830 CMR: DEPARTMENT OF REVENUE
830 CMR 62:00: Income Tax
830 CMR 62.00 is hereby repealed and replaced with the following:
830 CMR 62.6.3: Lead Paint Removal Credit

(1) Introduction. 830 CMR 62.6.3 explains the lead paint removal credit ("deleading credit") allowed against income tax imposed pursuant to M.G.L. c. 62. See M.G.L. c. 62, § 6(e), as amended by St. 1993, c. 482. 830 CMR 62.6.3 applies to taxable years beginning on or after January 1, 1994. 830 CMR 62.6.3 must be read in conjunction with any pertinent regulations of the Department of Public Health and the Department of Labor and Workforce Development.

In general, the owner of a residential premises who pays for the deleading of the premises for the purpose of bringing the premises into full compliance with M.G.L. c. 111, §§ 189A through 199B, may claim a deleading credit equal to the lesser of the cost of deleading, or $1500, per dwelling unit. M.G.L. c. 62, § 6(e). The owner of a residential premises who pays for the deleading of the premises for the purpose of bringing the premises into interim control pending full compliance pursuant to M.G.L. c. 111, §197(b), may claim a deleading credit equal to the lesser of ½ the cost of deleading, or $500, per dwelling unit. Id.

For purposes of claiming the deleading credit, the owner of the residential premises may choose full compliance directly, or to undertake full compliance as soon as feasible after the institution of interim control and the receipt of a letter of interim control.

(2) Definitions.

Accessible, means readily accessible to children under six years of age. Any surface is accessible for purposes of 830 CMR 62.6.3 if it must be deleaded to bring the residential premises into compliance with M.G.L. c. 111, §§ 189A through 199B.

Authorized Person, means a person who may legally perform a deleading activity for which he or she has received the required training or course of instruction and, as necessary, an authorization, certificate, or license, all in accordance with the requirements of the regulations of the Department of Public Health 105 CMR 460.000, 454 CMR 22.00 and the training materials approved by the lead poisoning control Director. See 105 CMR 460.110(C). An authorized person may be a licensed deleader, a licensed lead-safe renovator, an owner, or an owner's agent. To become an authorized person, an owner or owner's agent must complete a course of instruction designed by the Childhood Lead Poisoning Prevention Program of the Department of Public Health before conducting moderate-risk abatement activities. This includes taking a one-day class, taking and passing a written examination and receiving an authorization number from the Department of Public Health. Before performing low-risk abatement and/or containment activities, the owner or owner's agent must review a training booklet and take an at-home test which must be returned to the Massachusetts Childhood Lead Poisoning Prevention Program (CLPPP), and receive an authorization number from CLPPP.

Compliance, means that the premises have been deleaded and that a letter of compliance has been issued by a licensed inspector certifying that the deleading of the premises complies with the full compliance provisions of M.G.L. c. 111, §§ 189A through 199B. Interim control means that the premises have been deleaded using interim control measures pending full compliance and that a letter of interim control has been issued by a licensed risk assessor stating that the deleading of the premises complies with the provisions of M.G.L. c. 111, § 197(b).

Cost, means the costs of deleading materials and activities performed by authorized persons, necessary to bring the premises into full compliance with M.G.L. c. 111, §§ 189A through 199B, which are paid for by the owner of the residential premises and for which the owner receives no reimbursement. In terms of interim control, only those interim control expenses necessary to achieving full compliance are a "cost" for the purposes of claiming the deleading credit. "Cost" includes licensed inspector's fees. If a loan or credit is used to pay for deleading, "cost" does not include finance charges or similar fees, or the amount of any deferral or forgiveness.

Dangerous Level of Lead, the level of lead in accessible structural materials which endangers human health as defined at 105 CMR 460.020.

Deleading, means the containment or abatement of a dangerous level of lead in accessible structural materials, including the replacement of window units, undertaken to achieve full compliance with the provisions of M.G.L. c. 111, §§ 189A through 199B. Abatement requires the removal and replacement of paint, plaster or other accessible structural materials containing dangerous levels of lead. Containment includes the encapsulation, covering or enclosing by any authorized means of all paint, plaster or other accessible structural materials containing dangerous levels of lead.

Dwelling unit, a dwelling unit as defined in 105 CMR 410.00 that was constructed prior to 1978 and that is located in Massachusetts.

Letter of Compliance, a letter of compliance is a statement issued by a licensed inspector that the deleaded premises meets the full compliance provisions of M.G.L. c. 111, § 189A through 199B.

Letter of Interim Control , a letter of interim control is a statement issued by a licensed risk assessor that the premises meets the interim control provisions of M.G.L. c. 111, § 197(b). The Letter of Interim Control shall state a date of expiration that shall be one year from the date of issue.

Licensed Deleader, a licensed deleader is any individual, corporation or entity licensed by the Department of Labor and Workforce Development pursuant to M.G.L. c. 111, § 197B(b) to perform deleading activities. Only licensed deleaders may perform certain high-risk deleading activities not listed in 105 CMR 460.175(A) or (B). Licensed deleaders must be trained and licensed pursuant to 454 CMR 22.00.

Licensed Lead Inspector, a licensed lead inspector is an individual licensed by the Department of Public Health pursuant to M.G.L. c. 111, § 197B(a), to inspect and assess premises for the presence of a dangerous level of lead in accessible structural materials.

Licensed Lead-safe Renovator, a licensed lead-safe renovator is a contractor who must complete training required by the Department of Labor and Workforce Development, pass an exam, and become licensed, in order to perform moderate-risk deleading work.

Licensed Risk Assessor, a licensed risk assessor is a licensed lead inspector who is also specifically licensed by the Department of Public Health to identify and assess urgent lead violations and hazards for the purpose of interim control.

Low-risk Abatement and/or Containment, low-risk abatement and/or containment means the work allowed by 105 CMR 460.175(A) which can be performed by authorized persons, provided such activities are performed in compliance with the requirements of 105 CMR 460.000, and in the case of deleaders and lead-safe renovators, the additional requirements of 454 CMR 22.00.

Moderate-risk Abatement, moderate-risk abatement means the work allowed by 105 CMR 460.175(B) to be performed by authorized persons, as long as such activities are performed in compliance with the requirements of 105 CMR 460.000, and, in the case of lead-safe renovators and deleaders, the additional requirements of 454 CMR 22.00.

Owner, the owner of a residential premises is any person subject to the provisions of M.G.L. c. 62, who, alone or jointly or severally with others: has legal title to a residential premises; or has charge or control of a residential premises; or is an estate or trust of which a residential premises is a part, or is the grantor or beneficiary of such an estate or trust; or is the association of unit owners of a condominium or cooperative (which is an owner solely with respect to the common areas and exterior surfaces and fixtures of the condominium or cooperative). "Owner" does not include a secured lender except to the extent provided in M.G.L. c. 111, § 197D.

Owner's Agent for Low-risk Abatement or Containment, an owner's agent for low-risk abatement or containment is an owner's compensated employee or contractor, or other uncompensated person, 18 years of age or older who performs work at the direction of the owner.

Owner's Agent for Moderate-risk Abatement or Containment, an owner's agent for moderate-risk abatement or containment is an owner's compensated employee, or other uncompensated person, 18 years of age or older who performs work at the direction of the owner, but does not include a contractor.

Premises, means residential premises, including any residential dwelling unit and residential property constructed prior to 1978.

(3) Full Compliance Deleading. To qualify as full compliance deleading for purposes of claiming the deleading credit, the following requirements must be met:

(a) a dangerous level of lead in the accessible structural materials of the residential premises is established by a licensed inspector; and

(b) following deleading by an authorized person, the owner obtains a letter of compliance from a licensed inspector; and

(c) the owner files a copy of the letter of compliance with the Department of Revenue by attaching it to Schedule LP with the owner's income tax return.

These procedures must be followed even if the owner has already obtained a letter of interim control and has received or claimed a deleading credit for interim control. If the owner is claiming a deleading credit based on interim control and full compliance, both the letter of interim control and the letter of full compliance must be attached to the owner's income tax return.

(4) Interim Control. To qualify as interim control for the purpose of claiming the deleading credit, the following requirements must be met:

(a) a dangerous level of lead in the accessible structural materials of the premises is established by a licensed risk assessor; and

(b) the premises are deleaded using interim control measures performed by an authorized person, and the owner obtains a letter of interim control from a licensed risk assessor which certifies that the costs of instituting interim control measures are costs necessary to achieving full compliance; and

(c) the owner files a copy of the letter of interim control with the Department of Revenue by attaching it to Schedule LP with the owner's income tax return. A letter of interim control that has expired or that has been revoked on or before it is filed with the department is not a letter of interim control for the purposes of claiming a deleading credit.

(5) Who May Claim the Credit. Any person or entity subject to taxation pursuant to M.G.L. c. 62, that is the owner of the residential premises and has paid the cost of deleading the premises for the purposes of full compliance, and that has received a letter of compliance from a licensed inspector, may claim the deleading credit.

Any person or entity subject to taxation pursuant to M.G.L. c. 62, that is the owner of the residential premises and has paid the cost of deleading the premises for the purpose of interim control, and that has received a letter of interim control from a licensed risk assessor may claim the deleading credit.

(6) Amount of the Credit .

(a) Full Compliance: The maximum aggregate amount of the deleading credit that may be claimed by the owner of residential premises for the cost of full compliance is the lesser of the cost of deleading the premises, or $1500, per dwelling unit. If the owner has claimed or received a deleading credit based on the cost of interim control the amount of the deleading credit claimed or received for interim control must be deducted when determining the amount of the deleading credit that may be claimed for full compliance.

(b) Interim Control: The maximum aggregate amount of the deleading credit that may be claimed by the owner of a residential premises for the cost of interim control is the lesser of ½ the cost of interim control or $500 per dwelling unit.

(c) Co-owners: The maximum aggregate amount of the deleading credit that may be claimed or received by the owner, including multiple co-owners, of the premises deleaded is $1500 for full compliance and $500 for interim control, per dwelling unit. Thus, the amount of any deleading credit claimed or received by any co-owner of the premises must be deducted by any other co-owner when determining the amount of deleading credit to be claimed.

(7) Condominiums and Cooperatives. An owner of a condominium or cooperative residential dwelling unit that has been inspected and deleaded may not claim a deleading credit for that unit unless the condominium or cooperative common areas, exterior surfaces and fixtures are deleaded in compliance with the full compliance provisions of M.G.L. c. 111. If such deleading is undertaken by the association of condominium or cooperative owners, the association may claim the deleading credit subject to the limitations set forth in 830 CMR 62.6.3 if the association is subject to the provisions of M.G.L. c. 62.

(8) Timing and Carry-over of the Credit. The deleading credit for full compliance may be claimed in the taxable year in which the premises is brought into full compliance as determined by a letter of compliance, or in the taxable year in which the cost of deleading is paid, whichever is later. Any unused portion of the credit may be carried forward from the taxable year in which it is first claimed and applied in any one or more of the succeeding seven taxable years.

The deleading credit for interim control may be claimed in the taxable year in which the premises is brought into interim control as determined by a letter of interim control, or in the taxable year in which the cost of deleading is paid, whichever is later. Any unused portion of the credit may be carried forward from the taxable year in which it is first claimed and applied in any one or more of the succeeding seven taxable years.

The deleading credit may not be used to reduce a taxpayer's liability under M.G.L. c. 62 to less than zero.

REGULATORY AUTHORITY
830 CMR 62.6.3: M.G.L. c. 14, § 6(1); M.G.L. c. 62C, § 3
New Regulation Promulgated: 4/11/03