In the dynamic market of renewable energy, purchasing tax credits is a strategic investment move that can yield significant returns to the buyers. However, these transactions come with their own set of complexities and uncertainties. To navigate this challenging landscape, it is crucial for buyers to implement risk mitigation measures. Such measures are designed to safeguard the buyer from unforeseen liabilities and ensure the integrity of their investment. This post aims to underscore the importance of these risk mitigation measures, setting the foundation for why they are an integral part of the due diligence process when purchasing renewable energy tax credits.

Due Diligence:

When purchasing renewable energy tax credits, it’s essential for the buyer to meticulously evaluate credit qualification and understand the risks associated with transferability. This process begins with ensuring that all criteria for credit qualification have been met. The buyer should obtain and review comprehensive documentation that confirms the renewable energy project meets all the necessary standards and legal requirements to qualify for the credits. This includes verifying the project’s adherence to specific environmental, technical, and operational guidelines.
Equally important is the assessment of the risk of recapture. Tax credits can be subject to recapture if the project fails to comply with the ongoing requirements set forth in the tax credit program. The buyer must understand the conditions under which recapture could occur and evaluate the likelihood of such events. This involves a thorough risk analysis of the project’s future performance and compliance trajectory. Factors like the project’s operational history, the reliability of the technology used, and the stability of the managing entity can influence this risk.

Indemnities:

Indemnities act as a direct safeguard for buyers against recapture and qualification risks of the tax credits. Typically, renewable energy projects, like wind farms or solar arrays, receive tax credits for meeting specific environmental and operational standards that are explained in the previous blog Transferability Risks: A Critical Examination. If these standards are not maintained, the credits might be recaptured by the government. An indemnity agreement ensures that the seller of the tax credits (usually the project developer) compensates the buyer if such a situation occurs. It also provides assurance that the credits were initially qualified according to the relevant regulations.

Guarantee Agreement:

Guarantee agreements further bolster the security for tax credit buyers. In the renewable energy space, where project developers might be smaller entities with limited financial backing, a sponsor guarantee (Parent Company) becomes critical. This parent company ensures that the obligations under the indemnity are fulfilled. This is particularly valuable in addressing structural risks, ensuring that any issues in the allocation or transferability of tax credits are resolved, and providing a safety net in case the seller fails to comply with their indemnity obligations.

Tax Credit Insurance:

Tax credit insurance offers the most comprehensive form of protection. It covers financial losses if the tax credits, which are crucial for the economics of renewable energy projects, become invalid, are recaptured, or face other unforeseen issues. This type of insurance is specifically tailored to address the following inherent risks associated with tax credits in the renewable energy sector, offering a more formalized and broad coverage.

• Recapture Risk:
  Tax credit insurance policies typically include coverage for the risk of recapture. This is a situation where the government can take back the tax credits if the project fails to comply with specific ongoing requirements that are explained in the previous blog, Transferability Risks: A Critical Examination. If a recapture event occurs, the insurance policy compensates the tax credit buyer for the financial loss. This means the buyer is not left out of pocket if the credits they purchased are recaptured.
• Qualification Risk Coverage:
  The insurance also covers risks related to the initial qualification of the tax credits. There’s always a possibility that a project might not meet all the criteria required for the issuance of tax credits. In case it’s later found that the credits were improperly qualified, the insurance will cover the financial loss to the buyer, ensuring they are not financially harmed by this oversight.

Tax credit insurance provides a layer of security but doesn’t eliminate all risks. Buyers need to be mindful of residual risks, including:

Contractual Default by the Sponsor: If the sponsor fails to facilitate the transfer of tax credits, the buyer bears the risk.

Misrepresentations by the Sponsor: False information provided by the sponsor to the insurance company can lead to loss or recapture of tax credits.

Sponsor Fraud: Risks arise if the sponsor commits fraud, for example by attempting to transfer the same tax credits multiple times.

Further, It is also crucial to appropriately size the tax credit insurance. Simply matching the insurance amount to the tax credits’ value isn’t enough, as it may not cover additional costs such as interest and penalties that the buyer is liable for. Therefore, the insurance coverage should exceed the value of the tax credits involved in the transaction to fully protect the buyer’s interests.
In summary, Indemnities provide a fundamental layer of protection based on contractual promises between the seller and buyer. Guarantee agreements add an extra layer of security by involving a third party to back these promises. Tax credit insurance then encapsulates the entire risk spectrum, offering a formal and comprehensive safety net. Together, these instruments provide a robust framework for managing the complex risks associated with buying renewable energy tax credits. This comprehensive risk mitigation strategy is vital for fostering confidence and stability in investments.