WASHINGTON — The Treasury Department is considering whether it needs to issue guidance to address a potential ambiguity in the tax code that could bar issuers selling qualified energy conservation bonds from taking full advantage of available tax credits.
A Treasury official indicated the department is open to the idea of a possible fix in a response sent to a June letter from Rep. Doris Matsui, D-Calif.
Matsui had told the Treasury that if a company in her district tried to partly finance a solar-panel factory with QECBs, it would be required to halve the amount of investment tax credits it could also claim for the project.
Treasury assistant secretary for legislative affairs Kim Wallace said in a Aug. 17 response letter that the department will examine whether there is a “technical ambiguity” that requires an administrative fix.
Matsui’s concern stems from a provision buried in the tax code that suggests that if the company wanted to use QECBs, it also would have to drastically limit the investment tax credits it could obtain for the project.
Specifically, the section of the tax code defining a “qualified conservation purpose” for which QECBs must be used includes a cross-reference to a provision in another section that would halve the amount of investment tax credit, or ITC, that can be taken by such a project.
Matsui said the provision appears to be aimed at preventing “double dipping” on both investment and production tax credits when building solar facilities, but wondered if Congress intended to prohibit developers from simultaneously taking advantage of bond financing and tax credits.
As written, the provision “limits the usefulness of the QECB bonds” because “the ITC basis constraint is roughly a 50% reduction in the value of the critical ITC used to finance such a project,” Matsui told the Treasury in her letter.
QECBs, which can be used to finance initiatives to reduce greenhouse gas emissions, were created by the Energy Improvement and Extension Act of 2008. The law authorized $800 million of bond authority for the program.
The QECB program was expanded under the American Recovery and Reinvestment Act of 2009, which authorized an additional $2.4 billion for it.
The Hiring Incentives to Restore Employment Act enacted earlier this year made it possible for issuers of the bonds to opt to receive direct subsidy payments from the federal government like Build America Bonds.