Public Service Co. v. Town of Seabrook

496 A.2d 352, 126 N.H. 740, 1985 N.H. LEXIS 356
CourtSupreme Court of New Hampshire
DecidedJuly 3, 1985
DocketNo. 84-504
StatusPublished
Cited by6 cases

This text of 496 A.2d 352 (Public Service Co. v. Town of Seabrook) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Service Co. v. Town of Seabrook, 496 A.2d 352, 126 N.H. 740, 1985 N.H. LEXIS 356 (N.H. 1985).

Opinion

Brock, J.

The plaintiffs, all utility companies, are co-owners of Seabrook Station, a nuclear electric generating plant in the process of construction. They sought an abatement of property taxes levied against the project by the defendant town for the years 1978 through 1982, inclusive. Abatement having been denied by the selectmen, the plaintiffs petitioned the superior court pursuant to RSA 76:17 (Supp. 1983). The case was heard by a Master (Peter V. Millham, Esq.), who recommended that an abatement be granted. The Superior Court (Temple, J.) approved the master’s recommendation, and the town appealed.

The principal issues before us are: (1) whether the master erred when he ruled that the plaintiffs’ cost of obtaining money for construction, or AFUDC, was not “sufficiently tied to the value of the real estate” to be included as part of the plant’s value for tax purposes; (2) whether certain items of office equipment, spare parts, building materials, and construction equipment were properly excluded from the master’s computation of the plant’s value; and (3) whether the master erred in his computation of a “discount factor,” [742]*742i.e., a reduction in his assessment of the property’s value “by a percentage intended to offset the uncertainties involved in purchasing an uncompleted plant, including the uncertainties as to the cost of completion, the time of completion, whether or not the plant will be completed, and what items may or may not be included in the rate base.”

For the reasons which follow, we reverse and remand the case to the superior court on the first issue, and affirm on the second and third.

I. AFUDC

Allowance for funds used during construction, or AFUDC, is a designation used in the Uniform System of Accounts prescribed by the Federal Energy Regulatory Commission, 18 C.F.R. pt. 101, at 312-13 (1984). Because it is impossible to say precisely which money borrowed by a utility, or obtained through equity financing, is used in a particular project, AFUDC has been developed as a mechanism by which to approximate the actual costs of financing a project like Seabrook Station. See id.

In this State, a utility may not recover amounts allocated to AFUDC from its ratepayers while construction is in progress, but may do so when the project is completed and generating electricity. See Appeal of Public Serv. Co. of N.H., 122 N.H. 919, 920, 451 A.2d 1321, 1322 (1982). Because the plant here was under construction during all of the tax years in dispute, the question before the master was whether AFUDC should be considered part of the plant’s value for property tax purposes during those years.

Under our construction of the taxing statutes, “[taxable] value is the market value, or the price which the property will bring in a fair market, after reasonable efforts have been made to find the purchaser who will give the highest price for it.” Company v. Gilford, 67 N.H. 514, 517, 35 A. 945, 946-47 (1894), quoted in Public Service Co. v. New Hampton, 101 N.H. 142, 146, 136 A.2d 591, 595 (1957).

In New Hampton, we recognized the difficulty of determining the market value of property owned by a public utility, especially when the utility has a legal monopoly on the business for which the property can most profitably be used. Id. We noted, however, that in such cases a court could view the owner as a hypothetical buyer, id. at 146-47, 136 A.2d at 595, whose idea of a fair purchase price would depend largely on “the price [it] would have to pay for building a new equivalent plant.” Id. at 147-48,136 A.2d at 596.

[743]*743All of the parties here, and the master, agreed that this “cost approach,” or a variant of it, was the appropriate method of determining market value for purposes of this case. The master found that:

“there is some cost of money involved in the construction of any building, and to the extent that the builder has been at least as efficient as the average other builder, the average cost of money during the construction phase of any building is included in the cost of that building and in its resale value to some degree.”

We cannot reconcile this finding of fact by the master with his refusal to include any part of the accrued AFUDC in his assessment of the plant’s value. That refusal was based in part on the master’s concern that an inclusion of AFUDC would result in a higher evaluation of an inefficiently built plant, due to high financing costs, than of an efficiently built one, with lower financing costs.

The concern was well placed, but the court’s conclusion was too drastic. The master had already acknowledged that any large construction project would involve some cost of financing that could properly be included in its taxable value. The evidence at trial could support a finding that, for a typical nuclear generating plant, that cost would be extremely large.

The court then should have determined how much AFUDC a typical utility, or group of utilities, would reasonably expect to have accumulated on each of the tax assessment dates in question, when constructing a plant of the same size and type as Seabrook Station, with a builder of average efficiency. This amount, added to the other costs of construction, represents the price that a hypothetical buyer would expect to pay “for building a new equivalent plant,” and is thus the proper valuation amount under the rule of New Hampton.

For example, if the court finds on remand that a typical group of utilities in the plaintiffs’ position would reasonably have expected the project to be completed before 1982, that fact should be reflected in the property’s valuation for the later tax years.

Our decision in Appeal of Public Service Company of New Hampshire, 122 N.H. 919, 451 A.2d 1321 (1982), does not require a different result. In that case, we refused to recognize AFUDC as “income” for purposes of the franchise tax, former RSA chapter 83-B, current version at RSA chapter 83-C (Supp. 1983), because it did not “have any economic value to the franchise for rate purposes.” Appeal of Public Serv. Co. of N.H., supra at 923, 451 A.2d at 1324. As we have repeatedly held, “the market value of a public utility for [744]*744property tax purposes is not limited to the value placed on it for rate-making purposes.” New England Power Co. v. Littleton, 114 N.H. 594, 603, 326 A.2d 698, 704 (1974) (citing New Hampton, 101 N.H. at 149, 136 A.2d at 597).

Whether AFUDC will eventually be included in the rate base of the plaintiff utilities is not directly relevant here. Under the cost approach, which we agree is appropriate in this case, the proper question is how much AFUDC a buyer in the plaintiffs’ position would normally expect to accumulate during construction. That is the question the court should address on remand.

II. Exclusion of Items

The dispute in this area concerned both the scope of RSA 72:6 and the meaning and legislative history of RSA 72:8.

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Bluebook (online)
496 A.2d 352, 126 N.H. 740, 1985 N.H. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-co-v-town-of-seabrook-nh-1985.