On June 22, 2018, the IRS issued Notice 2018-59 (ITC Guidance), providing long-awaited guidance on the "begun construction" requirements for facilities qualifying for the Section 48 investment tax credit (ITC). The ITC is a tax credit equal to the "energy percentage" of the basis of qualifying energy property placed in service in a taxable year. As currently drafted,¹Section 48 provides that certain qualifying energy facilities are eligible for the ITC, in most cases on a phased-down schedule, if construction of such facility begins before January 1, 2022.²

The ITC Guidance largely follows the "begun construction" guidance that the IRS has previously issued for energy facilities that qualify for the production tax credit (generally referred to herein as the "PTC Guidance").³

As with the PTC Guidance, the ITC Guidance proffers two alternative methods to determine when construction has begun: (1) the physical work test (i.e., physical work of a significant nature has begun and the taxpayer maintains a continuous program of construction); and (2) the five percent safe harbor (i.e., at least five percent of the total cost of energy property has been paid or incurred and the taxpayer makes continuous efforts to advance towards completion of the energy property).

The physical work test described in the ITC Guidance is similar to the PTC Guidance in that it provides that whether physical work of a significant nature has begun depends on the relevant facts and circumstances and may include work performed by the taxpayer, work performed for the taxpayer by another person under a binding written contract (provided the contract is entered into prior to the manufacture, construction, or production of the energy property or components of energy property for use by the taxpayer in the taxpayer's trade or business (or for the taxpayer's production of income)), and work both on-site⁴and off-site.⁵The ITC Guidance also specifies that there is no fixed minimum amount of work or monetary or percentage threshold that is required to satisfy the physical work test.⁶As with the PTC Guidance, preliminary activities (e.g., planning or designing, securing financing, obtaining permits or licenses, clearing a site, etc.) and work performed on components that are existing in inventory or are normally held in inventory are not taken into account in determining whether physical work has occurred.

Also similar to the PTC Guidance, the ITC Guidance's five percent safe harbor is determined by reference to the total depreciable basis of energy property, not including the cost of land or any property not integral to the energy property.⁷And, as with the PTC Guidance, for a single project comprised of multiple facilities, the ITC Guidance permits a taxpayer to disaggregate certain energy facilities that experience cost overruns.⁸

As noted above, the physical work method requires that a taxpayer maintain a continuous program of construction and the five percent safe harbor requires that the taxpayer maintains continuous efforts towards completion of the facility (collectively, the "Continuity Requirements"). As set forth in the ITC Guidance, whether the applicable Continuity Requirement is met is determined by the relevant facts and circumstances.⁹But, if energy property is placed in service by the end of the calendar year that is no more than four calendar years after the calendar year in which construction of the energy property begins, the safe harbor established by the ITC Guidance provides the Continuity Requirement will be deemed to have been met.¹⁰

Importantly, the ITC Guidance clarifies that, for purposes of determining whether construction of energy property has begun for purposes of the ITC, multiple energy properties that are operated as part of a single project will be treated as a single energy property, and whether multiple energy properties are operated as part of a single project will depend on the relevant facts and circumstances.¹¹Whether multiple energy properties are treated as part of a single project is determined in the calendar year during which the last of the properties is placed in service.

The ITC fundamentally differs from the PTC in that it requires a taxpayer to own the qualifying facility at the time it is placed in service (rather than owning the qualifying facility during the time it produces and sells energy). That said, the ITC Guidance is consistent with the PTC Guidance in that it generally allows a taxpayer to acquire the "begun construction" qualification of a fully or partially developed energy facility without losing its ITC qualification—provided the acquisition occurs prior to the date the facility is placed in service and does not consistent solely of trafficking of components that may satisfy the five percent safe harbor.

While the ITC Guidance is likely to be further refined and amended, it is a welcome clarification of the amended terms of Section 48 and allows an additional degree of confidence for developers, lenders, and investors of ITC-eligible property.

For further information, please contact Greg Broome (gbroome@wsgr.com, 415-947-2139) or any member of the tax or energy and infrastructure practices at Wilson Sonsini.