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31 March 2010

Energy and Utilities Alert - March 2010 - New IRS Guidance: Smart Grid Grants Are Not Taxable

Effective March 10, 2010, the Internal Revenue Service (IRS) released Revenue Procedure 2010-20, which provides much anticipated guidance for the electric utility industry on the tax treatment of a Smart Grid Investment Grant (SGIG) made by the U.S. Department of Energy (DOE) to corporations for qualifying investments under the Smart Grid Investment Matching Program.
United States Energy and Natural Resources

Effective March 10, 2010, the Internal Revenue Service (IRS) released Revenue Procedure 2010-20, which provides much anticipated guidance for the electric utility industry on the tax treatment of a Smart Grid Investment Grant (SGIG) made by the U.S. Department of Energy (DOE) to corporations for qualifying investments under the Smart Grid Investment Matching Program.

Background

In 2009, the American Recovery and Reinvestment Act included significant funding for SGIGs and demonstration projects. Under this program, known as the Smart Grid Investment Matching Grant Program (42 U.S.C. 17386), the DOE is authorized to provide grants up to 50 percent of qualifying smart grid investments. However, a great deal of uncertainty existed as to whether these DOE grants would constitute taxable income to the recipients, which uncertainty was creating an adverse impact on obtaining a matching grant from state regulatory commissions. Some state regulatory commissions have already acted on the understanding that the DOE grants would not constitute income.

Revenue Procedure 2010-20

This revenue procedure provides a safe harbor under which the IRS will allow corporate recipients to treat the DOE grants as non-shareholder contributions to capital excluded from income under Section 118(a) of the Internal Revenue Code. This safe harbor is available only if the corporate recipient reduces the basis of the tangible property by the amount of such grant. Because of the basis reduction, this guidance permits only a deferral of income and not a permanent exclusion from income with respect to SGIGs.

Unfortunately, the IRS took a narrow approach in this guidance – it applies only to corporations receiving a SGIG from the DOE under 42 U.S.C. 17386. This guidance does not apply to: (i) non-corporate taxpayers or (ii) grants under a separate program for smart grid technology research, development and demonstration (under 42 U.S.C. 17384). Most electric industry participants have been urging the Treasury Department to adopt a broader approach, i.e., all DOE grants should be treated equally as non-taxable for both corporate and non-corporate recipients.

Nonetheless, this IRS guidance does provide certainty as to the tax treatment of SGIGs for corporate recipients, and this guidance is consistent with existing law under Code Section 118(a) treating these types of grants as non-taxable contributions to capital.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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