On Feb 24, the US Court of Appeals for the Federal Circuit released its decision in Ampersand Chowchilla Biomass LLC v. US, in which the court considered when a power generation project is placed in service for federal income tax purposes.

The case arose in the context of a now-lapsed cash grant program, created as part of the American Recovery and Reinvestment Act in 2009 to increase investment in domestic clean energy production. Under the program, the US Department of the Treasury provided a cash grant of 30% of eligible basis in lieu of tax credits.

The rules for the grant were supposed to mimic the rules of the investment tax credit under Section 48 of the Internal Revenue Code. Accordingly, although the cash grant program is long over, these cases have implications for tax planning for today's power generation projects.

In the Ampersand case, the court found two California facilities were ready and available to produce and sell electricity in 2008 when the facilities were synchronized to the transmission grid, began selling electricity, and operated under their power purchase agreements, or PPAs. In other words, the plants were placed in service in 2008.

The case clarifies the meaning of the terms of art "assigned function" and "critical testing" with respect to the placed-in-service doctrine as applied to power generation projects.

Read the full Law360 article, "Ampersand clarifies power project placed-in-service analysis."



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