The U.S. Department of the Treasury and the IRS released final regulations to help entities that co-own clean energy projects access clean energy tax credits through elective pay, also called direct pay.
Previously, many entities – including state and local governments, Tribes and territories, public school districts, rural electric co-ops, and tax-exempt organizations like churches, hospitals, higher education institutions, and non-profits – could not benefit from clean energy tax credits because they had little or no federal tax liability.
Direct pay will allow these entities to access the full value of clean energy incentives. This, in turn, will help projects get built more quickly and affordably. The guidance issued this week provides greater clarity and flexibility for direct pay eligible entities that want to jointly invest in clean energy projects.
“The Biden-Harris administration is focused on continuing the clean energy investment boom and ensuring all Americans benefit from the growth of this sector. Direct pay is helping more clean energy projects be built quickly and affordably, and American communities are benefitting as a result. Today’s rules will increase the availability of capital for clean energy projects by providing certainty and flexibility for state and local governments, Tribes and territories, non-profits, and more to benefit from these resources,” U.S. Deputy Secretary of the Treasury Wally Adeyemo said.
Specifically, the final regulations make targeted modifications to existing partnership tax rules clarifying how co-owned projects in the clean energy space can elect not to be treated as partnerships for tax purposes. This provides such projects with additional flexibility.
These changes are critical because under the Inflation Reduction Act, partnerships are not among the entities that are generally eligible for direct pay. By collectively electing out of partnership status, co-owners that are eligible for direct pay can take advantage of direct pay for the share of the project that they own. Meanwhile, co-owners that are not eligible for elective pay could use transferability.
Further, the final regulations clarify that eligible co-ownership arrangements can be organized to own and operate property giving rise to any of the Inflation Reduction Act credits where elective pay is available. In addition, it enables such arrangements to invest in clean energy projects through a noncorporate entity.