Detailed guide to IRS Section 6418 requirements, registration process, and compliance for transferable tax credits.
Both sellers and buyers have annual reporting obligations for Section 6418 credit transfers.
Sellers must report: - Amount of credit transferred - Identity of buyer(s) (name, EIN) - Registration number(s) issued by IRS - Consideration received - Any untransferred portion of credit
Forms used: - Form 3800 (General Business Credit) with 6418 election - Applicable credit-specific forms (3468 for ITC, 8835 for PTC, etc.) - Schedule K-1 (if seller is a partnership or S-corp)
Buyers must report: - Amount of credit purchased - Identity of seller (name, EIN) - Registration number - Amount paid for credit - Credit utilization against tax liability
Forms used: - Form 3800 (reporting acquired credits separately) - Specific credit forms corresponding to the credit type - Disclosure statements required by IRS
Tax-exempt organizations that purchase credits and have UBTI must report credit purchases on Form 990-T.
For production tax credits spanning 10 years: - Each year requires separate pre-filing registration - Each year generates separate Form 8835 reporting - Transfer can occur annually with different buyers - Cumulative tracking is required for each project
Example: A wind project placed in service in 2025 with Section 45Y credits must: - Register for Year 1 (2025) credits by filing deadline for 2025 return - Register for Year 2 (2026) credits by filing deadline for 2026 return - Continue through Year 10 (2034) - Each year’s transfer is reported separately
The IRS has not issued final guidance on retention periods, but best practices include:
Minimum retention: 7 years from credit claim date
Documents to retain: - Pre-filing registration confirmation and registration number - Transfer agreements - Consideration payment documentation (wire confirmations, checks) - Buyer certifications (unrelated party, eligible transferee) - Project documentation (placed-in-service evidence, eligible basis calculations) - Bonus adder documentation (prevailing wage, domestic content, energy community) - Legal opinions and tax memoranda - Appraisals and cost segregation studies
For ITCs with 5-year recapture: Retain documentation for at least 5 years after the recapture period ends (potentially 12+ years total).
For PTCs with 10-year credit period: Retain documentation for at least 7 years after the final year’s credit is claimed (potentially 17+ years total).
Best practice: Permanent retention of core project documents, transfer agreements, and IRS registrations in case of future audits or disputes.
The IRS has announced enhanced scrutiny of Section 6418 transfers, including: - Computer matching of registration data to filed returns - Cross-checking seller and buyer reporting - Examination of high-dollar transfers - Industry-wide compliance campaigns
Common audit triggers: - Inconsistencies between seller and buyer reporting - Large credit amounts relative to project size - Bonus adders claimed without clear documentation - Rapid-fire multiple transfers - Related party red flags - Missing or late registration
If audited: 1. Provide comprehensive documentation package 2. Engage tax counsel with Section 6418 experience 3. Demonstrate good-faith compliance efforts 4. Consider voluntary correction if errors discovered 5. Negotiate resolution to avoid penalties when possible
Sellers must monitor for recapture events: - Disposition of property - Change in use - Failure to maintain qualifying status - Loss of bonus adder eligibility
Monitoring mechanisms: - Annual site inspections - Prevailing wage compliance reviews (quarterly) - Equipment status verification - Ownership structure reviews - Insurance policy maintenance
When recapture occurs: 1. Calculate recapture amount (credit × remaining recapture percentage) 2. Report on tax return for year of recapture event 3. Amend prior year returns if necessary 4. Notify buyer (contractual obligation) 5. Process indemnification claim if applicable 6. Pay recaptured amount plus interest
Best practice: Establish a compliance calendar with key dates for: - Recapture period end dates - Annual prevailing wage reviews - Insurance policy renewal dates - Transfer documentation deadlines - IRS reporting deadlines
1. Excessive Credit Transfer Penalty: 20% of Excess - Applies when transferred credit exceeds eligible amount - Penalty assessed on the excess amount - Seller is liable for both excess credit and penalty
Example: - $1M excessive credit transferred - Penalty: $200K (20% × $1M) - Total seller liability: $1.2M
2. Failure to Register Penalty - Transferring credits without proper pre-filing registration - IRS may disallow the entire credit transfer - Buyer may lose credit entirely - Seller may face accuracy-related penalties (20%)
3. Accuracy-Related Penalty: 20% - Applies to substantial understatement of tax - Triggered by overstated credits, understated income from transfer - Can be avoided with reasonable cause and good faith
4. Civil Fraud Penalty: 75% - Applies if IRS proves fraudulent intent - Intentional misrepresentation of eligible basis - Fabricated documentation - Knowing sale to related party
5. Failure to File Correct Information Returns - Penalties for incorrect or missing Forms 1099 or other information returns - Up to $290 per return (2024), capped at $3,532,500 annually - Higher penalties for intentional disregard
In cases of willful tax evasion or fraud related to Section 6418 transfers: - Felony charges under 26 U.S.C. § 7201 - Fines up to $100,000 ($500,000 for corporations) - Imprisonment up to 5 years - Prosecution costs
While technically not a “penalty,” recapture operates as one when: - Property is disposed of during recapture period - Project fails to maintain qualifying status - Bonus adder compliance is lost
Recapture liability: - Repayment of proportionate credit amount - Interest on unpaid amounts - Potential penalties if failure was negligent or fraudulent
Example recapture scenario: - 30% ITC claimed on $20M project = $6M credit - Credit transferred to buyer for $5.4M (90% value) - Project sold in Year 2 of recapture period - Recapture: 80% × $6M = $4.8M - Seller must repay IRS $4.8M - Buyer may seek indemnification from seller for lost credit value - Seller’s net loss could exceed $10M when considering legal fees, indemnification, and opportunity cost
IRS can extend audit period beyond standard 3-year statute if: - Substantial omission of income (25% or more) - Fraud or intent to evade tax (no statute of limitations) - Failure to file return (no statute of limitations)
For Section 6418 transfers, the statute may be extended to: - 6 years for substantial basis overstatement - Unlimited for fraudulent transfers or failure to register
If errors are discovered before IRS audit: 1. Voluntary disclosure may reduce or eliminate penalties 2. Amended returns should be filed promptly 3. Payment of underpayment with interest 4. Cooperation with IRS demonstrates good faith
Factors IRS considers for penalty relief: - Reasonable cause for error - Good faith effort to comply - Reliance on professional advice - Prompt correction upon discovery - No pattern of non-compliance
1. Comprehensive Due Diligence - Retain independent engineers to verify project specifications - Obtain cost segregation study from qualified firm - Secure legal opinion on credit eligibility (should or will level) - Verify all bonus adder qualifications with documentation - Conduct FEOC supply chain review - Confirm unrelated party status of all potential buyers
2. Conservative Credit Calculation - Consider transferring 90-95% of calculated credit to build in margin for error - Use lowest defensible eligible basis - Don’t inflate costs or include questionable expenditures - Obtain independent verification of all bonus adder qualifications
3. Early Registration - Complete IRS pre-filing registration at least 60 days before tax filing deadline - Allow time for IRS portal delays or technical issues - Obtain and verify registration number before finalizing transfer
4. Robust Transfer Agreement - Include detailed representations and warranties from both parties - Allocate recapture risk appropriately (typically seller bears risk) - Provide indemnification clauses for excessive credit scenarios - Include step-up provisions to adjust for audit adjustments - Clearly document consideration paid
1. Proper Documentation - Execute formal written transfer agreement - Obtain unrelated party certification from buyer - Document consideration paid (wire transfer confirmation) - Provide buyer with all project documentation for their due diligence - Deliver registration number and IRS forms
2. Accurate Reporting - Report transfer on correct IRS forms - Ensure buyer and seller reporting matches exactly - Include all required attachments and statements - File timely to avoid penalties
3. Payment Mechanics - Structure payment to occur in same tax year as credit - Use escrow for large transactions to ensure payment - Document fair market value of credit for tax purposes - Consider tax treatment of discount or premium
1. Ongoing Monitoring - Track recapture period end dates - Monitor for recapture triggering events - Maintain insurance against recapture risk - Conduct annual compliance reviews
2. Prevailing Wage Compliance (if applicable) - Quarterly reviews of payroll records - Annual certifications from contractors - Maintain contemporaneous documentation - Address violations immediately to minimize penalty exposure
3. Record Retention - Implement document retention policy - Store all transaction documents securely - Maintain accessible records throughout recapture period - Retain electronic and paper copies
4. Communication - Maintain contact with buyer throughout recapture period - Notify buyer immediately of any potential recapture events - Coordinate on any IRS inquiries or audits - Update buyer on project status annually
1. Insurance Coverage - Tax credit insurance policies to cover recapture risk - Rep and warranty insurance for large transactions - Directors & officers insurance for decision-makers - Errors & omissions coverage for professional advisors
2. Legal Protections - Obtain legal opinions before transfer (creates reasonable cause defense) - Use experienced tax counsel for transaction structuring - Consider tax indemnification agreements - Implement internal controls for credit calculations
3. Professional Advisors - Engage Big 4 or regional accounting firm for credit calculation - Retain law firm with renewable energy tax expertise - Use independent engineers for technical verification - Consider third-party compliance monitoring services
4. Internal Controls - Documented policies and procedures for credit transfers - Multi-level review of all calculations and documentation - Segregation of duties for different aspects of transfer - Regular training on Section 6418 compliance
Yes. Section 6418 allows partial transfers. You can transfer any percentage of an eligible credit to one or more buyers, provided: - Total transferred does not exceed 100% of the credit - Each portion can only be transferred once - You properly allocate the credit in your registration and reporting
Example: You can transfer 60% to Buyer A and 40% to Buyer B, but Buyer A cannot later transfer their 60% to Buyer C.
Short answer: You still lose the credit.
The transfer under Section 6418 is effective when the tax return is filed, not when payment is received. Once you transfer a credit on your tax return: - You cannot claim the credit yourself - The buyer has legal ownership of the credit - If buyer doesn’t pay, you have a contractual claim for breach, but credit is gone
Best practices to avoid this: - Require payment before filing return (or use escrow) - Include payment as condition precedent in transfer agreement - Use reputable buyers with established payment history - Consider title insurance or payment guarantees for large transactions
Yes, in most cases. The consideration you receive for selling a credit is generally taxable income under Section 6418(b)(2).
How it’s taxed depends on your entity type: - C-Corporations: Ordinary income - Partnerships/S-Corps: Flow-through to partners/shareholders as ordinary income - Individuals: Ordinary income
Tax calculation example: - You sell a $10M credit for $9M (90% of face value) - You report $9M as taxable income - At 21% corporate rate, tax = $1.89M - Net benefit: $9M - $1.89M = $7.11M
This is still far more valuable than the credit itself for taxpayers without sufficient tax liability.
No. Section 6418 only allows transfer of credits in the year they are determined.
Credit carryforwards cannot be transferred. If you generated credits in prior years that you carried forward because you lacked tax liability, those credits remain non-transferable carryforwards.
Exception: For PTCs generated over 10 years, you can transfer each year’s credit in that year, even if it’s several years after the project was placed in service.
Act immediately:
Prevention is key: Thorough review before filing eliminates the need for painful corrections.
Sometimes. Tax-exempt organizations under Section 501(c)(3) or other provisions generally have no tax liability and therefore cannot use credits.
However, they CAN purchase credits if: - They have unrelated business taxable income (UBTI) - The credit can offset UBTI tax liability - They properly report on Form 990-T
Practical issue: Most tax-exempt organizations have limited or no UBTI, making them poor buyers of credits.
Due diligence steps:
Red flags: - Buyer hesitates to provide ownership information - Common investors or board members - Prior business relationships or joint ventures - Geographic proximity suggesting potential relationship
When in doubt: Consult tax counsel. Transferring to a related party disqualifies the entire transaction and triggers penalties.
Essential documents to retain:
Retention period: Minimum 7 years; recommend retention throughout recapture period plus 7 years.
Generally NO, but there are exceptions.
The tax-exempt bond restriction under Section 48(a)(4)(C) states that property financed with tax-exempt bonds is not eligible for the ITC.
However: - Only the portion financed with tax-exempt bonds is ineligible - If 50% of project is financed with tax-exempt bonds, only 50% of basis is ineligible - The remaining eligible basis can generate transferable credits
Example: - $20M solar project - $8M financed with tax-exempt bonds - $12M of other financing - Eligible basis: $12M - Credit: 30% × $12M = $3.6M (can be transferred)
Best practice: Avoid tax-exempt bond financing if you want to maximize transferable credits, or carefully structure to minimize bond-financed portion.
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Contact UsThis content is for educational purposes only and does not constitute tax, legal, or financial advice. Always consult with qualified professionals before making tax credit decisions.