Client Alert: Section 45Q (Carbon Capture and Sequestration Federal Tax Credits) Final Regulations – The Unlocking of an Industry

On January 6, 2021, the Internal Revenue Service and Treasury Department released final regulations (T.D. 9944; RIN: 1545-BP42) on the Internal Revenue Code Section 45Q carbon capture and sequestration (“CCS”) credit to implement changes made to that credit by the Bipartisan Budget Act of 2018. These regulations follow the release of proposed regulations on May 28, 2020 and have been highly anticipated by developers, investors, and practitioners hoping to unlock this space and move the market forward. The regulations were preceded by two related items of IRS guidance under Section 45Q: (i) Notice 2020-12, 2020-11 I.R.B. 495 (addressing the beginning of construction requirement for CCS projects) and (ii) Revenue Procedure 2020-12, 2020-11 I.R.B. 511 (providing a safe harbor under which the IRS will treat a partnership as properly allocating the Section 45Q credit in accordance with Section 704(b) and partnership flip structures).1 The final regulations also follow changes made in December 2020 to Section 45Q in the Taxpayer Certainty and Disaster Relief Act of 2020 extending the Section 45Q credit by two years such that construction of CCS facilities must begin before January 1, 2026, rather than January 1, 2024.