S.Amdt. 542

SA 542. Mr. BINGAMAN submitted an amendment intended to be proposed
to amendment SA 98 proposed by Mr. Inouye (for himself and Mr. Baucus)
to the bill H.R. 1, making supplemental appropriations for job
preservation and creation, infrastructure investment, energy efficiency
and science, assistance to the unemployed, and State and local fiscal
stabilization, for fiscal year ending September 30, 2009, and for other
purposes; which was ordered to lie on the table; as follows:

On page 570, between lines 8 and 9, insert the following:

SEC. 1903. LOANS FOR SPECIFIED ENERGY PROPERTY IN LIEU OF TAX
CREDITS.

(a) Loans.--
(1) In general.--Upon application, the Secretary of Energy
shall, within 60 days of the application and subject to the
requirements of this section, provide a loan, under such
terms as provided in subsection (b) and in an amount as
provided in subsection (c), to each person who places in
service specified energy property during 2009 or 2010.
(2) Special rule for utility-scale solar and geothermal
property.--
(A) In general.--In the case of any specified energy
property which is a part of a utility-scale solar or
geothermal project, paragraph (1) shall be applied by
substituting ``2009, 2010, 2011, or 2012'' for ``2009 or
2010''.
(B) Rule for projects after 2010.--No loan shall be made
under this section after December 31, 2010, with respect to
any utility-scale solar or geothermal project unless the
application for such loan contains--
(i) a certification from an independent engineer (as
determined under regulations promulgated by the Secretary of
Energy) that construction on such project began before
January 1, 2011, and
(ii) a certification that there is an agreement between the
person placing such project in service and a utility, an
electric cooperative, a municipality, or another Federal,
State, or local governmental entity for the purchase of not
less than 50 percent of the power which such project has a
capacity to generate.
(C) Utility-scale solar or geothermal project.--For
purposes of this section, the term ``utility-scale solar or
geothermal project'' means any project which--
(i)(I) uses solar energy for a purpose described in clause
(i) or (ii) of section 48(a)(3)(A) of the Internal Revenue
Code of 1986, or
(II) produces, distributes, or uses energy derived from
geothermal deposits (within the meaning of section 613(e)(2)
of such Code), and
(ii) has a nameplate capacity rating which is not less
than--

(I) 25 megawatts electrical, or
(II) 10 megawatts thermal.

(b) Term.--
(1) In general.--Any loan provided under this section shall
be in the form of a senior note issued by the taxpayer to the
Secretary of the Treasury, secured by the specified energy
property, and having a term of 20 years and interest payable
at the applicable Federal rate (as determined under section
1274(d) of the Internal Revenue Code of 1986).
(2) Repayment of loans.--
(A) Amortization.--The amount of any loan provided under
this section shall be amortized and repaid over the term of
the loan.
(B) No pre-payment penalty.--Any loan provided under this
section shall have no penalty for early repayment of the
loan.
(3) Priority of obligation.--Notwithstanding section 507 of
title 11, United States Code, or otherwise applicable
provisions of law, the Department of the Treasury shall have
priority repayment over all liens or interests in the assets
of the borrower during any bankruptcy or foreclosure
proceeding.
(c) Loan Amount.--
(1) In general.--The amount of the loan under subsection
(a) with respect to any specified energy property shall be
the applicable percentage of the basis of such facility.
(2) Applicable percentage.--For purposes of paragraph (1),
the term ``applicable percentage'' means--
(A) 30 percent in the case of any property described in
paragraphs (1) through (4) of subsection (c), and
(B) 10 percent in the case of any other property.
(3) Dollar limitations.--In the case of property described
in paragraph (2), (6), or (7) of subsection (c), the amount
of any loan under this section with respect to such property
shall not exceed the limitation described in section
48(c)(1)(B), 48(c)(2)(B), or 48(c)(3)(B) of the Internal
Revenue Code of 1986, respectively, with respect to such
property.
(d) Specified Energy Property.--For purposes of this
section, the term ``specified energy property'' means any of
the following:
(1) Qualified facilities.--Any facility described in
paragraph (1), (2), (3), (4), (6), (7), (9), or (11) of
section 45(d) of the Internal Revenue Code of 1986.
(2) Qualified fuel cell property.--Any qualified fuel cell
property (as defined in section 48(c)(1) of such Code).
(3) Solar property.--Any property described in clause (i)
or (ii) of section 48(a)(3)(A) of such Code.
(4) Qualified small wind energy property.--Any qualified
small wind energy property (as defined in section 48(c)(4) of
such Code).
(5) Geothermal property.--Any property described in clause
(iii) of section 48(a)(3)(A) of such Code.
(6) Qualified microturbine property.--Any qualified
microturbine property (as defined in section 48(c)(2) of such
Code).
(7) Combined heat and power system property.--Any combined
heat and power system property (as defined in section
48(c)(3) of such Code).
(8) Geothermal heatpump property.--Any property described
in clause (vii) of section 48(a)(3)(A) of such Code.
(e) Application of Certain Rules.--
(1) In general.--In making loans under this section, the
Secretary of Energy shall apply rules similar to the rules of
subsections (a) and (b) of section 50 of the Internal Revenue
Code of 1986. In applying such rules, if the facility is
disposed of, or otherwise ceases to be a qualified renewable
energy facility, the Secretary of Energy shall

[[Page S1876]]

provide for the repayment of the appropriate percentage of
the loan in such manner as the Secretary of Energy determines
appropriate.
(2) Special rule for sales.--In the case of any sale of
specified energy property for which a loan has been made
under this section to any person (other than a person
described in subsection (f)), the obligation to repay to loan
shall be transferred to the purchaser of such property.
(f) Exception for Certain Non-Taxpayers.--The Secretary of
Energy shall not make any loan under this section to any
Federal, State, or local government (or any political
subdivision, agency, or instrumentality thereof) or any
organization described in section 501(c) of the Internal
Revenue Code of 1986 and exempt from tax under section 501(a)
of such Code.
(g) Definitions.--Terms used in this section which are also
used in section 45 or 48 of the Internal Revenue Code of 1986
shall have the same meaning for purposes of this section as
when used in such section 45 or 48. Any reference in this
section to the Secretary of the Treasury shall be treated as
including the Secretary's delegate.
(h) Coordination Between Departments of Treasury and
Energy.--The Secretary of the Treasury shall provide the
Secretary of Energy with such technical assistance as the
Secretary of Energy may require in carrying out this section.
The Secretary of Energy shall provide the Secretary of the
Treasury with such information as the Secretary of the
Treasury may require in carrying out the amendment made by
section 1604.
(i) Appropriations.--There is hereby appropriated to the
Secretary of Energy such sums as may be necessary to carry
out this section.
(j) Termination.--The Secretary of Energy shall not make
any loan to any person under this section unless the
application of such person for such loan is received before
January 1, 2011 (January 1, 2013, in the case of any utility
scale solar or geothermal project).
(k) Coordination With Energy Credit.--Section 48 is amended
by adding at the end the following new subsection:
``(d) Election to Receive Loan in Lieu of Credit.--
``(1) In general.--In the case of any property with respect
to which the Secretary of Energy makes a loan under section
1903 of the American Recovery and Reinvestment Tax Act of
2009, the amount of the credit which would otherwise be
allowed to the taxpayer under this section for any taxable
year--
``(A) shall not be allowed for such year, and
``(B) shall be allowed in any taxable year in which a
portion of such loan is repaid in an amount which bears the
same ratio to the amount which would be taken into account
under this section (determined without regard to the
subsection) as the amount so repaid bears to the entire
amount of the loan.
``(2) Transfer of credit amounts.--In the case of a sale or
other disposition by the taxpayer of any property to which
paragraph (1) applies to another taxpayer, the amount of any
credit which would be allowed to the taxpayer under this
section shall be allowed to the taxpayer who acquired such
property.''.
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