Projects & Infrastructure

This past summer, the Treasury and Internal Revenue Service (IRS) published proposed Treasury Regulations (88 FR 40528 and 88 FR 40496) under two key provisions of the Inflation Reduction Act of 2022 (IRA) designed to enable taxpayers and tax-exempt entities to monetize certain energy-related federal tax credits. Section 6417  allows certain tax-exempt and governmental entities that historically could not benefit from such tax credits to receive direct payments from the government in lieu of such tax credits. Section 6418 permits taxpayers to transfer all or a portion of certain energy-related tax credits to unrelated parties for cash. By broadening the universe of organizations that are able to make use of energy-related tax credits through the direct pay provisions and creating a more direct pathway for taxpayers interested in financing energy projects to share credits through transferability, these provisions stand to significantly expand the market for investment in energy projects.

Read about IRS Notice 2023-44, which clarifies the 48C program application process and timeline following amendments to the program under the Inflation Reduction Act and an earlier notice providing application guidelines.

Read about Department of Treasury and IRS guidance regarding qualification for the 10% domestic content tax credit available to certain renewable energy projects under the Inflation Reduction Act of 2022 (IRA).

Read about proposed legislation in Texas that would impose extensive new fees and requirements on solar and wind energy generators if enacted into law.

IRA Update Section 45X & Section 48C

Read about a Department of Energy (DOE) announcement of $118 million in funding for 17 projects to accelerate the production of sustainable biofuels and the selected projects.

Read about guidance released by the IRS on the Low-Income Community Adder and the newly established allocation program to make the adder available.

Read about a new IRS reference standard for energy efficient commercial building property for purposes of the deduction under Section 179D of the Internal Revenue Code, which takes effect on January 1.

Read about new IRS reporting requirements, issued in Revenue Procedure 2022-42, for manufacturers and sellers of new or previously owned clean vehicles or qualified new commercial clean vehicles eligible for tax credits under Internal Revenue Code Sections 30D, 25E, or 45W, respectively.

On November 3, 2022, the U.S. Department of the Treasury (Treasury) and Internal Revenue Service (IRS) released three Notices requesting public comments by December 3, 2022, on certain additional aspects of the clean energy tax incentives included in the Inflation Reduction Act of 2022 (IRA). Treasury and the IRS previously released six Notices, on October 5, 2022, requesting public comments by November 4 on certain other aspects of the energy tax incentives, which are described in our alert. The Treasury and the IRS will consider written comments submitted after December 3 if such consideration will not delay the issuance of guidance. 

Read about the Biden-Harris administration’s announcement of $7 billion in funding to create regional clean hydrogen hubs (“H2Hubs”)

When President Biden’s signature Build Back Better Act faltered last year, many viewed the effort to be a failure. However, negotiations continued before Senate Majority Leader Chuck Schumer (D-NY) and Sen. Joe Manchin (D-WV) announced the package in late July. Nearly half of the $737 billion in revenue will be invested in clean energy and includes many direct funding opportunities in the form of grants, loans, and rebates focused on climate, energy, and energy efficiency. 

Read about the Inflation Reduction Act of 2022 enacted August 16, 2022, which extends and expands existing tax credits and adds several new energy tax credits to encourage the production of electricity using clean energy and the reduction of carbon emissions.

Read Mintz’s summary of important tax provisions included in the recently announced Inflation Reduction Act of 2022. If it is signed into law, the Act will establish a 15% corporate minimum tax; modify the carried interest rule; and expand, extend, and add new energy tax credits.

In February 2020, the IRS issued Notice 2020-12, which provides long-awaited guidance on when a “qualified facility” or carbon capture equipment, in each case within the meaning of section 45Q, is considered to have “begun construction.” This question is of paramount significance because section 45Q allows a carbon capture credit for carbon oxide that is captured using carbon capture equipment that is originally placed in service at a qualified facility, and a qualified facility means an industrial or direct air capture facility, the construction of which began before January 1, 2024.