1. The Basics of Solar Tax Credits Forrest Milder 617-345-1055 fmilder@nixonpeabody.com Herb Stevens 202-585-8811 hstevens@nixonpeabody.com © 2008

2. 1 – Solar Tax Credits Solar credit is an investment tax credit (or ITC) Based on cost of facility Usually taken all in one year Generally only available for new property (theres an 80% test) Mostly: depreciation over 5 years

3. 2 -- Overview of ETCs Energy Tax Credits are generally 30% of facility cost (e.g., transmission lines and substations are not eligible for the ITC) Includes Photovoltaic (PV) Concentrated Solar Power (CSP) & fuel cells Must generate electricity, heating, cooling, hot water, or fiber-optic lighting. Sale of elec. is not required

4. 2 (cont) -- Overview of ITCs Usually taken in the year the facility is placed in service, but can sometimes use progress expenditures over more than one year Possible recapture for 5 years Called Energy Tax Credits in Section 48 of Tax Code

5. 3 -- Need for an Owner No sales of credits. They are generally claimed by the owner of the facility which makes an investment in a partnership or LLC, or, if the developer wants out, the facility could be sold No government ownership Sometimes, a lease is used, and the tenant claims the credits (note: anti-depre-ciation for tenant). A lot like HTC.

6. 3 (cont) -- Need for an Owner Lengthy documents detail the relationship – addresses investment timing, allocating credits, distributing cash, and withdrawal of the investor Usually: 5+ or 10+ year relationship with investor

7. 4 -- Allocations IRS has elaborate (inscru-table?) rules for allocating the credits among the parties ITCs follow the profits of the owner This is NOT the same as LIHTC (they follow depreciation) Wide range of ratios possible, not just 99-1 Partnership Developer Investor 1% 99% Solar Facility

8. 5 -- Sharing Cash and Credits They dont have to be shared in the same way IRS might treat cash distributions as a share of profits or gross sales and re-allocate the credits Must track capital accounts Might be able to use debt, management or development fees to get cash to developer

9. 6 -- Need for a Forecast Shows how credits and cash go to the investor and the GP Must be done by someone who knows syndication (otherwise, there may be very unwieldy projections) Remember that Allocations are different from LIHTC

10. 7 -- The Biggest Problem Congress keeps renewing the credits in one and two year extensions For most facilities placed in service in 2009 and later, ITCs revert to 10% Discourages technology development Discourages building of facilities This leads to important placed in service tests.

11. 8 – Placed In Service (PIS) – If credits arent extended, PIS matters – to get the higher 30% rate for ITCs – When to start claiming credits – its not based on when the investor comes in. – If investor gets in late, ITC may be lost (note 3-month lease exception) – ITC may be able to use progress expenditures to get credits earlier, and higher rate

12. 8 (cont) -- More on Placed in Service When is a facility placed in service? Usually when completed, with licenses and after pre-operational testing Daily operation can matter Acquired property must be delivered and ready to use; mere purchase is not enough

13. 9 -- Other Subsidies Adverse Interaction with other Federal Credits Bonds and subsidized energy financing generally reduce federal credits. (Full reduction) State programs usually dont reduce solar credit, but may be taxable, e.g., state grants) IRS keeps attacking state tax credits

14. 10 -- Technical Rules Almost all investors are corporations because of At Risk and Passive Loss Rules Basis reduction of 50% of ITC, meaning less depreciation Profit motive -- But compare Rev. Proc. 2007-65 (for wind) with Reg. 1.42-4 (for LIHTC)

15. 11 -- Flips, Puts, and Calls Once youve gotten the investor IN, you need a way to get it OUT. Flip – reduce the investors percentage to make it cheaper to buy him out Put – The investor can get out for a small amount. Unpopular in energy deals Call – The developer can buy out the investor for fair market value

16. 12 -- Combining LIHTC and Solar Project can qualify for both States may give extra points in the QAP Solar credits reduce LIHTC basis Remember that bonds can be a problem Remember that LIHTC and Solar are allocated among partners differently (so watch out for contingent fees)

17. Examples: Solar and Housing Credits 9% Housing Credit4% Housing Credit Solar Panel Cost$1,000,000 Solar Credit at 30%$300,000 $150,000 assumes 50% tax-exempt debt Housing Credit Basis (reduced by ½ solar credit) $850,000$925,000 Credit Percentage (assumed) 81%35% Housing Credit$689,000$324,000 Total Credits$989,000$474,000

18. Thanks! Forrest Milder and Herb Stevens