Renewable and Alternative Energy Tax

Holland & Knight's Renewable and Alternative Energy Tax Team stands ready to assist clients in taking full advantage of the tax incentives provided for in the Inflation Reduction Act (IRA) and other legislation. Our team is distinctly positioned to advise clients in all aspects of energy tax credit transactions and controversies, including those involving renewable power, energy storage, carbon capture, hydrogen, manufacturing, and alternative and clean fuels.

Our lawyers represent equity investors as well as developers of renewable energy facilities in all aspects of tax credit transactions, including structuring the transactions, organizing investment and operating entities, securing debt and tax equity financing, and negotiating contracts with various power purchasers, equipment installers and utility companies. We also represent off-takers, utilities and manufacturers that may be parties to renewable energy transactions but do not directly or immediately benefit from the energy tax credits.

In addition, the Energy Tax Team regularly represents clients in advocacy, assisting with congressional outreach for statutory changes, as well as the U.S. Department of the Treasury and IRS for regulatory and sub-regulatory guidance. When faced with IRS disputes, our energy tax attorneys represent clients at all stages of controversy, including examination, mediation, IRS appeals, and litigation at the trial and appellate levels.

A Wide Range of Energy Technologies

Holland & Knight's Energy Tax Team has substantial experience in advising clients regarding the full range of energy technologies.

Renewable Power. In the renewable power space, our Energy Tax Team assists taxpayers with qualifying for the Section 45 production tax credit (PTC), Section 48 investment tax credit (ITC), Section 45J nuclear PTC, and Section 45U zero-emission nuclear PTC. Our lawyers have vast experience with long-standing tax credits for qualifying renewable energy facilities such as onshore and offshore wind, solar, hydro, biomass, landfill gas, nuclear and geothermal power plants, as well as more recently incentivized energy technologies such as energy storage and qualified biogas property.

Alternative and Clean Fuels. We advise clients regarding the established biodiesel, renewable diesel, alternative fuels and second-generation biofuels tax credits under Sections 6426, 6427, 34, 40 and 40A, as well as the Section 40B sustainable aviation fuel credit (SAF), credits for renewable natural gas (RNG) and the Section 45Z clean fuel production credit enacted by the IRA.

Carbon Capture. Holland & Knight's Energy Tax Team is well positioned to advise clients in the carbon capture, utilization and sequestration (CCUS) sector, having successfully advocated for legislative changes to Section 45Q and advised clients in their implementation of carbon capture technologies. We advise clients regarding Section 45Q eligibility, minimum capture thresholds, and sequestration and utilization contracts, including leases and CO2 pipeline contracts.

Clean and Electric Vehicles. Our attorneys assist with tax credits for clean vehicles and clean vehicle infrastructure, including the Section 30D clean vehicle tax credit, Section 45W qualified commercial clean vehicle tax credit, Section 25E previously owned cleaned vehicle credit and Section 30C alternative fuel vehicle refueling property credit. In addition, our Energy Tax Team assists clean vehicle clients in advocacy and tax credit transaction structuring, including monetization. We also advise manufacturers, lessor, purchasers and other clients in meeting the eligibility requirements for these credits, including those in the supply chain providing critical mineral and battery components.

Other Tax Incentives Under the IRA. Our energy tax lawyers also advise clients with respect to newer energy tax incentives provided in the IRA, including the Section 45V clean hydrogen PTC and Section 45X advanced manufacturing production credit, as well as the revived Section 48C qualifying advanced energy project credit.

Breadth of Experience

In addition, Holland & Knight's Energy Tax Team works with clients on a broad spectrum of tax matters related to energy tax credits.

Legislative and Regulatory. Our attorneys regularly represent clients in seeking legislative changes, including changes that were included in the IRA, as well as regulatory and sub-regulatory guidance, including private letter rulings. We also work with Holland & Knight's Legislative Tax Team to help clients in advocating on Capitol Hill and with the Treasury Department and IRS for needed clarity to help achieve our client's goals.

Transactional. Our team also provides transactional advice, representing clients in drafting and negotiating any agreement needed for project development and acquisitions and dispositions of projects, including equipment supply agreements, engineering, procurement and construction (EPC) agreements, build-transfer agreements (BTA), operations and maintenance (O&M) agreements, limited liability company agreements (LLCA), purchase and sale agreements, and other transactions.

Tax Controversy and Litigation. Our lawyers have represented clients in major energy tax credit controversies at IRS examination and appeals, in the U.S. Tax Court, District Courts and Court of Federal Claims, as well as in federal appellate courts. We have been actively involved in the most significant energy tax credit controversies over the last two decades, including Section 29 "spray and pray" matters, Section 6426 and 6427 fuel tax controversies such as taxability, "splash and dash" and black liquor, and Section 1603 grant litigation.

Monetization. We have represented clients for many years in tax equity transactions – including the partnership flip, sale-leaseback and inverted lease structures – to monetize tax credits. With the new monetization opportunities in the IRA, our attorneys now also assist clients in regard to considerations for structuring tax credit transactions for optimal monetization, specifically through the use of direct pay or transfer of credits.

Advisory. We work with clients to provide business-relevant tax advice involving tax credits. This includes helping clients in understanding energy tax credits and the impact on their businesses, as well as the importance of structuring business operations to obtain and maximize credit value.

Thorough Tax Understanding

Our Energy Tax Team has a wealth of experience and knowledge regarding energy tax issues, but we also believe that having a more thorough understanding of the tax laws in general is essential in properly advising clients. We serve as business and tax advisors in all aspects of the energy sector, and while tax credits are an important part of our counsel, they are not the sole focus of our broader energy tax practice. To that end, our attorneys bring to clients many decades of experience that span the Tax Code and fully draw upon our work in advising clients in all nature of tax issues, including those that impact businesses in any industry.

Deep Industry Knowledge

The members of our Energy Tax Team know the energy industry. Our lawyers believe that to properly advise clients, we must have a thorough understanding of the energy industry and trends. For example, we regularly counsel public utilities regarding a full range of issues affecting the utility sector, including normalization of depreciation, the investment tax credit and related ratemaking issues, abandonments, decommissioning, elections out of Subchapter K, structuring transactions such as investments in renewables, public utility property issues and advising on tax controversies. Our Energy Tax Team testifies before public utility commissions, including the Federal Energy Regulatory Commission (FERC), on the treatment of taxes in ratemaking and also assists utility personnel with testimony before the Treasury Department and IRS on proposed regulations affecting the utility industry. Our attorneys also advise clients on fuel excise taxes, Form 637 registrations and the Superfund Tax.

Broad Legal Guidance for Your Needs

We routinely leverage the extensive resources and capabilities of the broader Holland & Knight team of more than 2,200 attorneys – including colleagues who focus on the oil and gas sector and other key areas of the energy industry, our Public Policy & Regulation Group and team members who assist clients in seeking non-tax governmental funding, including with assistance in preparing grant applications before the U.S. Department of Energy – to provide a full range of services to clients interested in the energy transition.