Not-2008-36_irb

Jennifer Bernardini at (202) 622–3110
(not a toll-free call).

Amplification of Notice
2006–28 Energy Efficient
Home Credit; Manufactured
Homes
Notice 2008–36
SECTION 1. PURPOSE
This notice clarifies and supersedes Notice 2006–28, 2006–1 C.B. 628, as updated
by Announcement 2006–88, 2006–2 C.B.
910. Notice 2006–28, as updated, provided guidance regarding the calculation
of heating and cooling energy consumption for purposes of determining the eligibility of a manufactured home for the
New Energy Efficient Home Credit under Internal Revenue Code § 45L. Notice 2006–28 also provided guidance relating to the public list of software programs
that may be used to calculate energy consumption. Guidance relating to dwelling
units other than manufactured homes is
provided in Notice 2008–35.
This notice supersedes Notice 2006–28
by substantially republishing the guidance
contained in that publication. This notice
clarifies the meaning of the terms equivalent rating network and eligible contractor,
and permits calculation procedures other
than those identified in Notice 2006–28 to
be used to calculate energy consumption.
Finally, this notice clarifies the process
for removing software from the list of approved software and reflects the extension
of the tax credit through December 31,
2008.
SECTION 2. BACKGROUND
.01 In General. Section 45L provides
a credit to an eligible contractor who constructs a qualified energy efficient home.
For qualified energy efficient homes that
are manufactured homes, the amount of the
credit is $1,000 or $2,000, depending on
the energy savings that are achieved. A
manufactured home qualifies for the credit
if:
(1) It is located in the United States;
(2) Its construction is substantially
completed after August 8, 2005;

2008–12 I.R.B.

(3) It meets the energy saving requirements of § 45L(c)(2) or (3); and
(4) It is acquired, directly or indirectly,
from the eligible contractor after December 31, 2005, and before January 1, 2009,
for use as a residence.
.02 Energy Saving Requirements. To
meet the energy saving requirements of
§ 45L(c)(2) or (3), a manufactured home
must meet one of the following standards:
(1) To meet the energy saving requirements of § 45L(c)(2) and qualify for the
$2,000 credit, a manufactured home must
be certified to provide a level of heating
and cooling energy consumption that is at
least 50 percent below that of a reference
dwelling unit constructed in accordance
with the standards of § 404 of the 2004
Supplement to the 2003 International Energy Conservation Code (2004 IECC Supplement), and to have building envelope
component improvements that provide for
a level of heating and cooling energy consumption that is at least 10 percent below
that of a reference dwelling unit (see section 3 of this notice).
(2) To meet the energy saving requirements of § 45L(c)(3) and qualify for the
$1,000 credit, a manufactured home must
either—
(a) be certified to provide a level of
heating and cooling energy consumption
that is at least 30 percent below that of
a reference dwelling unit constructed in
accordance with the standards of § 404 of
the 2004 IECC Supplement, and to have
building envelope component improvements that provide for a level of heating
and cooling energy consumption that is at
least 10 percent below that of a reference
dwelling unit; or
(b) meet the current requirements established by the Administrator of the Environmental Protection Agency under the ENERGY STAR® Labeled Homes Program
in effect on the date construction is substantially completed (see section 4 of this
notice).
.03 Calculation Procedures. For purposes of section 2.02 of this notice, heating and cooling energy consumption must
be calculated in accordance with the procedures prescribed in Residential Energy
Services Network (RESNET) Publication
No. 05–001 (Nov. 17, 2005) or No.
06–001 (June 1, 2006) or in accordance
with an equivalent calculation procedure.

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.04 Acquired from Eligible Contractor.
A qualified energy efficient manufactured
home is acquired directly from an eligible
contractor for use as a residence if the person that produced the manufactured home
sells or leases the manufactured home to
another person for use as a residence. A
qualified energy efficient manufactured
home is acquired indirectly from an eligible contractor for use as a residence if
the person that produced the manufactured
home sells the manufactured home to an
intermediary and the intermediary (or the
last of multiple intermediaries) sells or
leases the manufactured home to another
person for use as a residence. A qualified
energy efficient manufactured home is not
acquired from an eligible contractor if the
person that produced the manufactured
home retains the manufactured home for
use as a residence. For example, a qualified energy efficient manufactured home
is acquired from an eligible contractor in
the following situations:
(1) A person produces a qualified energy efficient manufactured home and then
sells the manufactured home to the homeowner.
(2) A person produces a qualified energy efficient manufactured home and then
leases the manufactured home to the lessee
or tenant.
(3) A person hires a third party contractor to produce a qualified energy efficient manufactured home and then sells
the manufactured home to the homeowner.
(See section 5.01(5) of this notice for guidance regarding the person treated as the eligible contractor in this case.)
(4) A person that produces a manufactured home sells the home to a dealer of
manufactured homes and the dealer sells
the manufactured home to another person
for use as a residence. (See section 7.01 of
this notice for a rule permitting an eligible
contractor to rely on a dealer’s statement
concerning a sale by the dealer.)
SECTION 3. REQUIREMENTS TO
CLAIM THE $2,000 CREDIT
An eligible contractor must obtain the
certification required under § 45L(c)(2)
with respect to a manufactured home from
an eligible certifier before claiming the
$2,000 energy efficient home credit with
respect to the manufactured home. An eligible contractor is not required to file the

March 24, 2008

certification with the return on which the
credit is claimed. However, § 1.6001–1(a)
of the Income Tax Regulations requires
that taxpayers maintain such books and
records as are sufficient to establish the
entitlement to, and amount of, any credit
claimed by the taxpayer. Accordingly,
an eligible contractor claiming a $2,000
credit under § 45L should retain the certification as part of the eligible contractor’s
records to satisfy this requirement. The
certification will be treated as satisfying
the requirements of § 45L(c)(2) if all construction has been performed in a manner
consistent with the design specifications
provided to the eligible certifier and the
certification contains all of the following:
.01 The name, address, and telephone
number of the eligible certifier.
.02 The manufactured home’s serial or
other identification number.
.03 A statement by the eligible certifier
that—
(1) The manufactured home has a projected level of annual heating and cooling
energy consumption that is at least 50 percent below the annual level of heating and
cooling energy consumption of a reference
dwelling unit in the same climate zone;
(2) Building envelope component improvements alone account for a level of annual heating and cooling energy consumption that is at least 10 percent below the
annual level of heating and cooling energy
consumption of a reference dwelling unit
in the same climate zone; and
(3) Heating and cooling energy consumption have been calculated in the manner prescribed in section 2.03 of this notice.
.04 A statement by the eligible certifier
that inspections of the manufactured home
(or of other manufactured homes under
the sampling protocol described below)
performed by the eligible certifier after
installation on the permanent site have
confirmed that such heating and cooling
energy consumption complies with the design specifications provided to the eligible
certifier. With respect to manufacturers
that produce at least 85 homes during a
twelve-month period, the eligible certifier
may use the sampling protocol found in
the current standards of the ENERGY
STAR® Qualified Manufactured Homes
— Design, Manufacturing, Installation,
and Certification Procedures, located at
the following web address: http://www.

March 24, 2008

energystar.gov/index.cfm?c=bldrs_
lenders_raters.pt_builder_manufactured.
.05 A list identifying—
(1) The manufactured home’s energy
efficient building envelope components
and their respective energy performance
rating as required by § 401.3 of the 2004
IECC Supplement; and
(2) The energy efficient heating and
cooling equipment installed in the manufactured home and the energy efficiency
performance of such equipment as rated
under applicable Department of Energy
Appliance Standards test procedures.
.06 Identification of the listed software
program used to calculate energy consumption (see section 6 of this notice).
.07 A declaration, applicable to the
certification and any accompanying documents, signed by a person currently
authorized to bind the eligible certifier in
these matters, in the following form:
“Under penalties of perjury, I declare
that I have examined this certification,
including accompanying documents,
and to the best of my knowledge and
belief, the facts presented in support of
this certification are true, correct, and
complete.”
SECTION 4. REQUIREMENTS TO
CLAIM THE $1,000 CREDIT
.01 Certified Homes. Except as provided in section 4.02 of this notice, an eligible contractor must obtain the certification required under § 45L(c)(3)(A) with respect to a manufactured home from an eligible certifier before claiming the $1,000
energy efficient home credit with respect
to the manufactured home. An eligible
contractor is not required to attach the certification to the return on which the credit
is claimed. However, § 1.6001–1(a) requires that taxpayers maintain such books
and records as are sufficient to establish the
entitlement to, and amount of, any credit
claimed by the taxpayer. Accordingly, an
eligible contractor claiming a $1,000 credit
under § 45L should retain the certification
as part of the eligible contractor’s records
to satisfy this requirement. The certification will be treated as satisfying the requirements of § 45L(c)(3)(A) if all construction has been performed in a manner
consistent with the design specifications
provided to the eligible certifier and the
certification contains all of the following:

651

(1) The name, address, and telephone
number of the eligible certifier.
(2) The manufactured home’s serial or
other identification number.
(3) A statement by the eligible certifier
that—
(a) The manufactured home has a projected level of annual heating and cooling
energy consumption that is at least 30 percent below the annual level of heating and
cooling energy consumption of a reference
dwelling unit in the same climate zone;
(b) Building envelope component improvements alone account for a level of annual heating and cooling energy consumption that is at least 10 percent below the
annual level of heating and cooling energy
consumption of a reference dwelling unit
in the same climate zone; and
(c) Heating and cooling energy consumption have been calculated in the manner prescribed in section 2.03 of this notice.
(4) A statement by the eligible certifier
that field inspections of the manufactured
home (or of other manufactured homes
under the sampling protocol described
below) performed by the eligible certifier after installation on the permanent
site have confirmed that such heating and
cooling energy consumption complies
with the design specifications provided to
the eligible certifier. With respect to manufacturers that produce at least 85 homes
during a twelve-month period, the certifier
may use the sampling protocol found in
the current standards of the current ENERGY STAR® Qualified Manufactured
Homes: Guide for Retailers, located at
the following web address: http://www.
energystar.gov/index.cfm?c=bldrs_
lenders_raters.pt_builder_manufactured.
(5) A list identifying—
(a) The manufactured home’s energy
efficient building envelope components
and their respective energy performance
rating as required by § 401.3 of the 2004
IECC Supplement; and
(b) The energy efficient heating and
cooling equipment installed in the manufactured home and the energy efficiency
performance of such equipment as rated
under applicable Department of Energy
Appliance Standards test procedures.
(6) Identification of the listed software
program used to calculate energy consumption (see section 6 of this notice).

2008–12 I.R.B.

(7) A declaration, applicable to the
certification and any accompanying documents, signed by a person currently
authorized to bind the eligible certifier in
these matters, in the following form:
“Under penalties of perjury, I declare
that I have examined this certification,
including accompanying documents,
and to the best of my knowledge and
belief, the facts presented in support of
this certification are true, correct, and
complete.”
.02 Energy Star Homes. An eligible
contractor may claim the $1,000 energy efficient home credit with respect to a manufactured home by meeting the applicable certification requirements established
by the Administrator of the Environmental Protection Agency under the ENERGY
STAR® Labeled Homes Program in effect
on the date construction is substantially
completed.
SECTION 5. DEFINITIONS
.01 The following definitions apply for
purposes of this notice:
(1) Building envelope components are
basement walls, exterior walls, floor, roof,
and any other building element that encloses conditioned space, including any
boundary between conditioned space and
unconditioned space.
(2) A climate zone is a geographical
area within which all locations have similar long-term climate conditions as defined
in Chapter 3 of the 2004 IECC Supplement.
(3) A dwelling unit is a single unit providing complete independent living facilities for one or more persons, including
permanent provisions for living, sleeping,
eating, cooking, and sanitation, within a
building that is not more than three stories
above grade in height.
(4) An eligible certifier is a person
that is not related (within the meaning of
§ 45(e)(4)) to the eligible contractor and
has been accredited or otherwise authorized by RESNET (or an equivalent rating
network) to use energy performance measurement methods approved by RESNET
(or the equivalent rating network). An employee or other representative of a utility
or local building regulatory authority qualifies as an eligible certifier if the employee
or representative has been accredited or
otherwise authorized by RESNET (or an

2008–12 I.R.B.

equivalent rating network) to use the approved energy performance measurement
methods.
(5) An eligible contractor, in the case
of a qualified energy efficient home that
is a manufactured home, is the person that
produced the manufactured home. A person must own and have a basis in the qualified energy efficient manufactured home
during its production to qualify as an eligible contractor with respect to the manufactured home. For example, in the situation
described in section 2.04(3) of this notice,
if the person that hires the third party contractor to produce the manufactured home
owns and has the basis in the home during
its construction, the person that hires the
third party contractor is the eligible contractor and the third party contractor is not
an eligible contractor.
(6) An equivalent calculation procedure
is a procedure that produces results comparable to the results obtained under the
procedures prescribed in Residential Energy Services Network (RESNET) Publication No. 05–001 (Nov. 17, 2005) or
No. 06–001 (June 1, 2006).
(7) An equivalent rating network includes, in a state that has established energy efficiency standards under which a
dwelling unit is required to achieve a specified aggregate level of heating and cooling energy consumption for any purpose
(including compliance with building codes
or eligibility for a state grant or tax credit),
the state agency administering those standards. Thus, if the agency has accredited
or otherwise authorized a person to use
energy performance measurement methods approved by the agency for use in determining whether the state’s energy efficiency standards are satisfied, the person
so accredited or authorized qualifies as an
eligible certifier.
(8) A manufactured home is a dwelling
unit constructed in accordance with the
Federal Manufactured Home Construction
and Safety Standards (24 C.F.R. 3280).
(9) A qualified energy efficient manufactured home is a dwelling unit that qualifies for the credit under section 45L. See
section 2.01 of this notice for the requirements that a dwelling unit must satisfy to
qualify for the credit.
(10) A reference dwelling unit is a
dwelling unit that is similar in technical
specifications and design to the manu-

652

factured home produced by the eligible
contractor except that—
(a) The reference dwelling unit is constructed in accordance with the minimum
standards of Chapter 4 of the 2004 IECC
Supplement;
(b) The reference dwelling unit’s air
conditioners have a Seasonal Energy Efficiency Ratio (SEER) of 13, measured in
accordance with 10 C.F.R. 430.23(m); and
(c) The reference dwelling unit’s heat
pumps have a SEER of 13 and a Heating Seasonal Performance Factor (HSPF)
of 7.7, measured in accordance with
10 C.F.R. 430.23(m).
SECTION 6. SOFTWARE
PROGRAMS
.01 In General. The Internal Revenue
Service will create and maintain a public list of software programs that may be
used to calculate energy consumption for
purposes of providing certifications under sections 3 and 4 of this notice. This
list of approved software may be found
at: http://www.irs.gov/businesses/small/
industries/article/0,,id=155445,00.html.
.02 Requirements for Software Programs To Be Included on the Internal
Revenue Service List. A software program
will be included on the list created by the
Internal Revenue Service if the software
developer submits the following information to the Service and RESNET:
(1) The name, address, and telephone
number of the software developer;
(2) The name or other identifier of the
program as it will appear on the list;
(3) The test results, test runs, and the
software program with which the test was
conducted; and
(4) A declaration by the developer of
the software program, made under penalties of perjury, that the software program—
(i) Has satisfied all tests required to
conform to the software accreditation
process prescribed in Residential Energy
Services Network (RESNET) Publication No. 05–001 (Nov. 17, 2005) or
No. 06–001 (June 1, 2006); or
(ii) Has satisfied all tests necessary to
permit a determination that the software
program is sufficiently accurate to justify
its use in calculating energy consumption
for purposes of providing certifications under sections 3 and 4 of this notice.

March 24, 2008

.03 Addresses. Submissions under this
section must be addressed as follows:
Submissions to the Service submitted
by U.S. mail:
Internal Revenue Service
Attn: Program Administrator
CC:PSI:6, Room 5114
P.O. Box 7604
Ben Franklin Station
Washington, DC 20044
Submissions to the Service submitted
by a private delivery service:
Internal Revenue Service
Attn: Program Administrator
CC:PSI:6, Room 5114
1111 Constitution Ave., N.W.
Washington, DC 20224
Submissions to RESNET:
Residential Energy Services Network
P.O. Box 4561
Oceanside, CA 92052–4561
.04 Original and Updated Lists. A software program was included on the original list if the software developer’s submission was received before March 1, 2006.
The list will be updated as necessary to reflect additions resulting from submissions
received after February 28, 2006, and deletions resulting from removal of software
from the list under section 6.05 of this notice.
.05 Removal from Published List. The
Service may, upon examination (and after
appropriate consultation with the Department of Energy), determine that a software
program is not sufficiently accurate to justify its use in calculating energy consumption for purposes of providing a certification under sections 3 and 4 of this notice
and remove the software program from the
published list. The Service may undertake
an examination on its own initiative or in
response to a public request supported by
appropriate analysis of the software program’s deficiencies.
.06 Effect of Removal from Published
List. A software program may not be used
to calculate energy consumption for purposes of providing a certification that satisfies the requirements of § 45L after the
effective date of removal of the software
from the published list. The removal will

March 24, 2008

not affect the validity of any certification
provided with respect to a manufactured
home on or before the effective date of removal from the published list. Generally,
notice that software is being removed from
the published list will be provided at the
site specified in section 6.01 of this notice
at least sixty (60) days before the effective
date of the removal.
.07 Public Availability of Information.
RESNET may make available for public
review any information provided to it under section 6.02 of this notice.
SECTION 7. SALES TO DEALERS
.01 In General. In the case of a manufactured home sold by an eligible contractor to a dealer of manufactured homes, the
eligible contractor may rely on a statement
by the dealer to establish the date on which
a manufactured home is acquired, that it is
located in the United States, and that it is
acquired for use as a residence. An eligible
contractor is not required to file the statement with the return on which the credit
is claimed. However, § 1.6001–1(a) of the
Income Tax Regulations requires that taxpayers maintain such books and records
as are sufficient to establish the entitlement to, and amount of, any credit claimed
by the taxpayer. Accordingly, an eligible
contractor claiming a credit under § 45L
should retain the statement as part of its
records to satisfy this requirement, and is
not entitled to rely on the statement unless
the statement is so retained.
.02 Content of Statement. The eligible
contractor may not rely on the statement
by the dealer unless the statement specifies
the date of the retail sale of the manufactured home, that the dealer delivered the
manufactured home to the purchaser at an
address in the United States, and that the
dealer has no knowledge of any information suggesting that the purchaser will use
the manufactured home other than as a residence. The statement must also contain
the following information:
(1) The name, address, and telephone
number of the dealer.
(2) A declaration, applicable to the
statement made by the dealer and any
accompanying documents, signed by a
person currently authorized to bind the
dealer in such matters, in the following
form:

653

“Under penalties of perjury, I declare
that, to the best of my knowledge and
belief, the facts presented with respect
to this sale transaction are true, correct,
and complete.”
SECTION 8. PAPERWORK
REDUCTION ACT
The collections of information contained in this notice have been reviewed
and approved by the Office of Management and Budget in accordance with the
Paperwork Reduction Act (44 U.S.C.
3507) under control number 1545–1994.
An agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless the
collection of information displays a valid
OMB control number.
The collections of information in this
notice are in sections 3, 4, 6, and 7. This
information is required to be collected and
retained in order to ensure that a manufactured home meets the requirements for the
energy efficient home credit under § 45L.
This information will be used to determine
whether property for which certifications
are provided is property that qualifies for
the credit. The collection of information is
required to obtain a benefit. The likely respondents are corporations, partnerships,
and individuals.
The estimated total annual reporting
burden is 75 hours.
The estimated annual burden per respondent varies from 3.5 hours to 5 hours,
depending on individual circumstances,
with an estimated average burden of
4 hours to complete the certification
required under this notice. The estimated
number of respondents is 15.
The estimated annual frequency of responses is on occasion.
Books or records relating to a collection
of information must be retained as long
as their contents may become material in
the administration of any Internal Revenue
law. Generally, tax returns and tax return
information are confidential, as required
by 26 U.S.C. 6103.
SECTION 9. EFFECT ON OTHER
DOCUMENTS
Notice 2006–28, as updated by Announcement 2006–88, is clarified and

2008–12 I.R.B.

superseded. Announcement 2006–88 is
also clarified and superseded.
SECTION 10. EFFECTIVE DATE
This notice applies with respect to certifications provided after February 29, 2008.
Taxpayers may apply the provisions of this
notice with respect to certifications provided on or before February 29, 2008.
SECTION 11. DRAFTING
INFORMATION
The principal author of this notice
is Jennifer Bernardini of the Office of
Associate Chief Counsel (Passthroughs
& Special Industries). For further information regarding this notice, contact
Jennifer Bernardini at (202) 622–3110
(not a toll-free call).

Update for Weighted Average
Interest Rates, Yield Curves,
and Segment Rates
Notice 2008–37
This notice provides guidance as to the
corporate bond weighted average interest
For Plan Years
Beginning in

rate and the permissible range of interest
rates specified under § 412(b)(5)(B)(ii)(II)
of the Internal Revenue Code as in effect for plan years beginning before 2008.
It also provides guidance on the corporate bond monthly yield curve (and the
corresponding spot segment rates), the
24-month average segment rates, and
the funding transitional segment rates
under § 430(h)(2). In addition, this notice provides guidance as to the interest
rate on 30-year Treasury securities under
§ 417(e)(3)(A)(ii)(II) as in effect for plan
years beginning before 2008, and the minimum present value segment rates under
§ 417(e)(3)(D) as in effect for plan years
beginning after 2007.
CORPORATE BOND WEIGHTED
AVERAGE INTEREST RATE
Sections 412(b)(5)(B)(ii) and 412(l)(7)
(C)(i), as amended by the Pension Funding
Equity Act of 2004 and by the Pension
Protection Act of 2006 (PPA), provide
that the interest rates used to calculate
current liability and to determine the
required contribution under § 412(l) for
plan years beginning 2007 must be within
a permissible range based on the weighted

Month

Year

Corporate
Bond Weighted
Average

March

2008

5.96

YIELD CURVE AND SEGMENT
RATES
Generally for plan years beginning
after 2007 (except for delayed effective
dates for certain plans under sections 104,
105, and 106 of PPA), § 430 of the Code
specifies the minimum funding requirements that apply to single employer plans
pursuant to § 412. Section 430(h)(2) specifies the interest rates that must be used
to determine a plan’s target normal cost
and funding target. Under this provision,
present value is generally determined using three 24-month average interest rates

2008–12 I.R.B.

(“segment rates”), each of which applies
to cash flows during specified periods.
However, an election may be made under
§ 430(h)(2)(D)(ii) to use the monthly yield
curve in place of the segment rates. For
plan years beginning in 2008 and 2009, a
transitional rule under § 430(h)(2)(G) provides that the segment rates are blended
with the corporate bond weighted average
as specified above. An election may be
made under § 430(h)(2)(G)(iv) to use the
segment rates without applying the transitional rule.
Notice 2007–81, 2007–44 I.R.B. 899,
provides guidelines for determining the

average of the rates of interest on amounts
invested conservatively in long term
investment grade corporate bonds during
the 4-year period ending on the last day
before the beginning of the plan year.
Notice 2004–34, 2004–1 C.B. 848, provides guidelines for determining the corporate bond weighted average interest rate
and the resulting permissible range of interest rates used to calculate current liability. That notice establishes that the corporate bond weighted average is based on the
monthly composite corporate bond rate derived from designated corporate bond indices. The methodology for determining
the monthly composite corporate bond rate
as set forth in Notice 2004–34 continues to
apply in determining that rate. See Notice
2006–75, 2006–2 C.B. 366.
The composite corporate bond rate for
February 2008 is 6.36 percent. Pursuant
to Notice 2004–34, the Service has determined this rate as the average of the
monthly yields for the included corporate
bond indices for that month.
The following corporate bond weighted
average interest rate was determined for
plan years beginning in the month shown
below.

Permissible Range
90%
5.36

to

5.96

monthly corporate bond yield curve, the
24-month average corporate bond segment rates, and the funding transitional
segment rates used to compute the target normal cost and the funding target.
Pursuant to Notice 2007–81, the monthly
corporate bond yield curve derived from
February 2008 data is in Table I at the end
of this notice. The spot first, second, and
third segment rates for the month of February 2008 are, respectively, 4.11, 6.18,
and 7.05. The three 24-month average
corporate bond segment rates applicable for March 2008 under the election of
§ 430(h)(2)(G)(iv) are as follows:

First
Segment

Second
Segment

Third
Segment

5.24

5.97

6.49

654

100%

March 24, 2008