Treasury and IRS issue proposed regulations defining energy property

WASHINGTON — The Department of the Treasury and the Internal Revenue Service today issued proposed regulationsupdating rules for the investment tax credit under section 48 (ITC) that have been unchanged since 1987. The proposed rules update the types of energy properties eligible for the section 48 ITC, reflecting changes in the energy industry, technological advances, and updates from the Inflation Reduction Act of 2022 (IRA).

Energy industry participants will appreciate that the proposed regulations provide definitions of energy properties for which the ITC was available before the IRA. These include, but are not limited to, solar process heat, fiber-optic solar property, combined heat and power system property, qualified fuel cell property, and qualified microturbine property.

These proposed regulations also address technologies that were added to the ITC as energy property by the IRA, including electrochromic glass, energy storage technology, microgrid controllers, and biogas property. Importantly, the IRA added new provisions to the ITC to allow smaller projects to include the cost of certain types of interconnection property in their credit amount.

Additionally, the proposed regulations provide general rules for the ITC including the application of the “80/20” Rule to retrofitted energy property, dual use property, and issues related to multiple owners of an energy property.

Additional information about guidance issued under the IRA is available at Inflation Reduction Act of 2022.

Source: IRS-2023-220, Nov. 17, 2023