Firm Events
District Court vs. PTAB: Strategic Forum Selection in Life Sciences Patent Disputes
December 10, 2026 | 12:00 PM – 1:00 PM ET
On August 15, the Treasury Department (Treasury) and the Internal Revenue Service (IRS) issued Notice 2025-42, which provides guidance on the beginning of construction requirement as it relates to the new credit termination dates for wind and solar projects enacted by the One Big Beautiful Bill Act (OBBBA).
The OBBBA terminates the clean energy production tax credit under Section 45Y (CEPTC) and the clean energy investment tax credit under Section 48E (CEITC) for wind and solar facilities that begin construction after July 4, 2026, and are placed in service after 2027. On July 7, 2025, President Trump issued an executive order directing Treasury “to strictly enforce the termination” of the CEPTC and the CEITC for wind and solar facilities and to issue new and revised guidance “to ensure that policies concerning the ‘beginning of construction’ are not circumvented.”
Key takeaways from Notice 2025-42:
Applicability/Effective Dates. Notice 2025-42 is effective for wind and solar projects that begin construction on or after September 2, 2025.
Five Percent Safe Harbor. Notice 2025-42 generally eliminates the Five Percent Safe Harbor, although there is an exception for facilities with a nameplate capacity of less than 1.5MW (AC), subject to an aggregation rule.
Physical Work Test. Notice 2025-42 preserves the Physical Work Test.
Continuity. Notice 2025-42 preserves the four-year Continuity Safe Harbor and the “continuous program of construction” facts-and-circumstances test, but removes the “continuous efforts” test.
Notice 2025-42 is better than many feared and worse than many hoped for. Preservation of the Physical Work Test, including for off-site work, and the four-year Continuity Safe Harbor is a relief. Elimination of the Five Percent Safe Harbor for most projects, rather than a mere increase in the percentage, is disappointing. The September 2, 2025, effective date provides taxpayers a very narrow window for adjusting their beginning of construction strategies.
Please contact any of the authors of this advisory if you have further questions or need help implementing beginning of construction strategies.
Resources
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Firm Events
District Court vs. PTAB: Strategic Forum Selection in Life Sciences Patent Disputes
December 10, 2026 | 12:00 PM – 1:00 PM ET
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