Bill Text: OR HB3680 | 2010 | 1st Special Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to tax credits; prescribing an effective date; and providing for revenue raising that requires approval by a three-fifths majority.

Sponsorship: Committee Bill

Status: (Passed) 2010-03-18 - Chapter 76, (2010 Laws): Effective date May 27, 2010. [HB3680 Detail]

Download: Oregon-2010-HB3680-Introduced.html

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     75th OREGON LEGISLATIVE ASSEMBLY--2010 Special Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 66

                         House Bill 3680

Sponsored by COMMITTEE ON REVENUE

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Prohibits State Department of Energy from issuing preliminary
certification to applicant seeking tax credit for erection,
construction, installation or acquisition of large facility
unless applicant meets specified conditions. Authorizes Director
of State Department of Energy to revoke certificate if holder of
certificate fails to comply with conditions.
  Prohibits Department of Revenue, if large facility tax credit
is transferred, from paying interest on amounts claimed by
transferee in amended income tax return.
  For certain types of facilities, lowers limit on cost eligible
for preliminary certification.
  Authorizes State Department of Energy to treat certain multiple
applications for preliminary certification as single application
under specified circumstances.
  Takes effect on 91st day following adjournment sine die.

                        A BILL FOR AN ACT
Relating to tax credits; creating new provisions; amending ORS
  469.200, 469.215 and 469.225; prescribing an effective date;
  and providing for revenue raising that requires approval by a
  three-fifths majority.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2010 Act is added to and made
a part of ORS 469.185 to 469.225. + }
  SECTION 2.  { + (1) As used in this section, 'large facility '
means a facility with a projected cost of $5 million or more.
  (2) The State Department of Energy may not issue a preliminary
certification to an applicant under ORS 469.210 for the erection,
construction, installation or acquisition of a large facility
unless the applicant establishes that:
  (a) The applicant has applied for all licenses and permits
required by state or local law for the facility;
  (b) The applicant is not in arrears on any tax owed to the
state or to a local government; and
  (c) To the satisfaction of the department, the facility will be
in continuous operation for at least five years after the
facility is placed in operation.
  (3) In addition to the criteria established by the State
Department of Energy under ORS 469.197, the department may
consider issuing a preliminary certification to an applicant

under ORS 469.210 for the erection, construction, installation or
acquisition of a large facility based on the following criteria:
  (a) The number of jobs that would be created if the facility
was constructed;
  (b) The economic benefits of constructing the facility for the
state and for the area in which the facility would be
constructed;
  (c) The revenue impact of granting the certification, as
compared with the projected benefits of the construction and
operation of the facility; and
  (d) Whether construction of the facility is dependent upon
preliminary certification under ORS 469.185 to 469.225.
  (4) If a certificate is issued under ORS 469.215 for the
erection, construction, installation or acquisition of a large
facility, and the tax credit based on the certificate is
transferred under ORS 469.206, the Department of Revenue may not
pay any interest on amounts claimed by a transferee by reason of
the application of the tax credit in an amended return filed by
the transferee.
  (5) The State Department of Energy may not issue a certificate
under ORS 469.215 for a large facility unless the applicant has
been issued all permits and licenses required by state or local
law for the facility. The department may condition the granting
of a certificate under ORS 469.215 for a large facility on the
applicant continuing to meet the requirements of subsection
(2)(b) and (c) of this section during the period that the
certificate is valid. + }
  SECTION 3. ORS 469.200 is amended to read:
  469.200. (1) For a facility, the total cost that receives a
preliminary certification from the Director of the State
Department of Energy for tax credits in any calendar year may not
exceed:
  (a)   { - $20 - }   { + $15 + } million, in the case of a
facility using or producing renewable energy resources or a
high-efficiency combined heat and power facility;
   { +  (b) $20 million, in the case of a facility that has an
installed capacity of 20 megawatts or less and:
  (A) That uses or produces renewable energy resources; or
  (B) That is a high-efficiency combined heat and power
facility; + }
    { - (b) - }   { + (c) + } $40 million, in the case of a
renewable energy resource equipment manufacturing facility; or
    { - (c) - }   { + (d) + } $10 million, in the case of any
other facility.
  (2) Notwithstanding subsection   { - (1)(b) - }
 { + (1)(c) + } of this section, the director may certify a
lesser amount than the total cost of the renewable energy
resource equipment manufacturing facility, or need not certify
any amount, if any of the following conditions exist at the time
of preliminary certification:
  (a) The last quarterly economic and revenue forecast for a
biennium indicates that moneys available to the General Fund for
the next biennium will be at least three percent less than
appropriations from the General Fund for the current biennium;
  (b) A quarterly economic and revenue forecast projects that
revenues in the General Fund in the current biennium will be at
least two percent below what revenues were projected to be in the
revenue forecast on which the legislatively adopted budget, as
defined in ORS 291.002, for the current biennium was based;
  (c) The proposed facility, in the estimate of the director,
does not possess the likelihood of success established in
criteria of success under ORS 469.197 (4);
  (d) The proposed facility, in the estimate of the director, is
not likely to increase employment in Oregon to the minimum
threshold level established in rules under ORS 469.197 (4);

  (e) The applicant lacks the minimum level of financial
viability established in rules adopted under ORS 469.197 (4); or
  (f) The applicant is unlikely, in the estimate of the director,
to base a decision to relocate or expand a facility in Oregon on
allowance of the tax credit, given the criteria established in
rules under ORS 469.197 (4).
  (3) The director shall determine the dollar amount certified
for any facility and the priority between applications for
certification based upon the criteria contained in ORS 469.185 to
469.225 and applicable rules and standards adopted under ORS
469.185 to 469.225. The director may consider the status of a
facility as a research, development or demonstration facility of
new renewable resource generating and conservation technologies
or a qualified transit pass contract in the determination.
   { +  (4) If more than one application for preliminary
certification is made to the State Department of Energy for the
same site or by the same applicant, the department may treat the
applications as a single application for the purpose of the
limitations imposed by this section, and for the purpose of
determining whether the application is for a large facility as
defined in section 2 of this 2010 Act, if the department finds
that the applications are for facilities that are in such close
proximity, or so closely related, as to constitute a single
facility. + }
  SECTION 4. ORS 469.215 is amended to read:
  469.215. (1) A final certification may not be issued by the
Director of the State Department of Energy under this section
unless the facility was acquired, erected, constructed or
installed under a preliminary certificate of approval issued
under ORS 469.210 and in accordance with the applicable
provisions of ORS 469.185 to 469.225 and any applicable rules or
standards adopted by the director.
  (2) Any person may apply to the State Department of Energy for
final certification of a facility:
  (a) If the department issued preliminary certification for the
facility under ORS 469.210; and
  (b)(A) After completion of erection, construction, installation
or acquisition of the proposed facility or, if the facility is a
qualified transit pass contract, after entering into the contract
with a transportation provider; or
  (B) After transfer of the facility, as provided in ORS 315.354
(5).
  (3) An application for final certification shall be made in
writing on a form prepared by the department and shall contain:
  (a) A statement that the conditions of the preliminary
certification have been complied with;
  (b) The actual cost of the facility certified to by a certified
public accountant who is not an employee of the applicant or, if
the actual cost of the facility is less than $50,000, copies of
receipts for purchase and installation of the facility;
  (c) A statement that the facility is in operation or, if not in
operation, that the applicant has made every reasonable effort to
make the facility operable; and
  (d) Any other information determined by the director to be
necessary prior to issuance of a final certificate, including
inspection of the facility by the department.
  (4) The director shall act on an application for certification
before the 60th day after the filing of the application under
this section. The director may issue the certificate together
with such conditions as the director determines are appropriate
to promote the purposes of ORS 315.354, 469.185 to 469.225 and
469.878. If the applicant is an entity subject to regulation by
the Public Utility Commission, the director may consult with the
commission prior to issuance of the certificate. The action of
the director shall include certification of the actual cost of
the facility. However, the director may not certify an amount for
tax credit purposes   { - which - }  { +  that + } is more than
 { - 10 percent in excess of - }  the amount approved in the
preliminary certificate issued for the facility.
  (5) If the director rejects an application for final
certification, or certifies a lesser actual cost of the facility
than was claimed in the application, the director shall send to
the applicant written notice of the action, together with a
statement of the findings and reasons therefor, by certified
mail, before the 60th day after the filing of the application.
Failure of the director to act constitutes rejection of the
application.
  (6) Upon approval of an application for final certification of
a facility, the director shall certify the facility. Each
certificate shall bear a separate serial number for each device.
Where one or more devices constitute an operational unit, the
director may certify the operational unit under one certificate.
  SECTION 5. ORS 469.225 is amended to read:
  469.225. (1) Under the procedures for a contested case under
ORS chapter 183, the Director of the State Department of Energy
may order the revocation of the certificate issued under ORS
469.215 if the director finds that:
  (a) The certification was obtained by fraud or
misrepresentation;   { - or - }
  (b) The holder of the certificate has failed to construct or
operate the facility in compliance with the plans, specifications
and procedures in the certificate { + ; or
  (c) The holder of the certificate has failed to comply with
conditions imposed under section 2 (2) of this 2010 Act + }.
  (2) As soon as the order of revocation under this section
becomes final, the director shall notify the Department of
Revenue of the order of revocation.
  (3) If the certificate is issued for a facility that is not a
renewable energy resource equipment manufacturing facility and is
ordered revoked pursuant to subsection (1)(a) of this section,
all prior tax credits provided to the holder of the certificate
by virtue of the certificate shall be forfeited and upon
notification under subsection (2) of this section the Department
of Revenue immediately shall proceed to collect those taxes not
paid by the certificate holder as a result of the tax credits
provided to the holder under ORS 315.354.
  (4) If the certificate is issued for a renewable energy
resource equipment manufacturing facility and is ordered revoked,
upon notification under subsection (2) of this section the
Department of Revenue immediately shall proceed to collect:
  (a) In the case where no portion of a certificate has been
transferred under ORS 469.206, those taxes not paid by the
certificate holder as a result of the tax credits provided to the
certificate holder under ORS 315.354, from the certificate holder
or a successor in interest to the business interests of the
certificate holder. All prior tax credits provided to the holder
of the certificate by virtue of the certificate shall be
forfeited.
  (b) In the case where all or a portion of a certificate has
been transferred under ORS 469.206, the maximum theoretical
amount of the tax credits allowable under ORS 315.354, from the
transferor.
  (5)(a) The Department of Revenue shall have the benefit of all
laws of this state pertaining to the collection of income and
excise taxes and may proceed to collect the amounts described in
subsection (3) or (4) of this section from the person that
obtained certification from the State Department of Energy or any
successor in interest to the business interests of that person.
No assessment of tax shall be necessary and no statute of
limitation shall preclude the collection of taxes described in
this subsection.

  (b) For purposes of this subsection, a lender, bankruptcy
trustee or other person that acquires an interest through
bankruptcy or through foreclosure of a security interest is not
considered to be a successor in interest to the business
interests of the person that obtained certification from the
State Department of Energy.
  (6) If the certificate is issued for a facility that is not a
renewable energy resource equipment manufacturing facility and is
ordered revoked pursuant to subsection (1)(b) of this section,
the certificate holder shall be denied any further relief under
ORS 315.354 in connection with the facility from and after the
date that the order of revocation becomes final.
  (7) Notwithstanding subsections (1) to (6) of this section, a
certificate or portion of a certificate held by a transferee
under ORS 469.206 may not be considered revoked for purposes of
the transferee, the tax credit allowable to the transferee under
ORS 315.354 may not be reduced and a transferee is not liable
under subsections (3) to (5) of this section.
  SECTION 6.  { + Section 2 of this 2010 Act and the amendments
to ORS 469.200, 469.215 and 469.225 by sections 3 to 5 of this
2010 Act apply to preliminary certifications issued on or after
the effective date of this 2010 Act. + }
  SECTION 7.  { + This 2010 Act takes effect on the 91st day
after the date on which the special session of the Seventy-fifth
Legislative Assembly adjourns sine die. + }
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