### Internal Revenue Bulletin: 2009-44

November 2, 2009
Notice 2009-83 Credit for Carbon Dioxide Sequestration Under Section 45Q

Table of Contents

• SECTION 1. PURPOSE

• SECTION 2. BACKGROUND

• SECTION 3. TERMS AND DEFINITIONS

• SECTION 4. APPLICATION OF SECTION 45Q CREDIT

• SECTION 5. SECURE GEOLOGICAL STORAGE

• SECTION 6. REPORTING REQUIREMENTS

• SECTION 7. RECORDKEEPING REQUIREMENT

• SECTION 8. PAPERWORK REDUCTION ACT

• SECTION 9. DRAFTING INFORMATION


### SECTION 1. PURPOSE This notice sets forth interim guidance, pending th e issuance of regulations, relating to the credit f or carbon dioxide (CO 2 ) sequestration under section 45Q of the Internal R evenue Code. Specifically, this notice provides guidance o n determining eligibility for the credit and the am ount of the credit, as well as rules regarding adeq uate security measures for secure geological storage of CO 2 . This notice also sets forth a separate reporting requirement. The Internal Revenue Service (Service) and Treasury Department (Treasury) expect that the regulations will incorporate the rules set forth in this notice.


### SECTION 2. BACKGROUND .01 Section 45Q was enacted by § 115 of the Energy Improvement and Extension Act of 2008, Pub. L. No. 110-343, 122 Stat. 3829 (October 3, 2008), as amend ed by § 1131 of the American Recovery and Reinvestment Tax Act of 2009, Division B of Pub. L. 111-5, 123 Stat 115 (Feb. 17 , 2009). Section 45Q(a) provides that a credit for CO 2sequestration (§ 45Q credit) is generally available to a taxpayer that c aptures qualified CO 2 at a qualified facility and disposes of the CO 2in secure geological storage within the United Sta tes, effective for CO 2captured after October 3, 2008. As originally enacted, § 45Q(a)(1) provides for a credit of $20 per m etric ton of qualified CO 2 that is captured and disposed of in secure geological storage, and § 45Q(a)(2) provides for a credit of $10 per metric ton of qualified CO 2that is captured and used as a tertiary injectant in a qualified enhanced oil or natural gas recovery project (EOR project). Section 45Q(a), as amended, provides additional requirements effec tive after February 17, 2009, that, for purposes of the $20 per metric ton credit under § 45Q(a)(1), the qualified CO 2 must not be used as a tertiary injectant; and, for purposes of the $10 per metric ton credit under § 45Q(a)(2), the qualified CO 2used as a tertiary injectant must be disposed of in secure ge ological storage. .02 Section 45Q(d)(2) as amended provides that the Secretary of Treasury or his or her delegate (the S ecretary), in consultation with the Administrator o f the Environmental Protection Agency (EPA), the Secretary of Energy (D OE), and the Secretary of the Interior (DOI), shall establish regulations for determining adequate sec urity measures for the geological storage of CO 2 such that the CO 2 does not escape into the atmosphere. .03 Section 45Q(d)(5) provides that the § 45Q credi t is attributable to the person that captures and p hysically or contractually ensures the disposal of or the use as a tertiary injectant of the qualified CO 2, except to the extent provided in regulations prescr ibed by the Secretary. .04 Section 45Q(d)(6) provides for a recapture of t he benefit of any credit allowable under § 45Q(a) w ith respect to any qualified CO 2 that ceases to be captured, disposed of, or used as a tertiary injectant in a manner consistent with the requirements of § 45Q. .05 Section 45Q(d)(7) provides that, for taxable ye ars beginning in a calendar year after 2009, the do llar amount contained in § 45Q(a) will be substitut ed for an amount equal to the product of such dollar amount multiplied by the inf lation adjustment factor for such calendar year det ermined under § 43(b)(3)(B), determined by substitu ting “2008” for “1990.” .06 Section 45Q(e) as amended provides that the § 4 5Q credit will apply with respect to qualified CO 2 before the end of the calendar year in which the Se cretary, in consultation with EPA, certifies that 75,000,000 metric tons of quali fied CO 2 have been taken into account in accordance with § 4 5Q(a).


### SECTION 3. TERMS AND DEFINITIONS
.01 Terms . For purposes of this notice, (a) The terms disposal, storage, and sequestration are used interchangeably, (b) The term credit refers to a tax credit and shal l not be interpreted or construed as a CO 2allowance, permit, or any other CO 2 emissions property right, and (c) The term leakage refers to CO 2 that ceases to be sequestered via escape or releas e from the subsurface to the atmosphere or ocean. .02 Industrial Facility

. (a) Industrial facility refers to a facility that p roduces a CO 2 stream from a fuel combustion source, a manufactur ing process, or a fugitive CO 2emission source that, absent capture and disposal, would otherwise be released into the atmosphere as industrial emission of greenhouse gas

. (b) An industrial facility does not include a facil ity that produces CO 2 from CO 2 production wells at natural CO 2 -bearing formations. .03 Qualified Carbon Dioxide . Qualified carbon dioxide means CO 2 that is: (a) Captured from an industrial source that would o therwise be released into the atmosphere as industr ial emission of greenhouse gas (GHG), 

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(c) Verified at the point of disposal or injection. Qualified CO 2 includes the initial deposit of captured CO 2 used as a tertiary injectant but does not include C O 2 that is re-captured, recycled, or otherwise re-inje cted as part of the enhanced oil and natural gas recovery process. .04 Qualified Enhanced Oil or Natural Gas Recovery Project . Qualified enhanced oil or natural gas recovery project has the same meaning given the term “qualifie d enhanced oil recovery project” under § 43(c)(2) by substituting “crude oil or natural gas” for “crude oil” in § 43( c)(2)(A)(i). .05 Qualified Facility. Qualified facility means an industrial facility t hat is owned by the taxpayer where carbon capture e quipment is placed in service and where at least 50 0,000 metric tons of qualified CO 2 is captured during the taxable year.


### SECTION 4. APPLICATION OF SECTION 45Q CREDIT
.01 In General . Taxpayers who capture qualified CO 2 from a qualified facility in a taxable year beginn ing after October 3, 2008, and meet all of the othe r requirements of § 45Q are eligible to claim the credit. .02 Section 45Q Credit Amount . (a) The amount of the § 45Q credit is equal to th e sum of: (i) $20 per metric ton of qualified CO 2 if the qualified CO 2 is not used as a tertiary injectant in an EOR proj ect; and (ii) $10 per metric ton of qualified CO 2 if the qualified CO 2 is used as a tertiary injectant in an EOR project. Pursuant to § 45Q(d)(5), a taxpayer that captures a nd physically or contractually ensures the disposal of or the use as a tertiary injectant of qualified CO 2is eligible to claim the § 45Q credit. (b) Inflation Adjustment . The § 45Q credit amount will be adjusted for infl ation for any taxable year beginning in a calendar year after 2009. The Service will announce in later guidance the applicable inflation adjustment for th e amount of § 45Q credit for a given taxable year. .03 Carbon Dioxide Measured by Weight . (a) In order to claim a § 45Q credit, the amount of CO 2must be measured at the source of capture and veri fied either at the point of disposal in secure geological storage or at the poi nt of injection as a tertiary injectant in an EOR p roject. The amount of qualified CO 2 for purposes of the § 45Q credit is presumed to be the lesser of the amount measured at capture and the amount verified at disposal or injection, unle ss the taxpayer can establish to the satisfaction o f the Secretary that the greater amount is the correct amount. (b) For the purpose of calculating the § 45Q credit , a metric ton of CO 2 includes only the contained weight of the CO 2 . The weight of any other substances, such as water or impurities, is not included in the calculation. For example, if a metric ton of a substance that is bo ught and sold as “CO 2 ” is 95 percent pure CO 2 by weight, for purposes of the § 45Q credit, 1.0526 tons (equivalent to 1 divided by 0.9 5) of the 95 percent pure substance is considered t o be one metric ton of CO 2 . .04 Captured and Disposed of or Used within the United States . Section 45Q credit applies only to qualified CO 2 that is captured and disposed of or used as a terti ary injectant within the United States (as defined in § 638(1)) or a pos session of the United States (as defined in § 638(2 )). .05 Taxpayers Eligible to Claim the § 45Q Credit . (a) To be eligible to claim the § 45Q credit, a p erson must (i) own an industrial facility at which carbon capture equipment is placed in service, (ii) capture not less than 500,000 metr ic tons of qualified CO 2 during the taxable year at such industrial facilit y, and (iii) physically or contractually ensure tha t the qualified CO 2is securely stored in a geologic formation, includ ing where such CO 2 is captured and transported for use in an EOR proj ect. In the case of qualified CO 2that is used as a tertiary injectant in an EOR project, requirement (iii) abov e applies only to CO 2 captured after February 17, 2009. Each industrial facility for which the § 45Q creditis claimed must be equipped with carbon capture eq uipment and must capture not less than 500,000 metr ic tons of qualified CO 2 during the taxable year. Additionally, a person tha t buys the captured CO 2 at the point of transit or disposal but does not o wn the industrial facility at which the CO 2is captured does not meet the qualified facility requirement of § 45 Q(c) and is therefore ineligible to claim the § 45Q credit. (b) Example . (i) X, a calendar year taxpayer, owns a manufactu ring facility in the United States and releases CO 2into the atmosphere as a by-product of the facility’s operations. On November 1, 2009, X leases carbon capture equipmentand places it in service at the manufacturing faci lity. On February 1, 2010, Y, an oil company, enters into a contract with X to purchase the CO 2for use as a tertiary injectant in an EOR project. Pursuant to the terms of the contract, X captures the CO 2and delivers it to Y at the manufacturing facility . Y transports the CO 2in a pipeline to Y’s oil fields located in the Uni ted States. Pursuant to its contract with X, Y uses the CO 2as a tertiary injectant in an EOR project and thereafter disposes of the CO 2in secure geological storage in the United States in 2010 and later years. During the taxable year be ginning on January 1, 2010, 700,000 metric tons of CO 2 is captured at X’s facility and injected as a tertiaryinjectant under the terms of the agreement. X meas ures the amount of CO 2 at the source of capture and Y verifies the amountof CO 2 at the point of injection during taxable year 2010. (ii) CO 2 captured from X’s facility is qualified CO 2 under § 45Q(b) because the CO 2was captured from an industrial source from which it would otherwise have been released into the atmosphere and is measured at the source of capture and verified at the point of injection in the Unit ed States. The CO 2 was captured at a qualified facility within the me aning of section 3.05 of this notice because it is an indust rial facility, within the meaning of section 3.02 o f this notice, that is owned by X, at which carbon capture equipment is placed in service, and the facility captures not less than 50 0,000 metric tons of CO 2 during the taxable year. Therefore, X is eligible t o claim the § 45Q credit in 2010 for the qualified CO 2 captured and used as a tertiary injectant in an EORproject in 2010. The amount of qualified CO 2 for purposes of the§ 45Q credit is presumed to be t he lesser of the amount measured at capture and the amount verified at inje ction, unless X can establish to the satisfaction o f the Secretary that the greater amount is the correct amount. .06 Allocation of § 45Q Credit Among Qualified Facility Owners . Eligibility for the § 45Q credit is based on the total amount of CO 2 captured and disposed of in secure geological storage during a taxable year subject to the follow ing: (a) If the qualified facility is owned by a partnership that has not made a valid election under § 761 (a), the partnership will be considered the taxpaye r for purposes of this notice. In such cases, the § 45Q credit must be allocated in a ccordance with § 1.704-1(b)(4)(ii). (b) If the qualified facility is owned by a partnership that has made a valid § 761(a) election, then each partner in the partnership will be considered the taxpayer for purposes of this notice. In such case, the taxpayer may claim the § 45Q credit in accordance with its portion of the to tal amount of qualified CO 2that is commensurate with its undivided ownership of the qualified facility. .07 Applicability of Credit for Projects under §§ 48A a nd 48B of the Code . Qualified CO 2 for purposes of the § 45Q credit does not include CO 2that is captured and sequestered in a project to the extent required under an agreement e xecuted with the Service under the qualifying advan ced coal project program of § 48A or the qualifying gasification project program of § 48B. .08 Credit Recapture . Taxpayers must physically or contractually ensure that all qualified CO 2 disposed of in secure geological storage remains s tored and is not released into the atmosphere. Taxpayers must recapture the benefit of any credit allowable under § 45Q(a) with respect t o any qualified CO 2that ceases to be captured, disposed of, or used a s a tertiary injectant in a manner consistent with the requirements of § 45Q. Procedures regarding § 45Q c redit recapture will be provided in future guidance

. .09 Credit Termination . Pursuant to § 45Q(e), at such time as the Service certifies, in consultation with the EPA, that 75,0 00,000 metric tons of qualified CO 2 have been taken into account for purposes of § 45Q credit, the Service w ill publicly announce that the § 45Q credit will ce ase to be available for the calendar year following such announcement.


### SECTION 5. SECURE GEOLOGICAL STORAGE 

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- 44_IRB/ar11.html.01 In General . In order to qualify for the § 45Q credit, a taxpa yer must either physically or contractually dispose of captured CO 2 in secure geological storage using adequate security

measures as provided by the Secretary in regulation s. The term “secure geological storage” includes st orage at deep saline formations, oil and gas reserv oirs, and unminable coal seams under such conditions as the Secretary may de termine under regulations. There are not yet regula tions setting forth the requirements for secure geo logical storage. This section of the notice provides interim procedures for a taxpayer to determine adequate security measures for the secure geological storage of CO 2 until such regulations are promulgated. In the event that a taxpayer disposes of the qualified CO 2 contractually, the taxpayer must ensure that the c ontracting party complies with the requirements of this section of the notice at all times, and the taxpaye r must be able to provide documentation of such com pliance as required under section 7 of this notice. In order to demonstrate secure geological storage for purposes of the § 45Q credit, a taxpayer must meet the requirements of s ection 5.02 of this notice. .02 Requirements of Secure Geological Storage

. (a) Measurement of CO 2 at the Source of Capture: Final Mandatory GHG Repor ting Rule . On September 22, 2009, EPA issued the Final Manda tory GHG Reporting Rule (Reporting Rule) (to be codified at 40 C.F.R pt. 98), to requi re reporting of greenhouse gas emissions from all s ectors of the economy. The Reporting Rule applies t o fossil fuel suppliers and industrial gas suppliers, including CO 2 suppliers, as well as to direct greenhouse gas emi tters. The Reporting Rule does not require control of greenhouse gases: rather, it requires only that certain sources monitor and report emissi ons. A taxpayer claiming the § 45Q credit must use the methodology, inputs, and equations in the Reporting Rule (or any successor rule) to calculate the amount of CO 2 measured at the source of capture. The amount repo rted under the Reporting Rule (or any successor rul e) must be consistent with the amount of qualified CO 2taken into account for purposes of the § 45Q credi t. (b) Sequestration Site Rules

. (i) IPCC Guidelines . In order for geological storage to be considered adequately secure for purposes of the § 45Q credit such that the injected CO 2 does not escape into the atmosphere, a taxpayer must conduct at the frequenc y appropriate for the site conditions, except as ot herwise provided under paragraph (c), the following procedures outlined in the 2006 Intergovernmental Panel on Climate Change Guid elines for National Greenhouse Gas Inventories (IPC C Guidelines): (A) Conduct a site characterization by evaluating t he geology of the storage site and surrounding stra ta and identifying the local and regional hydrogeol ogy and leakage pathways such as deep wells, faults, and fractures. (B) Conduct an assessment of the risks of CO 2 leakage, or escape of CO 2from the subsurface to the atmosphere, by evaluati ng the potential for leakage through a combination of site characterization and realistic models that pre dict movement of CO 2 over time and locations where emissions might occu r. A range of modeling tools is available, includin g reservoir simulators that are widely used in the oi l and gas industry and have proved effective in pre dicting movement of gases and liquids, including CO 2 , through geological formations. Reservoir simulation can be used to pre dict the likely location, timing, and flux of emiss ions. Additional numerical modeling techniques may need to be used to analyze aspects of the geology, such as multi-phase reactio n transport models and geomechanical models. (C) Monitor potential leakage pathways, measure lea kage at those pathways as necessary, monitor the cu rrent and future behavior of the CO 2and of the storage system, and use the results of the monitoring plan to validate and/ or update models as appropriate. Monitoring should be conducted according to a suitable plan. This sho uld take into account the expectations from the modeling on where leakage mig ht occur, as well as measurements made over the ent ire zone in which CO 2 is likely to be present. (ii) UIC Program: Proposed Rules for Geologic Storage . The Underground Injection Control (UIC) program w as established under the authority of Part C of the Safe Drinking Water Act (42 U.S.C. 300h et seq. ) (SDWA), which regulates underground injection wel ls. The SDWA is designed to protect the quality of drinking water sources in the United States. The SDWA gives the EPA authority to issue regulations f or state programs that contain “minimum requirement s for effective programs to prevent underground inj ection which endangers drinking water sources.” Under the UIC program, the EPA promulgated a series of regulations (40 C.F.R. parts 144 through 148) to employ a multiple barrie r approach that includes requirements for the proper geologic siting, constr uction, operation, testing, and closure of injectio n wells to ensure that injected fluids remain isola ted from underground sources of drinking water (USDWs) and the environment. On July 25, 2008, the EPA proposed rules relating t o federal requirements under the UIC Program for CO 2Geologic Sequestration Wells (73 Fed. Register No. 144, 40 C.F.R. parts 144-146). The EPA proposes to create a new categoryof injection well (Class VI) under its existing UI C Program with new federal requirements to permit t he injection of CO 2for the purpose of geologic sequestration ( i.e. , the long-term containment of a gaseous, liquid, o r supercritical CO 2 stream in subsurface geologic formations). The EPA proposes to tailor existing UIC program components to create standards appropriate for injecting large amounts of CO 2into a variety of geologic formations to ensure th at USDWs are not endangered. The proposed UIC program rules have not been finali zed as of the date of this notice. Once the UIC pro gram rules are finalized, any taxpayer claiming the § 45Q credit who is covered by the new program rules must follow the mo deling, monitoring, well construction, and other re quirements of the relevant permit as required under the rules. The requirements in the final UIC program rules (or anysuccessor rules) will apply in lieu of the require ments of the IPCC Guidelines under paragraph (i). H owever, any taxpayer that is not covered by the final UIC program rules must con tinue to follow the procedures outlined in the IPCCGuidelines pursuant to paragraph (i). (iii) Proposed Geologic Sequestration Rules . Subpart PP of the Final Mandatory GHG Reporting R ule announces EPA’s plans to propose new rules to require reporting of the amount of CO 2 that is geologically sequestered. EPA will seek co mments on monitoring, reporting, and verification m ethodologies that can be used to determine the amou nt of CO 2 emitted and geologically sequestered at active EOR faciliti es and geologic sequestration sites where CO 2is injected (for long-term storage) into saline aq uifers, oil and gas reservoirs, or other geologic formations. When the proposed geolog ic sequestration rules are finalized, such rules (o r any successor rules) will apply in addition to th e final UIC program rules (to the extent applicable), and the requirements of the IPCC Guidelines under paragraph (i) will no longer apply. (c) Compliance with Additional Regulatory Requirements . EPA may impose additional or different requiremen ts for secure geological storage, including additio nal methodology, inputs, and equations to calculate the amount of CO 2 measured and verified at the source of injection a nd/or the amount of CO 2 emitted from secure geological storage. Furthermore , various aspects of geologic sequestration, includin g well construction, operation, well plugging, and post-injection site closure may be subject to other existing or future requirements from government bodies, including EPA’s regional or state UIC programs. Any taxpayer claiming the § 45 Q credit must follow such additional requirements t ogether with the Reporting Rule and the IPCC Guidelines (or, in lieu of the IPCC guidelines, the UIC program rule as ap plicable and the geologic sequestration rule, once they are finalized) in order to demonstrate secure geological storage for purposes of the § 45Q credit. 

### SECTION 6. REPORTING REQUIREMENTS
.01 Annual Reports . A taxpayer that has claimed the § 45Q credit on a tax return must submit an annual report to the Service containing the following information: (a) The name, address, and taxpayer identification number of the reporting taxpayer, and all parties w ith which the taxpayer contractually ensures the se cure geological storage of the CO 2 ; (b) The name and location of the qualified faciliti es at which the CO 2 was captured; (c) The amounts (in metric tons) of qualified CO 2 for the taxable year that has been taken into acco unt for purposes of claiming the § 45Q credit; (d) Any changes in the information included in prio r annual reports submitted under section 6.01 of th is notice, including adjustments to the amount (in metric tons) of qualified CO 2 taken into account for purposes of the § 45Q creditin prior taxable years; and (e) A declaration, applicable to the report and anyaccompanying documents, signed by a person current ly authorized to bind the taxpayer in these matters , in the following form: “Under penalties of perjury, I declare that I have examined this report, including accompanying docume nts, and to the best of my knowledge and belief, th e facts presented in support of this report are true, correct, and complete.” .02 Time for Filing Reports . The annual report described in section 6.01 of th is notice must be filed with the Service at the fol lowing address not later than the last day of the s econd calendar month following the month during which the tax return on which the § 45Q credit is claimed wa s due (including extensions): 

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### SECTION 7. RECORDKEEPING REQUIREMENT
.01 In General . A taxpayer is not required to attach documentatio n to the return on which the credit is claimed. How ever, § 6001 of the Code provides that every person liable for any tax imposed by the Code, or for the collection thereof, must keep such records, render such statements , make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe. See Trea s. Reg. § 1.6001-1(e). .02 Information Must Be Available for Inspection . The taxpayer must retain in its records documenta tion establishing that the taxpayer qualifies for t he § 45Q credit. The taxpayer must, upon request, make such documentation availab le for inspection by the Service regardless of whet her the taxpayer physically or contractually ensure s injection or disposal in secure geological storage. Such necessary documenta tion includes, but is not limited to, the following : (a) Methodology, inputs, and equations used to meas ure the amount of CO 2at the source of capture and verify the amount at the point of disposal or injection. Qualified CO 2 for purposes of the § 45Q credit does not include the a mount of CO 2 recycled or re-injected as part of EOR operations. (b) Evidence of disposal of captured CO 2 in secure geological storage, as specified in sect ion 5 of this notice. As future Federal and state regulations are promulgated, such evidence may also include any certificates issued or determi nations made by a Federal or state government that the geological storage meets the necessary requirem ents to ensure secure storage. (c) Methodology, inputs, and equations used to calc ulate the amount of CO 2emitted from secure geological storage. (d) All contracts entered into by the taxpayer and any contracting party that ensures the use of the C O 2 as a tertiary injectant or the disposal of the CO 2 in secure geological storage.


### SECTION 8. PAPERWORK REDUCTION ACT
The collection of information contained in this not ice has been reviewed and approved by the Office of Management and Budget in accordance with the Paper work Reduction Act (44 U.S.C. § 3507) under control number 1545-2153. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of info rmation unless the collection of information displa ys a valid OMB control number. The collection of information is in section 6 of th is notice. This information is required to allow th e Secretary to determine when 75,000,000 metric ton s of qualified CO 2 have been taken into account for purposes of the § 45Q credit . The § 45Q credit will cease to be available after the end of the calendar year in which the Secretary, in consultation with the EPA, certifies that 75,000,000 metric tons of qualified CO 2 have been taken into account. This collection of i nformation is required to obtain a benefit. The lik ely respondents are businesses or other for-profit institutions. The estimated total annual reporting burden is 180 hours. The estimated annual burden per respondent varies f rom 2 to 10 hours, depending on individual circumst ances, with an estimated average of 6 hours. The es timated number of respondents is 30. The estimated annual frequency of responses is annu ally. Books or records relating to a collection of inform ation must be retained as long as their contents ma y become material in the administration of any inte rnal revenue law. Generally, tax returns and tax return information are confiden tial, as required by 26 U.S.C. § 6103.


### SECTION 9. DRAFTING INFORMATION The principal author of this notice is Jennifer C. Bernardini of the Office of Associate Chief Counsel (Passthroughs & Special Industries). For further i nformation regarding this notice, contact Jennifer C. Bernardini at (202) 622-3110 (not a toll-free call). Prev Up Next Home More Internal Revenue Bulletins 

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