This page discusses the deficit reduction obligation which can reduce exposure from the inside capital becoming negative. The deficit restoration obligation (“the DRO”) is associated with this inside basis account and can potentially be used to eliminate deficits in the tax investor’s inside basis. As with the discussion of the outside basis, I discuss inside basis (account 704 (b)) in terms of how things associated with this account can affect the cash flow and IRR to the tax investor.
When the investment balance falls to zero without any mitigation (from the DRO), the taxable income increases and the after tax return goes down. Everything is in this page and the page about the inside basis and the minimum gain is about preventing the inside basis from being negative. The reason for limiting the inside capital is the notion of “Substantial Economic Effect.” If the inside capital falls below zero, the tax equity investor is not considered a real partner but is a “bare purchaser of tax benefits”
Two big questions about the inside basis in my opinion are: (1) how does the income allocation in the inside basis account affect the tax equity IRR by virtue of the DRO (e.g. if there is an income re-allocation from the sponsor to the tax investor, does this increase taxes for the tax investor or is it taken account elsewhere); and (2) is the inside basis used for computing the gain on sale for tax purposes or is the tax basis of the plant used when the tax investor exits the partnership SPV? I wish I could say that I know the absolute answer to this one, but have seen different models treat the gain on a sale from the by the tax investor to the sponsor/developer differently. The famous DRO or deficit reduction obligation raises its ugly head when working through the inside capital account or the 704(b) capital account. The DRO can limit the negative balance of the inside capital account, but this can be a bad thing for the tax investor IRR.
Here are some terms related to the Deficit Reduction Obligations
- Deficit Restoration Obligation
- Allows the tax investor to have a negative capital account and not have to increase taxable income (which is very bad for the tax investor). You do not want to re-allocate income to the sponsor
- With the DRO, the tax investor “borrows” equity from the sponsor to claim the negative income that would otherwise be re-allocated. Note that there must be equity to borrow.
- Could also borrow the tax free cash distributions
- DRO Effect in the case of Liquidation
- Not very likely
- Requires the partner borrowing or taking the DRO to contribute real cash capital
- This risk of the tax investor actually paying for the DRO is a credit risk for the tax investor and a benefit for the developer/sponsor