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
A-Engrossed
House Bill 3680
Ordered by the House February 8
Including House Amendments dated February 8
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.
{ - 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. - }
{ + For facilities using or producing renewable energy
resources, limits, per biennium, the total amount of potential
tax credits for which preliminary certifications may be issued to
applicants. Directs Director of State Department of Energy to
develop system to allocate issuance of certifications within
limitation, based on certain criteria as defined by rule.
Requires taxpayer to provide additional information to
department to support application for certification for energy
tax credit.
Modifies procedures and criteria for issuance, suspension and
revocation of certification.
Modifies definition of renewable energy resource to include
renewable energy storage device. Modifies definition of '
transportation facility' to include purchase of efficient truck
technology for commercial motor vehicles.
Extends sunsets for energy tax credits.
For facilities using wind technology that have installed
capacity of more than 10 megawatts, reduces amount of available
tax credits in each of three tax years, beginning with tax years
beginning on or after January 1, 2010.
Provides that, for facility using or producing renewable energy
resources with certified cost in excess of $10 million, taxpayer
may not begin to claim tax credit until tax year following final
certification. + }
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to tax credits; creating new provisions; amending ORS
315.354, 315.357, 469.185, 469.195, 469.197, 469.200, 469.205,
469.210, 469.215, 469.220 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) The total amount of potential tax credits
for all facilities using or producing renewable energy resources
in this state may not, at the time of preliminary certification
under ORS 469.210, exceed:
(a) $300 million for the biennium ending June 30, 2011.
(b) $150 million for the year beginning July 1, 2011, and
ending June 30, 2012.
(2) In the event that the Director of the State Department of
Energy receives applications for preliminary certification with a
total cost in excess of the limitations in subsection (1) of this
section, the director shall allocate the issuance of preliminary
certifications according to the criteria required by ORS 469.195.
(3) The director shall review applications and issue
preliminary certifications:
(a) Within 90 days of the date on which the application is
received, in the case of an application for certification with a
cost of less than $6 million.
(b) Within six months of the date on which the application is
received, in the case of an application for certification with a
cost of $6 million or more. + }
SECTION 3. ORS 315.354 is amended to read:
315.354. (1) A credit is allowed against the taxes otherwise
due under ORS chapter 316 (or, if the taxpayer is a corporation,
under ORS chapter 317 or 318), based upon the certified cost of
the facility during the period for which that facility is
certified under ORS 469.185 to 469.225. The credit is allowed as
follows:
(a) Except as provided in paragraph (b) or (c) of this
subsection, the credit allowed in each of the first two tax years
in which the credit is claimed shall be 10 percent of the
certified cost of the facility, but may not exceed the tax
liability of the taxpayer. The credit allowed in each of the
succeeding three years shall be five percent of the certified
cost, but may not exceed the tax liability of the taxpayer.
(b) If the certified cost of the facility does not exceed
$20,000, the total amount of the credit allowable under
subsection (4) of this section may be claimed in the first tax
year for which the credit may be claimed, but may not exceed the
tax liability of the taxpayer.
(c) If the facility uses or produces renewable energy resources
or is a renewable energy resource equipment manufacturing
facility, the credit allowed in each of five succeeding tax years
shall be 10 percent of the certified cost of the facility, but
may not exceed the tax liability of the taxpayer.
(2) Notwithstanding subsection (1) of this section:
(a) If the facility is one or more renewable energy resource
systems installed in a single-family dwelling, the amount of the
credit for each system shall be determined as if the facility was
considered a residential alternative energy device under ORS
316.116, but subject to the maximum credit amount under
subsection (4)(b) of this section;
(b) If the facility is a high-performance home, the amount of
the credit shall equal the amount determined under paragraph (a)
of this subsection plus $3,000; and
(c) If the facility is a high-performance home or a
homebuilder-installed renewable energy system, the total amount
of the credit may be claimed in the first tax year for which the
credit is claimed, but may not exceed the tax liability of the
taxpayer.
(3) In order for a tax credit to be allowable under this
section:
(a) The facility must be located in Oregon;
(b) The facility must have received final certification from
the Director of the State Department of Energy under ORS 469.185
to 469.225;
(c) The taxpayer must be an eligible applicant under ORS
469.205 (1)(c); and
(d) If the alternative fuel vehicle is a gasoline-electric
hybrid vehicle not designed for electric plug-in charging, it
must be purchased before January 1, 2010.
(4) The total amount of credit allowable to an eligible
taxpayer under this section may not exceed:
(a) 50 percent of the certified cost of a renewable energy
resources facility, a renewable energy resource equipment
manufacturing facility or a high-efficiency combined heat and
power facility;
(b) $9,000 per single-family dwelling for homebuilder-installed
renewable energy systems;
(c) $12,000 per single-family dwelling for
homebuilder-installed renewable energy systems, if the dwelling
also constitutes a high-performance home; or
(d) 35 percent of the certified cost of any other facility.
(5)(a) Upon any sale, termination of the lease or contract,
exchange or other disposition of the facility, notice thereof
shall be given to the Director of the State Department of
Energy { + , + } who shall revoke the certificate covering the
facility as of the date of such disposition.
{ + (b) + } The new owner, or upon re-leasing of the
facility, the new lessor, may apply for a new certificate under
ORS 469.215 { - , but - } { + . The new lessor or owner must
meet the requirements of ORS 469.185 to 469.225 and may claim a
tax credit under this section only if all moneys owed to the
State of Oregon have been paid, the facility continues to operate
and all conditions in the final certification are met. + } The
tax credit available to the new owner shall be limited to the
amount of credit not claimed by the former owner or, for a new
lessor, the amount of credit not claimed by the lessor under all
previous leases.
{ - (b) - } { + (c) + } The State Department of Energy may
not revoke the certificate covering a facility under paragraph
(a) of this subsection if the tax credit associated with the
facility has been transferred to a taxpayer who is an eligible
applicant under ORS 469.205 (1)(c)(A).
(6) Any tax credit otherwise allowable under this section that
is not used by the taxpayer in a particular year may be carried
forward and offset against the taxpayer's tax liability for the
next succeeding tax year. Any credit remaining unused in that
next succeeding tax year may be carried forward and used in the
second succeeding tax year, and likewise, any credit not used in
that second succeeding tax year may be carried forward and used
in the third succeeding tax year, and likewise, any credit not
used in that third succeeding tax year may be carried forward and
used in the fourth succeeding tax year, and likewise, any credit
not used in that fourth succeeding tax year may be carried
forward and used in the fifth succeeding tax year, and likewise,
any credit not used in that fifth succeeding tax year may be
carried forward and used in the sixth succeeding tax year, and
likewise, any credit not used in that sixth succeeding tax year
may be carried forward and used in the seventh succeeding tax
year, and likewise, any credit not used in that seventh
succeeding tax year may be carried forward and used in the eighth
succeeding tax year, but may not be carried forward for any tax
year thereafter. Credits may be carried forward to and used in a
tax year beyond the years specified in subsection (1) of this
section only as provided in this subsection.
(7) The credit provided by this section is not in lieu of any
depreciation or amortization deduction for the facility to which
the taxpayer otherwise may be entitled for purposes of ORS
chapter 316, 317 or 318 for such year.
(8) The taxpayer's adjusted basis for determining gain or loss
may not be decreased by any tax credits allowed under this
section.
(9) If a homebuilder claims a credit under this section with
respect to a homebuilder-installed renewable energy system or a
high-performance home:
(a) The homebuilder may not claim credits for both a
homebuilder-installed renewable energy system and a
high-performance home with respect to the same dwelling;
(b) The homebuilder must inform the buyer of the dwelling that
the homebuilder is claiming a tax credit under this section with
respect to the dwelling; and
(c) The buyer of the dwelling may not claim a credit under this
section that is based on any facility for which the homebuilder
has already claimed a credit.
(10) The definitions in ORS 469.185 apply to this section.
SECTION 4. ORS 469.185 is amended to read:
469.185. As used in ORS 469.185 to 469.225 and 469.878:
(1) 'Alternative fuel vehicle' means a vehicle as defined by
the Director of the State Department of Energy by rule that is
used primarily in connection with the conduct of a trade or
business and that is manufactured or modified to use an
alternative fuel, including but not limited to electricity,
ethanol, methanol, gasohol and propane or natural gas, regardless
of energy consumption savings.
(2) 'Car sharing facility' means the expenses of operating a
car sharing program, including but not limited to the fair market
value of parking spaces used to store the fleet of cars available
for a car sharing program, but does not include the costs of the
fleet of cars.
(3) 'Car sharing program' means a program in which drivers pay
to become members in order to have joint access to a fleet of
cars from a common parking area on an hourly basis. 'Car sharing
program' does not include operations conducted by car rental
agencies.
(4) 'Cost' means the capital costs and expenses necessarily
incurred in the acquisition, erection, construction and
installation of a facility, including site development costs and
expenses for a sustainable building practices facility.
(5) 'Energy facility' means any capital investment for which
the first year energy savings yields a simple payback period of
greater than one year. An energy facility includes:
(a) Any land, structure, building, installation, excavation,
machinery, equipment or device, or any addition to,
reconstruction of or improvement of, land or an existing
structure, building, installation, excavation, machinery,
equipment or device necessarily acquired, erected, constructed or
installed by any person in connection with the conduct of a trade
or business and actually used in the processing or utilization of
renewable energy resources to:
(A) Replace a substantial part or all of an existing use of
electricity, petroleum or natural gas;
(B) Provide the initial use of energy where electricity,
petroleum or natural gas would have been used;
(C) Generate electricity to replace an existing source of
electricity or to provide a new source of electricity for sale by
or use in the trade or business;
(D) Perform a process that obtains energy resources from
material that would otherwise be solid waste as defined in ORS
459.005; or
(E) Manufacture or distribute alternative fuels, including but
not limited to electricity, ethanol, methanol, gasohol or
biodiesel.
(b) Any acquisition of, addition to, reconstruction of or
improvement of land or an existing structure, building,
installation, excavation, machinery, equipment or device
necessarily acquired, erected, constructed or installed by any
person in connection with the conduct of a trade or business in
order to substantially reduce the consumption of purchased
energy.
(c) A necessary feature of a new commercial building or
multiple unit dwelling, as dwelling is defined by ORS 469.160,
that causes that building or dwelling to exceed an energy
performance standard in the state building code.
(d) The replacement of an electric motor with another electric
motor that substantially reduces the consumption of electricity.
(6) 'Facility' means an energy facility, recycling facility,
transportation facility, car sharing facility, sustainable
building practices facility, alternative fuel vehicle or
facilities necessary to operate alternative fuel vehicles,
including but not limited to an alternative fuel vehicle
refueling station, a high-efficiency combined heat and power
facility, a high-performance home, a homebuilder-installed
renewable energy system, or a renewable energy resource equipment
manufacturing facility.
(7) 'High-efficiency combined heat and power facility ' means a
device or equipment that simultaneously produces heat and
electricity from a single source of fuel and that meets the
criteria established for a high-efficiency combined heat and
power facility under ORS 469.197.
(8) 'High-performance home' means a new single-family dwelling
that:
(a) Is designed and constructed to reduce net purchased energy
through use of both energy efficiency and on-site renewable
energy resources; and
(b) Meets the criteria established for a high-performance home
under ORS 469.197.
(9) 'Homebuilder-installed renewable energy system' means a
renewable energy resource system that:
(a) Meets the criteria established for a renewable energy
resource system under ORS 469.197; and
(b) Is installed in a new single-family dwelling by, or at the
direction of, the homebuilder constructing the dwelling.
(10) 'Qualified transit pass contract' means a purchase
agreement entered into between a transportation provider and a
person, the terms of which obligate the person to purchase
transit passes on behalf or for the benefit of employees,
students, patients or other individuals over a specified period
of time.
(11) 'Recycling facility' means equipment used by a trade or
business solely for recycling:
(a) Including:
(A) Equipment used solely for hauling and refining used oil;
(B) New vehicles or modifications to existing vehicles used
solely to transport used recyclable materials that cannot be used
further in their present form or location such as glass, metal,
paper, aluminum, rubber and plastic;
(C) Trailers, racks or bins that are used for hauling used
recyclable materials and are added to or attached to existing
waste collection vehicles; and
(D) Any equipment used solely for processing recyclable
materials such as balers, flatteners, crushers, separators and
scales.
(b) But not including equipment used for transporting or
processing scrap materials that are recycled as a part of the
normal operation of a trade or business as defined by the
director.
(12)(a) 'Renewable energy resource' includes, but is not
limited to:
(A) Straw, forest slash, wood waste or other wastes from farm
or forest land, nonpetroleum plant or animal based biomass, ocean
wave energy, solar energy, wind power, water power or geothermal
energy; { - or - }
(B) A hydroelectric generating facility that obtains all
applicable permits and complies with all state and federal
statutory requirements for the protection of fish and wildlife
and:
(i) That does not exceed 10 megawatts of installed capacity; or
(ii) Qualifies as a research, development or demonstration
facility { - . - } { + ; or
(C) A renewable energy storage device as defined by the
director by rule. + }
(b) 'Renewable energy resource' does not include a
hydroelectric generating facility that is not described in
paragraph (a) of this subsection.
(13) 'Renewable energy resource equipment manufacturing
facility' means any structure, building, installation,
excavation, machinery, equipment or device, or an addition,
reconstruction or improvement to land or an existing structure,
building, installation, excavation, machinery, equipment or
device, that is necessarily acquired, constructed or installed by
a person in connection with the conduct of a trade or business,
that is used primarily to manufacture equipment, machinery or
other products designed to use a renewable energy resource
{ + or to manufacture renewable energy storage devices + } and
that meets the criteria established under ORS 469.197.
(14) 'Sustainable building practices facility' means a
commercial building in which building practices that reduce the
amount of energy, water or other resources needed for
construction and operation of the building are used. 'Sustainable
building practices facility' may be further defined by the State
Department of Energy by rule, including rules that establish
traditional building practice baselines in energy, water or other
resource usage for comparative purposes for use in determining
whether a facility is a sustainable building practices facility.
(15) 'Transportation facility' means a transportation project
that reduces energy use during commuting to and from work or
school, during work-related travel, or during travel to obtain
medical or other services, and may be further defined by the
department by rule. 'Transportation facility' includes, but is
not limited to { - , - } { + :
(a) + } A qualified transit pass contract or a transportation
services contract { - . - } { + ; or
(b) The purchase of efficient truck technology and related
truck trailers, as defined in ORS 801.580, for commercial motor
vehicles, as defined in ORS 801.208, that are registered under
ORS 803.420, or for commercial motor vehicles that are
proportionally registered under ORS 826.009 or 826.011. + }
(16) 'Transportation provider' means a public, private or
nonprofit entity that provides transportation services to members
of the public.
(17) 'Transportation services contract' means a contract that
is related to a transportation facility, and may be further
defined by the department by rule.
SECTION 5. ORS 315.357 is amended to read:
315.357. { - A taxpayer may not be allowed a credit under ORS
315.354 if the first tax year for which the credit with respect
to a facility certified under ORS 469.215 would otherwise be
allowed begins on or after January 1, 2012. - }
{ + (1) Except as provided in subsection (2) of this section,
a taxpayer may not be allowed a credit under ORS 315.354 unless
the taxpayer receives final certification under ORS 469.215
before July 1, 2012.
(2) A taxpayer may not be allowed a credit under ORS 315.354
for a renewable energy resource equipment manufacturing facility
unless the taxpayer receives preliminary certification under ORS
469.210 before January 1, 2014. + }
SECTION 6. ORS 469.195 is amended to read:
469.195. { + (1) + } In determining the eligibility of
{ - facilities - } { + any facility + } for tax credits,
preference shall be given to those projects { - which - } { +
that + }:
{ - (1) - } { + (a) + } Provide energy savings for real or
personal property within the state inhabited as the principal
residence of a tenant, including:
{ - (a) - } { + (A) + } Nonowner occupied single family
dwellings; and
{ - (b) - } { + (B) + } Multiple unit residential housing;
or
{ - (2) - } { + (b) + } Provide long-term energy savings
from the use of renewable resources or conservation of energy
resources.
{ + (2) The Director of the State Department of Energy shall
establish by rule a tiered priority system to be used in
evaluating applicants for certification of facilities using or
producing renewable energy resources. The tier system shall be
based upon the projected costs of facilities. In determining the
eligibility for tax credits and in allocating the available
certified cost under section 2 of this 2010 Act among facilities,
the director shall subject facilities with higher projected costs
to closer scrutiny, shall compare projects of similar costs
against each other and may base decisions to certify less than
the total cost of any facility on this evaluation. The director
shall employ criteria including the following factors as defined
by rule:
(a) Technology-specific energy production standards;
(b) Market sector;
(c) Delivery of energy into existing distribution and
transmission network;
(d) Investment payback period;
(e) Expected lifespan of the facility;
(f) Potential for long-term viability;
(g) Environmental standards established by the director;
(h) Potential to create and sustain new jobs;
(i) Projected siting in a location that is geologically or
socioeconomically advantageous;
(j) Demonstrated readiness to begin implementation;
(k) Amount and quality of energy generated;
(L) Strength of business plan;
(m) Provision of operations and maintenance data, with
appropriate protections for trade secrets consistent with ORS
chapter 192;
(n) Connection to existing infrastructure;
(o) Third-party review of the applicant's business plan; and
(p) Data related to projected return on investment. + }
SECTION 7. ORS 469.197 is amended to read:
469.197. The State Department of Energy shall by rule establish
all of the following criteria:
(1) For a high-performance home, the minimum design and
construction standards that must be met or exceeded for a
dwelling to be considered a high-performance home, including but
not limited to standards for the building envelope, HVAC systems,
lighting, appliances, water conservation measures, use of
sustainable building materials and on-site renewable energy
systems. The criteria must also establish the minimum reduction
in estimated net purchased energy that a dwelling must achieve to
be considered a high-performance home.
(2) For a homebuilder-installed renewable energy system, the
minimum performance and efficiency standards that a solar
electric system, solar domestic water heating system, passive
solar space heating system, wind power system, geothermal heating
system, fuel cell system or other system utilizing renewable
resources must achieve to be considered a homebuilder-installed
renewable energy system.
(3) For a high-efficiency combined heat and power facility, the
minimum performance and efficiency standards that the facility
must achieve to be considered a high-efficiency combined heat and
power facility.
(4) For a renewable energy resource equipment manufacturing
facility:
(a) Standards relating to the type of equipment, machinery or
other products being manufactured and related performance and
efficiency standards applicable to the manufactured products;
(b) Standards, consistent with the definitions in ORS 469.185,
relating to what constitutes a single renewable energy resource
equipment manufacturing facility and what constitutes property
that is not included within a renewable energy resource equipment
manufacturing facility;
(c) Standards relating to the minimum level of increased
employment in Oregon for a renewable energy resource equipment
manufacturing facility;
(d) Standards relating to indicators of financial viability of
an applicant for preliminary certification under ORS 469.205;
(e) Standards relating to the likelihood of long-term success
of a renewable energy resource equipment manufacturing facility;
and
(f) Standards relating to the likelihood that an applicant
seeking preliminary certification of a renewable energy resource
equipment manufacturing facility will base decisions to locate or
expand a facility in Oregon on the allowance of a tax credit
under ORS 315.354.
{ + (5) For a facility using or producing renewable energy
resources, standards relating to criteria required under ORS
469.195 (2).
(6) Standards, consistent with the definitions in ORS 469.185,
relating to what constitutes a single facility. + }
SECTION 8. 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 million, in the case of a facility using or producing
renewable energy resources or a high-efficiency combined heat and
power facility;
(b) $40 million, in the case of a renewable energy resource
equipment manufacturing facility; { - or - }
{ + (c) Five percent of the total cost of the facility but no
more than $7 million, in the case of a facility that uses or
produces renewable energy resources and is a wind facility with
an installed capacity of more than 10 megawatts; or + }
{ - (c) - } { + (d) + } $10 million, in the case of any
other facility.
(2) Notwithstanding subsection (1)(b) 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.
SECTION 9. ORS 469.200, as amended by section 8 of this 2010
Act, 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 million, in the case of a facility using or producing
renewable energy resources or a high-efficiency combined heat and
power facility;
(b) $40 million, in the case of a renewable energy resource
equipment manufacturing facility;
(c) Five percent of the total cost of the facility but no more
than { - $7 million - } { + $5 million + }, in the case of a
facility that uses or produces renewable energy resources and is
a wind facility with an installed capacity of more than 10
megawatts; or
(d) $10 million, in the case of any other facility.
(2) Notwithstanding subsection (1)(b) 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.
SECTION 9a. ORS 469.200, as amended by sections 8 and 9 of this
2010 Act, 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 million, in the case of a facility using or producing
renewable energy resources or a high-efficiency combined heat and
power facility;
(b) $40 million, in the case of a renewable energy resource
equipment manufacturing facility;
(c) Five percent of the total cost of the facility but no more
than { - $5 million - } { + $3 million + }, in the case of a
facility that uses or produces renewable energy resources and is
a wind facility with an installed capacity of more than 10
megawatts; or
(d) $10 million, in the case of any other facility.
(2) Notwithstanding subsection (1)(b) 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.
SECTION 10. ORS 469.205 is amended to read:
469.205. (1) Prior to erection, construction, installation or
acquisition of a proposed facility, any person may apply to the
State Department of Energy for preliminary certification under
ORS 469.210 if:
(a) The erection, construction, installation or acquisition of
the facility is to be commenced on or after October 3, 1979;
(b) The facility complies with the standards or rules adopted
by the Director of the State Department of Energy; and
(c) The applicant meets one of the following criteria:
(A) The applicant is a person to whom a tax credit has been
transferred; or
(B) The applicant will be the owner or contract purchaser of
the facility at the time of erection, construction, installation
or acquisition of the proposed facility, and:
(i) The applicant is the owner, contract purchaser or lessee of
a trade or business that plans to utilize the facility in
connection with Oregon property; or
(ii) The applicant is the owner, contract purchaser or lessee
of a trade or business that plans to lease the facility to a
person who will utilize the facility in connection with Oregon
property.
(2) An application for preliminary certification shall be made
in writing on a form prepared by the department and shall
contain:
(a) A statement that the applicant or the lessee of the
applicant's facility:
(A) Intends to convert from a purchased energy source to a
renewable energy resource;
(B) Plans to acquire, construct or install a facility that will
use a renewable energy resource or solid waste instead of
electricity, petroleum or natural gas;
(C) Plans to use a renewable energy resource in the generation
of electricity for sale or to replace an existing or proposed use
of an existing source of electricity;
(D) Plans to acquire, construct or install a facility that
substantially reduces the consumption of purchased energy;
(E) Plans to acquire, construct or install equipment for
recycling as defined in ORS 469.185 (11);
(F) Plans to acquire an alternative fuel vehicle or to convert
an existing vehicle to an alternative fuel vehicle;
(G) Plans to acquire, construct or install a facility necessary
to operate alternative fuel vehicles;
(H) Plans to acquire transit passes for use by individuals
specified by the applicant;
(I) Plans to acquire, construct or install a transportation
facility;
(J) Plans to acquire a sustainable building practices facility;
(K) Plans to acquire a car sharing facility and operate a car
sharing program;
(L) Plans to construct a high-efficiency combined heat and
power facility;
(M) Is a homebuilder and plans to construct a
homebuilder-installed renewable energy system;
(N) Is a homebuilder and plans to construct a high-performance
home; or
(O) Plans to acquire, construct or install a renewable energy
resource equipment manufacturing facility.
(b) A detailed description of the proposed facility and its
operation and information showing that the facility will operate
as represented in the application { + and remain in operation
for at least five years + }.
(c) Information on the amount by which consumption of
electricity, petroleum or natural gas by the applicant or the
lessee of the applicant's facility will be reduced, and on the
amount of energy that will be produced for sale, as the result of
using the facility or, if applicable, information about the
expected level of sustainable building practices facility
performance.
(d) The projected cost of the facility.
(e) If applicable, a copy of the proposed qualified transit
pass contract, transportation services contract or contract for
lease of parking spaces for a car sharing facility.
{ + (f) Information on the amount and type of jobs that will
be created, the number of jobs sustained throughout the
construction, installation and operation of the facility and
benefits for other economic activity in this state related to
these jobs.
(g) Information demonstrating that the proposed facility will
comply with applicable state and local laws and regulations and
obtain required licenses and permits.
(h) Information relating to the criteria required under ORS
469.195. + }
{ - (f) - } { + (i) + } Any other information the director
considers necessary to determine whether the proposed facility is
in accordance with the provisions of ORS 469.185 to 469.225, and
any applicable rules or standards adopted by the director.
(3) An application for preliminary certification shall be
accompanied by a fee established under ORS 469.217. The director
may refund { + all or a portion of + } the fee if the
application for certification is rejected.
(4) The director may allow an applicant to file the preliminary
application { + or a reapplication under ORS 469.210 (3) + }
after the start of erection, construction, installation or
acquisition of the facility if the director finds:
(a) Filing the application before the start of erection,
construction, installation or acquisition is inappropriate
because special circumstances render filing earlier unreasonable;
and
(b) The facility would otherwise qualify for tax credit
certification pursuant to ORS 469.185 to 469.225.
(5) A preliminary certification of a sustainable building
practices facility shall be applied for and issued as prescribed
by the department by rule.
(6) A preliminary certification of a renewable energy resource
equipment manufacturing facility shall remain valid for a period
of five calendar years after the date the preliminary
certification is issued by the director.
SECTION 11. ORS 469.210 is amended to read:
469.210. (1) The Director of the State Department of Energy may
require the submission of plans, specifications and contract
terms, and after examination thereof, may request corrections and
revisions of the plans, specifications and terms.
(2) If the director determines that the proposed acquisition,
erection, construction or installation is technically feasible
and should operate in accordance with the representations made by
the applicant, and is in accordance with the provisions of ORS
469.185 to 469.225 and any applicable rules or standards adopted
by the director, the director shall issue a preliminary
certificate approving the acquisition, erection, construction or
installation of the facility. { + The certificate shall indicate
the potential amount of tax credit allowable and shall list any
conditions for claiming the credit.
(3) A preliminary certificate shall remain valid for a period
of three calendar years after the date on which the preliminary
certificate is issued by the director. The director may extend
this period for two additional years upon reapplication and
submission of the fee required by ORS 469.205.
(4) + } { - If - } The director { + may issue an order
altering, conditioning, suspending or denying preliminary
certification if the director + } determines that { + :
(a) + } The acquisition, erection, construction or installation
does not comply with the provisions of ORS 469.185 to 469.225 and
applicable rules and standards { - , the director shall issue an
order denying certification. - } { + ;
(b) The applicant has previously received preliminary or final
certification for the same costs;
(c) The applicant is unable to demonstrate that the facility
would be economically viable without the allowance of a credit
under ORS 315.354;
(d) The applicant was directly involved in an act for which the
director has levied civil penalties or revoked, canceled or
suspended any certification under ORS 469.185 to 469.225; or
(e) The applicant or the principal, director, officer, owner,
majority shareholder or member of the applicant, or the manager
of the applicant if the applicant is a limited liability company,
is in arrears for payments owed to any government agency while in
any capacity with direct or indirect control over a business. + }
SECTION 12. 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 { + :
(a) + } The facility was acquired, erected, constructed or
installed under a preliminary certificate of approval issued
under ORS 469.210 { - and - } { + ;
(b) The applicant demonstrates the ability to provide the
information required by ORS 469.205 (2) and does not violate any
condition that may be imposed as described in ORS 469.210 (4);
and
(c) The facility was acquired, erected, constructed or
installed + } 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) The amount of the credit under ORS 315.354 that is to
be claimed;
(d) The number and type of jobs created by the operation and
maintenance of the facility over the five-year period beginning
with the year of preliminary certification under ORS 469.210 and
information on benefits for other economic activity in this state
related to these jobs;
(e) Information sufficient to demonstrate that the facility
will remain in operation for at least five years;
(f) Information sufficient to demonstrate, in the case of a
research, development or demonstration facility that is not in
operation, that the applicant has made reasonable efforts to make
the facility operable and meet the requirements of the
preliminary certificate;
(g) Documentation of compliance with applicable state and local
laws and regulations and licensing and permitting requirements as
defined by the director; and + }
{ - (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) - } { + (h) + } 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) { + Except as provided in section 2 (3) of this 2010
Act, + } 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 { + , or certificates for efficient truck technology
within a transportation facility, + } 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 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 13. ORS 469.220 is amended to read:
469.220. { + (1) + } A certificate issued under ORS 469.215 is
required for purposes of obtaining tax credits in accordance with
ORS 315.354. Such certification shall be granted for a period not
to exceed five years. The five-year period shall begin with the
tax year of the applicant during which { - a certified facility
is placed into operation, or the year - } the facility is
certified under ORS 469.215 { - , at the election of the
applicant - } .
{ + (2) Notwithstanding subsection (1) of this section, for a
facility using or producing renewable energy resources with a
certified cost that exceeds $10 million and that receives final
certification under ORS 469.215 after January 1, 2010, the
five-year period shall begin with the tax year immediately
following the tax year during which the facility is certified
under ORS 469.215. + }
SECTION 14. 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 { + suspension or + } 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 { + or the operator of the
facility + } has failed to construct or operate the facility in
compliance with the plans, specifications and procedures in the
certificate { - . - } { + ; or
(c) The facility is no longer in operation. + }
(2) As soon as the order of revocation under this section
becomes final, the director shall notify the Department of
Revenue { + , the facility owner and any transferee under ORS
469.206 + } 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
{ + suspended or + } 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 15. { + (1) Section 2 of this 2010 Act and the
amendments to ORS 315.357, 469.185, 469.195, 469.197, 469.205,
469.210 and 469.215 by sections 4 to 7 and 10 to 12 of this 2010
Act apply to preliminary certifications issued under ORS 469.210
on or after July 1, 2009.
(2) The amendments to ORS 469.200 by section 8 of this 2010 Act
apply to preliminary certifications issued under ORS 469.210 on
or after January 1, 2010, and before January 1, 2011.
(3) The amendments to ORS 469.200 by section 9 of this 2010 Act
apply to preliminary certifications issued under ORS 469.210 on
or after January 1, 2011, and before January 1, 2012.
(4) The amendments to ORS 469.200 by section 9a of this 2010
Act apply to preliminary certifications issued under ORS 469.210
on or after January 1, 2012.
(5) The amendments to ORS 469.220 by section 13 of this 2010
Act apply to final certifications issued under ORS 469.215 on or
after January 1, 2010.
(6) The amendments to ORS 315.354 and 469.225 by sections 3 and
14 of this 2010 Act apply to tax years beginning on or after
January 1, 2009, and any tax year for which a taxpayer may file
an amended return or for which the Department of Revenue may
issue a notice of deficiency. + }
SECTION 16. { + 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. + }
----------