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Public Comments Requested on Additional Aspects of the IRA Clean Energy Tax Incentives, including Clean Hydrogen Production, Carbon Capture and Sequestration, Clean Commercial Vehicles and EV Charging Stations

On November 3, 2022, the U.S. Department of Treasury (Treasury) and Internal Revenue Service (IRS) released three Notices requesting public comments by December 3, 2022, on certain additional aspects of the clean energy tax incentives included in the Inflation Reduction Act of 2022 (IRA). Treasury and the IRS previously released six Notices, on October 5, 2022, requesting public comments by November 4 on certain other aspects of the energy tax incentives, which are described in our alert from November 3, 2022. Treasury and the IRS will consider written comments submitted after December 3 if such consideration will not delay the issuance of guidance. 

The new Notices seek public comments about the following clean energy tax credits added or expanded by the IRA.

  • Notice 2022-56 requests comments on the new tax credit for qualified clean commercial vehicles under Code Section 45W1 and the reinstated and expanded tax credit for alternative fuel vehicle refueling property under Code Section 30C. 
  • Notice 2022-57 requests comments on the IRA’s changes to the tax credit for carbon capture and sequestration under Code Section 45Q credit, including comments on defining the direct air capture technology that qualifies for a significantly higher credit.
  • Notice 2022-58 requests comments on the new tax credit for clean hydrogen production under Code Section 45V (including with respect to guidance to clarify the definition of “qualified clean hydrogen”) and the tax credit for clean fuel production  under Code Section 45Z (including the establishment of emission rates for qualifying fuel).  

Treasury and the IRS seek comments on the specific questions identified in the Notices and any matters not specifically identified. The specific questions in the Notices highlight the areas where Treasury and the IRS intend to issue Treasury Regulations or other guidance and identify where they anticipate potential confusion or ambiguity. Input from industry stakeholders is important to help inform the development of guidance implementing the new and expanded clean energy tax incentives added by the IRA.

We will continue to provide updates concerning the implementation of the new tax incentives included in the IRA. For further information or assistance with respect to providing public comments or how to take advantage of the new tax incentives for clean energy, please contact the authors or your Mintz relationship attorney.  
 


1 References to Code Sections are to the applicable section of the Internal Revenue Code of 1986, as amended (the “Code”).

 

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Authors

Anne S. Levin-Nussbaum is a Member at Mintz who represents clients in US federal income tax matters, with an emphasis on renewable energy transactions and financing. She has extensive experience representing investors, developers and lenders in renewable energy transactions utilizing flip partnership, sale leaseback and inverted lease structures and provides planning and structuring advice to optimize eligibility for energy tax credits and other clean energy tax incentives.
Gregg M. Benson is a Member at Mintz with a multifaceted tax law practice. He advises US and international clients, including companies and individuals, on a wide range of tax issues related to transactions, estate tax planning, and renewable energy projects.
David K. Salamon is an Associate at Mintz. He advises clients across a variety of industries on complex tax issues pertaining to mergers, acquisitions, restructuring, and additional matters.

Xandy Walsh

Associate

Xandy Walsh is an Associate at Mintz who focuses his practice on corporate and securities law, transactions, venture capital and private equity matters, and general corporate matters. He works with companies in a variety of industries, including energy & sustainability.