76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular 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 1018
House Bill 2523
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim 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.
Transfers administration of income tax credit allowed for
renewable energy resource equipment manufacturing facilities from
State Department of Energy to Oregon Business Development
Department.
Becomes operative January 1, 2012.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to energy; creating new provisions; amending ORS
314.752, 315.053, 315.354, 315.356, 315.357, 469.185, 469.197,
469.200, 469.205 and 469.225 and section 2, chapter 76, Oregon
Laws 2010; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2011 Act are added to
and made a part of ORS chapter 315. + }
SECTION 2. { + (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 a renewable energy resource equipment
manufacturing facility during the period for which the facility
is certified under sections 5 to 15 of this 2011 Act. The credit
allowed under this section 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) 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:
(A) Final certification from the Director of the Oregon
Business Development Department under sections 5 to 15 of this
2011 Act; or
(B) Final certification from the Director of the State
Department of Energy under ORS 469.185 to 469.225, prior to the
operative date of this section; and
(c) The taxpayer must be an eligible applicant under section 8
(1)(b) of this 2011 Act.
(3) The total amount of credit allowable to an eligible
taxpayer under this section may not exceed 50 percent of the
certified cost of a facility.
(4)(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 Oregon Business Development
Department, 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 section 11 of this
2011 Act. The new lessor or owner must meet the requirements of
sections 5 to 15 of this 2011 Act 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, unless
continued operation is waived by the Oregon Business Development
Department, 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.
(c) A transferee holding a credit that has been transferred
under section 9 of this 2011 Act may not claim the tax credit
under this section for any tax year prior to the tax year in
which the transferee obtained the credit.
(5) 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.
(6) The credit allowed under 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.
(7) The taxpayer's adjusted basis for determining gain or loss
may not be decreased by any tax credits allowed under this
section.
(8) The definitions in section 5 of this 2011 Act apply to this
section. + }
SECTION 3. { + A taxpayer may not be allowed a credit under
section 2 of this 2011 Act if the first tax year for which the
credit with respect to a renewable energy resource equipment
manufacturing facility certified under section 10 of this 2011
Act would otherwise be allowed begins on or after January 1,
2018. + }
SECTION 4. { + Sections 5 to 15 of this 2010 Act are added to
and made a part of ORS chapter 285C. + }
SECTION 5. { + As used in sections 5 to 15 of this 2011 Act:
(1) 'Component parts of electric vehicles' does not include:
(a) Parts that may be used in both electric and conventional
vehicles; or
(b) Batteries.
(2) 'Cost' means the capital costs and expenses necessarily
incurred in the erection, construction, installation and
acquisition of a facility.
(3) 'Electric vehicles' means vehicles that are designed for
use as Class I or Class II all-terrain vehicles, as those terms
are defined in ORS 801.190 and 801.193, and that are used for
agricultural, commercial, industrial or governmental purposes, or
vehicles that are designed for use as modes of transportation on
public roads and highways. The Director of the Oregon Business
Development Department may further define 'agricultural,
commercial, industrial or governmental purposes' of electric
vehicles by rule.
(4)(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;
(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 that:
(i) 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.
(5) 'Renewable energy resource equipment manufacturing
facility' means any structure, building, installation,
excavation, device, machinery or equipment, or an addition,
reconstruction or improvement to land, to an existing structure,
building, installation, excavation or device or to existing
machinery or equipment, that is necessarily acquired, constructed
or installed by a person in connection with the conduct of a
trade or business and that is used primarily to manufacture:
(a) Component parts of electric vehicles.
(b) Electric vehicles.
(c) Equipment, machinery or other products designed to use a
renewable energy resource and that meets the criteria established
under section 6 of this 2011 Act.
(d) Renewable energy storage devices. + }
SECTION 6. { + The Oregon Business Development Department
shall by rule establish all of the following criteria:
(1) Standards relating to the type of equipment, machinery or
other products being manufactured and related performance and
efficiency standards applicable to the manufactured products;
(2) Standards, consistent with the definitions in section 5 of
this 2011 Act and relating to what constitutes a single renewable
energy resource equipment manufacturing facility, that include:
(a) Standards establishing what constitutes property that is
not included within a facility; and
(b) The consideration of such factors as phases of development,
expansion of or additions to existing facilities or product
lines, increased production and number of jobs created or
maintained by an applicant;
(3) Standards relating to the minimum level of increased
employment in Oregon for a facility;
(4) Standards relating to indicators of financial viability of
an applicant for preliminary certification under section 8 of
this 2011 Act;
(5) Standards relating to the likelihood of long-term operation
and success of a facility; and
(6) Standards relating to the likelihood that an applicant
seeking preliminary certification of a facility will base
decisions to locate or expand a facility in Oregon on the
allowance of a tax credit under section 2 of this 2011 Act. + }
SECTION 7. { + (1) For a renewable energy resource equipment
manufacturing facility, the total cost that receives a
preliminary certification from the Director of the Oregon
Business Development Department for tax credits in any calendar
year may not exceed:
(a) $2.5 million in the case of a facility used to manufacture
electric vehicles or component parts of electric vehicles; or
(b) $40 million, in the case of any other facility.
(2) Notwithstanding subsection (1) of this section, the
director may certify a lesser amount than the total cost of the
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 section 6 (5) of this 2011 Act;
(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 section 6 (3) of this
2011 Act;
(e) The applicant lacks the minimum level of financial
viability established in rules adopted under section 6 (4) of
this 2011 Act;
(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 section 6 (6) of this 2011 Act; or
(g) During a time period listed in section 15 of this 2011 Act,
the director receives applications for preliminary certification
with a total amount of potential tax credits in excess of the
limitation for the time period.
(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 sections 5 to
15 of this 2011 Act and applicable rules and standards adopted
under sections 5 to 15 of this 2011 Act. The director may
consider the status of a facility as a research, development or
demonstration facility of new renewable resource generating and
conservation technologies in the determination. + }
SECTION 8. { + (1) Prior to erection, construction,
installation or acquisition of a proposed renewable energy
resource equipment manufacturing facility, any person may apply
to the Oregon Business Development Department for preliminary
certification under section 10 of this 2011 Act if:
(a) The facility complies with the standards or rules adopted
by the Director of the Oregon Business Development Department;
and
(b) The applicant meets one of the following criteria:
(A) The applicant is a person to whom a tax credit for the
facility has been transferred; or
(B) The applicant will be the owner, contract purchaser or
lessee 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 that 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 plans to acquire, construct or install a
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, unless the director by rule specifies a shorter
period of operation.
(c) The projected cost of the facility.
(d) Information on the number and type of jobs that will be
created, the number of jobs sustained throughout the
construction, installation and operation of the facility and the
benefits of the facility with regard to overall economic activity
in this state.
(e) Information demonstrating that the proposed facility will
comply with applicable state and local laws and regulations and
obtain required licenses and permits.
(f) Information relating to the criteria described in ORS
469.195.
(g) Any other information the director considers necessary to
determine whether the proposed facility is in accordance with the
provisions of sections 5 to 15 of this 2011 Act, and any
applicable rules or standards adopted by the director.
(3) An application for preliminary certification shall be
accompanied by a fee established under section 12 of this 2011
Act. 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 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 sections 5 to 15 of this 2011 Act.
(5) A preliminary certification shall remain valid for a period
of five calendar years after the date the preliminary
certification is issued by the director. + }
SECTION 9. { + (1) The owner, contract purchaser or lessee of
a renewable energy resource equipment manufacturing facility may
transfer a tax credit for the facility in exchange for a cash
payment equal to the present value of the tax credit.
(2) The Director of the Oregon Business Development Department
shall establish by rule a formula to be employed in the
determination of prices of credits transferred under this
section. In establishing the formula the department shall
incorporate inflation projections and market real rate of return.
(3) The director shall recalculate credit transfer prices
quarterly, employing the formula established under subsection (2)
of this section. + }
SECTION 10. { + (1) The Director of the Oregon Business
Development Department may require the submission of plans,
specifications and contract terms and after examination of the
plans, specifications and terms, may request corrections and
revisions.
(2) If the director determines that the proposed erection,
construction, installation or acquisition is technically feasible
and should operate in accordance with the representations made by
the applicant, and is in accordance with the provisions of
sections 5 to 15 of this 2011 Act and any applicable rules or
standards adopted by the director, the director shall issue a
preliminary certificate approving the erection, construction,
installation or acquisition of the facility. The certificate
shall indicate the potential amount of tax credit allowable and
shall list any conditions for claiming the credit.
(3) The director may issue an order altering, conditioning,
suspending or denying preliminary certification if the director
determines that:
(a) The erection, construction, installation or acquisition
does not comply with the provisions of sections 5 to 15 of this
2011 Act and applicable rules and standards;
(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 additional
credits under section 2 of this 2011 Act;
(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 sections 5 to 15 of this 2011
Act; 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 11. { + (1) A final certification may not be issued by
the Director of the Oregon Business Development Department under
this section unless:
(a) The renewable energy resource equipment manufacturing
facility was erected, constructed, installed or acquired under a
preliminary certificate of approval issued under section 10 of
this 2011 Act or ORS 469.210;
(b) The applicant demonstrates the ability to provide the
information required by section 8 (2) of this 2011 Act and does
not violate any condition that may be imposed as described in
section 10 (3) of this 2011 Act; and
(c) The facility was erected, constructed, installed or
acquired in accordance with the applicable provisions of sections
5 to 15 of this 2011 Act and any applicable rules or standards
adopted by the director.
(2) Any person may apply to the Oregon Business Development
Department for final certification of a facility:
(a) If the person received preliminary certification for the
facility under section 10 of this 2011 Act or under ORS 469.210;
and
(b)(A) After completion of erection, construction, installation
or acquisition of the proposed facility; or
(B) After transfer of the facility, as provided in section 2
(4) of this 2011 Act.
(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 section 2 of this 2011 Act
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 section 10 of
this 2011 Act and information on the benefits of the facility
with regard to overall economic activity in this state;
(e) Information sufficient to demonstrate that the facility
will remain in operation for at least five years, unless the
director by rule specifies a shorter period of operation;
(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 to 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
(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) 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 sections 2 and 5 to 15 of this 2011
Act. 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 that is more than 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 for the action, 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.
(7) The director may establish by rule timelines and
intermediate deadlines for submission of application
materials. + }
SECTION 12. { + By rule and after hearing, the Director of the
Oregon Business Development Department may adopt a schedule of
reasonable fees that the Oregon Business Development Department
may require of applicants for preliminary or final certification
under sections 5 to 15 of this 2011 Act. Before the adoption or
revision of the fees, the department shall estimate the total
cost of the program to the department. The fees shall be used to
recover the anticipated cost of filing, investigating, granting
and rejecting applications for certification and shall be
designed not to exceed the total cost estimated by the
department. Any excess fees shall be held by the department and
shall be used by the department to reduce any future fee
increases. The fee may vary according to the size and complexity
of the facility. The fee is not considered part of the cost of
the facility to be certified. + }
SECTION 13. { + A certificate issued under section 11 of this
2011 Act or ORS 469.215 is required for purposes of obtaining tax
credits in accordance with section 2 of this 2011 Act. 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 the completed application for final
certification of the facility under section 11 of this 2011 Act
is received by the State Department of Energy. + }
SECTION 14. { + (1) Under the procedures for a contested case
under ORS chapter 183, the Director of the Oregon Business
Development Department may order the suspension or revocation of
the certificate issued under section 11 of this 2011 Act or ORS
469.215 if the director finds that:
(a) The certification was obtained by fraud or
misrepresentation;
(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, contract purchaser or lessee and any
transferee under section 9 of this 2011 Act of the order of
revocation. Upon notification, the Department of Revenue
immediately shall proceed to collect:
(a) In the case in which no portion of a certificate has been
transferred under section 9 of this 2011 Act, those taxes not
paid by the certificate holder as a result of the tax credits
provided to the certificate holder under section 2 of this 2011
Act, 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 in which all or a portion of a certificate has
been transferred under section 9 of this 2011 Act, the maximum
theoretical amount of the tax credits allowable under section 2
of this 2011 Act, from the transferor.
(3)(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 (2) of this section from the person that obtained
certification from the State Department of Energy or from the
Oregon Business Development Department, 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.
(4) Notwithstanding subsections (1) to (3) of this section, a
certificate or portion of a certificate held by a transferee
under section 9 of this 2011 Act may not be considered revoked
for purposes of the transferee, the tax credit allowable to the
transferee under section 2 of this 2011 Act may not be reduced
and a transferee is not liable under subsections (2) and (3) of
this section. + }
SECTION 15. { + The total amount of potential tax credits for
all renewable energy resource equipment manufacturing facilities
under sections 5 to 15 of this 2011 Act, combined with the total
amount of potential tax credits for renewable energy resource
equipment manufacturing facilities allowed under ORS 469.205
(2)(a)(O) as in effect before the operative date of this section,
may not, at the time of preliminary certification under section
10 of this 2011 Act, exceed:
(a) $200 million for the biennium ending June 30, 2011.
(b) $200 million for the biennium ending June 30, 2013.
(c) $50 million for the six months beginning July 1, 2013, and
ending December 31, 2013. + }
SECTION 16. { + The duties, functions and powers of the State
Department of Energy relating to the administration of income tax
credits available under ORS 315.354 and 469.185 to 469.225 as
applicable to renewable energy resource equipment manufacturing
facilities are imposed upon, transferred to and vested in the
Oregon Business Development Department. + }
SECTION 17. { + (1) The Director of the State Department of
Energy shall:
(a) Deliver to the Oregon Business Development Department all
records and property within the jurisdiction of the director that
relate to the duties, functions and powers transferred by section
16 of this 2011 Act; and
(b) Transfer to the Oregon Business Development Department
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 16 of this 2011 Act.
(2) The Director of the Oregon Business Development Department
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 16 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the State
Department of Energy and the Oregon Business Development
Department relating to transfers of records, property and
employees under this section, and the Governor's decision is
final. + }
SECTION 18. { + (1) The unexpended balances of amounts
authorized to be expended by the State Department of Energy for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 16 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Business Development Department for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
16 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Department
of Energy remain applicable to expenditures by the Oregon
Business Development Department under this section. + }
SECTION 19. { + The transfer of duties, functions and powers
to the Oregon Business Development Department by section 16 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Business Development Department is
substituted for the State Department of Energy in the action,
proceeding or prosecution. + }
SECTION 20. { + (1) Nothing in sections 16 to 19 of this 2011
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 16 of this 2011 Act. The Oregon Business
Development Department may undertake the collection or
enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the State Department of
Energy legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 16 of this 2011 Act accruing under or with
respect to the duties, functions and powers transferred by
section 16 of this 2011 Act are transferred to the Oregon
Business Development Department. For the purpose of succession to
these rights and obligations, the Oregon Business Development
Department is a continuation of the State Department of Energy
and not a new authority. + }
SECTION 21. { + Notwithstanding the transfer of duties,
functions and powers by section 16 of this 2011 Act, the rules of
the State Department of Energy with respect to such duties,
functions or powers that are in effect on the operative date of
section 16 of this 2011 Act continue in effect until superseded
or repealed by rules of the Oregon Business Development
Department. References in such rules of the State Department of
Energy to the State Department of Energy or an officer or
employee of the State Department of Energy are considered to be
references to the Oregon Business Development Department or an
officer or employee of the Oregon Business Development
Department. + }
SECTION 22. { + Whenever, in any uncodified law or resolution
of the Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, in the context
of the duties, functions and powers transferred by section 16 of
this 2011 Act, reference is made to the State Department of
Energy, or an officer or employee of the State Department of
Energy, whose duties, functions or powers are transferred by
section 16 of this 2011 Act, the reference is considered to be a
reference to the Oregon Business Development Department or an
officer or employee of the Oregon Business Development Department
who by this 2011 Act is charged with carrying out such duties,
functions and powers. + }
SECTION 23. ORS 315.354, as amended by section 3, chapter 76,
Oregon Laws 2010, 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. 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, unless continued operation is waived by the
State Department of Energy, 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.
(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).
(d) A transferee holding a credit that has been transferred
under ORS 469.206 or 469.208 may not claim the tax credit under
this section for any tax year prior to the tax year in which the
transferee obtained the credit.
(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 24. ORS 315.357, as amended by section 5, chapter 76,
Oregon Laws 2010, is amended to read:
315.357. { - (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 25. ORS 469.185, as amended by section 4, chapter 76,
Oregon Laws 2010, 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 { + and
acquisition + } 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 { + or
acquired + } 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 { + or acquired + } 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 { - , - } { + or + } 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;
(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 { + that + }:
(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: - }
{ - (a) Equipment, machinery or other products designed to
use a renewable energy resource and that meets the criteria
established under ORS 469.197. - }
{ - (b) Electric vehicles, including three-wheeled vehicles,
that are designed for use as Class I or Class II all-terrain
vehicles, as those terms are defined in ORS 801.190 and 801.193,
and that are used for agricultural, commercial, industrial or
governmental purposes, or designed for use as modes of
transportation on public roads and highways, or component parts
of electric vehicles, but not including component parts that may
be used in both electric and conventional vehicles. The director
may further define 'agricultural, commercial, industrial or
governmental purposes' of electric vehicles by rule. For purposes
of this paragraph, 'component parts' does not include
batteries. - }
{ - (c) Renewable energy storage devices. - }
{ - (14) - } { + (13) + } '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) - } { + (14) + } '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) - } { + (15) + } 'Transportation provider' means a
public, private or nonprofit entity that provides transportation
services to members of the public.
{ - (17) - } { + (16) + } 'Transportation services
contract' means a contract that is related to a transportation
facility, and may be further defined by the department by rule.
SECTION 26. ORS 469.197, as amended by section 7, chapter 76,
Oregon Laws 2010, 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 that include: - }
{ - (A) Standards establishing what constitutes property that
is not included within a renewable energy resource equipment
manufacturing facility; and - }
{ - (B) The consideration of such factors as phases of
development, expansion of or additions to existing facilities or
product lines, increased production and number of jobs created or
maintained by an applicant; - }
{ - (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
operation and 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) - } { + (4) + } For a facility using or producing
renewable energy resources, standards relating to criteria
required under ORS 469.195 (2).
{ - (6) - } { + (5) + } Standards, consistent with the
definitions in ORS 469.185, relating to what constitutes a single
facility.
SECTION 27. ORS 469.200, as amended by section 8, chapter 76,
Oregon Laws 2010, 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 other than a facility
used to manufacture electric vehicles; - }
{ - (c) - } { + (b) + } 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 + }
{ - (d) $2.5 million in the case of a renewable energy
resource equipment manufacturing facility used to manufacture
electric vehicles; or - }
{ - (e) - } { + (c) + } $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); - }
{ - (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); or - }
{ - (g) During a time period listed in section 2 (4), chapter
76, Oregon Laws 2010, the director receives applications for
preliminary certification with a total amount of potential tax
credits in excess of the limitation for the time period. - }
{ - (3) - } { + (2) + } 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 28. ORS 469.200, as amended by sections 8 and 9,
chapter 76, Oregon Laws 2010, 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 other than a facility
used to manufacture electric vehicles; - }
{ - (c) - } { + (b) + } Five percent of the total cost of
the facility but no more than $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) $2.5 million in the case of a renewable energy
resource equipment manufacturing facility used to manufacture
electric vehicles; or - }
{ - (e) - } { + (c) + } $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); - }
{ - (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); or - }
{ - (g) During a time period listed in section 2 (4), chapter
76, Oregon Laws 2010, the director receives applications for
preliminary certification with a total amount of potential tax
credits in excess of the limitation for the time period. - }
{ - (3) - } { + (2) + } 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 29. ORS 469.200, as amended by sections 8, 9 and 9a,
chapter 76, Oregon Laws 2010, 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 other than a facility
used to manufacture electric vehicles; - }
{ - (c) - } { + (b) + } Five percent of the total cost of
the facility but no more than $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) $2.5 million in the case of a renewable energy
resource equipment manufacturing facility used to manufacture
electric vehicles; or - }
{ - (e) - } { + (c) + } $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); - }
{ - (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); or - }
{ - (g) During a time period listed in section 2 (4), chapter
76, Oregon Laws 2010, the director receives applications for
preliminary certification with a total amount of potential tax
credits in excess of the limitation for the time period. - }
{ - (3) - } { + (2) + } 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 30. ORS 469.205, as amended by section 10, chapter 76,
Oregon Laws 2010, 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 { + for the
facility + } has been transferred; or
(B) The applicant will be the owner { + , + } { - or - }
contract purchaser { + or lessee + } 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 - } { + that + } 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 - } { + described + } 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; { + or + }
(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, unless the director by rule specifies a shorter
period of operation.
(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 - } { + number + } and
type of jobs that will be created, the number of jobs sustained
throughout the construction, installation and operation of the
facility and the benefits of the facility with regard to overall
economic activity in this state.
(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.
(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 subsection (6) of this
section 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. For all other
facilities, - } A preliminary certification shall remain valid
for a period of three calendar years after the date the
preliminary certification is issued by the director. The director
may extend the three-year period for two additional calendar
years upon reapplication and submission of the fee required by
this section.
SECTION 31. ORS 469.225, as amended by section 14, chapter 76,
Oregon Laws 2010, 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;
(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 { + , contract purchaser or
lessee + } 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) - } { + (4)(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) - } { + (5) + } 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) - } { + (6) + } Notwithstanding subsections (1) to
{ - (6) - } { + (5) + } 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) - } { + and (4) + } of this section.
SECTION 32. ORS 314.752, as amended by section 26, chapter 76,
Oregon Laws 2010, is amended to read:
314.752. (1) Except as provided in ORS 314.740 (5)(b), the tax
credits allowed or allowable to a C corporation for purposes of
ORS chapter 317 or 318 shall not be allowed to an S corporation.
The business tax credits allowed or allowable for purposes of ORS
chapter 316 shall be allowed or are allowable to the shareholders
of the S corporation.
(2) In determining the tax imposed under ORS chapter 316, as
provided under ORS 314.734, on income of the shareholder of an S
corporation, there shall be taken into account the shareholder's
pro rata share of business tax credit (or item thereof) that
would be allowed to the corporation (but for subsection (1) of
this section) or recapture or recovery thereof. The credit (or
item thereof), recapture or recovery shall be passed through to
shareholders in pro rata shares as determined in the manner
prescribed under section 1377(a) of the Internal Revenue Code.
(3) The character of any item included in a shareholder's pro
rata share under subsection (2) of this section shall be
determined as if such item were realized directly from the source
from which realized by the corporation, or incurred in the same
manner as incurred by the corporation.
(4) If the shareholder is a nonresident and there is a
requirement applicable for the business tax credit that in the
case of a nonresident the credit be allowed in the proportion
provided in ORS 316.117, then that provision shall apply to the
nonresident shareholder.
(5) As used in this section, 'business tax credit' means a tax
credit granted to personal income taxpayers to encourage certain
investment, to create employment, economic opportunity or
incentive or for charitable, educational, scientific, literary or
public purposes that is listed under this subsection as a
business tax credit or is designated as a business tax credit by
law or by the Department of Revenue by rule and includes but is
not limited to the following credits: ORS 285C.309 (tribal taxes
on reservation enterprise zones and reservation partnership
zones), ORS 315.104 (forestation and reforestation), ORS 315.134
(fish habitat improvement), ORS 315.138 (fish screening, by-pass
devices, fishways), ORS 315.156 (crop gleaning), ORS 315.164 and
315.169 (farmworker housing), ORS 315.204 (dependent care
assistance), ORS 315.208 (dependent care facilities), ORS 315.213
(contributions for child care), ORS 315.304 (pollution control
facility), ORS 315.324 (plastics recycling), ORS 315.354 and
469.207 (energy conservation facilities), ORS 315.507 (electronic
commerce), ORS 315.511 (advanced telecommunications facilities),
ORS 315.604 (bone marrow transplant expenses), ORS 317.115
(fueling stations necessary to operate an alternative fuel
vehicle) and ORS 315.141 (biomass production for biofuel) { +
and section 2 of this 2011 Act (renewable energy resource
equipment manufacturing facilities) + }.
SECTION 33. ORS 315.053 is amended to read:
315.053. An income tax credit allowed under ORS 315.141,
315.354 or 315.514 or section 47, chapter 843, Oregon Laws 2007,
or section 12, chapter 855, Oregon Laws 2007, { + or section 2
of this 2011 Act + } may be transferred or sold only to one or
more of the following:
(1) A C corporation.
(2) An S corporation.
(3) A personal income taxpayer.
SECTION 34. ORS 315.356 is amended to read:
315.356. (1) If a taxpayer obtains a grant from the federal
government in connection with a facility that has been certified
by the Director of the State Department of Energy, the certified
cost of the facility shall be reduced on a dollar for dollar
basis. Any income or excise tax credits that the taxpayer would
be entitled to under ORS 315.354 and 469.185 to 469.225 { + and
sections 2 and 5 to 15 of this 2011 Act + } after any reduction
described in this subsection may not be reduced by the federal
grant. A taxpayer applying for a federal grant shall notify the
Department of Revenue by certified mail within 30 days after each
application, and after the receipt of any grant.
(2) A taxpayer is eligible to participate in both this tax
credit program and low interest, government-sponsored loans.
(3) A taxpayer who receives a tax credit or property tax relief
on a pollution control facility or an alternative energy device
under ORS 307.405, 315.304 or 316.116 is not eligible for a tax
credit on the same facility or device under ORS 315.354 and
469.185 to 469.225 { + and sections 2 and 5 to 15 of this 2011
Act + }.
(4) A credit may not be allowed under ORS 315.354 if the
taxpayer has received a tax credit on the same facility or device
under ORS 315.324.
SECTION 35. Section 2, chapter 76, Oregon Laws 2010, is amended
to read:
{ + Sec. 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 amount of potential tax credits 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 make
determinations whether to issue preliminary certifications for
proposed facilities using or producing renewable energy
resources:
(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.
{ - (4) The total amount of potential tax credits for all
renewable energy resource equipment manufacturing facilities in
this state may not, at the time of preliminary certification
under ORS 469.210, exceed: - }
{ + (4) The total amount of potential tax credits for all
renewable energy resource equipment manufacturing facilities
under sections 5 to 15 of this 2011 Act, combined with the total
amount of potential tax credits for renewable energy resource
equipment manufacturing facilities allowed under ORS 469.205
(2)(a)(O) as in effect before the operative date specified in
section 36 of this 2011 Act, may not, at the time of preliminary
certification under section 10 of this 2011 Act, exceed: + }
(a) $200 million for the biennium ending June 30, 2011.
(b) $200 million for the biennium ending June 30, 2013.
{ - (c) $50 million for the six months beginning July 1,
2013, and ending December 31, 2013. - }
SECTION 36. { + Sections 2, 3 and 5 to 22 of this 2011 Act and
the amendments to ORS 314.752, 315.053, 315.354, 315.356,
315.357, 469.185, 469.197, 469.200, 469.205 and 469.225 and
section 2, chapter 76, Oregon Laws 2010, by sections 23 to 35 of
this 2011 Act become operative on January 1, 2012. + }
SECTION 37. { + The Director of the State Department of Energy
and the Director of the Oregon Business Development Department
may take any action before the operative date specified in
section 36 of this 2011 Act that is necessary to enable the
directors to exercise, on and after the operative date specified
in section 36 of this 2011 Act, the duties, functions and powers
conferred on the directors by sections 2, 3 and 5 to 22 of this
2011 Act and the amendments to ORS 314.752, 315.053, 315.354,
315.356, 315.357, 469.185, 469.197, 469.200, 469.205 and 469.225
and section 2, chapter 76, Oregon Laws 2010, by sections 23 to 35
of this 2011 Act. + }
SECTION 38. { + This 2011 Act takes effect on the 91st day
after the date on which the 2011 session of the Seventy-sixth
Legislative Assembly adjourns sine die. + }
----------