The Internal Revenue Service (IRS) recently released Notice 2014-46, further clarifying Notices 2013-29 and 2013-60, regarding (i) how to satisfy the Physical Work Test and (ii) the effect of various types of transfers with respect to a facility after construction has begun. The Notice also modifies the application of the five percent Safe Harbor. Notice 2014-46 clarifies that a fully- or partially-developed facility may be transferred without losing its qualification under the Physical Work Test or the Safe Harbor for purposes of the PTC or the ITC.
For example, a taxpayer may acquire a facility (that consists of more than just tangible personal property) from an unrelated developer that had begun construction of the facility prior to January 1, 2014, and thereafter the taxpayer may complete the development of that facility and place it in service. The work performed or amount paid or incurred prior to January 1, 2014, by the unrelated transferor developer may be taken into account for purposes of determining whether the facility satisfies the Physical Work Test or Safe Harbor.
