II 

112TH CONGRESS 

2D SESSION S. 2074 

To amend the Internal Revenue Code of 1986 to expand the rehabilitation 

credit, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 6, 2012 

Mr. CARDIN (for himself and Ms. SNOWE) introduced the following bill; which 

was read twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 to expand 

the rehabilitation credit, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Creating American 

5 Prosperity through Preservation Act of 2012’’. 

6 SEC. 2. INCREASE IN THE REHABILITATION CREDIT FOR 

7 CERTAIN SMALLER PROJECTS. 

8 (a) IN GENERAL.—Section 47 of the Internal Rev9 enue Code of 1986 (relating to rehabilitation credit) is 


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1 amended by adding at the end the following new sub2 section: 

3 ‘‘(e) SPECIAL RULE REGARDING CERTAIN SMALLER

4 PROJECTS.— 

5 ‘‘(1) IN GENERAL.—In the case of any qualified 

6 rehabilitated building or portion thereof— 

7 ‘‘(A) which is placed in service after the 

8 date of the enactment of this subsection, and 

9 ‘‘(B) which is a smaller project, 

10 subsection (a)(2) shall be applied by substituting ‘30 

11 percent’ for ‘20 percent’. 

12 ‘‘(2) MAXIMUM CREDIT.—The credit deter13 mined under this subsection with respect to any 

14 smaller project for all taxable years shall not exceed 

15 $1,500,000. 

16 ‘‘(3) SMALLER PROJECT DEFINED.— 

17 ‘‘(A) IN GENERAL.—For purposes of this 

18 subsection, the term ‘smaller project’ means 

19 any qualified rehabilitated building or portion 

20 thereof if— 

21 ‘‘(i) the qualified rehabilitation ex22 penditures taken into account for purposes 

23 of this section (or would have been so 

24 taken into account if this subsection had 

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1 spect to the rehabilitation are not over 

2 $7,500,000, and 

3 ‘‘(ii) no credit was allowed under this 

4 section for either of the 2 prior taxable 

5 years with respect to such building. 

6 ‘‘(B) PROGRESS EXPENDITURES.—Credit 

7 allowable by reason of subsection (d) shall not 

8 be taken into account under subparagraph 

9 (A)(ii).’’. 

10 (b) EFFECTIVE DATE.—The amendment made by 

11 this section shall apply to periods after the date of the 

12 enactment of this Act, under rules similar to the rules of 

13 section 48(m) of the Internal Revenue Code of 1986 (as 

14 in effect on the day before the date of the enactment of 

15 the Revenue Reconciliation Act of 1990). 

16 SEC. 3. ADDITION OF ENERGY EFFICIENCY SUPPLEMENT 

17 TO REHABILITATION CREDIT. 

18 (a) IN GENERAL.—Subsection (a) of section 47 of the 

19 Internal Revenue Code of 1986 is amended by striking 

20 ‘‘and’’ at the end of paragraph (1), by striking the period 

21 at the end of paragraph (2) and inserting ‘‘, and’’, and 

22 by adding at the end the following new paragraph: 

23 ‘‘(3) 2 percent of the qualified rehabilitation ex24 penditures if the building is a qualified energy effi25 cient rehabilitated building.’’. 


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1 (b) QUALIFIED ENERGY EFFICIENT REHABILITATED

2 BUILDING.—Section 47 of such Code, as amended by sec3 tion 2, is amended by adding at the end the following new 

4 subsection: 

5 ‘‘(f) QUALIFIED ENERGY EFFICIENT REHABILI6 TATED BUILDING.— 

7 ‘‘(1) IN GENERAL.—The term ‘qualified energy 

8 efficient rehabilitated building’ means any building 

9 (and its structural components) if— 

10 ‘‘(A) the building is a qualified rehabili11 tated building, and 

12 ‘‘(B)(i) the rehabilitation is certified (in 

13 accordance with paragraph (4)) as being de14 signed to achieve at least a 30 percent energy 

15 use reduction in the building’s energy use, or 

16 ‘‘(ii) the building meets the requirements 

17 of paragraph (2)(B)(ii) and is determined under 

18 paragraph (2)(B) to achieve at least a 30 per19 cent energy use reduction after being rehabili20 tated. 

21 ‘‘(2) DETERMINATION OF ENERGY USE REDUC22 TION.—For purposes of paragraph (1)— 

23 ‘‘(A) DESIGN-BASED STANDARDS.— 

24 ‘‘(i) BUILDINGS WITHIN THE SCOPE

25 OF STANDARD 90.1–2007.—If the building 


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1 is within the scope of Standard 90.1–2007, 

2 the designed reduction in energy use shall 

3 be determined using methods of calculation 

4 under paragraph (3) in comparison to a 

5 reference building which meets the min6 imum requirements of such standard. 

7 ‘‘(ii) RESNET BUILDINGS.—If the 

8 building is within the scope of RESNET, 

9 the designed reduction in energy use shall 

10 be determined using methods prescribed by 

11 the Secretary which are based on the Resi12 dential Energy Services Network Technical 

13 Guidelines. 

14 ‘‘(iii) OTHER BUILDINGS.—If neither 

15 clause (i) or (ii) apply to the building, the 

16 designed reduction in energy use shall be 

17 determined using methods of calculation 

18 prescribed by the Secretary in a manner 

19 which is consistent with principles under 

20 paragraph (3). 

21 ‘‘(B) MEASURED REDUCTIONS.— 

22 ‘‘(i) IN GENERAL.—In the case of 

23 buildings which meet the requirements of 

24 clause (ii), the taxpayer may determine the 

25 reduction in energy usage by comparing 


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1 the energy usage during the period selected 

2 by the taxpayer under clause (ii)(I) with 

3 the energy usage during the period selected 

4 by the taxpayer under clause (ii)(II). 

5 ‘‘(ii) BUILDING REQUIREMENTS.—A 

6 building meets the requirements of this 

7 clause if— 

8 ‘‘(I) the building is at least 75 

9 percent occupied during any period 

10 (but not less than 12 months) selected 

11 by the taxpayer which ends during the 

12 5-year period ending on the date that 

13 the rehabilitation begins, and 

14 ‘‘(II) the building is at least 75 

15 percent occupied during the com16 parable period selected by the tax17 payer which begins during the 5-year 

18 period beginning on the date that the 

19 rehabilitation is completed. 

20 ‘‘(iii) ENERGY STAR BUILDINGS.—The 

21 reduction in energy use for buildings with22 in the scope of Energy Start Portfolio 

23 Manager may be determined for purposes 

24 of this subparagraph by using the Energy 


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1 Star Portfolio Manager Buildings Bench2 mark Tool. 

3 ‘‘(iv) SPECIAL RULES.—The Secretary 

4 shall prescribe regulations which preclude 

5 the use of this subparagraph, or modify 

6 the methods otherwise applicable under 

7 this subparagraph, in circumstance where 

8 vacancies, changes in use, and other fac9 tors which might otherwise yield in materi10 ally misleading results. 

11 ‘‘(v) YEAR CREDIT ALLOWABLE.—In 

12 the case of a building which is a qualified 

13 energy efficient rehabilitated building sole14 ly by reason of this subparagraph, the in15 crease in the credit under subsection (a)(3) 

16 with respect to such building shall be 

17 taken into account for the taxable year 

18 which includes the end of the period se19 lected by the taxpayer under clause (ii)(II) 

20 in lieu of the taxable year in which the re21 habilitated building is placed in service. 

22 ‘‘(3) METHODS OF CALCULATIONS.— 

23 ‘‘(A) IN GENERAL.—The Secretary, after 

24 consultation with the Secretary of Energy, shall 

25 promulgate regulations which describe in detail 


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1 methods for calculating and verifying energy 

2 and power consumption and cost, based on Ap3 pendix G of Standard 90.1–2007 (or any subse4 quent version of such Appendix which is in ef5 fect at the time of the certification). 

6 ‘‘(B) COMPUTER SOFTWARE.— 

7 ‘‘(i) IN GENERAL.—Any calculation 

8 under subparagraph (A) shall be prepared 

9 by qualified computer software. 

10 ‘‘(ii) QUALIFIED COMPUTER SOFT11 WARE.—For purposes of subparagraph 

12 (A), the term ‘qualified computer software’ 

13 means software— 

14 ‘‘(I) which is included (at the 

15 time of the certification) on the pub16 lished list of qualified software by the 

17 Department of Energy, and 

18 ‘‘(II) which provides such infor19 mation as the Secretary may require, 

20 including information that allows the 

21 user to document the energy efficiency 

22 features of the building and its pro23 jected annual energy costs, and 

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1 formance and, to the maximum extent 

2 practicable, relies on industry best 

3 practices and existing guidelines. 

4 ‘‘(4) CERTIFICATIONS.— 

5 ‘‘(A) IN GENERAL.—The Secretary shall 

6 prescribe the manner and method for the mak7 ing of certifications under this subsection. 

8 ‘‘(B) PROCEDURES.—The Secretary shall 

9 include as part of the certification process pro10 cedures for inspection and testing by qualified 

11 individuals described in subparagraph (C) to 

12 ensure compliance of buildings with energy-sav13 ings plans and targets. Such procedures shall 

14 be comparable, given the difference between 

15 commercial and residential buildings, to the re16 quirements in the Mortgage Industry National 

17 Accreditation Procedures for Home Energy 

18 Rating Systems. 

19 ‘‘(C) QUALIFIED INDIVIDUALS.—Individ20 uals qualified to determine compliance shall be 

21 only those individuals who are recognized by an 

22 organization certified by the Secretary for such 

23 purposes. For purposes of the preceding sen24 tence, an individual shall not be qualified with 

25 respect to a building unless the individual is— 


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1 ‘‘(i) a registered professional engineer, 

2 ‘‘(ii) not a direct employee of the 

3 owner of the commercial building or multi4 family building, and 

5 ‘‘(iii) licensed in the State in which 

6 such building is located. 

7 ‘‘(5) STANDARD 90.1–2007.—For purposes of 

8 this subsection, the term ‘Standard 90.1–2007’ 

9 means Standard 90.1–2007 of the American Society 

10 of Heating, Refrigerating, and Air Conditioning En11 gineers and the Illuminating Engineering Society of 

12 North America (or any subsequent version of such 

13 Standard which is in effect at the time of the certifi14 cation). 

15 ‘‘(6) ALLOCATION OF CREDIT FOR TAX-EXEMPT

16 PROPERTY.—Paragraphs (3) and (4) of section 

17 50(b), and clause (v) of subsection (c)(2)(B), shall 

18 not apply to those qualified rehabilitation expendi19 tures that are taken into account for purposes of 

20 certifying a building as a qualified energy efficient 

21 rehabilitated building under this subsection. Any re22 habilitation credit which is allowable by reason of 

23 the preceding sentence may be assigned to any other 

24 person, and such other person shall be treated as the 

25 taxpayer with respect thereto. 


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1 ‘‘(7) COORDINATION.—The Secretary shall des2 ignate processes for tracking the numbers and loca3 tions of buildings claiming the rehabilitation by rea4 son of this subsection, as well as providing informa5 tion on projected and actual savings of energy and 

6 its value over time in coordination with the Depart7 ment of Energy. 

8 ‘‘(8) REGULATIONS.—The Secretary, after con9 sultation with the Administrator of the Environ10 mental Protection Agency and the Secretary of the 

11 Interior, shall promulgate such regulations as may 

12 be necessary or appropriate to carry out the pur13 poses of this subsection, including regulations— 

14 ‘‘(A) to take into account new technologies 

15 regarding energy efficiency and renewable en16 ergy for purposes of determining energy effi17 ciency and savings under this subsection, and 

18 ‘‘(B) to provide for a recapture of the cred19 it determined under this subsection if the de20 sign referred to in paragraph (1)(B) is not fully 

21 implemented.’’. 

22 (c) SUBSTANTIAL REHABILITATION REQUIREMENT

23 NOT TO APPLY TO ENERGY EFFICIENCY SUPPLEMENT.— 

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1 ing qualified rehabilitated building) is amended by adding 

2 at the end the following new flush sentence: 

3 ‘‘Clause (i) shall not apply to so much of the 

4 rehabilitation credit as is determined under sub5 section (a)(3).’’. 

6 (d) EFFECTIVE DATES.— 

7 (1) IN GENERAL.—Except as provided in para8 graph (2), the amendments made by this section 

9 shall apply to property placed in service after the 

10 date of the enactment of this Act. 

11 (2) WAIVER OF SUBSTANTIAL REHABILITATION

12 REQUIREMENT.—The waiver of the requirement of 

13 section 47(c)(1)(A)(i) of the Internal Revenue Code 

14 of 1986 made by section 47(f)(1)(A) of such Code, 

15 as added by this Act, shall apply with respect to re16 habilitations the physical work on which begins after 

17 the date of the enactment of this Act. 

18 SEC. 4. MODIFICATION TO DEFINITION OF QUALIFIED RE19 HABILITATION EXPENDITURE. 

20 (a) IN GENERAL.—Clause (i) of section 47(c)(2)(A) 

21 of the Internal Revenue Code of 1986 (relating to the defi22 nition of qualified rehabilitation expenditures) is amended 

23 by striking ‘‘or’’ at the end of subclause (III), by striking 

24 subclause (IV), and by inserting after subclause (III) the 

25 following new subclauses: 


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1 ‘‘(IV) rehabilitated building en2 ergy efficiency property, or 

3 ‘‘(V) an addition or improvement 

4 to property described in subclause (I), 

5 (II), (III), or (IV), and’’. 

6 (b) REHABILITATED BUILDING ENERGY EFFICIENCY

7 PROPERTY.—Section 47(c)(2) of such Code is amended by 

8 adding at the end the following new subparagraph: 

9 ‘‘(E) REHABILITATED BUILDING ENERGY

10 EFFICIENCY PROPERTY.— 

11 ‘‘(i) IN GENERAL.—For purposes of 

12 subparagraph (A), the term ‘rehabilitated 

13 building energy efficiency property’ means 

14 property which is certified as being— 

15 ‘‘(I) affixed to, adjacent to, or in16 tegral to the provision of renewable 

17 energy to a qualified rehabilitated 

18 building, or 

19 ‘‘(II) installed as part of a plan 

20 designed to achieve any energy use re21 duction (within the meaning of sub22 section (f)). 

23 Subparagraph (B)(i) shall not apply to re24 habilitated building energy efficiency prop25 erty. 


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1 ‘‘(ii) CERTIFICATION.—The Secretary 

2 shall prescribe the manner and method for 

3 the making of certifications under clause 

4 (i).’’. 

5 (c) ENLARGEMENTS.—Clause (iii) of section 

6 47(c)(2)(B) of such Code is amended by adding at the 

7 end the following new sentence: ‘‘The preceding sentence 

8 shall not apply to any rehabilitated building energy effi9 ciency property which is an addition or improvement to 

10 a building.’’. 

11 (d) EFFECTIVE DATE.—The amendments made by 

12 this section shall apply to qualified rehabilitated buildings 

13 placed in service after the date of the enactment of this 

14 Act. 

15 SEC. 5. COORDINATION OF ENERGY CREDIT WITH REHA16 BILITATION CREDIT. 

17 (a) IN GENERAL.—Paragraph (2) of section 48(a) of 

18 the Internal Revenue Code of 1986 is amended by striking 

19 subparagraph (B). 

20 (b) CONFORMING AMENDMENTS.—Paragraph (2) of 

21 section 48(a) of such Code is amended— 

22 (1) by redesignating subparagraph (A)(ii) as 

23 subparagraph (B) and moving such subparagraph 2 

24 ems to the left, 


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1 (2) by redesignating subclauses (I) through 

2 (IV) of subparagraph (A)(i) as clauses (i) through 

3 (iv), respectively, and by moving such clauses 2 ems 

4 to the left, and 

5 (3) by striking so much of such paragraph as 

6 precedes ‘‘30 percent in the case of—’’ and inserting 

7 the following: 

8 ‘‘(2) ENERGY PERCENTAGE.—The energy per9 centage is— 

10 ‘‘(A) 30 percent in the case of—’’. 

11 (c) BASIS REDUCTION.—Paragraph (3) of section 

12 50(c) of such Code is amended by adding at the end the 

13 following new flush sentence: ‘‘In the case of property that 

14 qualifies for both the energy credit and the rehabilitation 

15 credit, the preceding sentence shall be applied by sub16 stituting ‘none’ for ‘only 50 percent’ each place it ap17 pears.’’. 

18 (d) EFFECTIVE DATE.—The amendments made by 

19 this section shall apply to property placed in service after 

20 the date of the enactment of this Act. 

21 SEC. 6. DATE BY WHICH BUILDING MUST BE FIRST PLACED 

22 IN SERVICE. 

23 (a) IN GENERAL.—Subparagraph (B) of section 

24 47(c)(1) of the Internal Revenue Code of 1986 (relating 


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1 to the date by which building must be first placed in serv2 ice) is amended— 

3 (1) by striking ‘‘BUILDING MUST BE FIRST

4 PLACED IN SERVICE BEFORE 1936’’ and inserting 

5 ‘‘DATE BY WHICH BUILDING MUST FIRST BE

6 PLACED IN SERVICE’’, and 

7 (2) by striking ‘‘before 1936’’ and inserting ‘‘no 

8 less than 50 years prior to the year in which quali9 fied rehabilitation expenditures are taken into ac10 count under subsection (b)(1)’’. 

11 (b) EFFECTIVE DATE.—The amendment made by 

12 this section shall apply to property placed in service after 

13 the date of the enactment of this Act. 

14 SEC. 7. MODIFICATIONS REGARDING CERTAIN TAX-EXEMPT 

15 USE PROPERTY. 

16 (a) IN GENERAL.—Clause (I) of section 

17 47(c)(2)(B)(v) of the Internal Revenue Code of 1986 (re18 lating to tax-exempt use property) is amended by inserting 

19 ‘‘and subclauses (I), (II), and (III) of section 

20 168(h)(1)(B)(ii) shall not apply’’ after ‘‘thereof’’. 

21 (b) EFFECTIVE DATE.—The amendments made by 

22 this section shall apply to property placed in service after 

23 the date of the enactment of this Act. 


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1 SEC. 8. SPECIAL RULES FOR DISPOSITIONS OF STATE HIS2 TORIC TAX CREDITS. 

3 (a) IN GENERAL.—Part III of subchapter B of chap4 ter 1 of the Internal Revenue Code of 1986 (relating to 

5 items specifically excluded from gross income) is amended 

6 by inserting after section 139D the following new section: 

7 ‘‘SEC. 139E. DISPOSITIONS OF STATE HISTORIC TAX CRED8 ITS. 

9 ‘‘(a) EXCLUSION FROM INCOME; BASIS REDUC10 TION.— 

11 ‘‘(1) IN GENERAL.—In the case of a taxpayer 

12 who receives a State historic tax credit and transfers 

13 such credit by sale, allocation, or otherwise, or re14 ceives a refund of all or a portion of such credit— 

15 ‘‘(A) no portion of the net proceeds of such 

16 allocation, disposition, or refund of such credit 

17 shall constitute income to such taxpayer under 

18 section 61(a), and 

19 ‘‘(B) the taxpayer’s basis in the property 

20 with respect to which the State historic tax 

21 credit is allowed shall be reduced as determined 

22 under paragraph (2). 

23 ‘‘(2) DETERMINATION OF REDUCTION IN

24 BASIS.—The reduction in basis under paragraph (1) 

25 shall be applied— 

26 ‘‘(A) first, against the basis in the land, 


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1 ‘‘(B) second, against so much of the basis 

2 of any building or interest therein as was not 

3 treated as a qualified rehabilitation expenditure 

4 by reason of clause (ii) or (iii) of section 

5 47(c)(2)(B), and 

6 ‘‘(C) third, against the remaining basis in 

7 the property. 

8 ‘‘(D) ADJUSTMENT IN BASIS OF INTEREST

9 IN PARTNERSHIP OR S CORPORATION.—The ad10 justed basis of— 

11 ‘‘(i) a partner’s interest in a partner12 ship, or 

13 ‘‘(ii) stock in an S corporation (as de14 fined in section 1361(a)(1)), 

15 shall be appropriately adjusted to take into ac16 count adjustments made under this subsection 

17 in the basis of property held by the partnership 

18 or S corporation (if any). 

19 ‘‘(b) ELECTION TO INCLUDE IN INCOME.— 

20 ‘‘(1) IN GENERAL.—In the case of a taxpayer 

21 elects to have this subsection apply— 

22 ‘‘(A) the net proceeds of the allocation, dis23 position, or refund described in subsection (a) 

24 received by such taxpayer shall constitute in25 come to such taxpayer under section 61(a), and 


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1 ‘‘(B) subsection (a)(1)(B) shall not apply. 

2 ‘‘(2) MAKING OF ELECTION.—An election under 

3 this subsection shall be made at such time and in 

4 such manner as the Secretary of the Treasury may 

5 by regulation prescribe. Such election shall apply for 

6 the taxable year for which it is made and for all sub7 sequent taxable years and may be revoked only with 

8 the consent of the Secretary of the Treasury. 

9 ‘‘(c) EFFECT ON QUALIFIED REHABILITATION EX10 PENDITURES AND REHABILITATION CREDITS.—For pur11 poses of determining the rehabilitation credit allowable to 

12 a taxpayer under section 47, the transfer or allocation of 

13 State historic tax credits with respect to any property by 

14 a taxpayer shall not affect or reduce the amount of quali15 fied rehabilitation expenditures (as defined in section 

16 47(c)(2)) incurred in connection with such property, nor 

17 shall such transfer or disposition, nor any basis adjust18 ments under subsection (a), be treated as an early disposi19 tion of investment credit property for purposes of the re20 capture provisions of section 50. 

21 ‘‘(d) STATE HISTORIC TAX CREDITS DEFINED.—For 

22 purposes of this section, the term ‘State historic tax credit’ 

23 means any credit against State or local tax liabilities 

24 which— 


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1 ‘‘(1) is allowable under the laws of any State or 

2 political subdivision thereof to a taxpayer with re3 spect to expenditures made for the rehabilitation of 

4 property identified by such laws, and 

5 ‘‘(2) can be allocated, disposed, or refunded 

6 under such laws.’’. 

7 (b) CLERICAL AMENDMENT.—The table of sections 

8 for such part III is amended by inserting after the item 

9 relating to section 139D the following new item: 

‘‘Sec. 139E. Dispositions of State historic tax credits.’’. 

10 (c) EFFECTIVE DATE.—This section shall apply to 

11 transfers or dispositions made, or refunds received, after 

12 the date of the enactment of this Act. 

Æ 


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