U.S. Department of the Treasury Releases Guidance on Clean Fuels Production Credit Public Comments DEADLINE April 10, 2025

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January 10, 2025
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(U.S. Department of Treasury) Guidance will help lower transportation costs for consumers and make America a leader in decarbonizing aviation industry and heavy transport -- Today, the U.S. Department of the Treasury (Treasury) and Internal Revenue Service (IRS) are releasing guidance on the Clean Fuels Production Credit (section 45Z).

Section 45Z provides a tax credit for the production of transportation fuels with lifecycle greenhouse gas (GHG) emissions below certain levels. The credit is in effect in 2025 and is for sustainable aviation fuel (SAF) and non-SAF transportation fuels.

Today’s guidance was informed by extensive input from stakeholders and the public as well as collaboration between Treasury, IRS, and expert agencies. The guidance includes both a notice of intent to propose regulations on the section 45Z credit and a notice providing the annual emissions rate table for section 45Z, which refers taxpayers to the appropriate methodologies for determining the lifecycle GHG emissions of their fuel. In conjunction with today’s guidance, the Department of Energy will release the 45ZCF-GREET model for use in determining emissions rates for 45Z in the coming days.

“This guidance will help put America on the cutting-edge of future innovation in aviation and renewable fuel while also lowering transportation costs for consumers,” said Deputy Secretary of the Treasury Wally Adeyemo. “Decarbonizing transportation and lowering costs is a win-win for America.”

“We appreciate the critical role that America’s farmers play in building a clean energy economy, including by providing feedstocks for advanced biofuels grown with climate-smart practices that help farmers earn more for what they grow,” said John Podesta, White House Senior Advisor for International Climate Policy. “Today’s announcement reinforces the important role climate-smart agriculture plays in clean transportation as well as the importance of providing pathways for unbundled accounting of climate smart practices that producers can count on.”

“This tax credit is essential to U.S. competitiveness and to reduce emissions in the transportation sector with more affordable, cleaner fuel,” said U.S. Deputy Energy Secretary David M. Turk. “The final guidance released today provides clarity and certainty to America's world-leading biofuel industry, a crucial player in lowering emissions from the aviation and heavy transportation industries.”

Section 45Z provides a per-gallon (or gallon-equivalent) tax credit for producers of clean transportation fuels based on the carbon intensity of production. It consolidates and replaces pre-Inflation Reduction Act (IRA) credits for biodiesel, renewable diesel, and alternative fuels, and an IRA credit for sustainable aviation fuel.  Like several other IRA credits, 45Z requires Treasury to establish rules for measuring carbon intensity of production, based on the Clean Air Act’s definition of “lifecycle greenhouse gas emissions.”

Today’s guidance provides clarity on issues including which entities and fuels are eligible for the credit, and how taxpayers determine lifecycle emissions. Specifically, the guidance outlines Treasury and the IRS’ intent to define key concepts and provide certain rules in a future rulemaking, including:

Clarifying who is eligible for a credit.

Treasury and the IRS intend to provide that the producer of the eligible clean fuel is eligible to claim the 45Z credit. Consistent with the statute, compressors and blenders of fuel would not be eligible.

Clarifying what fuels are eligible for a credit.

Under section 45Z, a fuel must be “suitable for use” as a transportation fuel. Treasury and the IRS intend to propose that 45Z-creditable transportation fuel must itself (or when blended into a fuel mixture) have either practical or commercial fitness for use as a fuel in a highway vehicle or aircraft. The guidance clarifies that marine fuels that are otherwise suitable for use in highway vehicles or aircraft, such as marine diesel and methanol, are also 45Z eligible.

Specifically, this would mean that neat SAF that is blended into a fuel mixture that has practical or commercial fitness for use as a fuel would be creditable. Additionally, natural gas alternatives such as renewable natural gas (RNG) would be suitable for use if produced in a manner such that if it were further compressed it could be used as a transportation fuel.

Publishing rules needed to determine lifecycle emissions required to calculate the credit amount.

Today’s guidance publishes the annual emissions rate table that directs taxpayers to the appropriate methodologies for calculating carbon intensities for types and categories of 45Z-eligible fuels.

The table directs taxpayers to use the 45ZCF-GREET model to determine the emissions rate of non-SAF transportation fuel, and either the 45ZCF-GREET model or methodologies from the International Civil Aviation Organization (“CORSIA Default” or “CORSIA Actual”) for SAF.

Taxpayers may use the Provisional Emissions Rate (PER) process to obtain an emissions rate for fuel pathway and feedstock combinations not specified in the emissions rate table when guidance is published for the PER process. Guidance for the PER process is expected at a later date.

Outlining Climate Smart Agriculture Practices (CSA):

Today’s guidance states that Treasury intends to propose rules for incorporating the emissions benefits from climate-smart agriculture (CSA) practices for cultivating domestic corn, soybeans, and sorghum as feedstocks for SAF and non-SAF transportation fuels. These options would be available to taxpayers after Treasury and the IRS propose regulations for the section 45Z credit, including rules for CSA, and the 45ZCF-GREET model is updated to enable calculation of the lifecycle greenhouse gas emissions rates for CSA crops, taking into account one or more CSA practices.    

CSA practices have multiple benefits, including lower overall GHG emissions associated with biofuels production and increased adoption of farming practices that are associated with other environmental benefits, such as improved water quality and soil health. Agencies across the Federal government have taken important steps to advance the adoption of CSA. In April, Treasury established a first-of-its-kind pilot program to encourage CSA practices within guidance on the section 40B SAF tax credit. Treasury has received and continues to consider substantial feedback from stakeholders on that pilot program. The U.S. Department of Agriculture invested more than $3 billion in 135 Partnerships for Climate-Smart Commodities projects. Combined with the historic investment of $19.5 billion in CSA from the Inflation Reduction Act, the department is estimated to support CSA implementation on over 225 million acres in the next 5 years as well as measurement, monitoring, reporting, and verification to better understand the climate impacts of these practices.

In addition, in June, USDA published a Request for Information requesting public input on procedures for reporting and verification of CSA practices and measurement of related emissions benefits, and received substantial input from a wide array of stakeholders. USDA is currently developing voluntary technical guidelines for CSA reporting and verification. Treasury and IRS will consider those guidelines in proposing rules recognizing the benefits of CSA for purposes of the section 45Z credit.  READ MORE

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Excerpt from Renewable Fuels Association: The U.S. Treasury today released a “notice of intent to propose regulations” regarding implementation of the Inflation Reduction Act’s Clean Fuel Production Credit (“45Z”). Today’s notice begins a 90-day comment period that leaves major decisions on the future of the 45Z credit to the incoming Trump administration.

“While we are pleased to see Treasury has finally released its long overdue guidance on 45Z, today’s package falls short of expectations and remains incomplete,” said Geoff Cooper, President and CEO of the Renewable Fuels Association. “The guidance is a potential step in the right direction, but much work remains to be done before clean fuel producers, farmers, and consumers can fully benefit from the 45Z program.”

Cooper noted that important information from the emissions rate table remains unavailable in today’s guidance, making it impossible for producers to know whether their fuel is eligible for the credit or not. While that information, along with a new 45Z GREET model, is expected to be released soon, today’s guidance leaves biofuel producers in limbo. Today’s guidance also fails to integrate climate-smart agriculture (CSA) practices that can lower the carbon intensity of renewable fuels, and it does not allow producers to determine their own unique carbon intensity values (called a “provisional emissions rate”).

“Unfortunately, today’s guidance does not provide the certainty or flexibility that ethanol producers were looking for, and many questions remain unanswered,” Cooper said. “We do not believe this guidance alone will spur the investment, innovation, and job creation in the clean fuels sector that Congress and the administration intended. It simply isn’t bankable, investible, or otherwise actionable for the vast majority of biofuel producers.

“For the 45Z program to truly drive innovation and value creation in the marketplace, the credit must allow for the inclusion of efficient farming practices, recognition of additional feedstocks and ethanol production technologies, flexible supply chain management tools, and the ability for individual producers to secure their own unique carbon intensity values. But most importantly, producers will not act on this or any subsequent guidance unless they have the assurance that the credit will be durable, stable, and reliably available in the future.”  READ MORE

 

Excerpt from Clean Fuels Alliance America: Policy stability is crucial for biodiesel, renewable diesel and SAF producers -- Today, Clean Fuels Alliance America thanked U.S. Treasury and USDA officials for releasing long-awaited guidance describing the intended rules for the §45Z Clean Fuel Production Credit and giving stakeholders an opportunity to evaluate its workability. The new credit became available to U.S. biodiesel, renewable diesel, SAF and other domestic biofuel producers on January 1, 2025. Many domestic producers have been stymied over the past year in negotiating feedstock and fuel offtake contracts for 2025 while waiting for guidance on the new tax credit.

Today’s guidance begins to clarify important questions on how to calculate the credit and what fuels, feedstocks and producers are eligible. Additional information is still needed, though, to enable producers to calculate credit values.

Kurt Kovarik, Clean Fuels Vice President of Federal Affairs, stated, “We look forward to working with our members to evaluate the overdue guidance and forthcoming GREET model. We appreciate USDA, Treasury and the Department of Energy for issuing guidance. We’re hopeful that today’s notice provides the necessary certainty that producers can rely on ahead of the final rules. Clean fuel producers still need the carbon intensity scores from the GREET model to calculate their credit values; this missing information is key to enabling them to negotiate feedstock and fuel offtake agreements for the year and get back to business.”

Kovarik added, “Domestic production of biomass-based diesel has doubled since 2020, benefitting from multiyear certainty in federal tax policy. Biodiesel and renewable diesel combined now meet 9% of U.S. demand for distillate fuel for heavy-duty transportation needs. Clean Fuels and its member companies will carefully evaluate the guidance to ensure it provides needed certainty for all stakeholders and supports the industry’s continued growth.”   READ MORE

 

Excerpt from DTN Progressive Farmer: Regarding used cooking oil as a feedstock, the Treasury proposal declines to include it in the 45Z credit and declares it ineligible until further guidance is provided.

There has been concern about used cooking oil imports flooding the U.S. market, making it difficult to track feedstock quality.

"With respect to used cooking oil feedstocks, the Treasury Department and the IRS are concerned about the improper identification of a substance that is not UCO as UCO (for example, virgin palm oil mislabeled as UCO), which could have substantially greater emissions impacts than genuine UCO, and the uncertainty of market impacts caused by incentivizing UCO (for example, the degree to which increased UCO demand would be backfilled by virgin oils such as palm oil)," Treasury said in the proposal.

"Both of these concerns are particularly acute for imported UCO given the lack of transparency regarding the local sources. Due to these significant concerns about the ability to reliably distinguish between imported UCO and palm oil and the resulting risk of crediting ineligible fuels, the Treasury Department and the IRS are considering appropriate substantiation and recordkeeping requirements for imported UCO."

...

INDUSTRY REACTION

Biofuels groups expressed disappointment with the announcement, saying on Friday the proposal is lacking in details that are important to taxpayers.

"This long-overdue guidance is far from complete -- it still lacks the critical details that are needed to help ensure that American biofuel producers and their farm partners can lead the world in clean fuel production," Growth Energy CEO Emily Skor said.

"While we appreciate the work of Secretary (Tom) Vilsack to champion our issues on behalf of rural America, today's announcement falls short of providing the information that our industry and its farm partners need, including a model for an expanded number of eligible decarbonization technologies and guidance on climate-smart agriculture practices."

Skor said her group expects to work with the incoming administration to "fill in the gaps" left by today's announcement.

...

Shaw (Monte Shaw, executive director of the Iowa Renewable Fuels Association) said he questioned whether biofuels producers, farmers and consumers are able to utilize the 45Z credit.

"The lack of transparency and certainly has left many biodiesel production facilities running at a reduced rate or not at all," he said. "The supply chain needs to know the value of the credits to resume functioning normally. If America is to achieve energy dominance we can't leave biofuels producers and American farmers stuck in neutral."

Michael McAdams, president of the Advanced Biofuels Association, said his group was "deeply disappointed" by the delay in the release that has "caused uncertainty and disrupted" markets.

"Congress designed 45Z to propel America's leadership in energy innovation and strengthen our energy independence, yet the prolonged rulemaking process has hindered investment and market stability," McAdams said in a statement.

"We look forward to working with the incoming Trump-Vance administration to prioritize finalizing this process swiftly," he said. "Clear, multi-year guidance is essential to stabilize markets and support the hardworking farmers and producers who fuel our economy and our future."

In a joint statement, the American Soybean Association and the National Oilseed Processors Association said the proposal was a good first step.

"ASA thanks the Biden administration and Treasury for listening to our concerns and developing guidance that supports U.S. farmers while strengthening our domestic biofuels industry," said ASA President Caleb Ragland, a soy farmer from Kentucky.

"The guidance released today is an investment in U.S. farmers, who stand ready to feed and fuel the world -- while also fueling the U.S. economy. We look forward to working with Congress and the incoming Trump administration to build on this progress and develop final guidance that supports rural America."   READ MORE

 

Excerpt from Energy.AgWired.com:  Iowa Renewable Fuels Association Executive Director Monte Shaw was blunt in his assessment of the guidance. “Today’s announcement by the Treasury is a story of too little, too late. This is not a final rule. This is not a safe harbor. It isn’t even a proposed rule. Putting out a notice of ‘intent’ ten days before you leave office is nothing but punting the rule down the road.”  READ MORE

 

Excerpt from Argus Media: US producers of low-carbon fuels can start claiming the "45Z" tax credit providing up to $1/USG for road use and $1.75/USG for aviation, following the US Treasury Department's release today of proposed guidance for the credit.

...

The creation of the 45Z tax credit has already prompted a change in US biofuels markets by shifting federal subsidies from blenders to producers. Because the value of tax credit increases for fuels with the lowest lifecycle greenhouse gas (GHG) emissions, it could encourage refiners to source more waste feedstocks such as used cooking oil, rather than conventional crop-based feedstocks.

While the guidance is still just a proposal, taxpayers are able to "immediately" use the guidance to claim the 45Z tax credit, until Treasury issues additional guidance, an administration official said.

...

It is unclear how president-elect Donald Trump intends to approach this proposed approach for the 45Z credit, which will be subject to a 90-day public comment period. Trump has promised to "rescind all unspent funds" from the Inflation Reduction Act. But outright repealing 45Z would leave biofuels producers and farmers without a subsidy they say is needed to sustain growth, after the expiration last year of a $1/USG blender tax credit and a tax credit of up to $1.75/USG for sustainable aviation fuel. Biofuel and soybean groups were unsuccessful in a push last year to extend the expiring biofuel tax credits.

The 45Z credit is likely to be debated in Congress this year, as Republicans consider repealing parts of the Inflation Reduction Act. House Republicans have already asked for input on revisions to the 45Z credit, signaling they could modify the incentive. In a tightly divided Congress, farm-state lawmakers may hold enough leverage to ensure some type of biofuel incentive — and potentially one friendlier to agricultural producers than 45Z — survives.  READ MORE

 

Excerpt from Ohio Country Journal: “We are deeply appreciative of the Treasury’s efforts to establish a clearer framework for the 45Z biofuel credit and further protect U.S.-grown feedstocks,” said Rusty Goebel, president of the Ohio Soybean Association and Williams County farmer. “We ask that swift clarity is provided regarding any potential on-farm practices required for soy-based biofuels to qualify for the credit.”

OSA remains committed to working with the Treasury to ensure that farmer contributions to the biofuels industry are fully recognized and supported as more clarity is provided. The burden to preserve this credit and to make it useful with specific environmental practices that will be required for accessing the credit now shifts to the new administration.

“What a missed opportunity for growers,” said Kenneth Hartman Jr.,  Illinois farmer and NCGA President “We have spent the last year providing Treasury officials with fact-based information in hopes of helping them develop clear and realistic guidelines for qualifying for the tax credit. It’s frustrating that our feedback fell on deaf ears.”  READ MORE

 

Excerpt from Ethanol Producer Magazine: The American Coalition for Ethanol stressed the preliminary guidance has not provided clarity the industry needs. "ACE thanks the Biden Treasury Department for issuing preliminary guidance, acknowledging the need to incorporate climate-smart agriculture practices, and agreeing that emission values should be determined using the most recent GREET model which is updated annually,” said Brian Jennings, CEO of ACE. “Despite this step in the right direction, the job is unfinished because the preliminary guidance doesn’t provide the clarity our industry has been awaiting. The guidance omits key details essential for biofuel producers to capitalize on 45Z, including how climate-smart agriculture practices will be incorporated. Our focus will be to engage the incoming Trump administration to make the final regulations for the 45Z credit beneficial for our members.

"We are eager to collaborate with the Trump Treasury team to ensure 45Z is implemented effectively, with consideration of USDA’s technical guidelines on climate-smart agriculture practices that are under development,” Jennings added. “Since ag-based feedstocks represent about half of ethanol’s carbon footprint, it is critical to allow farmers and ethanol producers to realize the full value of sustainable farm practices through this tax credit. We once again applaud USDA Secretary Vilsack for his leadership on this topic. ACE will continue advocating for flexibility that recognizes the unique contributions of facility-specific process technologies and climate-smart farming practices to achieve meaningful carbon reductions.

“We have strongly urged both Treasury and USDA to update 45Z guidance for ag practice credit values on a routine basis by incorporating the best available science and results from real-world activities, such as the two USDA-Natural Resource Conservation Service (NRCS) Regional Conservation Partnership Programs (RCPPs) currently being led by ACE,” Jennings continued. “These projects are specifically designed to address the perceived need for more empirical data on the GHG benefits of ag practices and help improve the accuracy of the GREET model, and we look forward to the release of the 45ZCF-GREET model for use in determining emissions rates for 45Z in the coming days.”  READ MORE

 

Excerpt from Environmental Defense Fund: 

“In creating the 45Z SAF tax credit, Congress understood that the future of the aviation industry depends on the rapid development and deployment of sustainable aviation fuels with high environmental integrity. Today’s announcement underscores just how challenging it is to deliver on this laudable objective and how imperative it is that we continue to do the hard work of getting this right. We look forward to working with relevant stakeholders – airlines, alternative fuel providers, farmers and others – to develop science-based regulatory criteria that fully and fairly rewards the production and use of high-integrity SAF in the United States."  

Today’s announcement is a “notice of intent to propose regulations” for 45Z, meaning that some important details of interpreting the tax code will be left to the incoming Trump administration. The tax subsidies can be claimed beginning this year, and there are already efforts underway to extend the tax package beyond its 2027 sunset. However, in a December 19th, 2024 letter issued to the CEOs of America’s top airlines, executives from EDF, World Resources Institute and National Wildlife Federation warned that they would oppose the extension of 45Z if Treasury took a similar approach to its guidance on the 40B tax credit, which allowed pathways for low-integrity SAF to qualify for the tax subsidies that expired last year.  READ MORE

 

Excerpt from Pillsbury:   Both Notices are effective January 10, 2025, and the Proposed Regulations would apply to qualifying sales occurring on or after publication of the Proposed Regulations in the Federal Register. Treasury and the IRS have requested comments on the Notices and the draft text of the Proposed Regulations, which should be submitted by April 10, 2025. READ MORE

 

Excerpt from Baker Botts Thought Leadership:  On January 20, 2025, President Trump, on his first day in office, issued an Executive Order entitled “Regulatory Freeze Pending Review.” This directive pauses the publication of guidance documents in the Federal Register until reviewed and approved by an incoming Presidential appointee. This Executive Order may delay or prevent the publication of both Notices 2025-10 and 2025-11. If the Trump Administration moves forward with publication, the comment period on the draft regulations and Notice 2025-11 will provide a valuable opportunity to express support or concern with the envisioned rules for the § 45Z credit and influence its ultimate design.

Pursuant to the current versions of the notices, comments on the draft regulations set out in Notice 2025-10 and Notice 2025-11 would be due by April 10, 2025.   READ MORE

 

Excerpt from Holland and Knight: 

  • The U.S. Department of the Treasury and IRS on Jan. 10, 2025, released initial guidance regarding the production tax credit (PTC) for clean fuels under Section 45Z of the Internal Revenue Code, as enacted by the Inflation Reduction Act.
  • The guidance includes Notice 2025-10 (notice of intent to propose regulations under Sections 45Z and 4101) and Notice 2025-11 (providing the annual emissions rate table for Section 45Z) (together, the Notices).
  • This Holland & Knight alert answers common questions that apply to the Notices.

The U.S. Department of the Treasury and IRS on Jan. 10, 2025, released initial guidance regarding the production tax credit (PTC) for clean fuels under Section 45Z of the Internal Revenue Code, as enacted by the Inflation Reduction Act (IRA). The guidance includes Notice 2025-10 (notice of intent to propose regulations under Sections 45Z and 4101) and Notice 2025-11 (providing the annual emissions rate table for Section 45Z) (together, the Notices).

On Jan. 15, 2025, the U.S. Department of Energy (DOE) released the 45ZCF-GREET model applicable to Section 45Z. The 45ZCF-GREET user manual and a fact sheet of frequently asked questions (FAQs) and corresponding answers about how to use the 45ZCF-GREET model also are available.

Under Section 45Z, a PTC is available for each gallon or gasoline gallon equivalent of transportation fuel produced after Dec. 31, 2024, and sold before Jan. 1, 2028. The stated credit amount equals $1 ($1.75 for sustainable aviation fuel (SAF)) per gallon or gasoline gallon equivalent, but the actual credit amount may be higher or lower depending on the emissions factor of the fuel. The credit amount is reduced to one-fifth of the otherwise available amount if prevailing wage and apprenticeship (PWA) requirements are not satisfied. (See Holland & Knight's previous alert, "A Look at IRA Prevailing Wage and Apprenticeship Requirements Final Regulations Highlights," July 8, 2024.)

Notice 2025-10 serves as an announcement of forthcoming proposed regulations and solicits public input by April 10, 2025. This notice does not include any reliance language and does not constitute final or binding guidance. Notice 2025-11 addresses the calculation of the emissions rate used to determine the emission factor of a fuel in conjunction with the 45ZCF-GREET Model and, for SAF, the CORSIA model.

The key points addressed in the Notices are provided below.

 

Holland & Knight Insight

Since Notice 2025-10 provides draft proposed regulations (which ultimately may or may not be adopted in part or full as proposed or final regulations), taxpayers are not legally entitled to rely upon them, but they may be instructive in analyzing the statutory provisions of Section 45Z and taking a position on a tax return. Accordingly, taxpayers should carefully evaluate the impact of this notice on a particular project.

 

Holland & Knight Insight

Since the Section 45Z credit is an income tax credit, it is claimed annually on an income tax return. This is a deviation from the prior fuels tax credits that typically were claimed as excise tax credits on a quarterly (or more frequent) basis. Taxpayers, however, may benefit from the Section 45Z credit more frequently than annually by reducing quarterly estimated tax payments or transferring credits under Section 6418 throughout the taxable year.

Q&A: Forthcoming Proposed Regulations Under Section 45Z as Foreshadowed in Notice 2025-10

Who Can Claim the Credit?

The taxpayer eligible to claim the Section 45Z credit is the person who is properly registered as a producer of clean fuel under Section 4101 (or treated as the registrant for purposes of filing a claim for the Section 45Z credit). (See Holland & Knight's previous alert, "Treasury Department, IRS Issue Section 45Z Clean Fuel PTC Registration Guidance," June 4, 2024.)

Who Is Treated As the "Producer" of Clean Fuel?

The "producer" is the person who engages in the production of a clean transportation fuel. For renewable natural gas (RNG), the producer is the person who processes the alternative natural gas (the processor) to remove water, carbon dioxide and other impurities such that it is interchangeable with fossil natural gas. The producer does not include any person who removes conventional or alternative natural gas (CANG) from a pipeline, compresses it further after removal and then sells such further-compressed CANG (the compressor).

What Does "Production" Mean?

For purposes of Section 45Z, "production" includes all steps and processes used to make a transportation fuel and would begin with the processing of primary feedstock(s) and end with a transportation fuel ready to be sold in a qualifying sale. Production does not include instances where a person uses a primary feedstock to produce a fuel that meets the same American Society for Testing and Materials (ASTM) standard as the primary feedstock. The Notices also clarify that minimal processing (e.g., blending fuel mixture or other activities that do not result in a chemical transformation) does not qualify as production for purposes of the Section 45Z credit.

When Is the Producer Eligible to Claim the Credit?

The producer is eligible to claim the credit only for the taxable year in which a qualifying sale of a transportation fuel occurs. Pre-2025 production is not eligible, and sales occurring after 2027 also are not eligible.

What Sales Qualify for the Credit?

Notice 2025-10 generally defines "qualifying sales" in accordance with the statutory definition of "sale" under Section 45Z(a)(4) which, as a threshold matter, requires that the transportation fuel be sold by the taxpayer to an unrelated person. The initial guidance also clarifies that a sale "for use by such [unrelated] person in a trade or business" refers to use as a fuel in a trade or business within the meaning of Section 162, although it proposes to import a for use as a fuel requirement not in the statute. Moreover, Notice 2025-10 incorporates the sale attribution rules in Section 45Z(f)(3) when fuel is sold by another member of the taxpayer's consolidated group.

Notice 2025-10 clarifies that a "qualifying sale" does not include a sale of fuel that is used as feedstock to produce transportation fuel.

What If the Owner of the Facility is Different Than the Producer?

If a taxpayer produces transportation fuel at a facility owned by another person, production of such fuel will be attributed to the taxpayer (i.e., the producer).

What If More Than One Person Has an Ownership Interest In the facility?

If more than one person has an ownership interest in the facility (and the arrangement is not classified as a partnership for federal tax purposes), production from the facility is allocated among such persons in proportion to their respective ownership interests in the gross sales of transportation fuel from such facility.

If a facility is owned through an unincorporated organization that has made a valid election under Section 761(a), each member's undivided ownership interest in the facility will be treated as a separate facility owned by such member. (See Holland & Knight's previous alert, "Key Highlights of the Section 761 Final Regulations and Impact on Section 6417 Direct Payments," Jan. 24, 2025.)

What Is Included In a "Qualified Facility"?

A "facility" is a single production line that is used to produce a transportation fuel and includes all components that function interdependently to produce a transportation fuel. Components function interdependently to produce a transportation fuel if the use of each component is dependent upon the use of each of the other components to produce a transportation fuel, but these components do not need to be located within the same building as, or within a certain geographic proximity to, the other components. A single production line includes all steps of the production process from the processing of feedstock through to the transportation fuel that is sold by the taxpayer in a qualifying sale. Post-production equipment, electricity-production equipment and feedstock-related equipment are excluded.

A "qualified facility" is a facility (as described above) that satisfies certain anti-stacking rules (discussed below).

 

Holland & Knight Insight

The determination of what is the "facility" is important for several reasons, including compliance with beginning of construction requirements and PWA requirements.

What Are the Anti-stacking Rules Within the Definition of a "Qualified Facility"?

The anti-stacking rules prevent the allowance of both a Section 45Z credit and a credit for 1) clean hydrogen production under Sections 45V or 48(a)(15) or 2) carbon oxide sequestration under Section 45Q.

Is Carbon Capture Equipment Part of the "Facility"?

A facility includes carbon capture equipment if the carbon capture equipment contributes to the life cycle greenhouse gas (GHG) emissions rate of the process by which the transportation fuel for which the credit is determined is produced. Therefore, if the fuel cannot be below 50 kg/CO2e per mmBTU without the carbon capture equipment or, if the carbon capture equipment is used to calculate the GHG emissions rate, such equipment is part of the facility.

Does the Fuel Have to Be Used as a Transportation Fuel?

No, consistent with the statute "suitable for use as a fuel in a highway vehicle or aircraft" means that the fuel either 1) has practical and commercial fitness for use as a fuel in a highway vehicle or aircraft or 2) may be blended into a fuel mixture that has practical and commercial fitness for use as a fuel in a highway vehicle or aircraft. Actual used is not required.

How Do You measure Fuel for Purposes of Calculating the Credit?

The volume of a liquid fuel is measured on the basis of gallons adjusted to ambient pressure and temperature of one atmosphere and 60 degrees Fahrenheit. Section 45Z directs taxpayers to use a gallon equivalent for nonliquid fuels but does not provide a baseline standard. The Treasury Department and IRS note that gasoline is the most appropriate baseline fuel for a gallon equivalency for nonliquid fuels: Gasoline is the most common transportation fuel, and Section 45Z is designed to incentivize cleaner transportation fuels as alternatives to existing fossil fuels.

To facilitate implementation of a gallon equivalency standard for nonliquid fuels, it is necessary to specify whether the equivalency is based on a lower heating value or a higher heating value of the baseline fuel, as the two types of heating values have different energy contents. The Notices indicate that a lower heating value of gasoline, rather than a higher heating value, should be used because it is a better representation of the useful energy provided by a transportation fuel.

What Does "Gasoline Gallon Equivalent" Mean?

Section 45Z is a per gallon or gasoline gallon equivalent credit. The term "gallon equivalent" means, with respect to any nonliquid fuel, the amount of such fuel that has the energy equivalent of a gallon of gasoline, which refers to the amount of such fuel having a BTU content of 116,090 (lower heating value). A "nonliquid fuel" is a fuel in a gaseous state at ambient pressure and temperature of one atmosphere and 60 degrees Fahrenheit, respectively. Notice 2025-10 provides a table of certain nonliquid fuels.

How Is the Emissions Rate of Non-SAF Transportation Fuel Determined?

The emissions rate is determined using the 45ZCF-GREET model, which uses "well-to-wheel" emissions to calculate lifecycle GHG emissions for all stages of fuel production, as well as emissions resulting from use of the fuel in transportation.

What Version of the GREET Model is Required?

Taxpayers must use the most recent version of the GREET model that is publicly available on the first day of the taxable year during which the taxpayer produced the transportation fuel for which the credit is claimed. An election can be made to use a newer model that is released in the same year.

What Methodology Is Required to be Used to Calculate the GHG Emissions for SAF?

If a type and category of SAF transportation fuel is established in the emissions rate table, a taxpayer would determine the fuel's emissions rate using the most recent version of 1) the CORSIA Default Life Cycle Emissions Values for CORSIA Eligible Fuels lifecycle approach (CORSIA Default) or the CORSIA Methodology for Calculating Actual Life Cycle Emissions Values lifecycle approach (CORSIA Actual) or 2) the 45ZCF-GREET model, as directed by the emissions rate table.

What If the Fuel Is Not Listed on the Emissions Rate Table?

A taxpayer producing a fuel can use the provisional emissions rate (PER) process if the transportation fuel that it is producing is 1) a novel type of fuel not established in the   or 2) if the type of fuel is established in the emissions rate table, but such fuel is produced using a pathway or primary feedstock not established in the applicable emissions rate table.

A taxpayer cannot use the PER process if the taxpayer disagrees with the background data (i.e., underlying assumptions) in the model.

 

Holland & Knight Insight

The emissions rate table specifically excludes many foreign produced feedstocks. The ability to obtain a PER for use of such feedstocks is uncertain given the requirement that the request must be for a "novel type of fuel."

Do the "Three Pillars" Apply to Section 45Z?

Notice 2025-10 states that "rules similar to the rules under Section 45V apply." The 45ZCF-GREET user manual similarly states that the three pillars – deliverability, temporal matching and incrementality – apply to Section 45Z and that "additional details regarding these criteria are provided in the 45V Regulations." (See Holland & Knight's previous alert, "Treasury Department, IRS Release Section 45V Clean Hydrogen PTC Final Regulations," Jan. 22, 2025.)

Are There Any Recordkeeping and Substantiation of Emissions Rate Requirements?

The Notices provide taxpayers wishing to claim the Section 45Z credit with a nonexclusive list of records sufficient to establish the taxpayer's eligibility for the credit and the amount of such credit claimed. To the extent a taxpayer is claiming an increased credit amount based on a qualified facility satisfying the PWA requirements, the taxpayer must also maintain records in accordance with the final PWA regulations. (See Holland & Knight's previous alert, "A Look at IRA Prevailing Wage and Apprenticeship Requirements Final Regulations Highlights," July 8, 2024.) A taxpayer must also keep all information, including raw data, used for or related to any petition for a PER.

The Notices also include an emission rate substantiation safe harbor providing that a taxpayer may substantiate the emissions rate for a non-SAF transportation fuel that was determined using the 45ZCF-GREET model by obtaining certification with respect to such fuel and attaching such certification to its Form 7218, "Clean Fuel Production Credit," for the taxable year in which it intends to claim the Section 45Z credit for such fuel.

Q&A: Forthcoming Proposed Regulations Under Section 4101 as Foreshadowed in Notice 2025-10

Who Must Register?

Every person intending to claim a Section 45Z credit with respect to the production of a fuel eligible for such credit is required to register with the IRS.

To this end, the Notices clarify that each business unit that has, or is required to have, a separate employer identification number (EIN) is treated as a separate person for these purposes (including, e.g., each disregarded entity or qualified Subchapter S subsidiary (as defined in Section 1361(b)(3)(B)) that has an EIN and is a producer of transportation fuel for purposes of Section 45Z).

How Does a Person Apply to be Registered as a Producer of Transportation Fuel for Purposes of Section 45Z?

The Notices provide relevant guidance with respect to the application process (including rules regarding the approval, denial, revocation or suspension of the registration). The Treasury Department and IRS note that many of these registration rules and requirements (as relevant for purposes of the Section 45Z credit) are similar or identical to registration rules and requirements that many excise tax Section 4101 registrants will already be familiar with.

What is the Difference Between an "Applicant" and a "Registrant"?

The Notices specify that an "applicant" is a person who has applied for registration under Section 4101, whereas a "registrant" is a person who the IRS has registered as a producer of clean transportation fuel under Section 4101 and whose registration has not been revoked or suspended.

What is the "Reregistration Safe Harbor"?

The Notices provide a safe harbor for a registrant that must reregister due to a change in ownership. If a registrant is approved for reregistration, such registrant would be eligible to claim a Section 45Z credit as of the date the IRS received the application for reregistration, even if, at the time of such registrant's fuel production, the IRS had not yet approved the reregistration.

For More Information

The Holland & Knight Energy Tax Team is available for questions regarding Section 45Z and these Notices. To be sure you receive additional analysis from the team, please subscribe to our alerts. Please also check out our Inflation Reduction Act Tax Resource Library.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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