The Bracewell Tax Report is a periodic publication focused on developments in federal income tax law, including the recently enacted Tax Cuts and Jobs Act, with emphasis on how such developments impact the energy, technology and finance industries. The publication provides summaries of changes in tax law and its interpretation, as well as related practical guidance critical to making strategic business decisions and negotiating transactions.

Week of October 15

• Featured Articles
  • IRS Issues Interim Guidance Applicable to Tax-Exempt Investors in Private Equity Funds
  • If You Build It, They Will Come: Satisfying the ITC’s Start of Construction Requirement
  • Congress Heads Home After 2.0 Victory Lap; Election to Determine Fate of Lame Duck Loose End

Featured Articles

IRS Issues Interim Guidance Applicable to Tax-Exempt Investors in Private Equity Funds
By Liz McGinley and Steven Lorch

On August 28, 2018, the IRS released Notice 2018-67 (the Notice), which provides interim guidance concerning the aggregation of trade or business activities for purposes of calculating the unrelated business taxable income (UBTI) of a tax-exempt organization. The Notice was issued in connection with new Code Section 512(a)(6) (the Silo Rule), which was enacted under the Tax Cuts and Jobs Act (the TCJA). The Silo Rule requires tax-exempt organizations to calculate UBTI separately with respect to each unrelated trade or business it holds, and not aggregate taxable income and losses from various unrelated trades or businesses. Tax-exempt organizations, particularly those investing in private equity funds, have welcomed the Notice as practical and helpful guidance for calculating UBTI under the Silo Rule, and see the Notice as a strong indication of the Treasury Department’s approach to forthcoming proposed regulations.

The Good-Faith Standard for Identifying Separate Unrelated Trades or Businesses
A tax-exempt organization is subject to federal income tax on UBTI, which generally is taxable income derived from trade or business activities that are not substantially related to the organization’s tax-exempt purpose. Certain types of income are specifically exempt from UBTI, such as dividends, interest, royalties, and certain rents, unless such income is derived from debt-financed property. Prior to enactment of the TCJA, tax-exempt organizations could aggregate taxable income and loss from multiple unrelated trades or businesses. As a result, a tax-exempt organization could utilize a net taxable loss from one unrelated trade or business to offset net taxable income from another, thereby reducing the organization’s aggregate UBTI. By contrast, under the Silo Rule, a tax-exempt organization’s UBTI for a taxable year generally is the sum of the organization’s positive UBTI, computed separately for each unrelated trade or business. In addition, if an unrelated trade or business of a tax-exempt organization generates a net operating loss (NOL), such NOL cannot be used to offset positive UBTI from other unrelated trades or businesses but, instead, is carried forward solely to offset UBTI from the same unrelated trade or business in future years.

The Silo Rule, however, does not provide a methodology for identifying unrelated trades or businesses for which UBTI may be aggregated. Since the enactment of the TCJA, several commentators have called for a facts-and-circumstances test to identify the scope of an unrelated trade or business for purposes of the Silo Rule. The Notice takes a contrary view, pointing out that a facts-and-circumstances approach would increase the administrative burden on tax-exempt organizations by requiring them to perform fact-intensive analyses and keep detailed records to support their conclusions, and that such an approach could lead to inconsistent results among similarly-situated organizations. Instead, pending the issuance of proposed regulations, the Notice permits tax-exempt organizations to rely on a reasonable, good-faith interpretation of Code Sections 511 through 514, which define UBTI and related terms, to determine whether a tax-exempt organization holds more than one unrelated trade or business for purposes of the Silo Rule (the Good-Faith Standard). The Notice also provides that the IRS and Treasury Department are considering the North American Industry Classification System (NAICS) codes as a permissible method for identifying separate unrelated trades or businesses of a tax-exempt organization and, until proposed regulations are issued, a tax-exempt organization using the NAICS codes for purposes of the Silo Rule will satisfy the Good-Faith Standard. Accordingly, a tax-exempt investor may aggregate items of taxable income and loss as a single unrelated trade or business to the extent such items are proximately connected with a single business described in a NAICS six-digit code.

Guidance Concerning the Application of the Silo Rule to Partnership Investments
The Notice also provides guidance for tax-exempt investors owning direct or indirect interests in partnerships generating UBTI, which was not included in the TCJA. Forthcoming proposed regulations are expected to permit tax-exempt investors to aggregate all items of gross income and loss related to investment activities for purposes of the Silo Rule, including an investment in a partnership that owns interests in lower-tier partnerships with trade or business activities. The scope of investment activities for this purpose is not defined in the Notice, and the Treasury Department has asked for comments on this issue. The Notice, however, indicates that an investment activity is expected to include ownership of partnership interests with trades or businesses in which the investor does not significantly participate, which is expected to include a passive investment in a private equity fund with indirect interests in underlying portfolio businesses.

Until these proposed regulations are released, the Notice permits a tax-exempt investor to aggregate UBTI derived from a single partnership interest with multiple trades or businesses, including trades or businesses operated by lower-tier partnerships, as long as the directly-held interest meets either the de minimis test or the control test (referred to in the Notice as the Interim Rule). If a partnership interest satisfies the Interim Rule, the tax-exempt investor can aggregate this interest with other partnership interests held by the investor that also satisfy the Interim Rule (a Qualifying Partnership Interest) as a single trade or business for purposes of determining UBTI under the Silo Rule.

A partnership interest generally will satisfy the de minimis test if the tax-exempt investor directly holds no more than 2 percent of the profits interest and no more than 2 percent of the capital interest in the partnership. The tax-exempt investor may rely on the Schedule K-1 it receives from the partnership to determine its share of profits and capital for this purpose. However, if no specific profits interest is identified on Schedule K-1, the de minimis test cannot be met.

A partnership interest generally will satisfy the control test if the tax-exempt investor holds no more than 20 percent of the capital interest in the partnership, and the investor does not have control or influence over the partnership based on a facts-and-circumstances analysis. Although the question of whether a tax-exempt investor has control or influence over a partnership must be determined by a facts-and-circumstances analysis, the Notice provides some helpful guidance. A tax-exempt investor will be treated as having control or influence if the investor may cause the partnership to take any action, or not take any action, that significantly affects the operations or the partnership, if the investor has the power to appoint or remove any of the partnership’s officers, directors, trustees or employees, or if any of the investor’s officers, directors, trustees or employees have rights to participate in management or in the conduct of the partnership’s business.

Finally, the Notice acknowledges that it may be difficult for a tax-exempt investor to satisfy the Interim Rule for a previously-acquired partnership interest without costly planning or restructuring. The Notice therefore permits a tax-exempt organization to treat a partnership interest acquired prior to August 21, 2018 as constituting a single unrelated trade or business for purposes of the Silo Rule, regardless of whether the partnership conducts, directly or indirectly, more than one separate trade or business (referred to in the Notice as the Transition Rule). Such a partnership interest cannot be aggregated with Qualifying Partnership Interests under the Interim Test, but may be eligible for aggregation under the Good Faith Standard.

The Taxpayer Response Has Been Positive . . . So Far
When the TCJA was enacted, tax-exempt investors were concerned that the Silo Rule would be rigidly applied to limit aggregation and generally increase investors’ UBTI, without any significant opportunity for tax planning. Tax-exempt investors in private equity funds were especially concerned since, prior to the Silo Rule, the ability to aggregate taxable income and loss from portfolio businesses held by the fund often yield a significant tax benefit. As a result, tax-exempt investors have welcomed the Notice as an indication that the Silo Rule will not be rigidly applied, and investors have applauded the flexibility of the Good Faith Standard and consider the NAICS codes to be a practical approach for identifying separate unrelated trades or businesses.

Similarly, tax-exempt investors were encouraged by the inclusion of the Interim Rule in the Notice, which permits the aggregation of certain investment activities, including investments in partnerships, into a single trade or business for purposes of the Silo Rule. The general approach of the Interim Rule, if adopted in future Treasury regulations, could significantly reduce the reporting and administrative burden of tracking unrelated trades or businesses held indirectly through complex, multi-tiered partnership structures, including typical private equity funds. Such an approach would permit a tax-exempt investor to utilize taxable losses generated by one portfolio investment (for instance, an early-phase business with considerable start-up expenses or bonus depreciation) to offset taxable income from another, which appears to be the appropriate result. In the meantime, tax-exempt investors have welcomed the Transition Rule as an opportunity to avoid the application of the Interim Rule for partnership interests acquired before the scope of the de minimis test and the control test were provided in the Notice.

Tax-exempt organizations generally may rely on the Good-Faith Standard and may rely on the use of NAICS codes to identify separate unrelated trades or businesses until proposed regulations under the Silo Rule are published. In addition, for taxable years beginning after December 31, 2017, until proposed regulations under the Silo Rule are published, tax-exempt organizations may rely on the Interim Test and Transition Test. The Treasury Department and IRS are accepting comments to the Notice through December 3, 2018.

If You Build It, They Will Come: Satisfying the ITC’s Start of Construction Requirement
By Michele Alexander, Ryan Davis and Catherine Engell

Although largely untouched by the Tax Cuts and Jobs Act (TCJA) (click here for more), renewable energy tax credits experienced some important developments in 2018, including the release of IRS Notice 2018-59 (the Notice) in June.  The Notice clarified certain aspects of the Bipartisan Budget Act of 2018 (the BBA) affecting the Investment Tax Credit (ITC) and focused on the two methods taxpayers may use to satisfy the start of construction requirement found in Code Section 48(a)(5)(C) and modified by the BBA; these methods closely resemble those used to satisfy the same requirements necessary to qualify for the Production Tax Credit (PTC) under Code Section 45(b)(5)(A).

The ITC provides producers of certain types of alternative energy with a credit equal to a specified percentage of the tax basis in their “energy property” (discussed at greater length below).  In 2015, the Protecting Americans from Tax Hikes Act (the PATH Act) extended the period of time for which certain technologies, including utility-scale wind, solar and geothermal, may claim the ITC.  Certain “orphaned technologies” were excluded, including fiber-optic solar, qualified fuel cells, small wind (defined as having a nameplate capacity of 100 kilowatts or less), geothermal heat pumps and combined heat and power systems (CHP); as a result  those affected had to place energy property into service by January 1, 2016 (or 2017 in limited circumstances) to qualify for the ITC (click here for more).  Subsequently, the BBA provided extensions to these orphaned technologies, creating an even playing field vis-à-vis their solar and geothermal counterparts — preventing any shift in business, and related research and development, away from these technologies that could have resulted from the inability to take advantage of the ITC.  

Following the BBA’s passage, technologies utilizing the ITC fall into four categories.  The first category, consisting of fiber-optic solar, qualified fuel cells and qualified small wind, must begin construction before January 1, 2022, and place the property into service before January 1, 2024.  The Notice also provides for a phase-down of the credit for this category, allowing for a 30 percent credit if construction begins before January 1, 2020, but gradually phasing down to 10 percent if construction begins in the last year, between January 1, 2021 and December 31, 2021.  The second category consists solely of solar energy (excluding fiber optic solar), which has the same timeline and phase-down applicable to those technologies in the first category, but also is eligible for a 10 percent ITC with respect to property the construction of which does not start until January 1, 2022 or after and that is placed into service after January 1, 2024.  A third category includes geothermal heat pump, qualified microturbine and CHP technologies.  This category has no phase-down, with properties for which construction begins before January 1, 2022, eligible for a 10 percent ITC and no placed-in-service requirement.  The final category consists solely of geothermal energy, which has a 10 percent ITC regardless as to when construction begins or the property is placed into service. 

The Notice provides two methods that may be used to establish that construction has started by the date required to qualify for the ITC.  These methods each consist of two prongs, in each case the first of which is intended to permit the taxpayer to demonstrate that enough progress has been made on the energy property in question so that the taxpayer may claim that construction has started (the Start of Construction Test).  Each method also contains a second requirement that, once the first prong is deemed to be satisfied, the taxpayer must demonstrate continuous progress towards the completion of the property’s construction (the Continuity Requirement).  The Notice also defines energy property and describes how and when individual these properties may be aggregated or disaggregated for the purpose of applying these tests. 

Start of Construction
The first method, referred to as the Physical Work Test, requires (i) the taxpayer to begin physical work of a significant nature and (ii) for the construction to be continuous (discussed below).  Notably, there is no set requirement in the first prong regarding the amount of work or the cost incurred.  The Notice provides examples of work that would satisfy this first prong, such as installing racks or other structures that can be used to support photovoltaic panels for solar energy projects.  Importantly, the Notice carves out both preliminary activities that do not satisfy this prong, such as exploring, securing financing, or obtaining the requisite permits and licenses, as well as the production of energy components to be held in inventory by a vendor instead of being included in the taxpayer’s energy property.

The second method, the Five Percent Safe Harbor, is satisfied if the taxpayer (i) incurs five percent or more of the total cost of the energy property and, once this threshold is crossed, (ii) makes continuous efforts to complete construction on the property (discussed below).  When determining whether the five percent threshold in (i) has been met, the IRS will consider all costs properly included in the basis of the energy property, but will not include the cost of land or other property that is not integral to the functioning of the energy property.  Importantly, a taxpayer might estimate that the five percent threshold is crossed in time to receive the desired credit percentage; however if at the time the energy property is placed into service the actual total cost (i.e., the denominator) exceeds the estimated cost of completing construction on the property by an amount such that the five percent threshold was not crossed until a later date, the taxpayer will not be deemed to have satisfied the test.

The Continuity Requirement
As mentioned above, both the Physical Work Test and the Five Percent Safe Harbor include a second prong, the Continuity Requirement.  The Continuity Requirement in each test closely resembles the other (thereby creating some confusion among taxpayers not familiar with the tests).  In the case of the Physical Work Test, once the significant work has begun, construction must be continuous until the property is completed.  In the case of the Five Percent Safe Harbor, the test is modified somewhat to require “continuous efforts” rather than specifically requiring construction.  As this latter test is a bit more vague than the former, the Notice provides examples of what may be considered an “effort” in this context, including incurring additional costs, entering into binding contracts for the production of component parts for the property, and obtaining necessary permits.  These requirements are not overly strident, however, and examples of permitted disruptions are provided.  These include delays due to severe weather or natural disasters, supply shortages or an inability to obtain specialized equipment of limited availability.  Further, a taxpayer will be considered to have satisfied the Continuity Requirement of either test if the energy property in question is placed into service within four years of the start of construction (the Continuity Safe Harbor).  If the taxpayer fails to do so, then whether they satisfy the Continuity Requirement will be determined by the relevant facts and circumstances.

Energy Property Defined
For the purposes of both the Physical Work Test and the Five Percent Safe Harbor, an “energy property” is a set of functionally interdependent component parts that independently can produce electricity and be operated and metered separately from other energy property.  In the case of solar energy property, these component parts could include photovoltaic panels, support structures, monitoring equipment, transformers and other integral component parts.  When determining whether physical work has begun or the five percent threshold has been met, one looks to whether this has occurred with respect to an individual energy property.  However, certain facts and circumstances could cause the IRS to consider multiple individual properties to constitute a single energy project and aggregate such properties when determining whether the Start of Construction prong of either test is met.  When making the determination to aggregate multiple properties into a single project, the IRS will look at factors such as whether the properties have a single owner, are on the same or contiguous parcels of land, are described in the same energy contracts or regulatory permits or financed or constructed pursuant to a single contract.  This could have important implications for the taxpayer by making it more difficult to qualify for the ITC.  For example, a taxpayer would normally satisfy the first prong of the Five Percent Safe Harbor once it has incurred five percent of the costs of constructing an energy property.  However, if such property is aggregated with a neighboring property with a similar estimated total cost of construction, but with respect to which the taxpayer has only incurred one percent of the costs, then the taxpayer (as a result of averaging) will be deemed to have only incurred three percent of the cost of construction with respect to the aggregated project and thus fail to qualify for the ITC for either property.  

Notably, and somewhat confusingly, multiple individual energy properties aggregated into a single project for purposes of determining when construction began under either the Physical Work Test or the Five Percent Safe Harbor may be disaggregated for purposes of determining whether the Continuity Requirement is met.  For example, a taxpayer may own multiple solar energy properties that qualify individually, but due to facts and circumstances, these properties are aggregated into a single project for purposes of determining whether construction has begun.  Unfortunately for the taxpayer, only some of the individual properties that comprise the aggregated project were completed within four years and thus eligible for the Continuity Safe Harbor.  Instead of having the aggregated project fail to qualify for the Continuity Safe Harbor (and thereby having to withstand the scrutiny of the IRS’s facts and circumstances analysis), the taxpayer is allowed to disaggregate the properties, with the timely completed properties falling within the Continuity Safe Harbor and eligible for the ITC.  The remaining energy properties (not completed within four years) may ultimately satisfy the Continuity Requirement, but will be subjected to the facts and circumstances analysis discussed above.

The Notice also provides further detail on other rules associated with the ITC, all of which serve to bring its treatment more in line with that of the PTC and thus offer greater clarity to energy producers and tax practitioners alike.  However, other questions remain regarding the impact this and other recent developments may have on two other components of the renewable energy sector – namely utility-scale wind and energy storage technology.  In upcoming Bracewell Tax Reports, we will examine these questions and the other recent developments.

Congress Heads Home After 2.0 Victory Lap;
Election to Determine Fate of Lame Duck Loose Ends
By Liam Donovan

In their last legislative action before the midterm elections, House Republicans earlier this month passed a three-bill package dubbed “Tax Reform 2.0” in a bid to cement their signature legislative accomplishment in voters’ minds. 

The bills passed largely along partisan lines, with H.R. 6760, the Protecting Family and Small Business Tax Cuts Act of 2018, clearing the lower chamber without a single Democratic vote. Ten SALT state Republicans joined the entire House Democratic caucus in opposing the legislation, which would make the individual rates, credits, business deductions, and other changes enacted by the Tax Cuts and Jobs Act permanent. Under current law, TCJA’s individual title is slated to sunset after 2025, while the law’s corporate reforms remain in place. Although permanence was the centerpiece of this package, without the 60 votes needed to overcome a filibuster, the bill will not be taken up by the Senate this year.

The second bill, H.R. 6757, the Family Savings Act of 2018, drew nominal Democratic support, with ten centrists and higher office seekers siding with all Republicans. The final bill, H.R. 6756, the American Innovation Act of 2018, attracted 31 votes from across the aisle. The crossover support kept alive the possibility that these measures could be taken up by the Senate in the near future. The retirement and savings bill in particular matches up with a bipartisan Senate effort that has advanced in previous congresses, the Retirement Enhancement and Savings Act (RESA), which provides an obvious area of common ground.

With the Senate leaving town after a deal on judicial nominations, all remaining legislation action, tax and otherwise, will be left for the lame duck session of Congress. How long and how ambitious that session might be remains to be seen, and hinges largely on the outcome of November’s election. If the House flips to Democratic control, as most models suggest, it will likely be a very abbreviated work period, focused exclusively on “must-pass” items, such as the Farm Bill and any remaining government funding bills. Should Republicans keep the House, however, they might be inclined to stick around and clear the decks. Among other items of interest, tax extenders are coming up on a full years lapse, and any tax package would open the door to a potential deal on the three consensus technical corrections to the new tax law. With auto manufacturers like Tesla and General Motors running into limits on the electric vehicle (EV) tax credit, efforts may be made to lift the cap altogether or otherwise keep the credits flowing. Finally, the aforementioned retirement and savings package could be an attractive bipartisan accomplishment, particularly as Senate Finance Chairman Orrin Hatch (R-UT) seeks to secure a few legacy items on the way out.

In all likelihood, most if not all of these items will fall into early next year, and a new Congress of unknown complexion and control. The bulk the near term action will remain on the regulatory side, as Treasury and IRS attempt to put out the major remaining pieces of TCJA implementation and guidance materials by the end of the year, with a number of them reportedly set to land around Thanksgiving. While the legislative outlook may depend on the outcome of the election, anxious taxpayers and tax professionals are sure to have a busy holiday season either way.