The US Treasury has released new guidelines on the electric vehicle tax credit in the Inflation Reduction Act, which seem to suggest that leased vehicles can qualify for the EV tax credit even if they were assembled outside of North America, Reuters reports.

The Inflation Reduction Act significantly changed the way the EV tax credit works, and among those changes was a requirement that cars undergo final assembly in North America in order to qualify. The intent of this section is to bring EV manufacturing to the US in order to give the country a leg up in the future of the auto industry.

The provision received sharp pushback from foreign automakers, particularly Hyundai and Kia, that currently sell more electric cars in the US than any other foreign automaker.

Both companies are establishing battery and car factories in the US, but those won’t be open for a few years, leaving them in the lurch for credits for the time being.

But today, the IRS released a fact sheet of frequently asked questions about the tax credits, which suggests that foreign-made EVs may qualify for tax credits through the commercial vehicle section of the law.

The law includes two major sections detailing tax credits. The standard credit is covered under section 30D, while the commercial vehicle credit is covered under section 45W. When describing section 30D, the IRS mentions that qualifying vehicles can’t be acquired for resale purposes, must be made by a qualified manufacturer, must be 4-wheeled electric vehicles driven by a >7kWh battery, must be under 14k pounds GVWR, and must be assembled in North America.

But section 45W reads thusly:

Q2. What is a “qualified commercial clean vehicle”? (added December 29, 2022)

A2. A “qualified commercial clean vehicle” is defined as any vehicle of a character subject to the allowance for depreciation that:

• Is made by a qualified manufacturer,
• Is acquired for use or lease by the taxpayer and not for resale,
• Is treated as a motor vehicle for purposes of title II of the Clean Air Act and is manufactured primarily for use on public streets, roads, and highways (not including a vehicle operated exclusively on a rail or rails), or is mobile machinery, as defined in § 4053(8) of the Code, and
• Is propelled to a significant extent by an electric motor which draws electricity from a battery that has a capacity of not less than 15 kilowatt hours (or, in the case of a vehicle that has a gross vehicle weight rating of less than 14,000 pounds, 7 kilowatt hours) and is capable of being recharged from an external source of electricity, or satisfies the requirements under § 30B(b)(3)(A) and (B) of the Code for being a new qualified fuel cell motor vehicle.

Note, 45W does not mention North American final assembly.

Later in the same fact sheet, another question comes up:

Q5. Is a taxpayer that leases clean vehicles to customers as its business eligible to claim the qualified commercial clean vehicle credit? (added December 29, 2022)
A5. Whether a taxpayer can claim the qualified commercial clean vehicle credit in its business depends on who is the owner of the vehicle for federal income tax purposes. The owner of the vehicle is determined based on whether the lease is respected as a lease or recharacterized as a sale for federal income tax purposes.

Q6. What factors are used to determine if a transaction is a “lease” for tax purposes? (added December 29, 2022)
A6. Based on longstanding tax principles, the determination whether a transaction constitutes a sale or a lease of a vehicle for tax purposes is a question of fact. Features of a vehicle lease agreement that would make it more likely to be recharacterized as a sale of the vehicle for tax purposes include, but are not limited to:

• A lease term that covers more than 80% to 90% of the economic useful life of the vehicle
• A bargain purchase option at the end of the lease term (that is, the ability to purchase the vehicle at less than its fair market value at the end of the term) or other terms/provisions in the lease that economically compel the lessee to acquire the vehicle at the end of the lease term
• Terms that result in the lessor transferring ownership risk to the lessee, for example, a terminal rental adjustment clause (TRAC) provision that requires the lessee to pay the difference between the actual and expected value of the vehicle at the end of the lease.

In short, for a leased vehicle, the commercial tax credit can be taken by the lessor, regardless of whether the vehicle was assembled in the US. This means dealerships can get $7,500 in tax credits for each leased EV.

This credit, then, could be passed on to the consumer in the form of reduced lease payments, as the dealership will effectively recognize an additional $7,500 in revenue from the lease of that vehicle.

The “old” tax credit worked similarly on leased vehicles, which was one way that low-income taxpayers could get around the limitation that the credit was not refundable, which means that anyone with less than $7,500 in federal tax liability couldn’t benefit from the full credit.

This is also why there have been many EV lease deals in the past, with vehicles like the Nissan Leaf and Fiat 500e, each with MSRP around $30k, leasing for $99/mo or less (as opposed to the expected approximate $300 per month for a $30k car), as dealers could recognize tax credits to effectively reduce the price of those vehicles. Those deals no longer exist in this production-constrained and high-demand EV sales environment, though similar deals may return if the market ever flattens out.

US Senator Joe Manchin responded to this announcement, calling this a “dangerous interpretation” and asked the Treasury to pause implementation of the EV tax credit, claiming that domestic manufacturing is a primary intent of the law: