will be added to the reservation
for non-Additional Selection Criteria applications.
(iii) If there is remaining capacity after redistribution under
paragraphs (g)(3)(i) and (ii) of this section, or if redistribution
under paragraph (g)(3)(ii) of this section is inapplicable due to
undersubscription in Category 1 residential BTM, then the remaining
capacity will be redistributed to and increase the reservation for
Category 4. If both the Additional Selection Criteria and the non-
Additional Selection Criteria reservations under Category 4 are
oversubscribed, then consistent with paragraph (j)(4)(ii) of this
section, the redistributed capacity limitation will first increase the
reservation for Additional Selection Criteria applications, and then if
any capacity is remaining it will be added to the reservation for non-
Additional Selection Criteria applications.
(iv) If there is remaining capacity after redistribution under
paragraphs (g)(3)(i) through (iii) of this section, or if
redistribution under paragraph (g)(3)(iii) of this section is
inapplicable due to undersubscription in Category 1 residential BTM and
Category 4, then the remaining capacity will be redistributed to and
increase the reservation for Category 3. If both the Additional
Selection Criteria and the non-Additional Selection Criteria
reservations under Category 3 are oversubscribed, then consistent with
paragraph (j)(4)(ii) of this section, the redistributed capacity
limitation will first increase the reservation for Additional Selection
Criteria applications, and then if any capacity is remaining it will be
added to the reservation for non-Additional Selection Criteria
applications.
(v) If there is remaining capacity after redistribution under
paragraphs (g)(3)(i) through (iv) of this section, or if redistribution
under paragraph (g)(3)(iv) of this section is inapplicable due to
undersubscription in Category 1 residential BTM, Category 4, and
Category 3 then the remaining capacity will be redistributed to and
increase the reservation for Category 2. If both the Additional
Selection Criteria and the non-Additional Selection Criteria
reservations under Category 2 are oversubscribed, then consistent with
paragraph (j)(4)(ii) of this section, the redistributed capacity
limitation will first increase the reservation for Additional Selection
Criteria applications, and then if any capacity is remaining it will be
added to the reservation for non-Additional Selection Criteria
applications.
(vi) If there is remaining capacity after redistribution under
paragraphs (g)(3)(i) through (v) of this section, or if redistribution
under paragraph (g)(3)(iv) of this section is inapplicable due to
undersubscription in Category 1 residential BTM, Category 4, Category
3, and Category 2, then the remaining capacity will be redistributed to
and increase the reservation for Category 1 Eligible FTM facilities and
non-residential BTM facilities. If both the Additional Selection
Criteria and the non-Additional Selection Criteria reservations under
Category 1 Eligible FTM facilities and non-residential BTM facilities
are oversubscribed, then consistent with paragraph (j)(4)(ii) of this
section, the redistributed capacity limitation will first increase the
reservation for Additional Selection Criteria applications, and then if
any capacity is remaining it will be added to the reservation for non-
Additional Selection Criteria applications.
(vii) If after redistribution under paragraphs (g)(3)(i) through
(vi) of this section, there is remaining Capacity Limitation at the
close of a Program year, the unallocated amount of Capacity Limitation
will be carried forward to the succeeding year as described in
paragraph (g)(4) of this section.
(4) Carryover of unallocated Annual Capacity Limitation. If the
Annual Capacity Limitation, as described in paragraph (g)(1) of this
section, for any calendar year exceeds the aggregate amount of Annual
Capacity Limitation allocated for a given calendar year, the Annual
Capacity Limitation for the succeeding calendar year will be increased
by the amount of such excess or remainder from previous Program Year.
No amount of Capacity Limitation may be carried to any calendar year
after the third calendar year following the applicable year (as defined
in section 45Y(d)(3) of the Code). Any unallocated Capacity Limitation
carried over from the preceding year will be equally distributed across
Category 1, 2, 3, and 4. Within Category 1, the portion distributed
from the carried over Capacity Limitation will be equally distributed
across Category 1 sub-reservations and further across the reservation
for Additional Selection Criteria within those sub-reservations. The
portion of the carried over Capacity Limitation distributed to each of
Category 2, 3, and 4 will be equally distributed within each category
to the Additional Selection Criteria reservation and the non-Additional
Selection Criteria reservation.
(5) Allocations to applicable facilities with nameplate capacity in
alternating current. For applicable facilities which have a nameplate
capacity in AC, and which are awarded an allocation, such an applicable
facility will be awarded an amount of Capacity Limitation in direct
current that is equal to the applicable facility's reported nameplate
capacity in alternating current.
(h) Reservations of Capacity Limitation allocation for facilities
that meet certain Additional Selection Criteria--(1) In general. 50
percent of the total Capacity Limitation in each facility category
described in paragraph (b) of this section and Category 1 sub-
reservation (described in paragraph (i) of this section) will be
reserved at the beginning of an application period for applicable
facilities meeting the Additional Selection Criteria described in
paragraph (h)(2) of this section (relating to ownership criteria) and
paragraph (h)(3) of this section (relating to geographic criteria). The
reservation of Capacity Limitation for applicable facilities meeting
the Additional Selection Criteria may be redistributed across facility
categories and sub-reservations as described in paragraph (g)(3) of
this section. If after the initial 30-day period an Additional
Selection Criteria reservation for a category or Category 1 sub-
reservation is undersubscribed, such Additional Selection Criteria
reservation of 50 percent is maintained. The procedures for applying
under these Additional Selection Criteria are provided in guidance
published in the Internal Revenue Bulletin.
(2) Ownership criteria--(i) In general. The ownership criteria are
based on characteristics of the applicant that owns the applicable
facility. An applicable facility will meet the ownership criteria if it
is owned by one of the following:
(A) A Tribal enterprise (as defined in paragraph (h)(2)(iii) of
this section);
(B) An Alaska Native Corporation (as defined in paragraph
(h)(2)(iv) of this section);
[[Page 2868]]
(C) A Native Hawaiian Organization (as defined in paragraph
(h)(2)(v) of this section);
(D) A renewable energy cooperative (as defined in paragraph
(h)(2)(vi) of this section); or
(E) A qualified tax-exempt entity (as defined in paragraph
(h)(2)(vii) of this section).
(F) A qualified renewable energy company (as defined in paragraph
(h)(2)(viii) of this section).
(ii) Indirect ownership--(A) Disregarded entities. If an applicant
wholly owns a disregarded entity that is the owner of an applicable
facility, then the applicant, and not the disregarded entity, is
treated as the owner of the applicable facility for purposes of the
ownership criteria. For entities wholly owned and chartered under
Tribal law and corporations incorporated under the authority of either
section 17 of the Indian Reorganization Act of 1934, 25 U.S.C. 5124, or
section 3 of the Oklahoma Indian Welfare Act, 25 U.S.C. 5203, an
application may be made as a Tribal Enterprise. Disregarded entities
are not eligible for an award and may not submit an application.
(B) Partner qualifying partnership under ownership criteria. Except
as described in paragraph (h)(2)(ii)(C) of this section, if an
applicant is an entity classified as a partnership for Federal income
tax purposes, and an entity described in paragraphs (h)(2)(i)(A)
through (E) of this section owns at least a one percent interest
(either directly or indirectly) in each material item of partnership
income, gain, loss, deduction, and credit of the partnership and is
also a managing member or general partner (or similar title) under
State or Tribal law of the partnership (or directly owns 100 percent of
the equity interests in the managing member or general partner) at all
times during the existence of the partnership, the applicable facility
will be deemed to meet the ownership criteria. If the partnership
described in the preceding sentence becomes the owner of the facility
after an allocation is made to an entity described in paragraphs
(h)(2)(i)(A) through (E) of this section, then the transfer of the
facility to the partnership is not a disqualification event for
purposes of paragraph (m)(5) of this section, so long as the
requirements of paragraph (m)(5) of this section are satisfied. Nothing
in this paragraph (h)(2)(ii)(B) applies to an applicant described in
paragraph (h)(2)(i)(F) of this section.
(C) Partner qualifying partnership involving low-income housing
credit under ownership criteria. If an applicant is an entity
classified as a partnership for Federal income tax purposes and is the
owner of an applicable facility connected to a residential building to
which credits under section 42 of the Code are reasonably anticipated
or have been determined and has a partner for Federal income tax
purposes that is an entity described in paragraphs (h)(2)(i)(A) through
(E) of this section, the applicable facility will be deemed to meet the
ownership criteria. If the partnership becomes the owner of the
facility after an allocation is made to an entity described in
paragraph (h)(2)(i)(E) of this section, and complete ownership is
transferred to a partnership that owns a qualified low-income building
within the meaning of section 42(c)(2) (including, through a
disregarded entity owned by the partnership), then the transfer of the
facility to the partnership is not a disqualification event for
purposes of paragraph (m)(5) of this section or subject to recapture
for purposes of paragraph (n) of this section, so long as the
requirements of paragraph (m)(5) of this section are satisfied.
(iii) Tribal enterprise. A Tribal enterprise for purposes of the
ownership criteria is an entity that is:
(A) Owned at least 51 percent directly by an Indian Tribal
government (as defined in section 30D(g)(9) of the Code), or owned at
least 51 percent indirectly through an entity that is wholly owned by
the Indian Tribal government and is created under either the Tribal
laws of the Indian Tribal government or through a corporation
incorporated under the authority of either section 17 of the Indian
Reorganization Act of 1934, 25 U.S.C. 5124, or section 3 of the
Oklahoma Indian Welfare Act, 25 U.S.C. 5203; and
(B) Subject to Tribal government rules, regulations, and/or codes
that regulate the operations of the entity.
(iv) Alaska Native Corporation. An Alaska Native Corporation for
purposes of the ownership criteria is defined in section 3 of the
Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m).
(v) Native Hawaiian Organization. A Native Hawaiian Organization
for purposes of the ownership criteria is defined in 13 CFR 124.3.
(vi) Renewable energy cooperative. A renewable energy cooperative
for purposes of the ownership criteria is an entity that develops
applicable facilities and is either:
(A) A consumer or purchasing cooperative controlled by its members
with each member having an equal voting right and with each member
having rights to profit distributions based on patronage as defined by
proportion of volume of electricity or energy credits purchased (kWh),
volume of financial benefits delivered (in United States dollars), or
volume of financial payments made (in United States dollars); and in
which at least 50 percent of the patronage in the qualified facility is
by cooperative members who are low-income households (as defined in
section 48E(h)(2)(C)); or
(B) A worker cooperative controlled by its worker-members with each
member having an equal voting right.
(vii) Qualified tax-exempt entity. A qualified tax-exempt entity
for purposes of the ownership criteria is:
(A) An organization exempt from the tax imposed by subtitle A of
the Code by reason of being described in section 501(c)(3) or (d) of
the Code;
(B) Any State, the District of Columbia, or political subdivision
thereof, or any agency or instrumentality of any of the foregoing;
(C) An Indian Tribal government (as defined in section 30D(g)(9)),
a political subdivision thereof, or any agency or instrumentality of
any of the foregoing; or
(D) Any corporation described in section 501(c)(12) operating on a
cooperative basis that is engaged in furnishing electric energy to
persons in rural areas.
(viii) Qualified renewable energy company. A qualified renewable
energy company (QREC) for purposes of the ownership criteria is an
entity that serves low-income communities and provides pathways for the
adoption of clean energy by low-income households. To be a QREC, an
entity must meet all of the requirements in paragraphs (h)(2)(vii)(A)
through (D) of this section.
(A) The entity's business purpose must be to serve low-income
households or low-income communities, and this purpose must be stated
in governing documents and dated at least two years prior to
application submission;
(B) At least 51 percent of the entity's equity interests must be
owned and controlled by one or more individuals;
(C) The entity must have first installed, operated, or provided
services as a contractor or subcontractor to an applicable facility two
or more years prior to the date of application; and
(D) The entity must have at least one but less than 10 full-time
equivalent employees (as determined under section 4980H(c)(2)(E) and
(c)(4) of the Code) and less than $20 million in annual gross receipts
in the previous two calendar years. The number of full-time equivalent
employees and amount in annual gross receipts must include the full-
time equivalent employees and
[[Page 2869]]
annual gross receipts of all affiliated entities. An entity is
considered to be an affiliated entity if--
(1) 25 percent or more of an entity's board seats, voting rights,
or equity interests, are cumulatively held by another entity and
related entities (as described in described in section 267(b) or
section 707(b)(1) of the Code); or
(2) One or more of an entities' officers, directors, managing
members or partners with authority over the board of directors or
management and operations also have authority over the board of
directors or management and operations of another entity.
(3) Geographic criteria--(i) In general. Geographic criteria do not
apply to Category 2 facilities. To meet the geographic criteria, a
facility must be located in a county or census tract that is described
in paragraph (h)(3)(ii) or (iii) of this section. Applicants who meet
the geographic criteria at the time of application are considered to
continue to meet the geographic criteria for the duration of the
recapture period unless the location of the facility changes.
(ii) Persistent Poverty County. A Persistent Poverty County (PPC),
which is, generally, described as any county where 20 percent or more
of residents have experienced high rates of poverty over the past 30
years. For purposes of the Program and this section, the PPC measure
adopted by the USDA is used to make this determination. If updated data
is released by USDA, a taxpayer will have a 1-year period following the
date of the release of the updated data to be eligible under the
previous data. After the 1-year transition period, the updated data
must be used to determine eligibility.
(iii) Certain census tracts under Climate and Economic Justice
Screening Tool. A census tract that is described in the latest official
Climate and Economic Justice Screening Tool (CEJST), as greater than or
equal to the 90th percentile for energy burden and greater than or
equal to the 65th percentile for low income, or as greater than or
equal to the 90th percentile for PM2.5 exposure and greater
than or equal to the 65th percentile for low income.
(A) Energy burden. Energy burden is defined as average household
annual energy cost in dollars divided by the average household income.
(B) PM2.5. PM2.5 is defined as fine inhalable
particles with 2.5 or smaller micrometer diameters. The percentile is
the weight of the particles per cubic meter.
(C) Low-income. Low income, for purposes of this section, is
defined as the percent of a census tract's population in households for
which household income is at or below 200 percent of the Federal
poverty level, not including students enrolled in higher education.
(i) Sub-reservations of allocation for Category 1 facilities--(1)
In general. Capacity Limitation reserved for Category 1 facilities will
be subdivided each Program year for facilities seeking a Category 1
allocation with Capacity Limitation reserved specifically for eligible
residential behind the meter (BTM) facilities, including rooftop solar.
The remaining Capacity Limitation is available for applicants with
front of the meter (FTM) facilities as well as non-residential BTM
facilities. The specific sub-reservation for eligible residential BTM
facilities in Category 1 is provided in guidance published in the
Internal Revenue Bulletin and is established based on factors such as
promoting efficient allocation of Capacity Limitation and allowing
like-projects to compete for an allocation. After the sub-reservation
is established in guidance published in the Internal Revenue Bulletin,
the sub-reservation may be reallocated later in the event it has excess
capacity.
(2) Definitions--(i) Behind the meter (BTM) facility. For purposes
of the Program and this section, an applicable facility is BTM if:
(A) It is connected with an electrical connection between the
facility and the panelboard or sub-panelboard of the site where the
facility is located;
(B) It is to be connected on the customer side of a utility service
meter before it connects to a distribution or transmission system (that
is, before it connects to the electricity grid); and
(C) Its primary purpose is to provide electricity to the utility
customer of the site where the facility is located. This also includes
systems not connected to a grid and that may not have a utility service
meter, and whose primary purpose is to serve the electricity demand of
the owner of the site where the system is located.
(ii) Eligible residential BTM facility. For purposes of paragraph
(i)(1) of this section, an eligible residential BTM facility is defined
as a single-family or multi-family residential applicable facility that
does not meet the requirements for a Category 3 facility and is BTM. An
applicable facility is residential if it uses energy to generate
electricity for use in a dwelling unit that is used as a residence.
(iii) FTM facility. For purposes of the Program and this section,
an applicable facility is FTM if it is directly connected to a grid and
its primary purpose is to provide electricity to one or more offsite
locations via such grid or utility meters with which it does not have
an electrical connection; alternatively, a FTM facility is defined as a
facility that is not a BTM facility. For the purpose of Category 4
facilities, an applicable facility is also FTM if 50 percent or more of
its electricity generation on an annual basis is exported physically to
the broader electricity grid.
(j) Process of application evaluation--(1) In general. Applications
for a Capacity Limitation allocation will be evaluated according to the
procedures specified in guidance published in the Internal Revenue
Bulletin.
(2) Information required as part of application. With each
application for a Capacity Limitation allocation, applicants are
required to submit information, documentation, and attestations to
demonstrate eligibility for an allocation and project viability as
specified in guidance published in the Internal Revenue Bulletin.
(3) No administrative appeal of Capacity Limitation allocation
decisions. An applicant may not administratively appeal decisions
regarding Capacity Limitation allocations.
(4) Application period--(i) Opening and closing dates. For calendar
year 2026 and each succeeding calendar year of the Program, the
application period will open the first Monday of February at 9 a.m. EST
and close the first Friday of August at 11:59 p.m. EST. The application
period for calendar year 2025 will be announced in guidance published
in the Internal Revenue Bulletin.
(ii) Initial 30-day period. For each year, there will be an initial
30-day period during which all applications submitted will be
considered to be submitted at the same time and date. The initial 30-
day period will begin on the opening day of the application period
described in paragraph (j)(4)(i) of this section, and end at 11:59 p.m.
EST on the 30th calendar day after the opening day of the application
period. The opening day is included in calculating the 30-day period.
All applications submitted within the 30-day period will be ordered for
review and consideration of an allocation of Capacity Limitation within
the same category based on a process described in procedural guidance
published in the Internal Revenue Bulletin. If during the initial 30-
day period, an Additional Selection Criteria reservation for a category
or Category 1 sub-reservation is oversubscribed with Additional
Selection Criteria applications, Capacity Limitation from the
applicable category or sub-reservation may be reallocated to
[[Page 2870]]
prioritize review and consideration of Additional Selection Criteria
applications. Additional Selection Criteria applications received
during the initial 30-day period receive priority over other
applications received during the initial 30-day period.
(iii) Applications submitted after the initial 30-day period--(A)
In general. Applications submitted after the close of the initial 30-
day period will be held for review and consideration of an allocation
of Capacity Limitation after the applications in the same category or
Category 1 sub-reservation which were submitted during the initial 30-
day period. Review of such applications will occur only if sufficient
Capacity Limitation remains to be allocated in a given category or
Category 1 sub-reservation, and in conjunction with the redistribution
provisions described under paragraph (g)(2) of this section. Provided
sufficient Capacity Limitation remains in a given category or Category
1 sub-reservation, these applications submitted after the initial 30-
day period will be reviewed and considered for an allocation in the
order in which they are received.
(B) Additional Selection Criteria Applications submitted after the
initial 30-day period. If the Additional Selection Criteria reservation
for a category or Category 1 sub-reservation is undersubscribed after
the initial 30-day period ends, then the Additional Selection Criteria
reservation of 50 percent is maintained. Additional Selection Criteria
applications submitted after the initial 30-day period will be
prioritized for review and consideration of an allocation of Capacity
Limitation from the Additional Selection Criteria reservation in the
applicable category or Category 1 sub-reservation until such Additional
Selection Criteria reservation is allocated or is reallocated.
(k) Placed in service--(1) Requirement to report date placed in
service. For any facility that receives an allocation of Capacity
Limitation, the owner of the facility must report the date the eligible
property was placed in service.
(2) Requirement to submit final eligibility information at placed
in service time. At the time that the owner reports that eligible
property has been placed in service, the owner also must confirm
information about the facility and submit additional documentation to
demonstrate the facility is still eligible to maintain the allocation
and claim the increased applicable percentage under section 48E(h)(1)
as specified in guidance published in the Internal Revenue Bulletin.
(3) Confirmation. The placed in service documentation and
attestations demonstrating that the facility meets the eligibility
criteria for the owner to claim an increased applicable percentage will
be reviewed. A recommendation will then be considered by the IRS
regarding whether the facility continues to meet the eligibility
requirements for the facility to retain its allocation or if the
facility should be disqualified (as provided in paragraph (m) of this
section). Based on this recommendation and underlying facts and
circumstances analysis, the IRS will decide whether the facility should
retain its allocation or if the facility should be disqualified.
Eligibility is determined, prior to the owner (or a partner or
shareholder in the case of a partnership or S corporation) claiming the
increased credit amount on Form 3468, Investment Credit (or Form 3800,
General Business Credit), or successor form, or, if eligible, making a
transfer election under section 6418 of the Code, or an elective
payment election under section 6417 of the Code.
(4) Definition of placed in service. For purposes of this section,
eligible property is considered placed in service in the earlier of the
following taxable years:
(i) The taxable year in which, under the taxpayer's depreciation
practice, the period for depreciation with respect to such eligible
property begins; or
(ii) The taxable year in which the eligible property is placed in a
condition or state of readiness and availability for a specifically
assigned function, whether in a trade or business or in the production
of income.
(l) Facilities placed in service prior to an allocation award--(1)
In general. Applicable facilities must be placed in service after being
awarded an allocation of Capacity Limitation.
(2) Rejection or rescission. An application for an applicable
facility that is placed in service prior to submission of the
application will be rejected. If a facility is placed in service after
the application is submitted, but prior to the allocation of Capacity
Limitation, and the facility is awarded an allocation, the allocation
will be rescinded.
(m) Disqualification. A facility will be disqualified and lose its
allocation if prior to or upon the facility being placed in service an
occurrence described in one of paragraphs (m)(1) through (5) of this
section takes place.
(1) The location where the facility will be placed in service
materially changes or is in a different census tract.
(2) The maximum net output of the facility increases such that it
exceeds the less than five megawatts AC requirement provided in section
48E(h)(2)(A)(ii) or the nameplate capacity decreases by the greater of
2 kW or 25 percent of the Capacity Limitation awarded in the
allocation. However, the amount of bonus credit capacity allocated will
not be exceeded from the original allocation amount.
(3) The facility either cannot or did not satisfy the financial
benefits requirements under section 48E(h)(2)(B)(ii) and paragraph (e)
of this section as planned, if applicable, or cannot satisfy the
financial benefits requirements under section 48E(h)(2)(C) or paragraph
(f) of this section as planned, if applicable.
(4) The eligible property that is part of the facility that
received the Capacity Limitation allocation is not placed in service
within four years after the date the applicant was notified of the
allocation of Capacity Limitation to the facility.
(5) The facility received a Capacity Limitation allocation based,
in part, on meeting the ownership criteria and ownership of the
facility changes prior to the facility being placed in service, unless
the original applicant transfers the facility to an entity classified
as a partnership for Federal income tax purposes and retains at least a
one percent interest (either directly or indirectly) in each material
item of partnership income, gain, loss, deduction, and credit of such
partnership and is a managing member or general partner (or similar
title) under State or Tribal law of the partnership (or directly owns
100 percent of the equity interests in the managing member or general
partner) at all times during the existence of the partnership.
(n) Recapture of section 48E(h) Increase to the section 48E(a)
credit--(1) In general. Section 48E(h)(5) provides for recapturing the
benefit of any increase in the credit allowed under section 48E(a) by
reason of section 48E(h) with respect to any property that ceases to be
property eligible for such increase (but that does not cease to be
investment credit property within the meaning of section 50(a) of the
Code). Section 48E(h) provides that the period and percentage of such
recapture must be determined under rules similar to the rules of
section 50(a). Therefore, if, at any time during the five year
recapture period beginning on the date that an applicable facility
under section 48E(h) is placed in service, there is a recapture event
under paragraph (n)(3) of this section with respect to such property,
then the Federal income tax imposed on the taxpayer by chapter 1 of the
Code for the taxable year in which the recapture
[[Page 2871]]
event occurs is increased by the recapture percentage of the benefit of
the increase in the section 48E credit. The recapture percentage is
determined according to the table provided in section 50(a)(1)(B).
(2) Exception to application of recapture. Such recapture may not
apply with respect to any property if, within 12 months after the date
the applicant becomes aware (or reasonably should have become aware) of
such property ceasing to be property eligible for such increase in the
credit allowed under section 48E(a), the eligibility of such property
for such increase pursuant to section 48E(h) is restored. Such
restoration of an increase pursuant to section 48E(h) is not available
more than once with respect to any facility.
(3) Recapture events. Any of the following circumstances result in
a recapture event if the property ceases to be eligible for the
increased credit under section 48E(h):
(i) Property described in section 48E(h)(2)(A)(iii)(II) fails to
provide financial benefits;
(ii) Property described under section 48E(h)(2)(B) ceases to
allocate the financial benefits equitably among the occupants of the
dwelling units as described under section 48E(h)(2)(B)(ii), such as not
allocating to residents the required net electricity savings of the
electricity, as required by paragraph (e) of this section;
(iii) Property described under section 48E(h)(2)(C) ceases to
provide at least 50 percent of the financial benefits of the
electricity produced to Qualifying Households as described under
section 48E(h)(2)(C)(i) or (ii), or fails to provide those households
the required minimum 20 percent bill credit discount rate, as required
by paragraph (f) of this section;
(iv) For property described under section 48E(h)(2)(B), the
residential rental building the facility is a part of ceases to
participate in a covered housing program or any other affordable
housing program described in section 48E(h)(2)(B)(i), as applicable; or
(v) A facility increases its maximum net output or nameplate
capacity such that the facility's maximum net output or nameplate
capacity is 5 MW AC or greater.
(4) Section 50(a) recapture. Any event that results in recapture
under section 50(a) also will result in recapture of the benefit of the
increase in the section 48E credit by reason of section 48E(h). The
exception to the application of recapture provided in paragraph (n)(2)
of this section does not apply in the case of a recapture event under
section 50(a).
(o) Record retention. The applicant is required to retain records
and materials related to the application for the following periods:
(1) For at least 6 years after the due date (with extensions) for
filing the Federal income tax return after the tax year that return is
filed to claim the increase in the section 48E credit; and
(2) For at least 6 years after the due date (with extensions) for
filing the Federal income tax return for the last year that the
applicant could be subject to recapture as described in paragraph (n)
of this section.
(p) Applicability date. This section applies to applicable
facilities placed in service after December 31, 2024, and during
taxable years ending on or after January 13, 2025.
Douglas W. O'Donnell,
Deputy Commissioner.
Approved: December 26, 2024.
Aviva R. Aron-Dine,
Deputy Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2025-00331 Filed 1-8-25; 8:45 am]
BILLING CODE 4830-01-P