Pillsbury Winthrop Shaw Pittman

IRS issues long-promised guidance following Historic Boardwalk decision

To welcome in the new year, the Internal Revenue Service (IRS) issued Rev. Proc. 2014-12, 2014-3 I.R.B. 415 to provide administrative guidance to the federal historic tax credit industry in the aftermath of the Third Circuit’s decision in Historic Boardwalk Hall LLC v Commissioner, 694 F.3d 425 (3d Cir. 2012), cert. denied, 133 S.Ct. 2734 (2013).

Rev. Proc. 2014-12 includes a Safe Harbor pursuant to which the IRS will not challenge the allocation of rehabilitation tax credits under section 47 of the Internal Revenue Code of 1986, as amended, among partners in a partnership.

Overall, the guidance is a good-faith and useful attempt by the IRS to set reasonable Safe Harbor parameters while addressing its concerns with the deal structure in the Historic Boardwalk case. Unfortunately, it does also include some puzzling elements…

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