Now get up to $5.00/sf IRA Drastically Enhances §179D! IRA Enhances §179D to Include Non-Profits!

About Section 179D Tax Deduction

Starting in 2023, the Inflation Reduction Act has significantly expanded the §179D Tax Deduction program, substantially increasing the incentive to an impressive $5.00 per square foot (plus applicable inflation adjustments). Section 179D of the Internal Revenue Code (IRC) is a valuable tax incentive designed to reward energy-efficient practices in commercial buildings. Originally introduced as part of the 2005 Energy Policy Act (EPACT), this provision allows for a tax deduction of up to $1.88 per square foot, factoring in inflation adjustments.

The 179D Tax Deduction is specifically applicable to commercial buildings that make substantial reductions in their energy consumption related to interior lighting, heating, cooling, and building envelope improvements. Qualifying buildings can now enjoy even more substantial benefits, for HVAC improvements, building envelope enhancements, and lighting system upgrades, all contributing to a total potential deduction of up to $5.00 per square foot (plus applicable inflation adjustments), thanks to the recent expansion brought about by the Inflation Reduction Act of 2022.

WOULD YOU BENEFIT FROM 179D?

Post IRA – §179D Tax Deduction

(Placed in Service 01/01/2023 or Later)

  • Up to $5.00/SF

    Plus Inflation Adjustment add-on

  • Partial- Between $0.50-$5.00/SF

    Partial Deductions Available Based on Energy Qualifications and Labor Req.

  • Labor Requirments for Increased Benefit

    5x Multiplier in effect for compliance with Prevailing Wage and Apprenticeship Requirements

  • Tax-Exempt Organizations

    Expanded to include ALL tax-exempt organizations

  • Whole Building Analysis Req.

    Can no longer use partial system analysis for qualification

  • Re-certify Buildings for New Energy Improvements

    If new capital expenditure occurs private sector can be recertified every 3 years and tax-exempt every 4 years

  • ASHRAE Standards

    ASHRAE 90.1-2007 is the standard through 12/31/2026, increases to 90.1 2019 after 1/1/2027

  • Additional Qualification Methodologies

    Retrofits may use Energy Use Intensity methodology (Pre and Post Retrofit Measurement and Verification)

LEGACY – §179D TAX DEDUCTION

(Placed in Service Before 12/31/2022)

  • UP TO $1.80/SF

    Plus Inflation Adjustment add-on

  • Partial- $0.60/sf per Category (Lighting, HVAC, Bldg. Envelope)

    Partial Ded. Avail. depending on energy savings per category (Lighting, HVAC, Bldg Envelope)

  • No Labor Requirements

    Labor Requirements do not affect legacy §179D Tax Deduction Amounts

  • Government Bldgs. Only

    Only Government Building Owners may Allocate §179D to designers.

  • Whole Bldg. or Partial Category

    Can analyze whole buildings or individual categories. (Lighting/HVAC/Bldg Envelope) for partial qual.

  • Previously Limited to $1.80/sf

    Prior to IRA changes §179D was only available up to $1.80/sf over the life of a building.

  • ASHRAE Standards

    ASHRAE 90.1-2001 through 12/31/2014 and 90.1 2007 between 1/1/2015 and 12/31/2026

  • Interim Lighting Rule Available

    A simplified methodology for the lighting category maybe used, with additional partial qualification opportunities.

LEGACY – Requirements

(Placed in Service Before 12/31/2022)

Certification Requirements

Section 179D requires the taxpayers building to meet or exceed a 50% savings in energy and power costs when compared to a theoretical ASHRAE 90.1-2007 baseline building. If the target of 50% savings is met, the building will qualify for $1.80/SF (capped at the costs of the capitalized improvements).

For buildings that do not meet the 50% savings, the tax provision also allows for partially qualifying systems.

  1. $0.60/SF for HVAC systems meeting 15% savings
  2. $0.60/SF for Lighting systems meeting 25% savings
  3. $0.60/SF for Building Envelope systems meeting 10% savings

Additionally, the Interim Lighting Rule allows for lighting systems to qualify for 30¢-60¢per square foot for a 25%-40% savings in Lighting Power Density (LPD) compared to ASHRAE 90.1-2007 LPD standards.

Certification Requirements

  • The energy and power cost savings calculations must be performed with a Dept. of Energy approved software.
  • Field inspections must be performed after the energy-efficient property has been placed into service in accordance with NREL Guidelines
  • Certifications and inspections must be completed by a qualified Engineer or Contractor in the Jurisdiction of the qualifying building.
  • The taxpayer shall maintain the certification in their records to establish the entitlement to, and amount of, the deduction claimed.

Government Owned Buildings

Governments are non-taxable entities and are unable to benefit from the section 179D tax incentive. Because of this, the IRS established guidance in 2008 allowing governments to allocate the deduction to the parties involved in the design of the energy-efficient systems. In addition to the certification, the taxpayers receiving an allocated deduction must retain an “Allocation Letter” in their records.

Allocation Letter

On April 7, 2008, the IRS published Notice 2008-40 providing guidance for the Allocation of the deduction to designers. The primary points addressed in the allocation are:

  • Verifying the parties’ involvement in the project
  • Cost of property installed
  • The year the property was placed into service
  • The amount of the 179D deduction being allocated

Click here to see the full IRS Publication

What Buildings Qualify?

  • Commercial Buildings of any type
  • Residential Buildings of 4 Stories or more
  • Government-owned buildings
  • Parking Garages

Who can benefit?

  • For-profit owners of commercial buildings
  • For-profit owners of Apartment Buildings (4 or more stories)
  • Designers of Government Buildings
    •  Architects
    •  Engineers
    •  ESCO’s
    •  Energy Consultants

Time Frame

For Commercial Building Owners, the section 179D deduction may be claimed for new construction or improvements placed into service after January 1, 2006. Form 3115, Change in Accounting Method, may be used to retroactively take the deduction in current year tax filings and avoid amending previous year returns.

The designers of government-owned buildings are able to take the 179D deduction for all “open tax years” (generally 3 years from the date of filing). For property placed into service in previous years, the taxpayers are required to amend their returns.

Changes coming under the Inflation Reduction Act of 2022 (Effective for energy-efficient commercial buildings placed in service after 1/1/2023)

The current version of §179D will remain in effect for properties placed in service in 2022, currently, you can achieve up to $1.88/SF (expected to increase up to  $2.00/SF with current inflation adjustment provisions that are in place), the major improvements to the §179D are the following:

  • Energy-efficient commercial buildings placed in service after January 1, 2023, will have the opportunity to qualify under IRA provisions and increase the §179D from $1.88/SF to $5.00/SF. This is exciting news for the energy-efficient commercial building industry
  • Designers of energy-efficient commercial buildings, such as Architects, Engineers, Design Build Contractors, Energy Service Companies, and Performance Contractors, can now have tax-exempt building owners, including tribal governments to also allocate the §179D Tax Deduction to them in addition to government-owned buildings.
  • A special provision for performance-based qualification methodology will be enacted for retrofitting commercial buildings.
  • Commercial buildings will be able to be certified and claimed once every three years if privately owned and once every four years if government-owned and allocated to the designer

Post IRA – Requirements

(Placed in Service 01/01/2023 or Later)

In general, barring any changes or notices/guidance from the U.S. Treasury Department, the certification requirement for §179D Tax Deduction will be the same as they have always been with the following adjustments.

  • Energy-efficient commercial buildings placed in service after January 1, 2023, will have the opportunity to qualify under IRA provisions and increase the §179D from $1.88/SF to $5.00/SF. This is exciting news for the energy-efficient commercial building industry
  • Designers of energy-efficient commercial buildings, such as Architects, Engineers, Design Build Contractors, Energy Service Companies, and Performance Contractors, can now have tax-exempt building owners, including tribal governments to also allocate the §179D Tax Deduction to them in addition to government-owned buildings.
  • A special provision for performance-based qualification methodology will be enacted for retrofitting commercial buildings.
  • Commercial buildings will be able to be certified and claimed once every three years if privately owned and once every four years if government-owned and allocated to the designer

The qualification criteria changes that will be effective for properties placed in service from January 1st, 2023 through December 31, 2032, are as follows:

  • For projects meeting the prevailing wage and apprenticeship requirements, energy reduction standards will change as follows; 50% reduction against the ASHRAE standard will now be 25% and will yield a §179D Tax Deduction of $2.50/SF and for every 1% of additional reduction above 25% it will provide an additional $0.10/SF of deduction up to $5.00/SF
  • For buildings that DO NOT MEET the prevailing wage and apprenticeship requirements, energy reduction standards will change as follows; 50% reduction against the ASHRAE standard will now be 25% and will yield a §179D Tax Deduction of $0.50/SF and for every 1% of additional reduction above 25% it will provide an additional $0.02/SF of deduction up to $1.00/SF
  • ASHRAE standards to be used for qualifications shall be the ASHRAE standard that was affirmed four years prior to the dates on which the commercial building property was placed into service.
  • A New qualified retrofit plan for actual performance-based qualification will be in place. Actual guidelines on how this program will work will be released in the future by the DOE/Secretary

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Additional Resources

  1. Energy Policy Act of 2005: Original bill enacting Section 179D
  2. Title 26 USCS §179D: Original Tax Law
  3. 2006-26 IRB; Notice 2006-52; Initial IRS guidance setting forth the process allowing building owners to take the 179D Deduction; including certification requirements, inspections, and energy modeling guidelines.
  4. 2008-14 IRB; Notice 2008-40: Allows Government buildings to allocate to designers, expands on the specific technologies the DOE must approve, adjustments to the partially qualifying percentages (10% for building envelope), also extends 179D to the end of 2008.
  5. 2011-04 IRB; Rev. Proc. 2011-14: Primarily allows for the use of Form 3115, Change in Accounting Method. Allows taxpayers to take 179D deductions without having to amend prior year tax returns. For both private and public sector buildings.
  6. 2012-17 IRB; Notice 2012-26; Adjusts the partially qualifying percentages to 15% for HVAC  and 25% for Lighting.
  7. 2012-41 IRB; Rev. Proc. 2012-39: Clarifies that designers taking the 179D deduction for Government-owned buildings may not use Form 3115, Change in Accounting Method.
  8. Public Law 110-343: Emergency Economic Stabilization Act of 2008: Extends 179D through the end of 2013.
  9. Memorandum; AM2010-007: Addresses the application of the 179D deduction to flow through entities.
  10. Public Law 113-295: Tax Increase Prevention Act of 2014; Extends 179D through the end of 2014.
  11. NREL /TP-550-40467: Energy Savings Modeling and Inspection Guidelines for Commercial Building Federal Tax Deductions
  12. Department of Energy List of Approved Energy Modeling Software 
  13. IRS Form 3115, Change in Accounting Method 
  14. Public Law 114-113: Consolidated Appropriations Act, 2016; Extends 179D through the end of 2016 and increases the ASHRAE 90.1-2001 efficiency standards to ASHRAE 90.1-2007 for property placed into service after January 1st, 2016
  15. Public Law No: 115-123: Bipartisan Budget Act of 2018; Extends 179D through the end of 2017.
  16. Public Law No: 116-94: the Further Consolidated Appropriations Act, 2020; Extends Section 179D retroactively from January 1st, 2018 through December 31st, 2020.
  17. Memorandum AM-2018-005: Addresses Eligibility for Allocation of the Deduction for Energy Efficient Commercial Building Property under Section 179D(d)(4).
  18. Consolidated Appropriations Act, 2021: Makes 179D permanent and extends the energy-efficient commercial building tax deduction.
  19. 2021-48 IRB; Rev. Proc. 2021-45: This revenue procedure sets forth inflation-adjusted deduction rates for property placed into service in both 2021 and 2022. The rate increases range from 1.1% to 5%.
  20. Public Law No: 117-169: The Inflation Reduction Act of 2022; expands §179D and §45L drastically, increasing the §179D Tax deduction amount up to $5.00 per square foot, adding new methodology for certification of the deduction, including benefit for non-profits and tribal governments, in addition to increasing the ASHRAE Standards and adding a Prevailing Wage and Apprenticeship requirements.

  21. 2022-61 IRB: Notice 2022-61: Prevailing Wage and Apprenticeship Initial Guidance under Section 45(b)(6)(B)(ii) and Other Substantially Similar Provisions

  22. 2023-01: Announcement Announcement Updating the Reference Standard 90.1 for Section 179D allowing the use of ASHRAE 90.1 through 2026
  23. Tax Court Case: Michael Johnson, et al v. Commissioner, 160 T.C. No. 2.:  In a T.C. Opinion, the Tax Court has held that a heating, ventilation and air conditioning (HVAC) contractor is entitled to a $305k IRC Section 179D (deficiency amount) deduction because the HVAC system the company installed in a Veterans Administration (VA) building constituted “energy efficient commercial building property” under IRC Section 179D(c)(1) and a VA official had properly allocated the available IRC Section 179D deduction to the HVAC contractor.