Public Service Co. v. State

153 A.2d 801, 102 N.H. 150, 1959 N.H. LEXIS 36
Supreme Court of New Hampshire·Decided June 30, 1959·No. No. 4731·Published·Cited by 15 cases

Opinion

Duncan, J.

The chief issue relating to the determination of rate base arises out of the circumstance that Public Service Company holds certain “emergency certificates” issued under the [153]*153National Defense Production Act of 1950. U.S.C. A., 50 App. s. 2153; Exec. Order No. 10193. These certificates entitle it under section 168 of the Internal Revenue Code of 1954 to an income tax deduction for accelerated amortization with respect to the facilities to which the certificates relate, in lieu of depreciation under section 167. 26 U. S. C. A., s. 168 (a). The company is thus permitted to write off the entire cost of the facility or any part thereof in a period of five years, after which no reduction in income taxes with respect to the cost so written off is permitted. 4 Mertens, Law of Federal Income Taxation, s. 23.135. In comparison with what the tax would be if only the usual depreciation over the useful life of the facility were taken, this results in a substantial reduction of income tax liability for the five years in question, and in a higher tax over the balance of the life of the property.

Under accounting procedures established by the Commission, the company has established a “restricted surplus account” reflecting the difference between the actual income tax paid after deductions for accelerated amortization, and the amount which the tax would have been if computed with deductions for normal depreciation only. This “restricted surplus,” as indicated by the report of the Commission in this case, is held by the utility “against the future income tax liability ... in order to protect the future ratepayers.”

For rate-making purposes however, the company’s expense for income taxes for the test year was “normalized” by an upward adjustment of $685,386, the effect being to permit recovery of income tax liability through rates at a constant level, based upon normal depreciation of the company’s property throughout its useful life rather than at a lower level for the five-year period of accelerated amortization, followed by a higher level for the remaining life of the property.

In establishing a rate base, the Commission deducted from the working capital requirement as computed by the companies the sum of $2,702,000 on account of “Deferred Income Tax Availability.” This amount the Commission found to be the average amount of the “restricted surplus” available during the test year.

With respect to the average available surplus the Commission found: “Through the normalization of these deferred Federal Income Taxes . . . the ratepayer definitely provides these funds, and the companies have the use of them until the deferred taxes are paid. Therefore, the investor should not be allowed a return on [154]*154funds he did not provide. When the deferred Federal Income Taxes are paid, and the investor has to replenish these monies, at that time he is entitled to a return on the funds so invested. If the Companies elect to invest deferred Federal Income Tax funds in assets other than plant or Working Capital, this amount should still be deducted from the rate base, as the ratepayers have provided these funds.”

The action of the Commission in deducting from working capital the average availability in the test year of the deferred income tax surplus is attacked by the companies upon grounds that it violates the intent of Congress in enacting section 168 of the Internal Revenue Code, that it violates the provisions of RSA 378:27, 28,, and that it operates to deprive the company of $330,770 in additional revenue and hence of a fair return upon its property, in violation of the New Hampshire Constitution. The State on the other hand, supports the principle of deducting the average availability of the deferred federal income tax surplus, but contends that the Commission erred in not deducting the average availability for the year 1959, when the rates would become effective, and which would amount to $3,706,000, rather than the amount for the test year ended May 31, 1958, which it did deduct.

The principal question is whether the availability of the funds which accrue to the “restricted surplus account” as a result of the provisions of section 168 should inure to the benefit of the investor or of the consumer. The company points out that the funds are available only because the investor has already furnished the plant which gives rise to the right to emergency certificates. This circumstance does not appear to us to be decisive. The plant in question, with normal depreciation taken, constitutes a part of the rate base upon which the consumer is required to pay an annual return. Thus provision is made for compensation of the investor for the use of the property which he has provided. To the extent that tax benefits result to the company from accelerated amortization, the investor is relieved from the need for providing working capital for the company, or the company is relieved of the burden of obtaining additional financing to provide such working capital. Current ratepayers, however, receive no benefit from accelerated amortization, since they pay rates calculated on a basis of a normalized tax,, as if the company were taxed upon its income reduced by unaccelerated depreciation only. We cannot say that the Commission’s conclusion that as between the investor and the [155]*155consumer the equities in the surplus in question lie with the consumer and that its average availability should be deducted from working capital was “clearly unreasonable or unlawful.” RSA 541:13.

Adoption of the view advanced by the companies would require the consumer to pay a return upon funds available for working capital as a result of the provisions of section 168. These funds are available at no cost to the investor, from rates paid by the consumer. They are in no proper sense a loan from the government, nor do they represent taxes owed to the government. They are an asset of the company in part currently and temporarily available for its use, which ultimately may or may not be required to satisfy future income taxes. How long the company will be able to defer tax liability will necessarily be affected by the interrelation of a number of factors which are subject to change, such as the present provisions of the tax and defense statutes, the rate of addition of new facilities by the company, and the possible disposition of portions of its property during its depreciable life.

The companies suggest that the “restricted surplus account” is analogous to the “Jacona Reserve” held in Chicopee Mfg. Co. v. Company, 98 N. H. 5, 13, 14, to have been erroneously deducted from rate base. The “Jacona Reserve,” however, was a book profit which had been realized upon an involuntary transfer of a capital asset, and reinvested in a similar asset upon which the investors were clearly entitled to a return. It has no true similarity to the surplus account established out of income furnished by the ratepayers as a result of “normalized” taxes, which is held against future tax expense but is presently available as working capital.

Despite the holding of Detroit v. Federal Power Commission, 230 F. (2d) 810, 822 (D. C. Cir. 1955), relied upon by the companies, the fact is that Congress has not undertaken to provide what effect, if any, section 168 shall have upon rate making. The congressional purpose was accomplished when the company was encouraged to undertake the construction of facilities deemed “necessary in the interest of national defense.” See United States v. Allen-Bradley Co.,

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Public Service Co. v. State, 153 A.2d 801, 102 N.H. 150, 1959 N.H. LEXIS 36 (N.H. 1959).

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