On August 29, 2023, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) on the clean energy prevailing wage and apprenticeship (PWA) requirements instituted under the Inflation Reduction Act of 2022 (IRA). Satisfying the PWA requirements entitles a taxpayer to claim a greater amount of credits for several of the clean energy credit provisions. The provisions include, but are not limited to, production tax credits under sections 45 and 45Y, investment tax credits under sections 48 and 48E, and carbon capture and sequestration credits under section 45Q. The Proposed Regulations generally follow the IRS’ and Treasury’s initial guidance contained in Notice 2022-61, issued in November 2022 (See our legal alert on Notice 2022-61), but they alleviate the statutory penalty provisions by allowing the IRS discretion to waive penalties in certain limited circumstances. The preamble to the Proposed Regulations addresses several issues, in addition to the penalty provisions, raised in prior notices related to the PWA requirements, including:
- The extent to which the provisions of the Davis-Bacon Act (DBA), which is the federal law requiring contractors and subcontractors to pay prevailing wage rates to workers in public works projects, apply to the PWA requirements; and
- The recordkeeping requirements associated with the PWA requirements.
The IRS and Treasury, contemporaneously with the issuance of the Proposed Regulations, also issued a set of FAQs about the prevailing wage and apprenticeship under the Inflation Reduction Act, as well as Publication 5855 – Prevailing Wage & Registered Apprenticeship Overview. The Department of Labor also released new standards implementing the Davis Bacon Act, which will affect the determination of prevailing wages.
Comments are requested by October 30, 2023 and a public hearing is scheduled for November 21, 2023.
The IRA provided for greater credit amounts for taxpayers who satisfied certain PWA requirements regarding the construction, installation, alteration, or repair of a qualified facility, qualified property, qualified project, or qualified equipment, or with respect to certain exceptions.
The PWA requirements are set forth under section 45, which provides increased credit amounts (generally, five times the base credit amount) for taxpayers satisfying the PWA requirements, or meeting one of the following exceptions:
- One Megawatt Exception – Certain facilities with a maximum net output of less than 1 megawatt may be eligible for the increased credit amount without satisfying the PWA requirements.
- Beginning of Construction Exception – Certain facilities that began construction or installation before January 29, 2023 may be eligible for the increased credit amount without satisfying the PWA requirements.
These requirements apply to various energy credits, as detailed in the chart further below.
The discussion below summarizes the prevailing wage requirements and the apprenticeship requirement under the Proposed Regulations.
II. Proposed Regulations for Prevailing Wage Requirement
In order to satisfy the Prevailing Wage Requirements, section 45(b)(7) states that taxpayers must ensure any laborers and mechanics employed by the taxpayer, or any contractor or subcontractor, are paid not less than the applicable prevailing wage rates during (i) the construction of a qualified facility and (ii) during the alteration or repair of the qualified facility which occurs within the 10-year period beginning on the date that the qualified facility is placed in service (Prevailing Wage Requirements). The applicable prevailing wage rates are those in effect at the time the construction of the facility begins, and generally remain valid for the duration of the work. Any alteration or repair of a qualified facility that occurs after the date it is placed in service must comply with the prevailing wage rate in effect at the time the alteration or repair work begins.
The Proposed Regulations generally adopt definitions consistent with those used in the DBA:
“Laborers and mechanics” are individuals whose duties are physical or manual in nature, including apprentices and helpers, as well as forepersons (not otherwise exempt) who spend more than 20 percent of their workweek dedicated to laborer or mechanic duties. Individuals whose duties are primarily administrative or clerical, and persons employed in an executive or professional capacity, are not deemed “laborers and mechanics” and do not fall under the Prevailing Wage Requirements.
“Employed” refers to a the performance of duties by a laborer or mechanic for the taxpayer, contractor, or subcontractor, regardless of whether the individual would be characterized as an employee or an independent contractor for other tax purposes. This definition is unique to the Prevailing Wage Requirements and is not relevant in the determination of whether an individual is an employee for Federal tax purposes.
“Construction, alteration and repair” generally means all types of work performed at the location of the facility, including but not limited to: constructing, altering, remodeling, installing items fabricated offsite, painting and decorating, and manufacturing or furnishing materials, articles and supplies or equipment at the facility’s location. Maintenance work, work that is ordinary and regular in nature and designed to maintain the existing functionality of a facility, performed at the qualified facility after it is placed in service does not qualify as construction, alteration, or repair activities.
“Qualified facility” includes not only the site on which the work is performed, but also any secondary sites where a significant portion of the construction, alteration, or repair of the facility occurs, provided that the secondary site either was established specifically for, or dedicated exclusively for a specific period of time, to the construction, alteration or repair of the facility. The prevailing wage rate for laborers and mechanics at a secondary site is determined by the geographic area of that site and not by the locality of the main work site.
With respect to section 45, the Prevailing Wage Requirements are triggered at the beginning of construction and continue the duration of the project, but the requirements are not binding until the taxpayer files a return claiming the increased credit. If the taxpayer does not claim the increased credit, it is not obligated to pay prevailing wages for the construction, alteration, or repair of the qualified facility.
Under the Proposed Regulations, the taxpayer is solely responsible for ensuring that all laborers and mechanics are paid prevailing wages, regardless of whether the workers are employed directly by the taxpayer, or by a contractor or subcontractor. The applicable prevailing wage rates are determined by the Secretary of Labor, in accordance with the DBA, which are published by the Department of Labor (DOL). If the Secretary of Labor has not published a general wage determination for the particular area and type of construction, or if the location of the facility involves work that spans more than one contiguous geographic area, the taxpayer, contractor or subcontractor may submit a request for a supplemental wage determination at IRAprevailingwage@dol.gov. The Proposed Regulations provide that the wage determination request is to be made no more than 90 days before constructions begins, and include a list of information that must accompany supplemental prevailing wage determination requests, including:
- A description of the work to be performed, including the type(s) of construction involved and, if the project involves multiple types of construction, information indicating the expected cost breakdown by type of construction;
- The geographic area in which the facility is being constructed, altered, or repaired, including the name and address of the facility (if known);
- The start date of construction, alteration, or repair at the facility; and
- Labor classification needed to perform work at the facility.
If the taxpayer does not agree with a general or supplemental wage determination, it may request reconsideration by the Administrator of the Wage and Hour Division of the DOL. The taxpayer may also appeal the Administrator’s decision to the DOL’s Administrative Review Board.
For offshore facilities, rather than requesting a supplemental wage determination, taxpayers may rely on the general wage determination for the relevant category of construction that is applicable to the geographic area closest to the offshore facility.
Cure and Penalty Payments
The Proposed Regulations generally follow prior guidance in prescribing that taxpayers that fail to make required Prevailing Wage payments may still be deemed to have satisfied the applicable requirements, with respect to a qualified facility, if the taxpayer makes the applicable correction payments to the laborer or mechanic, plus interest, and pays the IRS an associated penalty of $5,000 for each underpaid individual.
The Proposed Regulations add that a taxpayer’s obligation to make correction and penalty payments is not binding until it files a return claiming the greater credit amount. Therefore, a taxpayer may forego payment of the IRS penalty until it files its tax return.
The correction payments, however, may be made at any time after an initial incorrect payment, and prior to the filing of the tax return, which would allow the taxpayer to limit the amount of additional interest it must pay. If the IRS ultimately rejects the request for the greater credit amount, then the taxpayer has no obligation to make either the correction or the penalty payments.
By making the cure and penalty payments prior to receiving a notice of an examination from the IRS, the taxpayer is presumed not to have acted with intentional disregard regarding the underpayment. The cure provision expires, however, if the taxpayer does not make the payments within 180 days of an IRS final determination of failure to pay prevailing wages.
If a taxpayer fails to satisfy the PWA requirements, and fails to make cure and penalty payments, the taxpayer is limited to the base credit amount. If a taxpayer transfers a credit as computed on the basis that the PWA requirements are met pursuant to section 6418, and is denied the increased credit amount due to failure to meet the PWA requirements, the taxpayer (and not the transferee) may make the cure and penalty payments. If cure and penalty payments are not made, only the base credit amount is considered transferred.
The IRS may exercise its discretion to waive penalties if (i) the taxpayer makes the required correction payment (back wages and interest) within the earlier of thirty days after becoming aware of the underpayment or prior to filing the tax return claiming the greater credit amount or (ii) the underpayment to the laborer or mechanic occurred during not more than 10 percent of all pay periods or the amount of the underpayment is not more than 2.5 percent of the amount required under the Prevailing Wage Requirements.
Additionally, the Proposed Regulations provide that penalty payment requirements would not apply to laborers or mechanics employed under specific project labor agreements if the correction payments were made on or before the date the tax return claiming the greater credit amount was filed. To qualify for the penalty waiver, project labor agreements must, at a minimum:
- Bind all contractors and subcontractors on the construction project;
- Contain guarantees against strikes and lockouts;
- Set forth procedures for resolving labor disputes;
- Contain provisions to pay prevailing wages;
- Contain provisions for referring and using qualified apprentices; and
- Be a collective bargaining agreement with one or more labor organizations with building and construction employees as members.
If the violation of the Prevailing Wage Requirements was the result of the taxpayer’s intentional disregard, that it was made knowingly and willfully, the penalties increase to $10,000 per affected individual and the amount of the correction payments triple. To determine if the taxpayer acted with intentional disregard, the Proposed Regulations provide a list of facts and circumstances that may be indicative of a taxpayer’s intentional disregard, including: (i) whether the failure was part of a pattern of systemic failure to pay the appropriate prevailing wage rate; (ii) whether taxpayer was required to make penalty payments in prior years; and (iii) whether taxpayer initially took appropriate steps to determine the correct prevailing wage rate.
Prevailing wage penalties are immediately assessed and collected. Under the Proposed Regulations, the IRS deficiency procedures would not apply to any penalty payment required to be made for failure to meet the Prevailing Wage Requirements. Therefore, taxpayers challenging their penalties would need to pay the penalty in full and petition the IRS for a refund. Normal deficiency procedures would, however, apply to any IRS determination for decreased credits.
III. Proposed Regulations for the Apprenticeship Requirement
To satisfy the apprenticeship requirements under section 45(b)(8) and Proposed Regulation section 1.45-8, taxpayers are required to meet the following requirements: the Labor Hours Requirement, the Ratio Requirement, and the Participation Requirement with respect to the construction of any qualified facility (the Apprenticeship Requirements).
Labor Hours Requirement
The Labor Hours Requirement requires the taxpayer to ensure that the “applicable percentage” of total labor hours are performed by qualified apprentices. Applicable percentage is determined based on the date the facility began construction. In the Proposed Regulations, Treasury and the IRS clarify that pre-apprenticeship programs that are not registered with the DOL would not qualify as registered apprenticeship programs for purposes of section 45(b)(8), which requires registration of the apprenticeship program. The hours worked as part of such programs would not count towards the Labor Hours Requirement.
The Ratio Requirement requires that the taxpayer must ensure that any applicable apprenticeship-to-journeyworker ratio is satisfied, which is determined by reference to standards set by the DOL or an applicable State apprenticeship agency. Notice 2022-61 stated that applicable ratios set by registered apprenticeship programs generally apply on a daily basis. The Proposed Regulations clarify that this ratio would need to be satisfied each day during construction, alteration, or repair of the qualified facility. Ultimately, the number of apprentices would not be permitted to exceed the number in the ratio, as the ratio sets the minimum number of journeyworkers need for each apprentice for supervisory purposes.
If the number of apprentices exceeds the applicable ratio, the Proposed Regulations provide that the excess apprentices must be paid the prevailing wage rate for the hours worked (although the regulations do not instruct how those individuals should be identified for the higher wages), and the hours worked by any qualified apprentice in excess of the applicable ratio would not be counted towards satisfaction of the Labor Hours Requirement.
The Participation Requirement requires that the taxpayer ensure that each of the taxpayer, a contractor, or subcontractor performing work on the facility and employing four or more workers on the facility utilizes one or more qualified apprentices to perform work on said facility. Importantly, the Proposed Regulations clarify that the Participation Requirement is not required to be satisfied on a daily basis during construction of the project. However, if the taxpayer does not meet the Participation Requirement, the taxpayer would be subject to the penalty provisions under section 45(b)(8)(D).
Good Faith Effort Exception
Taxpayers may be deemed to satisfy the Apprenticeship Requirements if qualified apprentices from a registered apprenticeship program are requested and the request has been denied for reasons other than the requestor’s refusal to comply with the program’s standards. If the program does not respond within five business days of receiving a request, then the taxpayer may document this non-response as satisfaction of the Good Faith Effort Exception.
The Proposed Regulations require that taxpayer’s request is made in writing to at least one registered apprenticeship program that operates in the same region as the facility, or can be reasonably expected to provide apprentices to the facility location. The apprenticeship program must train apprentices in the occupation needed by the requestor, and have a usual and customary business practice of entering into agreements with employers for placement of apprentices.
The request for apprentices is required to include the following:
- Information concerning dates of employment;
- the occupation or classification needed;
- the location and type of work to be performed;
- the number of apprentices needed;
- the number of hours the apprentices will work; and
- the name and contact information of the requestor.
Further, the request must include a statement that the request is made with the intent to employ apprentices in their designated occupation in accordance with the program.
It is likely that a taxpayer may need to submit requests to more than one apprenticeship program to satisfy the wide range of occupations needed to construct the types of facilities contemplated by the IRA’s credits.
Denial of an Apprenticeship Request:
If the apprenticeship request is denied, qualification for the Good Faith Effort Exception is not automatic. The taxpayer is required to submit an additional request within 120 days of a previously denied request. To qualify as a denial, an apprenticeship request must be denied in its entirety, and partial fulfillments do not qualify as denials. Further, an acknowledgement of receipt of an apprenticeship request by a registered apprenticeship program constitutes a response for purposes of the Good Faith Effort Exception.
If the Good Faith Effort Exception applies, it applies only to the specific portion of the request for apprentices that was denied.
Opportunity to Cure
Generally, if a taxpayer does not qualify for the Good Faith Effort Exception and does not satisfy each of the Apprenticeship Requirements, the taxpayer may pay a penalty to the Secretary to be treated as satisfying the Apprenticeship Requirements.
The penalty amount is calculated by multiplying the total labor hours for which the taxpayer failed to meet the Labor Hours Requirement or Participation Requirement by $50. The number of hours with respect to failure to meet the Participation Requirement is calculated only with respect to the employer, contractor, or subcontractor that did not comply with the requirement.
Specifically, the number of labor hours required to be worked by qualified apprentices under the Participation Requirement for purposes of calculating the penalty is equal to the total number of labor hours performed by the specific taxpayer, contractor, or subcontractor during construction, alteration, or repair of the facility divided by the total number of individuals employed by such taxpayer, contractor or subcontractor who performed the work on the facility.
If the taxpayer’s failure to meet the Labor Hour Requirement or the Participation Requirement is determined to be the result of intentional disregard, which the Proposed Regulations define as knowing or willful, the penalty is enhanced to $500 per labor hour. The Proposed Regulations provide a non-exhaustive list of factors that may be relevant to determining whether the failure was knowing or willful, such as whether the failure was part of a pattern of conduct that includes repeated failures, whether the taxpayer failed to take steps to determine the classifications of laborers and mechanics or prevailing wage rates, and whether the taxpayer promptly cured any failures, among other factors.
The Proposed Regulations provide for a rebuttable presumption against intentional disregard if the taxpayer makes the penalty payments before receiving notice of an examination for the increased credit.
The Apprenticeship Requirement is binding on an eligible taxpayer that claims the greater credit amount for its own benefit. Where the taxpayer transfers the greater credit amount under section 6418, the transferor taxpayer remains solely responsible for making the penalty payment. This obligation becomes fixed upon a filing of a return by the transferor or transferee taxpayer.
IV. Other Code Sections Applying PWA Requirements
The following chart details the greater credit and deduction amounts that may be applicable if the PWA requirements are met with respect to certain code sections.
V. Recordkeeping Requirements
Prevailing Wage Requirements
The Proposed Regulations provide that weekly payroll records are not required to be submitted on a weekly basis, because the requirement to pay prevailing wages becomes binding only when a tax return claiming a greater credit amount is filed. Instead, taxpayers are required to establish compliance with the Prevailing Wage Requirements at the time of the filing of the return claiming the greater credit amount.
The following information will be required at the time of the filing of the return:
- The location and type of qualified facility
- The applicable wage determinations for the type and location of the facility;
- The wages paid (including correction payments) and hours worked for each of the laborer or mechanic classifications engaged in the construction, alteration, or repair of the facility;
- The number of workers who received correction payments;
- The wages paid and hours worked by qualified apprentices for each of the laborer or mechanic classifications engaged in the construction, alteration, or repair of the facility;
- The total labor hours for the construction, alteration, or repair of the facility; and
- The total credit claimed.
The Proposed Regulations adopt the recordkeeping requirements from the DBA, including that records establishing compliance with the requirement include: payroll records that reflect the hours worked in each classification and the wages paid to each laborer and mechanic performing construction, alteration, or repair work. It is the responsibility of the taxpayer to maintain such records for contractors and subcontractors, in addition to the taxpayer’s employees. Taxpayers should also retain records to document actions taken to prevent or mitigate failures in order to demonstrate that a failure was not due to intentional disregard.
To establish compliance with the Apprenticeship Requirements, taxpayers must maintain sufficient records that demonstrate compliance with the Labor Hours Requirement, the Ratio Requirement, the Participation Requirement, and the Good Faith Effort Exception.
Records sufficient to establish compliance include copies of written requests for apprentices by the taxpayer, contractor, or subcontractor; any agreements entered into with registered apprenticeship programs; documents reflecting apprenticeship programs sponsored by the taxpayer, and documents verifying participation in a registered apprenticeship program, records reflecting the required daily ratio of apprentices to journeyworkers, and the payroll records for any work performed by apprentices.
Credits transferred under section 6418
Taxpayers that transfer credits qualifying for the greater credit amount for satisfaction of the PWA requirements are responsible for general recordkeeping requirements. The minimum required documentation that to be given to the transferee taxpayer is a specific requirement provided under the 6418 Proposed Regulations.
VI. Procedural Matters
The Proposed Regulations may apply to facilities, property, projects, or equipment placed in service in the taxable years ending after the date that final regulations are published in the Federal Register, and the construction or installation of which begins after the date the final regulations are published.
In the interim, taxpayers may rely on the Proposed Regulations with respect to construction or installation of a facility, property, project, or equipment beginning on or after January 29, 2023, and on or before the date of these regulations are published as final regulations, provided that beginning after October 28, 2023, taxpayers follow the Proposed Regulations consistently and in their entirety with respect to the facility, project, property or equipment.
The Proposed Regulations solicit comments, which must be received by October 30, 2023, on several topics, including:
- The need for additional exceptions, including for Tribal governments or the TVA, from the PWA requirements;
- The application of the PWA penalty and cure provisions, including to transferees and eligible taxpayers, in the context of transferred credits;
- The proposed procedures for requesting supplemental wage determinations and prevailing wage rates for additional classification;
- The treatment of working forepersons or owners performing the duties of laborers and mechanics under certain circumstances, and other executive or administrative personnel who also perform duties of a manual or physical nature, in the construction, alteration, or repair of a qualified facility;
- The appropriate rules for situations in which laborers and mechanics who are owed wages cannot be located and how taxpayers may establish that they have made correction payments;
- Additional criteria that might be used as part of a facts and circumstances analysis of intentional disregard of the Prevailing Wage Requirements;
- The proposed treatment of project labor agreements, other ways taxpayers might use project labor agreements to meet the PWA requirements, and the definition of a qualifying project labor agreement;
- The application of the Ratio Requirement for purposes of satisfying the Apprenticeship Requirement; and
- The application of the Good Faith Effort Exception to the Apprenticeship Requirement.