In this episode of Tax Notes Talk, Jenny Speck with Vinson & Elkins discusses the clean energy tax credits in the House’s One Big Beautiful Bill Act, including last-minute changes to the House Rules Committee’s version.
David D. Stewart: Welcome to the podcast. I’m David Stewart, editor in chief of Tax Notes Today International. This week: canceling the renewables?
Early on May 22, the House passed the One Big Beautiful Bill Act, its version of the budget reconciliation bill. Included in the bill are planned phaseouts and repeals of many of the clean energy credits from the Inflation Reduction Act.
As the bill heads to the Senate for review, we’re taking a closer look at the House’s clean energy rollbacks and how those changes could affect the industry. And keep an eye on your feed for next week’s episode where we’ll cover the bill in full with our Capitol Hill reporters.
For now, here to talk more about the changes to clean energy credits is Tax Notes contributing editor, Marie Sapirie. Marie, welcome back to the podcast.
Marie Sapirie: Thanks for having me.
David D. Stewart: Now, I understand you recently talked to somebody about this. Could you tell us who you talked to?
Marie Sapirie: Sure. I spoke with Jenny Speck, who is a partner at Vinson & Elkins in Houston. Jenny has extensive experience with energy tax credits and has worked on a wide range of projects, including wind, solar, combined heat and power, biogas, carbon capture, hydrogen, and clean fuel credits.
David D. Stewart: And what did you talk about?
Marie Sapirie: We discussed the clean energy changes in the budget bill currently called the One Big Beautiful Bill Act. The proposal makes significant changes to the IRA’s clean energy tax credit regime, which Jenny explains in detail in our conversation.
As a note for our listeners, most of this podcast was recorded on May 21 and largely reflects the current text of the budget bill. But there is a short update from May 22 at the end that reflects several significant revisions made just before the House passed the bill early in the morning of May 22.
We’ve left in the discussion from May 21 about the phasedown of the technology-neutral investment tax credit and production tax credit that was included in the initial proposal from the Ways and Means Committee because the changes to those credits will likely be the subject of intense negotiations as the bill proceeds to the Senate. So we might see them again.
David D. Stewart: All right, let’s go to that interview.
Marie Sapirie: Thank you, Jenny, for joining me today to discuss the energy tax aspects of the budget bill that is currently working its way through Congress.
Jenny Speck: Thanks for having me, Marie. I’m very excited to be here with you guys.
Marie Sapirie: The proposed budget bill was widely expected to include some changes to the energy tax credits that were introduced or expanded in the Inflation Reduction Act of 2022. Would you give us an overview of the IRA’s tax credit changes to provide some context for the proposed changes?
Jenny Speck: I’d be happy to. So the Inflation Reduction Act was passed on August 16, 2022, and it greatly enhanced many existing tax credits and added new ones that largely were very welcomed by the various industries. I’d say this was the first time that we’d seen tax credits — specifically investment tax credits, production tax credits — that exceeded the traditional baseline percentage of traditionally 30 percent, for example, in terms of investment tax credits and the amount of credits available overall.
Because it introduced a lot of new concepts that we had not had before in terms of requiring prevailing wage and apprenticeship requirements, domestic content bonuses, energy community bonuses, low-income community bonuses, it greatly broadened the way that you can monetize tax credits as well in terms of introducing a direct-pay election and transferability as well as where you can sell tax credits. So overall the Inflation Reduction Act was a huge boom for the clean energy, clean fuel industries.
Other types of incentives that were added would include clean hydrogen production, advanced manufacturing production credits. There was a new clean fuel production credit as well that was intended to replace the existing blenders and alternative fuel credits. Largely, I would say these credits are looking at — nearly unanimously across the board — some changes under the One Big Beautiful Bill, and we can get into that next.
Marie Sapirie: Right. So in the proposal, some of the credits that were either expanded or introduced in the IRA and one of the major features, the transferability, are slated for repeal, and there are modifications to many other of the credits.
One of the significant modifications is the expansion of the foreign entity of concern rules, which are now the new prohibited foreign entity rules. What are those rules and how does the proposed bill change them?
Jenny Speck: That’s a great question. So taking a step back, the foreign entity of concern, it’s not a new concept. It technically is incorporated in various DOE loans, grant programs. It was actually in a couple of other tax credits, the section 30D, the CHIPS bill, the manufacturing investment credit. It’s not a new concept, but they certainly enhanced it and expanded it beyond what it traditionally was used for in terms of basically disincentivizing foreign entities of concern to be invested in certain taxpayers here in the U.S. or doing certain investments here.
And so the concern we have here is, not only does it translate with prohibited owners, but it goes significantly beyond in terms of you can’t even receive material assistance from one of these entities. And that’s pretty challenging — at this early of a stage in analyzing the One Big Beautiful Bill — it’s pretty challenging to start strategizing for how does our supply chain react to getting ahead of these potential changes that will be implemented soon.
So maybe we just talk about it in context with one of the credits because this actually was threaded through nearly all of the tax credits. But I would say there’s three that I say rise to a higher level of having foreign entity of concern stringent rules put on them as compared to others. And those would be the clean electricity production credit, the clean electricity investment credit, and the advanced manufacturing production credit. Those three have the material assistance limitations as compared to all of the other tax credits that would have this new foreign entity of concern ownership. The specified foreign entities, foreign- influenced entities — prohibiting those certain taxpayers from effectively benefiting from these tax credits.
So those three, largely what we’re looking at is a couple of things. Like I said, it’s ownership-related. We’re looking at any foreign entities of concern, so think certain terrorist organizations, things of that nature, but also goes beyond looking at these foreign entities that are influencing the taxpayer that’s eligible for the credit. It’s looking at whether or not there’s payments made and whether those payments are in relationship to maybe royalties, dividends, other types of compensation that generally could be paid in terms of whether it be ownership or maybe related to certain IP, things of that nature.
So it really is pretty broad in terms of who can participate now in an ownership perspective, but also I’d say the material assistance issue is really what I think a lot of us tax practitioners are analyzing thoroughly and trying to kind of strategize and prepare ourselves for how that might infiltrate and impact different industries that don’t have the supply chain domestically to support pulling back from procuring components from other countries that might currently be excluded or considered as a foreign entity of concern.
Marie Sapirie: And what might be the potential impact of those changes and especially the material assistance?
Jenny Speck: The material assistance, I think the issue is, you have to look at — it’s any component, subcomponent, applicable critical mineral. It really is pretty granular on how they are analyzing what is material assistance. It even gets into the design of the property, whether it’s based on any copyright or patents held by a prohibited foreign entity know-how trade secret. There’s some exceptions or exclusions to that rule in terms of whether or not the component was not uniquely designed or not exclusively or predominantly produced by the prohibited foreign entity that would exempt taxpayers from being subjected to this material assistance prohibition.
But again, these are new rules and concepts that we’ve not seen before because they are broader and more inclusive of trying to make sure any ties to these foreign entities of concerns are blocked from benefiting from any tax credits. So the impact on the industry, it’s hard to measure what the impact is, but I would say right now there’s definitely a lot of concern of where do we source these components since we’re not quite clear how these exceptions would apply to the general rule.
So it’s a lot of just strategizing because even two years out — we have taxpayers who plan further than that, right? So they’re trying to adjust and think through what do they have that’s more than two years out that they need to adjust and potentially source from other countries, or if there’s a supply chain here in the United States that’s developing, maybe we can help accelerate that as well.
Marie Sapirie: The bill also proposes to end the ability for clean energy project developers to transfer their credits to other taxpayers, which as you mentioned, is a way for developers to monetize their credits and finance their projects. To put this proposal in context, would you tell us about how transferability has developed since it was introduced in 2022?
Jenny Speck: Transferability has been amazing to watch progress and evolve since it was first enacted and allowed under the Inflation Reduction Act. So I think to understand how it’s evolved, maybe we take a step back to understand: What were our options before transferability?
And prior to transferability, generally these tax credits, they’re known as general business tax credits. They can be used to reduce your regular tax liability. And if the taxpayer who generated the tax credit does not have a tax appetite, then their options were either to carry it back one year or carry it forward 20 years. And imagine the time value of money, if you’re carrying credits that are worth multimillions of dollars on a carryforward schedule, it doesn’t really add a lot of value today. The Inflation Reduction Act modified those carryback and carryforward rules to three years back and 22 years forward.
But again, time value of money, a lot of developers, they need the money now to continue to operate the project and begin their next project in the pipeline. And so traditionally we had what we call tax equity investors coming into these different developers through a partnership in exchange for cash. Largely, you’re looking at participating in these projects and a large benefit of that is finding someone who has the appetite to benefit from the different tax credits and deductions available as the project is operational for a certain period of time.
These investors — I mean, this market has been developing and growing and it was really stable before the Inflation Reduction Act. And I would say it’s continued to grow. I don’t want people to think that the tax equity market took a dip even though transferability became available. We actually saw it continue to grow and these two options work in tandem frequently, where we saw tax equity investors who are also interested in partially selling all or a portion of their available credits that were coming out of the projects as well.
So transferability, when it came into play under the Inflation Reduction Act, it allowed the developers or the taxpayers who generated the tax credit in certain circumstances to sell those tax credits to an unrelated third party. The market, I believe they were estimating last year was at $40 billion, to give an example of how many tax credits are being exchanged right now or sold. Probably a better way to look at that.
And this year, I know it’s only May. I mean it’s hard to even count on two hands and two feet the amount of deals that I’ve personally done and that doesn’t even include the rest of the renewables group at Vinson & Elkins. We have had so many ongoing tax credit transfer transactions and it really is opening up options, especially if the developers, maybe they’re not looking for an outside participant in their project. Maybe they’re solely wanting to just sell their tax credits and continue developing additional projects versus having a partner.
So it gives flexibility to developers, it gives flexibility in general. And honestly, we’re seeing a lot of new, I think, stakeholders that otherwise were not familiar with the clean energy industry entering into this industry because it’s appealing to buy tax credits at a slight discount that you can again use for a dollar-for-dollar reduction on your tax liability. And I’ve seen new stakeholders who are interested in potentially becoming tax equity investors now, or maybe doing their own clean energy projects because they’re learning more about this industry and seeing the benefits of these activities to increase the electricity available through solar and all the different technologies that we have available.
And really honestly, the transferability market, I can’t say it’s taking a huge hit with the One Big Bill moving forward, but it’s certainly causing people to pause and say, “They’re looking at changing transferability. What does that mean for our projects that are under development that we’re seeing taxpayers start negotiating 2026 and even trying to think of [20]27 projects?” And you’re seeing those taxpayers pause and say, “How will this impact our deal?” And that’s one thing that I want to point out is currently yes, it would repeal transferability, but there is largely beginning-of-construction timelines here.
So let’s talk about the beginning of construction from a transferability repeal standpoint. So largely a lot of these tax credits, like the existing 45Q, carbon capture credit, 45U, 45X, I mean you name it. It’s the alphabet soup. All of these generally are available for transferability, all of them except the zero emission nuclear power production credit, clean fuel production credit; those currently have a hard stop for transferability for fuel or electricity produced after 12/31/2027. So fuels produced and sold after that period. Same with transferability on the 45U nuclear power production credit. That would be a hard stop regardless when you begin construction.
But a few of the others, like the carbon capture credit, the tech neutral production tax credits, and investment tax credits, those all have beginning-of-construction phaseouts. So as long as facilities begin construction before the date that is two years following the date of enactment, then you could grandfather yourself in to still be able to transfer the tax credits from that project, which is really nice because beginning-of-construction rules have been around for decades. We have a lot of guidance on what that means. It’s a tax technical term. And we’ve helped clients strategize on how to basically begin construction for many decades now in terms of thinking how this term has been used and intertwined in various tax bills before.
And so it’s not a concept that is going to be new to developers, but I think it definitely, when taking into consideration the foreign entity of concern restrictions, it’s going to help push certain taxpayers into rethinking their strategy. Perhaps before, they might’ve considered, I’ll do offsite physical work of a significant nature or maybe the 5 percent safe harbor. And these are all, again, ways to start construction by entering into a long lead item, procuring a manufactured component, but they’re going to have to really consider where is that manufactured component being manufactured, where is it being sourced from? And so I do think it’s going to cause developers to reconsider their strategy and make sure that their beginning construction would align with these foreign entity rules as well.
Marie Sapirie: And you mentioned this a bit before, but could you expand on what might be the effects of the elimination of the transferability?
Jenny Speck: The effect is, I think we’ll have to see a market go back to solely using tax equity investors or some other combination thereof because there’s still a few, and maybe that’s worth saying right now: There’s still a few tax credits for tax-paying entities that can claim direct pay for a period of time. Direct pay was not touched. Tax-exempt entities can still do direct pay on these credits, but if you remember, those credits are the 45Q carbon capture credit. There’s a five-year period you can claim direct pay. It’s also for the 45X and the 45V credits, that clean hydrogen production credit. So direct pay is still an option.
Tax equity investors are obviously, it’s still always going to be an option as well with and without transferability, but I think it’s going to really push the bottom economics down for these projects who aren’t going to be able to monetize their tax credits unless they come up with a new creative way of entering into, like I said, a tax equity investment structure or, if they’re not one of the lucky, direct-pay-eligible credits.
Marie Sapirie: Could you talk about some of the other changes in the bill? There is a change to the treatment of geothermal heat pumps, for example.
Jenny Speck: That’s a good question. So I think everyone largely noticed that there was only one technology under the section 48 tax credit that was called out to basically accelerate that beginning-of-construction deadline, and that was geothermal heating. Basically, they’re accelerating the deadline by three years to 2032 and they’re phasing it down, so it phased down technically.
If your construction began before January 1, 2030, and it was placed in service after December 31, 2021, which — that goes back to the original Inflation Reduction Act of how these properties need to be placed in service after a certain date, don’t think that that was a typo in the bill — that would be eligible for the full 30 percent and all the other adders if you qualified for the domestic bonus or the energy community and so forth. But after construction begins, calendar year 2030 is when you start seeing it phase down. So if you satisfy the prevailing wage and apprenticeship rules, it would phase down to 26 percent and thereafter the following year it’d phase down to a 22 percent investment tax credit percentage. And if you began construction after December 31, 2031, then it phases completely down to 0 percent.
I want to point out that is the only technology under section 48, because if you recall the others, largely, you’d begin construction before December 31, 2024. So these credits aren’t even in effect technically, in terms of being eligible to start construction today and qualify for section 48. You’d be pushed into that tech- neutral ITC under section 48E instead. And so I think geothermal heat pump technology developers need to be cognizant of these new begun construction dates and the phasedown percentages specifically.
But I want to make sure it’s emphasized that if you had started construction by the end of last year on solar, wind, any of those other technologies under section 48 and section 45, then those projects remain grandfathered under those tax credits. They’re safe from a transferability perspective as the bill’s currently drafted today. And so those developers, I think, are in a really good spot. It’s the unknown of what amendments we’re going to see coming out on the One Big Beautiful Bill that impact any other existing credits in effect today.
Marie Sapirie: There are phasedowns of the technology-neutral credits in sections 48E and 45Y proposed. Could you explain how those work and how they would impact the credits?
Jenny Speck: So under the new tech-neutral tax credits, you’re right. These are phased out beginning for projects that are placed in service after December 31, 2028, and it’s terminated completely for projects placed in service after December 31, 2031. And so I think along the same lines with thinking about the transferability repeal and how you have the beginning of construction; remember, this is placed in service and not beginning of construction, which was what technically was in the prior Inflation Reduction Act, is the phaseouts were correlated with beginning-of-construction dates.
So that means developers are going to have to think about, “Well, what am I placing in service now?” Right? And so it’s really going to, I think, accelerate the timeline of many developers trying to push their projects quickly so that they’re placed in service before December 31, 2028, because once it starts exceeding beyond 2028, that’s when the phasedown begins. So if it’s placed in service in 2029, for example, it’s 80 percent of the value. If it’s placed in service in 2030, it phases down to 60 [percent], in 2031, 40 [percent], and then thereafter it’s 0 [percent].
And so I think there’s going to be a lot of developers thinking about this accelerated timeline and how to meet it in light of, again, all these other new parameters that we’ve not thought of before in terms of where you’re sourcing your components or an entity of concern, the material assistance. So it’s all going to interplay and I think cause a little bit of pressure in terms of accelerating these projects forward.
Marie Sapirie: And will the placed-in-service standard in particular cause any additional pressure?
Jenny Speck: I do. I think the placed-in-service standard is going to cause additional pressure, and we’ve seen it before in terms of placed-in-service dates under the section 45 production tax credit, and the section 48 investment tax credit. So we’ve seen taxpayers have to essentially accelerate, hurry up, place their projects into service by a certain timeline in order to qualify. And so now, instead of having the more flexibility of saying, “I only have to start construction and then I can continue on as planned,” now it’s a, “Hurry up and let’s push forward to get placed in service so that we’re not receiving a haircut on our tax credit.”
Marie Sapirie: Are there any other credits that have been affected that are not in the wind or solar or one of the technology-neutral credits?
Jenny Speck: That’s a good question. I would say one positive was the clean fuel production tax credit. It, under the Inflation Reduction Act, was only allowed for fuels produced and sold between calendar years [20]25 through the end of 2027. And that actually was extended out through December 31, 2031. Now, there’s still the transferability restrictions that I mentioned earlier in the podcast, of when you can sell those tax credits, but I do think it’s a win that we’re seeing this tax credit extended. They did incorporate some certain feedstock restrictions, which again, kind of aligns with that same foreign entity of concern thought process that we’re seeing in the other tax credits.
Another one that I want to point out that, on the opposite end of the spectrum of the clean fuel production credit, is the clean hydrogen production credit. They accelerated that beginning-of-construction deadline all the way to the end of this calendar year. So any of the hydrogen developers who are considering their projects and where they’re at currently in their development process should consider their beginning-of-construction strategy. I’ll add they did not touch the transferability or direct pay for section 45V, the clean hydrogen production credit. They only accelerated that beginning-of-construction deadline. But that does put an immense amount of pressure on hydrogen developers right now.
And then last but not least, I do want to mention that the carbon capture credit, they did not touch the beginning-of-construction deadline for that tax credit. Again, they changed the transferability rules so that you have to begin construction before that two-year timeline period. But you’re not precluded from selling your tax credits as long as you start construction before that date. You can sell your tax credits for your 12-year credit period. So I do think that is a win for the carbon capture industry.
Marie Sapirie: Jenny, thank you for coming back to the podcast on short notice. It’s May 22, and we have some important updates to the House’s revisions of the One Big Beautiful Bill Act that affect the clean energy credits.
First, the House bill changed the technology-neutral ITC and PTC. Would you describe those changes and tell us about what impact they may have?
Jenny Speck: So previously we saw a phaseout period that we discussed, and now they have removed that phaseout period for the section 45Y and section 48 and instead replaced a termination deadline for projects that do not commence construction before 60 days after the bill is enacted or for projects that are not placed in service after December 31, 2028.
There is an exception for certain nuclear technologies, which are allowed credit so long as they begin construction by December 31, 2028. But for all other technologies listed in section 45Y and 48E, it has greatly accelerated when those credits will potentially no longer be allowed.
Marie Sapirie: Second, there is a change to the nuclear credits. Would you tell us about that change?
Jenny Speck: Previously they had phased down the nuclear credits similar to the approach they had taken with the clean electricity production credit, clean electricity investment credit. But instead, they softened that and removed all phasedown and said the credit is allowed at full value through December 31, 2031, which, just for those of you listening, under the Inflation Reduction Act, it was through 2032. So it really just pulled it in one year and I think is a win for the nuclear industry.
Marie Sapirie: And finally, would you explain what the rest of this process looks like for the clean energy credits?
Jenny Speck: One other thing I wanted to add real quick though, on 45Y and 48E for those taxpayers who are trying to qualify, is the material assistance from prohibited foreign entities. The effective date basically applies to projects that begin after December 31, 2025. Under the earlier version that we talked about yesterday, there was a longer transition period, and so they should start being mindful of those new rules because they’ll be affected pretty soon.
But what’s next to come? The bill’s headed to the Senate, there has been a lot of public discussions on what certain senators think of the bill as it’s evolved in the House. So we expect there to be a heavy debate and mark in the Senate, and then those changes will have to go back to the House to be considered. And once both the House and Senate have passed the bill, it’ll go to the president’s desk for signature.
Marie Sapirie: Thank you so much for joining the podcast.
Jenny Speck: Happy to. Thank you.
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