14 June 2016 External T.I. 2016-0635031E5 - Geothermal Energy - Tax Benefits

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: Tax benefits available to the geothermal energy industry in particular and the renewable/conservation energy industries in general.

Position: Identification and explanation of tax benefits available to the geothermal energy industry in particular and rules governing renewable energy industries in general.

Reasons: Subparagraph (d)(vii) of Class 43.1; subclause (d)(i)(A)(II) of class 43.1, Schedule II; Technical Guide to Class 43.1 and 43.2; Technical Guide to Canadian Renewable and Conservation Expense (CRCE).

XXXXXXXXXX							Veronica Pinero, LL.D.
								(613) 670-9045
								2016-063503
June 14, 2016

Dear XXXXXXXXXX:

Re: Tax Benefits Available to the Geothermal Energy Industry

This letter is in response to your email dated March 1, 2016, where you requested our views on the tax benefits available to the geothermal energy industry and whether these benefits include the foreign resource expense.

OUR COMMENTS

This technical interpretation provides general comments about the provisions of the Income Tax Act (the “Act”) and related legislation. It does not confirm the income tax treatment of a particular situation involving a particular taxpayer, but it is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R7, Advance Income Tax Rulings and Technical Interpretations.

A. Accelerated Capital Cost Allowance - Class 43.1 and Class 43.2

Under Class 43.1 and Class 43.2 in Schedule II of the Income Tax Regulations (the “Regulations”), the capital costs of certain property that generates energy by using renewable energy sources or fuels from waste, or conserves energy by using fuel more efficiently are eligible for accelerated capital cost allowance (“CCA”). Under Class 43.1, eligible equipment may be written-off at a rate of 30 percent per year on a declining balance basis. In general, equipment that is described in Class 43.1, but is acquired after February 22, 2005 and before year 2020 may be written-off at a rate of 50 percent per year on a declining balance basis under Class 43.2. Without these accelerated write-offs, many of these assets would be depreciated for income tax purposes at annual rates of between 4 and 30 percent.

1. Geothermal Energy Industry

Subparagraph (d)(vii) of Class 43.1 contains specific provisions applicable to the geothermal energy industry.

Subclause (d)(i)(A)(II) of Class 43.1 contains provisions that may be relevant to the geothermal energy industry.

I. Subclause (d)(vii) of Class 43.1

Subparagraph (d)(vii) of Class 43.1 reads as follows:

and property, other than reconditioned or remanufactured equipment, that would otherwise be included in another Class in this Schedule

(d) that is

…

(vii) equipment used by the taxpayer, or by a lessee of the taxpayer, primarily for the purpose of generating electrical energy solely from geothermal energy, including such equipment that consists of piping (including above or below ground piping and the cost of drilling a well, or trenching, for the purpose of installing that piping), pumps, heat exchangers, steam separators, electrical generating equipment and ancillary equipment used to collect the geothermal heat, but not including buildings, transmission equipment, distribution equipment, equipment designed to store electrical energy, property otherwise included in Class 10 and property that would be included in Class 17 if that Class were read without reference to its subparagraph (a.1)(i),

Subparagraph (d)(vii) of Class 43.1 requires that the equipment be used by the taxpayer, or by a lessee of the taxpayer, primarily for the purpose of generating electrical energy solely from geothermal energy. Whether a taxpayer meets the “primary purpose” test depends on the specific facts and circumstances of the project. For these purposes, the word "primarily" means more than 50%. (footnote 1) Further, subparagraph (d)(vii) of Class 43.1 requires that electrical energy be “solely” generated from geothermal energy. Consequently, this provision would not be satisfied if electrical energy was generated from a source of energy other than geothermal energy.

II. Subclause (d)(i)(A)(II) of Class 43.1

Subclause (d)(i)(A)(II) of Class 43.1 reads as follows:

and property, other than reconditioned or remanufactured equipment, that would otherwise be included in another Class in this Schedule

(d) that is

(i) property that meets the following conditions:

(A) it is used by the taxpayer, or by a lessee of the taxpayer, primarily for the purpose of heating an actively circulated liquid or gas and is

…

(II) equipment that is part of a ground source heat pump system that transfers heat to or form the ground or groundwater (but not to or from surface water such as a river, a lake or an ocean) and that, at the time of installation, meets the standards set by the Canadian Standards Association for the design and installation of earth energy systems, including such equipment that consists of piping (including above or below ground piping and the cost of drilling a well, or trenching, for the purpose of installing that piping), energy conversion equipment, energy storage equipment, control equipment and equipment designed to enable the system to interface with other heating or cooling equipment, and

(B) it is not a building, part of a building (other than a solar collector that is not a window and that is integrated into a building), equipment used to heat water for use in a swimming pool, energy equipment that backs up equipment described in subclause (A)(I) or (II) nor equipment that distributed heated or cooled air or water in a building,

Clause (d)(i)(A) of Class 43.1 requires that the property be used by the taxpayer, or by a lessee of the taxpayer, primarily for the purpose of heating an actively circulating liquid or gas. Whether the “primary purpose” test is satisfied in respect of the particular project depends on the specific facts and circumstances of the project. For these purposes, the word "primarily" means more than 50%. (footnote 2)

2. General Rules Applicable to Class 43.1 or Class 43.2 Property

The comments below, while not exhaustive, attempt to identify the main provisions in the Act and Regulations applicable to Class 43.1 or Class 43.2 property.

I. Property Situated in Canada

Subparagraphs (b)(i) and (e)(i) of Class 43.1 require that the depreciable property be situated in Canada for it to be included in Class 43.1 or Class 43.2.

Further, by virtue of subsection 1102(2), the classes of property described in Schedule II are deemed not to include the land upon which the property is constructed or situated.

II. Available for Use

Subsection 13(26) of the Act restricts the CCA claim for a Class 43.1 or Class 43.2 property that has been acquired but is not considered available for use at the end of a taxation year until the property is available for use. Further, subsection 1100(2) of the Regulations generally requires that property that becomes available for use in the year be subject to a limitation of 50 percent of the CCA otherwise deductible in that first year.

An explanation of the available for use rules is available through the Canada Revenue Agency website: http://www.cra-arc.gc.ca/tx/bsnss/tpcs/slprtnr/rprtng/cptl/vlbl-eng.html

III. Purpose of Gaining or Producing Income

Subparagraphs (b)(ii) and (e)(ii) of Class 43.1 limit the classes of property described in Class 43.1 or 43.2 to property

• acquired by the taxpayer for use by the taxpayer for the purpose of gaining or producing income from a business carried on in Canada or from property situated in Canada, or
• leased by the taxpayer to a lessee for the use by the lessee for the purpose of gaining or producing income from a business carried on in Canada or from property situated in Canada.

IV. Specified Energy Property

Subsection 1100(24) of the Regulations restricts the amount of CCA that may be claimed where the property of Class 43.1 or Class 43.2 is specified energy property (“specified energy property rules”). Where a property is a "specified energy property", CCA cannot be deducted to the extent that it would create or increase a loss from all such property owned by the taxpayer.

Under subsection 1100(25) of the Regulations, the term “specified energy property” does not include property of Class 43.1 or Class 43.2 that is acquired to be used by the owner primarily for the purpose of earning income from a business carried on in Canada (other than the business of selling the energy generated from that property) or from another property situated in Canada. (footnote 3) Moreover, under the provision of subsection 1100(26), certain corporations, whose principal business throughout the year is the producing, distributing or selling of any form of energy or potential energy, are excluded from the application of the specified energy property rules.

V. New Property and Used Property

Subject to the exceptions described below, subparagraphs (b)(iii) and (e)(iii) of Class 43.1 require that only depreciable property that has not been used for any purpose before it was acquired by the taxpayer be included in Class 43.1.

Used property that is depreciable property may only be included in Class 43.1 if it:

• was included in Class 43.1 or Class 43.2 by the vendor, or would have been included in Class 43.1 or Class 43.2 if the vendor had made an election under either paragraph 1102(8)(d) or 1102(9)(d) of the Regulations;
• remains at the same location as used by the vendor; and
• was acquired by the taxpayer not more than five years after the time the property is considered to have become available for use by the vendor according to subsection 13(26) of the Act.

Used property that is depreciable property may only be included in Class 43.2 if it:

• was included in Class 43.2 by the vendor;
• remains at the same location as used by the vendor; and
• was acquired by the taxpayer not more than five years after the time the property is considered to have become available for use by the vendor according to subsection 13(26) of the Act. (footnote 4)

The testing and commissioning of an otherwise new facility prior to the purchaser taking possession will not normally result in a finding that the property has been used prior to its acquisition. However, a property will be considered to have been used where the vendor has used it regularly for demonstration purposes. (footnote 5)

Subsections 1102(21) and (22) of the Regulations limit the capital cost of any used equipment acquired by a taxpayer that is eligible for inclusion in Class 43.1 or Class 43.2 to the original capital cost of the property to the person from whom the property was acquired. Any excess should be included in the Class of Schedule II in which the particular property would have been included if it were not eligible for inclusion in Class 43.1 or Class 43.2, as the case may be. (footnote 6)

The preamble to Class 43.1 and the mid-amble to paragraph (d) of Class 43.1 specifically exclude from Class 43.1 reconditioned or remanufactured equipment.

VI. Property in Compliance with Environmental Law

Subsection 1104(17) of the Regulations deems certain property, otherwise eligible for Class 43.1 or Class 43.2, not to be eligible for inclusion in either of those classes if, by the time the property becomes available for use by the taxpayer, the taxpayer has not satisfied the environmental legal requirements applicable to the property. These legal requirements include all the requirements imposed by a law, by-law or regulation of Canada, a province or a municipality in Canada, or a municipal or public body performing a function of government in Canada.

VII. Definitions Applicable to Class 43.1 and Class 43.2

Subsection 1104(13) of the Regulations defines specific terms applicable to Class 43.1 and Class 43.2: this includes terms such as “distribution equipment”, “district energy equipment” and “district energy system.” We suggest that you consult these defined terms to see whether they are applicable to your particular industry for the purpose of determining whether property may be included in Class 43.1 and Class 43.2.

VIII. Role of Natural Resources Canada

Subsection 13(18.1) of the Act and section 8200.1 of the Regulations provide that the Technical Guide to Class 43.1 and 43.2, published by Natural Resources Canada, applies conclusively for determining whether property meets the engineering or scientific criteria for it to be included in Class 43.1 or 43.2. A link to the Technical Guide to Class 43.1 and 43.2 is available through the Natural Resources Canada website: http://www.nrcan.gc.ca/energy/efficiency/industry/financial-assistance/5147

B. Capital Cost Allowance - Class 1

In general, equipment used in the geothermal energy industry that does not qualify under subparagraph (d)(vii) of Class 43.1 may be included in paragraphs (p) or (q) of Class 1. Under Class 1, eligible equipment may be written-off at 4 percent per year on a declining balance basis.

Paragraph (p) of Class 1 applies to a distributor of heat:

Property not included in any other class that is

…

(p) the production and distributing equipment and plant (including structures) of a distributor of heat;

Paragraph (q) of Class 1 applies to a producer or distributor of geothermal energy:

Property not included in any other class that is

…

(q) a building or other structure, or a part of it, including any component parts such as electric wiring, plumbing, sprinkler systems, air-conditioning equipment, heating equipment, lighting fixtures, elevators and escalators (except property described in any of paragraph (k) and (m) to (p) of this Class or in any of paragraphs (a) to (e) of Class 8).

An explanation of Class 1 depreciable property is available through the Canada Revenue Agency website: http://www.cra-arc.gc.ca/tx/bsnss/tpcs/slprtnr/rprtng/cptl/dprcbl-eng.html#class1

C. Canadian Renewable and Conservation Expense

Canadian renewable and conservation expense (“CRCE”) is a category of expenditures incurred during the development of eligible renewable energy and energy conservation projects. CRCE can be fully deducted in the year it is incurred or carried forward indefinitely and deducted in future years. Where CRCE is incurred by a principal-business corporation (“PBC”), CRCE can be renounced to shareholders who invest in flow-through shares of the corporation.

Expenses that qualify as CRCE are included in a taxpayer’s “Canadian exploration expense” (“CEE”) by virtue of paragraph (g.1) of the definition of that term in subsection 66.1(6) of the Act. The definition of “Canadian renewable and conservation expense” is contained in subsection 66.1(6) of the Act and section 1219 of the Regulations. Subsection 1219(1) of the Regulations requires that an expense, to qualify as CRCE, be incurred by a taxpayer and be payable to a person or partnership with whom the taxpayer is dealing at arm’s length. The expense must be incurred for a project for which it is reasonable to expect that at least 50 percent of the capital cost of the depreciable property would qualify for inclusion in Class 43.1 or 43.2. (footnote 7)

Expenses that may qualify as CRCE are generally start-up expenses incurred during the initial phases of development of a qualifying project. This includes the cost of certain pre-feasibility studies, feasibility studies, environmental assessment expenses, expenses for socio-economic studies, and expenses for negotiating power purchase agreements. (footnote 8) In addition, subsection 1219(1) of the Regulations includes specific expenses, such as the clearing of land to the extent necessary to complete the project. With regard to geothermal energy, we have taken the position that the cost of casing or piping a well that is used, or intended to be used, for resource analysis and only for temporary or non-production purposes is CRCE. (footnote 9)

Subsection 1219(2) of the Regulations excludes from CRCE, in general, expenditures incurred for the acquisition, installation or construction of equipment that generally form part of the capital cost of depreciable property.

The definition of “Canadian renewable and conservation expense” in subsection 66.1(6) of the Act and section 8200.1 of the Regulations provide that the Technical Guide to Canadian Renewable and Conservation Expense (CRCE), published by Natural Resources Canada, applies conclusively for determining whether an outlay or expense in respect of Class 43.1 or Class 43.2 property meets the engineering or scientific criteria for the outlay or expense to be CRCE. A link to the Technical Guide to Canadian Renewable and Conservation Expense (CRCE) is available through the Natural Resources Canada website: http://www.nrcan.gc.ca/energy/efficiency/industry/financial-assistance/5147

D. Principal-Business Corporation

Subsection 66(15) of the Act defines a PBC and includes corporations whose principal business operations are the generation or distribution of energy or the production of fuel, using property described in Class 43.1 or Class 43.2. The definition of PBC also includes corporations whose principal business operations are the development of projects for which it is reasonable to expect that at least 50% of the capital cost of the depreciable property to be used in each project would be the capital cost of property described in Class 43.1 or Class 43.2.

In addition, subsection 66(15) of the Act defines a PBC to be a corporation all or substantially all of the assets of which are shares of the capital stock or indebtedness of one or more PBCs that are related to the corporation, otherwise than by reason of a right referred to in paragraph 251(5)(b) of the Act. (footnote 10)

Income Tax Folio S3-F8-C1 “Principal-business Corporations in the Resource Industries” provides further information on the requirements for a corporation to qualify as a PBC. A link to Income Tax Folio S3-F8-C1 is available through the Canada Revenue Agency website: http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s3/f8/s3-f8-c1-eng.html

E. Canadian Exploration Expense

Paragraph (g.1) of the definition of CEE in subsection 66.1(6) of the Act includes CRCE.

The definition of “cumulative Canadian exploration expense” (“cumulative CEE”) in subsection 66.1(6) of the Act requires that a taxpayer’s CEE be computed annually and placed in a pool. In general, subsection 66.1(6) of the Act allows a taxpayer to fully deduct its cumulative CEE when computing its income for a taxation year.

Subsection 66.1(2) of the Act provides a special rule for computing the amount deductible by certain PBCs for a tax year in respect of their cumulative CEE. This rule generally limits a PBC’s deduction of its cumulative CEE for a tax year to the amount of its net income for the year, thus preventing the PBC from creating or increasing a non-capital loss. Subsection 66.1(2) of the Act excludes from its application certain PBCs involved with clean energy generation and energy conservation projects that qualify under paragraphs (h) or (i) of the definition of PBC in subsection 66(15) of the Act. Subsection 66.1(3) of the Act allows these excluded PBCs to deduct their full CEE balances and create or increase non-capital losses. This is relevant because these excluded PBCs would generally not own Canadian resource property (“CRP”). Therefore, after an acquisition of control, the excluded PBCs would not be able to use their cumulative CEE balances. Under subsection 66.1(3) of the Act, excluded PBCs may create non-capital losses and, after an acquisition of control, will be able to use these losses subject to the restrictions contained in subsection 111(5) of the Act and related provisions.

Paragraphs 13 to 15 of Interpretation Bulletin IT-302R3 “Losses of a Corporation. The Effect that Acquisitions of Control, Amalgamations, and Windings-up have on Their Deductibility - After January 15, 1987” (archived) provide further information on the rules applicable to the losses of a corporation. A link to the Interpretation Bulletin IT-302R3 is available through the Canada Revenue Agency website: http://www.cra-arc.gc.ca/E/pub/tp/it302r3/it302r3-e.html

F. Canadian Resource Property

Subsection 66(15) of the Act defines CRP and includes property the principal value of which depends on its petroleum, natural gas, related hydrocarbon or mineral resource content. Renewable energy and energy conservation projects would generally not own CRP. Consequently, the definition of CRP would not apply to the renewable energy and energy conservation industries.

G. Foreign Resource Property

Subsection 66(15) of the Act defines “foreign resource property” (“FRP”) by reference to the definition of CRP:

“foreign resource property” of a taxpayer means any property that would be a Canadian resource property of the taxpayer if the definition of “Canadian resource property” in this subsection were read as if the references therein to “in Canada” were read as references to “outside Canada”.

As mentioned above, renewable energy and energy conservation projects would generally not own CRP. Consequently, the definition of FRP would not apply to the renewable energy and energy conservation industries.

H. Foreign Resource Expense

Subsection 66.21(1) of the Act defines “foreign resource expense” (“FRE”) and includes the taxpayer’s cost for exploring for petroleum, natural gas or a mineral resource in respect of a country other than Canada, or the cost of the taxpayer’s FRP. The definition of “foreign resource expense” in subsection 248(1) of the Act refers to the definition of FRE in subsection 66.21(1) of the Act.

The definition of “mineral resource” in subsection 248(1) of the Act does not apply to renewable energy and energy conservation projects. Further, renewable and energy conservation projects would generally not own FRP. Consequently, the definition of FRE would not apply to the renewable and energy conservation industries.

I. Flow-Through Shares in the Renewable Energy and Energy Conservation Industries

Where a PBC incurs CRCE, the PBC can renounce these expenditures to shareholders who invest in flow-through shares (“FTS”) of the corporation. As stated above, expenses that qualify as CRCE are included in a taxpayer’s CEE. Renewable energy and energy conservation projects would generally not have Canadian development expense; as a result, we limit our comments to the rules for renouncing expenditures to investors as CEE.

In general, subsection 66(15) of the Act defines a FTS as either:

• a share of the capital stock of a PBC (other than a prescribed share under section 6202.1 of the Regulations); or
• a right to acquire a share of the capital stock of a PBC (other than a prescribed right under section 6202.1 of the Regulations).

This share or right must be issued to a person under an agreement in writing in which the PBC agrees to incur CEE in an amount not less than the share or right consideration. The PBC must also agree to renounce the CEE to that person within the applicable time period, pursuant to the provisions in the definition and subsections 66(12.6) and (12.66) of the Act.

Guide T100 – Instructions for the Flow-Through Share Program, provides information on reporting procedures regarding the flow-through share program. A link to Guide T100 is available through the Canada Revenue Agency website: http://www.cra-arc.gc.ca/E/pub/tg/t100/README.html

J. Atlantic Investment Tax Credit

The Atlantic Investment Tax Credit (“AITC”) is based on a specified percentage available for certain investments in qualified property used in Atlantic Canada and the Atlantic Region.

Paragraph (b.1) of the definition of “qualified property” in subsection 127(9) of the Act refers to prescribed new energy generation and conservation property acquired by the taxpayer after March 28, 2012 for the purpose of the AITC. Under subsection 4600(3) of the Regulations, prescribed energy generation and conservation property includes depreciable property listed in Class 43.1 or Class 43.2 that is acquired by the taxpayer after March 28, 2012.

Paragraph (a) of the definition of “investment tax credit” in subsection 127(9) of the Act sets up the method for calculating the investment tax credit of a taxpayer at the end of the taxation year for the purpose of the AITC: the total investments and expenditures in newly acquired assets are multiplied by a specified percentage to calculate the credits for the current year. Clause (a)(ii)(D) of the definition of “specified percentage” in subsection 127(9) of the Act establishes the rate for Atlantic Canada and the Atlantic Region at 10 percent.

Section 4610 of the Regulations geographically limits AITC to the Provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador, and the Gaspe Peninsula, as well as their respective offshore regions.

We trust that our comments, provided in accordance with paragraph 6 of Information Circular IC 70-6R7, Advance Income Tax Rulings and Technical Interpretations, will be of assistance.

Yours truly,

Fiona Harrison, CPA, CA
Manager
Resources Section
Reorganizations Division
Income Tax Rulings Directorate,
Legislative Policy and Regulatory Affairs Branch

Table of Contents

A.	Accelerated Capital Cost Allowance - Class 43.1 and Class 43.2
											- 2 -
1.	Geothermal Energy Industry						- 2 -
I.	Subclause (d)(vii) of Class 43.1					- 2 -
II.	Subclause (d)(i)(A)(II) of Class 43.1				- 3 -
2.	General Rules Applicable to Class 43.1 or Class 43.2 Property
											- 3 -
I.	Property Situated in Canada						- 3 -
II.	Available for Use								- 4 -
III.	Purpose of Gaining or Producing Income				- 4 -
IV.	Specified Energy Property						- 4 -
V.	New Property and Used Property					- 5 -
VI.	Property in Compliance with Environmental Law			- 6 -
VII.	Definitions Applicable to Class 43.1 and Class 43.2		- 6 -
VIII.Role of Natural Resources Canada					- 6 -
B.	Capital Cost Allowance - Class 1					- 6 -
C.	Canadian Renewable and Conservation Expense			- 7 -
D.	Principal-Business Corporation					- 8 -
E.	Canadian Exploration Expense						- 8 -
F.	Canadian Resource Property						- 9 -
G.	Foreign Resource Property						- 9 -
H.	Foreign Resource Expense						- 9 -
I.	Flow-Through Shares in the Renewable Energy and Energy Conservation Industries
										- 10 -
J.	Atlantic Investment Tax Credit					- 10 -

FOOTNOTES

Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:

1 Interpretation external E2005-015161 “Class 43.1 Wood Waste System” (November 25, 2005).

2 Ibid.

3 Interpretation external E2011-0430431E5 “Renewable Energy Property” (February 7, 2012).

4 Interpretation external E2012-0433611E5 “Geothermal Heating and Cooling Systems” (June 11, 2012).

5 Interpretation external E9705835 “Whether Equipment Used” (March 17, 1998).

6 Ibid.

7 Interpretation external E2014-0555071E5 “POD subject to earn-out” (January 12, 2015).

8 Interpretation external E2003-002382A “Feasibility studies and CRCE” (July 18, 2003); Interpretation external E2006-0180041E5 “CRCE - feasibility studies” (October 12, 2006).

9 Interpretation external, E2011-0427561E5 “Geothermal Energy Project” (January 26, 2012).

10 Income Tax Folio: S3-F8-C1 Principal-business Corporations in the Resource Industries.