Tax credit issue plods along toward Supreme Court
Alaska lawmakers are relying on the prospect of a favorable court ruling this year to pay down the state’s remaining and roughly $700 million obligation of refundable oil and gas tax credits.
The 2020 state fiscal year operating budget the Legislature passed June 10 includes language authorizing Department of Revenue officials to sell bonds through the Alaska Tax Credit Certificate Bond Corp. that would allow the state to pay off the entirety of the obligation.
The budget also reauthorizes a $27 million unused appropriation approved last year to make the first interest payment on the debt if the 10-year bonds are sold under House Bill 331.
However, the budget approved last year — for the fiscal year that ends June 30 — also contained a $100 million contingency appropriation in case the bond sale didn’t occur or some companies holding the credits did not agree to the terms that come with participating in the bond plan.
As it turned out, the bond sale originally set for last August was scuttled by a public interest lawsuit by former University of Alaska Regent and Juneau resident Eric Forrer challenging the constitutionality of HB 331.
That led the state to pay just $2.8 million in tax credits during 2018, according to Department of Revenue documents, the smallest annual credit payment total in years. Previous tax credit payments totaled in the tens or hundreds of millions of dollars per year.
In response, Revenue officials released the $100 million early this year as a means to provide the small explorers and producers eligible for the credits — several of which have had significant financial issues in recent years — some financial relief, according to Commissioner Bruce Tangeman.
“These companies have gone through this process for too long,” Tangeman said in a brief interview.
The bond plan was hatched by former Gov. Bill Walker’s administration early last year as a way to quickly pay off the credit holders, put what had become an extremely messy political issue to rest, and eventually restore the state’s reputation among private financial institutions that lent money to companies backed by the presumption of past credit payments.
At the time, administration officials estimated the final tax credit obligation would total nearly $1 billion but Tangeman said the latest total after the $100 million installment is closer to $700 million.
The reason for the discrepancy is unclear; however, some small companies could have sold their credit certificates to larger North Slope oil producers that are not eligible for payment but can use the credits against their annual oil production tax liability. Such transactions would not have to be publicly reported and would reduce the final amount of money the state is obligated to pay.
Numerous oil and gas companies used the state credit certificates as collateral to secure loans from large banks to fund exploration and other work. A commonly used credit for explorers with no production and no tax liability had the state paying 35 percent of the cost of qualifying work in cash.
When Walker diverted from the state’s prior practice — but not law — of paying off the annual credit bill in full each year by vetoing $200 million of a coincidentally $700 million appropriation in the face of a $3 billion-plus budget deficit in 2015, it ostensibly froze the market that had grown around the state tax credits.
Walker vetoed another $430 million of the payments in 2016 when he also reduced the Permanent Fund dividend appropriation by half.
Subsequent years of minimum tax credit payments based on a statutory formula that incorporates the state’s oil production tax revenue also pushed some companies to default on those loans.
Many Republican legislators who were roundly critical of Walker’s approach to the refundable industry tax credit program now acknowledge the now-defunct policy became unaffordable when oil prices began to fall in late 2014, but still contend the state should make paying the remaining balance a priority.
That’s where the tax credit bonds come in.
To get paid sooner, the credit holders would have to accept a discount of up to 10 percent less than the face value of the certificates. The state Department of Revenue would then use the difference between the credit values and the discounted amount to cover the borrowing costs.
Supporters of the bond plan insist it is a way to restart stalled investment by small companies in Alaska’s oil and gas fields; Forrer and some in the Legislature contend it flies in the face of strict limitations on the state’s ability to incur debt laid out in the Alaska Constitution.
The state constitution generally prohibits lawmakers from taking on debt unless it is for capital projects that are also approved by voters, in response to a natural disaster or invasion, or it is in the form of bonds sold to support a specific project repaid through the eventual revenue of that project. State corporations such as the Alaska Industrial Development and Export Authority and the Alaska Housing Finance Corp. regularly utilize such revenue bonds.
Superior Court Judge Jude Pate dismissed Forrer’s lawsuit in January, concluding that while the fiscal policy implications of the bonds are worthy of debate, the plan fits within the constitutional sideboards relating to state debt.
Forrer appealed Pate’s ruling to the Alaska Supreme Court and has said he believes allowing the tax credit bond plan to move ahead would give lawmakers and local governments the freedom to employ the scheme in countless other situations, potentially strapping the state with substantial additional debt.
State officials contend similar plans have already been employed to pay for capital projects, including the Goose Creek Correctional Facility in the Matanuska-Susitna Borough.
State attorneys argue, and Pate agreed, that a provision in HB 331 establishing the plan that calls for the bond repayments to be “subject to appropriation” by the Legislature each year means the State of Alaska would not ultimately be liable for defaulting on the payments.
Proponents acknowledge that not making bond payments would likely have a significant negative impact on the state’s credit rating but the state would technically not be liable for the bonds if the Legislature in any year decided not to repay the bonds.
Instead, bondholders would have to sue the Alaska Tax Credit Certificate Bond Corp. — which Forrer notes would be comprised of a couple Revenue Department leaders and would have no money of its own — and not the State of Alaska for recourse because the state corporation would actually hold the debt.
Forrer’s attorney, longtime Juneau lawyer Joe Geldhof, wrote in a 60-page May 16 brief filed with the Supreme Court that Judge Pate incorrectly overlooked the plain language and meaning of the state constitution.
“The position advanced by the state and adopted by the trial court to the effect that the debt is not debt because the statute says it is not debt amounts to an unsupported argument resting on circular ‘logic’ that should be viewed with doubt when evaluating a constitutional claim,” Geldhof wrote.
“The Alaska Constitution is our state’s guiding framework of law and policy and its intent should be respected; the state’s search for a clever loophole — some sort of technicality — to provide an end-run around the constitution’s clear intent should not be sanctioned,” he continued. “the state should be deterred from offensive attempts to disregard the known meaning of the constitution, now and into the future.”
In a 49-page June 19 brief, state attorneys cited prior Supreme Court cases that permit the state to take on some forms of debt and contend that even if the court finds that HB 331 is prohibited by the constitutional limitations on debt, “it constitutes a refinancing of a pre-existing state financial obligation rather than the creation of a new one and the bonds are backed only by the resources of an independent public corporation rather than by the state treasury.”
Oral arguments before the Supreme Court are scheduled for Sept. 12.
Elwood Brehmer can be reached at [email protected].