Ballard Spahr Alert: Treasury Offers New Guidance on Renewable Energy Grant Eligibility

Ballard Spahr Alert: Treasury Offers New Guidance on Renewable Energy Grant Eligibility

By Charles S. Henck, Mark J. Maichel and Darin Lowder

Eligibility for a renewable energy grant hinges on the start date of a project, and the U.S. Treasury Department has provided new guidance on the issue of how that eligibility may be affected by a property transfer.

The new guidance addresses the 5 percent safe harbor for determining whether a renewable energy project developer seeking a 1603 Grant has met the requirement that construction on the project must commence before the end of 2011. The program, created under Section 1603 of the American Recovery and Reinvestment Act of 2009, provides cash grants in lieu of energy credits that would otherwise be available under Section 48 of the Internal Revenue Code.

Specifically, the new guidance focuses on cases where the renewable energy property is acquired by one party in 2011 and then transferred to the 1603 Grant applicant after 2011. 

Under the guidance, Treasury will apply different 1603 Grant eligibility rules to determine whether applicants will be treated as having acquired the energy property in 2011, depending on (1) how the applicant acquired the property-whether it was through an asset transfer or the transfer of an ownership interest in the original owner-and (2) in the case of an asset transfer, whether the applicant is a related party to the original owner. 

Several new fact-specific requirements are imposed in the new guidance. If you have questions about how the requirements may apply to a specific 1603 Grant transaction, please feel free to contact Charles S. Henck, 202.661.2209 or henck@ballardspahr.com; Mark J. Maichel, 303.299.7335 or maichelm@ballardspahr.com; or Darin Lowder, 202.661.7631 or lowderd@ballardspahr.com. 

For background on the 1603 Grant program, read our earlier legal alerts on program clarifications, application procedures, and cost benchmarks.


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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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