Code of Federal Regulations · Section

§ 1.45-8 — -8 Apprenticeship Requirements

26 C.F.R. § 1.45-8

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(a) Apprenticeship requirements—(1) In general. Except as provided in paragraphs (a)(2) and (f) of this section, a taxpayer claiming or transferring (under section 6418) the increased credit amount under section 45(b)(6)(B)(iii) with respect to any qualified facility must satisfy the requirements of section 45(b)(8) and this section with respect to the construction of such facility (Apprenticeship Requirements). The taxpayer is solely responsible for ensuring that the Apprenticeship Requirements are satisfied. See paragraph (g) of this section for definitions of terms used in this section.

(2) Transition relief. Taxpayers are excepted from the Apprenticeship Requirements with respect to any activities that would be considered construction, alteration, or repair of the qualified facility and that occurred prior to January 29, 2023.

(b) Labor hours requirement—(1) Percentage of total labor hours. A taxpayer claiming or transferring (under section 6418) the increased credit amount under section 45(b)(6) must ensure that qualified apprentices (hired by the taxpayer, contractor, or subcontractor) perform not less than the applicable percentage of the total labor hours of the construction, alteration, or repair work (including work performed by any contractor or subcontractor) with respect to any qualified facility prior to the facility being placed in service, subject to the apprentice-to-journeyworker ratio described in paragraph (c) of this section. The percentage of total labor hours is calculated on a per qualified facility basis, aggregating all hours worked by all laborers and mechanics (including the hours of qualified apprentices) during construction of the facility and dividing the total hours worked by all laborers and mechanics by the hours of the qualified apprentices.

(2) Applicable percentage. For purposes of paragraph (b)(1) of this section, and subject to paragraph (b)(3) of this section, the applicable percentage is—

(i) 10 percent in the case of a qualified facility, the construction of which begins before January 1, 2023;

(ii) 12.5 percent in the case of a qualified facility, the construction of which begins after December 31, 2022, and before January 1, 2024; and

(iii) 15 percent in the case of a qualified facility, the construction of which begins after December 31, 2023.

(3) Transition rule. Taxpayers may apply the rules set forth in Notice 2022-61, 2022-52 I.R.B. 560, or these regulations for determining when construction began for purposes of the applicable percentage of labor hours performed by qualified apprentices required under section 45(b)(8)(A) and paragraph (b)(2) of this section.

(c) Ratio requirement—(1) In general. The labor hours requirement under paragraph (b) of this section is subject to any applicable requirements for apprentice-to-journeyworker ratios of the U.S. Department of Labor or the applicable State apprenticeship agency.

(2) Ratio. The allowable ratio of apprentices to journeyworkers on the job site in any occupation and its corresponding classification on any day must comply with the applicable apprentice-to-journeyworker ratio of the registered apprenticeship program in accordance with 29 CFR part 29. If a taxpayer, contractor, or subcontractor is performing construction, alteration, or repair work on a qualified facility in a geographic area other than the geographic area in which an apprenticeship program is registered, the taxpayer, contractor, or subcontractor must comply with the apprentice-to-journeyworker ratios applicable within the geographic area in which the construction, alteration, or repair work is being performed. If there is no applicable ratio for the geographic area of the qualified facility, the ratio specified in the registered apprenticeship program standard must be observed.

(3) Failure to meet ratio requirements. For purposes of section 45(b)(8)(B) and paragraph (b) of this section, if on any day the ratio of apprentices to journeyworkers exceeds the ratio established in accordance with paragraph (c)(2) of this section, subject to the requirements of the registered apprenticeship program, the labor hours performed by any qualified apprentice in excess of the ratio may not be counted as hours performed by qualified apprentices for purposes of the labor hours requirement. The hours devoted to the performance of construction, alteration, or repair work by any qualified apprentice in excess of the ratio will be counted towards the total labor hours, but will not be counted as hours performed by qualified apprentices for purposes of the labor hours requirement under paragraph (b) of this section.

(d) Participation requirement. Each taxpayer, contractor, or subcontractor who employs four or more individuals to perform construction, alteration, or repair work with respect to the construction of a qualified facility must employ one or more qualified apprentices to perform work with respect to the construction, alteration, or repair of the qualified facility prior to the facility being placed in service. The participation requirement applies if a taxpayer, contractor, or subcontractor employs four or more individuals in the construction of the qualified facility over the entire course of the construction, regardless of whether they are employed at the same location or at the same time.

(e) Examples. The provisions of paragraphs (b) through (d) of this section are illustrated by the following examples. For purposes of the following examples, assume that each taxpayer has a calendar year taxable year.

(i) Example 1. Taxpayer A starts construction of a qualified facility on April 1, 2023. Accordingly, Taxpayer A must ensure that at least 12.5% of the total labor hours are performed by qualified apprentices. The facility is placed in service on April 1, 2025, and Taxpayer A claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2025 tax return. A total of eight individuals performed construction, alteration, or repair work during the construction of the facility, all of whom were employed directly by Taxpayer A. Taxpayer A employed four journeyworkers and no qualified apprentices from April 1, 2023 through October 31, 2024. Taxpayer A hired four qualified apprentices and retained three journeyworkers to perform construction on the facility for the period of November 1, 2024 through March 31, 2025. The registered apprenticeship program from which Taxpayer A requested the apprentices required a ratio of one journeyworker for every apprentice. In the first year of construction, a total of 10,000 labor hours were performed on construction, alteration, or repair work of the facility, with each journeyworker working 2,500 hours. In the second year of construction, 7,000 labor hours were performed on construction, alteration, or repair work of the facility, with each qualified apprentice and journeyworker working 1,000 hours during this time. On each day of work during the second year of construction, the three journeyworkers oversaw the work of the four qualified apprentices. A total of 17,000 labor hours were spent on the construction, alteration, or repair work of the facility, requiring that 2,125 labor hours be performed by qualified apprentices. Only 3,000 labor hours performed by qualified apprentices count towards the labor hours requirement because the ratio requirement was only satisfied with respect to the work of three qualified apprentices. Taxpayer A satisfied the labor hours requirement under paragraph (b)(2) of this section because more than 12.5% (3,000 qualified apprentice hours/17,000 total labor hours = 17.6%) of the total labor hours were performed by qualified apprentices. Taxpayer A was also subject to the participation requirement because four or more individuals employed by Taxpayer A performed construction work on the facility. Taxpayer A satisfied the participation requirement because Taxpayer A hired at least one qualified apprentice to perform construction, alteration, or repair with respect to the facility.

(ii) Example 2. Taxpayer B intends to construct a qualified facility to claim the increased credit amount under section 45(b)(6)(B)(iii) and executes a contract for the construction of the facility. On December 31, 2023, Taxpayer B expends sufficient funds to meet the 5 Percent Safe Harbor for beginning of construction in reliance on Notice 2022-61. Construction activities as defined in paragraph (d)(3) of this section start on January 1, 2024. In reliance on Notice 2022-61, Taxpayer B employs qualified apprentices for 12.5% of the total construction hours to complete the qualified facility. Because Taxpayer B applies the 12.5% applicable percentage in reliance on Notice 2022-61 for construction beginning before January 1, 2024, but after December 31, 2022, Taxpayer B has satisfied the Labor Hours Requirement, assuming all other provisions of the Labor Hours Requirement are also satisfied.

(iii) Example 3. Taxpayer C starts construction of a qualified facility on April 1, 2023, and complies with the Labor Hours Requirement, the Ratio Requirement, and the Participation Requirement with respect to the construction of the facility before it is placed in service on April 1, 2025. Taxpayer C claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2025 tax return. The qualified facility was repaired from September 1, 2025, through October 31, 2025. No qualified apprentices were employed for the repairs. Taxpayer C did not fail the Apprenticeship Requirements because the Apprenticeship Requirements do not apply after the qualified facility is placed in service.

(iv) Example 4. Taxpayer D starts construction of a qualified facility on April 1, 2023. Accordingly, Taxpayer D must ensure that at least 12.5% of the total labor hours are performed by qualified apprentices. The facility is placed in service on April 1, 2025, and Taxpayer D claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2025 tax return. Taxpayer D employed 12 individuals to perform the construction, alteration, and repair work on the qualified facility. Taxpayer D is subject to the participation requirement. For the first year of construction, a total of 25,000 labor hours were performed on the construction, alteration, or repair of the facility, 3,000 of which were performed by qualified apprentices. For the second year of construction, an additional 25,000 labor hours were performed on the construction, alteration, or repair of the facility, 3,250 of which were performed by qualified apprentices. The ratio requirement was satisfied for all labor hours performed by qualified apprentices. Taxpayer D has satisfied the labor hours requirement because 12.5% (6,250 labor hours divided by 50,000 labor hours) of the total labor hours were performed by qualified apprentices.

(v) Example 5. Taxpayer E starts construction of a qualified facility on January 1, 2024. Accordingly, Taxpayer E must ensure that at least 15% of the total labor hours are performed by qualified apprentices. The facility is placed in service on June 1, 2026. Taxpayer E claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2026 tax return. All individuals who performed the construction, alteration, or repair work were employed directly by Taxpayer E. A total of 50,000 labor hours were spent on the construction, alteration, or repair work of the facility, 7,000 of which were performed by qualified apprentices and the ratio requirement was met for all 7,000 labor hours. Qualified apprentices also spent 500 hours in classroom training at a location other than the location of the qualified facility in preparation for the performance of construction, alteration, or repair work at the qualified facility. Taxpayer E did not satisfy the labor hours requirement under paragraph (b)(2) of this section because less than 15% of the total labor hours were performed by qualified apprentices. The hours spent on classroom training at a location other than the location of the qualified facility in preparation for the construction, alteration, or repair of the facility are not considered labor hours performed by qualified apprentices.

(f) Exceptions to the apprenticeship requirements. If a taxpayer fails to satisfy the Apprenticeship Requirements in paragraph (a) of this section with respect to the construction, alteration, or repair of any qualified facility prior to the facility being placed in service, the taxpayer will nonetheless be deemed to have satisfied the Apprenticeship Requirements if the taxpayer has made a good faith effort to meet the Apprenticeship Requirements as described in paragraph (f)(1) of this section (Good Faith Effort Exception) or made the penalty payment provided in paragraph (f)(2) of this section (Apprenticeship Cure Provision) for any failures to which the Good Faith Effort Exception does not apply.

(1) Good faith effort exception—(i) In general. A taxpayer is deemed to have satisfied the Apprenticeship Requirements of this section with respect to a request for qualified apprentices if the taxpayer meets the following requirements:

(A) Request for qualified apprentices. The taxpayer, contractor, or subcontractor must submit a written request for qualified apprentices to at least one registered apprenticeship program that has a geographic area of operation that includes the location of the qualified facility; trains qualified apprentices in the occupation(s) needed to perform construction, alteration, or repair with respect to the facility; and has a usual and customary business practice of entering into agreements with employers for the placement of qualified apprentices in the occupation for which they are training, consistent with the standards and requirements set forth in 29 CFR parts 29 and 30, and any subsequent guidance issued by the Department of Labor. Such request must be in writing and sent electronically or by registered mail. The initial request to a registered apprenticeship program for qualified apprentices must be made no later than 45 days before the qualified apprentices are requested to start work. Any subsequent requests for qualified apprentices made to the same registered apprenticeship program after the initial request must be made no later than 14 days before the qualified apprentices are requested to start work. If there is no registered apprenticeship program that has a geographic area of operation that includes the location of the qualified facility; trains qualified apprentices in the occupation(s) needed to perform construction, alteration, or repair with respect to the facility; and has a usual and customary business practice of entering into agreements with employers for the placement of qualified apprentices in the occupation for which they are training, consistent with the standards and requirements set forth in 29 CFR parts 29 and 30, and any subsequent guidance issued by the Department of Labor, the taxpayer will be deemed to satisfy the Good Faith Effort Exception with respect to the qualified apprentices that the taxpayer, contractor, or subcontractor would have requested.

(1) Content of valid request. The request of the taxpayer, contractor, or subcontractor must include the proposed dates of employment, occupation of qualified apprentices needed, location of the work to be performed, number of qualified apprentices needed, the number of labor hours expected to be performed by the qualified apprentices, and the name and contact information of the taxpayer, contractor, or subcontractor requesting employment of qualified apprentices from the registered apprenticeship program. Reasonable estimates of the foregoing information are permissible. The request must also state that the request for qualified apprentices is made with an intent to employ qualified apprentices in the occupation for which they are being trained and in accordance with the requirements and standards of the registered apprenticeship program and to employ qualified apprentices consistent with the expected number of hours and dates of employment specified in the request. If the employer of the requested qualified apprentices is not the same as the taxpayer, contractor, or subcontractor submitting the request for qualified apprentices, then the request must include the name of the employer.

(2) Duration of request. If the taxpayer, contractor, or subcontractor submits a request in accordance with paragraph (f)(1)(i)(A) of this section and the request is denied or not responded to, the taxpayer will be deemed to have exercised a Good Faith Effort with respect to the request for the period described in the request but not exceeding 365 days (366 days in case of a leap year). For requests that are denied or not responded to and include a period of employment for qualified apprentices that exceeds 365 days (366 days in case of a leap year), the taxpayer, contractor, or subcontractor must submit one or more additional requests with respect to the period of such request in excess of 365 days (366 days in case of a leap year). The taxpayer will not be deemed to have exercised a Good Faith Effort beyond 365 days (366 days in case of a leap year) of a previously denied request unless the taxpayer submits an additional request. There is no limit on the number of requests a taxpayer, contractor, or subcontractor may submit to one or more registered apprenticeship programs for purposes of the Good Faith Effort Exception and the taxpayer, contractor, or subcontractor is not required to make subsequent requests to the same registered apprenticeship program in order to qualify for the Good Faith Effort Exception. The 365 day (366 days in case of a leap year) duration of requests for qualified apprentices also applies in circumstances in which there is no registered apprenticeship program with a geographic area of operation that includes the location of the facility at the time a taxpayer, contractor, or subcontractor attempts to requests qualified apprentices from a registered apprenticeship program.

(B) Denial of request. If a taxpayer, contractor, or subcontractor submits a request in accordance with paragraph (f)(1)(i)(A) of this section and the request is denied (including after an initial acceptance and before the scheduled qualified apprentice work starts), the taxpayer will be deemed to satisfy the requirements of section 45(b)(8)(A) through (C), and paragraphs (b) through (d) of this section, provided that such denial is not the result of a refusal by the taxpayer or any contractors or subcontractors engaged in the performance of construction, alteration, or repair work with respect to such qualified facility to comply with the established standards and requirements of the registered apprenticeship program. The denial of a request is only valid for purposes of establishing a Good Faith Effort with respect to the portion(s) of the request that were denied. In the case of a partial denial, a taxpayer, contractor, or subcontractor must accept the qualified apprentices offered in response to the request to satisfy the Good Faith Effort with respect to the portion of the request that was denied. If a request is partially denied, the qualified apprentice labor hours specified in the request that were denied that qualify for the Good Faith Effort Exception are considered to be labor hours performed by qualified apprentices. Subject to the requirements of paragraph (f)(1)(i)(A)(2) of this section, the taxpayer, contractor, or subcontractor does not need to follow up with the registered apprenticeship program after the initial request or after the receipt of a non-substantive response. The date on which a registered apprenticeship program received a request for qualified apprentices is determined by the date the electronic request is sent to the registered apprenticeship program or the date of delivery shown on a receipt from the registered mail delivery.

(C) Response to a valid request. A response to a valid request for qualified apprentices is a substantive written reply to the request that agrees, in whole or in part, to the specific requirements in the taxpayer's, contractor's, or subcontractor's request. If the registered apprenticeship program fails to provide a response to a request submitted in accordance with paragraph (f)(1)(i)(A) of this section within five business days after the date on which such registered apprenticeship program received the taxpayer's (or its contractor or subcontractor) request, then such request is deemed to be denied.

(D) Employer sponsored apprenticeship programs. A taxpayer, contractor, or subcontractor that sponsors one or more internal registered apprenticeship programs and that is unable to employ a sufficient number of qualified apprentices through such programs to meet the Apprenticeship Requirements must submit a request for qualified apprentices to at least one registered apprenticeship program that it does not sponsor in order to satisfy the Good Faith Effort Exception.

(ii) Examples. The provisions of this paragraph (f)(1) are illustrated by the following examples.

(A) Example 1. Taxpayer F submits a request to a registered apprenticeship program by email. The registered apprenticeship program responds three days later indicating that it has qualified apprentices ready to start work, but the reply email from the registered apprenticeship program is automatically forwarded to Taxpayer F's spam or junk mail folder, and Taxpayer F does not see the email response. Taxpayer F would not qualify for the Good Faith Effort Exception with respect to this request because the registered apprenticeship program provided a substantive reply to the request that agreed to the specific requirements in Taxpayer F's request within five business days.

(B) Example 2. Contractor G submits a request for qualified apprentices from a registered apprenticeship program with an area of operation outside of the geographic area of the qualified facility. Contractor G's request is denied because the registered apprenticeship program does not operate in the geographic area where the qualified facility is located. Contractor G's request would not qualify for the Good Faith Effort Exception because the registered apprenticeship program does not have a geographic area of operation that includes the location of the qualified facility.

(C) Example 3. Contractor H submits a request for qualified apprentices to a registered apprenticeship program. Under its established standards and requirements, the registered apprenticeship program requires contractors to enter into an agreement to partner with that registered apprenticeship program. Contactor H refuses to enter into the agreement, and as a result, the registered apprenticeship program denies Contractor H's request for qualified apprentices. The requirement to enter into the agreement to partner with the registered apprenticeship program applies to all employers who request apprentices from the registered apprenticeship program. Neither the Department of Labor nor a recognized State apprenticeship agency has found the requirement to enter into such an agreement to be contrary to Department of Labor guidance regarding the administration of registered apprenticeship programs. Contractor H's request would not qualify for the Good Faith Effort Exception because Contractor H refused to comply with the established standards and requirements of the registered apprenticeship program.

(D) Example 4. Contractor I submits a request for qualified apprentices from a registered apprenticeship program on November 15, 2024. Contractor I's request states that it seeks to employ four qualified apprentices for the period starting on January 2, 2025, and ending June 30, 2025, for a total of 4,160 hours (1,040 hours × four qualified apprentices). On November 18, 2024, the registered apprenticeship program informs Contractor I that it can supply four qualified apprentices for the requested time period. On December 29, 2024, the registered apprenticeship program informs Contractor I that it is only able to supply two of the four qualified apprentices. Contractor I does not submit any additional requests for qualified apprentices from a registered apprenticeship program. Contractor I's request would qualify for the Good Faith Effort Exception for 2,080 hours (1,040 hours for each of the two requested qualified apprentices that were denied after the request was initially accepted), provided Contractor I accepted the two qualified apprentices that were offered for the requested period.

(E) Example 5. Contractor J submits a written request for qualified apprentices from a registered apprenticeship program on June 1, 2025. Contractor J's request states that it seeks to employ three qualified apprentices for a period starting September 1, 2025, and ending December 31, 2026. The registered apprenticeship program denies the request on June 2, 2025. Contractor J's request satisfies the Good Faith Effort Exception with respect to the three qualified apprentices that were denied for the period beginning September 1, 2025, and ending August 31, 2026. Contractor J's request does not satisfy the Good Faith Effort Exception with respect to the period beginning September 1, 2026, and ending December 31, 2026, because that is the portion of the denied request that exceeded 365 days (366 days in case of a leap year) and Contractor J did not submit an additional valid request for that period.

(2) Apprenticeship cure provision—(i) In general. A taxpayer that fails to satisfy the Apprenticeship Requirements in paragraph (a) of this section with respect to the construction, alteration, or repair of any qualified facility prior to the facility being placed in service, will be deemed to satisfy the Apprenticeship Requirements if the taxpayer pays the IRS a penalty equal to $50 multiplied by the total labor hours for which the requirements described in paragraph (b) or (d) of this section were not satisfied with respect to the construction, alteration, or repair work on such qualified facility.

(A) Total labor hours for which the labor hours requirement is not met. For failures to meet the percentage of the total labor hours requirement in paragraph (b)(1) of this section, the total labor hours for which the requirement was not satisfied is calculated as the difference between the total labor hours performed by qualified apprentices that would be required to meet the applicable percentage under paragraph (b)(2) of this section and the sum of the labor hours actually worked by all qualified apprentices consistent with the applicable ratio of apprentices to journeyworkers and the hours qualifying for the Good Faith Effort Exception.

(B) Total labor hours for which the participation requirement is not met. For failures to meet the participation requirement in paragraph (d) of this section, the total labor hours for which the requirement was not satisfied is calculated as the total labor hours of construction, alteration, or repair work with respect to the facility performed by all laborers or mechanics employed by the taxpayer, contractor, or subcontractor that failed to meet the participation requirement of the qualified facility divided by the number of laborers or mechanics employed by such taxpayer, contractor, or subcontractor that performed construction, alteration, or repair work on the facility.

(C) Penalty payment not required if taxpayer ineligible for increased credit amount under section 45(b)(6)(B)(iii). If the taxpayer claims the increased credit amount under section 45(b)(6)(B)(iii) and does not satisfy the Apprenticeship Requirements for the claimed increased credit amount, then the obligation to make the penalty payment under paragraph (f)(2)(i) of this section applies. If the IRS determines that a taxpayer claiming the increased credit amount under section 45(b)(6)(B)(iii) failed to meet the Apprenticeship Requirements and the taxpayer does not make the penalty payment required under paragraph (f)(2)(i) of this section, then no penalty is assessed under paragraph (f)(2)(i) of this section, and the taxpayer is not eligible for the increased credit amount under section 45(b)(6)(B)(iii). Taxpayers that are not eligible to claim the increased credit amount may still be eligible to claim the base amount of the renewable electricity production credit under section 45(a) if they meet the requirements to claim the credit.

(D) Examples. The provisions of paragraph (f)(2)(i) of this section are illustrated by the following examples, which do not take into account any possible application of the exception for Good Faith Effort Exception under paragraph (f)(1) of this section, the enhanced penalty payment requirement in the case of intentional disregard under paragraph (f)(2)(ii) of this section, or the inapplicability of the penalty in the case of a Qualifying Project Labor Agreement under paragraph (f)(2)(v) of this section. In each example, assume that the taxpayer uses the calendar year as the taxpayer's taxable year.

(1) Example 1. Taxpayer K starts construction of a qualified facility on April 1, 2023. Accordingly, Taxpayer K must ensure that at least 12.5% of the total labor hours are performed by qualified apprentices. The facility is placed in service on April 1, 2025, and Taxpayer K claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2025 tax return. All individuals who performed the construction, alteration, or repair work were employed directly by Taxpayer K, including two qualified apprentices. Taxpayer K employed enough journeyworkers to satisfy the Ratio Requirement. A total of 50,000 labor hours were spent on the construction, alteration, or repair work of the facility, 6,000 of which were performed by qualified apprentices. Taxpayer K has satisfied the participation requirement because Taxpayer K has employed at least one qualified apprentice. Taxpayer K failed to satisfy the labor hours requirement under paragraph (b)(2) of this section because less than 12.5% of the total labor hours were performed by qualified apprentices. Qualified apprentices must have performed at least 6,250 labor hours (50,000 × 12.5%), so the total labor hours by which the labor hours requirement was not satisfied is 250 (6,250−6,000). To cure Taxpayer K's failure to meet the labor hours requirement, Taxpayer K must pay a penalty of $12,500 (250 × $50).

(2) Example 2. Taxpayer L starts construction of a qualified facility on February 10, 2023. Accordingly, Taxpayer L must ensure that at least 12.5% of the total labor hours are performed by qualified apprentices. The facility is placed in service on February 10, 2026, and Taxpayer L claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2026 tax return. Taxpayer L employs 10 individuals to perform construction, alteration, or repair work of the facility, two of whom are qualified apprentices. Taxpayer L employed enough journeyworkers to satisfy the Ratio Requirement. Taxpayer L also hires Contractor M, who employs five individuals to perform construction, alteration, or repair work of the facility, none of whom are qualified apprentices. A total of 50,000 labor hours were spent on the construction, alteration, or repair work of the facility, 6,500 of which were performed by qualified apprentices. Of the total 50,000 labor hours, 33,000 labor hours were performed by individuals employed by Taxpayer L and 17,000 labor hours were performed by individuals employed by Contractor M. Taxpayer L has satisfied the labor hours requirement under paragraph (b)(2) of this section because more than 12.5% of the total labor hours were performed by qualified apprentices. However, Taxpayer L failed to satisfy the participation requirement under paragraph (d) of this section because Contractor M employed five individuals but no qualified apprentices. The total labor hours for which the participation requirement was not satisfied is equal to the total labor hours performed by individuals employed by Contractor M (17,000) divided by the number of individuals employed by Contractor M (5) on the construction of the qualified facility, which is 3,400 hours (17,000/5). To cure the failure to meet the Apprenticeship Requirements, Taxpayer L must pay a penalty of $170,000 (3,400 × $50).

(3) Example 3. Taxpayer N starts construction of a qualified facility on January 1, 2024. Accordingly, Taxpayer N must ensure that at least 15% of the total labor hours are performed by qualified apprentices. The facility is placed in service on January 1, 2025, and Taxpayer N claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2025 tax return. Taxpayer N employs 15 individuals to perform construction, alteration, or repair work of the facility, none of whom is a qualified apprentice. Taxpayer N also hires Contractor O, who employs five individuals to perform construction, alteration, or repair work of the facility, one of whom is a qualified apprentice. At the time Taxpayer N claims the increased credit amount, a total of 20,000 labor hours were spent on the construction, alteration, or repair work of the facility, 1,000 of which were performed by the qualified apprentice. Of the 20,000 total labor hours, 15,000 labor hours were performed by individuals employed by Taxpayer N and 5,000 labor hours were performed by individuals employed by Contractor O. Taxpayer N failed to satisfy the labor hours requirement under paragraph (b)(2) of this section because less than 15% of the total labor hours were performed by qualified apprentices. Qualified apprentices must have performed at least 3,000 labor hours, so the total labor hours by which the labor hours requirement was not satisfied is 2,000. Taxpayer N also failed to satisfy the participation requirement under paragraph (d) of this section because Taxpayer N employed 15 individuals but no qualified apprentices. The total labor hours for which the participation requirement was not satisfied is 1,000, which is equal to the total labor hours performed by individuals employed by Taxpayer N (15,000) divided by the number of individuals employed by Taxpayer N (15), which is 1,000 (15,000/15). The total labor hours by which Taxpayer N failed to meet the labor hours and participation requirements is 3,000 (2,000 + 1,000). To cure Taxpayer N's failure to meet the Apprenticeship Requirements, Taxpayer N must pay a penalty of $150,000 (3,000 × $50).

(4) Example 4. Taxpayer P starts construction of a qualified facility on April 1, 2023. Accordingly, Taxpayer P must ensure that at least 12.5% of the total labor hours are performed by qualified apprentices. The facility is placed in service on January 5, 2024, and Taxpayer P claims the increased credit amount under section 45(b)(6)(B)(iii) on its 2024 tax return. Taxpayer P hires Contractors Q, R, and S to perform the construction, alteration, and repair of the qualified facility. Contractor Q employs 10 journeyworkers who work 10,000 hours and one qualified apprentice who works 400 hours. Contractor R employs four journeyworkers who work 4,000 hours and five qualified apprentices who work 2,000 hours. Contractor S employs three journeyworkers who work 3,000 hours and one qualified apprentice who works 400 hours. The registered apprenticeship program for all of the qualified apprentices has prescribed a 1:1 apprentice-to-journeyworker ratio. For each day, all journeyworkers and qualified apprentices employed by the contractors are on the job site. The contractors have satisfied the participation requirement under paragraph (d) of this section because they each employed one or more qualified apprentices. The total labor hours are 19,800 hours, and the total hours worked by qualified apprentices are 2,800. However, Contractor R employed one qualified apprentice in excess of the apprentice-to-journeyworker ratio (five qualified apprentices: four journeyworkers) that was prescribed by the apprenticeship program. Because Contractor R employed one qualified apprentice in excess of the apprentice-to-journeyworker ratio on each day that Contractor R performed work on the facility, 400 of the qualified apprentice hours worked by Contractor R do not count towards the labor hour requirement. Thus, Taxpayer P has failed to meet the labor hours requirement under paragraph (b)(2) of this section because only 2,400 hours worked by qualified apprentices are counted for purposes of the labor hours requirement. The total labor hours by which Taxpayer P failed to meet the labor hours requirement is 75 (2,475 required hours (19,800 × 12.5%)−2,400 qualified apprentice hours worked). To cure Taxpayer P's failure to meet the Apprenticeship Requirements, Taxpayer P must pay a penalty of $3,750 (75 × $50).

(ii) Intentional disregard—(A) Application of section 45(b)(8)(D)(iii). If the IRS determines that any failure to satisfy the Apprenticeship Requirements in paragraph (b) or (d) of this section is due to intentional disregard of those requirements, the amount of the penalty payment under paragraph (f)(2) of this section is increased to $500 multiplied by the total labor hours for which the requirements described in paragraph (b) or (d) of this section were not satisfied with respect to the construction, alteration, or repair work on such qualified facility.

(B) Meaning of intentional disregard. A failure to satisfy the Apprenticeship Requirements of paragraph (b) or (d) of this section is due to intentional disregard if it is knowing or willful.

(C) Facts and circumstances considered. The facts and circumstances that are considered in determining whether a failure to satisfy the Apprenticeship Requirements is due to intentional disregard include, but are not limited to—

(1) Whether the failure was part of a pattern of conduct that includes repeated or systemic failures to ensure compliance with the Apprenticeship Requirements;

(2) Whether the taxpayer took steps to determine or review the applicable percentage of labor hours required to be performed by qualified apprentices;

(3) Whether the taxpayer sought to promptly cure any failures;

(4) Whether the taxpayer has been required to make a penalty payment under paragraph (f)(2) of this section in previous years;

(5) Whether the taxpayer included provisions in any contracts entered into with contractors that required the employment of qualified apprentices by the contractor and any subcontractors consistent with the labor hour requirement of section 45(b)(8)(A) and the participation requirement of section 45(b)(8)(C) and whether taxpayers regularly reviewed contractors' and subcontractors' use of qualified apprentices;

(6) Whether the taxpayer required contractors and subcontractors to forward to the taxpayer requests to registered apprenticeship programs within five business days of when requests were made;

(7) Whether the taxpayer made no attempt to comply with the Apprenticeship Requirements;

(8) Whether the taxpayer developed and used a plan to utilize qualified apprentices in the construction, alteration, or repair of the qualified facility;

(9) Whether the taxpayer, contractor, or subcontractor regularly followed up with registered apprenticeship programs regarding requests for qualified apprentices;

(10) Whether the taxpayer, contractor, or subcontractor contacted the Department of Labor's Office of Apprenticeship or relevant State apprenticeship agency for assistance in locating a registered apprenticeship program;

(11) Whether the taxpayer had in place procedures whereby individuals could report suspected failures to comply with the Apprenticeship Requirements, without retaliation or adverse action, whether taxpayer investigated such reports by individuals, and whether the taxpayer had internal controls to prevent the failures to comply with the Apprenticeship Requirements;

(12) Whether the taxpayer investigated complaints of retaliation or adverse action resulting from reports of suspected failures to comply with the Apprenticeship Requirements, and took appropriate actions to remedy any retaliation or adverse action and prevent it from reoccurring; and

(13) Whether taxpayer failed to maintain and preserve records sufficient to establish compliance with the Apprenticeship Requirements for relevant tax years.

(D) Examples. The provisions of paragraph (f)(2)(ii) of this section are illustrated by the following examples, which take into account certain facts and circumstances described in paragraph (f)(2)(ii)(C) of this section, that are considered in applying the enhanced penalty payment requirement in the case of intentional disregard. These examples do not take into account any possible application of the exception for Good Faith Effort Exception under paragraph (f)(1) of this section or the inapplicability of the penalty in the case of a Qualifying Project Labor Agreement under paragraph (f)(2)(v) of this section. In each example, assume that the taxpayer uses the calendar year as the taxpayer's taxable year.

(1) Example 1. Taxpayer T failed to satisfy the labor hours requirement of section 45(b)(8)(A), the participation requirement of section 45(b)(8)(C), and the requirements described in paragraphs (b) and (d) of this section. Taxpayer T did not create a plan to utilize qualified apprentices in the construction, alteration, or repair of the qualified facility. Taxpayer T did not include contract provisions that require the hiring of qualified apprentices and the compliance with the labor hours requirement described in section 45(b)(8)(A) and the participation requirement described in section 45(b)(8)(C), nor did Taxpayer T require those contract provisions in any subcontracts. Neither Taxpayer T nor any contractors or subcontractors made any requests to a registered apprenticeship program for qualified apprentices. Taxpayer T also did not have procedures in place to audit whether contractors or subcontractors made a request to a registered apprenticeship program. Taxpayer T's failures to satisfy the labor hours requirement of section 45(b)(8)(A), the participation requirement of section 45(b)(8)(C), and the requirements described in paragraphs (b) and (d) of this section would be considered due to intentional disregard for purposes of paragraph (f)(2)(ii) of this section. After considering all of the facts and circumstances, Taxpayer T would be subject to the enhanced penalty payment described in paragraph (f)(2)(ii)(A) of this section.

(2) Example 2. Taxpayer U failed to satisfy the labor hours requirement of section 45(b)(8)(A), the participation requirement of section 45(b)(8)(C), and the requirements described in paragraphs (b) and (d) of this section. Taxpayer U created a plan to utilize qualified apprentices in the construction, alteration, or repair of a qualified facility. Taxpayer U included contract provisions that required the hiring of qualified apprentices and the compliance with the labor hours requirement described in section 45(b)(8)(A) and the participation requirement described in section 45(b)(8)(C) and required those contract provisions in any subcontracts. Taxpayer U and all contractors and subcontractors of Taxpayer U requested relevant qualified apprentices from registered apprenticeship programs. Taxpayer U also created procedures to audit whether contractors or subcontractors made a request to a registered apprenticeship program and ensured that the registered apprenticeship programs were contacted in writing. In cases in which a registered apprenticeship program replied to a proper request described in paragraph (f)(1)(i)(A)(1) of this section with a non-substantive response, Taxpayer U encouraged follow-ups to the registered apprenticeship program. Additionally, Taxpayer U contacted and encouraged contractors and subcontractors to contact the Department of Labor's Office of Apprenticeship and the State apprenticeship agency in cases in which Taxpayer U, or any contractors or subcontractors, experienced difficulty in locating a registered apprenticeship program. After considering all of the facts and circumstances, Taxpayer U's failure to satisfy the labor hours requirement of section 45(b)(8)(A), the participation requirement of section 45(b)(8)(C), and the requirements described in paragraphs (b) and (d) of this section would not be considered due to intentional disregard for purposes of paragraph (f)(2)(ii) of this section.

(E) Rebuttable presumption of no intentional disregard. If a taxpayer makes the penalty payment required by this paragraph (f)(2) before receiving notice of an examination from the IRS with respect to a claim for the increased credit amount under section 45(b)(6), the taxpayer will be presumed not to have intentionally disregarded the Apprenticeship Requirements in paragraphs (b) and (d) of this section. The IRS may rebut this presumption based on the relevant facts and circumstances.

(iii) Deficiency procedures to apply. The penalty payment required by this paragraph (f)(2) is subject to deficiency procedures of subchapter B of chapter 63 of the Code.

(iv) Penalty payments in the event of a transfer pursuant to section 6418. To the extent an eligible taxpayer, as defined in section 6418(f)(2), has determined an increased credit amount under section 45(b)(6) and transferred such increased credit amount as part of a specified credit portion, the obligation to make a penalty payment under paragraph (f)(2)(i) of this section remains with the eligible taxpayer. The obligation for an eligible taxpayer to satisfy the Apprenticeship Requirements becomes binding upon the earlier of the filing of the eligible taxpayer's return for the taxable year for which the specified credit portion is determined with respect to the eligible taxpayer, or the filing of the return of the transferee taxpayer for the year in which the specified credit portion is taken into account. If the IRS determines that the eligible taxpayer failed to meet the Apprenticeship Requirements and the eligible taxpayer does not then make the penalty payments provided in paragraph (f)(2)(i) of this section, then no penalty is assessed under paragraph (f)(2)(i) of this section, and the eligible taxpayer is not eligible for the increased credit amount determined under section 45(b)(6)(B)(iii). Section 6418 and the regulations under section 6418 control for determining the impact of an eligible taxpayer's failure to cure on any transferee taxpayer.

(v) Project labor agreements. The penalty payment required by this paragraph (f)(2) to cure a failure to satisfy the Apprenticeship Requirements in paragraphs (b) and (d) of this section does not apply with respect to the construction, alteration, or repair work of a qualified facility if the work is done pursuant to a Qualifying Project Labor Agreement as defined in § 1.45-7(c)(6)(ii).

(g) Definitions. Solely for purposes of this section, the following definitions apply:

(1) Construction, alteration, or repair. The term construction, alteration, or repair has the same meaning as in § 1.45-7(d)(3).

(2) Contractor. The term contractor has the same meaning as in § 1.45-7(d)(4).

(3) Employed. The term employed has the same meaning as in § 1.45-7(d)(5).

(4) Established standards and requirements. The term established standards and requirements means those standards of apprenticeship required by 29 CFR parts 29 and 30 for registered apprenticeship programs, as well as any additional requirements established by the registered apprenticeship program for the placement of apprentices and applicable to all employers participating in the registered apprenticeship program. Such requirements must not be found by the U.S. Department of Labor's Office of Apprenticeship or a recognized State apprenticeship agency to be contrary to Department of Labor guidance regarding the administration of registered apprenticeship programs.

(5) Geographic area. The term geographic area for purposes of determining the geographic area of operation of a registered apprenticeship program has the same meaning as the term geographic area and locality defined in § 1.45-7(d)(7).

(6) Journeyworker. The term journeyworker means an individual who has attained a level of skill, abilities, and competencies recognized within an industry as having mastered the skills and competencies required for the occupation. Use of the term may also refer to a mentor, technician, specialist, or other skilled individual who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training.

(7) Labor hours. The term labor hours means the total number of hours devoted to the performance of construction, alteration, or repair work by any individual employed by the taxpayer or by any contractor or subcontractor. Labor hours do not include hours worked by foremen, superintendents, owners, or persons employed in bona fide executive, administrative, or professional capacities (as defined in 29 CFR part 541).

(8) Qualified apprentice. The term qualified apprentice means an individual who is employed by the taxpayer or by any contractor or subcontractor and who is participating in a registered apprenticeship program. An individual is participating in a registered apprenticeship program if, the individual has entered into a written agreement with a registered apprenticeship program containing the terms and conditions of the employment and training of the apprentice and has been registered as an apprentice with the U.S. Department of Labor's Office of Apprenticeship or a recognized State apprenticeship agency during the time period in which work is performed by the apprentice for the taxpayer, contractor, or subcontractor, or the individual is in the first 90 days of probationary employment as an apprentice in a registered apprenticeship program and the individual has been certified by the U.S. Department of Labor's Office of Apprenticeship or a recognized State apprenticeship agency as eligible for probationary employment as an apprentice.

(9) Registered apprenticeship program. A registered apprenticeship program means a program that has been registered by the U.S. Department of Labor's Office of Apprenticeship or a recognized State apprenticeship agency, pursuant to the National Apprenticeship Act and its implementing regulations for registered apprenticeship at 29 CFR parts 29 and 30, as meeting the basic standards and requirements of the Department of Labor for approval of such program for Federal purposes. Registration of a program is evidenced by a Certificate of Registration or other written indicia. Registered apprenticeship programs include those that taxpayers, contractors, or subcontractors sponsor, create, or partner with and include joint and non-joint programs (as those terms are used in 29 CFR part 29).

(10) State apprenticeship agency. The term State apprenticeship agency means an agency of a State government that has responsibility and accountability for apprenticeship within the State and that has been recognized and authorized by the U.S. Department of Labor's Office of Apprenticeship to register and oversee apprenticeship programs and agreements for Federal purposes.

(11) Subcontractor. The term subcontractor has the same meaning as in § 1.45-7(d)(10).

(12) Taxpayer. The term taxpayer has the same meaning as in § 1.45-7(d)(11).

(h) Applicability date. This section applies to qualified facilities placed in service in taxable years ending after June 25, 2024, and the construction of which begins after June 25, 2024. Taxpayers may apply this section to qualified facilities placed in service in taxable years ending on or before June 25, 2024, and qualified facilities placed in service in taxable years ending after June 25, 2024, the construction of which begins before June 25, 2024, provided that taxpayers follow this section in its entirety and in a consistent manner.

26 C.F.R. § 1.45-7 26 C.F.R. § 1.45-9-1.45.11

Authorizing Statute