SECTION 5. ALLOCATION OF

THE UNUTILIZED NATIONAL MEGAWATT CAPACITY LIMITATION

.01 Application Limited to Facilities Certified by DOE . The IRS will allocate the unutilized NMCL only to advanced nuclear power facilities (within the meaning of § 45J(d)(1)(A)) for which the DOE provides certification to the IRS that the facility qualifies as an “advanced nuclear facility.” For purposes of this notice, each nuclear power reactor located on a multi-reactor site is a separate facility. At this time, only an owner of an advanced nuclear power facility that (i) either (I) previously received a certification from the DOE under Notice 2013-68 that such facility qualified as an “advanced nuclear facility” or (II) acquired the facility after the IRS had provided a previous owner of the facility a letter stating that the DOE had certified that facility as an “advanced nuclear facility” under Notice 2013-68, and (ii) maintains an active NRC construction permit or license or combined license, may apply for an allocation of the unutilized NMCL pursuant to this notice. In addition, the rule in section 4.04(3) and (5) of Notice 2013-68 that undivided ownership shares in a facility would be treated as separate facilities for purposes of that notice is disregarded for purposes of determining whether a facility previously received a DOE certification under Notice 2013-68.

Bulletin No. 2023–13 573 March 27, 2023

(3) The nameplate capacity of the facility;

(4) A statement signed under penalties of perjury (as provided in section 6.03(8) of this notice) providing the date on which the facility was placed in service, the date the facility received an NRC construction permit or license or combined license, and a statement that such permit or license remains active. If the date on which the facility was placed in service is unknown at the time of the Application for § 45J Allocation, such application may be supplemented at any time prior to the application deadline specified in section 6.02 of this notice;

(5) The total amount of unutilized NMCL requested (not to exceed the nameplate capacity of the facility);

(6) If a taxpayer’s Application for § 45J Allocation relates to a facility in which more than one person owns (or is treated as owning) a direct interest (as described in section 5.03(3) or (5) of this notice), the taxpayer must submit documentation of its undivided ownership share in the facility;

(7) If the facility is owned by an organization that has made a § 761(a) election, a copy of the § 761 election;

(8) A declaration, applicable to the Application for § 45J Allocation and any required supplemental submissions, signed by a person currently authorized to bind the taxpayer in these matters, in the following form:

“Under penalties of perjury I declare that I have examined the information contained in this Application for § 45J Allocation and the documents that substantiate this Application for § 45J Allocation, and to the best of my knowledge and belief, it is true, correct, and complete.”

(9) The following additional statement:

“I further declare that I have authority to sign this Application for § 45J Allocation (and any supplemental submissions) on behalf of the taxpayer.”

.04 Where to Submit an Application for § 45J Allocation .

(1) An Application for § 45J Allocation should be sent to the following address:

.02 Application Required . The IRS will not allocate the unutilized NMCL to any owner of an advanced nuclear power facility unless such owner submits a completed application in accordance with section 6 of this notice.

.03 Allocation Method . The unutilized NMCL will be allocated as follows:

(1) Each facility that meets the requirements of sections 5 and 6 of this notice (qualified facility) will be allocated an amount of the unutilized NMCL equal to its nameplate capacity in the order in which such facilities are placed in service (provided the application deadline specified in section 6.02 of this notice is met). The amount of the unutilized NMCL allocated to a qualified facility is referred to as the facility limitation.

(2) The IRS will continue to allocate the unutilized NMCL equal to the nameplate capacity of a qualified facility until all the unutilized NMCL is allocated. The final recipient(s) of the remaining unutilized NMCL may receive only a portion of the unutilized NMCL for which it applied even if it otherwise meets the requirements under this notice to receive a full allocation.

(3) If only one taxpayer owns a direct interest in a qualified facility, the entire facility limitation is allocated to such taxpayer. If more than one taxpayer owns a direct interest in a qualified facility, each taxpayer’s undivided ownership share in the qualified facility will be treated for purposes of this notice as a separate qualified facility owned by such taxpayer. In such cases, a taxpayer’s application must identify the portion of the total nameplate capacity of the qualified facility that is equal to its undivided ownership share in the qualified facility.

(4) Except as provided in sections 3.03 and 5.03(5) of this notice, if a qualified facility is owned by a partnership or S corporation, then the partnership or S corporation, and not the partners or shareholders, will be treated as the taxpayer that owns the qualified facility for the purposes of this notice. In such cases, the § 45J credit must be allocated to the partners or shareholders in accordance with § 1.704-1(b)(4)(ii), in the case of partnerships, or § 1.1366-1(a)(2)(v), in the case of S corporations.

(5) If the qualified facility is owned through an organization that has made a

valid § 761(a) election, each member’s undivided ownership share in the qualified facility will be treated for purposes of this notice as a separate qualified facility owned by such member. In such cases, a member’s application for an allocation must identify the portion of the total nameplate capacity of the qualified facility that is equal to its undivided ownership share in the qualified facility.