On June 14, 2023 Treasury released proposed regulations setting the process for corporate entities to transfer or sell clean energy tax credits to third parties. The transferability option, created by IRA section 13801, allows businesses to sell or transfer unused tax credits to unrelated third parties. Transferability may be used for 12 of the 19 clean energy tax credits. Treasury clarified that the risk that the credits would be recaptured would fall on the buyer of the credits.
Transferability is an option available only to companies such as small businesses like start-ups. The option is meant to allow these entities, that may not have a large federal tax liability, to take advantage of the benefits of the clean energy tax credits. Tax-exempt entities are not able to make use of transferability. However, tax-exempt entities may instead utilize direct pay, also under 13801, to receive cash payment for eligible tax credits. Treasury released proposed regulations for direct pay on the same day.
Treasury also released a temporary rule on the same day providing an online pre-filing process for project owners seeking to use transferability or direct pay. Before owners file tax returns, they must register their clean energy investments through an IRS online portal, which will generate a registration number that they will place on their tax returns. The pre-filing process is meant to reduce fraudulent claims as well as speed up the processing of tax returns and the issuance of payments.
Treasury requests public comment on the proposed rule through August 14, 2023 and will hold a public hearing on August 23, 2023.