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Recapture Risk and Insurance for Buyers of Transferable Credits

· By the Veritas Tax Credits editorial team (how we write and check) · Educational only, not tax advice

Recapture is the risk that tends to concern CPAs most. It applies to investment credits such as the §48 and §48E credits, not to production credits.

The five-year schedule

If investment credit property is disposed of, or ceases to be investment credit property, before the end of the recapture period, the tax is increased by a recapture percentage of the credit (§50(a)(1)): 100% within the first full year after placed in service, then 80%, 60%, 40% and 20%.

Who pays

The transferee is responsible for its proportionate share of recapture, the recapture amount times the credit transferred over the total credit (§1.6418-5(d)(3)). The eligible taxpayer must notify the transferee in time to compute it. The IRS FAQ (Q13) confirms this.

Events to diligence

  • Sale, foreclosure or change in ownership.
  • Casualty loss; abandonment.
  • Change of use.
  • Changes in a partner's or shareholder's financing (limited for buyers; see at-risk rules).

Protection

ProtectionWhat it doesWatch for
Seller indemnitySeller reimburses for recapture, disallowance, reductionCreditworthiness of the indemnitor
Tax credit insurancePolicy for specified tax-credit risksExclusions, retention, who pays the premium
Property insurance, site controlReduce casualty and loss-of-site eventsCovenants should run the full recapture period

Indemnity and insurance are market practices described by participants such as Reunion and Aprio; the Code does not require them.

The accounting side

See how recapture exposure is considered under ASC 740.

Illustration

A project earns a $1,000,000 investment credit. A buyer purchases $400,000 of it. If the property ceases to qualify during the third year, the §50(a) recapture percentage is 60%. The recapture amount is $600,000; the buyer's share is 40%, or $240,000 (§1.6418-5(d)(3)). Indemnity or insurance, if in place, would respond according to its terms.

Year property ceases to qualifyRecapture percentage
First year100%
Second80%
Third60%
Fourth40%
Fifth20%

Educational only; not insurance or tax advice. Confirm coverage terms with an insurance professional.

Frequently asked questions

Do production tax credits have recapture?

The §50 recapture rules apply to investment credit property. Production credits such as §45 and §45Y do not follow the five-year investment credit schedule.

Is tax credit insurance required?

No. It is a market practice many buyers choose, alongside seller indemnity.

Owe $50k or more in federal tax?

Tell us your estimated liability and timing. We will show you what transferable credits are available and walk your CPA through the diligence.

Get a tax credit quote §48E buyer guide or call (888) 328-4718

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