SALEM — The Oregon Department of Energy had help from top officials at the state Department of Revenue last year, as energy employees looked for justification to allow deep discounts on energy tax credits.
Tax credit recipients wanted to sell the credits issued under the Energy Incentive Program for less than allowed under a price formula in state rules, and energy Chief Financial Officer Anthony Buckley thought he had found a section of state law that allowed the practice. Buckley consulted with employees at the Department of Revenue, and they agreed.
Specifically, the energy and revenue officials agreed that tax credit sellers and buyers could ignore a price formula called for in laws the Legislature passed to control energy tax credit prices. However, that agreement would remain secret: the Department of Revenue never formalized the agreement and it remained unwritten. Both the Department of Energy and Department of Revenue confirmed they had no written agreement on the issue.
The secrecy allowed the few people who knew about the interpretation, including tax credit brokers and certain credit recipients, a competitive edge because they could offer more deeply discounted credits.
Oregon issues tax credits to renewable energy and efficiency projects to help offset capital costs. Recipients can use them to reduce taxes, or sell them to raise cash. Energy officials’ decisions to allow the discounted tax credit sales resulted in less money going to the projects the tax breaks were meant to incentivize.
For example, Sky Lakes Medical Center in Klamath Falls was allowed to sell its tax credit for 79 cents on the dollar, instead of 91 cents on the dollar as required under price regulations.
State law calls for the Oregon Department of Energy to adopt rules for energy tax credits that include a formula to determine the prices at which credits could be sold.
“We were in agreement with the Department of Energy that their rule exceeded their statutory authority,” Joy Krawczyk, a spokeswoman for the Department of Revenue, wrote in an email. “Statute allows price setting for preliminary certificates, but statute doesn’t require a price setting formula for final certificates.”
Under that interpretation, the price formula required in state law would not apply to tax credit sales. Its only use would be to provide a theoretical, nonobligatory sale price on the preliminary certificate, which tells applicants the size of the tax credit they will qualify for if they complete their transit, energy efficiency or alternative fuel projects as promised. The Department of Revenue did not respond to a question about whether former Gov. John Kitzhaber was informed of the interpretation.
According to the Department of Revenue, the agency’s legislative coordinator Deanna Mack was the only agency employee involved in discussions with Department of Energy on the issue in December 2014. However, public records provided by a tax credit broker show the Department of Revenue’s corporation tax policy coordinator, Jeff Henderson, was kept in the loop on Buckley’s discussions with brokers about tax credit sales as early as October 2014.
Krawczyk said the inclusion of a revenue employee on such a discussion was not unusual.
“Ultimately, we’re included on a number of emails from Energy because we’re responsible for applying the credits claimed on returns and because we inform Energy, upon request, if any portion of a credit has been used when an owner is looking for transfer the credit, as only completely unused credits can be transferred,” Krawczyk wrote.