The Department of Treasury (DoT) and Internal Revenue Service (IRS) has published proposed guidance for the clean vehicle tax credit provisions in the Inflation Reduction Act (IRA). This guidance provides more clarity around the foreign entity of concern (FEOC) rules stipulated in the Act. Split into two parts the FEOC requirements mean that to receive each half of the USD7,500 credit, any vehicle placed in service in 2024 may not contain battery components manufactured or assembled by an FEOC, and from 2025 may not contain any critical minerals that were extracted, processed, or recycled by and FEOC.
The proposed guidance provides an interpretation of the FEOC definition – the crucial part of which reads as follows: “The term foreign entity of concern means a foreign entity that is owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation.”
There are four covered nations, China, Russia, Iran and North Korea. The guidance has set the limit for ownership or control to mean if 25 percent or more of the entity’s board seats, voting rights, or equity interest are cumulatively held by any such entity classified as a FEOC. An entity incorporated or headquartered in a covered nation would also be classified as an FEOC.
Furthermore, it states that a licencing agreement or other contractual agreements may also create control. Meaning licence agreements in the US or elsewhere would prevent vehicles using such components or cells from qualifying for the clean vehicle credit.
Some leeway is proposed for “non-traceable battery materials”, while further comment is requested on a range of issues in this section the initial list would include electrolyte salts, electrode binders and electrolyte additives.
With the guidance fresh from the IRS and DoT a more detailed and full analysis will take place in the coming week to establish the ramifications. Initial reactions are that a 25% ownership structure is towards the low end of what could have been settled. A higher proportion would have made it more attractive for FEOC entities to establish joint operations in free-trade agreement countries to bring material to the US and qualify for the clean vehicle credit. Furthermore, the inclusion of licencing agreements into the guidance as falling under ‘control’ will make it more difficult for technologies such as LFP, where China has been dominant, to enter the US. The case for a new gigafactory such as the Ford-CATL facility in Michigan becomes less attractive and could be a signal as to what to expect from further guidance expected addressing the 45X manufacturing tax credit in the coming months.
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