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Elective Pay for Energy Tax Credits

In a move aimed at reshaping the landscape of energy tax credits, the Department of the Treasury and the IRS have unveiled their latest regulatory masterpiece: final regulations (TD 9988) governing the elective pay option for specific energy tax credits under IRC Section 6417. This eagerly anticipated development, born out of the Inflation Reduction Act (IRA), introduces a novel approach, treating select credits as veritable payments against federal income tax liabilities.

The unveiling of these finalized regulations marks a pivotal moment, setting the stage for a new era in energy tax policy. Building upon the foundation laid by the proposed regulations (REG-101607-23), the final iteration incorporates key modifications designed to offer much-needed clarity on the eligibility criteria for entities seeking to exercise the elective pay option. Furthermore, in a bid to ensure alignment with the regulatory framework, the IRS has updated its frequently asked questions, providing stakeholders with invaluable insights into the nuances of the finalized regulations.

However, the unveiling of TD 9988 is not merely a conclusion but rather a prelude to further exploration. To this end, Notice 2024-27 has been issued, inviting stakeholders to contribute additional insights into the intricacies of elective payment elections, particularly in scenarios involving the chaining of clean energy credits through transfer processes.


Delving into the heart of the matter, it's imperative to understand the underlying rationale behind the IRA's introduction of the elective pay option. Effective for tax years commencing after December 31, 2022, this legislative innovation affords certain entities the opportunity to harness the value of applicable tax credits, transforming them into potent tools for mitigating federal income tax liabilities and, crucially, unlocking the potential for refunds on any surplus payments.

Eligible Credits and Entities

The universe of eligible credits and entities under the IRA's purview is as diverse as it is expansive. From the Credit for Alternative Fuel Vehicle Refueling/Recharging Property (Section 30C) to the Clean Electricity Investment Credit (Section 48E), the gamut of incentivized initiatives beckons entities across various sectors to explore the possibilities afforded by the elective pay option. Likewise, the cadre of eligible entities, encompassing tax-exempt organizations, governmental bodies, Native American tribes, and cooperative enterprises, underscores the inclusive nature of this transformative policy framework.


Yet, amid the jubilation surrounding the finalized regulations, a shadow looms over the realm of partnerships. While clarity has been bestowed upon the eligibility of entities, partnerships find themselves relegated to the sidelines, save for a select few exceptions.

This omission carries profound implications for the renewable energy sector, where partnerships serve as the lifeblood of innovation and collaboration.

Tax-Exempt Grants & Loans

Although calls for the inclusion of mixed partnerships reverberated during the comment period, the decision to uphold the original proposal reflects the delicate balancing act undertaken by the Treasury and the IRS.

Venturing further into the labyrinth of tax policy intricacies, one encounters the labyrinthine maze of tax-exempt grants and loans.

Here, the finalized regulations introduce special rules aimed at curbing the potential for excess benefits derived from the utilization of tax-exempt funds for acquiring investment-related credit property.

Making the Election

The journey towards making an elective pay election is not for the faint of heart. It demands a meticulous pre-filing registration process, wherein credits must be registered with the IRS to obtain a valid registration number. Applicable entities, cognizant of the need for strategic maneuvering, are afforded the flexibility to adopt a tax year-end distinct from their fiscal year-end, unlocking newfound avenues for maximizing tax credit benefits.

Processing of Payments

In the realm of payment processing, the finalized regulations eschew the confines of rigid timelines, opting instead for a fluid approach designed to mitigate the risk of delayed payments. While some stakeholders had advocated for an accelerated payment mechanism, Treasury and the IRS have elected to adhere to a lump-sum payment model, underscoring the importance of prudent fiscal management.

How ZSS CPA's Can Help

As the dust settles on the regulatory landscape, one question looms large: how can stakeholders navigate this labyrinthine terrain with confidence and clarity? Armed with unparalleled expertise and a steadfast commitment to client success, ZSS CPA's Business Incentives and Tax Credits professionals stand ready to guide eligible entities through the intricacies of the newly minted regulations. From deciphering eligibility criteria to navigating the labyrinth of pre-filing registration, we offer a beacon of assurance in an otherwise uncertain landscape.

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