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DECEMBER 20, 2022


VOLUME XII, NUMBER 354


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DECEMBER 19, 2022

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ARTICLE BY

William Ball






Foley & Lardner LLP
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BATTLE LINES DRAWN ON ELECTRIC VEHICLE TAX CREDIT SPECIFICS

Thursday, December 15, 2022

As the Internal Revenue Service (“IRS”) begins issuing guidance for every tax
provision of the Inflation Reduction Act (“IRA”), efforts have ramped up by
foreign governments and automakers on the strict battery component sourcing
requirements under the 30D Clean Vehicle Credit program under the law. Under the
30D provision, for an electric vehicle (“EV”) to qualify for the full $7,500
rebate, it must adhere to strict U.S. final assembly and U.S. battery component
requirements.

Specifically, for consumer EVs to qualify for the entire $7,500 rebate, at least
40 percent of the critical minerals used in the battery must have been extracted
or processed in the U.S. or in a country with which the U.S. has a free trade
agreement, and at least 50 percent of the battery components must have been
manufactured or assembled in North America. Both of the percentage requirements
for these restrictions are set to increase by 10 percent annually starting in
2024.

Soon after the IRA was signed into law, foreign auto manufacturers and foreign
governments, most notably Japan and South Korea, have been pressuring
Washington, D.C. to reverse or relax these “Made in America” requirements,
stating that these restrictions would effectively inhibit all consumer EVs
currently on the market from qualifying for the $7,500 tax rebate. As a
contingency plan, these groups have also begun lobbying to expand the 45W
Qualified Commercial Clean Vehicle Credits to apply to vehicles typically not
considered “commercial”. This would include vehicles purchased for rental
fleets, leases, and rideshare services. The 45W commercial EV credit is not
subject to the same, stringent U.S. component standards required for consumer
EVs under the 30D program. The IRS requested comments on section 45W, which were
due December 3, 2022. Formal guidance is forthcoming.

Efforts by foreign governments and automakers to weaken or subvert the U.S.
component requirements sparked a strongly worded letter from Senate Energy and
Natural Resources Chairman, Senator Joe Manchin to Treasury Secretary, Janet
Yellen earlier this week. In no uncertain terms, Chairman Manchin rebuked these
efforts and requested that the IRS release final guidance on these provisions
with strict adherence to the law and congressional intent.

Specifically, the Chairman stated: “Unfortunately, I have heard that some
automakers and foreign governments are asking your agency for a broad
interpretation of 45W that would allow rental cars, leased vehicles, and
rideshare vehicles (such as those used for Uber and Lyft), a huge piece of the
U.S. vehicle market, to be eligible for the full $7,500 commercial vehicle
credit as a way to bypass the strict sourcing requirements in the 30D Clean
Vehicle Credit (30D).  If these vehicles are deemed eligible, I can guarantee
that companies will focus their attention away from trying to invest in North
America to meet the requirements of 30D and will instead continue with business
as usual, putting our transportation sector further at risk. The 45W credit, as
the name implies, is intended only for commercial use, and your department must
follow congressional intent and release guidance that would ensure 45W will not
be used on vehicles that will be leased, rented, or used for ridesharing
purposes…Congressional intent in the IRA is crystal clear.” You can read the
full letter here.

As the IRS continues to develop and release formal guidance on the
interpretation of these and other tax provisions, lobbying efforts in
Washington, D.C. will continue to build. In addition, as seen above, Congress,
itself, will apply immense pressure on federal agencies to ensure that they are
implementing these tax provisions in line with congressional intent. The battle
is far from over.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 349

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UPCOMING LEGAL EDUCATION EVENTS

Life Sciences Lifeline - Expanded TRIPS Waivers: What You Need to Know
Tuesday, December 20, 2022
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Beyond
Tuesday, January 10, 2023
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Tuesday, January 10, 2023
What You Should Know About Payor/Provider Convergence
Wednesday, January 25, 2023

--------------------------------------------------------------------------------

About this Author

William Ball
Dir, Public Affairs

William “Bill” Ball is a public affairs director with Foley & Lardner LLP. He is
a member of the Government & Public Policy Practice in Washington, D.C.

Bill comes to Foley with a decade of experience on Capitol Hill where he worked
with House and Senate Committees on energy, natural resources, water and
infrastructure issues. Most recently, he served as the deputy staff director for
the House Committee on Natural Resources where he led the committee in numerous
bicameral negotiations on major legislative packages such as the Water Resources
Development Act (P.L. 115-270),...

wball@foley.com
202.295.4067
www.foley.com





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