Last Friday, in the final hours of the 113th Congress, President Obama signed into law H.R. 5771, the Tax Increase Prevention Act of 2014. The U.S. House of Representatives and the U.S. Senate passed the measure on December 3 and 16, respectively.
The law retroactively extends several key business tax provisions through 2014 that had expired at the end of 2013. In particular, the bill provides a one-year extension through the end of 2014 for the federal energy production tax credit (PTC) and a developer’s option to pick the 30%investment tax credit (ITC) in lieu of the PTC. Additionally, the extension lengthens by a year the period where a project is automatically treated as having been continuously under construction, which may provide some relief for larger and more complex projects that may not be complete by the end of 2015.
Although this is great news for projects that began construction in 2014, the bill was disappointing to industry advocates who had lobbied for a longer extension to provide more market certainty for companies looking to invest in future renewable energy projects. Most wanted at least a two-year extension to spur investment and create jobs. Instead, Congress merely kicked the proverbial can down the road into 2015, and will likely be in a similar posture this time next year facing a last minute deal to address these same energy-related tax provisions.
A flurry of activity is underway to either meet or strengthen the case for meeting the two different safe harbor tests, with developers either trying to get adequate activity underway to meet the start of physical construction or the 5% of project costs committed to tests in the remaining days of 2014. With only days left in 2014, it would be quite difficult, but not impossible for a developer who has not broken ground to “start construction” and qualify for the tax credit. The simple act of procuring the necessary permits to allow for meaningful on site construction likely limits this option, but there are select opportunities to meet this test in the waning days of 2014. Alternatively, despite very tight timing, there is a real opportunity to get contracts executed to meet the 5% commitment test. In either case, a developer hoping to make use of the extension needs to be aggressive, but careful in meeting these tests before the end of the year.