Historic Tax Credit Industry Waits for Boardwalk Guidance from the IRS

In the aftermath of the Third Circuit Court of Appeals reversal of the lower Tax Court decision of the Historic Boardwalk case while industrial investments in the Federal historic tax credits continue the Historic Tax Credit industry has been waiting from promised guidance by the Internal Revenue Service (the “IRS”) in the form of a Revenue Procedure. In this interim, transactions are being structured to address concerns of the IRS voiced in its appeal of Historic Boardwalk and some of the principles contained in Revenue Procedure 2007-65. On October 19th 2007 the IRS issued Revenue Procedure 2007-65 (the “Wind Rev. Proc. establishing a “safe harbor” for the “flip” structures for partners and partnership that own and produce electricity from qualified wind energy facilities under Section 45 of the Internal Revenue Code. The energy tax credit and the federal rehabilitation tax credit are investment tax credits under the Code and the Revenue Procedure to be issued by the IRS may mirror may of the provisions contained in Wind Rev. Proc. It is hoped that the Historic Tax Credit Revenue Procedure will be issued by the IRS by the end of the year.