U.S. Treasury says tribally owned entities should be tax-exempt

By Kadin Mills, ICT

The U.S. Treasury Department and the Internal Revenue Service issued a long-awaited proposal on Monday, Oct. 7, to clarify that tribally owned businesses and entities should share the tax-exempt status of their tribes.

The proposed rule would help safeguard tribes’ economic stability and allow tribal entities to apply for clean energy tax credits available under the Inflation Reduction Act. The move is one the department says will build on historic investment in tribal communities under the leadership of the first Native American Treasurer, Lynn Malerba, lifetime chief of the Mohegan Tribe.

“This guidance demonstrates Treasury’s recognition, support, and protection of principles of Tribal sovereignty, sovereign immunity, and self-governance,” the department said in a press release.

The proposed rule is expected to be formally published on Wednesday, Oct. 9, after which a 90-day public comment period begins. Tribal consultation will take place Dec. 16-18.

“The Treasury and the IRS must maintain ongoing engagement with Indian Country to uphold tribal sovereignty,” said Rodney Butler, chairman of the Mashantucket Pequot Tribe who is also president of the Native American Finance Officers Association and a member of the Treasury Tribal Advisory Committee.

“I urge all tribes to submit written comments and engage in tribal consultations to continue to advance parity for tribal tribal corporations,” he said in a press conference.

The proposal announced Monday clears up an uncertainty that has lingered for nearly 30 years.

In 1996, the Internal Revenue Service issued federal tax regulations for corporations, acknowledging that the status of tribal corporations was unclear. Tribal governments and their corporations have since awaited this new rule. Some tribally owned entities were required to pay federal taxes, while others were not.

“For too long, tribal nations have been left behind in implementation of our country's tax code, and the tax code matters because so much economic opportunity flows from tax certainty, but the Biden-Harris Administration has reversed that trend,” U.S. Deputy Secretary of the Treasury Wally Adeyemo said in a press conference.

Addressing the tax status of tribal entities became especially important following the passage of the Inflation Reduction Act, Adeyemo said.

“With many tribes seeking to build clean energy projects and a clean energy economy, today's guidance clarifies that these entities can use elective pay, ensuring that clean energy tax credits are accessible for tribal communities across this country,” he said.

Butler said the tribal consultations in December are, “an important opportunity” for tribes to influence the final guidelines.

“Our diverse circumstances require tailored solutions, and your participation is vital for advocating not only for your tribe but also for the advancement of all of Indian Country,” he said.

The Treasury Department will consider possible changes before establishing a final rule. Comments will be accepted through Jan. 7, 2025. 

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