Understanding transferable tax credit carrybacks

Reunion recently announced our collaboration with Summit Ridge to sell $40M in tax credits to fund community solar projects.

Phil Schapiro, VP of Project Finance at Summit Ridge Energy, will join Reunion's transactions team on Tuesday, August 20th for a 60-minute workshop covering recent market developments and a discussion about their experience working through a tax credit transaction. 

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Register

Instructions for joining the webinar will be sent once you have registered. If you have any questions, please contact Maria Verbaite.

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We will make a recording available for those who cannot attend the webinar live.

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Topics

The workshop will include three 15-minute modules, with about five minutes of Q&A per module.

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Speakers

Phil Schapiro – Summit Ridge Energy

Phil Schapiro is VP of Project Finance at Summit Ridge Energy, where he leads fundraising efforts across the capital stack including debt, equity, and monetization of tax credits.

Andy Moon and Billy Lee – Reunion

Andy Moon and Billy Lee are the co-founders of Reunion and work closely with Fortune 500 corporations and clean energy companies to buy and sell clean energy tax credits.

Andy and Billy have led hundreds of clean energy financings since 2006, including some of the first solar transactions with institutions such as US Bank, JP Morgan, Wells Fargo, Bank of America, D.E. Shaw, and others. 

Questions welcome

We want our office hours to be interactive, so please bring any questions you have, whether related to current market conditions, pricing, or commercial terms.

You're welcome to ask questions beforehand.

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Treasury’s June 2023 guidance made clear that corporate taxpayers can offset their quarterly estimated tax payments using tax credits they “intend to purchase,” opening the door for tax credit buyers to realize most or all of the benefit of a tax credit prior to paying the tax credit seller.

An increasing number of corporate tax directors and treasurers are focused on these types of opportunities, which do not require the buyers to go “out of pocket” to invest in a tax credit. Instead, the buyer pays a clean energy company a discounted amount compared to what they would have paid the IRS; the payment is concurrent with, or in some cases even after their scheduled tax payment date.

In this article, we outline four scenarios where buyers can realize tax benefits prior to cash outlay. We assume the buyer is a corporation that pays $200M each year in federal tax, and is looking to purchase $50 to $100M in tax credits.

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Structures that enable buyers to realize full tax benefit prior to cash outlay

Structure 1: §45 PTCs, paid quarterly in arrears

The buyer commits to purchasing $100M in tax credits in Q1, which allows the buyer to offset $25M in tax payments each quarter. Note that if the buyer commits to purchase $100M in Q2 instead of Q1, there is a similarly strong benefit; the buyer can offset $50M in tax payments in Q2, and $25M in both Q3 and Q4.

§45 PTC transactions are typically paid quarterly in arrears. Often, the payment schedule is organized such that the buyer pays concurrently or shortly after each quarterly estimated tax payment date, based on actual tax credits generated during the preceding period. In this example, the buyer pays a clean energy developer $23.75M on each estimated tax payment date, instead of paying the IRS $25M. This results in a $1.25M net benefit each quarter, without any out-of-pocket investment.

For a real-world illustration of how this structure delivers value, see our Section 45 PTC transfer case study, which details transaction mechanics, cash flow timing, and buyer benefits.

Both §45 PTCs, from electricity generated by qualified renewable energy resources such as solar or wind, and §45X AMPCs from advanced manufacturing facilities, can be structured in this way.

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Structure 2: §48 ITC portfolio, paid quarterly in arrears

A portfolio of ITCs can be structured similarly to the previous example, where the buyer pays quarterly in arrears (and is therefore able to utilize the full tax benefit prior to cash outlay).

In this example, the seller has a portfolio of rooftop solar projects that will be placed in service throughout the year, generating a total of $100M in tax credits. The seller is offering an 8% discount for the credits. The buyer commits to the tax credit purchase in Q1, and reduces their estimated tax payments by $25M each quarter. 

The buyer will pay for the actual credits generated at the end of each preceding quarter. In this example, we assume that $20M in credits are generated in Q1 and Q2, while $30M is generated in Q3 and Q4. As a result, a relatively lower volume of credits need to be paid for in Q1 and Q2 (while the reduction in estimated tax payments remains fixed at $25M each quarter), resulting in a strong net benefit in Q1 and Q2. Overall, the buyer saves $8M in taxes over the course of the year, without any out of pocket investment.

There is a risk that the seller does not generate as many credits as anticipated in a given tax year; if so, a make-whole provision can be negotiated, which obligates the seller to make the buyer whole for any difference between what they agreed to pay for the credits and what they would have to reasonably pay for any replacement credits. In the event of a shortfall of credits, Reunion will also work with the buyer to source replacement credits.

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Structure 3: Commit to ITC early in the year, but pay late in the year

In this scenario, a buyer commits to purchasing ITCs that a developer will generate later in the year. While the IRS was clear that buyers can offset quarterly tax payments with tax credits they intend to purchase, it is up to buyers and their legal and tax advisors to decide what documentation is needed to establish intent. 

Assume that the buyer and seller execute a tax credit transfer agreement in Q1, and the buyer uses this as a basis to start offsetting quarterly estimated tax payments. If the project is placed in service around or after the Q3 estimated tax payment date, the buyer will be able to offset taxes in Q1, Q2, and Q3 before having to pay the seller for the credits (see example below). This will free up $25M of additional cash each quarter for other corporate purposes, with the understanding that a lump sum will need to be paid to the tax credit seller at a later date.

Sellers typically prefer to receive payment as soon as the credits are generated, but it is possible to negotiate a delayed payment date. For example, if the payment date can be delayed to on or after the Q4 estimated payment date, the buyer will be able to take the full benefit of the tax credit before any cash outlay.

This strategy also applies if the buyer commits to the ITC in Q2 or Q3, and does not have to pay for the credit until later in the year.

Scenario 3 carries the risk that the project is not placed in service in 2024 tax year, which would require the buyer to source replacement credits. It is possible for the buyers to negotiate a make-whole provision, in the event that credits are not delivered as promised.

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Structure 4: Buy tax credits to top up at the end of the year, resulting in a lower Q4 or final tax payment

The final scenario is a variation of Scenario 3. A company purchases tax credits at the end of the year, once they have a more concrete understanding of their total annual tax liability, and delays payment until their Q4 or final tax payment date.

Assume the buyer has paid $150M in taxes through the first 3 quarters, and has $50M due in taxes in Q4. The buyer can fully offset their remaining taxes due by committing to purchase $50M in credits in Q4. In this example, the buyer receives an 8% discount, paying $46M for the credits and achieving tax savings of $4M. The buyer can achieve the full benefit of the credit prior to cash outlay by arranging to pay the seller of the tax credit on or after the Q4 estimated tax payment date.

The same logic applies for credits purchased in time for the final tax filing (e.g., on April 15 for the prior tax year, for a calendar year filer). If a buyer has $20M in remaining payments due at final tax filing, they could offset the entire tax payment through purchase of a tax credit. Assuming they could identify and purchase a tax credit with an 8% discount, they would pay $18.4M to a tax credit seller, achieving $1.6M in tax savings. It is worth noting that if the buyer procures more than they end up owing in their final tax payment, the overpayment can be applied to the first estimated tax payment of the following year.

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How Reunion works with corporate finance teams to purchase tax credits

Reunion partners with corporate tax and treasury teams to identify and purchase tax credits in a five-step process.

Download an Excel model with the four structures

To download the Excel model featured in this article, please visit our resources page.

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Customize these scenarios to your company

Tax credit buyers have a variety of objectives when choosing to purchase a tax credit. Some are focused on maximizing the amount they can save on taxes by looking for the largest discount, while others want to minimize complexity and risk. 

We have observed an increasing number of corporate tax and treasury professionals who are focused on transactions that preserve the timing of existing tax-related cashflows, or even improve corporate cash availability relative to the status quo.

Please reach out to the Reunion team if you’d like to examine the cash flow impact of tax credit purchases in further detail, and hear about specific project opportunities that can be structured to maximize economic benefits prior to cash payment.

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Transferable tax credits are a powerful tool for profitable companies looking to manage their federal tax liability. When buying transferable tax credits, however, companies must consider their tax year-end in conjunction with that of the seller in order to claim the credits correctly and to the greatest extent possible.

IRC §6418(d) dictates tax credit purchase timing between buyers and sellers

Internal Revenue Code §6418(d) explains the specific rule relating to the relationship between a buyer’s (transferee taxpayer) and seller’s (eligible taxpayer) tax year-ends.

"In the case of any credit (or portion thereof) with respect to which an election is made under subsection (a), such credit shall be taken into account in the first taxable year of the transferee taxpayer ending with, or after, the taxable year of the eligible taxpayer with respect to which the credit was determined."

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Corporate taxpayers will face one of three scenarios when engaging tax credit sellers

Scenario 1: Buyer and seller both have a calendar year-end

For transactions where both the buyer and seller have a 12/31 tax year-end date, the credits simply apply to the tax year in which they were generated.

Scenario 2: Buyer's tax year ends before that of the seller

For a transaction where the buyer tax year ends before that of the seller – for example, the buyer has a 9/30 tax year, and the seller has a 12/31 tax year – any credits generated in the same calendar year are pushed into the next tax year for the buyer.

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Scenario 3: Buyer's tax year ends after that of the seller

Lastly, for a transaction where the seller's tax year ends before that of the buyer, credits generated prior to the end of the seller tax year will apply to the current calendar year, but credits generated after the end of the seller tax year will push into the next calendar year.

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Most eligible corporate taxpayers are calendar-year filers

There are approximately 600 publicly traded companies in the U.S. with a trailing 12-month income tax liability over $100M (as of May 2024).

Of these companies, 78% are calendar-year filers, while another 8.0% close out their fiscal year in February or September.

If we increase the threshold to $500M of trailing 12-month income tax liability, the numbers remain consistent: 78.2% of companies are calendar-year filers.

Find credits that complement your company's tax year-end

To find clean energy tax credits that complement your company's tax year-end, please contact Reunion's transactions team. In addition to providing access to our tax credit marketplace, we can curate a list of projects that most closely align with your needs.

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The Inflation Reduction Act of 2022 (IRA) greatly expanded energy-related federal income tax credits and created Internal Revenue Code Section 6418, which allows eligible taxpayers to transfer, or sell, certain clean energy tax credits to unrelated parties for cash.

One key area of due diligence when purchasing a tax credit is to ensure that the project complies with prevailing wage and apprenticeship requirements (PWA), which the IRA introduced to encourage a robust market for well-paying clean energy jobs.

Clean energy projects that comply with PWA requirements receive a five-times multiplier on the value of tax credits. If a tax credit buyer purchases a credit that later is found not to comply with PWA requirements, the buyer will face a recapture of the increased tax credit amount.

Buyers of tax credits should understand PWA requirements and the documentation required to ensure compliance. Buyers should also mitigate the risk of recapture due to PWA noncompliance with careful due diligence, contractual protections (including provisions requiring the tax credit seller to compensate the buyer for PWA noncompliance), and tax credit insurance.

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How PWA applies to each credit type

All but one of the IRA’s eleven transferable tax credits are subject to PWA requirements; the exception is the Section 45X advanced manufacturing production credit (AMPC). The following table shows how long PWA compliance is required for each credit.

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Projects that comply with PWA requirements receive a tax credit five times greater than non-PWA-compliant projects. For example, a solar project with a $100 million cost basis qualifies for a base tax credit amount of $6 million (assuming a Section 48 ITC). If the project meets PWA compliance, the tax credit amount increases to $30 million.

If a tax credit buyer purchases a credit that later is determined not to comply with PWA requirements, then the Internal Revenue Service will recapture the PWA multiplier portion of the credits, which is equivalent to eighty percent of the tax credit value — for example, $24 million of a $30 million credit. For Section 48 ITCs, the recapture is applied to the unvested portion of the credit (the ITC vests twenty percent annually over a five-year period).

As a result, buyers of tax credits must perform proper diligence on projects to ensure that the project will not later be found to fail to comply with PWA requirements.

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Summary of PWA requirements

Prevailing wage requirements

Prevailing wage rules require that certain workers be paid a minimum prevailing wage specified by the US Department of Labor (DOL). The DOL publishes a list of prevailing wages on www.sam.gov according to geographic location, labor classification, and type of construction. It is also important to use the correct wage determination based on timing of work, which is primarily driven by when construction begins.

If no applicable published wage rate is available, the taxpayer or project developer must request a supplemental wage determination from the DOL.

Apprenticeship requirements

The apprenticeship rules require that a certain percentage of labor hours during construction, alteration, or repair for a project be performed by a qualified apprentice. The minimum percentage of hours that must be performed by qualified apprentices is:

• 12.5% for projects that began construction in 2023
• 15.0% for projects that begin construction in 2024 or later

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Two exceptions to PWA compliance

The IRA includes two general exceptions to PWA requirements — the “beginning of construction” exception and the “one megawatt” exception. Projects that meet one of these exceptions receive the five-times credit multiplier without necessarily paying prevailing wages and employing qualified apprentices. Specifically:

• Beginning of construction: Projects that began construction before January 29, 2023, are generally exempt from the wage and apprenticeship rules, except for credits under Sections 48C and 45Z
• One megawatt: Projects under Sections 45 and 48 (and their replacements under Sections 45Y and 48E) are exempt from PWA if the maximum net output is less than one megawatt or the capacity of electrical or equivalent thermal storage is less than one megawatt

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PWA information developers should collect and maintain

In its August 2023 guidance, the Treasury provided a list of required and recommended documentation for PWA compliance. All documentation should cover every person working on the project, including contractors and subcontractors. Subcontractors may be several companies removed from the actual sponsor of the project.

Required PWA information

According to the IRS guidance from August 2023, PWA documentation must include “payroll records for each laborer and mechanic (including each qualified apprentice) employed by the taxpayer, contractor, or subcontractor employed.”

Recommended PWA information

The IRS also recommends collecting additional documentation. Nine of the recommended items relate to wages — including the name, social security number, address, and email address for each laborer and mechanic — and five items relate to apprentices. Buyers should require this optional documentation, which can be found in Proposed Regulations Section 1.45-12(b) and (c).

Additionally, the PWA’s proposed labor requirements have significant overlap with the Davis- Bacon Act — a nearly century-old federal law. Some project developers document certified payroll, a practice required for federal projects subject to Davis-Bacon rules, although not required under the IRA. Each employee on the certified payroll must receive weekly payment for work performed and must have their legal name, address, correct job classification, rate of prevailing wage pay, daily hours worked, weekly hours worked, and amount paid clearly recorded on the required certified payroll report. Other project developers use the certified payroll form, WH-347, when compiling and maintaining payroll records.

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Opportunity to cure if a project fails to comply

If a clean energy project claims an increased PWA credit value and the IRS later determines the project did not meet PWA requirements, the tax credit is not automatically reduced to the base rate. A deficiency can be cured within 180 days after the IRS identifies a failure.

The seller of the tax credit has a strong incentive to cure any PWA issues, as it typically signs an indemnity to compensate the buyer in the event of a recapture of tax credits. The seller is also closer to the underlying compliance issue. That said, the buyer should require the seller to provide notification of any failure to meet PWA requirements; the buyer may want to step in and make penalty payments on behalf of the seller if there is substantial doubt as to whether the seller will make the cure.

Requirements for curing prevailing wage deficiencies

To cure prevailing wage defects, the taxpayer or project developer must:

• Pay the affected laborers or mechanics the difference between what they were paid and the amount they were required to have been paid (multiplied by three for intentional disregard), plus interest at the federal short-term rate (as defined in IRC Section 6621) plus six percent; and
• Pay a penalty to the IRS of $5,000 (or $10,000 for intentional disregard) for each laborer or mechanic who was not paid at the prevailing wage rate during the year

Requirements for curing apprenticeship deficiencies

To cure a failure to meet the apprenticeship requirements, project developers must pay a penalty of $50 multiplied by the total labor hours for which the apprenticeship requirements were not met. The amount of the penalty with respect to the apprenticeship requirements is also increased to $500 per labor hour if the IRS determines the failure was due to intentional disregard.

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Buyers have several tools to mitigate risk of PWA noncompliance

Buyers should proactively manage risk concerning PWA compliance. Buyers have three primary risk management tools at their disposal:

• Comprehensive due diligence
• Properly structured tax credit transfer agreement (TCTA)
• Tax credit insurance

Comprehensive due diligence

Proper and comprehensive due diligence is critical for tax credit purchasers.

Project developers currently document PWA in a variety of ways, from manual capture in spreadsheets to certifi ed payroll systems to the use of third-party consultants.

Buyers should understand the process by which PWA information is tracked so they can reconstruct payment records in the event of an IRS challenge. Each contractor and subcontractor should have a system in place to document payroll. In addition, proper records should be kept so workers who were underpaid can be located and compensated to cure any failure to meet PWA requirements.

In the case of the Section 48 ITC, the seller should also provide any information or compliance reports the IRS requires during the five-year recapture period.

Properly structured TCTA

Buyers bear the risk of any reduction in tax credit amount due to noncompliance with PWA. Buyers should ensure that the TCTA includes sufficient indemnity from the seller in the event of PWA noncompliance. The indemnity should make the buyer economically whole, including the cost of any penalties.

In addition, the TCTA should include several other clauses that protect tax credit buyers:

• Representations and warranties: The seller has complied with or is exempt from all recordkeeping requirements relating to the PWA requirements
• Indemnification: The seller’s indemnification obligations include any interest or penalties the IRS may impose because of PWA noncompliance
• Conditions precedent to closing: The seller must furnish evidence the project has complied with PWA requirements
• Post-closing obligations: The seller will comply with all laws and regulations required to qualify for and receive the PWA multiplier, including making the necessary filings, registrations, and elections with the IRS

Purchase tax credit insurance

Finally, tax credit insurance is available to mitigate the risk of noncompliance with PWA requirements. Tax credit insurance is recommended if the buyer has doubts about the ability of the seller to fulfill its indemnity obligation in the event of an IRS challenge. Tax credit insurance can be sized to make the buyer whole in the event the IRA imposes a penalty.

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Conclusion

For corporate taxpayers, transferable tax credits represent a new opportunity to reduce federal tax liabilities and achieve a strong risk-adjusted return while providing much-needed capital to clean energy projects. However, buyers are responsible for financial penalties imposed by the IRS due to noncompliance with PWA requirements.

Tax credit buyers should proactively mitigate the risk of penalties with careful due diligence, contractual protections, and tax credit insurance, ensuring that they preserve the full financial benefi t of their tax credit purchase.

For a deeper dive into how savvy buyers are approaching these transactions in today’s market, see our insights in “Transferable Tax Credits in 2025: The Buyer Perspective.”

The market for clean energy tax credit transfers has accelerated rapidly in 2024, as corporate tax and treasury leaders see a significant new opportunity to reduce tax liabilities and increase corporate cash availability.

A complete transferable clean energy tax credit transaction, from identifying the opportunity to closing the deal, can be summarized in seven key steps.

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Duration

Varies by company.

Goals and activities

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How Reunion helps

Through an introductory call, Reunion's transactions team can equip your company with insights on eligibility, appropriateness, market dynamics, and risk. We can also help your team prepare a business case/investment committee memo and provide supporting materials. For larger organizations, Reunion has organized tax credit "workshops," which we have found are particularly effective for aligning multiple functional teams.

Key resources

• Transferable tax credit handbook
• How early investors are approaching clean energy tax credits
• Sample business case or investment committee memo (by request)

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Duration

One to three weeks.

Goals and activities

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How Reunion helps

Reunion takes a "push" and "pull" approach when helping companies find projects that most align with their needs. On the "push" front, we curate a list of tax credit opportunities based on the criteria we identified in step one and share it with your team. For many companies, we do this on a rolling basis as new projects join our platform. On the "pull" front, we provide your team with access to our managed tax credit marketplace, where we have over $7B (and growing) in near-term tax credits available.

Once your team has the right project(s) in mind, Reunion will populate our form term sheet on your company's behalf. We'll levarage our market intelligence to ensure your proposal is competitive and assist you in negotiating key terms, like timing of payment, indemnification, and tax credit insurance.

Key resources

• Tax credit marketplace
• Transferable tax credit transactions tracker
• Unlocking the economic benefits of tax credits before payment
• Sample term sheet (by request)

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Duration

One to two weeks.

Goals and activities

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How Reunion helps

Reunion conducts a preliminary screen to identify any major issues up front ("fatal flaw" due diligence analysis). From that point, we consult with your team to assess risks and recommend appropriate mitigation strategies. Importantly, this step ensures alignment of incentives: we do not want to move a transaction forward unless there is a high probability of success.

We also provide validated market intelligence to compare your proposed transaction to the risk/reward profile of similar tax credit opportunities in the market.

Key resources

• Buying and selling clean energy tax credits
• What should corporations expect to pay for clean energy tax credits?
• Due diligence checklist (by request)

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Duration

Two to six weeks. The precise duration depends largely on the number and relatively complexity of projects in the transaction.

Goals and activities

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How Reunion helps

Reunion spearheads the due diligence process by:

• Reviewing documents provided by the Seller, and requesting any missing or incomplete information
• Creating and organizing a data room, ensuring that due diligence documentation meets Reunion's checklist of required documentation
• Reunion will produce a summary due diligence memorandum summarizing our findings and highlighting any areas of concern
• If you are working with additional diligence advisors, Reunion will work closely with advisors to organize and accelerate their review process, reducing costs

Key resources

• Due diligence checklist (by request)

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Duration

This step is optional and runs in parallel to step 4.

Goals and activities

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How Reunion helps

Reunion can help companies decide if insurance is an appropriate risk mitigation tool for their transaction. If we collectively determine that tax credit insurance makes sense, we can advise on insurance offerings, including the scope of coverage – e.g., structure, qualification, recapture, PWA, bonus credit adders – and where gaps might exist.

We can also help you validate that the insurance policy is appropriately sized and includes penalties and tax gross-up and contest costs.

Key resources

• Tax credit insurance helps power up credit transfers

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Duration

This step runs in parallel to step 4.

Goals and activities

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How Reunion helps

Reunion streamlines the negotiation process for buyers and sellers by providing a template legal document and helping parties focus on the most pertinent deal topics.

Key resources

• Common terms and negotiation strategies for tax credit transfer agreements

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Duration

Ongoing duration depending on credit type.

Goals and activities

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How Reunion helps

Our transactions team will issue both parties reminders about filing requirements and deadlines, including tax forms and compliance. In subsequent tax years/quarters, Reunion will provide early acccess to new deals.

Key resources

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Reunion’s team of clean energy and tax credit experts are here to support you through the entire process of buying and conducting due diligence on  IRA tax credits. We draw on our deep expertise to help you navigate tax credit transactions, and our marketplace features the widest pool of tax credit opportunities available in the industry.

Our key differentiators include:

• Widest pool of high quality tax credits: We curate opportunities from our $10B+ marketplace, featuring technologies and projects ranging from under $3M to $300m+
• Extensive educational materials: We offer an extensive resource library featuring content on financial, legal, and market-related topics pertaining to IRA tax credits
• Hands-on due diligence: We support buyers throughout the transaction process, ensuring that the due diligence is performed at high quality and that risks are minimized upfront, saving you time and expense
• Industry-leading transaction team: Reunion has facilitated more than $2 billion in tax credit transfers in 2024. Our transaction team consists of industry veterans, with experience raising $5+ billion in clean energy project financing `with partners such as US Bank, JP Morgan, Wells Fargo, Bank of America, Key Bank, PNC, Nord/LB, D.E. Shaw, First Reserve, and over a dozen Fortune 500 companies
• Market intelligence tools: Available upon request, we offer proprietary insights on tax credit pricing and data on key trends

Recording

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Overview

For corporate taxpayers who are considering purchasing tax credits in 2024, please join Reunion's transactions team – with 50+ years of combined experience in tax credits – for a 60-minute workshop to walk through a sample tax credit transfer.

The webinar will equip tax and treasury teams with the information and resources they need to efficiently pursue a tax credit transaction.

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Topics

The interactive workshop will include three 15-minute modules and five minutes of Q&A per module.

Speakers

Reunion's CEO, Andy Moon, and President, Billy Lee, will co-host the webinar. Over the course of their careers in clean energy financing, Andy and Billy have executed over $2B in transactions across a range of technologies.

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On April 25, the Treasury and IRS published final regulations for the Inflation Reduction Act’s tax credit transfer mechanism. The IRS also published a press release and updated their transferability FAQs.

The final regulations carried few surprises – other than, perhaps, arriving earlier than some market participants predicted – and preserved the status quo set by the June 2023 guidance.

At Reunion, we welcomed this "non-event" and the clarity it provided, and wanted to highlight several key consistencies.

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Highlights from the final regulations

Individuals, trusts, estates, and closely held C corporations remain largely on the sidelines

Despite “many comments” calling for a change, widely held C corporations will remain the primary buyers of transferable tax credits. While this decision will likely decrease overall liquidity in the tax credit market, it will also limit the potential for fraud and abuse.

Passive activity rules generally limit individuals, trusts, estates, and closely held C corporations to applying transferable tax credits to passive income – not active income. The final regulations did not adjust this stance. (However, a potential exception exists for certain closely held C corporations, which allows them to offset active income with tax credits.)

Deprecation cannot be transferred

The IRS did not change its stance on depreciation. As the FAQ states, “Only a taxpayer that has an ownership interest in the project may claim tax depreciation. Transferability does not allow depreciation benefits to be transferred.”

Bonus credits cannot be sold separately

The IRA created three bonus, or adder, credits, which can increase the value of a clean energy project’s tax credits:

• Energy communities
• Low-income communities
• Domestic content

The Treasury’s June guidance stated that bonus credits cannot be sold separately from a project’s other credits. A developer cannot, in other words, sell its base credits to one company and its bonus credits – perhaps at a different price per credit – to another company.

Instead, all credits must be sold as “vertical slices” and be pari passu to one another. In practice, if a single project has multiple buyers for its credits, all buyers have the same risk exposure.

April’s regulations did not change the Treasury’s position. 

The "intends to purchase" provision remains unchanged

Tax credit buyers can still "take into account a specified credit portion that it has purchased, or intends to purchase, to calculate its estimated tax payments." Of course, buyers remain liable for any underpayments.

The regulations clarified that the "intends to purchase" language "illustrates that all the requirements of proposed §1.6418-2(b) do not have to be met for a transferee taxpayer to take the expected eligible credit into account in its estimated tax calculations."

Generators of §45X, §45V, and §45Q credits can make facility-specific elections for transferability or direct pay

An advanced manufacturer’s decision to use transferability or direct pay to monetize their §45X tax credits need not be binary. If a manufacturer has multiple facilities, they can make the transferability-or-direct-pay decision at the facility level. If a manufacturer only has one facility, however, their decision is binary.

The same optionality holds true for the §45V PTC for clean hydrogen and §45Q PTC carbon capture, although the timing of the election varies by credit:

• §45V PTC: The direct pay/transfer election is made during the taxable year the qualified clean hydrogen production facility is placed in service
• §45Q PTC: The direct pay/transfer election is made during the taxable year the “single process train” is placed in service 
• §45X AMPC: The direct pay/transfer election is made during the taxable year in which eligible components are produced

Importantly, because the §45X election is made during the taxable year in which an eligible component is produced, production facilities that predated the IRS may be eligible for the credit.

Advanced cash payments for multi-year PTCs are not permitted – but borrowing against expected future tax credit payments is permitted

Although “upfront payments for PTCs determined in future taxable years are standard in tax equity transactions,” the final regulations stated that transferred PTCs must be paid for in cash one year at a time. This holds true for ten- and 12-year PTCs. 

Permitting advanced payments would “raise several complex legal and administrative issues, such as whether an excessive credit transfer has occurred or if the eligible taxpayer has gross income if prepaid eligible credits were not transferred in a later tax year."

On an encouraging note, the final regulations specifically state that “there is no prohibition on either a transferee taxpayer” – that is, a tax credit buyer – “or another third-party loaning funds to an eligible taxpayer, including loans secured by an eligible credit purchase and sale agreement.” 

Intermediaries can serve as brokers but not dealers

The final regulations, unsurprisingly, left unaltered the assumed role of tax credit intermediaries (like Reunion) in the transferability market. Intermediaries can serve as brokers and facilitators in tax credit transfers, helping to match and advise buyers and sellers. 

Intermediaries cannot, however, serve as dealers, effectively taking ownership of a tax credit with the intent of transferring/selling it again. 

“Required minimum documentation” remains the same

The final regulations acknowledge calls for an increase to the amount of required minimum documentation that an eligible taxpayer must provide to a transferee taxpayer to make a valid transfer. 

Nonetheless, the Treasury and IRS left the required minimum unchanged. Perhaps as a nod to the validity of increasing the required minimum, the final regulations remind market participants that, “...while the required minimum documentation requirements are the same for all taxpayers, any particular agreement between an eligible taxpayer and transferee taxpayer may go beyond the required minimum documentation based on the arrangement of the parties. The proposed regulations allowed sufficient flexibility for market participants to determine if more information is necessary in a particular transaction, while balancing the burden of producing the required minimum documentation required to make a transfer election.”

The final regulations also remind market participants that "§6418(g)(2)(B) specifically places a due diligence responsibility on the transferee taxpayer."

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Improvements likely coming to the pre-registration portal

The IRS opened the tax credit pre-registration portal in December to significant fanfare. But, as with any brand-new IT system, there have been calls for improvement.

While the IRS would not commit to set application review times, it left the door open to "continue to review the efficiency of the registration portal, including functionality responses from the public, to determine whether changes should be implemented or whether additional guidance or publications should be issued."

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Plenty more guidance to come in the next 20-ish business days

In Norton Rose Fulbright’s annual Cost of Capital call, the panelists aptly brought attention to the Congressional Review Act, which “is a tool Congress can use to overturn certain federal agency actions.”

With respect to the Inflation Reduction Act, an incoming Congress (backed by a Trump administration) could use the CRA to unwind IRA regulations that were issued within 60 legislative days of the previous Congress.  

Although the exact date for the beginning of the 60-day window remains to be seen, it’s potentially in late May or early June. This gives the Treasury and IRS a little over 20 business days to issue a backlog of IRA-related guidance and regulations. 

The IRS 2023-2024 Priority Guidance Plan details what guidance the IRS is prioritizing through the end of the plan year, which is June 30, 2024.

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Discuss the regulations with Reunion

Please contact Reunion's transactions team to understand how these final regulations could impact your organization's plans to purchase clean energy tax credits.

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The IRA created a new clean energy tax credit, the §45X AMPC

The Inflation Reduction Act of 2022 introduced a new class of production tax credit — the §45X advanced manufacturing production credit (AMPC). The credit is for eligible components produced and sold after December 31, 2022 and is transferable under §6418.

The §45X tax credit is generated via the production and sale of:

• Sustainable energy components: Five categories of eligible sustainable energy components including solar modules, battery cells, or wind blades, nacelles, or towers
• Critical minerals: 50 applicable critical minerals that attain a specified purity level

A list of eligible components, critical minerals, and related tax credit amounts is included below.

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§45X transfers have taken off since the IRS issued guidance in December 2023

In December 2023, the Department of the Treasury released proposed regulations on §45X tax credits, which opened the door for transactions to begin.

Notably, Fiserv (NYSE: FI) agreed to purchase $700M in §45X tax credits from First Solar (NASDAQ: FSLR) at a price of $0.96 per dollar of credit, resulting in $28M of tax savings for the 2023 tax year. The public announcement of a large-scale transaction has led to significant interest from corporate buyers in §45X tax credits.

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Key characteristics of §45X AMPCs

Generated over time

§45X AMCPs are generated on a rolling basis from the (i) production and sale of eligible components or the (ii) conversion of critical minerals to a specific purity level. As we'll discuss below, this opens the door for buyers to negotiate quarterly or monthly payment terms.

No recapture risk or prevailing wage and apprenticeship requirement

There is no recapture or prevailing wage and apprenticeship (PWA) provision, reducing risk associated with §45X tax credits.

Eligible for direct pay or transfer

As with §45Q and §45V credits, generators of §45X credits may elect to be treated as an “applicable entity” for the limited purpose of making an elective payment election, also known as direct pay.

Careful consideration should take place before electing in or out of direct pay for §45X credits. The election is rigid in that there are no partial elections:

• The election applies to all eligible credits from the applicable facility, and
• The election applies to the entire taxable year for which the election was made and all subsequent taxable years ending before January 1, 2033

Additionally, an electing taxpayer may file an irrevocable election to revoke the elective payment, but the revocation applies to the entire taxable year in which the election to revoke takes place and all subsequent taxable years remaining before January 1, 2033.

In short, AMPC generators may elect to take five years of direct pay with the IRS or transfer the credits to another taxpayer, and the ability to do both is significantly limited.

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Commercial guidelines for buyers of transferred §45X tax credits

Sellers

Sellers of §45X tax credits range from large, multinational companies to smaller, domestic producers. Tax credit buyers may require sellers to procure tax credit insurance if there is uncertainty around their longevity and/or ability to cover indemnities relating to the sale of credits.

"Unaffiliated third party" buyers

In order to generate AMPCs from the production and sale of eligible components, buyers of manufactured components must be unaffiliated third parties unless a related party election has been made under §45X(a)(3)(B).

All sales must be for “productive purposes” and not solely to claim the §45X tax credit.

Pricing

In Q1 2024, median pricing to buyers ranged from $0.91 to $0.95 for single-year 45X credits. The relatively high pricing reflects the lower risk profile of AMPCs compared to investment tax credits (ITCs).

Drivers of larger price discounts include smaller transaction sizes, less established sellers, and forward contracts for credits that have not yet been generated.

Payment terms

AMPCs are sold in arrears of generation. Unless the AMPCs are sold in a single closing, most sellers will accept quarterly or monthly payment terms, allowing buyers to recognize the value of the credit before issuing payment to sellers.

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Due diligence checklist for §45X tax credits

While §45X credits are not subject to PWA requirements and do not carry the same recapture or basis-related qualification risks as §48 ITCs, they do carry additional qualification risks that are absent from other, power generation-related tax credits such as the §45 production tax credit (PTC).

Buyers and their advisors should conduct due diligence on several core aspects of §45X tax credit qualification to avoid a situation where credits are improperly accounted for and subsequently disqualified — a risk that flows through to the buyer in a transferability transaction. To guide this process and mitigate potential risks, refer to the 45X Due Diligence Checklist.

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Eligible components and related §45X tax credit amounts

The table below shows the eligible components that qualify for §45X credits as well as the amount of tax credit.

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Subject to a four-year phase-out (except for critical minerals)

With the exception of critical minerals, the amount of credit begins phasing out for sales occurring after December 31, 2029. As a result, the amount of tax credit is 75% for components sold during calendar year 2030, 50% for components sold during calendar year 2031, 25% for components sold during calendar year 2032, and 0% thereafter.

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Learn more

Reunion is actively transferring §45X tax credits from a variety of clean energy manufacturers. To learn more about sourcing, diligencing, and purchasing §45X AMPCs, please contact Reunion's experienced transactions team.

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Reunion is excited to host quarterly “office hours” for clean energy developers who would like to learn more about our marketplace and get a pulse on the overall transferability market.

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Hosted on a quarterly basis

We will generally hold office hours on a quarterly basis and open registration one or two months in advance.

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Designed for clean energy developers and manufacturers

Our office hours are designed for clean energy developers and manufacturers who have transferred, or are planning to transfer, IRA tax credits over the next 12 months. Developers need not have projects in Reunion's marketplace to participate.

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Co-hosted by Reunion's founders

Reunion's founders, Billy Lee and Andy Moon, will co-host the hour-long sessions.

Billy and Andy pioneered solar financing structures with tax equity and private equity investors, leading some of the first solar transactions with institutions such as US Bank, JP Morgan, Wells Fargo, Bank of America, Key Bank, PNC, Nord/LB, D.E. Shaw, and First Reserve.

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Questions welcome!

We want our office hours to be interactive, so please bring any questions you have, whether related to current market conditions, pricing, or commercial terms.

You're welcome to ask questions beforehand.