Testing the Reach of UCC Article 9: The Question of Tax Credit Collateral in Secured Transactions

This Article addresses the open question related to the use of tax credits as a source of secured capital. It first lays a foundation by analyzing the theoretical underpinnings of the UCC’s category for general intangibles and shows how classification as a general intangible can and should comport with the legal substance of tax credits as a form of secured financing. The work also investigates the theory and nature that forms the basis of tax credits and their economic value. Next, the Article provides an overview of the relatively meager case law on tax credit financing and explains how courts have struggled with this new concept, as well as discusses how courts have treated other types of general intangible assets; a treatment, which may help in forming the basis of the jurisprudential analysis for tax credit financing. Taking these theories and background a step further, the Article concludes by making several recommendations on how courts can approach cases involving tax credits used as collateral in secured transactions. In sum, Article 9 and courts should adopt a flexible and broad view when confronted with these and other types of emerging and nontraditional security