Brownfields Expensing Tax Incentive

Designed to spur investment in blighted properties and assist in revitalizing communities, the federal brownfields tax incentive is a critical tool in brownfields cleanup and redevelopment efforts. The tax incentive encourages cleanup and redevelopment of brownfields by allowing taxpayers to reduce their taxable income by the cost of eligible cleanup expenses in the year they are incurred. Cleanup costs at eligible properties are fully deductible in the year they are incurred, rather than capitalized and spread over a period of years. Through such favorable tax treatment of cleanup costs, the incentive program aims to level the economic playing field between greenfield and brownfield development. Both large- and small-scale cleanup and redevelopment activities can benefit from the use of the brownfields expensing tax incentive. From large office buildings to small commercial strips, projects of varying sizes have successfully integrated the tax incentive as a key part of their financing packages. To create consistency in tax and accounting procedures throughout the life of the project, the tax incentive is most beneficial to property owners when considered in the early stages of planning the cleanup and redevelopment process.

How the Program Works: By using the federal brownfields tax incentive, environmental cleanup costs are fully deductible in the year that they are incurred, rather than capitalized over time (up to 30 years in some cases). There are three requirements to qualify:

• The property must be owned by the taxpayer incurring the eligible cleanup expenses, and be used in a trade or business or for the production of income.
• Hazardous substances or petroleum contamination must be present or potentially present on the property.
• Taxpayers must obtain a statement from a designated state agency (typically, the state’s environmental agency overseeing the state’s voluntary cleanup program (VCP)) that confirms the site is a brownfield and therefore eligible for the tax incentive. Participation in a state VCP satisfies this requirement. 

In December 2006, Congress broadened the definition of hazardous substances to include petroleum products for purposes of the tax incentive. This change qualified previously ineligible sites for the tax incentive program, including thousands of former gas stations and underground storage tanks (UST). Properties listed or proposed for listing on EPA’s National Priorities List (NPL) continue to be ineligible for the brownfields expensing tax incentive. To be eligible for the brownfields expensing tax incentive, costs of environmental cleanup must be associated with activities that control the release or disposal of a hazardous substance or petroleum contamination, or activities that abate the threat of a release or disposal of a hazardous substance or petroleum contamination. Costs for activities, such as implementation and monitoring of institutional controls (for example, construction of access roads that serve as caps for contaminated soils), demolition and removal of contaminated materials, and state VCP oversight fees also are all eligible expenditures. Expenses associated with site assessment and investigation activities at a qualified contaminated site also are eligible for the incentive program, if conducted in connection with the abatement or control of hazardous substances or petroleum contamination.

The steps to qualify for and claim the tax incentive are simple and straightforward:

• The site owner determines that a hazardous substance or petroleum contamination is present or potentially present on the property and begins planning for a cleanup and redevelopment project.
• The site owner contacts the designated state agency to inquire about procedures for obtaining a statement that confirms the property is a brownfield site. The owner then provides the agency with documentation that shows whether hazardous substances or petroleum contamination is present or may be potentially present on the property.
• The designated state agency verifies submitted information and provides the site owner with a statement of eligibility for the tax incentive. In most cases, the review process is very quick. (The Congressional Research Service found that virtually every state was able make a determination in less than a month, and three states, New Jersey, Texas, and Wisconsin, turned around requests in three days or less.) Once state confirmation is issued, the Internal Revenue Service (IRS) considers it valid for the life of the tax incentive.
• To claim the deduction, small business taxpayers write “Section 198 Election” on their income tax return next to the line where the deduction is claimed. Companies or partnerships with more than $10 million in assets fill out Schedule M-3. 

Advantages for Brownfields Site Redevelopers: Integrating the tax incentive into a project’s financing strategy can enhance project cash flow by offsetting cleanup costs. Prior to the availability of a tax incentive, buyers purchased a contaminated property at its impaired value and then capitalized any cleanup costs over a period of many years. Using the tax incentive, on the other hand, provides brownfields developers an added income boost during the year they invest in cleanup. Small businesses in the environmental cleanup and consulting sector have successfully completed brownfields cleanup and redevelopment projects with the help of the tax incentive and, as a consequence, have encouraged other businesses to seek out brownfields sites for redevelopment. The tax expensing incentive also can be used to leverage money targeted for construction. For example, in a situation where contaminated soil is capped with a parking lot, the costs related to the soil remediation and cap construction are expensible as cleanup costs.

Limitations: The Brownfields Tax Incentive is not frequently used, despite its great potential to support property cleanup and reuse. A key reason for the limited use of the incentive may be uncertainty over its availability over an extended period of time. The tax provision has never had long-term authorization and Congress allowed the provision to lapse five times since it was first introduced in 1997. However, retroactive reauthorizations allowed coverage to be available throughout the entire time period from the incentive’s introduction in 1997 until today. In December 2010, the incentive was reauthorized for two years and is retroactive to January 1, 2010. The incentive will remain in effect through December 31, 2011.

Site owners may want to consult their state program or a tax attorney to determine activities that may be considered qualified expenditures. If a taxpayer decides to claim the incentive in future years because cleanup was completed during one of the periods in which the incentive’s authority lapsed, an amended tax return can be filed up to three years after the original return was filed. An amended tax return must be filed within two years if a refund is sought.

In addition, the incentive is subject to “recapture,” meaning that the gain realized from expensing is taxed as ordinary income rather than at lower capital gains rates when the property is later sold. This aspect of the tax incentive may discourage its use for projects where the developer is not the end-user. Details regarding how long a property must be held before the “recapture” provision is no longer applicable are not defined in statute or Treasury rulings.

ADDITIONAL INFORMATION
The U.S. EPA Brownfields Tax Incentive web site contains background information, program descriptions, frequently asked questions, case studies, and historical information. It is available at: http://www.epa.gov/swerosps/bf/tax/index.htm. Designated state agency contacts are available at: http://www.epa.gov/swerosps/bf/stxcntct.htm.