January 29, 2023

Volume XIII, Number 29

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Last Call: Public Comments on Inflation Reduction Act Clean Energy Tax Incentives Are Requested By November 4

On October, 5, 2022, the U.S. Department of Treasury (Treasury) and Internal Revenue Service (IRS) published six Notices requesting public comments by November 4, 2022 on certain of the clean energy tax incentives included in the Inflation Reduction Act of 2022 (IRA).  However, the IRS and Treasury will consider written comments received after November 4 that do not delay the relevant guidance.  Input from industry stakeholders is important to help inform next steps for the IRS and Treasury and shape how these clean energy tax incentives are accessed in practice.

The Notices seek input on specific questions, as well as general comments, on key aspects of the amendments made to existing tax credits and the new tax provisions enacted by the IRA with respect to energy generation incentives [Notice 2022-49], credit monetization [Notice 2022-50], credit enhancements [Notice 2022-51], clean vehicle incentives [Notice 2022-46], manufacturing credits [Notice 2022-47], and incentives for energy efficiency in homes and buildings [Notice 2022-48].  The Notices also permit the public to submit questions about any of the energy tax provisions in the IRA, even if such provision is not identified in one of the Notices or is an existing provision not changed by the IRA.

The request for public comments suggests that Treasury and the IRS are committed to moving expeditiously to issue Treasury Regulations and other guidance.  This is good news for the industry because many aspects of the new tax incentives cannot be implemented without Treasury Regulations or other guidance detailing procedural or other requirements.  Further, developers, investors and other market participants need clarifications and expanded guidance on a variety of aspects of the tax provisions to, inter alia, evaluate new opportunities, create new transaction structures and optimize development of new projects and technologies.  

The specific questions in the Notices presumably highlight the areas where the IRS and Treasury intend to issue Treasury Regulations or other guidance and identify where they anticipate potential confusion or ambiguity.  Accordingly, it is useful to review the specific questions to know what guidance to anticipate and, more importantly, to identify questions that the IRS and Treasury have not considered for which guidance is needed. To that end, the charts below summarize some of the key questions about which input is requested.1

Electricity Generation - (Notice 2022-49

CODE SECTION

DESCRIPTION OF TAX PROVISION

SUMMARY OF KEY QUESTIONS ASKED

45(e)(13)

The IRA permits electricity produced by a taxpayer from qualified renewable sources to qualify for the "Production Tax Credit (PTC) if it is used by the taxpayer to produce qualified clean hydrogen at a qualified clean hydrogen facility, provided such production and use is verified by an unrelated person.  

  • What industry standards should be considered in establishing the verification guidelines?

  • Does the definition of “unrelated person” need to be clarified or have a different meaning than for other purposes under Section 45?

45(c)(10)(A)(v)

The IRA modified the definition of marine and hydrokinetic energy to include pressurized water used in a pipeline (or similar man-made conveyance) operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation.

  • Is guidance needed to define these facilities and, if so, how should they be defined?

45(b)(3), 48(a)(4), 45Y(g)(8), 48E(d)(2)

The IRA reduces the "Investment Tax Credit (ITC)" and PTC (current and the new zero-emissions credits effective after 2024) and several other credits for tax exempt bond financing, calculated in accordance with Section 45(b)(3) (or rules similar thereto).

  • What additional guidance would be helpful in determining how to calculate the reduction?

48(a)(3)(A)

The IRA expanded the definition of energy property eligible for the existing ITC to include electrochromic glass, energy storage technology, qualified biogas property, and microgrid controllers.

  • What considerations should be made by Treasury and the IRS in determining what types of technologies and components of those technologies should be included in each new type of energy property?

48(a)(8)

The IRA provides that for certain energy property amounts paid or incurred for qualified interconnection property may be included in basis for purposes of the ITC.  Among other requirements, the maximum net output of the energy property being interconnected to the utility cannot exceed 5 MW (AC) and the expenses must be incurred for an addition, modification, or upgrade to the utility’s transmission or distribution system that is necessary to accommodate interconnection of the project.

  • What types of additions, modifications, or upgrades to the transmission or distribution system are required for the purpose of accommodating interconnection?

  • Is guidance needed to define energy property that has a maximum net output not greater than 5 MW (AC)?

  • What type of documentation, in addition to interconnection agreements and cost certification reports, is readily available for a taxpayer to demonstrate that they have paid or incurred interconnection costs? 

 

45U

The IRA provides for a new PTC under Section 45U for electricity produced from qualified zero-emissions nuclear power facilities.  The amount of the credit is reduced by a “reduction amount” that is calculated, in part, based on the gross receipts from the electricity produced by the facility.  Section 45U(b)(2)(B) provides that gross receipts generally include any amount received by the facility from a “zero-emission credit program,” unless an exclusion applies.  There is an exclusion for amounts received from a zero-emission credit program if the full amount of the Section 45U credit is used to reduce payments from such zero-emission credit program.

  • Is guidance needed to clarify the meaning of the term "gross receipts"? 

  • In connection with the definition of “zero-emission credit program,” what factors should be considered in determining whether a payment is a result of a government program for the zero-emission, zero-carbon, or air quality attributes of any portion of the electricity produced by the facility? In connection with the exclusion, what factors should be considered to determine whether the full amount of the Section 45U credit is to reduce payments from the zero-emission credit program?

 

45Y

The PTC for electricity generating projects placed in service after 2024 is provided under new Section 45Y, which is technology neutral and applies to electricity produced at a zero-emissions facility and sold by the taxpayer to an unrelated person.  However, the electricity can be sold, consumed or stored by the taxpayer in the case of a qualified facility equipped with a metering device which is owned and operated by an unrelated person.  The statute requires the Secretary to publish annual greenhouse gas (GHG) emissions rates for types or categories of facilities. For facilities where no emissions rate has been established, the facility may petition the Secretary for a determination.

  • Is guidance needed to determine (a) when electricity is considered sold by the taxpayer to an unrelated person, (b) if a facility is considered equipped with a metering device owned and operated by an unrelated person, and (c) when electricity produced at a facility equipped with a metering device is considered sold, consumed or stored by the taxpayer during the taxable year?

  • What factors should Treasury and the IRS consider in publishing a table with the annual GHG emission rates for different categories of facilities, including considerations around scope? 

  • What procedures should be made available for filing a petition for an emissions rate determination by the Secretary and what factors should be considered in the determination?

48E

The ITC for electricity generating projects placed in service after 2024 is provided under new Section 48E, which is technology neutral and applies to investments in electricity generating facilities with GHG emissions rates that do not exceed zero. Taxpayers can take either the PTC under 45Y or 48E.  Section 48E uses the same emissions standards as under Section 45Y.  

  • What industry mechanisms currently exist for a taxpayer to demonstrate eligibility for the credit?

  • The questions above regarding GHG emissions rates under Section 45Y will be relevant to Section 48E because Section 48E(b)(3) incorporates the special GHG accounting rules provided in Section 45Y(b)(2).

48(e) & 48E(h)

The IRA provides an additional 10-20% ITC for qualifying electricity generating facilities that (i) have a maximum net output less than 5 MW (AC); (ii) receive an allocation of an environmental justice capacity limitation; and (iii) are either (A) located in a qualified low income community or on tribal land (10%), or (B) part of a low-income residential building project or low-income economic benefit project (20%).  For Section 48(e), the environmental justice capacity limitations will be provided to qualified solar and wind facilities pursuant to a program with a total capacity of 1.8 gigawatts (DC) for 2023 and 2024, which must be established by the Secretary within 180 days of the IRA enactment.  The Secretary is required to establish a separate environmental justice capacity limitation program by January 1, 2025 to allocate a total of 1.8 gigawatt (DC) per applicable year to qualifying zero-emissions electricity generating facilities.  

 

 

  • There are several questions concerning allocations of environmental capacity limitations, including (a) what considerations should be taken into account with respect to guidance on the application process, and (b) what level of project completion, if any, should be required at the time of application for or allocation of such capacity limitations?

  • There are several questions concerning what mechanisms exist or need to be designed for a taxpayer to establish that a project is located in a qualifying low income community or on tribal land, or is part of a qualifying low-income residential building project or low-income economic benefit project, including questions about certain substantive requirements (e.g., clarification of the meaning of “financial benefit”).

  • What guidance is needed with respect to recapture of the additional credit if the project ceases to qualify?  

 

Direct Pay and Credit Transfers (Notice 2022-50)

CODE SECTION

DESCRIPTION OF TAX PROVISION

SUMMARY OF KEY QUESTIONS ASKED

6417

An “applicable entity” that makes an election under new Section 6417 is treated as making a payment against federal income taxes equal to the amount of such credit, and can receive such amount as a tax refund if no tax is owed (so called Direct Pay).  Generally, an applicable entity means (i) any organization exempt from tax imposed by subtitle A, (ii) any State or political subdivision thereof; (iii) the Tennessee Valley Authority; (iv) an Indian tribal government; (v) any Alaska Native Corporation; or (vi) any rural electricity cooperative.  However, in the case of the clean hydrogen production credit (Section 45V), the advanced manufactured credit (Section 45X) and the CCS credit (Section 45Q), other taxpayers can elect to be treated as an “applicable entity” and make the election.  (Sections 6417(d)(1)(B), (C), and (D)). 

Special rules apply in the case of elections with respect to property held directly by partnerships or S corporations, including that the election is made by the partnership or S corporation and cannot be made by a member or shareholder, and that the refund payment is made by the IRS to the entity before determining the distributive shares of partners or shareholders.

In general, the election is to be made at such time and manner as the IRS provides. However, Section 6417 also includes several specific rules regarding the effect of elections with respect to certain tax credits and that the election cannot be made later than (I) in the case of any government, or political subdivision for which no return is required under Section 6011 or Section 6033(a), the date determined by the IRS, or (II) in any other case, the due date (including extensions of time) for the tax return for the taxable year for which the election is made, but not earlier than 180 days after August 16, 2022. 

There are also recapture rules and penalty provisions for an “excessive payment.” 

 

  • There are several questions concerning how to make the election, including (a) what issues could arise when a tax-exempt entity makes the election and what, if any, guidance is needed; (b) what factors should Treasury and the IRS consider in determining the time and manner for making the election; and (c) in determining the amount treated as a payment against taxes, what, if any, guidance is needed to clarify the application of any other Code provision?

  • What, if any issues, could arise in the case of a direct pay election by a partnership or S corporation and what guidance is needed for such issues? What, if any, guidance is needed to clarify the treatment of a payment made by the IRS to the electing partnership or S corporation? 

  • What, if any, guidance is needed to clarify which entities are applicable entities under Section 6417(d)(1)(A), and which taxpayers may elect to be treated as applicable entities under Sections 6417(d)(1)(B), (C), or (D)? 

  • What, if any, guidance is needed to clarify the application of any Code provision other than Section 6417 to an applicable entity, or a taxpayer electing to be treated as an applicable entity, that makes the direct pay election?  

  • What types of structures are expected to be used by applicable entities, or taxpayers electing to be treated as applicable entities, that make the direct pay election? 

  • Are there specific issues that Treasury and the IRS should address for applicable entities that are subject to non-tax legal requirements or other rules that may affect such entities' ability to make a direct pay election? 

  • What other guidance is needed or issues may arise with respect to the election in the case of the credits under Sections 45V, 45X or 45Q?   

  • For governments and political subdivisions that are not required to file a return, what factors should the IRS and Treasury consider in providing guidance for the due date for the election and, similarly, what should the IRS and Treasury consider with respect to guidance as to when the payment is treated as made in the case of such entities? 

  • What documentation or information should be required to prevent fraud, improper payments or excessive payments, when should documentation be required, should the requirements be the same or different for different credits and/or for taxpayers that elect to be treated as applicable entities?

  • What guidance is needed with respect to (i) the excessive payment penalty and reasonable cause exception to the penalty, (ii) recapture and (iii) whether Section 6417 should operate similarly to the elective payment provisions under Section 48D(d)? 

6418 

The IRA adds Section 6418, which permits an eligible taxpayer to make an election to sell all or any portion of certain tax credits to an unrelated person for cash, in which case the transferee identified in the election is treated as the taxpayer with respect to such tax credit and the credit is taken into account in the first taxable year of the transferee ending with, or after, the taxable year of the transferor taxpayer with respect to which the credit was determined.  

Any taxpayer who is not described as an applicable entity under Section 6417 is an eligible taxpayer under Section 6418. 

Special rules apply in the case of credit transfer elections with respect to property held directly by partnerships or S corporations, including that the election is made by the partnership or S corporation and cannot be made by a member or shareholder.

There are also recapture rules and penalty provisions for an “excessive payment.”

  • What issues may arise and what guidance is needed in the case of a transfer election made by a partnership or S corporation and what factors should Treasury and the IRS consider in determining the time and manner for a partnership or S corporation to make a credit transfer election? 

  • What clarification, if any, is needed on the limitations or parameters on a transferee taxpayer’s eligibility to claim the credit? What, if any, guidance is needed to clarify the application of any other Code provision to determine the amount of the credit transferred?  What, if any, guidance is needed with respect to the application of any other Code provision on the transferee taxpayer?

  • What, if any, guidance is needed to clarify the application of Section 50 for purposes of credit recapture, basis adjustments, and eligibility related to Section 50(b)(3)? 

  • What factors should be considered in determining the form and manner of the (i) notice required to be provided from the transferor to the transferee if the property ceases to be investment credit property before the end of the recapture period, and (ii) the notice specifying the recapture amount that the transferee is required to provide to the transferor?

  • What documentation should be required to prevent fraud and excessive credit transfers, when should documentation be required, and should the requirements be the same or different for different credits?

  • What guidance is needed with respect to (i) the excessive payment penalty and reasonable cause exception to the penalty, and (ii) the application of Section 6418(g)(4) with respect to progress expenditures?

 

Credit Enhancements - (Notice 2022-51)

CODE SECTION

DESCRIPTION OF TAX PROVISION

SUMMARY OF KEY QUESTIONS ASKED

45(b)(7), 45(b)(8), and 48(a)(10)

The maximum PTC under Section 45 and the maximum ITC under Section 48, as applicable, is available with respect to qualified facilities when the prevailing wage and apprenticeship requirements are satisfied.  The IRA revised the credit rate structure for these tax credits and several others, such that there is a low base credit, which is increased five times if the taxpayer certifies that both requirements are met. 

Prevailing Wage Requirement – In general, the taxpayer must ensure that all laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the construction, repair or alteration of the applicable facility are paid wages at rates at least equal to prevailing wage rates set by the Secretary of Labor under the Davis-Bacon Act for construction, alteration, or repair of a similar character in the locality.  The alteration and repair requirement applies for the credit period in the case of the Section 45 PTC and during the recapture period in the case of the Section 48 ITC.  Sections 45(b)(7) and 48(a)(10).  There are similar prevailing wage requirements under Sections 30C, 45Q,  45L, 45U, 45V, 45Y, 45Z, 48C, 48E and 179D.

Apprenticeship Requirement – In general, the taxpayer is required to ensure that not less than the applicable percentage (generally 15% if construction starts after 2023) of the total labor hours of the construction, alteration, or repair work (including such work performed by any contractor or subcontractor) with respect to the applicable facility is performed by an employee who participates in a registered apprenticeship program.  There are certain exceptions and penalty rules.  Sections 45(b)(8) and 48(a)(11).  There are similar apprenticeship requirements under Sections 30C, 45Q, 45V, 45Y, 45Z, 48C, 48E and 179D.

  • Is guidance needed to clarify how to apply the Davis-Bacon prevailing wage requirements?

  • What should Treasury and the IRS consider in developing rules for taxpayers to correct a deficiency for failure to satisfy prevailing wage requirements?

  • What documentation or substantiation should be required to show compliance with the prevailing wage requirements?

  • What factors should Treasury and the IRS use to determine the appropriate duration of employment for purposes of the apprenticeship requirement?

  • What documentation or substantiation do taxpayers maintain or could they create to demonstrate compliance with the apprenticeship requirement or the good faith exception?

45(b)(6)(A) & 48(a)(9)(A)

45Y(a)(2)(B) and 48E(a)(2)(A)

The maximum PTC under Sections 45 and 45Y and the maximum ITC under Sections 48 and 48E (i.e., the increased credit which is the base credit multiplied by 5) is available to any qualified facility or energy project that has a maximum net output of less than 1MW (AC) electrical or thermal energy without satisfying the prevailing wage and apprenticeship requirements.

  • How, if at all, does the determination of when a facility or project will be considered to have a maximum net output of less than 1 megawatt need further clarification?

 

 

45(b)(9), 45Y(g)(11),

48(a)(12), and 48E(a)(3)(B)

The IRA added a domestic content bonus credit, which increases the amount of the PTC under Sections 45 and 45Y by 10% or adds an additional 2% or 10% ITC under Sections 48 and 48E (depending on whether the wage and apprenticeship requirements are satisfied) if the taxpayer certifies that any steel, iron, or manufactured product that is a component of the applicable facility (upon completion of construction) was produced in the United States (as determined under 49 C.F.R. 661). 

Sections 48(a)(12), 45Y(g)(11), and 48E(a)(3)(B) apply similar rules to those under Section 45(b)(9). Sections 48(a)(13), 45Y(g)(12), and 48E(d)(5) apply similar elective payments rules to those under § 45(b)(10).

  • With respect to the requirement to certify steel, iron or manufactured products are produced in the United States (i) what regulations, if any, under 49 C.F.R. 661 should apply in determining whether the requirements are satisfied, (ii) what should be considered in determining "completion of construction" for this purpose and should the date this occurs be the same as the date the facility is placed in service, (iii) should the definitions of "steel" and "iron" under 49 C.F.R. 661.3, 661.5(b) and (c) be used for purposes of the domestic content requirement, and (iv) what records or documentation do taxpayers maintain or could they create to substantiate satisfaction of the domestic content requirements?

  • What clarifications are needed with respect to the provisions (and terms used therein) pursuant to which manufactured products that are components of a qualified facility upon completion of construction are deemed to be produced in the United States if not less than a certain percentage of the total costs of all manufactured products are attributable to manufactured products (including components) mined, produced, or manufactured in the United States? 

  • What clarifications are needed, and factors should Treasury and the IRS consider in providing guidance, with respect to (i) determining whether Section 45 or 45Y require an elective payment under Section 6417 to be reduced, or (ii) the exception available if the inclusion of steel, iron, or manufactured products that are produced in the United States increases the overall costs of construction of the facility by more than 25 percent or relevant steel, iron, or manufactured products are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality?

  • What should Treasury and the IRS consider in providing guidance regarding the similar domestic content requirements under Sections 48(a)(12) and 48E(a)(3)(B)? 

 

45(b)(11)(A), 45Y(g)(7), 48(a)(14), and 48E(a)(3)(A)

The IRA added an energy community bonus credit, which provides a 10% increase to the applicable PTC under Sections 45 and 45Y, or an additional 2% or 10% ITC under Sections 48 and 48E for qualified facilities located in either (1) a brownfield site (as defined in 42 U.S.C. 9601(39)(A), (B), and (D)(ii)(III)), (2) a metropolitan statistical area or non-metropolitan statistical area that has (or had, at any time after December 31, 2009) 0.17 percent or greater direct employment or 25 percent or greater local tax revenues related to the extraction, processing, transport, or storage of coal, oil, or natural gas (as determined by the Secretary), and has an unemployment rate at or above the national average unemployment rate for the previous year (as determined by the Secretary), or (3) a census tract (i) in which a coal mine closed after December 31, 1999 or a coal-fired electric generating unit was retired after December 31, 2009; or (ii) that is directly adjoining to any census tract described in (i).

The definition of an energy community under Section 48(a)(14) has certain modifications.

  • What further clarifications are needed regarding the term "located in" for this purpose, including any relevant timing considerations for determining whether a qualified facility is located in an energy community?

  • Does the determination of a brownfield site need further clarification? 

  • What sources of information should Treasury and the IRS consider or use in determining the meaning of the terms used, and satisfaction of the relevant standards, to qualify as an energy community under clause (2) or (3)? For example, what sources should be considered to determine whether a metropolitan statistical area or non-metropolitan statistical area has or had 25 percent or greater local tax revenues related to the extraction, processing, transport, or storage of coal, oil, or natural gas?  What tax revenues (for example, municipal, county, special district) should be considered for this purpose?

  • What past or possible future changes in the definition, scope, boundary, or status of a "brownfield site," a "metropolitan statistical area or non-metropolitan statistical area" or a "census tract," as used in the three categories of energy communities, should be considered, and why?

 

 

Clean Vehicle Incentives (Notice 2022-46)

CODE SECTION

DESCRIPTION OF TAX PROVISION

SUMMARY OF KEY QUESTIONS ASKED

30D

 

This credit is available to purchasers of new qualified clean vehicles for consumer use, which includes EV’s, plug-in hybrids, and hydrogen fuel cell vehicles. The IRA made significant changes to this tax credit, which include eliminating the manufacturer cap of 200,000 vehicles, and adding income and purchase price eligibility limitations, and content and assembly requirements.  Under the content requirements, $3750 of the maximum $7500 is conditioned on the vehicle meeting certain new critical minerals requirements and $3,750 is conditioned on the vehicle meeting certain new battery components requirements.

The IRA modified the credit to permit consumers to elect to transfer the credit to registered dealers for vehicles placed in service after 2023.

 

  • With respect to the election under Section 30D(g) to transfer the credit to a registered dealer, (a) what factors should be considered in determining the time and manner of making the election; (b) is guidance needed regarding the definition of "taxpayer," such as whether non-individual taxpayers are eligible for the credit; (c) what issues should be considered regarding the transfer once the election is made; (d) what considerations should be taken into account in determining the time and manner of advance payments made to registered dealers with respect to transferred credits; and (e) what guidance, if any, is needed to determine who is a licensed dealer who can be registered with the Secretary for purposes of the credit transfer election?

  • With respect to the new critical minerals requirements, what factors and definitions should be considered to determine (a) whether the extracting or processing of such minerals occurred in the United States or in any country with which the United States has a free trade agreement (FTA) in effect; (b) whether recycling of such minerals occurred in North America; or (c) (i) the total value of the critical minerals contained in a vehicle's battery, and (ii) the percentage of that total value attributable to critical minerals (I) extracted or processed in the United States or a country with which the United States has a FTA in effect, or (II) recycled in North America? 

  • With respect to the new battery component requirements, what factors and definitions should be considered to determine (a) whether manufacture or assembly of the battery components of the vehicle occurred in North America; or (b) (i) the total value of the components contained in the battery of a clean vehicle, and (ii) the percentage of that total value attributable to components that were manufactured or assembled in North America? 

  • What existing battery technology supply chain tracking methodologies or regulatory frameworks should be considered in determining applicable values for purposes of the critical minerals and battery component requirements?  

  • With respect to the exclusion of certain vehicles because applicable critical minerals contained in the battery were extracted, processed, or recycled by, or components contained in the battery of such vehicle were manufactured or assembled by, a foreign entity of concern, (a) is guidance needed to clarify the definition of "foreign entity of concern;" and (b) what existing regulatory or guidance frameworks for recordkeeping requirements or supply chain tracking methodologies may be useful for qualified manufacturers to verify that its vehicles are not subject to this exclusion?

  • Is guidance needed to coordinate the application of the excess payment provision under Section 30D(g)(7)(B) and the recapture provision under Section 30D(g)(10) as between transferors and transferees of the credit under Section 30D(g) and, in the event of a recapture event, how should recapture be reported by the taxpayer?

  • The existing rule under Section 30D(f)(3), which in certain cases permits a clean vehicle acquired and used by a tax-exempt entity to be treated as placed in service by the seller of such vehicle, expires at the end of 2023.  After 2023, how should clean vehicles acquired and used by a tax-exempt entity be treated for purposes of this tax credit?

  • With respect to recordkeeping and reporting, (a) what information in addition to VIN numbers should a qualified manufacturer provide to the Secretary to be considered a qualified manufacturer with respect to a particular vehicle; (b) what existing regulatory or guidance frameworks for recordkeeping requirements or information reporting or existing battery technology supply chain tracking methodologies may be useful for developing guidance for qualified manufacturers; and (c) what information should be included in the report furnished by the seller of the vehicle to the taxpayer and the Secretary under Section 30D(d)(1)(H), including the election to transfer the credit under Section 30D(g)?

  • Is guidance needed to clarify the definition of the term "final assembly" in Section 30D(d)(5) or the area included in the term "North America" for purposes of the requirement under Section 30D(d)(1)(G) that final assembly of the clean vehicle must occur in North America??

25E

The IRA added this new credit for the purchase of previously owned clean vehicles for qualified buyers. There are eligibility limits as to the maximum purchase price and taxpayer income.  The credit is equal to the lesser of (1) $4,000, or (2) 30 percent of the vehicle’s purchase price. Consumers can elect to transfer the credit under rules similar to those under Section 30D with respect to vehicles acquired after 2023.

  • What, if any, guidance is needed to address how a taxpayer can verify that a vehicle qualifies as a “previously-owned clean vehicle” as defined in Section 25E(c)(1)?

  • Section 25E(e) provides that rules similar to the special rules set forth in Section 30D(f) (without regard to paragraph (10) or (11) thereof) apply for purposes of the Section  25E credit. What modifications, if any, should be made to such special rules when applying them to the Section 25E credit?

  • Section 25E(f) provides that credit transfer rules similar to the rules under Section 30D(g) apply for purposes of the Section 25E credit.  What modifications, if any, should be made to such credit transfer rules when applying them to the Section 25E credit?

 

 

Manufacturing Credits (Notice 2022-47)

CODE SECTION

DESCRIPTION OF TAX PROVISION

SUMMARY OF KEY QUESTIONS ASKED

45X(a)(1),

 (a)(2), 

 (b), (c)

The IRA added this new Advanced Manufacturing Production credit for certain critical minerals and eligible components produced by a taxpayer in the United States and sold by such taxpayer to an unrelated person.  Eligible components are components utilized in the construction of wind and solar facilities and energy storage technology.  Components produced at facilities eligible for the qualifying advanced energy project credit under Section 48C are not eligible components. 

 

  • Is additional clarification needed regarding the definitions of an “eligible component” in Section 45X(c)?

  • How should the amount of the credit be calculated for components that could be used in systems of varying capacities and how should verification of the applicable credit amount be demonstrated?

  • With respect to “wind energy components,” what should the requirements be for establishing and certifying that a “related offshore wind vessel” is used for offshore wind development and where it is uncertain how much a vessel will be used for offshore wind, how should such situations be addressed?

45X(a)(3)(B) and (d)(4)

Under the Advanced Manufacturing Production credit, the taxpayer may make an election to treat the sale of components to a related person as made to an unrelated person.

A person is treated as selling an eligible component to an unrelated person if such eligible component is integrated, incorporated, or assembled into another eligible component, which is sold to an unrelated person.

  • What, if any, clarification is needed as to the meanings of the terms “unrelated person” and “related person”? 

  • What factors should Treasury and the IRS consider in determining what information or registration is must be provided as a condition for such election in order to prevent duplication, fraud, or any improper or excessive credit amount?

  • How should Treasury and the IRS determine when an eligible component is “integrated, incorporated, or assembled” into another eligible component?

48C 

This is a credit for capital investments in a Qualifying Advanced Energy Project.  To qualify, the project must receive certification from the IRS, which beginning January 1, 2023 will be pursuant to a new program established by the IRA.   The IRA also expanded the definition of a qualifying advanced energy project.  In general, a qualifying advanced energy project is a project which (i) re-equips, expands, or establishes an industrial or manufacturing facility for the production or recycling of one of nine types of property (related to clean energy); (2) re-equips an industrial or manufacturing facility with equipment that reduces GHG emissions by at least 20% using certain technologies; or (3) re-equips, expands or establishes an industrial facility for processing, refining or recycling of critical materials.

 

 

  • How should a qualifying advanced energy project substantiate its eligibility based on any of the available criteria, but particularly the criteria provided by Section 13501 of the IRA?

  • Is guidance needed to include eligibility of facilities currently producing industrial materials for use in the construction or alteration of buildings and infrastructure projects (such as  concrete, steel, asphalt, and flat glass) that can be retrofitted to produce materials that have substantially lower levels of embodied GHG emissions?

  • With respect to types of property that an industrial or manufacturing facility can produce or recycle, (a) what, if any, guidance is needed to define "equipment designed to refine electrolyze, or blend any fuel, chemical, or product which is renewable, or low-carbon and low-emission” or  "property designed to produce energy conservation technologies (including residential, commercial, and industrial applications);" and (b) what should Treasury and the IRS consider in determining “other advanced energy property designed to reduce greenhouse gas emissions”?

  • With respect to the 20% reduction of GHG emissions and the applicable types of technologies for achieving such reduction, (1) what guidance, if any, is needed to define (a) "energy efficiency" or "reduction in waste from industrial processes;" or (b) the baseline criteria, boundary conditions and/or timeframe to determine achievement of the 20 percent threshold; and (2) what should Treasury and the IRS consider in determining "any other industrial technology designed to reduce greenhouse gas emissions"?

  • Are there existing industry guidelines or governmental regulatory practices that a taxpayer may use to demonstrate that a project reduces GHG or other pollutant emissions? 

  • What should Treasury and the IRS consider in determining the selection criteria for awarding the credit and to what extent should Treasury and the IRS rely on precedent from previous experience administering the Section 48C credit during previous allocation rounds provided in Notice 2009-72, 2009-37 I.R.B. 325 and Notice 2013-12, 2013-10 I.R.B. 543? 

  • What, if any guidance is needed with respect to revocations of certifications? 

Public comments may be filed electronically or by mail to the address provided in the relevant Notice. 

The Notices do not specifically ask for comments about several important tax credits which were added or significantly changed by the IRA, including the new Clean Hydrogen Production credit under Section 45V and the Carbon Capture and Sequestration credit under Section 45Q.  Some market participants consider these two credits to be among the most significant clean energy tax changes made by the IRA.  Public comments can be made about the Section 45V credit or the Section 45Q credit, or any of the other clean energy tax credits not specifically identified.  However, we wonder whether the IRS may issue additional Notices in the future, which would identify specific questions about these two credits and others, such as the new Clean Commercial Vehicle credit under Section 45W and the Alternative Fuel Refueling Property credit under Section 30C. 

 We will continue to provide updates concerning the energy tax changes to the Code made by the IRA.  


FOOTNOTES

Note that the tables do not include all of the clean energy tax provisions addressed in the Notices and specifically does not include any tax incentives for energy efficiency in residential buildings. 

 

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 307
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About this Author

Anne S. Levin-Nussbaum Tax and Financial Industry Attorney Mintz, Levin, Cohn, Ferris, Glovsky and Popeo Law Firm
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Anne’s practice encompasses a broad spectrum of US federal income tax matters, with a particular emphasis on renewable energy transactions and financing.

Anne has counseled clients on tax matters for over 25 years, and has extensive experience with all facets of tax structures for renewable energy projects. In representing sponsors, lenders, and tax equity investors in the financing of residential, utility, and commercial wind and solar energy projects, she advises clients on the use of flip partnerships and other structures for allocating the ...

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Xandy Walsh Securities Lawyer Boston Mintz
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Xandy focuses his practice on corporate and securities law, transactions, venture capital and private equity matters, and general corporate matters. He works with companies in a variety of industries, including energy & sustainability.

Prior to joining Mintz and while earning his law degree, Xandy worked as a senior economist with the Massachusetts Department of Public Utilities. In this role, he advised the Department’s Commission on rate cases, special investigations, and other matters filed by utility companies. He also advised on...

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Gregg Benson Tax Attorney Mintz Law Firm
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Gregg has a multifaceted tax law practice that encompasses advising companies and individuals on a wide range of tax issues related to transactions, estate tax planning, and renewable energy projects.

Gregg has significant experience with tax issues involving US and cross-border taxable and tax-free mergers and acquisitions, spin-offs, cross­border tax structuring, partnerships, and limited liability companies. He regularly represents US and international sponsors of, and investors in, private equity and other investment funds, as well as...

212.692.6791
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