Public Service Co. v. Town of Seabrook

580 A.2d 702, 133 N.H. 365, 1990 N.H. LEXIS 73
CourtSupreme Court of New Hampshire
DecidedJuly 13, 1990
DocketNo. 89-040
StatusPublished
Cited by22 cases

This text of 580 A.2d 702 (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, 580 A.2d 702, 133 N.H. 365, 1990 N.H. LEXIS 73 (N.H. 1990).

Opinion

Johnson, J.

Defendant appeals the abatement of plaintiffs’ (PSNH) taxes for the years 1983 through 1986. Following trial on PSNH’s petition for abatement of taxes, the Master (Peter V. Mill-ham, Esq.) made a report in favor of PSNH and recommended an abatement of taxes of approximately $30 million. (PSNH is the owner of 35% of the nuclear plant located in the town of Seabrook. There were, in addition, sixteen other owners of the plant, with lesser interests, when this litigation was commenced. All of the owners are collectively referred to as PSNH.) The Superior Court (Contas, J.) approved the master’s report on October 19, 1988. The defendant (Seabrook) presents three questions for our review:

(1) Does the master’s ruling allowing allocation of indirect construction costs to direct non-taxable construction costs on a dollar-for-dollar basis violate the parties’ pretrial stipulation?
(2) Was it error for the master to allow PSNH’s expert, a property appraiser, to testify concerning the non-operable discount factor used to calculate the power plant’s fair market value?
(3) Are the department of revenue administration’s equalization ratios, adopted by the master to determine the power plant’s assessment value, fairly representative of the general level of assessment of property in the town of Seabrook?

For the reasons stated below; we rule in favor of PSNH on issues two and three, but reverse and remand on the first issue.

This case involves the taxation of PSNH’s nuclear power plant, located in the town of Seabrook. In order to determine the amount of tax money PSNH must contribute to Seabrook’s coffers, Seabrook must perform two tasks. First, it must compute the fair market value (FMV) of PSNH’s taxable property located in Seabrook. Issues number one and two, listed above, concern different aspects of this first [368]*368step. Second, Seabrook must use the FMV of PSNH’s property to calculate the assessment value, the value at which a property is taxed. Issue number three concerns this second step.

I. Effect of Pretrial Stipulation

Before trial, the parties signed a stipulation with the following provision:

“5. The methodology to be employed to determine the fair market value of the Seabrook project, an incomplete nuclear power project under construction, shall be the methodology adopted by the Master in PSNH, et al. v. Seabrook, Docket Nos. E-604-79, et al. in his report dated August 24, 1984, as modified upon remand from the New Hampshire Supreme Court in his Report dated October 24,1986. The parties are agreed that any items of pollution control equipment entitled to an exemption pursuant to RSA 72:12-a shall be considered non-taxable property in the determination of fair market value.”

The master in this case approved the stipulation.

The earlier case (“PSNH, /”) referred to in the stipulation was a tax abatement case similar to this one, but involving earlier tax years. Public Serv. Co. of N.H. v. Town of Seabrook, 126 N.H. 740, 496 A.2d 352 (1985). In both cases the parties agreed that the power plant’s FMV should be determined by adding up all costs incurred by PSNH during its construction, subtracting appropriate deductions, and applying a discount factor. Since the plant was not in operation during the years in question, original cost of construction, less discount and deductions, was considered the best measure of FMV.

To determine FMV and, thus, how much of the plant’s total cost is subject to taxation, Seabrook must deduct from the plant’s total cost all expenditures attributable to non-taxable items. Examples of nontaxable items are: (1) equipment and materials located off-site; (2) equipment and materials located on-site but not yet installed; and (3) exempt pollution control equipment.

Direct costs, such as material and labor, are easily attributable to taxable or non-taxable items, and there is no dispute between PSNH and Seabrook over which direct costs are taxable and which are not. Most indirect costs, however, must be allocated between taxable and non-taxable property, and they are more difficult to attribute to specific items. Engineering, inspection, public relations, administration, and legal expenses are all examples of indirect costs.

[369]*369In PSNH, I, as in this case, a dispute arose over how to tax indirect construction costs. Because these indirect costs are difficult to allocate precisely between taxable and non-taxable direct costs while construction is on-going, Seabrook wanted to treat most indirect costs as taxable until the year construction was complete. At that time, Seabrook would make a careful calculation of which indirect costs were attributable to taxable items and which were not.

PSNH, on the other hand, protested that Seabrook’s method would unfairly result in current taxation of non-taxable items. As a solution, PSNH proposed an allocation of indirect costs between taxable and non-taxable direct costs on a dollar-for-dollar basis. That is, PSNH wished to calculate the percentage of direct costs that were non-taxable and then apply that percentage to the indirect costs to arrive at a fair approximation of non-taxable indirect costs.

The master in the present case was also the master in PSNH, I. In that case, he ruled in favor of Seabrook on the issue of taxing indirect costs. PSNH filed a motion to clarify, again urging the master to make a dollar-for-dollar allocation of indirect costs to non-taxable direct costs. The master denied the request, and PSNH did not appeal this denial.

In the trial of the present case, PSNH again argued before the master that a portion of the indirect costs of the power plant should be allocated to the non-taxable direct costs on a dollar-for-dollar basis. Although before the trial in this case began, Seabrook was aware that PSNH planned to argue the dollar-for-dollar allocation position, Seabrook instructed its expert witness that the Town was not required to litigate the issue of allocation of indirect costs beyond the scope of the master’s decision at the first trial. At the close of this trial, however, the master ruled in favor of PSNH on the allocation issue.

Seabrook now argues on appeal that the master’s ruling violated the pretrial stipulation. Seabrook urges us to interpret the stipulation, quoted above, as precluding a ruling in favor of PSNH on the issue of taxing indirect costs. By ruling in PSNH’s favor on this issue, Seabrook argues, the master changed the methodology used in the first trial to determine the power plant’s FMV, and thus violated the parties’ pretrial stipulation.

PSNH disagrees with Seabrook’s interpretation of the pretrial stipulation. According to PSNH, the phrase “the methodology adopted by the Master in PSNH, et al. v. Seabrook [to determine FMV]” refers only to the general methodology used in PSNH, /; that [370]*370is, calculating total cost, subtracting deductions, and applying a discount factor. It thus does not refer, PSNH argues, to determinations as specific as the allocation of indirect costs. We find the stipulation ambiguous, and therefore remand for a determination of the parties’ intent.

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Bluebook (online)
580 A.2d 702, 133 N.H. 365, 1990 N.H. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-co-v-town-of-seabrook-nh-1990.