On August 29, 2023, the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) released a notice of proposed rulemaking and accompanying frequently asked questions (Proposed Regulations) regarding the prevailing wage and apprenticeship (PWA) requirements for increased energy credit or deduction amounts established by the Inflation Reduction Act of 2022 (IRA). Generally, if a taxpayer satisfies the PWA requirements or meets one of the exceptions, the amount of credit or deduction determined is five times the otherwise determined amount of the underlying credit or deduction. The Proposed Regulations provide much-needed guidance, including detailed substantiation and record-keeping requirements, for project owners to use to determine compliance with the PWA requirements.

Implementation Status Update

These Proposed Regulations follow Notice 2022-61, issued November 30, 2022. Notice 2022-61 established the 60-day period applicable to the beginning of construction exception and provided guidance for determining the beginning of construction and installation of qualified facilities and projects. Taxpayers may rely on these Proposed Regulations before their effective date (i.e., when final regulations are published in the Federal Register), with respect to the construction or installation of a facility, property, project, or equipment beginning on or after January 29, 2023, provided that taxpayers follow the Proposed Regulations in their entirety and in a consistent manner beginning after October 29, 2023.

Affected Code Sections

Key Takeaways

• Wage determinations are made at the beginning of construction and apply throughout the construction period (unless the contract is modified or extended). For repairs and alterations that occur after the facility is placed in service, a new wage determination is made.
• Regular maintenance is not subject to PWA requirements.
• PWA requirements apply to certain secondary sites where a significant portion of the construction, alteration, or repair of the facility occurs.
• The prevailing wage penalty is waived if the underpayment (compared to prevailing wages) is insignificant, and the correction payment is made no later than 30 days after the tax return claiming the increased credit or deduction is filed.
• The Good Faith Effort for obtaining apprenticeship labor must be made every 120 days in order to apply.
• The bar for intentional disregard is fairly high; the Proposed Regulations include a rebuttable presumption against intentional disregard.
• There are still areas that may require further clarification, such as wage determinations for workers that engage in multiple types of work (e.g., electrical and “laborer” work); interested parties are encouraged to submit comments.

Overview

Exceptions to PWA Rules

Projects that began construction before January 29, 2023, are generally exempt from the PWA rules, except for the credits under Sections 48C, 45Z, 45L, and 45U. Under Notice 2022-61, the determination of whether construction has begun is made under existing IRS guidance. Pursuant to existing guidance, taxpayers can generally establish that construction has begun by either satisfying the “physical work of a significant nature” standard or by incurring 5 percent or more of the total cost of the facility under a safe harbor test.

Projects that are eligible for credits under Section 45 or Section 48 (including Section 45Y and Section 48E) are also exempt from the PWA requirements if the maximum net output of such facility is less than one megawatt. The net output will be determined by “nameplate capacity,” which is defined as the maximum output on a steady-state basis during continuous operation under standard conditions.

Prevailing Wage Requirements

Section 45(b)(7)(A) of the Internal Revenue Code of 1986, as amended (Code), generally requires that taxpayers who are seeking an increased credit ensure that laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the construction, alteration, or repair of a facility during construction/installation and for a specified period after a project or facility is placed in service (PIS) are paid at least prevailing wage rates for construction, alteration, or repair in the locality in which such facility is located as most recently determined by the Secretary of Labor under the Davis-Bacon Act (DBA). The duration of the prevailing wage rules varies among the credits:

• Section 30C (during construction)
• Sections 45 and 45Y (during construction and 10 years after PIS)
• Sections 48 and 48E (during construction and five years after PIS)
• Section 45Q (during construction and 12 years after PIS)
• Section 45V (during construction and 10 years after PIS)
• Section 179D (during installation)
• Section 48C (while re-equipping, expanding, or establishing a facility)
• Section 45Z (during construction and for 10 years after PIS unless the facility is placed in service before January 1, 2025, then only for tax years in which the credit is claimed)
• Section 45L (during construction)
• Section 45U (during any alteration or repair)

Definitions

The Proposed Regulations would largely incorporate the definitions of “contractor” and “subcontractor” from the DBA and provide that a contractor would be any person that enters into a contract with the taxpayer for the construction, alteration, or repair of a facility and a subcontractor would be any contractor that agrees to perform or be responsible for the performance of any part of a contract entered into with the taxpayer or contractor with respect to the construction, alteration, or repair of a facility.

The Proposed Regulations would define the terms “laborer” and “mechanic” as individuals whose duties are manual or physical in nature, including anyone who devotes more than 20 percent of their time to laborer or mechanic duties. Laborers and mechanics would include apprentices and helpers. However, these definitions would not include individuals whose duties are primarily administrative, executive, or clerical in nature and persons employed in bona fide executive, administrative, or professional capacities. The Proposed Regulations would allow the payment of wages that differ from the applicable prevailing wage rate to apprentices who are participating in a registered apprenticeship program. However, if the taxpayer employs apprentices who are not in a registered apprenticeship program or who are working in a classification that is not in an occupation that is part of the registered apprenticeship program, or if the taxpayer employs apprentices in excess of applicable ratios permitted by the registered apprenticeship program, the taxpayer would need to pay those apprentices the full prevailing wage rate for that classification of work in that location.

The Proposed Regulations would provide that a laborer or mechanic would be considered “employed” by the taxpayer, contractor, or subcontractor if the individual performs the duties of 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 U.S. federal tax purposes.

The Proposed Regulations would provide that the term “construction, alteration, and repair” would mean all types of work performed at the location of the facility and include, without limitation, constructing, altering, remodeling, installing of items fabricated offsite, painting, decorating, and manufacturing or furnishing of materials, articles, supplies, or equipment at the location of the facility. However, the term “construction, alteration, or repair” would not include maintenance work that occurs after the facility or project is PIS. Under the Proposed Regulations, maintenance would be work that is ordinary and regular in nature and designed to maintain existing functionality of a facility as opposed to an isolated or infrequent repair of a facility to restore specific functionality or adapt it for a different or improved use.

Importantly, the Proposed Regulations do not rely on rules elsewhere in the Code to distinguish between alterations, repairs, or maintenance. Treasury and the IRS also noted that the determination of whether work is in substance construction, alteration, repair, or maintenance for purposes of these rules does not apply to determinations under Code Section 162 or Section 263.

To clarify the scope of “the locality in which such facility is located,” the Proposed Regulations would largely adopt the DBA’s approach to “site of the work” and include 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 specified period of time to, the construction, alteration, or repair of the facility.

Prevailing Wage Rates

Under the Proposed Regulations, prevailing wage rates would be determined when they are issued and published by the Department of Labor (DOL) as a general wage determination, or when issued to a taxpayer as part of a supplemental wage determination, or pursuant to a request for a wage rate for an additional classification.

The Proposed Regulations would require taxpayers to use the general wage determination in effect when the construction of the facility begins, but they would not require taxpayers to update the applicable prevailing wage rates during construction of the facility in the event a new general wage determination is published after construction of the facility begins. However, a new general wage determination would be required to be used when a contract is changed to include additional, substantial construction, alteration, or repair work not within the scope of work of the original contract, or to require work to be performed for an additional time period not originally obligated, including where an option to extend the term of a contract for the construction, alteration, or repair is exercised.

The Proposed Regulations also provide that taxpayers would need to update the applicable wage rates, as necessary, with respect to any alteration or repair of a facility that begins after the facility has been PIS. Taxpayers would do this by ensuring that wages are paid for such alteration or repair based on the general wage determination in effect when the alteration or repair begins.

Where the construction of a facility spans two or more adjacent geographic areas and more than one general wage determination could apply to the facility, a taxpayer would be able to satisfy the Prevailing Wage Requirements by ensuring that laborers and mechanics are paid wages at the highest rate for each classification provided under the general wage determinations.

For facilities located offshore, a taxpayer would be permitted to rely on the general wage determination for the relevant category of construction that is applicable in the geographic area closest to the area in which the facility will be located.

In the event that no general wage determination has been issued for the geographic area or for the specified type of construction or that one or more labor classifications necessary for the work to be done on the facility is not listed as part of the general wage determination, a taxpayer would need to request from the DOL a supplemental wage determination or a prevailing wage rate for an additional classification. Such request would need to include the following information: a description of the type of work to be performed; the geographic area where the facility is located; the start date for the construction, alteration, or repair of the facility; the labor classifications needed for performance of the work on the facility for which wage rates are not available on an applicable general wage determination; pertinent wage payment information that may be available with respect to the classifications; and any information the taxpayer wants the DOL to consider for determining the applicable classifications and prevailing wage rates. The Proposed Regulations would provide that when a supplemental wage determination or a prevailing wage rate for an additional classification is issued by the DOL after construction, alteration, or repair of the facility has begun, the taxpayer would be required to ensure that wages are paid at the applicable prevailing rates from the first day on which work is performed in the classification.

Correction and Penalty Provisions

Code Section 45(b)(7)(B) provides that a taxpayer who fails to satisfy the Prevailing Wage Requirements and is not eligible for either of the exceptions will still be deemed to have satisfied these requirements if the taxpayer makes a correction payment to the underpaid laborer or mechanic and pays a penalty to the IRS within 180 days of the IRS’s final determination with respect to the failure to satisfy the Prevailing Wage Requirements. As such, a lapse in compliance with these requirements will not automatically reduce the applicable credit or deduction to 20 percent of the otherwise claimed amount, provided the taxpayer pays the applicable penalties and makes appropriate corrections.

The Proposed Regulations would provide that the obligation to make correction payments and pay the penalty would not become binding until a tax return is filed claiming the increased credit or deduction. Thus, the earliest time that a taxpayer could make a penalty payment to the IRS would be at the time of filing a tax return claiming the increased credit or deduction, but taxpayers would retain the option of making correction payments to laborers and mechanics at any time after the initial payments were made and prior to the filing of a tax return claiming the increased credit to limit the amount of interest the taxpayer must pay as part of the correction payments.

When a taxpayer requests a supplemental wage determination or a prevailing wage rate for an additional classification, it is possible that the DOL’s response to the request will not be issued until after laborers and mechanics have started working on the facility. In this circumstance, the Proposed Regulations would provide that the taxpayer would not be considered to have failed to meet the Prevailing Wage Requirements if the taxpayer makes a correction payment within 30 days of the supplemental wage determination or prevailing wage rate for an additional classification.

If the IRS determines the failure to satisfy the Prevailing Wage Requirements is due to intentional disregard of these requirements, the correction payment will be three times the otherwise determined amount, and the penalty will be doubled (from $5,000 to $10,000 per underpaid laborer or mechanic). The Proposed Regulations would provide that the determination with respect to intentional disregard must be made by considering all relevant facts and circumstances and would provide a non-exhaustive list of facts that may be relevant to this determination, including whether: 1) the failure was part of a pattern of conduct; 2) the taxpayer has been required to pay the penalty in previous years; 3) the taxpayer failed to take steps to determine the applicable prevailing wage rate(s) for laborers and mechanics; 4) the taxpayer promptly cured any failures to ensure that laborers and mechanics were paid wages not less than the applicable prevailing rates; 5) the taxpayer undertook a quarterly, or more frequent, review of wages paid to laborers and mechanics to ensure payment of wages not less than the applicable prevailing wage rate; 6) the taxpayer included provisions in any contracts with contractors that required the contractors and any subcontractors retained by such contractors to pay laborers and mechanics at or above the prevailing wage rates and maintain records to ensure the taxpayer’s compliance with recordkeeping requirements set forth in the Proposed Regulations; 7) the taxpayer posted in a prominent place at the facility or otherwise provided written notice to laborers and mechanics during the construction, alteration, or repair of the facility, of the applicable wage rate(s) as determined by the DOL for all classifications of work to be performed for the construction, alteration, or repair of the facility, and that in order to be eligible to claim certain tax benefits, employers must ensure that laborers and mechanics are paid wages at rates not less than such wage rates; and 8) the taxpayer had in place procedures whereby laborers and mechanics could report suspected failures to pay prevailing wages and/or suspected failures to classify workers in accordance with the wage determination of workers to appropriate personnel departments or managers without retaliation or adverse action. The Proposed Regulations would also provide that there would be a rebuttable presumption against a finding of intentional disregard if the taxpayer makes the correction and penalty payments before receiving a notice of an examination with respect to a tax return that claimed the increased credit.

In addition, the Proposed Regulations would provide that the penalty would be waived if i) the taxpayer makes the required correction payment by the earlier of 30 days after the taxpayer became aware of the error or the date on which the tax return claiming the increased credit is filed and ii) either a) the laborer or mechanic is paid below the prevailing wage rate for not more than 10 percent of all pay periods of the calendar year (or part thereof) during which the laborer or mechanic worked on the construction, alteration, or repair of the facility, or b) the amount the laborer or mechanic was paid for the calendar year (or part thereof) is not less than 97.5 percent of the amount required to be paid by the Prevailing Wage Requirements for the same period. The Proposed Regulations would not provide for waiver of the penalty after a tax return has been filed claiming the increased credit or deduction.

Apprenticeship Requirements

To satisfy the apprenticeship requirements under Code Section 45(b)(8), a taxpayer must ensure that certain requirements with respect to labor hours (Labor Hours Requirement), apprentice-to-journeyworker ratios (Ratio Requirement) and participation by apprentices (Participation Requirement) are met, unless the taxpayer satisfies the Good Faith Effort Exception or, in the case of any failure to meet the Labor Hours Requirement or the Participation Requirement, makes a penalty payment to the IRS (Apprenticeship Cure Provision).

Labor Hours Requirement

Under the Labor Hours Requirement, a taxpayer must ensure that the applicable percentage of the total labor hours with respect to a qualified facility are performed by qualified apprentices. The minimum percentages of total labor hours that must be performed by qualified apprentices are 10 percent for projects that begin construction before 2023; 12.5 percent for projects that begin construction during 2023; and 15 percent for projects that begin construction in 2024 or later. The Proposed Regulations would clarify that pre-apprenticeship programs would not qualify as registered apprenticeship programs, such that hours worked as part of a pre-apprenticeship program would not count towards the Labor Hours Requirement.

Ratio Requirement

Under the Ratio Requirement, a taxpayer must ensure that any applicable apprenticeship-to-journeyworker ratio is satisfied. The Proposed Regulations would provide that the applicable ratio established by the apprenticeship program would need to be satisfied each day during construction, alteration, or repair of the facility for which apprentice labor hours are being claimed. If the Ratio Requirement is not met on any day, the hours worked by the apprentices on the day would not be counted as apprentice hours for purposes of calculating the applicable percentage under the Labor Hours Requirement. In other words, the Labor Hours Regulations generally would be subject to the Ratio Requirement. Further, registered apprentices in excess of the applicable ratio would be required to be paid the full prevailing wage rate for the hours worked for purposes of the Prevailing Wage Requirements.

Participation Requirement

Under the Participation Requirement, each taxpayer, contractor, or subcontractor who employs four or more individuals to perform construction, alteration, or repair work with respect to the construction of a facility must employ one or more qualified apprentices to perform such work. Thus, taxpayers cannot “stack” apprentices in one trade versus others. The Proposed Regulations would clarify that the Participation Requirement would be satisfied as long as the taxpayer, contractor, or subcontractor employs one or more apprentices to perform work on the facility and would not be a daily requirement.

The Proposed Regulations would explain that the Participation Requirement would apply in addition to the Labor Hours Requirement and the Ratio Requirements. If a taxpayer fails to meet both the Labor Hours Requirement and the Participation Requirement, the penalty would equal the sum of the penalty for failure to meet the Labor Hours Requirement plus the penalty for failure to meet the Participation Requirement.

Good Faith Effort Exception

Code Section 45(b)(8)(D)(ii) provides that taxpayers are deemed to satisfy the Apprenticeship Requirements if they have requested qualified apprentices from a registered apprenticeship program and 1) such request has been denied for reasons other than the taxpayer’s refusal to comply with the program’s standards and requirements or 2) the program fails to respond within five business days of receiving a request.

The Proposed Regulations would require the taxpayer to make a written request to at least one registered apprenticeship program that has a geographic area of operation that includes the location of the facility (or can reasonably be expected to provide apprentices to the location of the facility), trains apprentices in the occupations needed by the taxpayer, and has a usual and customary business practice of entering into agreements with employers for the placement of apprentices in the occupation for which they are training.

The written request would be required to include information concerning the 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 person requesting the apprentices. The written request would also be required to include a statement that the request for apprentices is made with an intent to employ apprentices in the occupation for which they are being trained and in accordance with the requirements and standards of the registered apprenticeship program.

Under the Proposed Regulations, a denial (or deemed denial) of a request by a taxpayer would not automatically qualify the taxpayer for the Good Faith Effort Exception. The taxpayer would be required to submit an additional request within 120 days of a previously denied request.

The Proposed Regulations would clarify that a denial of a request would mean that the registered apprenticeship program denies the request in its entirety. A registered apprenticeship program’s response that it could partially fulfill the request would not constitute a denial of the request with respect to the parts of the request that could be fulfilled.

The Proposed Regulations would also explain that an acknowledgement of receipt by a registered apprenticeship program would constitute a response, and therefore a taxpayer would be unable to treat such a response as a deemed denial for purposes of the Good Faith Effort Exception.

Compared to the initial guidance in Notice 2022-61, which only required taxpayers to “request qualified apprentices from a registered apprenticeship program in accordance with usual and customary business practice for registered apprenticeship programs in a particular industry,” the Proposed Regulations significantly tighten the good-faith exception.

Apprenticeship Cure Provision

If a taxpayer does not qualify for the Good Faith Effort Exception and fails to satisfy the Apprenticeship Requirements, the taxpayer can cure such failure by paying a penalty to the IRS in an amount equal to $50 multiplied by the total labor hours for which the Labor Hours Requirement or the Participation Requirement is not satisfied. If the IRS determines the failure to satisfy the Apprenticeship Requirements is due to intentional disregard of these requirements, the penalty amount increases to $500 multiplied by the total labor hours.

The Proposed Regulations would provide that the total labor hours by which the taxpayer fails to meet the Labor Hours Requirement would be calculated by subtracting the total labor hours worked by all qualified apprentices consistent with the Ratio Requirement from the total labor hours that should have been worked by qualified apprentices to satisfy the applicable percentage. For purposes of calculating the penalty for failing to satisfy the Participation Requirement, the number of labor hours an apprentice is required to work would be equal to the total number of labor hours performed for the contractor, subcontractor, or taxpayer during construction, alteration, or repair of the facility, divided by the total number of individuals employed by the contractor, subcontractor, or taxpayer. The calculation is specific to each party required to satisfy the Participation Requirement and thus, for example, with respect to the taxpayer, would not include labor hours worked by any individual employed by a contractor that satisfied the Participation Requirement.

Similar to the correction and penalty provisions under the Prevailing Wage Requirements, the Proposed Regulations would provide that the determination with respect to intentional disregard of the Apprenticeship Requirements must be made by considering all relevant facts and circumstances and would provide a nonexhaustive list of facts that may be relevant to this determination, including whether: 1) the failure was part of a pattern of conduct that includes repeated and systemic failures to comply with the Apprenticeship Requirements; 2) the taxpayer failed to take steps to determine the applicable percentage of labor hours required to be performed by qualified apprentices; 3) the taxpayer sought to promptly cure any failures; 4) the taxpayer has been required to make a penalty payment in previous years; 5) the taxpayer included provisions in any contracts with contractors that required the employment of apprentices by the contractor and any subcontractors consistent with the Labor Hours Requirement and the Participation Requirement; and 6) the taxpayer made no attempt to comply with the Apprenticeship Requirements. The Proposed Regulations would also provide that there would be a rebuttable presumption against a finding of intentional disregard if the taxpayer makes the penalty payments before receiving a notice of an examination with respect to a tax return that claimed the increased credit or deduction.

Recordkeeping Requirements

Under the Proposed Regulations, taxpayers would be required to establish compliance with the Prevailing Wage Requirements at the time a tax return claiming the increased credit or deduction is filed, and on such forms and in such manner as the IRS would provide in its forms, publications or other guidance. Records sufficient to establish compliance would include the following: 1) payroll records that reflect the hours worked in each classification and the wages paid (including any correction payments) to each laborer and mechanic performing construction, alteration, or repair work on the facility; 2) identifying information for each laborer or mechanic; 3) location and type of each qualified facility; 4) labor classification assigned to each laborer and mechanic; and 5) hourly wage rate for each labor classification. It would be the responsibility of the taxpayer to maintain such records, regardless of whether the laborers and mechanics are employed by the taxpayer, a contractor, or a subcontractor.

Records sufficient to establish compliance with the Apprenticeship Requirements would include: copies of any written requests for apprentices by the taxpayer; any agreement entered into by the taxpayer with a registered apprenticeship program; documents reflecting any registered apprenticeship program sponsored by the taxpayer; documents verifying participation in a registered apprenticeship program by each apprentice; records reflecting the required ratio of apprentices to journeyworkers prescribed by each registered apprenticeship program from which qualified apprentices are employed; records reflecting the daily ratio of apprentices to journeyworkers; and the payroll records for any work performed by the apprentices.

Credit Transfer Under Code Section 6418

For credits transferred under Code Section 6418, the Proposed Regulations would provide that the term “taxpayer” would mean the eligible taxpayer that determines the eligible credit to be transferred and makes an election to transfer any specified credit portion of an eligible credit.

The obligation to satisfy the Prevailing Wage Requirements or the Apprenticeship Requirements would not become binding on an eligible taxpayer until the earlier of i) the filing of the eligible taxpayer’s return for the taxable year for which the specified credit portion is determined with respect to the eligible taxpayer or ii) the filing of the return of the transferee taxpayer for the year in which the specified credit portion is taken into account.

The correction and penalty payments required to cure the failure to meet the Prevailing Wage Requirements and the penalty payments required to cure the failure to meet the Apprenticeship Requirements would remain the responsibility of the eligible taxpayer following a transfer of a specified credit portion.

The general recordkeeping requirements discussed above would remain with the eligible taxpayer. The increased credit amount determined by the eligible taxpayer would be reported on the applicable forms on the return of the eligible taxpayer.

Proposed Effective Date

Treasury and the IRS intend for the Proposed Regulations to apply to facilities, properties, projects, or equipment PIS in taxable years ending after the date final regulations are published in the Federal Register and the construction or installation of which begins after such publication date.

Request for Public Comments

Treasury and the IRS request comments on all aspects of the Proposed Regulations, in particular the following:

• the need for any exceptions, including for Tribal governments or the Tennessee Valley Authority, from the PWA requirements in addition to those expressly described in the Code;
• 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 classifications;
• 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;
• 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 the correction payments;
• additional criteria that might be used as part of a facts and circumstances analysis of intentional disregard;
• the applicability of a presumption against a finding of intentional disregard in certain situations;
• the proposed use of calendar years in place of taxable years for purposes of penalty waivers;
• 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;
• whether and how the proposed Good Faith Effort Exception might take into account a situation where a taxpayer contacts the DOL’s Office of Apprenticeship or the appropriate State apprenticeship agency regarding their apprenticeship request, in addition to contacting a specific registered apprenticeship program or programs; and
• how the proposed Good Faith Effort Exception will align with current practices with respect to utilization of apprentices in the construction, alteration, or repair of facilities, especially the role of collective bargaining agreements, project labor agreements, and other agreements to satisfy the request for apprentices under the Good Faith Effort Exception.

Comments should be submitted by October 29, 2023.