S-1875

AN ACT Relating to tax credits for new facilities that provide electricity for direct service industrial customers; adding a new section to chapter 82.04 RCW; adding a new section to chapter 82.12 RCW; and adding a new section to chapter 82.16 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 82.04 RCW to read as follows:

(1) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this section.

(a) "Direct service industrial customer" means a person who is an industrial customer that contracts for the purchase of power from the Bonneville power administration for direct consumption as of the effective date of this section. "Direct service industrial customer" includes a person who is a subsidiary that is more than fifty percent owned by a direct service industrial customer and who receives power from the Bonneville power administration pursuant to the parent's contract for power.

(b) "Facility" means a gas turbine electrical generation facility that does not exist on the effective date of this section and is owned by a direct service industrial customer for the purpose of producing electricity to be consumed by the direct service industrial customer.

(c) "Average annual employment" means the total employment in this state for a calendar year at the direct service industrial customer's location where electricity from the facility will be consumed.

(2) Effective July 1, 2004, a credit is allowed against the tax due under this chapter to a direct service industrial customer who purchases natural or manufactured gas from a gas distribution business subject to the public utility tax under chapter 82.16 RCW. The credit is equal to the value of natural or manufactured gas purchased from a gas distribution business and used to generate electricity at the facility multiplied by the rate in effect for the public utility tax on gas distribution businesses under RCW 82.16.020. This credit may be used each reporting period for sixty months following the first month natural or manufactured gas was purchased from a gas distribution business by a direct service industrial customer who constructs a facility.

(3) This credit is available only to a person who meets the requirements for diversification of resources, as required in a legislative act enacted in the 2001 legislative session. If such a requirement is not enacted, this subsection (3) has no effect.

(4) For any direct service industrial customer electing between January 1, 2000, and October 1, 2001, to have the Bonneville power administration repurchase or remarket power not delivered to the company for use in its operations, this credit is available only to a person who uses resale proceeds or agrees with the Bonneville power administration to use net remarketing proceeds for the following purposes:

(a) Expenditures or costs related to curtailing production, including at a minimum compensation, benefits, other expenditures related to employee layoffs, maintaining additional employees not required for operations at the reduced level, or job reassignments as a result of reduced operations; and

(b) Expenditures or costs incurred related to plans for securing a future power supply and enhancement of operations at facilities located in Washington, including expenses related to new nonfederal power sources and expenses to upgrade facilities to achieve energy conservation, operating efficiencies, environmental benefits, or preserving jobs.

(5) Subsection (4) of this section may not be construed to disqualify a direct service industrial customer that uses resale proceeds or that agrees with the Bonneville power administration to use net remarketing proceeds for additional purposes beyond those specified in subsection (4) of this section.

(6) Application for credit shall be made by the direct service industrial consumer before the first purchase of natural or manufactured gas. The application shall be in a form and manner prescribed by the department and shall include but is not limited to information regarding the location of the facility, the projected date of first purchase of natural or manufactured gas to generate electricity at the facility, the date construction is projected to begin or did begin, the applicant's average annual employment in the state for the six calendar years immediately preceding the year in which the application is made, and affirm the applicant's status as a direct service industrial customer. The department shall rule on the application within thirty days of receipt.

(7) Credit under this section is limited to the amount of tax imposed under this chapter. Refunds shall not be given in place of credits and credits may not be carried over to subsequent calendar years.

(8) All or part of the credit shall be disallowed and must be paid if the average of the direct service industrial customer's average annual employment for the five calendar years subsequent to the calendar year containing the first month of purchase of natural or manufactured gas to generate electricity at a facility is less than the six-year average annual employment stated on the application for credit under this section. The direct service industrial customer will certify to the department by June 1st of the sixth calendar year following the calendar year in which the month of first purchase of gas occurs the average annual employment for each of the five prior calendar years. All or part of the credit that shall be disallowed and must be paid is commensurate with the decrease in the five-year average of average annual employment as follows:

Decrease in Average Annual

Employment Over

Five-Year Period % of Credit to be Paid

Less than 10% 10%

10% or more but less than 25% 25%

25% or more but less than 50% 50%

50% or more but less than 75% 75%

75% or more 100%

(9)(a) The direct service industrial customer shall begin paying the credit that is disallowed and is to be paid in the sixth calendar year following the calendar year in which the month following the month of first purchase of natural or manufactured gas to generate electricity at the facility occurs. The first payment will be due on or before December 31st with subsequent annual payments due on or before December 31st of the following four years according to the following schedule:

Payment Year % of Credit to be Paid

1 10%

2 15%

3 20%

4 25%

5 30%

(b) The department may authorize an accelerated payment schedule upon request of the taxpayer.

(c) Interest shall not be charged on the credit that is disallowed for the sixty-month period the credit may be taken, although all other penalties and interest applicable to delinquent excise taxes may be assessed and imposed. The debt for credit that is disallowed and must be paid will not be extinguished by insolvency or other failure of the direct service industrial customer. Transfer of ownership of the facility does not affect eligibility for this credit. However, the credit is available to the successor only if the eligibility conditions of this section are met.

(10) The employment security department shall make, and certify to the department of revenue, all determinations of employment under this section as requested by the department.

(11) A person claiming this credit shall supply to the department quarterly reports containing information necessary to document the total volume of natural or manufactured gas purchased in the quarter, the value of that total volume, and the percentage of the total volume used to generate electricity at the facility.

(12) A direct service industrial customer claiming credit under this section may not claim a deferral under section 2 of this act nor be the beneficiary of a credit allowed under section 3 of this act.

NEW SECTION. Sec. 2. A new section is added to chapter 82.12 RCW to read as follows:

(1) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this section.

(c) "Average annual employment" means the total employment in this state for a calendar year at the direct service industrial customer's location where electricity from the facility will be consumed.

(2) Effective July 1, 2004, the tax levied in RCW 82.12.022 on the first sixty months' use of natural or manufactured gas by a direct service industrial customer that owns a facility shall be deferred. This deferral is limited to the tax on natural or manufactured gas used or consumed to generate electricity at the facility.

(3) This deferral is available only to a person who meets the requirements for diversification of resources, as required in a legislative act enacted in the 2001 legislative session. If such a requirement is not enacted, this subsection (3) has no effect.

(4) For any direct service industrial customer electing between January 1, 2000, and October 1, 2001, to have the Bonneville power administration repurchase or remarket power not delivered to the company for use in its operations, this deferral is available only to a person who uses resale proceeds or agrees with the Bonneville power administration to use net remarketing proceeds for the following purposes:

(6) Application for deferral shall be made by the direct service industrial customer before the first use of natural or manufactured gas. The application shall be in a form and manner prescribed by the department and shall include but is not limited to information regarding the location of the facility, the projected date of first use of natural or manufactured gas to generate electricity at the facility, the date construction is projected to begin or did begin, the applicant's average annual employment in the state for the six calendar years immediately preceding the year in which the application is made, and shall affirm the applicant's status as a direct service industrial customer. The department shall rule on the application within thirty days of receipt.

(7)(a) The direct service industrial customer shall begin paying the deferred tax in the sixth calendar year following the calendar year in which the month of first use of natural or manufactured gas to generate electricity at the facility occurs. The first payment will be due on or before December 31st with subsequent annual payments due on or before December 31st of the following four years according to the following schedule:

Payment Year % of Deferred Tax to be Paid

1 10%

2 15%

3 20%

4 25%

5 30%

(b) The department may authorize an accelerated payment schedule upon request of the taxpayer.

(c) Interest shall not be charged on the tax deferred under this section for the period of deferral, although all other penalties and interest applicable to delinquent excise taxes may be assessed and imposed. The debt for deferred tax will not be extinguished by insolvency or other failure of the direct service industrial customer. Transfer of ownership of the facility does not affect deferral eligibility. However, the deferral is available to the successor only if the eligibility conditions of this section are met.

(8)(a) If the average of the direct service industrial customer's average annual employment for the five calendar years subsequent to the calendar year containing the first month of use of natural or manufactured gas to generate electricity at a facility is equal to or exceeds the six-year average annual employment stated on the application for deferral under this section, the tax deferred need not be paid. The direct service industrial customer shall certify to the department by June 1st of the sixth calendar year following the calendar year in which the month of first use of gas occurs the average annual employment for each of the five prior calendar years.

(b) If the five-year average calculated in (a) of this subsection is less than the average annual employment stated on the application for deferral under this section, the tax deferred under this section shall be paid in the amount as follows:

Decrease in Average Annual

Employment Over % of Deferred

Five-Year Period Tax to be Paid

Less than 10% 10%

10% or more but less than 25% 25%

25% or more but less than 50% 50%

50% or more but less than 75% 75%

75% or more 100%

(c) Tax paid under this subsection shall be paid according to the schedule in subsection (7)(a) of this section and under the terms and conditions of subsection (7)(b) and (c) of this section.

(9) The employment security department shall make, and certify to the department of revenue, all determinations of employment under this section as requested by the department.

(10) A person claiming this deferral shall supply to the department quarterly reports containing information necessary to document the total volume of natural or manufactured gas purchased in the quarter, the value of that total volume, and the percentage of the total volume used to generate electricity at the facility.

(11) A direct service industrial customer claiming a deferral under this section may not claim a credit under section 1 of this act nor be the beneficiary of a credit allowed under section 3 of this act.

NEW SECTION. Sec. 3. A new section is added to chapter 82.16 RCW to read as follows:

(1) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this section.

(b) "Facility" means a gas turbine electrical generation facility that does not exist on the effective date of this section.

(c) "Average annual employment" means the total employment in this state for a calendar year at the direct service industrial customer's location where electricity from the facility will be consumed.

(2) Effective July 1, 2004, a credit is allowed against the tax due under this chapter on sales of electricity made from a facility to a direct service industrial customer if the contract for sale of electricity to a direct service industrial customer contains the following terms:

(a) Sales of electricity from the facility to the direct service industrial customer will be made for ten consecutive years or more;

(b) The price charged for the electricity will be reduced by an amount equal to the tax credit; and

(c) Disallowance of all or part of the credit under subsection (8) of this section is a breach of contract and the damages to be paid by the direct service industrial customer to the facility are the amount of tax credit disallowed.

(3) The credit is equal to the gross proceeds from the sale of the electricity to a direct service industrial customer multiplied by the rate in effect at the time of the sale for the public utility tax on light and power businesses under RCW 82.16.020. The credit may be used each reporting period for sixty months following the first month electricity is sold from a facility to a direct service industrial customer. Credit under this section is limited to the amount of tax imposed under this chapter. Refunds shall not be given in place of credits and credits may not be carried over to subsequent calendar years.

(4) This credit is available only to a person who meets the requirements for diversification of resources, as required in a legislative act enacted in the 2001 legislative session. If such a requirement is not enacted, this subsection (4) has no effect.

(5) For any direct service industrial customer electing between January 1, 2000, and October 1, 2001, to have the Bonneville power administration repurchase or remarket power not delivered to the company for use in its operations, this exemption is available only to a person who uses resale proceeds or agrees with the Bonneville power administration to use net remarketing proceeds for the following purposes:

(6) Subsection (5) of this section may not be construed to disqualify a direct service industrial customer that uses resale proceeds or that agrees with the Bonneville power administration to use net remarketing proceeds for additional purposes beyond those specified in subsection (5) of this section.

(7) Application for credit shall be made before the first sale of electricity from a facility to a direct service industrial customer. The application shall be in a form and manner prescribed by the department and shall include but is not limited to information regarding the location of the facility, identification of the direct service industrial customer who will receive electricity from the facility, the projected date of the first sale of electricity to a direct service industrial customer, the date construction is projected to begin or did begin, and the average annual employment in the state of the direct service industrial customer who will receive electricity from the facility for the six calendar years immediately preceding the year in which the application is made. A copy of the contract for sale of electricity must be attached to the application. The department shall rule on the application within thirty days of receipt.

(8) All or part of the credit shall be disallowed and must be paid if the average of the direct service industrial customer's average annual employment for the five calendar years subsequent to the calendar year containing the first month of sale of electricity from a facility to a direct service industrial customer is less than the six-year average annual employment stated on the application for credit under this section. The direct service industrial customer shall certify to the department and to the facility by June 1st of the sixth calendar year following the calendar year in which the month of first sale occurs the average annual employment for each of the five prior calendar years. All or part of the credit that shall be disallowed and must be paid is commensurate with the decrease in the five-year average of average annual employment as follows:

Decrease in Average Annual

Employment Over

Five-Year Period % of Credit to be Paid

Less than 10% 10%

10% or more but less than 25% 25%

25% or more but less than 50% 50%

50% or more but less than 75% 75%

75% or more 100%

(9)(a) Payments on credit that is disallowed shall begin in the sixth calendar year following the calendar year in which the month following the first month of sale of electricity from a facility to a direct service industrial customer occurs. The first payment will be due on or before December 31st with subsequent annual payments due on or before December 31st of the following four years according to the schedule in this subsection.

Payment Year % of Credit to be Paid

1 10%

2 15%

3 20%

4 25%

5 30%

(b) The department may authorize an accelerated payment schedule upon request of the taxpayer.

(c) Interest shall not be charged on the credit that is disallowed for the sixty-month period the credit may be taken, although all other penalties and interest applicable to delinquent excise taxes may be assessed and imposed. The debt for credit that is disallowed and must be paid will not be extinguished by insolvency or other failure of the taxpayer. Transfer of ownership of the facility does not affect eligibility for this credit. However, the credit is available to the successor only if the eligibility conditions of this section are met.

(10) The employment security department shall make, and certify to the department of revenue, all determinations of employment under this section as requested by the department.

(11) A direct service industrial customer benefiting from a credit allowed under this section may not claim a credit under section 1 of this act nor a deferral under section 2 of this act.