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§ 43. Enhanced oil recovery credit

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Release point 115-35 · current through 05/17/2017

§ 43.

Enhanced oil recovery credit

(a)

General rule

For purposes of section 38, the enhanced oil recovery credit for any taxable year is an amount equal to 15 percent of the taxpayer’s qualified enhanced oil recovery costs for such taxable year.

(b)

Phase-out of credit as crude oil prices increase

(1)

In general

The amount of the credit determined under subsection (a) for any taxable year shall be reduced by an amount which bears the same ratio to the amount of such credit (determined without regard to this paragraph) as—

(A)

the amount by which the reference price for the calendar year preceding the calendar year in which the taxable year begins exceeds $28, bears to

(B)

$6.

(2)

Reference price

For purposes of this subsection, the term “reference price” means, with respect to any calendar year, the reference price determined for such calendar year under section 45K(d)(2)(C).

(3)

Inflation adjustment

(A)
In general

In the case of any taxable year beginning in a calendar year after 1991, there shall be substituted for the $28 amount under paragraph (1)(A) an amount equal to the product of—

(i)

$28, multiplied by

(ii)

the inflation adjustment factor for such calendar year.

(B)
Inflation adjustment factor

The term “inflation adjustment factor” means, with respect to any calendar year, a fraction the numerator of which is the GNP implicit price deflator for the preceding calendar year and the denominator of which is the GNP implicit price deflator for 1990. For purposes of the preceding sentence, the term “GNP implicit price deflator” means the first revision of the implicit price deflator for the gross national product as computed and published by the Secretary of Commerce. Not later than April 1 of any calendar year, the Secretary shall publish the inflation adjustment factor for the preceding calendar year.

(c)

Qualified enhanced oil recovery costs

For purposes of this section—

(1)

In general

The term “qualified enhanced oil recovery costs” means any of the following:

(A)

Any amount paid or incurred during the taxable year for tangible property—

(i)

which is an integral part of a qualified enhanced oil recovery project, and

(ii)

with respect to which depreciation (or amortization in lieu of depreciation) is allowable under this chapter.

(B)

Any intangible drilling and development costs—

(i)

which are paid or incurred in connection with a qualified enhanced oil recovery project, and

(ii)

with respect to which the taxpayer may make an election under section 263(c) for the taxable year.

(C)

Any qualified tertiary injectant expenses (as defined in section 193(b)) which are paid or incurred in connection with a qualified enhanced oil recovery project and for which a deduction is allowable for the taxable year.

(D)

Any amount which is paid or incurred during the taxable year to construct a gas treatment plant which—

(i)

is located in the area of the United States (within the meaning of section 638(1)) lying north of 64 degrees North latitude,

(ii)

prepares Alaska natural gas for transportation through a pipeline with a capacity of at least 2,000,000,000,000 Btu of natural gas per day, and

(iii)

produces carbon dioxide which is injected into hydrocarbon-bearing geological formations.

(2)

Qualified enhanced oil recovery project

For purposes of this subsection—

(A)
In general

The term “qualified enhanced oil recovery project” means any project—

(i)

which involves the application (in accordance with sound engineering principles) of 1 or more tertiary recovery methods (as defined in section 193(b)(3)) which can reasonably be expected to result in more than an insignificant increase in the amount of crude oil which will ultimately be recovered,

(ii)

which is located within the United States (within the meaning of section 638(1)), and

(iii)

with respect to which the first injection of liquids, gases, or other matter commences after

December 31, 1990
.

(B)
Certification

A project shall not be treated as a qualified enhanced oil recovery project unless the operator submits to the Secretary (at such times and in such manner as the Secretary provides) a certification from a petroleum engineer that the project meets (and continues to meet) the requirements of subparagraph (A).

(3)

At-risk limitation

For purposes of determining qualified enhanced oil recovery costs, rules similar to the rules of section 49(a)(1), section 49(a)(2), and section 49(b) shall apply.

(4)

Special rule for certain gas displacement projects

For purposes of this section, immiscible non-hydrocarbon gas displacement shall be treated as a tertiary recovery method under section 193(b)(3).

(5)

Alaska natural gas

For purposes of paragraph (1)(D)—

(A)
In general

The term “Alaska natural gas” means natural gas entering the Alaska natural gas pipeline (as defined in section 168(i)(16) (determined without regard to subparagraph (B) thereof)) which is produced from a well—

(i)

located in the area of the State of Alaska lying north of 64 degrees North latitude, determined by excluding the area of the Alaska National Wildlife Refuge (including the continental shelf thereof within the meaning of section 638(1)), and

(ii)

pursuant to the applicable State and Federal pollution prevention, control, and permit requirements from such area (including the continental shelf thereof within the meaning of section 638(1)).

(B)
Natural gas

The term “natural gas” has the meaning given such term by section 613A(e)(2).

(d)

Other rules

(1)

Disallowance of deduction

Any deduction allowable under this chapter for any costs taken into account in computing the amount of the credit determined under subsection (a) shall be reduced by the amount of such credit attributable to such costs.

(2)

Basis adjustments

For purposes of this subtitle, if a credit is determined under this section for any expenditure with respect to any property, the increase in the basis of such property which would (but for this subsection) result from such expenditure shall be reduced by the amount of the credit so allowed.

(e)

Election to have credit not apply

(1)

In general

A taxpayer may elect to have this section not apply for any taxable year.

(2)

Time for making election

An election under paragraph (1) for any taxable year may be made (or revoked) at any time before the expiration of the 3-year period beginning on the last date prescribed by law for filing the return for such taxable year (determined without regard to extensions).

(3)

Manner of making election

An election under paragraph (1) (or revocation thereof) shall be made in such manner as the Secretary may by regulations prescribe.

Source(Added Pub. L. 101–508, title XI, § 11511(a),
Nov. 5, 1990
, 104 Stat. 1388–483; amended Pub. L. 106–554, § 1(a)(7) [title III, § 317(a)],
Dec. 21, 2000
, 114 Stat. 2763, 2763A–645; Pub. L. 108–357, title VII, § 707(a), (b),
Oct. 22, 2004
, 118 Stat. 1550; Pub. L. 109–58, title XIII, § 1322(a)(3)(B),
Aug. 8, 2005
, 119 Stat. 1011; Pub. L. 109–135, title IV, § 412(i),
Dec. 21, 2005
, 119 Stat. 2637.)
Notes

Inflation Adjusted Items for Certain Tax Years

For inflation adjustment of certain items in this section, see Internal Revenue Notices listed in a table below.

Prior Provisions

A prior section 43 was renumbered section 32 of this title.
Another prior section 43 was renumbered section 37 of this title.

Amendments

2005—Subsec. (b)(2). Pub. L. 109–58 substituted “section 45K(d)(2)(C)” for “section 29(d)(2)(C)”.
Subsec. (c)(5). Pub. L. 109–135 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “For purposes of paragraph (1)(D)—
“(1) In general.—The term ‘Alaska natural gas’ means natural gas entering the Alaska natural gas pipeline (as defined in section 168(i)(16) (determined without regard to subparagraph (B) thereof)) which is produced from a well—
“(A) located in the area of the State of Alaska lying north of 64 degrees North latitude, determined by excluding the area of the Alaska National Wildlife Refuge (including the continental shelf thereof within the meaning of section 638(1)), and
“(B) pursuant to the applicable State and Federal pollution prevention, control, and permit requirements from such area (including the continental shelf thereof within the meaning of section 638(1)).
“(2) Natural gas.—The term ‘natural gas’ has the meaning given such term by section 613A(e)(2).”
2004—Subsec. (c)(1)(D). Pub. L. 108–357, § 707(a), added subpar. (D).
Subsec. (c)(5). Pub. L. 108–357, § 707(b), added par. (5).
2000—Subsec. (c)(1)(C). Pub. L. 106–554 inserted “(as defined in section 193(b))” after “expenses” and struck out “under section 193” after “allowable”.

Effective Date of 2005 Amendment

Amendment by Pub. L. 109–58 applicable to credits determined under the Internal Revenue Code of 1986 for taxable years ending after
Dec. 31, 2005
, see section 1322(c)(1) of Pub. L. 109–58, set out as a note under section 45K of this title.

Effective Date of 2004 Amendment

Pub. L. 108–357, title VII, § 707(c),
Oct. 22, 2004
, 118 Stat. 1550, provided that:
“The amendment made by this section [amending this section] shall apply to costs paid or incurred in taxable years beginning after
December 31, 2004
.”

Effective Date of 2000 Amendment

Pub. L. 106–554, § 1(a)(7) [title III, § 317(b)],
Dec. 21, 2000
, 114 Stat. 2763, 2763A–645, provided that:
“The amendment made by this section [amending this section] shall take effect as if included in section 11511 of the Revenue Reconciliation Act of 1990 [Pub. L. 101–508].”

Effective Date

Pub. L. 101–508, title XI, § 11511(d),
Nov. 5, 1990
, 104 Stat. 1388–485, provided that:
“(1)

In general.—

The amendments made by this section [enacting this section and amending sections 38, 39, 196, and 6501 of this title] shall apply to costs paid or incurred in taxable years beginning after

December 31, 1990
.

“(2)

Special rule for significant expansion of projects.—

For purposes of section 43(c)(2)(A)(iii) of the Internal Revenue Code of 1986 (as added by subsection (a)), any significant expansion after

December 31, 1990
, of a project begun before
January 1, 1991
, shall be treated as a project with respect to which the first injection commences after
December 31, 1990
.”

Inflation Adjusted Items for Certain Years

Provisions relating to inflation adjustment of items in this section for certain years were contained in the following:
2015—Internal Revenue Notice 2015–64.
2014—Internal Revenue Notice 2014–64.
2013—Internal Revenue Notice 2013–50.
2012—Internal Revenue Notice 2012–49.
2011—Internal Revenue Notice 2011–57.
2010—Internal Revenue Notice 2010–72.
2009—Internal Revenue Notice 2009–73.
2008—Internal Revenue Notice 2008–72.
2007—Internal Revenue Notice 2007–64.
2006—Internal Revenue Notice 2006–62.
2005—Internal Revenue Notice 2005–56.
2004—Internal Revenue Notice 2004–49.
2003—Internal Revenue Notice 2003–43.
2002—Internal Revenue Notice 2002–53.
2001—Internal Revenue Notice 2001–54.
2000—Internal Revenue Notice 2000–51.
1999—Internal Revenue Notice 99–45.
1998—Internal Revenue Notice 98–41.
1997—Internal Revenue Notice 97–39.
1996—Internal Revenue Notice 96–41.

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