I concur with the Court's holding today that under the circumstances of this case the PUC lacked retroactive ratemaking authority. However, because the Court also approves a calculation of GTE's tax liability that may result in ratepayers reimbursing GTE for taxes that the utility will never actually pay, I dissent in part. In so doing, the Court misconstrues section 41(c)(2) of PURA1 and our precedent. I thus concur in Parts I, II, and IV of the Court's opinion, and in the corresponding portion of Part V, but dissent from Part III.
The Court's opinion fairly states the facts giving rise to the issue of retroactive ratemaking. Additionally, however, the facts were that to determine GTE's reasonable and necessary operating expenses for ratemaking purposes, the PUC considered GTE's federal income tax liability. GTE Corporation is the parent company of the utility. GTE Corporation filed consolidated income tax returns for GTE and unregulated affiliated companies. When the affiliated entities lost money, the consolidated returns reflected the losses as tax deductions. Consequently, the consolidated returns showed a lower tax liability for GTE Corporation's companies than they would have had without the tax deductions due to losses. In determining GTE's reasonable and necessary operating expenses, the PUC did not consider these tax deductions when calculating GTE's "fair share" of income tax liability. In effect, the PUC calculated GTE's fair share of tax liability under the consolidated returns as if GTE had filed separate returns without any deductions. The trial court and a majority of this Court approve the PUC's approach in calculating GTE's tax liability. I disagree with this part of the Court's opinion. I think the court of appeals correctly held that the PUC erred in omitting consideration of the tax deductions in the consolidated returns when it calculated GTE's federal income tax liability. 833 S.W.2d 153, 163-69.
The PUC argues that it could ignore tax savings realized in consolidated returns filed by GTE Corporation and tax deductions that GTE took for expenses that section 41(c)(3) of PURA disallows from ratemaking. I disagree, and dissent from that part of the Court's opinion that approves the PUC's treatment of GTE's tax savings. This approach overlooks the language of section 41(c)(2) of PURA,2 is contrary toPublic Util. Comm'n v. Houston Lighting Power Co.,748 S.W.2d 439 (Tex. 1987) (HL P ), appealdismissed, 488 U.S. 805, 109 S.Ct. 36, 102 L.Ed.2d 16 (1988), and unfairly requires ratepayers to reimburse GTE for taxes it will never actually pay.
The PUC must balance two goals. It must ensure that GTE charges customers just and reasonable rates and that GTE's revenues generate a reasonable return for the utility above reasonable and necessary operating expenses. TEX.REV.CIV.STAT. art. 1446c, §§ 38, 39(a) (Vernon Supp. 1995). PURA's formula for striking the balance is that a utility's expenses, plus a reasonable return, should equal a just and reasonable customer rate. This formula links the two concerns together. Therefore, customer service rates ought to reflect an increase or decrease in a utility's expenses. If GTE's expenses decrease, customer service rates should fall.
Customers must pay for a utility's tax liability as an expense. HL P, 748 S.W.2d at 441. Section 41(c)(2) of PURA addresses the special situation when a utility files consolidated returns with its unregulated affiliated companies. The section states:
*Page 418If a public utility is a member of an affiliated group that is eligible to file a consolidated
income tax return, and if it is advantageous to the public utility to do so, income taxes shall be computed as though a consolidated return had been so filed and the utility had realized its fair share of the savings resulting from the consolidated return, unless it is shown to the satisfaction of the regulatory authority that it was reasonable to choose not to consolidate returns.
TEX.REV.CIV.STAT. art. 1446c, § 41(c)(2) (Vernon Supp. 1995) (emphasis added). The PUC failed to apply this section properly when it calculated GTE's tax expense liability. The PUC computed the utility's income taxes as though GTE filed separate returns, and did not attempt to apportion to GTE its fair share of tax savings realized in GTE Corporation's consolidated returns.
The PUC did not correctly construe section 41(c)(2). The Court today defers to the PUC on the ground that the PUC has great discretion in the ratemaking process. Such reasoning is persuasive only as a basis to avoid analyzing the meaning of section 41(c)(2). The PUC has no greater expertise than this Court in construing statutory meaning. Section 41(c)(2) requires the PUC to fairly allocate to GTE the savings that result from filing consolidated returns with its affiliated companies. In fact, even if GTE did not file consolidated returns, the section would require the PUC to allocate theoretical savings. Section 41(c)(2) plainly states that a public utility should share in all savingsrealized from a consolidated return. Therefore, I construe section 41(c)(2) as requiring that the PUC determine the utility's fair share of the tax savings.
Subsection (3) of section 41(c) provides no basis for the PUC to exclude savings realized in the consolidated returns from its calculation of GTE's tax liability. That section directs the PUC to disallow four categories of expenses. See TEX.REV.CIV.STAT. art. 1446c, § 41(c)(3)(A)-(D) (Vernon Supp. 1995). In other words, a utility cannot make customers pay for these expenses. None of the four categories disallow the PUC from considering savings that a utility realizes by filing consolidated returns.3
In addition, HL P compels the PUC to determine the fair share of actual tax savings due to filing consolidated returns and due to tax deductions. See 748 S.W.2d at 441 n. 1 (discussing Federal Power Comm'n v. United GasPipe Line Co., 386 U.S. 237, 87 S.Ct. 1003, 18 L.Ed.2d 18 (1967)). HL P held that a "utility's rates must reflect the tax liability actually incurred." Id. at 442. In the usual ratemaking context, this statement means that the PUC must evaluate historical data on a utility's actual tax liability when it sets the future rates. The PUC did not follow this rule. By not considering the savings GTE realized by filing consolidated returns, the PUC measured the expense of GTE's tax liability as if GTE had filed separate returns. Likewise, by not considering GTE's tax deductions for lobbying, advertising, and other expenses disallowed for ratemaking purposes by section 41(c)(3) of PURA,4 the PUC measured GTE's tax liability as if GTE had not taken these deductions. Although the PUC must disallow these expenses in calculating the rate base, it does not follow that the PUC can overlook the tax deductions that GTE takes for them. HL P makes this point:
*Page 419 748 S.W.2d at 442. The PUC's approach violates HL P 's directive. As a result, GTE is passing on to consumers a hypothetical tax expense. The PUC should not require ratepayers to pay phantom taxes in lieu of a reasonable estimate of actual tax expense based on past years' data. See id. at 441 n. 1 (summarizing FederalPower, 386 U.S. at 246-47, 87 S.Ct. at 1008-09);Washington Gas Light Co. v. Public Serv. Comm'n,450 A.2d 1187, 1234-35 (D.C. 1982)) (approving a utility commission's rate calculation in which it halved the utility's tax liability expense estimate, based on savings in the consolidated tax return due to losses at an unregulated subsidiary company).[R]atepayers can be held accountable only for those tax expenses that are actually incurred by a utility. Accordingly, when a utility claims federal income tax deductions . . . the resulting tax savings will necessarily reduce the utility's actual federal income tax expense. This will be the effect whether the expenses are allowed or disallowed in the calculation of a new rate.
The majority's attempt to distinguish HL P, a ratemaking case, from the present ratemaking case is unpersuasive. The majority says the rate order under review differs from that in HL P because the PUC must base GTE's rates on test year results, estimated income tax calculations, and hypothetical returns. The majority's distinction is illusory. After we remanded in HL P, the PUC likely used the same kind of information to set Houston Lighting Power's service rates. Furthermore, the difficulty of prospective ratemaking is not a sufficient reason to omit a portion of the analysis, for example, inquiry into a utility's fair share of tax savings under consolidated returns or its tax deductions. It is the PUC's role to handle these complexities. The amounts of GTE's fair share of tax savings and GTE's tax deductions are questions of fact for the PUC's determination. In calculating GTE's expenses for ratemaking purposes, HL P requires that the PUC take into account the tax savings realized in the consolidated returns and tax deductions, including those taken for expenses disallowed by section 41(c)(3). I stand by our holding in HL P, that actual tax savings "should inure to the benefit of the ratepayers." 748 S.W.2d at 442.
Given the directives of section 41(c)(2) and HL P, 748 S.W.2d at 441-42, the PUC erred by failing to allocate to GTE a fair share of the tax savings realized in the consolidated returns when it calculated the service rates, and excluding tax deductions that GTE took in its income tax returns. As a result, the PUC's estimate of GTE's tax liability is artificially high. No longer is there a balance between customers' rates and GTE's reasonable return above actual operating expenses. To charge ratepayers for a tax expense that may be more than GTE actually ever will pay is not just and reasonable. By contrast, allocating a fair share of tax savings to GTE and recognizing GTE's tax deductions would benefit consumers in the form of lower rates without reducing the net return for GTE or its investors. To put it in terms of PURA's formula, GTE's lower expenses due to actual reductions in tax liability, plus an unaltered reasonable rate of return, should equal a lower customer rate.
For these reasons, I concur in the Court's disapproval of the PUC's retroactive ratemaking under the facts of this case. However, I dissent from the Court's approval of the PUC's treatment of GTE's tax liability. On the latter issue, I would affirm the judgment of the court of appeals, 833 S.W.2d at 168-69, and hold that a regulatory agency must consider actual tax liability that results when a utility files consolidated income tax returns and takes tax deductions.