Reallocation of section 48A credits under the qualifying advanced coal project program. This notice discloses the results of the review of the credits allocated under the section 48A Phase I program, and establishes an additional program (“the section 48A Phase III program”) to reallocate the remaining credits of section 48A Phase I program (“the section 48A Phase III credits”). The procedures in this notice apply only to section 48A Phase I credits that are available for reallocation under the section 48A Phase III program. Notice 2009-24 amplified.

This procedure contains updates and changes to Publication 1220, Specifications for Filing Forms 1097, 1098, 1099, 3921, 3922, 5498, 8935 and W-2G Electronically (revised 8-2012). Rev. Proc. 2011-40 superseded.

This procedure updates Rev. Proc. 95-15 and revises the fee prescribed under the authority of section 6110(k) of the Code for processing requests for background file documents. Rev. Proc. 95-15 and Announcements 83-196 and 85-141 superseded.

Section 48A of the Internal Revenue Code, as originally enacted, provided for the first phase of the qualifying advanced coal project program and authorized $1.3 billion of credits (“the § 48A Phase I program” and “the § 48A Phase I credit”). Section 48A, as amended by section 111 of the Energy Improvement and Extension Act of 2008, Pub. L. 110-343, 122 Stat. 3765 (October 3, 2008), provided for a second phase of the qualifying advanced coal project program and authorized an additional $1.25 billion of credits (“the § 48A Phase II program” and “the § 48A Phase II credit”).

This notice reports the results of the § 48A Phase I program, and as provided by § 48A(d)(4), establishes a third phase of the qualifying advanced coal project program (“the § 48A Phase III program”) to distribute the § 48A Phase I credits that are available for allocation after the conclusion of the § 48A Phase I program (“the § 48A Phase III credits”). The procedures in this notice apply only to § 48A Phase I credits that are available for reallocation after the last allocation under the § 48A Phase I program.

To be considered in the § 48A Phase III program 2012-2013 allocation round (2012-2013 round), applications must be submitted to the Department of Energy (“DOE”) on or before October 15, 2012, and to the Internal Revenue Service (“Service”) on or before February 15, 2013.

.01 Section 46 provides that the amount of the investment credit for any taxable year is the sum of the credits listed in § 46. That list includes the qualifying advanced coal project credit under § 48A.

.02 Section 48A(d)(1) provides that the Secretary, in consultation with the Secretary of Energy, shall establish a qualifying advanced coal project program for the deployment of advanced coal-based generation technologies. The Treasury Department and the Service, in consultation with the Secretary of Energy, established the § 48A Phase I program in Notice 2006-24, 2006-1 C.B. 595, as modified and updated by Notice 2007-52, 2007-1 C.B. 1456.

.03 Under the § 48A Phase I program, the qualifying advanced coal project credit for a taxable year was an amount equal to (i) 20 percent of the qualified investment for that taxable year in qualifying projects that use an integrated gasification combined cycle (“IGCC”) and (ii) 15 percent of the qualified investment for that taxable year in qualifying projects that use other advanced coal-based generation technologies.

.04 Pursuant to § 48A(d)(3)(B), the § 48A Phase I program provided for (i) $800 million of credits to be allocated to IGCC projects and (ii) $500 million of credits to other advanced coal projects. The Service allocated credits through annual allocation rounds in 2006, 2007-08, and 2008-09, and a special allocation round in 2008.

.05 Pursuant to § 48A(d)(3)(B)(iii), the § 48A Phase II program provides for additional $1.25 billion of credits for advanced coal-based generation technology projects. The § 48A Phase II credit for a taxable year is 30 percent of the qualified investment for that taxable year in advanced coal-based generation technology projects.

.06 Section 48A(d)(4) requires the Secretary to review the allocation of § 48A Phase I credits as of the date that is 6 years after the date of enactment of § 48A. The Secretary has broad authority to establish an additional program to distribute the § 48A Phase I credits that are available for reallocation if the Secretary determines that: (i) there is an insufficient quantity of qualifying applications for certification pending at the time of the review, or (ii) any certification made pursuant to § 48A(d)(2) has been revoked because the project subject to the certification has been delayed as a result of third-party opposition or litigation.

.07 The Service has completed this review and has determined that § 48A Phase I credits in the total amount of $658,500,000 are available for reallocation under the § 48A Phase III program.

.08 The § 48A Phase III program, like the § 48A Phase II program, requires a qualifying project to include equipment that separates and sequesters a percentage of such project’s total carbon dioxide (CO₂) emissions (at least 65 percent under the Phase II program and at least 70 percent under the Phase III program). The § 48A Phase I program did not include a similar requirement. Accordingly, the qualifying advanced coal project credit under the § 48A Phase III program will be computed using the rules applicable to the § 48A Phase II program rather than those applicable to the § 48A Phase I program. Thus, the credit for a taxable year under the § 48A Phase III program is an amount equal to 30 percent of the qualified investment (as defined in § 48A(b)) for that taxable year in a qualifying advanced coal project (as defined in § 48A(c)(1) and § 48A(e)). The 30 percent credit rate will apply to both facilities that use IGCC (as defined in § 48A(c)(7)) and those that use other advanced coal-based generation technologies.

.09 Section 48A(f) prescribes the requirements that must be satisfied to qualify as an advanced coal-based generation technology. These include requirements that the unit be designed to attain specified standards for emissions or removal of certain pollutants.

.10 Section 48A(e)(3)(A) provides for credit allocation by reference to the coal used as a primary feedstock. Section 48A(e)(3)(B) establishes priority for certain projects under the § 48A Phase I and Phase II programs. Section 48A(e)(3)(B) provides that high priority must be given to projects that include (i) greenhouse gas capture capability (as defined in § 48A(c)(5)), (ii) increased by-product utilization, (iii) applicant participants that have a research partnership with an eligible educational institution (as defined in § 529(e)(5)), and (iv) other benefits. Section 48A(e)(3)(C) provides that the highest priority is given to projects with the greatest separation and sequestration percentage of total CO₂ emissions. The § 48A Phase III program adopts priorities similar to those specified in § 48A(e)(3)(B) and (C), but does not adopt the feedstock rules of § 48A(e)(3)(A).

.11 Section 48A(d)(5) provides that the Secretary shall, upon making a certification under § 48A(d), publicly disclose the identity of the applicant and the amount of the credit certified with respect to such applicant.

.12 Section 48A(h) directs the Secretary to modify the terms of any competitive certification award to permit a change of coal project site if such change (i) is consistent with the objectives of § 48A, (ii) is requested by the recipient, and (iii) involves moving the project site to improve the potential to capture and sequester CO₂ emissions, reduce costs of transporting feedstock, and serve a broader customer base. This directive does not apply if the Secretary determines that the dollar amount of tax credits available to the taxpayer under § 48A would increase as a result of the modification or such modification would result in such project not being originally certified. In addition, the Secretary is required to consult with other relevant Federal agencies, including the Department of Energy, in considering any modification under § 48A(h).

.13 The at-risk rules in § 49 and the recapture and other special rules in § 50 apply to the qualifying advanced coal project credit.

The following definitions apply for purposes of § 48A and this notice:

.01 Coal. Section 48A(c)(4) defines the term “coal” as meaning anthracite, bituminous coal, subbituminous coal, lignite, and peat. Coal includes waste coal (that is, usable material that is a byproduct of the previous processing of anthracite, bituminous coal, subbituminous coal, lignite, or peat). Examples of waste coal include fine coal of any of the listed ranks, coal of any of the listed ranks obtained from a refuse bank or slurry dam, anthracite culm, bituminous gob, and lignite waste.

.02 Total Nameplate Generating Capacity.

(1) Except as provided in section 3.02(2) of this notice, the total nameplate generating capacity of a project under § 48A(e)(1)(C) is the aggregate of the numbers (in megawatts) stamped on the nameplate of each generator to be used in the project.

(2) If the number stamped on the nameplate of a generator is not determined at the International Standard Organization (ISO) optimal conditions of 59 degrees Fahrenheit, 60 percent relative humidity, and 14.7 psia at sea level, the number stamped on the nameplate is disregarded and the generator’s capacity (in megawatts) determined at such optimal conditions is used in its place.

.03 Fuel Input.

(1) In general. Section 48A(e)(1)(B) provides that the fuel input for the project, when completed, must be at least 75 percent coal. The term “fuel input” means, with respect to any type of fuel, the amount of such fuel used during normal plant operations. The amounts of the fuel used are measured (i) in British thermal units (Btus) on an energy input basis, and (ii) pursuant to applicable standards prescribed by the American Society for Testing and Materials (ASTM). Thus, the requirement of § 48A(e)(1)(B) is satisfied if, after completion and during normal plant operations, coal provides at least 75-percent of the project’s fuel measured in Btus on an energy input basis and pursuant to applicable ASTM standards.

(2) Only normal plant operations taken into account. Only fuel used during normal plant operations is taken into account for purposes of § 48A and sections 5.02(5) and 5.02(14) of this notice. Normal plant operations are operations other than during periods of initial plant certification, plant startup, plant shutdown, integrated gasifier shutdown for gasification system maintenance, or interruption of the coal supply to the project resulting from an event of force majeure (including an act of God, war, strike, or other similar event beyond the control of the taxpayer). For example, the fuel input during the initial plant certification may consist entirely of natural gas or other non-coal fuels because fuel used during initial plant certification is disregarded in determining whether the 75 percent coal usage requirement of § 48A(e)(1)(B) is satisfied.

.04 Placed In Service. For purposes of § 48A, property is placed in service in the taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function. See § 1.46-3(d)(1)(ii) of the Income Tax Regulations. Thus, a qualifying advanced coal project or eligible property (as defined in § 48A(c)(3)) that is a part of the project is placed in service in the taxable year in which the project is placed in a condition or state of readiness and availability for producing electricity from coal as required under § 48A(e).

.05 Separation and Sequestration. The term “separation and sequestration” refers to the separation and capture of a project’s CO₂ emissions and the placement of the captured CO₂ into a repository in which the CO₂ will remain permanently sequestered.

.01 In General. The Service will consider a project under the § 48A Phase III program only if DOE provides a certification (“DOE certification”) and ranking (if any) for the project. Accordingly, a taxpayer must submit, for each project: (i) an application for certification by DOE that the project is technically and economically feasible (“application for DOE certification”), and (ii) an application for certification under § 48A(d)(4) by the Service (“application for § 48A certification”).

.02 Program Specifications.

(1) The Service determines the amount of the § 48A Phase III credits allocated to a project at the time the Service accepts the application for § 48A certification for that project in accordance with this notice (see section 5 of this notice for the requirements applicable to the application for DOE certification and the application for § 48A certification).

(2) Section 48A Phase III credits in the amount of $658,500,000 are available for allocation in the 2012-2013 round. The credits will not be separated into pools based on the type of projects or the type of primary feedstock.

(3) The § 48A Phase III credit for a taxable year is an amount equal to 30 percent of the qualified investment (as defined in § 48A(b)) for that taxable year in a qualifying advanced coal project (as defined in § 48A(c)(1) and § 48A(e)). This rule applies to both facilities that use an IGCC (as defined in § 48A(c)(7)) and those that use other advanced coal-based generation technologies (as defined in § 48A(f)).

(4) A taxpayer that was allocated § 48A Phase I credits or § 48A Phase II credits for a project may submit an application for § 48A Phase III credits for the same project if the project meets the additional requirement for a qualifying project under the § 48A Phase III program that the project separate and sequester at least 70 percent of the project’s total CO₂ emissions.

(a) The § 48A Phase III credit will be allowed with respect to the taxpayer’s qualified investment in the project only to the extent such investment exceeds the qualified investment with respect to which the § 48A Phase I credit or § 48A Phase II credit was awarded.

(b) Section 48A Phase III credits allocated to a project will be forfeited if the taxpayer fails to satisfy the certification requirements in § 48A(e)(2) within two years from the date of acceptance of the application under this notice, or fails to place the project in service within 5 years of the date of issuance of the certification (as determined under section 6.03 of this notice). The allocation of the § 48A Phase III credits to a project does not delay the taxpayer’s certification and placed-in-service obligations with respect to any § 48A Phase I credits or § 48A Phase II credits previously allocated to the project. Accordingly, the § 48A Phase I credits or the § 48A Phase II credits allocated to the project will be forfeited if the taxpayer fails to satisfy the certification requirements within two years from the date of acceptance under the § 48A Phase I program or the § 48A Phase II program (whichever is applicable), or fails to place the project in service within 5 years of the date of issuance of the certification under the applicable program.

(5) For § 48A Phase III credits, DOE will rank the certified projects in descending order (that is, first, second, third, etc.) based on the Program Policy Factors specified in Appendix B, and allocate the credit as follows:

(a) If the requested allocation of credits for projects that DOE has certified does not exceed the amount available for allocation, each certified project will be allocated the full amount of credit requested.

(b) If the requested allocation of credits for projects that DOE has certified exceeds the amount available for allocation, the amount available for allocation will be allocated as follows:

(i) The project receiving the highest ranking (that is, first) will be allocated the full amount of credit requested (but not exceeding the amount available for allocation) before any credit is allocated to a lower-ranked project. The amount available for allocation is reduced by the amount of credit so allocated and only the remainder is available for allocation to a lower-ranked project.

(ii) Second and lower-ranked projects will be entitled to similar priority in the allocation of credits and allocations to such projects will similarly reduce the remainder of the amount available for allocation until the amount available for allocation is exhausted.

(6) For the 2012-2013 round under this notice, the application period for § 48A certification begins on August 13, 2012, and ends on February 15, 2013, and any completed application for § 48A certification received by the Service after August 12, 2012, and before February 16, 2013, will be deemed to be submitted by the taxpayer on February 15, 2013.

(7) For purposes of this notice, an application that is submitted by U.S. mail will be treated as received by the Service on the date of the postmark and an application submitted by a private delivery service will be treated as received by the Service on the date recorded or the date marked in accordance with § 7502(f)(2)(C).

(8) See section 5.02 of this notice and Appendix B to this notice for the information to be submitted to DOE in an application for DOE certification. Appendix B to this notice also provides the instructions and address for filing the application for DOE certification. DOE will determine the technical and economic feasibility of the project and, if the project is determined to be feasible, will provide a DOE certification for the project to the Service. If DOE certifies two or more projects, DOE also will rank each of the projects it certifies (for example, first, second, third, etc.) relative to other certified projects and credits will be allocated to projects based on DOE ranking. If an application for DOE certification is postmarked on or before October 15, 2012, DOE will determine the feasibility of the project and (for projects determined to be feasible) provide DOE certification and DOE ranking (if any) to the Service by February 15, 2013.

(9) By May 15, 2013, the Service will accept or reject the taxpayer’s application for § 48A certification and will notify the taxpayer, by letter, of its decision.

(10) If the taxpayer’s application for § 48A certification is accepted, the acceptance letter will state the amount of the credit allocated to the project. If a credit is allocated to a taxpayer’s project, the taxpayer will be required to execute a closing agreement in the form set forth in Appendix A to this notice. By July 15, 2013, the taxpayer must execute and return the closing agreement to the Service at the appropriate address listed in section 5.04 of this notice. The Service will execute and return the closing agreement to the taxpayer by September 16, 2013. The executed closing agreement applies only to the accepted taxpayer. The taxpayer must notify the Service within 90 days of the acquisition of the project by any other person (a successor in interest). A successor in interest that plans to claim the § 48A credit allocated to the project must request permission to execute a new closing agreement with the Service. If the request is granted, the new closing agreement must be executed no later than the due date (including extensions) of the successor in interest’s Federal income tax return for the taxable year in which the transfer occurs. If the successor in interest does not execute a new closing agreement, the following rules apply:

(a) In the case of an interest acquired at or before the time the qualifying advanced coal project is placed in service, any credit allocated to the project will be fully forfeited (and rules similar to the recapture rules of § 50(a) apply with respect to qualified progress expenditures); and

(b) In the case of an interest acquired after the qualifying advanced coal project is placed in service, the project ceases to be investment credit property and the recapture rules of § 50(a) (and similar rules with respect to qualified progress expenditures) apply.

(11) The site of the qualifying advanced coal project relating to a credit allocation may be changed only if the change is consistent with the objectives of the qualifying advanced coal project program, is requested by the taxpayer that received the credit allocation, and involves moving the project site to improve the potential to capture and sequester CO₂ emissions, reduce costs of transporting feedstock, and serve a broader customer base. The Service will not agree to a project site change if the dollar amount of tax credits allocated to the taxpayer under § 48A would increase as a result of the site change or if the project would not have been originally certified had such modification been included in the taxpayer’s application. In considering such modification, the Service will consult with DOE and any other relevant Federal agency.

(12) The § 48A Phase III credit allocated to the project will be forfeited if the taxpayer fails to satisfy the certification requirements in § 48A(e)(2) within 2 years from the date of acceptance of the application under this notice, or fails to place the project in service within 5 years of the date of issuance of the certification (as determined under section 6.03 of the notice).

(13) The taxpayer must notify the Service by letter of the date the project is placed in service within 90 days of that date.

.01 In General. An application for § 48A certification and a separate application for DOE certification must be submitted for each qualifying advanced coal project. If an application for DOE certification does not include all of the information required by section 5.02 of this notice, DOE may decline to accept the application. If an application for § 48A certification does not include all of the information listed in section 5.03 of this notice, the Service may decline to accept the application.

.02 Information Required in the Application for DOE Certification. An application for DOE certification must be sent to the address specified in Section C of Appendix B. The application must include all of the information requested in Appendix B to this notice and all of the following:

(1) The name, address, and taxpayer identification number of the taxpayer. If the taxpayer is a member of an affiliated group filing consolidated returns, also provide the name, address, and taxpayer identification number of the common parent of the group.

(2) The name and telephone number of a contact person.

(3) The name and address (or other unique identifying designation) of the qualifying advanced coal project.

(4) A statement specifying whether the project is an IGCC project or a project that uses another advanced coal-based technology.

(5) A statement specifying that the fuel input for the project is at least 75 percent coal (as defined in section 3.01 of the notice).

(6) The estimated total cost of the project and the estimated total qualified investment in the eligible property that will be part of the project.

(7) The amount of the qualifying advanced coal project credit requested for the project.

(8) A statement specifying the amount of credit the taxpayer is or will be requesting under § 48B for the project, if any.

(9) A statement specifying whether the project is a new electric generation unit (as defined in § 48A(c)(6)), a retrofit of an existing electric generation unit, or a repower of an existing electric generation unit.

(10) A statement specifying whether the project is entitled to priority for increased by-product utilization or a research partnership with an eligible educational institution (as defined in § 529(e)(5)) and, if entitled to priority, a statement identifying which of these priorities apply to the project. If priority results from a research partnership with an eligible educational institution, state the name(s) of the eligible institution.

(11) A statement specifying the percentage of total CO₂ emissions that the project will separate and sequester.

(12) A statement specifying the number and types of generators to be used in the project (for example, two combustion turbine generators and one steam turbine generator).

(13) The exact total nameplate generating capacity (as defined in section 3.02 of this notice) of the project.

(14) In the case of a project that will not achieve 99-percent removal of sulfur dioxide, a statement that the project is designed for the use of a feedstock substantially all of which is subbituminous coal and will achieve an emission level of not more than 0.04 pounds of sulfur dioxide per million Btu, determined on a 30-day average. For this purpose, a project is designed for the use of feedstock substantially all of which is subbituminous coal if at all times 80 percent or more of the cumulative total fuel input (coal and any other fuel input) used in normal plant operations (as defined in section 3.03(2) of this notice) of the project will be subbituminous coal. Such a project meets the requirements in § 48A(f)(1) by achieving either 99-percent removal of sulfur dioxide or an emission level of not more than 0.04 pounds of sulfur dioxide per million Btu, determined on a 30-day average. All other qualifying advanced coal projects must achieve 99-percent removal of sulfur dioxide.

(15) The following declaration: “Under penalties of perjury, I declare that I have examined this submission, including accompanying documents, and, to the best of my knowledge and belief, all of the facts contained herein are true, correct and complete.”

(16) The taxpayer’s signature. The taxpayer must sign and date the application, including the perjury declaration. A stamped, faxed or electronic signature will not be accepted. The person signing for the taxpayer must have personal knowledge of the facts. Further, the application, including the perjury declaration, must be signed by an officer on behalf of a corporation, a general partner on behalf of a state-law partnership, a member-manager on behalf of a limited liability company, a trustee on behalf of a trust, and the proprietor in the case of a sole proprietorship. If the taxpayer is a member of an affiliated group filing consolidated returns, the application, including the perjury declaration, must be signed by a duly authorized officer of the common parent of the group.

.03 Information To Be Included in the Application for § 48A Certification. An application for § 48A certification must include all of the following:

(1) The name, address, and taxpayer identification number of the taxpayer. If the taxpayer is a member of an affiliated group filing consolidated returns, also provide the name, address, and taxpayer identification number of the common parent of the group.

(2) The name and/or number of the IRS form that the taxpayer uses to file its Federal income tax return ( e.g., Forms 1120, 1065, etc.) and the ending month of the taxpayer’s tax year.

(3) The name, telephone number, and fax number of a contact person. For such person, attach a properly executed power of attorney, preferably on Form 2848, Power of Attorney and Declaration of Representative.

(4) One electronic version on a USB flash drive or a CD of the completed application for DOE certification submitted with respect to the project in accordance with section 5.02 of this notice.

(5) If § 48A Phase I credits or § 48A Phase II credits were allocated to the project, the estimated total cost and estimated total qualified investment of the project as represented in the application for the § 48A Phase I credits or § 48A Phase II credits, and the amount of the allocated § 48A Phase I credits or § 48A Phase II credits.

(6) The following declaration: “Under penalties of perjury, I declare that I have examined this submission, including accompanying documents, and, to the best of my knowledge and belief, all of the facts contained herein are true, correct and complete.”

(7) The taxpayer’s signature. The taxpayer must sign and date the application, including the perjury declaration. A stamped, faxed or electronic signature will not be accepted. The person signing for the taxpayer must have personal knowledge of the facts. Further, the application, including the perjury declaration, must be signed by an officer on behalf of a corporation, a general partner on behalf of a state-law partnership, a member-manager on behalf of a limited liability company, a trustee on behalf of a trust, and the proprietor in the case of a sole proprietorship. If the taxpayer is a member of an affiliated group filing consolidated returns, the application, including the perjury declaration, must be signed by a duly authorized officer of the common parent of the group.

.04 Instructions and Address for Filing § 48A Application. There is no user fee for these applications. The application for § 48A certification meeting the requirements of section 5.03 of this notice should be marked: “SECTION 48A APPLICATION FOR CERTIFICATION.” A taxpayer may submit the application by U.S. mail, private delivery service, or hand delivery service to:

The application may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. central time.

.01 In General. A taxpayer shall have 2 years from the date of acceptance of the § 48A application during which to provide evidence to the Service that the criteria set forth in § 48A(e)(2) have been met. If such evidence is not timely received, the allocated Phase III credits are forfeited. A project shall be eligible for certification only if (i) the taxpayer has received all Federal and State environmental authorizations or reviews necessary to commence construction of the project, and (ii) the taxpayer, except in the case of a retrofit or repower of an existing generation unit, has purchased or entered into a binding contract for the purchase of the main steam turbine or turbines for the project, except that this contract may be contingent upon receipt of a certification under § 48A(d)(2). Section 48A(d)(2)(E) provides that a taxpayer that receives a certification has 5 years from the date of issuance of the certification to place the project in service and that the certification is void if the project is not placed in service by the end of that 5-year period. If evidence that the project was placed in service is not timely received, the allocated Phase III credits are forfeited.

.02 Requirements for Certification. Within 2 years from the date that the Service accepts the taxpayer’s application for § 48A certification under this notice, the taxpayer must submit to the Service an electronic version on a USB flash drive or a CD of the documentation establishing that the certification requirements of section 6.01 of this notice are satisfied. The documentation must be formatted in one of the following software applications: Microsoft Word^tm 2007 or later edition; Microsoft Excel^tm 2007 or later edition; or Adobe Acrobat^tm PDF 7.0 or later edition. The taxpayer should mark the package “SECTION 48A CERTIFICATION REQUIREMENTS” and send it to the address listed in section 5.04 of this notice.

(1) The documentation establishing that the certification requirements of section 6.01 of this notice are satisfied must be accompanied by the following written declaration: “Under penalties of perjury, I declare that I have examined this submission, including accompanying documents, and, to the best of my knowledge and belief, all of the facts contained herein are true, correct and complete.”

(2) The taxpayer’s submission (the documentation and the perjury declaration) must be signed and dated by the taxpayer. A stamped, faxed or electronic signature will not be accepted. The person signing for the taxpayer must have personal knowledge of the facts. Further, the submission must be signed by an officer on behalf of a corporation, a person authorized under state law to bind the entity on behalf of an entity treated as a partnership for federal tax purposes (for example, a general partner in a state-law partnership), a trustee on behalf of a trust, and the proprietor in the case of a sole proprietorship. If the taxpayer is a member of an affiliated group filing consolidated returns, the submission also must be signed by a duly authorized officer of the common parent of the group.

.03 Service’s Action on Certification. After receiving the material described in section 6.02 of this notice, the Service will decide whether or not to certify the project and will notify the taxpayer, by letter, of that decision. If the Service certifies the project, the date of this letter is the date of issuance of the certification.

.01 Significant Change in Plans. The Service must be informed if the plans for the project change in any significant respect from the plans set forth in the applications for § 48A and DOE certification. Except as otherwise provided under § 48A(h), any significant change to the plans set forth in the applications will have the following effects if the Service is informed of the change after the date on which the applications for DOE certification were due for the allocation round under section 4.02(8) of this notice:

(1) The Service will give no further consideration to the project; and

(2) Any acceptance provided by the Service and any allocation or certification based on that acceptance will be void.

.02 Recapture of the § 48A Phase III credits. Section 48A Phase III credits are subject to the recapture rules of § 50. Section 50(a)(1) provides, generally, for recapture of the investment credit if, during any taxable year, investment tax credit property is disposed of or otherwise ceases to be investment credit property with respect to the taxpayer before the close of the recapture period. The recapture period under § 50(a) is the 5-year period beginning on the date the property is placed in service.

(1) The recapture rules under § 50 will apply for all events that trigger recapture of the credits allowed under § 48A, including a failure to attain or maintain the separation and sequestration requirements of § 48A(e)(1)(G).

(2) For purposes of determining whether a project meets the requirements of § 48A(e)(1)(G), the amount of the project’s total CO₂ emissions and the amount of CO₂ separated and sequestered will be measured on an annual basis during normal plant operations (as defined in section 3.03(2) of this notice). An annual period other than the taxpayer’s taxable year may be used for these purposes if the same period is consistently used. If a period other than the taxable year is used, any failure to meet the requirements of § 48A(e)(1)(G) will be treated as occurring in the taxable year that includes the last day of the annual period in which the failure occurs.

.03 Effect of an Acceptance, Allocation, or Certification. An acceptance, allocation, or certification by the Service under this notice is not a determination that a project qualifies for the qualifying advanced coal project credit under § 48A. The Service may, upon examination, determine that the project does not qualify for this credit.

.04 No Right to a Conference or Appeal. A taxpayer does not have a right to a conference relating to, or a right of appeal with respect to, any decision made under this notice (including the acceptance or rejection of the application for DOE or § 48A certification, the amount of credit allocated to a project, or whether or not to certify a project) to any official of the Service.

.05 DOE Debriefings. Although a taxpayer does not have a right to a conference relating to any matters under this notice, DOE will offer debriefings to all applicants that submitted an application for DOE certification. This debriefing will be held by DOE after the Service has accepted the applications for § 48A certification (as determined under this notice). The sole purpose of the debriefing is to enable applicants to develop better proposals in future allocation rounds, if any, by providing DOE’s review of the strengths and weaknesses of their applications for DOE certification. All requests for debriefings must be submitted to DOE within 30 days of receipt of the Service’s decision to accept or reject the application.

Under the provisions of this notice and the closing agreement set forth in Appendix A to this notice, the § 48A Phase III credits allocated in the 2012-2013 round under section 4 of this notice will be reduced or forfeited in certain situations. A taxpayer must notify the Service of the amount of any required reduction or forfeiture required under the closing agreement. This notification must be sent to the appropriate address listed in section 5.04 of this notice.

.01 Section 48A(b)(3) provides that rules similar to the rules of § 46(c)(4) and (d) (as in effect on the day before the enactment of the Revenue Reconciliation Act of 1990) shall apply for purposes of § 48A. Former §§ 46(c)(4) and 46(d) provided the rules for claiming the investment credit on qualified progress expenditures (as defined in former § 46(d)(3)) made by a taxpayer during the taxable year for the construction of progress expenditure property (as defined in former § 46(d)(2)).

.02 In the case of self-constructed property (as defined in former § 46(d)(5)(A)), former § 46(d)(3)(A) defined qualified progress expenditures to mean the amount that is properly chargeable (during the taxable year) to capital account with respect to that property. With respect to a qualifying advanced coal project that is self-constructed property, amounts paid or incurred are chargeable to capital account at the time and to the extent they are properly includible in computing basis under the taxpayer’s method of accounting (for example, after applying the requirements of § 461, including the economic performance requirement of § 461(h)).

.03 To claim the qualifying advanced coal project credit on the qualified progress expenditures paid or incurred by a taxpayer during the taxable year for construction of a qualifying advanced coal project, the taxpayer must make an election under the rules set forth in § 1.46-5(o) of the Income Tax Regulations. A taxpayer may not make the qualified progress expenditures election for a qualifying advanced coal project until the taxpayer has received an acceptance letter for the project under this notice.

.04 If a taxpayer makes the qualified progress expenditures election pursuant to section 9.03 of this notice, rules similar to the recapture rules in § 50(a)(2)(A)-(D) apply. In addition to the cessation events listed in § 50(a)(2)(A), examples of other events that will cause the project to cease being a qualifying advanced coal project are:

(1) Failure to satisfy any of the certification requirements in § 48A(e)(2) within 2 years from the date that the Service accepted the taxpayer’s application for § 48A certification for the project under this notice;

(2) Failure to receive a certification for the project in accordance with section 6.03 of this notice;

(3) Failure to place the project in service within 5 years from the date of issuance of the certification under section 6.03 of this notice;

(4) A significant change to the plans for the project as set forth in the applications for § 48A and DOE certification if, under section 7.01 of this notice, the Service’s acceptance of the project is void as a result of the change; or

(5) Failure of the project, at any time during the recapture period (as provided in § 50(a)), to attain or maintain the separation and sequestration of CO₂ emissions required by § 48A(e)(1)(G).

.01 Announcement. Section 48A(d)(5) provides that the Secretary shall, upon making a certification under § 48A(d), publicly disclose the identity of the applicant and the amount of the credit certified with respect to such applicant. Accordingly, the Service intends to publish the results of the allocation process, and disclose the following information in the event a qualifying advanced coal project credit is allocated to the taxpayer’s project: (i) the name of the taxpayer and (ii) the amount of the qualifying advanced coal project credit allocated to the project.

.02 In general. An application for DOE certification, an application for § 48A certification, any other documentation submitted by the taxpayer pursuant to section 6.02 of this notice, and any documentation generated by the Service or DOE as part of this process are return information subject to § 6103. Except for the items of information that § 48A(d)(5) requires the Service to make available to the public, the other material remains the applicant’s confidential return information, which is exempt under 5 USC § 552(b)(3) and Code § 6103 from disclosure under the Freedom of Information Act (“FOIA”). Other FOIA exemptions may also apply. For example, FOIA includes exemptions for trade secrets and commercial or financial information (5 USC § 552(b)(4)), as well as personal information (5 USC § 552(b)(6)).

.03 FOIA requests. Anyone interested in submitting a request for records under the FOIA with respect to the qualifying advanced coal project program under § 48A should direct a request that conforms to the Service’s FOIA regulations, found at 26 C.F.R. § 601.702, to the following address:

Notice 2009-24, 2009-16 I.R.B. 817, is amplified.

This notice is effective upon publication in the Internal Revenue Bulletin.

The collection of information contained in this notice has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545-2003.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.

The collections of information in this notice are in sections 4, 5, 6, 7, 8, and Appendix B of this notice. This information is required to obtain an allocation of qualifying advanced coal project credits. This information will be used by the Service to verify that the taxpayer is eligible for the qualifying advanced coal project credits. The collection of information is required to obtain a benefit. The likely respondents are business or other for-profit institutions.

The estimated total annual reporting burden is 550 hours.

The estimated annual burden per respondent varies from 70 to 150 hours, depending on individual circumstances, with an estimated average of 110 hours. The estimated number of respondents is 5.

The estimated annual frequency of responses is on occasion.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. § 6103.

The principal author of this notice is Jennifer Bernardini of the Office of Associate Chief Counsel (Passthroughs & Special Industries). For further information regarding this notice, contact Ms. Bernardini at (202) 622-3110 (not a toll-free call).