On June 10, the IRS issued Notice 2016-36, available at https://www.irs.gov/pub/irs-drop/n-16-36.pdf (the “Notice”), which updates and expands the existing safe harbor[1] pursuant to which the transfer of an intertie (or reimbursement for the cost thereof) to a regulated public utility will be treated as a contribution to the capital of a corporation, and not a contribution in aid of construction (“CIAC”) and, accordingly, will not result in taxable income to the utility.[2] Utilities often require developers of new projects to transfer interties as a condition to allowing the developers to transmit the power from their projects over the utility’s lines.
The full post is available at Notice 2016-36 Intertie Blog Post 6-15-16,
[1] The existing safe harbor is provided under a series of notices issued by the IRS between 1988 and 2001. See Notice 2001-82, 2001-2 C.B. 619; Notice 90-60, 1990-2 C.B. 345; and Notice 88-129, 1988-2 C.B. 541.
[2] See I.R.C. §§ 118(a) and (b) (contributions to the capital of a corporation are excluded from taxable income; the term “contribution to capital” does not include any CIAC).