A few months ago we wrote about Congress utilizing the Inflation Reduction Act of 2022 to offer bonus tax credits to certain energy facilities for meeting specified “domestic content” requirements. Relying heavily on the Government’s prior experience with domestic content authorities, including the Federal Transit Authority’s (“FTA”) “Buy America” regulations, we discussed how the regulations, as written, left the renewable energy industry with more questions than answers on the applicability of the domestic content bonus tax credit to their current and future projects. Though we walked through our then-understanding of the regulations, including providing our own step-by-step analysis of how to comply with, and therefore receive, this domestic content bonus credit, we recognized that Treasury was in the process of issuing guidance that (we hoped) would shed more light on compliance obligations. After months of waiting, on May 12, 2023, Treasury, along with the Internal Revenue Service (“IRS”), released its long awaited Guidance (Notice 2023-38). In all fairness to Treasury, the Guidance does provide answers to many lingering questions. But, at the same time, the Guidance provides analysis that differs both from industry’s expectations and the FTA’s Buy America regulations in several significant respects – potentially opening a new can of compliance questions and concerns.
Darian Hackney is an associate in the Tax, Employee Benefits and Executive Compensation Practice Group in the firm's Orange County office.