November 8, 2023

Public Utility Commission Rules Taxpayer Entitled to Collect Tax Expense, Notwithstanding NOLs

Holland & Knight Alert
Brad M. Seltzer | Mary Kate Nicholson

A Missouri regulated public utility had net operating losses (NOLs) not attributable to accelerated depreciation, so the normalization rules did not apply. The Missouri Public Service Commission (MPSC) confirmed that tax expense is a hypothetical construct computed by multiplying the rate base by the rate of return and by the statutory tax rate. The MPSC rejected an argument that no tax expense should be recovered where the taxpayer has no current tax liability.

The taxpayer regularly engaged in the acquisition of distressed water systems in need of substantial repairs and upgrades. The company elected out of the Modified Accelerated Cost Recovery System (MACRS) and thus claimed straight line depreciation for both book (regulatory) and tax purposes. Even with the use of slower depreciation methods and longer lives, the taxpayer incurred substantial NOLs from operating expenses.


Holland & Knight Insight: Because there was no difference between the depreciation methods used for regulatory and tax purposes, the normalization rules of Section 168(i)(9) of the Internal Revenue Code did not apply. Ordinarily, those rules would preclude the reduction of rate base by accumulated deferred income taxes (ADIT) to the extent the NOLs were attributable to accelerated depreciation.

In its rate case, MPSC staff and public advocate witnesses asserted that because the normalization rules did not apply, and because the taxpayer had no current tax liability because of the NOLs, the taxpayer should not be entitled to recover any tax expense from customers in its rates. The taxpayer's expert witness testified that tax expense for ratemaking purposes does not depend upon whether there is a current tax liability; rather, it is an artificial construct calculated by multiplying rate base by the authorized rate of return and then by the maximum statutory tax rate (not the effective tax rate).

In late October, the MPSC agreed with the taxpayer and ordered the company to calculate tax expense pursuant to the construct. It also noted that, although the NOLs for the test year were larger than in prior years, this was the methodology the MPSC staff had allowed in those years without objection, and the MPSC staff had not explained why a deviation from that approach was appropriate.


Holland & Knight Insight: Although there is a wealth of authority in the form of IRS private letter rulings regarding the treatment of NOLs under the normalization rules, there is a dearth of guidance on the fundamental regulatory principles underlying the calculation of tax expense when NOLs are attributable to operating losses rather than depreciation differences. This decision by the MPSC provides helpful guidance reaffirming the basic regulatory construct for the calculation of tax expense for regulatory purposes.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

Related Insights