Utility must reflect depreciation-related NOL carryover in ADIT

Plain-English summary

A regulated natural-gas utility used accelerated depreciation and had net operating loss carryovers during the relevant years. For ratemaking, it maintained accumulated deferred income tax accounts and an offsetting deferred tax asset for the portion of its losses attributable to accelerated depreciation. The IRS ruled that the utility's rate base could not be reduced by ADIT without reflecting that NOL-related account, and that using less than the amount computed under the utility's “last dollars deducted” method would violate the normalization rules. It also ruled that reducing the utility's tax-expense component of cost of service for the NOL benefit would improperly flow accelerated-depreciation benefits to ratepayers before the utility realized them.

Ruling snapshot

• Question: How must a regulated utility account for the depreciation-related portion of an NOL carryover when calculating ADIT, rate base, and tax expense?
• Outcome: Approved
• Key authorities: IRC §§ 167, 168(i)(9); Treas. Reg. § 1.167(l)-1

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201548017 Third Party Communication: None
Release Date: 11/27/2015 Date of Communication: Not Applicable
Index Number: 167.22-01
Person To Contact:
------------------------------------------------------------ ----------------------, ID No. ----------------
-------------------------------- Telephone Number:
------------------ --------------------
----------------------------- Refer Reply To:
--------------------------------------- CC:PSI:B06
PLR-116998-15
Date:
August 19, 2015

LEGEND:

Taxpayer = ------------------------------------------

Parent = ------------------

State A = ------------
State B = ------------
Commission = ----------------------------------------------------
Year A = -------
Year B = ------
Date A = ------------------------
Date B = --------------------
Case = --------------------
Director = --------------------------------------------------------------------------------
---------------------------------------------------------------------------------

Dear -------------:

   This letter responds to the request, dated May 14, 2015, of Taxpayer for a ruling

on the application of the normalization rules of the Internal Revenue Code to certain
accounting and regulatory procedures, described below.

     The representations set out in your letter follow.

    Taxpayer is primarily engaged in the regulated distribution of natural gas in State

A. It is incorporated in State B and is wholly owned by Parent. Taxpayer is subject to
the regulatory jurisdiction of Commission with respect to terms and conditions of service
PLR-116998-15 2

and particularly the rates it may charge for the provision of service. Taxpayer’s rates
are established on a rate of return basis. Taxpayer takes accelerated depreciation,
including “bonus depreciation” where available and, for each year beginning in Year A
and ending in Year B, Taxpayer incurred net operating losses (NOL). On its regulatory
books of account, Taxpayer “normalizes” the differences between regulatory
depreciation and tax depreciation. This means that, where accelerated depreciation
reduces taxable income, the taxes that a taxpayer would have paid if regulatory
depreciation (instead of accelerated tax depreciation) were claimed constitute “cost-free
capital” to the taxpayer. A taxpayer that normalizes these differences, like Taxpayer,
maintains a reserve account showing the amount of tax liability that is deferred as a
result of the accelerated depreciation. This reserve is the accumulated deferred income
tax (ADIT) account. Taxpayer maintains an ADIT account. In addition, Taxpayer
maintains an offsetting series of entries – a “deferred tax asset” and a “deferred tax
expense” - that reflect that portion of those ‘tax losses’ which, while due to accelerated
depreciation, did not actually defer tax because of the existence of an net operating loss
carryover (NOLC). Taxpayer, for normalization purposes, calculates the portion of the
NOLC attributable to accelerated depreciation using a “last dollars deducted”
methodology, meaning that an NOLC is attributable to accelerated depreciation to the
extent of the lesser of the accelerated depreciation or the NOLC.

   Taxpayer filed a general rate case with Commission on Date A (Case). The test

year used in the Case was the 12 month period ending on Date B. In computing its
income tax expense element of cost of service, the tax benefits attributable to
accelerated depreciation were normalized in accordance with Commission policy and
were not flowed thru to ratepayers. In establishing the rate base on which Taxpayer
was to be allowed to earn a return Commission offsets rate base by Taxpayer’s ADIT
balance. Taxpayer argued that the ADIT balance should be reduced by the amounts
that Taxpayer calculates did not actually defer tax due to the presence of the NOLC, as
represented in the deferred tax asset account. Testimony by various other participants
in Case argued against Taxpayer’s proposed calculation of ADIT. One proposal made
to Commission was, if Commission allowed Taxpayer to reduce the ADIT balance as
Taxpayer proposed, then an offsetting reduction should be made to Taxpayer’s income
tax expense element of service.

   A Utility Law Judge upheld Taxpayer’s position with respect to the NOLC-related

ADIT and ordered Taxpayer to seek a ruling from the Internal Revenue Service on this
matter. This request is in response to that order.

  Taxpayer requests that we rule as follows:

1. Under the circumstances described above, the reduction of Taxpayer’s rate base
   by the balance of its ADIT accounts unreduced by its NOLC-related deferred tax
   account would be inconsistent with the requirements of § 168(i)(9) and § 1.167(l)-
   1 of the Income Tax regulations.
   PLR-116998-15 3

2. Under the circumstances described above, the reduction of Taxpayer’s rate base
   by the full amount of its ADIT account balances offset by a portion of its NOLC-
   related account balance that is less than the amount attributable to accelerated
   depreciation computed on a “last dollars deducted” basis would be inconsistent
   with the requirements of § 168(i)(9) and § 1.167(l)-1.

3. Under the circumstances described above, any reduction in Taxpayer’s tax
   expense element of cost of service to reflect the tax benefit of its NOLC would be
   inconsistent with the requirements of § 168(i)(9) and § 1.167(l)-1.

Law and Analysis

  Section 168(f)(2) of the Code provides that the depreciation deduction

determined under section 168 shall not apply to any public utility property (within the
meaning of section 168(i)(10)) if the taxpayer does not use a normalization method of
accounting.

   In order to use a normalization method of accounting, section 168(i)(9)(A)(i) of

the Code requires the taxpayer, in computing its tax expense for establishing its cost of
service for ratemaking purposes and reflecting operating results in its regulated books
of account, to use a method of depreciation with respect to public utility property that is
the same as, and a depreciation period for such property that is not shorter than, the
method and period used to compute its depreciation expense for such purposes. Under
section 168(i)(9)(A)(ii), if the amount allowable as a deduction under section 168 differs
from the amount that-would be allowable as a deduction under section 167 using the
method, period, first and last year convention, and salvage value used to compute
regulated tax expense under section 168(i)(9)(A)(i), the taxpayer must make
adjustments to a reserve to reflect the deferral of taxes resulting from such difference.

   Section 168(i)(9)(B)(i) of the Code provides that one way the requirements of

section 168(i)(9)(A) will not be satisfied is if the taxpayer, for ratemaking purposes, uses
a procedure or adjustment which is inconsistent with such requirements. Under section
168(i)(9)(B)(ii), such inconsistent procedures and adjustments include the use of an
estimate or projection of the taxpayer’s tax expense, depreciation expense, or reserve
for deferred taxes under section 168(i)(9)(A)(ii), unless such estimate or projection is
also used, for ratemaking purposes, with respect to all three of these items and with
respect to the rate base.

     Former section 167(l) of the Code generally provided that public utilities were

entitled to use accelerated methods for depreciation if they used a “normalization
method of accounting.” A normalization method of accounting was defined in former
section 167(l)(3)(G) in a manner consistent with that found in section 168(i)(9)(A).
Section 1.167(1)-1(a)(1) of the Income Tax Regulations provides that the normalization
requirements for public utility property pertain only to the deferral of federal income tax
liability resulting from the use of an accelerated method of depreciation for computing
PLR-116998-15 4

the allowance for depreciation under section 167 and the use of straight-line
depreciation for computing tax expense and depreciation expense for purposes of
establishing cost of services and for reflecting operating results in regulated books of
account. These regulations do not pertain to other book-tax timing differences with
respect to state income taxes, F.I.C.A. taxes, construction costs, or any other taxes and
items.

    Section 1.167(l)-1(h)(1)(i) provides that the reserve established for public utility

property should reflect the total amount of the deferral of federal income tax liability
resulting from the taxpayer’s use of different depreciation methods for tax and
ratemaking purposes.

     Section 1.167(1)-1(h)(1)(iii) provides that the amount of federal income tax

liability deferred as a result of the use of different depreciation methods for tax and
ratemaking purposes is the excess (computed without regard to credits) of the amount
the tax liability would have been had the depreciation method for ratemaking purposes
been used over the amount of the actual tax liability. This amount shall be taken into
account for the taxable year in which the different methods of depreciation are used. If,
however, in respect of any taxable year the use of a method of depreciation other than a
subsection (1) method for purposes of determining the taxpayer’s reasonable allowance
under section 167(a) results in a net operating loss carryover to a year succeeding such
taxable year which would not have arisen (or an increase in such carryover which would
not have arisen) had the taxpayer determined his reasonable allowance under section
167(a) using a subsection (1) method, then the amount and time of the deferral of tax
liability shall be taken into account in such appropriate time and manner as is
satisfactory to the district director.

    Section 1.167(1)-1(h)(2)(i) provides that the taxpayer must credit this amount of

deferred taxes to a reserve for deferred taxes, a depreciation reserve, or other reserve
account. This regulation further provides that, with respect to any account, the
aggregate amount allocable to deferred tax under section 167(1) shall not be reduced
except to reflect the amount for any taxable year by which Federal income taxes are
greater by reason of the prior use of different methods of depreciation. That section
also notes that the aggregate amount allocable to deferred taxes may be reduced to
reflect the amount for any taxable year by which federal income taxes are greater by
reason of the prior use of different methods of depreciation under section 1.167(1)-
1(h)(1)(i) or to reflect asset retirements or the expiration of the period for
depreciation used for determining the allowance for depreciation under section 167(a).

   Section 1.167(1)-(h)(6)(i) provides that, notwithstanding the provisions of

subparagraph (1) of that paragraph, a taxpayer does not use a normalization method of
regulated accounting if, for ratemaking purposes, the amount of the reserve for deferred
taxes under section 167(l) which is excluded from the base to which the taxpayer’s rate
of return is applied, or which is treated as no-cost capital in those rate cases in which
PLR-116998-15 5

the rate of return is based upon the cost of capital, exceeds the amount of such reserve
for deferred taxes for the period used in determining the taxpayer’s expense in
computing cost of service in such ratemaking.

   Section 1.167(1)-(h)(6)(ii) provides that, for the purpose of determining the

maximum amount of the reserve to be excluded from the rate base (or to be included as
no-cost capital) under subdivision (i), above, if solely an historical period is used to
determine depreciation for Federal income tax expense for ratemaking purposes, then
the amount of the reserve account for that period is the amount of the reserve
(determined under section 1.167(1)-1(h)(2)(i)) at the end of the historical period. If such
determination is made by reference both to an historical portion and to a future portion
of a period, the amount of the reserve account for the period is the amount of the
reserve at the end of the historical portion of the period and a pro rata portion of the
amount of any projected increase to be credited or decrease to be charged to the
account during the future portion of the period.

    Section 1.167(l)-1(h) requires that a utility must maintain a reserve reflecting the

total amount of the deferral of federal income tax liability resulting from the taxpayer’s
use of different depreciation methods for tax and ratemaking purposes. Taxpayer has
done so. Section 1.167(1)-(h)(6)(i) provides that a taxpayer does not use a
normalization method of regulated accounting if, for ratemaking purposes, the amount
of the reserve for deferred taxes which is excluded from the base to which the
taxpayer’s rate of return is applied, or which is treated as no-cost capital in those rate
cases in which the rate of return is based upon the cost of capital, exceeds the amount
of such reserve for deferred taxes for the period used in determining the taxpayer’s
expense in computing cost of service in such ratemaking. Section 56(a)(1)(D) provides
that, with respect to public utility property the Secretary shall prescribe the requirements
of a normalization method of accounting for that section.

    Section 1.167(1)-1(h)(1)(iii) makes clear that the effects of an NOLC must be

taken into account for normalization purposes. Further, while that section provides no
specific mandate on methods, it does provide that the Service has discretion to
determine whether a particular method satisfies the normalization requirements.
Section 1.167(1)-(h)(6)(i) provides that a taxpayer does not use a normalization method
of regulated accounting if, for ratemaking purposes, the amount of the reserve for
deferred taxes which is excluded from the base to which the taxpayer’s rate of return is
applied, or which is treated as no-cost capital in those rate cases in which the rate of
return is based upon the cost of capital, exceeds the amount of such reserve for
deferred taxes for the period used in determining the taxpayer’s expense in computing
cost of service in such ratemaking. Because the ADIT account, the reserve account for
deferred taxes, reduces rate base, it is clear that the portion of an NOLC that is
attributable to accelerated depreciation must be taken into account in calculating the
amount of the reserve for deferred taxes (ADIT). Thus, the proposed order by the Utility
Law Judge upholding Taxpayer’s position that the NOLC-related deferred tax account
PLR-116998-15 6

must be included in the calculation of Taxpayer’s ADIT is in accord with the
normalization requirements. The “last dollars deducted” methodology employed by
Taxpayer is specifically designed to ensure that the portion of the NOLC attributable to
accelerated depreciation is correctly taken into account by maximizing the amount of
the NOLC attributable to accelerated depreciation. This methodology provides certainty
and prevents the possibility of “flow through” of the benefits of accelerated depreciation
to ratepayers. Under these facts, any method other than the “last dollars deducted”
method would not provide the same level of certainty and therefore the use of any other
methodology is inconsistent with the normalization rules.

    Regarding the third issue, reduction of Taxpayer’s tax expense element of cost of

service, we believe that such reduction would, in effect, flow through the tax benefits of
accelerated depreciation deductions through to rate payers even though the Taxpayer
has not yet realized such benefits. In addition, such adjustment would be made
specifically to mitigate the effect of the normalization rules in the calculation of
Taxpayer’s NOLC-related ADIT. In general, taxpayers may not adopt any accounting
treatment that directly or indirectly circumvents the normalization rules. See generally,
§ 1.46-6(b)(2)(ii) (In determining whether, or to what extent, the investment tax credit
has been used to reduce cost of service, reference shall be made to any accounting
treatment that affects cost of service); Rev. Proc 88-12, 1988-1 C.B. 637, 638 (It is a
violation of the normalization rules for taxpayers to adopt any accounting treatment that,
directly or indirectly flows excess tax reserves to ratepayers prior to the time that the
amounts in the vintage accounts reverse). This “offsetting reduction” would violate the
normalization provisions.

  Based on the representations submitted by Taxpayer, we rule as follows:

1. Under the circumstances described above, the reduction of Taxpayer’s rate base
   by the balance of its ADIT accounts unreduced by its NOLC-related deferred tax
   account would be inconsistent with the requirements of § 168(i)(9) and § 1.167(l)-
   1 of the Income Tax regulations.
2. Under the circumstances described above, the reduction of Taxpayer’s rate base
   by the full amount of its ADIT account balances offset by a portion of its NOLC-
   related account balance that is less than the amount attributable to accelerated
   depreciation computed on a “last dollars deducted” basis would be inconsistent
   with the requirements of § 168(i)(9) and § 1.167(l)-1.

3. Under the circumstances described above, any reduction in Taxpayer’s tax
   expense element of cost of service to reflect the tax benefit of its NOLC would be
   inconsistent with the requirements of § 168(i)(9) and § 1.167(l)-1.

   Except as specifically determined above, no opinion is expressed or implied
   concerning the Federal income tax consequences of the matters described above.
   PLR-116998-15 7

   This ruling is directed only to the taxpayer who requested it. Section 6110(k)(3)
   of the Code provides it may not be used or cited as precedent. In accordance with the
   power of attorney on file with this office, a copy of this letter is being sent to your
   authorized representative. We are also sending a copy of this letter ruling to the
   Director.

                                Sincerely,
   
                                Peter C. Friedman
                                Senior Technician Reviewer, Branch 6
                                Office of Associate Chief Counsel
                                (Passthroughs & Special Industries)
   

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