Prevailing Wage and Apprenticeship Requirements: Treasury Department and IRS Propose Regulations for Clean Energy Projects Under the Inflation Reduction Act

The Department of the Treasury and Internal Revenue Service (IRS) published proposed regulations (the “Proposed Regulations”) providing further guidance on the prevailing wage and apprenticeship requirements for clean energy projects under the Inflation Reduction Act of 2022 (IRA) following Notice 2022-61. The new guidance described below is found in the Proposed Regulations 1.45-6, -7, -8, and -12, which are cross-referenced by regulations issued under other relevant sections of the Internal Revenue Code of 1986 (the “Code”).^[1]

Coming after final regulations for the Davis-Bacon Act, the Proposed Regulations provide much-needed clarity for taxpayers seeking to claim the increased credit by meeting the prevailing wage and apprenticeship requirements.

KEY TAKEAWAYS

The proposed regulations provide guidance on:

• Which work is subject to the prevailing wage requirement and when taxpayers and contractors must determine the prevailing wage.
• When to make corrective payments.
• How the Apprenticeship Ratio Requirement affects taxpayer’s ability to cure a deficiency in the Apprenticeship Labor Hour Requirement.
• How to cure deficiencies in the Apprenticeship Participation Requirement.
• How to obtain the benefit of the good-faith effort exception.
• When a taxpayer can rely on a project labor agreement for projects involving union labor to satisfy prevailing wage and apprenticeship requirements.
• How to evaluate if there has been intentional disregard giving rise to higher penalties.
• What documentation taxpayers should require from contractors and subcontractors.

IN MORE DETAIL

Background on Prevailing Wage and Apprenticeship Requirement

Relevance: The IRA introduced a two-tier “base” rate and “increased” rate structure for renewable energy tax credits.^[2]

The “increased” rate is worth five times the value of the base rate. It is available if a project meets or is grandfathered from the prevailing wage and apprenticeship requirements described below.

Prevailing Wage Requirement: The taxpayer must ensure that any laborers and mechanics they or a contractor or subcontractor employs are paid “prevailing wages” during construction and also for any repairs or alterations during the applicable tax credit period. The term “prevailing wages” refers to wages at rates for similar work in the location of the project site as determined by the U.S. Secretary of Labor.

Apprenticeship Requirement: The taxpayer must ensure that a percentage of the total labor hours spent to construct the project are performed by “qualified apprentices” who participate in a registered apprenticeship program that complies with federal requirements. The percentage of labor hours is 12.5% for projects beginning construction in 2023 and 15% if construction begins in 2024 or later (Apprenticeship Labor Hour Requirements). The Apprenticeship Labor Hour Requirements are subject to applicable requirements for apprentice-to-journeyworker ratios of the Department of Labor (DOL) or the applicable state apprenticeship agency (Apprenticeship Ratio Requirements). Further, each taxpayer, contractor, or subcontractor with four or more employees on a project must employ one or more qualified apprentices (Apprenticeship Participation Requirements).

Grandfathered Projects: Projects (i) that began construction prior to January 29, 2023 or (ii) that have a maximum net output of less than 1 megawatt of electrical (as measured in alternating current) or thermal energy automatically qualify for the “increased” rate without regard to the prevailing wage and apprenticeship requirements.

Prevailing Wage Guidance

The Proposed Regulations:

• Define certain key terms by reference to DOL regulations under the Davis-Bacon Act, including, “contractor,” “subcontractor,” “employed,” “site of work” and “construction, alteration, or repair.”
• Assign a broader definition of “employed” for meeting the prevailing wage requirements than elsewhere in the Code. Any laborer or mechanic is deemed to be “employed” by the taxpayer, contractor, or subcontractor, regardless of whether such laborer or mechanic would be characterized as employed for federal tax purposes.
• Provide that maintenance after a facility is placed in service does not fall within the definition of “construction, alteration, or repair.”
  • The exclusion covers “ordinary and regular” work to maintain an existing facility (including regular inspections, regular cleaning, replacing materials with limited lifespans such as filters and light bulbs, and equipment calibration).

Takeaway: Taxpayers have asked which work on an operating facility is subject to the prevailing wage requirement. The clarification that maintenance work is not subject to the prevailing wage requirements and how to distinguish maintenance from repair will help alleviate concerns with respect to what tasks during the operating period are subject to the prevailing wage requirements.

Determining the prevailing wage rate

• The Proposed Regulations provide that taxpayers must use the general wage determinations in effect at the time that construction, alteration, or repair begins and that these determinations generally remain valid for the duration of the work performed.
• Taxpayers are not required to update applicable prevailing wages if the DOL publishes new general wage determinations after construction begins. An exception occurs when the contract for construction, alteration, or repair work is changed to include additional work or labor hours not within the scope of the original contract or to extend the period during which work will be performed. A taxpayer must also update prevailing wage rates for alteration or repair work after a facility has been placed in service, with the determinative date being the start date of such alteration or repair work.

Takeaway: This is an important clarification with respect to the timing of determining the prevailing wage. Taxpayers and contractors were uncertain how to account for the risk of prevailing wages changing over the duration of a construction contract. The Proposed Regulations “freeze” the prevailing wage rates to when the time construction, alteration, or repair begins until there is a change that would require using updated prevailing wages.

 A continuing concern is the risk that wage determinations could change during a “lag period” between the execution date of a construction contract and the date work begins.

Payment of wages

The Proposed Regulations:

• Provide that payments must be made “in the time and manner consistent with the regular payroll practices of the taxpayer, contractor, or subcontractor.” Prevailing wages must be paid to laborers, mechanics, and apprentices for construction, alteration, or repair work at the qualified facility.
• Recognize that construction, alteration, or repair work may occur at secondary sites. In such a case, the secondary site is subject to the prevailing wage requirements if it was established or dedicated for construction, alteration, or repair work of the primary facility.
• Clarify that if an apprentice performs construction, alteration, or repair work in a classification that is not part of the registered apprenticeship program, the taxpayer must pay the apprentice the full prevailing wage that would be paid to laborers or mechanics for that classification in that location.

Takeaway: The guidance does not address to what extent inconsistencies in regular payroll practices give rise to potential penalty payments. A minor delay in payment could theoretically result in a failure to comply with prevailing wage requirements and a subsequent penalty.

Correction and penalty provisions

The Proposed Regulations provide that the prevailing wage requirement becomes binding upon the earlier of

• The taxpayer filing a return for the taxable year during which the credit is determined with respect to that taxpayer,
• A transferee taxpayer filing a tax return for the year in which the credit is taken into account pursuant to Code Section 6418. The Proposed Regulations provide that in a Code Section 6418 transfer, the transferee is treated as the “taxpayer” with respect to the transferred credit portion, and the transferor is treated as the “taxpayer” who must comply with the prevailing wage requirements, including the correction and penalty provisions.

Upon a final determination of the IRS that a taxpayer failed to meet prevailing wage requirements, the taxpayer has 180 days to make correction and penalty payments. The taxpayer must pay both the correction amount and the penalty amount determined as shown below:

Correction Amount	=	The difference between wages paid to laborers or mechanics and the amount required by the prevailing wage requirements	+	(Interest on the difference at the federal short-term rate + 6 percentage points)
Penalty Amount	=	$5,000	x	Total number of laborers or mechanics paid at the rate below the prevailing wage

If the IRS determines a failure to meet prevailing wage requirements is due to the taxpayer’s intentional disregard (as discussed further below), the correction amount is tripled and the penalty amount is doubled.

The Proposed Regulations also provide that a taxpayer may make correction and penalty payments before the IRS issues a final determination. This is one of the factors in the analysis of whether failure to meet prevailing wage requirements was due to intentional disregard.

The correction and penalty payments do not need to be paid until the prevailing wage requirement becomes binding (i.e., when the increased credit amount is claimed on a tax return).

Apprenticeship Guidance

Apprenticeship Ratio Requirements

• The Proposed Regulations provide that if the Apprenticeship Ratio Requirements are exceeded, the labor hours performed by a qualified apprentice that exceeded the ratio on that day will not count towards the Apprenticeship Labor Hour Requirement.
• The Apprenticeship Ratio Requirement is measured daily.

Takeaway: The Apprenticeship Labor Hour Requirement cannot always be met by having more apprentices work on the project site. A taxpayer’s ability to cure a deficiency in the Apprenticeship Labor Hour Requirement may be limited if construction is far enough along and the apprentice labor hour percentage is low enough such that it is not possible to bring up the percentage to the minimum level while also not exceeding the maximum apprentice-to-journeyworker ratio.

Apprenticeship Participation Requirements

The Proposed Regulations:

• Fill a gap in the previous guidance noting that a failure to meet the Apprenticeship Participation Requirements can be cured by paying to the IRS a penalty calculated by dividing (i) the total labor hours of construction, alteration, or repair of the laborers employed by the taxpayer, contractor, or subcontractor that failed to meet the requirement, by (ii) the number of laborers of such taxpayer, contractor, or subcontractor, and multiplying this number by $50 (or $500 in the case of intentional disregard).
• Provide that the Apprenticeship Participation Requirement does not need to be met on a daily basis.

Takeaway: This guidance provides important relief with respect to curing deficiencies in the Apprenticeship Participation Requirement. The cure payment mechanism provided for in the Code is based on missing apprenticeship hours ($50 per missing hour). So, it was clear how to cure a deficiency in the minimum apprentice labor hours needed to meet the Apprenticeship Labor Hour Requirements. Yet, a question remained as to whether cure payments could fix a deficiency in the Apprenticeship Participation Requirement (since, in that case, there is a missing apprentice rather than missing apprentice labor hours). The Proposed Regulations allow for a cure payment based on the average hours worked by the non-apprentice laborers.   

Good-Faith Effort Exception

A taxpayer is deemed to have satisfied the apprenticeship requirements if the “good-faith effort exception” applies. The exception does not cover all good-faith efforts. It requires that specific steps have been taken. The Proposed Regulations detail requirements to meet such exception as compared to the “usual and customary business practices” standard used in Notice 2022-61:

• The taxpayer, contractor, or subcontractor must submit a written request for qualified apprentices to at least one registered apprenticeship program that could reasonably provide such apprentices.
• The request must include detail on the proposed dates of employment, the occupations of apprentices needed, the location where work will be performed, the number of apprentices needed, and the labor hours the apprentices will perform.
• If the request is submitted in accordance with the above and the registered apprenticeship program fails to respond within five business days after the date the program received the request, the request is deemed denied. Acknowledgment of receipt by the registered apprenticeship program counts as a response for this purpose.
• If the request is submitted as described above and is denied or deemed denied, the taxpayer is considered to have made a good-faith effort for 120 days following the request. Beyond this point, an additional request must be submitted to maintain the good-faith effort exception. The 120-day requirement is new to the Proposed Regulations and was not included in the Code or Notice 2022-61.

Takeaway: Taxpayers, contractors, and subcontractors will need to anticipate the number of apprentices a project will require and likely apply to multiple apprenticeship programs to staff the necessary number of apprentices or qualify for the good-faith effort exception. The Proposed Regulations make it more difficult to be excused from hiring apprentices by imposing a 120-day renewal obligation to rely on the good-faith effort exception.

Project Labor Agreements

The Proposed Regulations carve out an exception for project labor agreements.

Penalties for the prevailing wage requirements and the apprenticeship requirements are excused if the work was done pursuant to a qualifying project labor agreement (and, in the case of the prevailing wage requirements, the corrective payment to the laborer is made prior to the taxpayer filing the tax return claiming the increased credit).

Qualifying project labor agreements must:

• Bind all contractors and subcontractors.
• Contain guarantees against labor disruptions.
• Provide procedures for resolving labor disputes.
• Use prevailing wage rates.
• Contain provisions for referring and using qualified apprentices.
• Be a specified collective-bargaining agreement with a labor organization.

Takeaway: Taxpayers had questioned whether, for projects where union labor is used, a taxpayer could rely on the presence of a project labor agreement to mean that the prevailing wage requirements and apprenticeship requirements would be deemed to be satisfied. The Proposed Regulations provide a significant advantage to projects for which a qualifying project labor agreement is in place.

Intentional Disregard

As described above, penalties are increased for prevailing wage requirements and the apprenticeship requirements in the case of intentional disregard. The Proposed Regulations provide how the application of “intentional disregard” penalties are evaluated. First, a taxpayer has the benefit of a rebuttable presumption against intentional disregard if the penalty payment is made prior to the IRS providing a notice of an examination to the taxpayer. Otherwise, intentional disregard is a facts-and-circumstances test to determine if the disregard was knowing or willful, including:

• Whether the taxpayer has failed to meet the prevailing wage and apprenticeship requirements previously, including whether any penalty payments have been made or whether the taxpayer has promptly cured any failures.
• Whether the taxpayer has made any attempt to comply with the apprenticeship requirements.
• Whether the taxpayer has failed to determine the labor hours required to be performed by qualified apprentices.
• Whether the taxpayer included provisions in any contracts with contractors that required the employment of apprentices by the contractor and any subcontractors consistent with the Apprenticeship Labor Hours Requirements and the Apprenticeship Participation Requirements.

Recordkeeping Requirements

The Proposed Regulations detail the records a taxpayer must be prepared to submit when they submit their tax return to demonstrate that the prevailing wage and apprenticeship requirements were met (including retaining records consistent with the Davis-Bacon Act) and, if necessary, to show there was no intentional disregard or to qualify for penalty waivers.

Takeaway: The detailed recordkeeping guidance will comfort taxpayers and provide certainty as to the documentation they require from contractors or subcontractors.