Case: 19-1463   Document: 58     Page: 1   Filed: 05/21/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

     CALIFORNIA RIDGE WIND ENERGY LLC,
  INVENERGY WIND LLC, BISHOP HILL ENERGY
                      LLC,
              Plaintiffs-Appellants

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                  2019-1463, 2019-1465
                 ______________________

     Appeals from the United States Court of Federal
 Claims in Nos. 1:14-cv-00250-RHH, 1:14-cv-00251-RHH,
 Senior Judge Robert H. Hodges, Jr.
                 ______________________

                 Decided: May 21, 2020
                 ______________________

    JOHN C. HAYES, JR., Nixon Peabody LLP, Washington,
 DC, argued for plaintiffs-appellants. Also represented by
 BRIAN P. DONNELLY.

     CLINT CARPENTER, Tax Division, United States Depart-
 ment of Justice, Washington, DC, argued for defendant-ap-
 pellee. Also represented by BRUCE R. ELLISEN, RICHARD E.
 ZUCKERMAN.
                  ______________________
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 2           CALIFORNIA RIDGE WIND ENERGY     v. UNITED STATES



  Before PROST, Chief Judge, MAYER and TARANTO, Circuit
                         Judges.
 TARANTO, Circuit Judge.
     California Ridge Wind Energy LLC and Bishop Hill
 Energy LLC each own a windfarm that was put into service
 in 2012. Thereafter, each company applied for a cash grant
 from the federal government, based on specified energy-
 project costs, under section 1603 of the American Recovery
 and Reinvestment Tax Act of 2009, Pub. L. No. 111-5, 123
 Stat. 306, 364. The United States Department of the
 Treasury awarded California Ridge and Bishop Hill less
 than the amounts they had requested, rejecting as unjusti-
 fied the full amounts of certain development fees included
 in the submitted cost bases. Each windfarm owner sued
 the United States in the Court of Federal Claims for the
 difference between the amounts they had been paid and the
 amounts allegedly mandated by section 1603. The govern-
 ment counterclaimed, alleging that it had actually over-
 paid the two firms.
     The Court of Federal Claims ruled in favor of the gov-
 ernment. California Ridge Wind Energy, LLC v. United
 States, 143 Fed. Cl. 757, 763 (2019); Bishop Hill Energy,
 LLC v. United States, 143 Fed. Cl. 540, 545 (2019). 1 The
 sole issue on appeal is whether the two firms proved that
 their proposed development fees, in the amounts asserted,
 were properly included in their cost bases. The trial court
 held that they did not. California Ridge, 143 Fed. Cl. at
 762–63. California Ridge and Bishop Hill appeal on that
 issue, making no separate argument about the amount of
 development fees ultimately included in the cost basis if



     1  The two cases were consolidated for trial, and the
 two opinions are materially identical. California Ridge,
 143 Fed. Cl. at 759 n.1; Bishop Hill, 143 Fed. Cl. at 541 n.1.
 For simplicity, we generally cite only California Ridge.
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 CALIFORNIA RIDGE WIND ENERGY      v. UNITED STATES          3



 the trial court properly rejected their proposed amounts.
 We affirm.
                               I
      Section 1603 requires the Secretary of the Treasury to
 “provide a grant to each person who places in service spec-
 ified energy property to reimburse such person for a por-
 tion of the expense of such property . . . .” Pub. L. No. 111-
 5, § 1603(a). The amount of the grant is the “applicable
 percentage of the basis of such property,” id., § 1603(b)(1),
 which is the cost of the property, 26 U.S.C. § 1012(a). For
 “qualified small wind energy property,” the applicable per-
 centage is thirty percent.          Pub. L. No. 111-5,
 § 1603(b)(2)(A), (d)(4).
      California Ridge and Bishop Hill belong to a family of
 related entities, which we refer to generally as “Invenergy.”
 Invenergy is in the business of creating windfarms. Gen-
 erally, Invenergy determines what type of facility will be
 built, acquires the legal entitlements to construct that fa-
 cility, and ensures that the facility is properly constructed.
 Invenergy uses various subsidiaries to perform different
 functions in the creation task; relevant to this appeal are
 Invenergy Wind North America LLC (IWNA) and Inven-
 ergy Wind Development North America LLC (IWDNA). In-
 venergy also partly or wholly owns or controls, through
 various subsidiaries, some of the completed windfarms.
 California Ridge and Bishop Hill each own a namesake
 windfarm located in central Illinois. Each firm is con-
 trolled by Invenergy and owned through a partnership be-
 tween Invenergy and Firstar Development (USBank).
     Development of the Bishop Hill windfarm began in
 2005. Development of the California Ridge windfarm be-
 gan in 2008. Bishop Hill LLC and California Ridge Wind
 Energy LLC were formed on August 1, 2006, and Septem-
 ber 26, 2008, respectively.
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 4           CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



      On July 18, 2011, years after development work began,
 Bishop Hill entered into a development agreement with
 IWNA. J.A. 14783. The agreement states that “IWNA has
 provided development services to [Bishop Hill] to assist it
 in developing the Project,” including “negotiating construc-
 tion financing terms, negotiating the project and opera-
 tional documents necessary or appropriate for the Project,
 obtaining permits and performing other services relating
 to the Project.” Id. In exchange for those services, Bishop
 Hill was obligated to pay IWNA $60 million. Id. California
 Ridge entered a similar development agreement with
 IWDNA on February 29, 2012, also long after development
 of its windfarm began. J.A. 14780. The California Ridge
 agreement states that “IWDNA has provided and hereby
 agrees to provide further development services” identical
 to those listed in the Bishop Hill agreement. Id. In ex-
 change, California Ridge was obligated to pay IWDNA
 $50 million. Id.
     Payment under the Bishop Hill agreement occurred on
 July 5, 2012—involving a round trip of funds starting and
 ending with IWDNA. On that day, IWDNA transferred
 $60 million to Bishop Hill, which then wired $60 million to
 IWNA—the entity owed the money under the agreement.
 The same day, IWNA wired $60 million to IWDNA.
     Payment under the California Ridge agreement oc-
 curred on November 19, 2012—also involving a round trip
 of funds starting and ending with IWDNA. On that day,
 IWDNA transferred $50 million to California Ridge, which
 then wired $50 million back to IWDNA—the entity owed
 the money under the agreement.
      On August 13, 2012, Bishop Hill applied to Treasury
 for a section 1603 grant totaling $129,923,109. To support
 its request, Bishop Hill submitted a breakdown of its direct
 and indirect costs. Bishop Hill included the $60 million de-
 velopment fee in the indirect costs of its windfarm and, of
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 CALIFORNIA RIDGE WIND ENERGY    v. UNITED STATES             5



 that $60 million, allocated $56,956,837 to section-1603-
 qualified property. J.A. 1266.
     On November 19, 2012, the same day that it paid
 IWDNA the development fee, California Ridge applied for
 a section 1603 grant totaling $136,858,980. To support its
 request, California Ridge submitted a cost breakdown sim-
 ilar to Bishop Hill’s. Of the $50 million development fee,
 California Ridge allocated $49,315,067 to section-1603-
 qualified property. J.A. 1270.
    On October 9, 2012, Treasury awarded Bishop Hill
 $117,216,098—which was $12,707,011 less than the
 amount Bishop Hill sought. Treasury explained:
     The amount requested was reduced because the
     presented cost basis was higher than open market
     expectations for projects of this size and in this lo-
     cation and the transaction involved related parties
     and/or related transactions. The cost basis has
     been adjusted to allow for base costs plus an appro-
     priate markup (to include reasonable overhead,
     profit, and, if appropriate, development fees) re-
     sulting in a total that more closely reflects the
     amount that would have been paid in an arms’
     length transaction between parties with adverse
     interests.
 J.A. 6525.
      On December 5, 2012, Treasury awarded California
 Ridge $127,699,997—which was $9,158,983 less than the
 amount California Ridge sought. Treasury’s explanation
 for the reduction was identical to that given to Bishop Hill.
 J.A. 6523.
    On March 28, 2014, California Ridge and Bishop Hill
 each filed a complaint against the United States in the
 Court of Federal Claims, alleging that Treasury had un-
 lawfully withheld payment mandated by section 1603.
 Each sought damages in the amount that Treasury had
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 6           CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



 reduced its requested awards. The government counter-
 claimed, alleging the “development fees” specified in the
 two development agreements were not includable as eligi-
 ble costs given the circumstances and characteristics of
 those non-arm’s-length agreements—which the govern-
 ment characterized as “sham” transactions. The govern-
 ment sought to recover the amounts of the awards
 attributable to the development fees—$5,635,537 from Cal-
 ifornia Ridge and $4,380,039 from Bishop Hill.
      The trial court ruled in favor of the government. The
 court determined that California Ridge and Bishop Hill
 failed to show that the development agreements had eco-
 nomic substance and concluded that the agreements were
 sham transactions. California Ridge, 143 Fed. Cl. at 761–
 62. The court determined that California Ridge’s evi-
 dence—in particular, the “independent certification” of the
 development fees proffered by California Ridge and Bishop
 Hill’s accounting firm, Deloitte; the development agree-
 ment “without quantifiable services”; and the “round-trip
 wire transfer that began and ended in the same bank ac-
 count, on the same day”—fell “well short” of showing that
 the development agreements were not shams and, more
 generally, that the development-fee amounts stated in
 those agreements were eligible costs. Id. at 762. Accord-
 ingly, the court dismissed California Ridge’s and Bishop
 Hill’s complaints and entered judgment for the government
 in the amounts it sought. Id. at 763; see J.A. 1–2.
      California Ridge and Bishop Hill timely appealed, and
 we consolidated the appeals. We have appellate jurisdic-
 tion under 28 U.S.C. § 1295(a)(3). The Court of Federal
 Claims had jurisdiction over the claims under the Tucker
 Act, 28 U.S.C. § 1491(a)(1); as is undisputed, section 1603
 is a money-mandating statute. The trial court also had ju-
 risdiction over the overpayment-based counterclaims.
 28 U.S.C. §§ 1503, 2508.
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 CALIFORNIA RIDGE WIND ENERGY       v. UNITED STATES          7



                               II
      On appeal, California Ridge 2 argues that the Court of
 Federal Claims failed to make sufficient findings of fact to
 allow this court to meaningfully review its decision, that
 the facts it did find are clearly erroneous, and that its con-
 clusion that the development agreements were sham trans-
 actions is a legal error. If those errors are corrected,
 California Ridge argues, it is entitled to the amount of the
 section 1603 grants disallowed by Treasury. California
 Ridge presents no separate challenge to the court’s award
 if the development fee amounts were properly disregarded.
     As the Court of Federal Claims concluded, and Califor-
 nia Ridge has not meaningfully disputed on appeal, it was
 California Ridge’s burden to justify the amount of the de-
 velopment fee it claimed in support of the grant amount
 (30% of the eligible costs) it sought. See California Ridge,
 143 Fed. Cl. at 760; see WestRock Virginia Corp. v. United
 States, 941 F.3d 1315, 1318 (Fed. Cir. 2019) (invoking for
 section 1603 the established burden rule for tax deduc-
 tions); cf. Alt. Carbon Resources, LLC v. United States, 939
 F.3d 1320, 1328 (Fed. Cir. 2019); WMI Holdings Corp. v.
 United States, 891 F.3d 1016, 1021–22 (Fed. Cir. 2018).
 The trial court found that California Ridge had not carried
 that burden. Thus, the question before us is whether the
 Court of Federal Claims committed reversible error in so
 finding.
      “The characterization of a transaction for tax purposes
 is a question of law that is subject to de novo review, while
 the underlying facts are reviewable for clear error.” Salem
 Financial, Inc. v. United States, 786 F.3d 932, 940



     2   On appeal, there is no material distinction between
 California Ridge and Bishop Hill. For simplicity we use
 “California Ridge” to refer to both parties, unless otherwise
 noted.
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 8           CALIFORNIA RIDGE WIND ENERGY     v. UNITED STATES



 (Fed. Cir. 2015). “A finding is ‘clearly erroneous’ when[,]
 although there is evidence to support it, the reviewing
 court on the entire evidence is left with the definite and
 firm conviction that a mistake has been committed.”
 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
 Whether the trial court made sufficient factual findings is
 reviewed for abuse of discretion. See Medtronic, Inc. v.
 Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986).
                              III
     Section 1603 provides for government reimbursement
 to qualified applicants of a portion of the “expense” of put-
 ting certain energy-generating property into service.
 Pub. L. No. 111-5, § 1603(a). That expense is measured by
 the “basis” of such a property, id., § 1603(b)(1), and “basis”
 is defined as “the cost of such property,” 26 U.S.C.
 § 1012(a). Accordingly, California Ridge, to support its
 claim, was required to prove that the dollar amounts of the
 development fees claimed—stated in the development
 agreements and paid to IWNA and IWDNA out of IWDNA’s
 own funds—reliably measured the actual development
 costs for the windfarms.
     We read the Court of Federal Claims opinion as finding
 that the amounts stated in the development agreements do
 not reliably indicate the development costs. That finding
 is not clearly erroneous. It is sufficiently supported by at
 least the round-trip nature of the payments; the absence in
 the agreements of any meaningful description of the devel-
 opment services to be provided; and the fact that all, or
 nearly all, of the development services had been completed
 by the time the agreements were executed.
     California Ridge argues primarily that the develop-
 ment agreements had economic purpose and that, there-
 fore, the court’s holding that those agreements were sham
 transactions was error. But that argument does not estab-
 lish that the trial court erred on the distinct question
 whether the dollar amounts of those agreements are a
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 CALIFORNIA RIDGE WIND ENERGY      v. UNITED STATES          9



 reliable indicator of the true development costs. Because
 we see no clear error in the trial court’s finding on that is-
 sue, California Ridge cannot prevail regardless of whether
 additional proof would be needed to characterize the trans-
 actions as shams, an issue we need not address.
                               A
     Three aspects of the development agreements support
 the trial court’s finding that the agreement-specified devel-
 opment fees do not reliably establish the actual develop-
 ment costs.
      First, California Ridge paid the development fees with
 funds it obtained from another Invenergy subsidiary, re-
 sulting in a round-trip transaction in which the funds left
 from and returned to the same pocket on the same day. As
 noted by relevant Treasury guidance, “in certain circum-
 stances, a taxpayer’s stated cost for an asset does not re-
 flect the true economic cost of that asset to the taxpayer
 and will be ignored for purposes of determining the basis of
 the asset.” U.S. Dep’t of the Treasury, Evaluating Cost Ba-
 sis for Solar Photovoltaic Properties 1 (2011) (Cost Basis
 Guidance) (quoting Bryant v. Comm’r, 790 F.2d 1463, 1466
 (9th Cir. 1986)). This may be the case when “a transaction
 is not conducted at arm’s-length by two economically self-
 interested parties or where a transaction is based upon pe-
 culiar circumstances.” Id. (quotation marks omitted) (quot-
 ing Lemmen v. Comm’r, 77 T.C. 1326, 1348 (1981)). Here,
 not only was the amount of the development fee negotiated
 between related entities, the fee was paid in a round-trip
 transaction such that neither the payor nor the payee was
 materially affected by the transaction. Such circumstances
 are “peculiar.” And substantively, the trial court could rea-
 sonably view the agreed amount as not reliably indicating
 the actual value transferred, since the economic impact on
 payee or payor of the round-trip movement of money was,
 if not zero or negligible, wholly unrelated to the dollar fig-
 ures written into the agreements.
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 10             CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



      California Ridge contends that the characterization of
 the payments as nothing more than “round-trip” wire
 transfers ignores the complicated treatment featured in In-
 venergy’s accounting books. As to the specific California
 Ridge development fee (as opposed to the Bishop Hill fee):
 there is evidence that payment was meant to be funded by
 Invenergy Wind Global—yet another Invenergy entity—
 but at the time that payment was due, IWDNA happened
 to be holding the money. J.A. 3387–88. Thus, California
 Ridge posits that moving the money directly from IWDNA
 to California Ridge was a transactional shortcut, which left
 out intermediate steps of moving money up one side of the
 Invenergy organizational chain and then back down an-
 other. J.A. 3314–15. But even if Invenergy intended for
 the money to come from the pocket of one Invenergy sub-
 sidiary and end in the pocket of another, both pockets still
 are Invenergy’s. The trial court could readily find that the
 transaction, despite any characterization in Invenergy’s ac-
 counting books, did not change the economic positions of
 IWDNA or California Ridge in anything like the amount
 stated in the agreement. See Frank Lyon Co. v. United
 States, 435 U.S. 561, 573 (1978) (“The Court has never re-
 garded the simple expedient of drawing up papers as con-
 trolling for tax purposes when the objective economic
 realities are to the contrary.” (internal citation omitted)).
 As to the specific Bishop Hill fee: there is evidence that the
 initial payment from IWDNA to Bishop Hill was treated as
 a loan to IWNA, which IWNA paid back later that day after
 receiving payment from Bishop Hill, using the money
 IWDNA gave it. J.A. 3321–22. But even so characterized,
 the transaction did not change the economic position of any
 party in anything like the amount stated in the agreement.
 Therefore, Invenergy’s accounting treatment does not un-
 dermine the Court of Federal Claims’ determination that
 the development fees are not a reliable indicator of value.
     Second, the development agreements lack any mean-
 ingful description of the services provided.     The
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 CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES           11



 development agreements obligate Invenergy to perform
 only generic development services: “[n]egotiat[e] construc-
 tion financing terms, negotiat[e] the project and opera-
 tional documents necessary or appropriate for the Project,
 obtain[] permits and perform[] other services relating to
 the Project.” J.A. 14780, 14783. There is no concrete spec-
 ification of services that, if examined, might lend support
 to the amount set in the agreement for a premium on those
 services. And the choice to include only a highly generic
 description may reasonably be taken to suggest that the fee
 was not the result of a careful determination of what pre-
 mium was justified for the particular work done.
     It is no answer to say, as California Ridge does, that
 there is extensive evidence that services were performed
 that come within the generic descriptions in the agree-
 ments. Development services certainly were provided to
 California Ridge. In its cost-breakdown submitted to
 Treasury, California Ridge described several categories of
 indirect costs separately included in the grant request,
 such as “Development legal,” “Internal Development,” and
 “Misc Site Development.” J.A. 6530, 6569. And trial testi-
 mony provides some further details. See, e.g., J.A. 3288–
 89 (outside counsel work, for “any number of development
 activities,” including “zoning and permitting”; payroll and
 travel costs for Invenergy’s employees). But the generic
 character of the service description in the agreement
 makes it reasonable to find unproven the assertion that the
 fee amounts set in those agreements were a reliable indi-
 cator of the value of the development work.
      Third, the development agreements were executed af-
 ter the development services were substantially completed.
 The Bishop Hill agreement states that Invenergy “has pro-
 vided development services,” J.A. 14783 (emphasis added),
 while the California Ridge agreement states that Inven-
 ergy “has provided and hereby agrees to provide further
 development services,” J.A. 14780 (emphasis added). Be-
 cause the services were already rendered, in full or in large
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 12             CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



 part, the negotiated price for a premium as part of those
 services was not part of a pre-acquisition market transac-
 tion that would lend the price reliability as an indicator of
 market value.
     The facts we have summarized provide a strong basis
 for the Court of Federal Claims’ determination that Cali-
 fornia Ridge did not prove that the development fees stated
 in the agreements were reliable indicators of the develop-
 ment costs. And we see no clear error when we consider
 the foregoing facts together with California Ridge’s addi-
 tional arguments, discussed next.
                               B
     California Ridge argues that the Court of Federal
 Claims erred because its sham-transaction determination
 effectively denies Invenergy the ability to transfer value to
 California Ridge by selling its services to California Ridge
 at fair market value. That contention is incorrect. In this
 case, the trial court could reasonably find, on the particular
 facts, that the agreement-stated figures do not accurately
 value eligible costs. That is hardly a general bar to
 properly valued transactions within the Invenergy family.
     California Ridge also argues that the development
 agreements had economic substance because the economic
 position of third-party USBank was affected by the round-
 trip fee payments. But California Ridge forfeited this ar-
 gument by not raising it below. We may deem an argument
 forfeited when a party raises it for the first time on appeal.
 Personal Audio, LLC v. CBS Corp., 946 F.3d 1348, 1354
 (Fed. Cir. 2020); Sage Products, Inc. v. Devon Industries,
 Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). California Ridge
 cites a portion of its closing statement to show that it raised
 the point to the trial court, Appellants’ Reply Br. 15, but
 those statements were made to explain how USBank would
 be affected if the development fees were not included in the
 windfarms’ bases, J.A. 3579–80. The cited statements do
 not show that California Ridge previously argued that the
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 CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES           13



 payment of the development fees affected USBank. There-
 fore, California Ridge has forfeited the argument.
      California Ridge further argues that the development
 agreements had economic substance because they created
 a positive net cash flow to Invenergy. The argument that
 there is some positive net cash flow to Invenergy does not
 undermine the essential finding on the only issue on ap-
 peal—that the agreement-specified figures themselves
 were not proved to be accurate values for the costs at issue.
 Indeed, this argument is premised on faulty calculations.
 At trial, California Ridge’s witness Mr. Murphy deter-
 mined the net cash flow to Invenergy by subtracting Inven-
 ergy’s equity contribution to each windfarm from the
 respective development fee. J.A. 3016–26. In turn, Mr.
 Murphy determined Invenergy’s equity contribution by
 subtracting the amount of third-party funding from the to-
 tal cost of the windfarm. J.A. 3019–22. When performing
 this calculation, however, Mr. Murphy used a total facility
 cost that included the cost of the development fee. Com-
 pare J.A. 3020 with J.A. 6568. The implication of Mr. Mur-
 phy’s own testimony, it appears, is that the net cash to
 Invenergy is independent of the amount of the development
 fee. Such an implication undermines, rather than sup-
 ports, any inference that the amounts of the development
 fees are a reasonable indication of the development costs.
       In addition, California Ridge argues that the independ-
 ent attestation of its accounting firm, Deloitte, shows that
 the development agreements have economic substance.
 But those attestations do not prove that the fees are a reli-
 able indication of cost. In its memo to California Ridge,
 Deloitte indicated that its examination was “primarily con-
 cerned with the potential errors of classification of assets
 as eligible property and determination of eligible basis
 . . . .” J.A. 14690. Deloitte’s examination of the develop-
 ment fees appears to have been focused on whether the de-
 velopment fees were allocable to grant-eligible costs. And
 it concluded that Invenergy’s assertions that “the full
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 14             CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



 amount of the development fee is capitalizable to the pro-
 ject assets and that the allocation to basis eligible for Sec-
 tion 1603 grants is appropriate” were reasonable.
 J.A. 14701. Deloitte did not independently examine and
 determine whether the dollar amounts of the development
 fees accurately reflected the value of the premium on de-
 velopment work, as California Ridge claims. Although
 Deloitte stated that “the amount of the fee is consistent
 with the amounts paid by other third[-]party investors in
 other Invenergy projects,” it did not aver that the amount
 of the fee was an accurate measure of cost in this particular
 circumstance. Id.
      Lastly, California Ridge argues that the testimony of
 its expert Mr. Gross shows that the development fees are
 reliable measures of the value Invenergy provided to the
 windfarms. In particular, California Ridge argues that Mr.
 Gross’s testimony shows that the amount of the fees was
 within the range of “appropriate markups” identified by
 Treasury in certain published guidance. That guidance de-
 scribes three approaches to determining the appropriate
 costs basis for purposes of section 1603. Cost Basis Guid-
 ance, at 3–4. Under the “cost approach,” an applicant
 “should clearly show the cost buildup, including hard costs,
 soft costs, and profit.” Id. at 4. The guidance further pro-
 vides that an applicant may include a “markup” in its cost
 basis and that “appropriate markups typically fall in the
 range of 10 to 20 percent.” Id. California Ridge argues that
 the amounts of the development fees fall in that range,
 when measured as a percent of the other grant-eligible
 costs. But California Ridge has not established that this is
 an appropriate reading of the guidance, which specifies
 that markups are appropriate only when they are con-
 sistent with the “scope of the work for which the markup is
 received.” Id. That language suggests using a percentage
 of the cost of the development work provided, rather than
 of all grant-eligible costs. And, as discussed above, the ser-
 vices in the development agreements are described so
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 CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES          15



 generically as to make it difficult to determine what spe-
 cific work the development-fee “markups” are tethered to.
 Therefore, Mr. Gross’s testimony that the amounts of the
 development fees comply with Treasury’s guidance does
 not establish clear error on the trial court’s behalf.
     We need not decide whether Mr. Gross’s testimony—
 regarding the cost approach or the other approaches for de-
 termining basis—might have supported a finding in Cali-
 fornia Ridge’s favor regarding the development fees. The
 question on appeal is whether we are left with a definite
 and firm conviction that the trial court erred in finding to
 the contrary. We are not.
                             IV
     California Ridge argues that the Court of Federal
 Claims clearly erred in two findings of fact.
     First, it disputes the trial court’s finding that Mr.
 Schueler “did not give testimony specific[ally] related to
 the development services outlined in the three-page devel-
 opment agreement[s].” Appellants’ Br. 18 (quoting Califor-
 nia Ridge, 143 Fed. Cl. at 761). We conclude, however, that
 the court’s finding is not clearly erroneous in light of the
 record. The court noted that Mr. Schueler testified that he
 was “not immediately familiar” with the development
 agreements. California Ridge, 143 Fed. Cl. at 761 (citing
 J.A. 2911). California Ridge cites many portions of Mr.
 Schueler’s testimony as purportedly showing the extensive
 development work that he and his team did at the wind-
 farms. Appellants’ Br. 18–19. But much of that testimony
 is about the type of development work that Mr. Schueler
 did for Invenergy windfarms generally, see, e.g., J.A. 2805–
 06, 2815–17, and the rest of his testimony, while focused
 on development work done at the Bishop Hill or California
 Ridge windfarms, does not indicate any relation between
 the work done and the development agreements, see, e.g.,
 J.A. 2837–39, 2849–60. Additionally, the documents that
 California Ridge cites as evidence of the development work
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 16             CALIFORNIA RIDGE WIND ENERGY   v. UNITED STATES



 done are all dated earlier than the relevant development
 agreement, see, e.g., J.A. 12982–92 (dated May 3, 2011),
 J.A. 13034–35 (dated June 20, 2011); thus, these docu-
 ments do not show that the work documented was specifi-
 cally related to the services outlined in the development
 agreements. Therefore, the Court of Federal Claims’ find-
 ing that Mr. Schueler did not give testimony specifically
 related to the development agreements is not clear error.
     Second, California Ridge challenges the court’s finding
 that the developers did not quantify the services provided
 under the agreements. Appellants’ Br. 22–23 (citing Cali-
 fornia Ridge, 143 Fed. Cl. at 762). California Ridge argues
 that the services to be provided were clearly defined, it was
 possible to objectively verify whether the services were per-
 formed, and the services were quantified by the $50- and
 $60-million development fees. We understand the chal-
 lenged trial-court finding, however, as meaning that Cali-
 fornia Ridge failed to provide any specificity as to what,
 concretely, was done under the development agreements
 that would warrant the development-fee premiums in the
 amounts stated in the agreements. So understood, the
 finding is not clearly erroneous.
     As discussed above, the development agreements obli-
 gate Invenergy to perform development services identified
 only at a very high level of generality. And California
 Ridge’s provided method for determining whether those
 tasks have been completed is equivalent to a determination
 that the project has been completed. Such a determination
 does not show that the development agreements were in-
 dependently valuable and necessary when there are many
 other costs—all necessary to the completion of the pro-
 jects—also accounted for in California Ridge’s evidence.
 Lastly, although California Ridge did provide evidence as
 to how it arrived at the $50- and $60-million figures, see
 J.A. 2964–78, that evidence does not show that the valua-
 tions were reliable. Therefore, the Court of Federal Claims
 did not clearly err when it found that the development
Case: 19-1463    Document: 58      Page: 17    Filed: 05/21/2020




 CALIFORNIA RIDGE WIND ENERGY     v. UNITED STATES         17



 agreements provide only a general valuation of non-specific
 services—in its terminology: the services are not “quantifi-
 able.” California Ridge, 143 Fed. Cl. at 762.
                              V
     For the foregoing reasons, we affirm the judgment of
 the Court of Federal Claims.
     Costs awarded to the appellee.
                        AFFIRMED
