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Seven Years of Code Sec. 179D Epact

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Seven Years of Code Sec. 179D Epact September 2012 Strategic Thinking: Seven Years of Code Sec. 179D EPAct By Charles R. Goulding, Charles G. Goulding and Jacob Goldman Charles R. Goulding, Charles G. Goulding and Jacob Goldman take a look back at the implementation and evolution of Code Sec. 179D, which was enacted as part of the Energy Policy Act of 2005. rior to 2005, the federal government lacked a overwhelming show of bipartisan support. The bill cohesive approach to promoting building energy passed the House by a vote of 275 to 156 and the Peffi ciency. Meaningful incentives were absent Senate by a vote of 74 to 26. President Bush signed despite the fact that buildings constitute the majority the bill into law on August 8, 2005. of energy usage and expenditures. Congress tapped The bill appealed to both sides of the aisle by David Goldstein in 2002 to draft energy-effi ciency intelligently aligning the objectives of both parties and standards and to help design our nation’s largest key lobbies. Building energy effi ciency was promoted and most comprehensive building energy-effi ciency through a tax incentive triggered by best-of-breed incentive to date—Codete——Coode Sec. 179D, enacted as part technologies within the lighting, HVAC and building of the Energy PolicyPoolicy ActAct ofo 20055 (EPAct).(EPAct).1 TheThe growinggrow envelope industries. Commercial building owners success of thiss llegislation,egislation,n increasinglyre gly evidentdent in the received a meaningful tax incentive in addition to the seven years sinceinnce enenactment,actmen is duduee in lalargerge papart to perpetual energy cost savings of their new equipment. the law’s thoughtfulghtfuhfulld desiddesign. The suppliers of that new equipment received a new ententicementc with whichhic to ppromoter their products. Code Sec. 179D: A RaRarere Show SShow BByy cocombiningmb nin energy-efficiencyeneergy-eeffic ency goalsg with a potential stimulus to the economy, Code Sec. 179D of Bipartisan Support met the goals of both major political parties and two After five years of deliberations and revisions, powerful, if sometimes diverse, lobbying groups: Code Sec. 179D was enacted in 2005 with an the Natural Resources Defense Council (NRDC) and National Electrical Manufacturers Association Charles R. Goulding, Attorney/CPA, is the President of (NEMA). There was a belief that the law could Energy Tax Savers, Inc., The EPAct 179D Experts, an inter- essentially be tax neutral for the treasury since disciplinary tax and engineering fi rm that specializes in the reduced energy costs lead to lower operating costs, energy-effi cient aspects of buildings. which increase taxable revenue. Charles G. Goulding is a Senior Analyst with Energy Tax Savers, Inc., The EPAct 179D Experts. Lighting Guidelines Jacob Goldman, LEED AP, is a Senior Engineer and Tax Consultant with Energy Tax Savers, Inc., The EPAct 179D In the mid-2000s, the lighting industry was Experts. preparing to introduce new and innovative ©2012 C.R. Goulding, C.G. Goulding, J. Goldman CORPORATE BUSINESS TAXATION MONTHLY 13 Strategic Thinking: Seven Years of Code Sec. 179D EPAct generations of a range of lighting technologies, (3) Has represented in writing to the taxpayer including induction, fluorescent and LED. that he or she has the requisite qualifi cations to Previously known for specialty applications such provide the certifi cation required under section as traffic lights, LEDs in particular were ready to 4 of this notice (in the case of an individual mainstream in unprecedented ways. The new wave providing the certifi cation) or to perform the of lighting products was vastly more efficient than inspection and testing described in section 4.05 of their predecessors, giving them the potential to this notice (in the case of an individual performing impact building energy costs in meaningful ways. the inspection). The long-term benefits to superior lighting were universally clear; the only remaining question was The law goes on to clearly delineate what it means whether the upfront investment costs would meet by “related” in §45(e)(4): customer payback requirements. With cleverness and simplicity, Code Sec. 179D (4) Related persons. improved payback models for lighting. Specifi cally, the interim lighting rules prescribed a watts-per- Persons shall be treated as related to each other square-foot requirement that is relatively easy to if such persons would be treated as a single quantify. Without needing to create an Energy employer under the regulations prescribed Simulation Model (as required for HVAC and the under section 52(b). In the case of a corporation building envelope), lighting buyers could more which is a member of an affi liated group of quickly calculate and process their Code Sec. corporations fi ling a consolidated return, such 179D opportunity. corporation shall be treated as selling electricity As a result of this simplifi ed process, Code Sec. to an unrelated person if such electricity is sold to 179D was able to help bring energy-effi cient lighting such a person by another member of such group. payback periods to as low as two to three years in the early days of the legislation. Over 90 percent Code Sec. 52(b) is also referenced and includes in of Code Sec. 179D projects in the fi rst years of the its defi nition: legislation were lighting-only. Customers purchased lighting at superior effi ciency levels, sometimes (b) Employees of partnerships, proprietorships, vastly so, and picked up their Code Sec. 179D etc., which are under common control. incentives, along with state rebates, in order to greatly enhancece ppaypypaybacks.bac For purposes of this subpart, under regulations prescribed by the Secretary— Smart Lightingiggghhtinngg CertifiCer fic cationsons (1) all employees of trades or business (whether The certifi cationn processprrocess for a lighting-onlyhi l Coded Sec. or not incorporated) which are under common 179D deduction was also designed intellintelligently.g ntly The ccontrolo shall be treatedrea ass employedp y by a single law specifi ed that a “Qualifi edd Individual”dividual” wouldwould ememployer,mployer, anandd certify upon project completion. The defi nition of “Qualifi ed Individual” from IRS Notice 2006-522 (2) the credit (if any) determined under section (2006 Notice) is as follows: 51(a) with respect to each trade or business shall be its proportionate share of the wages giving rise .05 Qualifi ed Individual. An individual that— to such credit. (1) Is not related (within the meaning of §45(e) Between the 2006 Notice, “§45(e)(4)” and (4)) to the taxpayer claiming the deduction under “§52(b)” it was clear that a qualified individual §179D; could sign the certification so long as he or she was not an employee of the company taking the (2) Is an engineer or contractor that is properly deduction. This meant eligible parties included licensed as a professional engineer or contractor the outside professional engineer that designed in the jurisdiction in which the building is the building as well as the outside contractor that located; and installed the equipment into the building. Some 14 September 2012 argued, incorrectly, that the installing contractor for HVAC and envelope as they did for lighting. was ineligible to sign. Not only was this an However, meaningful clarifications and inaccurate reading of the law, it missed the point adjustments to the law have greatly helped these entirely—who better than the installing contractor other technologies gain traction within Code to confirm that the equipment designed into Sec. 179D. the building was actually installed? The law as Initially it was unclear how, exactly, to designed enabled the simplest and most logical take a Code Sec. 179D deduction for HVAC certification process conceivable, with the result and envelope work—guidelines were not as being widespread utilization of the interim prescriptive as they were for lighting. However, lighting benefit. the 2006 Notice clarified that for obtaining nonlighting tax deductions, an energy simulation Government Buildings: Talking model was required.4 It was still not clear to everyone, however, what the Talk and Walking the Walk this model should compare the new building It may be surprising to know that as many, if not to: some contented the new building should be more, government buildings have achieved Code compared to a baseline standard, while others Sec. 179D deductions as compared to commercial claimed it should be compared to itself pre- buildings. Code Sec. 179D achieved such pervasive project. The Department of Energy assisted the success throughout the public sector thanks, again, Treasury by issuing NREL/TP-550-40467, “Energy to intelligently designed legislation. Savings Modeling and Inspection Guidelines for Specifi cally, the law stated that for government Commercial Building Federal Tax Deductions” projects, the incentive goes to the design party or (NREL) in February 2007 and then corrected and parties responsible for the energy-effi cient design. modified it in May 2007. This document clarified This notion, introduced in the original law, was fully that the correct comparison was to a 2001 fl eshed out in Internal Revenue Notice 2008-40 reference building by a prescribed percentage. (2008 Notice).3 The 2008 Notice created the qualifying levels as While “Section 3. Special Rule for Government- shown in Table 1. Owned Buildings” of the 2008 Notice is straightforward, amazingly some have used this Table 1. section to justify designers taking this tax deduction Lighting HVAC Envelope Whole Building for not-for-profifi t propprojects.ojecj As the section uses the 20% 20% 10% 50% nomenclaturee ““Government-Owned”Governm Own d it is diffi cult to understandd howhow anyany confusionc fu canc exist.xist. CallsC This meant that qualifying HVAC and envelope to Treasury cconfirmonfirm thtthatat the CCodeode SSec.ec. 17179D technology had to contribute to the building’s tax deductionnis is ononlynlyl availablebl to designersd of overall energy cost improvement. Correct and Government-Owned Buildings.
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