Submitted by Dave

The last couple of years have seen increased inflationary pressures. There are few industries that are hit by this harder than the construction and real estate industries. While many consumers started to see this in 2021 and 2022 as gas and housing prices started increasing, the construction industry started feeling the pressure much earlier. Supply chain disruptions due to COVID, lumber, gas, and other commodities have been increasing at an extraordinary rate, leading contractors and their advisors to question where to generate additional cash flow to offset these pressures.

One place to look is the tax code. Specifically looking at incentives designed for contractors, designers, and other construction industry professionals. Some of the lesser-known incentives for contractors relate to the Energy Policy Act of 2005 (EPACT). Under this act multiple incentives were put in place to incentivize energy efficient construction practices. While most of these provisions were designed to be temporary under EPACT, many have been extended multiple times, or made permanent. By maximizing these incentives individuals in the construction industry can generate additional cash flow to offset inflationary pressures.

The first area to look at is the 179D Energy Efficient Building Deduction. This deduction of up to $1.80/sf was originally designed for the owners of energy efficient commercial properties. When a property is built with efficient lighting, HVAC, and insulation the owner can qualify for this deduction which reduces their depreciable basis in the asset. In order to qualify the building needs to be modeled to show that the energy consumption is 50% of a standard building designed to the ASHRAE 90.1-2007 regulations. This can be done on new construction property or renovations that increase the energy efficiency to the desired level.

Contractors might be wondering “what does this have to do with me”? While it is wonderful that the owner can receive a deduction for the installation of energy upgrades, how would a contractor or engineer see any benefits? The answer to that question lies in the fact that properties owned by federal, state, or local governments can transfer their deduction to the designer of the energy efficient property. Meaning that if a construction company designs HVAC and lighting upgrades for a school, that school can transfer the deduction back to the construction company. It is important to note that the transfer needs to be done to a company or individual involved in the design and that “a person who merely installs, repairs, or maintains the property is not a designer.” However, an “architect, engineer, contractor, environmental consultant, or energy services provider” that works on “technical specifications” is considered a designer. This means that a contractor that assists in writing the specifications or design of the property can legitimately claim this deduction.

The 179D deduction was originally slated to expire after a few years. However, Congress extended the rules multiple times. Then in the Consolidated Appropriations Act, 2021 the rule was made permanent, meaning that contractors can rely on this deduction for designs being completed in 2022 and beyond.

Another energy incentive that contractors need to be aware of is the 45L, Energy Efficient Home Credit. While this credit did expire at the end of 2021, eligible contractors can still claim this deduction on amended returns for prior years. This credit, like the 179D deduction, requires new construction to exceed certain standards. However, unlike the 179D deduction, this credit is only for newly constructed or renovated residential facilities of three stories or less. More importantly, this credit is designed not for the final owner, but for the developer who owns the property during the development cycle.

While the 179D deduction is based on square footage, the 45L credit is a credit of up to $2,000 per residential unit. This means that a developer that constructs a qualifying apartment complex can take the credit on each of the units in the property. A 300-unit qualifying apartment complex could see a credit as high as $600,000. And as opposed to the 179D deduction, this is a credit, meaning a dollar-for-dollar reduction in tax liability. As noted above, contractors need to be aware that this credit has expired, but there is a good chance that it will be extended in tax extenders legislation later in 2022.

With inflationary pressure at the highest in 20 years, contractors need to be aware of any cash flow opportunities available to them. By looking at these and other tax incentives, cash can be generated by reducing tax liability. It is critical that contractors and their CPAs be aware of all these incentives when preparing the 2021 tax returns and planning for future years.