Two Circuits to Consider Creditability of U.K. Windfall Tax

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February 8, 2011

We present here a guest post from our colleague Kevin Kenworthy, who has considerable experience representing taxpayers on the issue of creditable foreign taxes.

The Tax Court’s two companion decisions in PPL Corp. v. Commissioner, 135 T.C. No. 8 (Sept. 9, 2010) and Entergy v. Commissioner, T.C. Memo 2010-166 (Sept. 9, 2010), raise an important question  concerning whether a 1997 Windfall Tax imposed by the U.K. government on previously privatized industries is a creditable income tax under U.S. rules.  The cases were tried separately before Judge Halpern and addressed in companion opinions issued simultaneously that ruled for the taxpayer (with the analysis contained in the PPL opinion).  The opinions are linked below.  The government has now appealed these cases to the Third and Fifth Circuits respectively.  (The Tax Court cases, in opinions issued a few weeks earlier, also addressed an issue concerning the appropriate recovery period for depreciation of an electric utility’s lighting assets, but it appears at this point that the government does not plan to contest that issue on appeal.)

Under section 901 of the Code and related provisions, a U.S. taxpayer can elect to credit, rather than deduct, qualifying income taxes paid to a foreign country.  Only income taxes are eligible for this credit; non-income taxes can only be deducted in computing taxable income.  In determining whether a foreign tax is creditable, the ultimate inquiry is whether the levy is an income tax in the U.S. sense of the term.  The governing regulations provide a specific framework for assessing whether a foreign tax meets this test, including requirements that the foreign tax meet a three-part test aimed at determining whether the tax will reach net gain in the ordinary circumstances in which it applies.  Treas. Reg. §  1.901-2.

The U.K. Windfall Tax is an unconventional levy in some respects, resulting in part from its unique origins in British politics.  In the early 1990s, Conservative governments continued a policy of privatizing what had previously been government-owned monopolies, including regional electricity companies, through a series of public stock offerings.  The privatizations were anathema to traditional Labour Party tenets.  Moreover, the newly privatized entities, although they continued to be subject to price regulation, proved to be quite profitable in the years following privatization.  In 1997, the new Labour government announced a tax aimed at “windfall profits” previously realized by the formerly government-owned enterprises.  The tax was justified by assertions that windfall profits resulted from the prior government’s decision to sell off the companies at too low a price, compounded by its failure to subject the privatized companies to adequate regulation.

The Windfall Tax was designed as a one-time, retrospective tax imposed on the privatized utilities.  The new tax was imposed on the basis of a unique formula that started with the average book profits of these enterprises over the first four years following privatization multiplied by nine, an amount characterized by the statute as the “value in profit-making terms.”  Tax at a rate of 23% was then imposed on the excess of this artificial earnings multiple over the initial market capitalization (the “flotation value”) of the shares.  The tax was imposed on the companies directly, rather than on the initial private shareholders, many of whom had long ago sold their shares.

The taxpayers argued that the creditability of the Windfall Tax could be established by examining the actual operation and effect of the tax.  The taxpayers showed that the statutory formula could be restated algebraically to reveal that the Windfall Tax operated in almost all cases equivalently to a tax imposed at a rate of roughly 50% on profits realized over a four-year period.  Based in large part on this equivalence, the taxpayers argued that the Windfall Tax was essentially an income tax and satisfied the regulatory test for creditability.  The IRS countered that the creditability of the Windfall Tax could be evaluated only by reference to the statutory language and that resort to extrinsic evidence of the type offered by the taxpayers was inappropriate.  Further, the IRS argued that the statute’s apparent reference to valuation principles, rather than to conventional measures of net income, leads to the conclusion that the Windfall Tax is not creditable.  Drawing ample support from the regulations themselves and from prior court decisions, the Tax Court refused to limit the creditability inquiry in this manner and found the Windfall Tax to be creditable.

The government’s opening brief in Entergy is due March 14, 2011.  No briefing schedule has yet been established in PPL.

Tax Court Decision in PPL 

Tax Court Decision in Entergy