Supreme Court Rules Utilities Can Claim U.S. Tax Credit on U.K. Windfall Tax

   By Brent Kendall 
 

WASHINGTON--The U.S. Supreme Court ruled Monday that utility companies that paid a windfall tax in the United Kingdom can claim a foreign tax credit on their U.S. tax returns.

The ruling was a win for PPL Corp. (PPL), which sought a U.S. credit after U.K. authorities assessed a windfall tax of about $140 million on a utility PPL partially owned.

The subsidiary was one of several regional utilities that had been privatized in the U.K. Amid public concern that the government sold the utilities too cheaply, Parliament enacted a one-time windfall tax on the companies in 1997.

The U.S. Tax Court in 2010 sided with PPL in its dispute with the Internal Revenue Service, but Philadelphia's Third U.S. Circuit Court of Appeals in 2011 overturned the decision and ruled for the government, finding the windfall tax was not creditable in the U.S.

PPL recorded a $39 million expense after that ruling.

The Supreme Court, in an opinion by Justice Clarence Thomas, reversed the appeals-court decision and sided with the company.

Justice Thomas, in a unanimous opinion, said the "economic substance" of the U.K. windfall tax "is that of a U.S. income tax," which made the U.K. tax creditable.

The legal issue had divided lower courts, and the high court's decision will effectively affirm a different appeal court's ruling for Entergy Corp. (ETR) in a similar pending case.

Entergy, which also paid the U.K. windfall tax on a subsidiary utility, had prevailed last year at a New Orleans appeals court that allowed the tax credit.

Entergy said in a recent regulatory filing that its "total exposure" in the case was $254 million.

American Electric Power Co. (AEP) also stands to be affected by Monday's ruling. It filed a brief in the PPL case saying it had a similar dispute pending with the IRS.

 
   Write to Brent Kendall at [e-mail] 
 

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