Home > 106th Congressional Bills > S. 1936 (rfh) To authorize the Secretary of Agriculture to sell or exchange all or part of certain administrative sites and other National Forest System land in the State of Oregon and use the proceeds derived from the sale or exchange for National Forest...

S. 1936 (rfh) To authorize the Secretary of Agriculture to sell or exchange all or part of certain administrative sites and other National Forest System land in the State of Oregon and use the proceeds derived from the sale or exchange for National Forest...


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108th CONGRESS
  1st Session
                                S. 1936

 To amend the Internal Revenue Code of 1986 to exclude from unrelated 
  business taxable income the gain or loss on the sale or exchange of 
           certain brownfield sites, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 24, 2003

 Mr. Baucus (for himself, Mr. Inhofe, Mrs. Dole, and Mr. Rockefeller) 
introduced the following bill; which was read twice and referred to the 
                          Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend the Internal Revenue Code of 1986 to exclude from unrelated 
  business taxable income the gain or loss on the sale or exchange of 
           certain brownfield sites, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. EXCLUSION OF GAIN OR LOSS ON SALE OR EXCHANGE OF CERTAIN 
              BROWNFIELD SITES FROM UNRELATED BUSINESS TAXABLE INCOME.

    (a) In General.--Subsection (b) of section 512 of the Internal 
Revenue Code of 1986 (relating to unrelated business taxable income) is 
amended by adding at the end the following new paragraph:
            ``(18) Treatment of gain or loss on sale or exchange of 
        certain brownfield sites.--
                    ``(A) In general.--Notwithstanding paragraph 
                (5)(B), there shall be excluded any gain or loss from 
                the qualified sale, exchange, or other disposition of 
                any qualifying brownfield property by an eligible 
                taxpayer.
                    ``(B) Eligible taxpayer.--For purposes of this 
                paragraph--
                            ``(i) In general.--The term `eligible 
                        taxpayer' means, with respect to a property, 
                        any organization exempt from tax under section 
                        501(a) which--
                                    ``(I) acquires from an unrelated 
                                person a qualifying brownfield 
                                property, and
                                    ``(II) pays or incurs eligible 
                                remediation expenditures with respect 
                                to such property in an amount which 
                                exceeds the greater of $550,000 or 12 
                                percent of the fair market value of the 
                                property at the time such property was 
                                acquired by the eligible taxpayer, 
                                determined as if there was not a 
                                presence of a hazardous substance, 
                                pollutant, or contaminant on the 
                                property which is complicating the 
                                expansion, redevelopment, or reuse of 
                                the property.
                            ``(ii) Exception.--Such term shall not 
                        include any organization which is--
                                    ``(I) potentially liable under 
                                section 107 of the Comprehensive 
                                Environmental Response, Compensation, 
                                and Liability Act of 1980 with respect 
                                to the qualifying brownfield property,
                                    ``(II) affiliated with any other 
                                person which is so potentially liable 
                                through any direct or indirect familial 
                                relationship or any contractual, 
                                corporate, or financial relationship 
                                (other than a contractual, corporate, 
                                or financial relationship which is 
                                created by the instruments by which 
                                title to any qualifying brownfield 
                                property is conveyed or financed or by 
                                a contract of sale of goods or 
                                services), or
                                    ``(III) the result of a 
                                reorganization of a business entity 
                                which was so potentially liable.
                    ``(C) Qualifying brownfield property.--For purposes 
                of this paragraph--
                            ``(i) In general.--The term `qualifying 
                        brownfield property' means any real property 
                        which is certified, before the taxpayer incurs 
                        any eligible remediation expenditures (other 
                        than to obtain a Phase I environmental site 
                        assessment), by an appropriate State agency 
                        (within the meaning of section 198(c)(4)) in 
                        the State in which such property is located as 
                        a brownfield site within the meaning of section 
                        101(39) of the Comprehensive Environmental 
                        Response, Compensation, and Liability Act of 
                        1980 (as in effect on the date of the enactment 
                        of this paragraph).
                            ``(ii) Request for certification.--Any 
                        request by an eligible taxpayer for a 
                        certification described in clause (i) shall 
                        include a sworn statement by the eligible 
                        taxpayer and supporting documentation of the 
                        presence of a hazardous substance, pollutant, 
                        or contaminant on the property which is 
                        complicating the expansion, redevelopment, or 
                        reuse of the property given the property's 
                        reasonably anticipated future land uses or 
                        capacity for uses of the property (including a 
                        Phase I environmental site assessment and, if 
                        applicable, evidence of the property's presence 
                        on a local, State, or Federal list of 
                        brownfields or contaminated property) and other 
                        environmental assessments prepared or obtained 
                        by the taxpayer.
                    ``(D) Qualified sale, exchange, or other 
                disposition.--For purposes of this paragraph--
                            ``(i) In general.--A sale, exchange, or 
                        other disposition of property shall be 
                        considered as qualified if--
                                    ``(I) such property is transferred 
                                by the eligible taxpayer to an 
                                unrelated person, and
                                    ``(II) within 1 year of such 
                                transfer the eligible taxpayer has 
                                received a certification from the 
                                Environmental Protection Agency or an 
                                appropriate State agency (within the 
meaning of section 198(c)(4)) in the State in which such property is 
located that, as a result of the eligible taxpayer's remediation 
actions, such property would not be treated as a qualifying brownfield 
property in the hands of the transferee.
                            ``(ii) Request for certification.--Any 
                        request by an eligible taxpayer for a 
                        certification described in clause (i) shall be 
                        made not later than the date of the transfer 
                        and shall include a sworn statement by the 
                        eligible taxpayer certifying the following:
                                    ``(I) Remedial actions which comply 
                                with all applicable or relevant and 
                                appropriate requirements (consistent 
                                with section 121(d) of the 
                                Comprehensive Environmental Response, 
                                Compensation, and Liability Act of 
                                1980) have been substantially 
                                completed, such that there are no 
                                hazardous substances, pollutants, or 
                                contaminants which complicate the 
                                expansion, redevelopment, or reuse of 
                                the property given the property's 
                                reasonably anticipated future land uses 
                                or capacity for uses of the property.
                                    ``(II) The reasonably anticipated 
                                future land uses or capacity for uses 
                                of the property are more economically 
                                productive or environmentally 
                                beneficial than the uses of the 
                                property in existence on the date of 
                                the certification described in 
                                subparagraph (C)(i). For purposes of 
                                the preceding sentence, use of property 
                                as a landfill or other hazardous waste 
                                facility shall not be considered more 
                                economically productive or 
                                environmentally beneficial.
                                    ``(III) A remediation plan has been 
                                implemented to bring the property into 
                                compliance with all applicable local, 
                                State, and Federal environmental laws, 
                                regulations, and standards and to 
                                ensure that the remediation protects 
                                human health and the environment.
                                    ``(IV) The remediation plan 
                                described in subclause (III), including 
                                any physical improvements required to 
                                remediate the property, is either 
                                complete or substantially complete, 
                                and, if substantially complete, 
                                sufficient monitoring, funding, 
                                institutional controls, and financial 
                                assurances have been put in place to 
                                ensure the complete remediation of the 
                                property in accordance with the 
                                remediation plan as soon as is 
                                reasonably practicable after the sale, 
                                exchange, or other disposition of such 
                                property.
                                    ``(V) Public notice that such 
                                request for certification would be made 
                                was completed before the date of such 
                                request. Such notice shall be in the 
                                same form and manner as required for 
                                public participation required under 
                                section 117(a) of the Comprehensive 
                                Environmental Response, Compensation, 
                                and Liability Act of 1980 (as in effect 
                                on the date of the enactment of this 
                                paragraph).
                            ``(iii) Attachment to tax returns.--A copy 
                        of each of the requests for certification 
                        described in clause (ii) of subparagraph (C) 
                        and this subparagraph shall be included in the 
                        tax return of the eligible taxpayer (and, where 
                        applicable, of the qualifying partnership) for 
                        the taxable year during which the transfer 
                        occurs.
                    ``(E) Eligible remediation expenditures.--For 
                purposes of this paragraph--
                            ``(i) In general.--The term `eligible 
                        remediation expenditures' means, with respect 
                        to any qualifying brownfield property, any 
                        amount paid or incurred by the eligible 
                        taxpayer to an unrelated third person to obtain 
                        a Phase I environmental site assessment of the 
                        property, and any amount so paid or incurred 
                        after the date of the certification described 
                        in subparagraph (C)(i) for goods and services 
                        necessary to obtain a certification described 
                        in subparagraph (D)(i) with respect to such 
                        property, including expenditures--
                                    ``(I) to manage, remove, control, 
                                contain, abate, or otherwise remediate 
                                a hazardous substance, pollutant, or 
                                contaminant on the property,
                                    ``(II) to obtain a Phase II 
                                environmental site assessment of the 
                                property, including any expenditure to 
                                monitor, sample, study, assess, or 
                                otherwise evaluate the release, threat 
                                of release, or presence of a hazardous 
                                substance, pollutant, or contaminant on 
                                the property,
                                    ``(III) to obtain environmental 
                                regulatory certifications and approvals 
                                required to manage the remediation and 
                                monitoring of the hazardous substance, 
                                pollutant, or contaminant on the 
                                property, and
                                    ``(IV) regardless of whether it is 
                                necessary to obtain a certification 
                                described in subparagraph (D)(i)(II), 
                                to obtain remediation cost-cap or stop-
                                loss coverage, re-opener or regulatory 
                                action coverage, or similar coverage 
                                under environmental insurance policies, 
                                or financial guarantees required to 
manage such remediation and monitoring.
                            ``(ii) Exceptions.--Such term shall not 
                        include--
                                    ``(I) any portion of the purchase 
                                price paid or incurred by the eligible 
                                taxpayer to acquire the qualifying 
                                brownfield property,
                                    ``(II) environmental insurance 
                                costs paid or incurred to obtain legal 
                                defense coverage, owner/operator 
                                liability coverage, lender liability 
                                coverage, professional liability 
                                coverage, or similar types of coverage,
                                    ``(III) any amount paid or incurred 
                                to the extent such amount is 
                                reimbursed, funded, or otherwise 
                                subsidized by grants provided by the 
                                United States, a State, or a political 
                                subdivision of a State for use in 
                                connection with the property, proceeds 
                                of an issue of State or local 
                                government obligations used to provide 
                                financing for the property the interest 
                                of which is exempt from tax under 
                                section 103, or subsidized financing 
                                provided (directly or indirectly) under 
                                a Federal, State, or local program 
                                provided in connection with the 
                                property, or
                                    ``(IV) any expenditure paid or 
                                incurred before the date of the 
                                enactment of this paragraph.
                        For purposes of subclause (III), the Secretary 
                        may issue guidance regarding the treatment of 
                        government-provided funds for purposes of 
                        determining eligible remediation expenditures.
                    ``(F) Determination of gain or loss.--For purposes 
                of this paragraph, the determination of gain or loss 
                shall not include an amount treated as gain which is 
                ordinary income with respect to section 1245 or section 

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