Cleveland Electric Illuminating Co. v. Public Utilities Commission

Per Curiam.

I

The first issue before us is whether the company is entitled to recover the payment of an increased excise tax levy made after November 15, 1981 pursuant to legislative enactment Am. Sub. H. B. No. 694, effective May ,1, 1981. This legislation increased the excise tax rate on gross receipts for public utilities in three ways. First, the permanent tax rate was increased from 4 percent to 4.25 percent. Second, a temporary one-year tax increase of .25 percent was imposed. Third, a surtax of .21 percent was levied. The three increases, totaling .71 percent, were effective *137with gross receipts collected on or after May 1, 1981. Also included in Am. Sub. H. B. No. 694 was R.C. 4909.161, which provides as follows:

“Notwithstanding the provisions of Chapters 4905. and 4909. of the Revised Code, the payment of any type of increased excise tax levy shall be considered to be a normal expense incurred by a public utility in the course of rendering service- to the public and may be recovered as such in accordance with an order of the public utilities commission. Any public utility required to pay any such increased excise tax levy may file with the public utilities commission revised rate schedules which will permit full recovery on an interim or permanent basis in its rates, of the amount of any resultant increased tax payments and the commission shall promptly act to approve such schedules.”

By entry dated November 25, 1981 in case No. 81-1408-AU-UNC, the commission established procedures for utilities seeking relief under R.C. 4909.161 that would allow the recovery of the payment of increased excise taxes. The company filed its application on December 15,1981, in case No. 81-1408-AU-UNC, to revise its rates in order to fully recover the excise tax increase. By entry dated December 23,1981, the commission approved that application and authorized a .71 percent surcharge. The company began billing the surcharge with bills rendered on and after January 1, 1982. The surcharge was to remain in effect until the company fully recovered the additional taxes.

Thereafter, the General Assembly enacted legislation further extending and increasing excise tax liability for public utilities. In 1982, Am. Sub. H. B. No. 530 extended the .25 percent temporary tax increase one additional year, and the .21 percent surtax was increased to .25 percent. In case No. 82-1268-AU-UNC, the commission authorized the company to increase the surcharge to .75 percent with bills rendered on or after January 7, 1983. In 1983, Am. Sub. H. B. No. 291 terminated the temporary tax and surtax and permanently set the gross receipts tax rates at 4.75 percent. On January 10, 1984, the commission in case No. 82-1268-AU-UNC authorized the company to continue collecting -the surcharge until such time as the permanent 4.75 percent was included in the base rates.

In this case the 4.75 percent rate was incorporated into the company’s base rates, but the company alleged that this formula prevented it from recovering the additional .71 percent excise tax expense incurred in the period from May 1 to December 31, 1981. The commission denied the company relief stating that recovery permitted pursuant to R.C. 4909.161 was keyed to actual payment of the excise tax. The commission stated, “* * * CEI would be entitled to recover the December, 1981 installment, but has not provided any testimony or evidence indicating the level of such an installment. Therefore, this objection must be overruled. * * *”

In its entry on rehearing, the commission stated, “* * * CEI argues that the Commission erred in not permitting it to recover the $4.9 million amount for the excise taxes incurred from May to December, 1981. The *138Commission is not denying recovering [sic] for this portion of CEI’s excise tax liability; it is simply deferring recovery and recognizing this fact in the cash component of working capital. * * *”

On appeal the company states that it paid $4,982,202 in 1982 in excise tax levies that was not recovered in the surcharge permitted by the commission. As noted above, the commission acknowledges the payment of the excise tax in its entry on rehearing. As we previously stated in Dayton Power & Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St. 3d 91, paragraph one of the syllabus, “[p]ayment of any type of increased tax levy after November 15, 1981 shall be considered to be a normal expense incurred by a public utility in the course of rendering service to the public.” Consequently, it is clear that the company is entitled to recovery of payment of the increased excise tax levy made after November 15, 1981 pursuant to Am. Sub. H. B. No. 694.

Thus we reverse and direct the commission to allow the company to recover the difference between the excise tax payments and the monies already received thereon by way of a surcharge billed to its customers.

II

The next issue before us is whether the commission utilized a legal and appropriate method in calculating the company’s property tax deduction for ratemaking purposes.

It is axiomatic that the company is permitted to deduct its property taxes in the calculation of its federal income taxes. In every year since 1958 or 1959, the federal income tax deduction for property tax has been based upon the following year’s estimated property tax expense. In the present appeal, the company challenges the methodology used by the commission in the determination of the property tax deduction for ratemaking purposes. The company asserts that the actual calendar year-end property tax expense should be used for ratemaking purposes. In its application, the company requested that its property tax expense be calculated by multiplying the year-end property tax rate by the valuation of its property at the end of the test year. The commission’s staff initially agreed with and adopted the company’s methodology in its report to the commission because such methodology conformed with reality. However, Consumers’ Counsel objected and argued that the company’s methodology failed to recognize that the federal income tax deduction has in past years been based on the following year’s estimated property taxes. Consumers’ Counsel contended that the commission should use a reconciling adjustment that would flow through to the company’s ratepayers this “accelerated” tax deduction. Thereafter the staff revised its position and adopted Consumers’ Counsel’s posture. The company in rebuttal contended that the tax rate utilized by Consumers’ Counsel should be modified to reflect the effect of this court’s decision in Condee v. Lindley (1984), 12 Ohio St. 3d 90, which caused a change in the effective tax rates. The company reaffirmed its argument that the commission should multiply the *139year-end property tax rate by the property valuation at the end of the test year to determine the appropriate property tax deduction.

Nevertheless, the commission adopted its staffs recommendation but adjusted it as requested by the company to account for the tax rate changes resulting from Condee. The commission rejected the company’s argument that it should utilize the year-end property tax expense and instead adopted a methodology that reconciled the timing difference between the year-end actual property tax expense and the estimated property tax expense for federal income tax purposes.

On appeal the company argues that, under the circumstances of the present case where the calendar year and test year coincide, the reconciliation formula used by the commission produces a larger property tax deduction than the company actually has for the test year. We agree and hold that the commission should use the actual calendar year-end property tax expense as the federal income tax deduction for ratemaking purposes.

We have previously held that generally accepted accounting principles should be followed in determining the available income tax deductions for ratemaking purposes. Ohio Edison Co. v. Pub. Util. Comm. (1962), 173 Ohio St. 478 [20 O.O.2d 108]. The methodology used by the commission rests upon the premise that the company’s actual property tax expense for any given year is not what the company is allowed to deduct from its federal income taxes for that year but some greater fictitious amount. This premise is unsound.

Accordingly, it is obvious that the order of the Public Utilities Commission is both unreasonable and unlawful and must be reversed. We remand for further proceedings in accordance with this opinion.

Order reversed and, cause remanded.

Sweeney, Holmes and Wright, JJ., concur. Douglas, J., concurs in judgment only. Celebrezze, C.J., Locher and C. Brown, JJ., dissent.