S 2967 IS
106th CONGRESS
2d Session
S. 2967
To amend the Internal Revenue Code of 1986 to facilitate competition
in the electric power industry.
IN THE SENATE OF THE UNITED STATES
July 27, 2000
Mr. MURKOWSKI (for himself, Mr. GORTON, Mr. KERREY, Mr. JEFFORDS, and Mr.
THOMPSON) introduced the following bill; which was read twice and referred to
the Committee on Finance
A BILL
To amend the Internal Revenue Code of 1986 to facilitate competition
in the electric power industry.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Electric Power Industry Tax Modernization
Act'.
SEC. 2. TAX-EXEMPT BOND FINANCING OF CERTAIN ELECTRIC FACILITIES.
(a) RULES APPLICABLE TO ELECTRIC OUTPUT FACILITIES- Subpart A of part IV
of subchapter B of chapter 1 of the Internal Revenue Code of 1986 (relating to
tax exemption requirements for State and local bonds) is amended by inserting
after section 141 the following new section:
`SEC. 141A. ELECTRIC OUTPUT FACILITIES.
`(a) ELECTION TO TERMINATE TAX-EXEMPT BOND FINANCING FOR CERTAIN ELECTRIC
OUTPUT FACILITIES-
`(1) IN GENERAL- A governmental unit may make an irrevocable election
under this paragraph to terminate certain tax-exempt financing for electric
output facilities. If the governmental unit makes such election,
then--
`(A) except as provided in paragraph (2), on or after the date of such
election the governmental unit may not issue with respect to an electric
output facility any bond the interest on which is exempt from tax under
section 103, and
`(B) notwithstanding paragraph (1) or (2) of section 141(a) or
paragraph (4) or (5) of section 141(b), no bond which was issued by such
unit with respect to an electric output facility before the date of
enactment of this subsection (or which is described in paragraph (2)(B),
(D), (E) or (F)) the interest on which was exempt from tax on such date,
shall be treated as a private activity bond.
`(2) EXCEPTIONS- An election under paragraph (1) does not apply to any
of the following bonds:
`(A) Any qualified bond (as defined in section 141(e)).
`(B) Any eligible refunding bond (as defined in subsection
(d)(6)).
`(C) Any bond issued to finance a qualifying transmission facility or
a qualifying distribution facility.
`(D) Any bond issued to finance equipment or facilities necessary to
meet Federal or State environmental requirements applicable to an existing
generation facility.
`(E) Any bond issued to finance repair of any existing generation
facility. Repairs of facilities may not increase the generation capacity
of the facility by more than 3 percent above the greater of its nameplate
or rated capacity as of the date of enactment of this section.
`(F) Any bond issued to acquire or construct (i) a qualified facility,
as defined in section 45(c)(3), if such facility is placed in service
during a period in which a qualified facility may be placed in service
under such section, or (ii) any energy property, as defined in section
48(a)(3).
`(3) FORM AND EFFECT OF ELECTION-
`(A) IN GENERAL- An election under paragraph (1) shall be made in such
a manner as the Secretary prescribes and shall be binding on any successor
in interest to, or any related party with respect to, the electing
governmental unit. For purposes of this paragraph, a governmental unit
shall be treated as related to another governmental unit if it is a member
of the same controlled group.
`(B) TREATMENT OF ELECTING GOVERNMENTAL UNIT- A governmental unit
which makes an election under paragraph (1) shall be treated for purposes
of section 141 as a person which is not a governmental unit and which is
engaged in a trade or business, with respect to its purchase of
electricity generated by an electric output facility placed in service
after such election, if such purchase is under a contract executed after
such election.
`(4) DEFINITIONS- For purposes of this subsection:
`(A) EXISTING GENERATION FACILITY- The term `existing generation
facility' means an electric generation facility in service on the date of
the enactment of this subsection or the construction of which commenced
before June 1, 2000.
`(B) QUALIFYING DISTRIBUTION FACILITY- The term `qualifying
distribution facility' means a distribution facility over which open
access distribution services described in subsection (b)(2)(C) are
provided.
`(C) QUALIFYING TRANSMISSION FACILITY- The term `qualifying
transmission facility' means a local transmission facility (as defined in
subsection (c)(3)(A)) over which open access transmission services
described in subparagraph (A), (B), or (E) of subsection (b)(2) are
provided.
`(b) PERMITTED OPEN ACCESS ACTIVITIES AND SALES TRANSACTIONS NOT A PRIVATE
BUSINESS USE FOR BONDS WHICH REMAIN SUBJECT TO PRIVATE USE RULES-
`(1) GENERAL RULE- For purposes of this section and section 141, the
term `private business use' shall not include a permitted open access
activity or a permitted sales transaction.
`(2) PERMITTED OPEN ACCESS ACTIVITIES- For purposes of this section, the
term `permitted open access activity' means any of the following
transactions or activities with respect to an electric output facility owned
by a governmental unit:
`(A) Providing nondiscriminatory open access transmission service and
ancillary services--
`(i) pursuant to an open access transmission tariff filed with and
approved by FERC, but, in the case of a voluntarily filed tariff, only
if the governmental unit voluntarily files a report described in
paragraph (c) or (h) of section 35.34 of title 18 of the Code of Federal
Regulations or successor provision (relating to whether or not the
issuer will join a regional transmission organization) not later than
the later of the applicable date prescribed in such paragraphs or 60
days after the date of the enactment of this section,
`(ii) under an independent system operator agreement, regional
transmission organization agreement, or regional transmission group
agreement approved by FERC, or
`(iii) in the case of an ERCOT utility (as defined in section
212(k)(2)(B) of the Federal Power Act (16 U.S.C. 824k(k)(2)(B)),
pursuant to a tariff approved by the Public Utility Commission of
Texas.
`(i) an independent system operator agreement,
`(ii) a regional transmission organization agreement, or
`(iii) a regional transmission group,
which has been approved by FERC, or by the Public Utility Commission
of Texas in the case of an ERCOT utility (as so defined). Such
participation may include transfer of control of transmission facilities
to an organization described in clause (i), (ii), or (iii).
`(C) Delivery on a nondiscriminatory open access basis of electric
energy sold to end-users served by distribution facilities owned by such
governmental unit.
`(D) Delivery on a nondiscriminatory open access basis of electric
energy generated by generation facilities connected to distribution
facilities owned by such governmental unit.
`(E) Other transactions providing nondiscriminatory open access
transmission or distribution services under Federal, State, or local open
access, retail competition, or similar programs, to the extent provided in
regulations prescribed by the Secretary.
`(3) PERMITTED SALES TRANSACTION- For purposes of this subsection, the
term `permitted sales transaction' means any of the following sales of
electric energy from existing generation facilities (as defined in
subsection (a)(4)(A)):
`(A) The sale of electricity to an on-system purchaser, if the seller
provides open access distribution service under paragraph (2)(C) and, in
the case of a seller which owns or operates transmission facilities, if
such seller provides open access transmission under subparagraph (A), (B),
or (E) of paragraph (2).
`(B) The sale of electricity to a wholesale native load purchaser or
in a wholesale stranded cost mitigation sale--
`(i) if the seller provides open access transmission service
described in subparagraph (A), (B), or (E) of paragraph (2),
or
`(ii) if the seller owns or operates no transmission facilities and
transmission providers to the seller's wholesale native load purchasers
provide open access transmission service described in subparagraph (A),
(B), or (E) of paragraph (2).
`(4) DEFINITIONS AND SPECIAL RULES- For purposes of this
subsection:
`(A) ON-SYSTEM PURCHASER- The term `on-system purchaser' means a
person whose electric facilities or equipment are directly connected with
transmission or distribution facilities which are owned by a governmental
unit, and such person--
`(i) purchases electric energy from such governmental unit at retail
and either was within such unit's distribution area in the base year or
is a person as to whom the governmental unit has a service obligation,
or
`(ii) is a wholesale native load purchaser from such governmental
unit.
`(B) WHOLESALE NATIVE LOAD PURCHASER- The term `wholesale native load
purchaser' means a wholesale purchaser as to whom the governmental unit
had--
`(i) a service obligation at wholesale in the base year,
or
`(ii) an obligation in the base year under a requirements contract,
or under a firm sales contract which has been in effect for (or has an
initial term of) at least 10 years,
but only to the extent that in either case such purchaser resells the
electricity at retail to persons within the purchaser's distribution
area.
`(C) WHOLESALE STRANDED COST MITIGATION SALE- The term `wholesale
stranded cost mitigation sale' means 1 or more wholesale sales made in
accordance with the following requirements:
`(i) A governmental unit's allowable sales under this subparagraph
during the recovery period may not exceed the sum of its annual load
losses for each year of the recovery period.
`(ii) The governmental unit's annual load loss for each year of the
recovery period is the amount (if any) by which--
`(I) sales in the base year to wholesale native load purchasers
which do not constitute a private business use, exceed
`(II) sales during that year of the recovery period to wholesale
native load purchasers which do not constitute a private business
use.
`(iii) If actual sales under this subparagraph during the recovery
period are less than allowable sales under clause (i), the amount not
sold (but not more than 10 percent of the aggregate allowable sales
under clause (i)) may be carried over and sold as wholesale stranded
cost mitigation sales in the calendar year following the recovery
period.
`(D) RECOVERY PERIOD- The recovery period is the 7-year period
beginning with the start-up year.
`(E) START-UP YEAR- The start-up year is whichever of the following
calendar years the governmental unit elects:
`(i) The year the governmental unit first offers open transmission
access.
`(ii) The first year in which at least 10 percent of the
governmental unit's wholesale customers' aggregate retail native load is
open to retail competition.
`(iii) The calendar year which includes the date of the enactment of
this section, if later than the year described in clause (i) or
(ii).
`(F) PERMITTED SALES TRANSACTIONS UNDER EXISTING CONTRACTS- A sale to
a wholesale native load purchaser (other than a person to whom the
governmental unit had a service obligation) under a contract which
resulted in private business use in the base year shall be treated as a
permitted sales transaction only to the extent that sales under the
contract exceed the lesser of--
`(i) in any year, the private business use which resulted during the
base year, or
`(ii) the maximum amount of private business use which could occur
(absent the enactment of this section) without causing the bonds to be
private activity bonds.
This subparagraph shall only apply to the extent that the sale is
allocable to bonds issued before the date of the enactment of this section
(or bonds issued to refund such bonds).
`(G) JOINT ACTION AGENCIES- A joint action agency, or a member of (or
a wholesale native load purchaser from) a joint action agency, which is
entitled to make a sale described in subparagraph (A) or (B) in a year,
may transfer the entitlement to make that sale to the member (or
purchaser), or the joint action agency, respectively.
`(c) CERTAIN BONDS FOR TRANSMISSION AND DISTRIBUTION FACILITIES NOT TAX
EXEMPT-
`(1) GENERAL RULE- For purposes of this title, no bond the interest on
which is exempt from taxation under section 103 may be issued on or after
the date of the enactment of this subsection if any of the proceeds of such
issue are used to finance--
`(A) any transmission facility which is not a local transmission
facility, or
`(B) a start-up utility distribution facility.
`(2) EXCEPTIONS- Paragraph (1) shall not apply to--
`(A) any qualified bond (as defined in section 141(e)),
`(B) any eligible refunding bond (as defined in subsection (d)(6)),
or
`(C) any bond issued to finance--
`(i) any repair of a transmission facility in service on the date of
the enactment of this section, so long as the repair does not increase
the voltage level over its level in the base year or increase the
thermal load limit of the transmission facility by more than 3 percent
over such limit in the base year,
`(ii) any qualifying upgrade of a transmission facility in service
on the date of the enactment of this section, or
`(iii) a transmission facility necessary to comply with an
obligation under a shared or reciprocal transmission agreement in effect
on the date of the enactment of this section.
`(3) LOCAL TRANSMISSION FACILITY DEFINITIONS AND SPECIAL RULES- For
purposes of this subsection--
`(A) LOCAL TRANSMISSION FACILITY- The term `local transmission
facility' means a transmission facility which is located within the
governmental unit's distribution area or which is, or will be, necessary
to supply electricity to serve retail native load or wholesale native load
of 1 or more governmental units. For purposes of this subparagraph, the
distribution area of a public power authority which was created in 1931 by
a State statute and which, as of January 1, 1999, owned at least one-third
of the transmission circuit miles rated at 230kV or greater in the State,
shall be determined under regulations of the Secretary.
`(B) RETAIL NATIVE LOAD- The term `retail native load' is the electric
load of end-users served by distribution facilities owned by a
governmental unit.
`(C) WHOLESALE NATIVE LOAD- The term `wholesale native load'
is--
`(i) the retail native load of a governmental unit's wholesale
native load purchasers, and
`(ii) the electric load of purchasers (not described in clause (i))
under wholesale requirements contracts which--
`(I) do not constitute private business use under the rules in
effect absent this subsection, and
`(II) were in effect in the base year.
`(D) NECESSARY TO SERVE LOAD- For purposes of determining whether a
transmission or distribution facility is, or will be, necessary to supply
electricity to retail native load or wholesale native load--
`(i) electric reliability standards or requirements of national or
regional reliability organizations, regional transmission organizations,
and the Electric Reliability Council of Texas shall be taken into
account, and
`(ii) transmission, siting, and construction decisions of regional
transmission organizations or independent system operators and State and
Federal agencies shall be presumptive evidence regarding whether
transmission facilities are necessary to serve native load.
`(E) QUALIFYING UPGRADE- The term `qualifying upgrade' means an
improvement or addition to transmission facilities in service on the date
of the enactment of this section which is ordered or approved by a
regional transmission organization, by an independent system operator, or
by a State regulatory or siting agency.
`(4) START-UP UTILITY DISTRIBUTION FACILITY DEFINED- For purposes of
this subsection, the term `start-up utility distribution facility' means any
distribution facility to provide electric service to the public that is
placed in service--
`(A) by a governmental unit which did not operate an electric utility
on the date of the enactment of this section, and
`(B) before the date on which such governmental unit operates in a
qualified service area (as such term is defined in section
141(d)(3)(B)).
A governmental unit is deemed to have operated an electric utility on
the date of the enactment of this section if it operates electric output
facilities which were operated by another governmental unit to provide
electric service to the public on such date.
`(d) DEFINITIONS; SPECIAL RULES- For purposes of this section--
`(1) BASE YEAR- The term `base year' means the calendar year which
includes the date of the enactment of this section or, at the election of
the governmental unit, either of the 2 immediately preceding calendar
years.
`(2) DISTRIBUTION AREA- The term `distribution area' means the area in
which a governmental unit owns distribution facilities.
`(3) ELECTRIC OUTPUT FACILITY- The term `electric output facility' means
an output facility that is an electric generation, transmission, or
distribution facility.
`(4) DISTRIBUTION FACILITY- The term `distribution facility' means an
electric output facility that is not a generation or transmission
facility.
`(5) TRANSMISSION FACILITY- The term `transmission facility' means an
electric output facility (other than a generation facility) that operates at
an electric voltage of 69kV or greater, except that the owner of the
facility may elect to treat any output facility that is a transmission
facility for purposes of the Federal Power Act as a transmission facility
for purposes of this section.
`(6) ELIGIBLE REFUNDING BOND- The term `eligible refunding bond' means
any State or local bond issued after an election described in subsection (a)
that directly or indirectly refunds any tax-exempt bond (other than a
qualified bond) issued before such election, if the weighted average
maturity of the issue of which the refunding bond is a part does not exceed
the remaining weighted average maturity of the bonds issued before the
election. In applying such term for purposes of subsection (c)(2)(B), the
date of election shall be deemed to be the date of the enactment of this
section.
`(7) FERC- The term `FERC' means the Federal Energy Regulatory
Commission.
`(8) GOVERNMENT-OWNED FACILITY- An electric output facility shall be
treated as owned by a governmental unit if it is an electric output facility
that either is--
`(A) owned or leased by such governmental unit, or
`(B) a transmission facility in which the governmental unit acquired
before the base year long-term firm capacity for the purposes of serving
customers to which the unit had at that time either--
`(i) a service obligation, or
`(ii) an obligation under a requirements contract.
`(9) REPAIR- The term `repair' shall include replacement of components
of an electric output facility, but shall not include replacement of the
facility.
`(10) SERVICE OBLIGATION- The term `service obligation' means an
obligation under State or Federal law (exclusive of an obligation arising
solely from a contract entered into with a person) to provide electric
distribution services or electric sales service, as provided in such
law.
`(e) SAVINGS CLAUSE- Subsection (b) shall not affect the applicability of
section 141 to (or the Secretary's authority to prescribe, amend, or rescind
regulations respecting) any transaction which is not a permitted open access
transaction or permitted sales transaction.'.
(b) REPEAL OF EXCEPTION FOR CERTAIN NONGOVERNMENTAL ELECTRIC OUTPUT
FACILITIES- Section 141(d)(5) of the Internal Revenue Code of 1986 is amended
by inserting `(except in the case of an electric output facility which is a
distribution facility),' after `this subsection'.
(c) CONFORMING AMENDMENT- The table of sections for subpart A of part IV
of subchapter B of chapter 1 of the Internal Revenue Code of 1986 is amended
by inserting after the item relating to section 141 the following new item:
`Sec. 141A. Electric output facilities.'
(d) EFFECTIVE DATE; APPLICABILITY-
(1) EFFECTIVE DATE- The amendments made by this section shall take
effect on the date of the enactment of this Act, except that a governmental
unit may elect to apply paragraphs (1) and (2) of section 141A(b), as added
by subsection (a), with respect to permitted open access activities entered
into on or after April 14, 1996.
(2) CERTAIN EXISTING AGREEMENTS- The amendment made by subsection (b)
(relating to repeal of the exception for certain nongovernmental output
facilities) does not apply to any acquisition of facilities made pursuant to
an agreement that was entered into before the date of the enactment of this
Act.
(3) APPLICABILITY- References in this Act to sections of the Internal
Revenue Code of 1986, shall be deemed to include references to comparable
sections of the Internal Revenue Code of 1954.
SEC. 3. INDEPENDENT TRANSMISSION COMPANIES.
(a) SALES OR DISPOSITIONS TO IMPLEMENT FEDERAL ENERGY REGULATORY
COMMISSION OR STATE ELECTRIC RESTRUCTURING POLICY-
(1) IN GENERAL- Section 1033 of the Internal Revenue Code of 1986
(relating to involuntary conversions) is amended by redesignating subsection
(k) as subsection (l) and by inserting after subsection (j) the following
new subsection:
`(k) SALES OR DISPOSITIONS TO IMPLEMENT FEDERAL ENERGY REGULATORY
COMMISSION OR STATE ELECTRIC RESTRUCTURING POLICY-
`(1) IN GENERAL- For purposes of this subtitle, if a taxpayer elects the
application of this subsection to a qualifying electric transmission
transaction and the proceeds received from such transaction are invested in
exempt utility property, such transaction shall be treated as an involuntary
conversion to which this section applies.
`(2) EXTENSION OF REPLACEMENT PERIOD- In the case of any involuntary
conversion described
in paragraph (1), subsection (a)(2)(B) shall be applied by substituting `4
years' for `2 years' in clause (i) thereof.
`(3) QUALIFYING ELECTRIC TRANSMISSION TRANSACTION- For purposes of this
subsection, the term `qualifying electric transmission transaction' means
any sale or other disposition of property used in the trade or business of
electric transmission, or an ownership interest in a person whose primary
trade or business consists of providing electric transmission services, to
another person that is an independent transmission company.
`(4) INDEPENDENT TRANSMISSION COMPANY- For purposes of this subsection,
the term `independent transmission company' means--
`(A) a regional transmission organization approved by the Federal
Energy Regulatory Commission,
`(i) who the Federal Energy Regulatory Commission determines in its
authorization of the transaction under section 203 of the Federal Power
Act (16 U.S.C. 823b) is not a market participant within the meaning of
such Commission's rules applicable to regional transmission
organizations, and
`(ii) whose transmission facilities to which the election under this
subsection applies are placed under the operational control of a Federal
Energy Regulatory Commission-approved regional transmission organization
within the period specified in such order, but not later than the close
of the replacement period, or
`(C) in the case of facilities subject to the exclusive jurisdiction
of the Public Utility Commission of Texas, a person which is approved by
that Commission as consistent with Texas State law regarding an
independent transmission organization.
`(5) EXEMPT UTILITY PROPERTY- For purposes of this subsection, the term
`exempt utility property' means--
`(A) property used in the trade or business of generating,
transmitting, distributing, or selling electricity or producing,
transmitting, distributing, or selling natural gas, or
`(B) stock in a person whose primary trade or business consists of
generating, transmitting, distributing, or selling electricity or
producing, transmitting, distributing, or selling natural gas.
`(6) SPECIAL RULES FOR CONSOLIDATED GROUPS-
`(A) INVESTMENT BY QUALIFYING GROUP MEMBERS-
`(i) IN GENERAL- This subsection shall apply to a qualifying
electric transmission transaction engaged in by a taxpayer if the
proceeds are invested in exempt utility property by a qualifying group
member.
`(ii) QUALIFYING GROUP MEMBER- For purposes of this subparagraph,
the term `qualifying group member' means any member of a consolidated
group within the meaning of section 1502 and the regulations promulgated
thereunder of which the taxpayer is also a member.
`(B) COORDINATION WITH CONSOLIDATED RETURN PROVISIONS- A sale or other
disposition of electric transmission property or an ownership interest in
a qualifying electric transmission transaction, where an election is made
under this subsection, shall not result in the recognition of income or
gain under the consolidated return provisions of subchapter A of chapter
6. The Secretary shall prescribe such regulations as may be necessary to
provide for the treatment of any exempt utility property received in a
qualifying electric transmission transaction as successor assets subject
to the application of such consolidated return provisions.
`(7) ELECTION- Any election made by a taxpayer under this subsection
shall be made by a statement to that effect in the return for the taxable
year in which the qualifying electric transmission transaction takes place
in such form and manner as the Secretary shall prescribe, and such election
shall be binding for that taxable year and all subsequent taxable
years.'.
(2) SAVINGS CLAUSE- Nothing in section 1033(k) of the Internal Revenue
Code of 1986, as added by subsection (a), shall affect Federal or State
regulatory policy respecting the extent to which any acquisition premium
paid in connection with the purchase of an asset in a qualifying electric
transmission transaction can be recovered in rates.
(3) EFFECTIVE DATE- The amendments made by this subsection shall apply
to transactions occurring after the date of the enactment of this Act.
(b) Distributions of Stock To Implement Federal Energy Regulatory
Commission or State Electric Restructuring Policy.
(1) IN GENERAL- Section 355(e)(4) of the Internal Revenue Code of 1986
is amended by redesignating subparagraphs (C), (D), and (E) as subparagraphs
(D), (E), and (F), respectively, and by inserting after subparagraph (B) the
following new subparagraph:
`(C) DISTRIBUTIONS OF STOCK TO IMPLEMENT FEDERAL ENERGY REGULATORY
COMMISSION OR STATE ELECTRIC RESTRUCTURING POLICY-
`(i) IN GENERAL- Paragraph (1) shall not apply to any distribution
that is a qualifying electric transmission transaction. For purposes of
this subparagraph, a `qualifying electric transmission transaction'
means any distribution of stock in a corporation whose primary trade or
business consists of providing electric transmission services, where
such stock is later
acquired (or where the assets of such corporation are later acquired) by
another person that is an independent transmission company.
`(ii) INDEPENDENT TRANSMISSION COMPANY- For purposes of this
subsection, the term `independent transmission company'
means--
`(I) a regional transmission organization approved by the Federal
Energy Regulatory Commission,
`(II) a person who the Federal Energy Regulatory Commission
determines in its authorization of the transaction under section 203
of the Federal Power Act (16 U.S.C. 824b) is not a market participant
within the meaning of such Commission's rules applicable to regional
transmission organizations, and whose transmission facilities
transferred as a part of such qualifying electric transmission
transaction are placed under the operational control of a Federal
Energy Regulatory Commission-approved regional transmission
organization within the period specified in such order, but not later
than the close of the replacement period (as defined in section
1033(k)(2)), or
`(III) in the case of facilities subject to the exclusive
jurisdiction of the Public Utility Commission of Texas, a person that
is approved by that Commission as consistent with Texas State law
regarding an independent transmission organization.'.
(2) EFFECTIVE DATE- The amendments made by this subsection shall apply
to distributions occurring after the date of the enactment of this
Act.
SEC. 4. CERTAIN AMOUNTS RECEIVED BY ELECTRIC UTILITIES EXCLUDED FROM GROSS
INCOME AS CONTRIBUTIONS TO CAPITAL.
(a) IN GENERAL- Subsection (c) of section 118 of the Internal Revenue Code
of 1986 (relating to contributions to the capital of a corporation) is
amended--
(1) by striking `WATER AND SEWAGE DISPOSAL' in the heading and inserting
`CERTAIN',
(2) by striking `water or,' in the matter preceding subparagraph (A) of
paragraph (1) and inserting `electric energy, water, or',
(3) by striking `water or' in paragraph (1)(B) and inserting `electric
energy (but not including assets used in the generation of electricity),
water, or',
(4) by striking `water or' in paragraph (2)(A)(ii) and inserting
`electric energy (but not including assets used in the generation of
electricity), water, or',
(5) by inserting `such term shall include amounts paid as customer
connection fees (including amounts paid to connect the customer's line to an
electric line or a main water or sewer line) and' after `except that' in
paragraph (3)(A), and
(6) by striking `water or' in paragraph (3)(C) and inserting `electric
energy, water, or'.
(b) EFFECTIVE DATE- The amendments made by this section shall apply to
amounts received after the date of the enactment of this Act.
SEC. 5. TAX TREATMENT OF NUCLEAR DECOMMISSIONING FUNDS.
(a) INCREASE IN AMOUNT PERMITTED TO BE PAID INTO NUCLEAR DECOMMISSIONING
RESERVE FUND- Subsection (b) of section 468A of the Internal Revenue Code of
1986 (relating to special rules for nuclear decommissioning costs) is amended
to read as follows:
`(b) LIMITATION ON AMOUNTS PAID INTO FUND-
`(1) IN GENERAL- The amount which a taxpayer may pay into the Fund for
any taxable year during the funding period shall not exceed the level
funding amount determined pursuant to subsection (d), except--
`(A) where the taxpayer is permitted by Federal or State law or
regulation (including authorization by a public service commission) to
charge customers a greater amount for nuclear decommissioning costs, in
which case the taxpayer may pay into the Fund such greater amount,
or
`(B) in connection with the transfer of a nuclear powerplant, where
the transferor or transferee (or both) is required pursuant to the terms
of the transfer to contribute a greater amount for nuclear decommissioning
costs, in which case the transferor or transferee (or both) may pay into
the Fund such greater amount.
`(2) CONTRIBUTIONS AFTER FUNDING PERIOD- Notwithstanding any other
provision of this
section, a taxpayer may make deductible payments to the Fund in any taxable
year between the end of the funding period and the termination of the license
issued by the Nuclear Regulatory Commission for the nuclear powerplant to which
the Fund relates provided such payments do not cause the assets of the Fund to
exceed the nuclear decommissioning costs allocable to the taxpayer's current or
former interest in the nuclear powerplant to which the Fund relates. The
foregoing limitation shall be applied by taking into account a reasonable rate
of inflation for the nuclear decommissioning costs and a reasonable after-tax
rate of return on the assets of the Fund until such assets are anticipated to be
expended.'.
(b) DEDUCTION FOR NUCLEAR DECOMMISSIONING COSTS WHEN PAID- Paragraph (2)
of section 468A(c) of the Internal Revenue Code of 1986 (relating to income
and deductions of the taxpayer) is amended to read as follows:
`(2) DEDUCTION OF NUCLEAR DECOMMISSIONING COSTS- In addition to any
deduction under subsection (a), nuclear decommissioning costs paid or
incurred by the taxpayer during any taxable year shall constitute ordinary
and necessary expenses in carrying on a trade or business under section
162.'.
(c) LEVEL FUNDING AMOUNTS- Subsection (d) of section 468A of the Internal
Revenue Code of 1986 is amended to read as follows:
`(d) LEVEL FUNDING AMOUNTS-
`(1) ANNUAL AMOUNTS- For purposes of this section, the level funding
amount for any taxable year shall equal the annual amount required to be
contributed to the Fund in each year remaining in the funding period in
order for the Fund to accumulate the nuclear decommissioning costs allocable
to the taxpayer's current or former interest in the nuclear powerplant to
which the Fund relates. The annual amount described in the preceding
sentence shall be calculated by taking into account a reasonable rate of
inflation for the nuclear decommissioning costs and a reasonable after-tax
rate of return on the assets of the Fund until such assets are anticipated
to be expended.
`(2) FUNDING PERIOD- The funding period for a Fund shall end on the last
day of the last taxable year of the expected operating life of the nuclear
powerplant.
`(3) NUCLEAR DECOMMISSIONING COSTS- For purposes of this section--
`(A) IN GENERAL- The term `nuclear decommissioning costs' means all
costs to be incurred in connection with entombing, decontaminating,
dismantling, removing, and disposing of a nuclear powerplant, and shall
include all associated preparation, security, fuel storage, and radiation
monitoring costs. Such term shall include all such costs which, outside of
the decommissioning context, might otherwise be capital
expenditures.
`(B) IDENTIFICATION OF COSTS- The taxpayer may identify nuclear
decommissioning costs by reference either to a site-specific engineering
study or to the financial assurance amount calculated pursuant to section
50.75 of title 10 of the Code of Federal Regulations.'.
(d) EFFECTIVE DATE- The amendments made by this section shall apply to
amounts paid after June 30, 2000, in taxable years ending after such date.
END