CRS Updates Report on Brownfields Incentive

To take advantage of the brownfields tax incentive, the developer of a property has to obtain a statement from the state environmental agency that the parcel is a "qualified contaminated site" as defined in the 1997 law. Because the brownfields tax deduction does not have its own separate line on either individual or corporate federal income tax returns, the only sources of information on the extent of use of the incentive are the state agencies that certify that the properties are indeed brownfields. CRS surveyed the appropriate agencies in each state in 2003 to determine the number of brownfield certifications they had issued. Twenty-seven states reported that they had received requests for certification, for a total of 161 requests, of which 147 were approved. Twenty-three states reported receiving no formal requests. The state-by-state responses are presented in the table at the end of this report.

Background. Federal tax law generally requires that the cost of improvements to a property must be deducted over a period of years, whereas other expenses, such as repairs, may be deducted in the same year they are incurred. Being able to deduct the costs when incurred is a financial benefit to the taxpayer. A 1994 ruling by the Internal Revenue Service² (IRS) held that the costs of cleaning up contaminated land and groundwater are deductible in the current year, but only for the person who contaminated the land. In addition, the cleanup would have to be done without any anticipation of putting the land to a new use. Further, any monitoring equipment with a useful life beyond the year it was acquired would have to be capitalized. On the other hand, a person who acquired previously contaminated land, such as a brownfield site, would have to capitalize the costs of cleanup, spreading them out over a number of years.

Cleanup costs are a major barrier to redevelopment of contaminated land. The Taxpayer Relief Act of 1997, which included the brownfields tax incentive, thus had the effect of expanding benefits and allowing developers who had not caused the contamination to deduct cleanup costs from their taxable income in the current year, rather than having to capitalize them.

As initially enacted, the brownfields tax incentive was available only to a property that was located in a "targeted area." The law defined a targeted area as a census tract with greater than 20% poverty, an adjacent commercial or industrial census tract, an Empowerment Zone or Enterprise Community, or one of the 76 brownfields to which the Environmental Protection Agency (EPA) had awarded a brownfield grant at that time. The Consolidated Appropriations Act, 2001 (P.L. 106-170) repealed the targeted area geographic restrictions and extended the tax break to all brownfields ("qualified contaminated sites").

A significant drawback of the tax incentive is that it is subject to "recapture." This means that the gain realized from the value of the property when it is later sold must be taxed as ordinary income (rather than at the generally lower capital gains rate) to the extent of the expensing allowance previously claimed. This dilutes the benefit of the tax break and has the effect of simply postponing a certain amount of the developer's tax liability until the property is resold. As a stimulus to development, the overall value of the brownfields tax break is dependent on a number of factors, including the total cost of the project, the cost of cleanup, how long the developer intends to hold the property before selling it, and the developer's individual tax situation. Repeal of the recapture provision has been favored by the Real Estate Roundtable and its partner associations representing various aspects of the real estate industry (architects, building owners and managers, mortgage bankers, general contractors, and others).

Since FY2003, the Administration's budget proposals have proposed making the tax incentive permanent. It has been in effect continuously since its enactment in 1997 and has been extended four times, most recently in the Tax Relief and Health Care Act of 2006, P.L. 109-432 (Division A, title I, § 109).³ This extension through 2007, which was enacted on December 20, 2006, was made retroactive to December 31, 2005, when the previous extension expired. The EPA supports the permanent extension, as does the Real Estate Roundtable and its partners noted above.

This enactment also broadened the definition of hazardous substances, for purposes of the tax incentive, to include petroleum products (including crude oil, crude oil condensates, and natural gasoline).

The brownfields provision is one of a number of tax credits, deductions, and taxpayer benefits that were considered together. For more information, see CRS Report RL32367, Temporary Tax Provisions ("Extenders") Expired in 2005, by Pamela Jackson.

Survey Findings. The CRS survey, conducted between April and June 2003, found that a total of 161 brownfield tax incentive applications were made in 27 states. Of those, 147 were approved and 14 were denied. Seven states had 10 or more applications: Wisconsin had 20; Massachusetts, 17; Delaware, 16; New York, 14; Virginia, 11; and Michigan and Pennsylvania, 10 each. Thirteen states had one to three applications.

Twenty-three states reported that they had received no applications for certification. Many in that group said they had received inquiries but no formal applications, and some of those states added that they had made efforts to publicize the availability of the tax incentive through their websites and at in-person presentations at various meetings.

Table 1, below, presents the results of the survey in detail. The 23 states that reported receiving no applications were:

 Alabama                            Kansas                       North Dakota

²Revenue Ruling 94-38.

³ The other renewals were in the Ticket to Work and Work Incentives Improvement Act of 1999, P.L. 106-170 (title V, § 511); in the Consolidated Appropriations Act, 2001, P.L. 106-554 (Appendix G, title I, § 162); and in the Working Families Tax Relief Act of 2004, P.L. 108-311 (title III, § 308(a)).