A recent Tax Court decision (Strieby v. Commissioner, T.C. Memo 2025-28) highlights a risk for investors claiming energy tax credits through partnerships. In Strieby, the taxpayer argued that energy credits were not subject to Subparts B or D of the Code and therefore the passive activity rules under Code Section 469. The Court held in favor of the IRS that energy credits under Code Section 48 are part of the general business credit (Code Section 38) and therefore subject to passive activity limitations under Code Section 469.
As a result of Strieby, investors who do not materially participate in the partnership’s business may be unable to use these credits—especially if they lack passive income to offset them. Not only did the Court deny the credit, but it also assessed negligence penalties against the taxpayer for failing to verify their position or seek professional advice.
With evolving energy credit rules and IRS scrutiny, proper structuring and documentation are essential. Investors should confirm that participation satisfies applicable thresholds and consult tax advisors while planning for or claiming credits.
