Supreme Court Rules for Taxpayer in PPL

[Note: Miller & Chevalier filed a brief in this case in support of PPL on behalf of American Electric Power Co.]

The Supreme Court this morning unanimously ruled in favor of PPL in its case involving the creditability of the U.K. Windfall tax.  See our prior coverage here.  The opinion was authored by Justice Thomas, with Justice Sotomayor adding a separate concurring opinion.

The Court’s opinion is fairly succinct.  Viewing the government’s position as more formalistic, the Court stated that it would “apply the predominant character test [of the foreign tax credit regulations] using a commonsense approach that considers the substantive effect of the tax.”  The Court stated that the regulatory test looks to “the normal manner is which a tax applies,” and “the way a foreign government characterizes its tax is not dispositive with respect to the U.S. creditability analysis.”

Applying this approach, the Court held that “the predominant character of the windfall tax is that of an excess profits tax,” which makes it creditable.  By contrast, the Court found that the government’s attempt to characterize the tax as being imposed on the difference between two values was unrealistic, noting that the U.K. statute’s “conception of ‘profit-making value’ as a backward-looking analysis of historic profits is not a recognized valuation method,” but instead “is a fictitious value.”  The Court agreed with PPL’s argument that the equivalency of the tax with a more typical excess profits tax could be demonstrated through an algebraic reformulation of the formula for computing the tax.  The Court addressed this point in some detail, putting this opinion near or at the top of the rankings in the category of most algebraic formulas found in a single Supreme Court opinion.  Declaring that it must look at “economic realities, not legal abstractions,” the Court concluded that it must “follow substance over form and recognize that the windfall tax is nothing more than a tax on actual profits above a threshold.”

Justice Sotomayor’s separate concurring opinion focused on an issue that featured prominently in the oral argument (see our report here) — namely, how the analysis is affected by the way the tax applied to a few “outlier” taxpayers who did not operate for the full four-year period governed by the tax.  Echoing the position taken in an amicus brief filed by a group of law school professors, Justice Sotomayor stated that the treatment of these outliers indicated that “the windfall tax is really a tax on average profits” and ought to be viewed as a tax on a company’s value, not net income.  Justice Sotomayor acknowledged, however, that her position “cannot get off the ground” unless the Tax Court was wrong in stating in Exxon Corp. v. Commissioner, 113 T.C. 338, 352 (1999), that “a tax only needs to be an income tax for ‘a substantial number of taxpayers’ and does not have to ‘satisfy the predominant character test in its application to all taxpayers.’”  Since the government indicated at oral argument that it did not disagree with the Tax Court on that point, Justice Sotomayor concluded that she should not base her analysis of the case on her “outlier” argument and instead would join the Court’s opinion.  Interestingly, Justice Kagan did not join the concurrence even though she was the Justice who appeared at the oral argument to advocate most strongly for the “outlier argument” made in the amicus brief.

For its part, the majority briefly noted this argument in a footnote at the end of its opinion, and stated that it would “express no view on its merits” since the government had not preserved the argument.  Notwithstanding that disclaimer, the body of the Court’s opinion provides ammunition for persons who might wish to oppose Justice Sotomayor’s position in future cases.  The Court stated that the predominant character test means that “a foreign tax that operates as an income, war profits, or excess profits tax in most instances is creditable, even if it may affect a handful of taxpayers differently.”  Another item in the opinion that could find its way into briefs in future foreign tax credit cases is the Court’s observation that the 1983 regulation at issue “codifies longstanding doctrine dating back to Biddle v. Commissioner, 302 U.S. 573, 578-79 (1938).”  In its court of appeals briefing in PPL, the government had denigrated the relevance of pre-regulation case law, stating that the regulations merely “incorporate certain general standards from those cases,” and arguing that PPL “cannot rely on pre-regulation case law—to the exclusion of the specific regulatory test—to make its case.”  The Court’s opinion will lend support to litigants who want to rely on pre-regulation case law in future foreign tax credit cases.

The Court’s opinion in PPL effectively resolves the Entergy case as well.  As we have reported, the government filed a protective petition for certiorari in Entergy, but it has never suggested that PPL and Entergy should be decided differently.  Thus, in the near future, probably next Tuesday, the Court can be expected to issue an order denying that certiorari petition and thereby finalizing Entergy’s victory in the Fifth Circuit.

PPL – Supreme Court opinion

Justices Explore a Variety of Topics in PPL Oral Argument

February 25, 2013 by  
Filed under International, PPL, Supreme Court

[Note: Miller & Chevalier filed a brief in this case in support of PPL on behalf of American Electric Power Co.]

Seven Justices (all but Justices Thomas and Alito) asked questions in the oral argument in PPL on February 20, but they did not obviously coalesce around any particular view of the case. Even in cases where the questioning can be more neatly categorized, it is always hazardous to try to predict the outcome based on the questioning at oral argument. At this point, the parties’ work is done, and they are reduced to waiting for a decision, which is likely to come down in May or June — certainly no later than the end of June.

Former Solicitor General Paul Clement argued first on behalf of PPL.  Justice Sotomayor began the questioning of Mr. Clement and asked him the most questions.  She pressed him on why the tax could not be regarded as a tax on value.  She also expressed “fear” over what she saw as the breadth of the taxpayer’s position, characterizing PPL as seeking a rule that a tax is creditable “anytime a tax uses estimates of profits.”  Mr. Clement responded that this “emphatically” was not the taxpayer’s position, explaining that normal valuation is prospective and hence taxes that use future estimates for valuation will always fail the realization requirement for creditability.  In response to Justice Sotomayor’s suggestion that using actual profits was a reasonable way to “find the original flotation value,” Mr. Clement responded that “you would never do that in any normal valuation” because “the first rule of thumb” for those kinds of historical valuations “is to avoid hindsight bias.”

Several other Justices also asked questions of Mr. Clement, focusing on different issues of interest to them.  Justice Kennedy asked a series of questions exploring the significance of the tax being labeled as a tax on value, or reasonably viewed in part as “a tax on low value,” notwithstanding that it is also logically seen as a tax on profits.  Mr. Clement responded that the substance of the tax is “exactly like a U.S. excess profits tax” but did not “look at a normal rubric of value” because “the only measure of value here is by looking at retrospective earnings over a 4-year period.”  Justice Ginsburg asked whether there were other examples of taxes like the U.K. Windfall Tax.  Justice Breyer asked a series of questions exploring the operation and rationale of the tax as it applied to companies that had not been in operation for the full four-year period in which historical profits were measured.  Mr. Clement stated that even these companies did not pay an amount of tax that exceeded their profits and, moreover, that creditability is to be determined by the “normal circumstances in which it applies,” not by the outliers.

One perhaps surprising aspect of the argument was the attention paid to the amicus brief filed by a group of law professors.  Justice Kagan’s extensive questioning of Mr. Clement focused on an argument introduced by that amicus brief – namely, that the tax should not be treated as an income tax because of the way it treats the “short-period” outliers by looking to their average profits, not total profits, in determining the amount of the taxable “windfall” received.  Specifically, the tax rate on those few companies who did not operate for the entire four-year period was higher than for the vast majority of the companies.  Mr. Clement noted that the reason for this was because the taxing authorities “were trying to capture the excess profits during a period in which there is a particular regulatory environment” conducive to excess profits; for the short-period taxpayers the way to do this was to “hit them with a reasonably tough tax in year one but year two, three, and four they were in a favorable regulatory environment and they get no tax at all.”  (Justice Breyer later stated that, “because time periods vary, rates will vary, but I don’t know that that matters for an income tax.”)  Mr. Clement also emphasized here, as he did later to Justice Breyer, that the outlier case does not control creditability, which is determined based on the normal circumstances in which the tax applies.  The amicus brief was also mentioned briefly by Justice Sotomayor.

After Assistant to the Solicitor General Ann O’Connell took the podium, Chief Justice Roberts engaged her on the amicus brief as well, pointing out that the argument discussed by Justice Kagan was “not an argument that you’ve made.”   When Ms. O’Connell agreed, but pointed to the amicus brief, the Chief Justice remarked that “I don’t think we should do a better job of getting money from people than the IRS does.”  In response to Justice Sotomayor, Ms. O’Connell sought to clarify the government’s position by distinguishing between two different points made in the amicus brief.  With respect to the “aspect of the amicus brief that says if it’s bad for one, it’s bad for all,” that is not the government’s position; the government agrees with PPL that outliers do not control credibility.  But with respect to the argument of the amicus that Justice Kagan had discussed in connection with the outliers – namely, that “it taxes average profits, not total profits” – Ms. O’Connell maintained that she was not saying that the argument was wrong, only that the government’s “principal argument” was that the predominant character of the tax “is not an income tax because of the way that it applies to everybody else.”  Justice Kagan took the opportunity to state that she believed the argument developed in the amicus that had formed the basis for her questioning was “the right argument.”

Apart from the amicus brief discussion, Ms. O’Connell was questioned by Justices Scalia and Breyer on whether true valuations are based on historical profits, rather than direct market evidence of value.  She responded that this was a good way to determine the value of the companies at the time of flotation.  In response to questioning from the Chief Justice about how to treat a tax laid on income, Ms. O’Connell stated that a tax just “based on last year’s income” would be an income tax regardless of its label, but if the income were multiplied by a price/earnings ratio, it would be a tax on value.  The topic of deference also made a brief appearance, with Justice Breyer suggesting that deference might be owed to the experts at the Tax Court and Justice Ginsburg wondering whether deference was owed to the government’s interpretation of its own regulations.  The Chief Justice responded to the latter point by remarking that there did not appear to be a major dispute about the meaning of the regulatory language and hence that sort of deference “does not seem to move the ball much.”

Justice Breyer chimed in with a detailed discussion of the mechanics of the tax, suggesting that this indicated that the “heart of the equation in determining this so-called present value is nothing other than taking average income over the four-year period.”  Ms. O’Connell disagreed, and after considerable back-and-forth, Justice Breyer remarked that he had “said enough” and he would go back and study the transcript to decide who was right.

Towards the end of the argument, Justice Ginsburg asked whether the regulation could be changed “so it wouldn’t happen again” if the taxpayer prevailed.  Ms. O’Connell said that perhaps it could be made “even more clear than it already is,” but Justice Breyer wondered why it should be changed to make American companies “in borderline cases have to pay tax on the same income twice.”  Ms. O’Connell disputed that characterization, stating that the taxpayer did get a foreign tax credit for payments it made of the standard British income tax and it would still get a deduction for the U.K. Windfall Tax payments if the government prevailed.  Ms. O’Connell closed her argument by stating that the tax was “written as a valuation formula, and it’s not just written that way, but that’s the substance of what it’s trying to do.”

PPL Oral Argument Transcript

 

 

Briefing Complete in PPL

February 13, 2013 by  
Filed under International, PPL, Supreme Court

[Note:  Miller & Chevalier filed an amicus brief in this case on behalf of American Electric Power Co. in support of PPL.]

PPL has filed its reply brief in the Supreme Court, thus completing the briefing.  The brief responds at length to the government’s contention that the U.K. Windfall Tax should be viewed as a tax on value because it assertedly resembles “familiar” and “well-established” methods of measuring value.  In fact, the reply brief maintains, the tax “is a tax on value in name only.”  The reply brief observes that the tax involves “a backward-looking calculation driven entirely by actual, realized profits” and that it is “imposed on the income-generating companies themselves,” rather than on “the holder of the valuable asset.”  The reply brief then states that the rest of the government’s arguments “all depend on the flawed premise that form trumps substance when it comes to the base of a foreign tax.”  The difficulties with that premise were addressed extensively in PPL’s opening brief and are further addressed in the reply brief.

Oral argument is set for February 20.

PPL – Taxpayer’s Supreme Court Reply Brief

 

Amicus Brief Filed in Support of the Government in PPL

February 3, 2013 by  
Filed under International, PPL, Supreme Court

[Note:  Miller & Chevalier filed amicus briefs in this case on behalf of American Electric Power Co. in support of PPL in both the Third Circuit and the Supreme Court.]

A group of legal academics, led by Professor Michael Graetz of Columbia who authored the brief, has filed an amicus brief in PPL in support of the government.  The brief argues that the UK tax should be treated as a tax on value, in line with the labels attached to it by Parliament, because it “was designed to redress both undervaluation at privatization . . . and subsequent lax regulation.”  Maintaining that adopting PPL’s position “would open the door to claims of foreign tax credits for foreign levies based on value, not income,” the brief advances a somewhat creative policy rationale for affirming the Third Circuit that goes beyond anything argued by the government.  Taking a perhaps unduly optimistic view of the political process, the brief claims that a reversal by the Supreme Court “would provide a road map to foreign governments, encouraging them to shift the costs of privatization to U.S. taxpayers by initially undervaluing public assets and companies sold to private interests and subsequently imposing a retroactive levy to compensate for the previous undervaluation.”

Although he has spent most of his career in academia (serving stints at Treasury from 1969-72 and 1990-92), Professor Graetz is not without Supreme Court experience.  He briefed and argued Hernandez v. Commissioner, 490 U.S 680 (1989) on behalf of the taxpayer, arguing (unsuccessfully) for the position that adherents of the Church of Scientology were entitled to a charitable contribution deduction for payments made to the Church for “auditing” and “training” services.

Also linked below is the amicus brief filed by Patrick Smith, et al., which was noted in an earlier post, but was not available in an electronic version at the time.

PPL – Supreme Court Amicus Brief of Law Professors in Support of the Government

PPL – Supreme Court Amicus Brief of Patrick Smith, et al. in Support of PPL

Government Brief Filed in PPL

January 15, 2013 by  
Filed under International, PPL, Supreme Court

[Note:  Miller & Chevalier filed amicus briefs in this case on behalf of American Electric Power Co. in support of PPL in both the Third Circuit and the Supreme Court.]

The government has filed its response brief in the Supreme Court in PPL.  The arguments in the brief do not closely track the analysis of the Third Circuit’s opinion.  Indeed, the government pointedly distances itself from the Third Circuit’s heavy reliance on Treas. Reg. § 1.901-2(b)(3)(ii), Ex. 3.  The Third Circuit had suggested that PPL’s position was foreclosed by Example 3, but the government’s Supreme Court brief suggests only that the example provides a “useful analogy,” while acknowledging that “the example is not directly applicable because it analyzes imputed gross receipts rather than actual gross receipts.”  [See our prior observations on Example 3 here.]

Instead, the government’s brief asks the Supreme Court to accept the characterization of the U.K. Windfall Tax as “a tax on value,” rather than an income tax.  According to the government, “[t]hat is so both because the U.K. government wrote it as a tax on value and because a company’s windfall tax liability is determined pursuant to a method of valuing property that is familiar to U.S. tax law,” where “it is common to calculate the value of property by taking into account the property’s ability to generate income.”  The brief stops short of declaring that the label attached to the tax by Parliament is “determinative,” but asserts that “the ‘labels’ and ‘form’ that a foreign government uses to formulate a tax are relevant.”

PPL’s reply brief is due February 13, with oral argument scheduled for February 20.

PPL- Supreme Court Brief for the Commissioner

Supreme Court Briefing Underway in PPL

January 4, 2013 by  
Filed under International, PPL, Supreme Court

[Note:  Miller & Chevalier filed amicus briefs in this case on behalf of American Electric Power Co. in both the Third Circuit and the Supreme Court.]

The taxpayer has filed its opening brief in the Supreme Court in PPL Corp. v. Commissioner, No. 12-43, a foreign tax credit case that we have covered extensively on its journey to the Court.  PPL’s brief heavily criticizes the formalism of the government’s position, stating that “the Commissioner would have the labels and form a foreign country employs, and not the substance of the tax it imposes, determine how the tax should be treated for purposes of U.S. tax law.”  Once that formalistic approach is rejected, PPL argues, this becomes an “easy case” because “[t]here is no real dispute that the U.K. windfall tax is, in substance, an excess profits tax in the U.S. sense.”

Two other companies with current disputes regarding the creditability of the U.K windfall tax — Entergy Corp. and American Electric Power Co. — filed amicus briefs in support of PPL.  The Entergy brief contains a detailed description of how the U.K. windfall tax came to be enacted in its particular form, and it states that the Third Circuit decision “disregards the real operation of the tax at issue.”  The AEP brief contains a detailed description of the prior administrative treatment of excess profits taxes and argues that the operation and effect of the U.K. windfall tax is akin to that of a traditional U.S. excess profits tax that has always been regarded as creditable.

Another amicus brief was filed by the Southeastern Legal Foundation, the Chamber of Commerce, the Cato Institute, and the Goldwater Institute.  That brief criticizes the government’s position as “opportunistic and inconsistent with the government’s usual emphasis on substance over form.”  Patrick Smith also filed an amicus brief focusing on the operation of the regulations.

The government’s brief in response is due January 14.  Oral argument has been scheduled for February 20.

PPL – Supreme Court opening brief for PPL

PPL – Supreme Court Amicus Brief of American Electric Power Co.

PPL – Supreme Court Entergy Amicus Brief

PPL – Supreme Court Amicus Brief of Southeastern Legal Foundation, et al.

Supreme Court Agrees to Hear Foreign Tax Credit Issue in PPL

October 29, 2012 by  
Filed under Entergy, International, PPL, Supreme Court

The Supreme Court this morning granted PPL’s petition for certiorari and will decide the question of the availability of the foreign tax credit for payments of the U.K. Windfall Tax on which we have reported extensively before.  See here and here. The Court took no action on the government’s petition for certiorari in the companion Entergy case from the Fifth Circuit.  That is a common practice for the Court when two cases present the same issue.  The Court will “hold” (that is, continue to take no action on it) the Entergy petition until it issues a decision in PPL, and then it will dispose of the Entergy petition as appropriate in light of the PPL decision.

PPL’s brief is due December 13.  The case likely will be argued in February or March, and a decision can be expected before the end of June.

(In case you are wondering why the Court is issuing orders on a day when the rest of Washington is shut down because of a hurricane, it is something of a Court tradition to stay open when the rest of the government is closed.  In 1996, the Court heard oral arguments (as it is also doing today) on a day when the city was hit with a paralyzing blizzard.  The Court sent out four-wheel drive vehicles to bring the Justices to the Court.)

Supreme Court Expected to Act on Windfall Tax Petitions in Late October

October 4, 2012 by  
Filed under Entergy, International, PPL, Supreme Court

In our previous post discussing the pending requests for Supreme Court review of the question of the creditability of the U.K. Windfall Tax, we noted that the Court had scheduled consideration of the PPL cert petition for its October 5 conference.  The Court has now postponed that consideration until its October 26 conference.  The reason for the change is to allow the Court to consider the PPL petition in tandem with the government’s petition in Entergy.

This postponement allows the Court to consider the issue with the benefit of an adversarial presentation.  As you will recall, the government “acquiesced” in PPL’s cert petition on the theory that the Court should resolve the circuit conflict, and therefore there are no briefs in that case arguing that the Court should deny certiorari.  The same is not true in Entergy, where the taxpayer vigorously argues that the Court should deny certiorari in both cases because the issue is not sufficiently significant to warrant Supreme Court review.  Entergy notes that there are only three taxpayers directly affected by the Windfall Tax issue and asserts that the Third Circuit and Fifth Circuit, though reaching different outcomes on the specific issue, do not disagree “on matters of fundamental principle” regarding the foreign tax credit provisions.  Rather, Entergy characterizes the circuit conflict as reflecting “an exceedingly narrow and technical disagreement” limited to how those principles should apply to the U.K. Windfall Tax.  In its reply brief, the government acknowledges that there are only three directly affected taxpayers, but argues that there is a difference between the two circuits on the “proper analytical approach” to foreign tax credit issues that could potentially lead to disparate results in cases involving other foreign taxes.

As a result of the schedule change, the Court will likely announce whether it will review the issue on its October 29 order list.  It is possible, if certiorari is granted, that the Court would make that announcement on October 26 in order to give the parties a head start on the briefing.

Entergy – Taxpayer’s Brief in Opposition to Certiorari

Entergy – Government Reply Brief in Support of Certiorari

Government Urges Supreme Court to Consider Foreign Tax Credit Issue

September 5, 2012 by  
Filed under Entergy, International, PPL, Supreme Court

As previously reported here a few weeks ago, PPL filed a petition for certiorari asking the Supreme Court to review the Third Circuit’s decision denying a foreign tax credit for U.K. Windfall Tax payments.  Given that the Fifth Circuit had decided the same issue in the opposite way in the Entergy case, there was a significant possibility that the government would not oppose certiorari, but instead would urge the Court to resolve the circuit conflict.

The government has now decided that its interests in resolving the conflict and potentially securing a reversal in Entergy outweigh its interest in preserving its victory in PPL, and accordingly it has filed an “acquiescence” in PPL urging the Court to hear the case.  In that brief, the Solicitor General makes his case for why he believes PPL was correctly decided and also for why the issue is sufficiently important to justify Supreme Court review.

On the first point, the government’s brief rejects the characterization of the U.K. Windfall Tax as an “excess profits” tax.  Instead, the government says, it is “a tax on the difference between the price at which each company was sold at flotation and the price at which it should have been sold, based on its ability to generate income.”

On the latter point, the government acknowledges both that the “specific question presented in this case is . . . unlikely to recur or to have significance for a large number of U.S. taxpayers” and that, “[b]y their nature, issues regarding the regulatory tests set forth in 26 C.F.R. 1.901-2(b) will necessarily arise in cases involving specific foreign tax laws that are unlikely to affect a large number of Americans.”  But the government concludes that, “[n]evertheless, this Court’s guidance on the correct analytical approach for evaluating foreign taxes under Section 901 and the Treasury regulation may have significant administrative importance beyond the specific foreign tax law at issue here” and that the interest in uniform enforcement of the tax laws further justifies Supreme Court review.

Concurrent with its filing in PPL, the government filed a “protective” petition for certiorari in Entergy.  In accordance with the Solicitor General’s common practice in situations where two different cases present the same issue, that document does not ask the Court to take immediate action.  Instead, it asks the Court to hold the petition and to dispose of it as appropriate in light of the final disposition of the PPL case.  The Court is likely to follow that advice, which means that if the PPL petition is denied, or if the decision is overturned, the Court will just deny the Entergy petition.  If the PPL decision is affirmed, the Court would then grant the Entergy petition, vacate the Fifth Circuit’s decision, and remand the case for reconsideration in light of the Court’s intervening decision in PPL.

But that is getting ahead of things.  First, the Court must decide whether to hear the issue at all.  It has no obligation to do so, even though both parties recommend certiorari.  Presumably, the Justices have not been dreaming about the opportunity to wade through the foreign tax credit regulations, and their inherent interest (or lack thereof) in the subject matter could tip the balance if they believe the question of importance of Supreme Court review is a close call.

The PPL petition is scheduled to be considered at the Court’s October 5 conference.  An announcement of whether certiorari will be granted will most likely issue either on that date or on October 9.

PPL – Government Brief Acquiescing in Certiorari

Entergy – Government Petition for Certiorari

 

Supreme Court Asked to Resolve Circuit Split on Foreign Tax Creditability of U.K. Windfall Tax

August 1, 2012 by  
Filed under Entergy, International, PPL, Supreme Court

[Note:  Miller & Chevalier filed an amicus brief on behalf of American Electric Power in the PPL case.]

We have fallen behind in updating the progress of the litigation concerning the creditability of the U.K. Windfall Tax that was imposed on British utilities in the 1990s.  As we previously reported, the Tax Court held in two companion cases that this tax was equivalent to an income tax in the U.S. sense of the term and hence creditable.  The government took two appeals — to the Third Circuit in PPL and to the Fifth Circuit in Entergy.  Those courts reached opposite conclusions, and PPL has now asked the Supreme Court to grant certiorari to resolve the conflict.  (See here and here for previous posts on the parties’ briefing in these cases.)

The Third Circuit was first to rule, in December 2011, and it rejected the Tax Court’s decision in an opinion that rested in large part on arguments not made in the government’s brief.  The Third Circuit focused heavily on the details of the three-part test set forth in the regulations, stating that, in focusing on the “predominant character” language in those regulations, the Tax Court had errroneously suggested that the regulation “appl[y] a ‘predominant character standard’ independent of the three requirements.”  In that connection, the Third Circuit dismissed the relevance of case law that predated those regulations, notwithstanding language in the preamble indicating that Treasury did not intend to depart from that prior case law.  The Third Circuit also criticized PPL’s position that the “flotation value” component of the calculation was not relevant to the three-part test because it merely defined what part of the company’s profits would be taxed as “excess.”  The Third Circuit did not deny that this approach would appear to prevent any “excess profits” tax from meeting the test, but it explained that “this argument merely suggests that the regulation misinterprets the statute,” and it was too late for PPL to argue that the regulation is invalid.  Finally, the court surprisingly held that the Tax Court’s decision could not be squared with Treas. Reg. § 1.901-2(b)(3)(ii), Ex. 3, an example that illustrates how the gross receipts part of the regulatory test applies in a situation where the tax base is derived indirectly from a quantity that is “deemed” to reflect gross receipts.  This example is of dubious relevance to the Windfall Tax, which was based on actual profits, not a “deemed” quantity; the example was not raised in the Tax Court proceedings and was mentioned only tangentially in the government’s brief.

The Fifth Circuit had heard oral argument in Entergy a couple of months before PPL was decided, but did not issue its opinion until June 2012.  The Fifth Circuit stated that “the Commissioner’s assertion that we should rely exclusively, or even chiefly, on the text of the Windfall Tax” was contrary to settled case law establishing that the form of the foreign tax is not determinative.  “Viewed in practical terms,” the court continued, “the Windfall Tax clearly satisfies the realization and net income requirements.”  With respect to the gross receipts part of the test, the Fifth Circuit was “persuaded by the Tax Court’s astute observations as to the Windfall Tax’s predominant character” – namely, to claw back the utilities’ excess profits.

The Fifth Circuit then addressed itself directly to the Third Circuit’s PPL decision, characterizing the latter court’s reasoning as exemplifying “the form-over-substance methodology that the governing regulation and case law eschew.”  The example in the regulations relied upon by the Third Circuit is “facially irrelevant,” the Fifth Circuit observed, because “[t]he Windfall Tax relies on no Example 3-type imputed amount, nor indeed on any imputation, for calculating gross receipts.”  Thus, although noting that it is “always chary to create a circuit split,” the Fifth Circuit concluded that it had to disagree with the Third Circuit and find the Windfall Tax creditable.

After its petition for rehearing en banc was denied, PPL filed a petition for certiorari on July 9.  The petition emphasizes the need to resolve the circuit conflict in order to achieve uniform administration of the tax law and heavily criticizes the Third Circuit for elevating the form of the tax over its substance.  For its part, the government has chosen not to seek rehearing in Entergy, bringing the schedules of the cases closer together again.  A petition for certiorari in Entergy is now due on September 4.  The government’s response to PPL’s cert petition is currently due August 8, but a 30-day extension is likely, which would make the response due on September 7.

The position that the government decides to take in these cases is an important factor in assessing the prospects for a grant of certiorari.  Most federal tax cases heard by the Supreme Court involve clear conflicts in the circuits, and it is impossible to deny the existence of such a conflict here.  But the Court does not hear every tax case that involves a circuit conflict.  Rather, it agrees to hear a case only when it believes that resolution of the conflict is sufficiently important, particularly to the uniform administration of the tax laws. Historically, the Court has afforded considerable deference to the government’s advice on the question of importance.  As a repeat litigant at the Court, the government is very selective in asking for Supreme Court review, on the theory that if it does not ask too often, the Court is more likely to grant its requests when it really matters.  And the Court does grant a high percentage (in the neighborhood of 70%) of the government’s petitions for certiorari.  Thus, in deciding whether to ask the Court to resolve this conflict, the government will weigh its own interests, including estimating its prospects for success if the Court hears the case, and make a judgment about whether it views this issue as important enough to tax administration or to the government’s bottom line to justify using one of its precious “chits.”

Although one might think that the government’s monetary interests could induce it to oppose certiorari in PPL even if were to file a cert petition in Entergy, the Solicitor General’s long-term interest in maintaining credibility with the Supreme Court would trump those short-term monetary interests.  Thus, there are two likely courses of action open to the government.  Either it will oppose PPL’s petition and not push for Supreme Court review in Entergy or it will file a certiorari petition in Entergy and not oppose PPL’s petition.  Unless there are additional extensions, we should know in early September how the government will approach the conflict.  The Supreme Court will give its answer several weeks after that.

PPL Third Circuit opinion

Entergy Fifth Circuit Decision

PPL Petition for Certiorari

Next Page »