Agenda Packet October 17 2016PERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
MEETING AGENDA
304 South Morgan Street, Room 215
Roxboro, NC 27573-5245
336-597-1720
Fax 336-599-1609
October 17, 2016
9:00am
CALL TO ORDER…………………………………………………... Chairman Newell
INVOCATION
PLEDGE OF ALLEGIANCE
DISCUSSION/ADJUSTMENT/APPROVAL OF AGENDA
RECOGNITION:
ITEM #1
Presentation of NC DOT Award to Person Area Transportation
System ……………………………………………………………………….. Heidi York
PUBLIC HEARING:
ITEM #2
Consider the appropriation of County general funds to
assist Project G-2 with a financial grant incentive estimated
at $518,254 ……………………………………………………………….. Stuart Gilbert
ITEM #3
Consideration to approve appropriation of County
general funds to assist Project G-2 with a financial grant
incentive estimated at $518,254 …………………………………….. Chairman Newell
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PUBLIC HEARING:
ITEM #4
FY2018 Community Transportation Program Application ………… Kathy Adcock
ITEM #5
Consideration to approve FY2018 Community Transportation
Program Application by Resolution ……………………………….. Chairman Newell
INFORMAL COMMENTS
The Person County Board of Commissioners established a 10 minute segment
which is open for informal comments and/or questions from citizens of this
county on issues, other than those issues for which a public hearing has been
scheduled. The time will be divided equally among those wishing to comment.
It is requested that any person who wishes to address the Board, register with
the Clerk to the Board prior to the meeting.
ITEM #6
DISCUSSION/ADJUSTMENT/APPROVAL OF CONSENT AGENDA
A. Approval of Minutes of October 3, 2016,
B. Budget Amendment #9,
C. Records Retention and Disposition Schedule, Standard 8: Program
Operational Records - Sheriff Records,
D. County Sheriff’s Office Records Retention Schedule Amendment for
Standard 8,
E. County Management Records Retention Schedule Amendment for Standard
6 Emergency Services Records, and
F. Tax Adjustments for October 2016
UNFINISHED BUSINESS:
NEW BUSINESS:
ITEM #7
Consideration for a letter of support to the State to extend well
water testing beyond the half-mile boundary from coal ash basins
and the landfill and to subsidize the fees associated with well
water testing for environmental hazards …………………….. Commissioner Clayton
ITEM #8
Appeal of valuation of new equipment for Spuntech’s Line 5 ……….... Russell Jones
ITEM #9
Permission to accept Federal Land and Water Conservation
Fund Grant and Apply for 2017 North Carolina Parks and
Recreation Trust Fund Grant ………………………………………………... John Hill
CHAIRMAN’S REPORT
MANAGER’S REPORT
COMMISSIONER REPORTS/COMMENTS
Note: All Items on the Agenda are for Discussion and Action as deemed appropriate by the
Board.
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PUBLIC HEARING NOTICE
The Person County Board of Commissioners will hold a Public Hearing on
Monday, October 17, 2016 at 9:00am in Room 215 at the Person County Office
Building, 304 S. Morgan Street, Roxboro, NC 27573 to consider the appropriation
of County general funds to be made available to Person County Business and
Industrial Center, Inc., in compliance with applicable law to assist Project G-2 to
locate manufacturing in Person County.
The project will include 57 new jobs in 2018-2020 at an average wage of
$43,000.00 and approximately $31.8M of new capital investment in 2018-2020.
Such assistance shall include:
A financial grant incentive based on net new capital investments over a
seven-year period of time subject to property taxes and at a total estimated cost of
$518,254.45.
Brenda B. Reaves, NCCCC, CMC
Clerk to the Person County Board of Commissioners
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AGENDA ABSTRACT
Meeting Date: October 17, 2016
Agenda Title: Public Hearing
FY2018 Community Transportation Program Application
Summary of Information: The Community Transportation Program Application for grant
funding is to assist with funding for our transportation system for the FY 2017/2018 budget year.
The assistance will be for Administration expenses ($155,988 requested with a 15% local match
of $23,398) and Capital expenses ($123,000 requested with a 10% local match of $12,300.)
Recommended Action: Conduct the public hearing and approve the FY2018 Community
Transportation Program Application by resolution for grant funding.
Submitted By: Kathy Adcock, Transportation Director
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PUBLIC HEARING NOTICE
This is to inform the public that a public hearing will be held on the proposed FY2018 Community
Transportation Program Application to be submitted to the North Carolina Department of Transportation
no later than November 4, 2016. The public hearing will be held on October 17, 2016 at 9:00am in the
Person County Office Building before the Person County Board of Commissioners.
Those interested in attending the public hearing and needing either auxiliary aids or services under the
Americans with Disabilities Act (ADA) or a language translator should contact Kathy Adcock, Transit
Manager on or before October 10, 2016, at telephone number (336) 597-1771 or via email at
kadcock@personcounty.net.
The Community Transportation Program provides assistance to coordinate existing transportation
programs operating in Person County as well as provides transportation options and services for the
communities within this service area. These services are currently provided using demand response,
subscription and trip referrals. Services are rendered by utilizing ADA vans and Light Transit Vehicles.
The total estimated amount requested for the period July 1, 2017 through June 30, 2018
Project
Total Amount Local Share
Administrative
$ 155,988 $ 23,398 (15%)
Capital (Vehicles & Other)
$ 123,000 $ 12,300 (10%)
TOTAL PROJECT $ 278,988 $ 35,698
Total Funding Request Total Local Share
This application may be inspected at PATS Office, 341 S. Madison Blvd. Roxboro, NC 27573
from8:30am to 5:00 pm. Written comments should be directed to Brenda Reaves at 304 S. Morgan St.
Rm 212, Roxboro, NC 27573 before October 10, 2016.
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COMMUNITY TRANSPORTATION PROGRAM RESOLUTION
Section 5311
FY 2018 RESOLUTION
Applicant seeking permission to apply for Community Transportation Program funding, enter into agreement with the
North Carolina Department of Transportation, provide the necessary assurances and the required local match.
A motion was made by (Board Member’s Name) and seconded by (Board Member’s Name or N/A, if not required) N/A for the
adoption of the following resolution, and upon being put to a vote was duly adopted.
WHEREAS, Article 2B of Chapter 136 of the North Carolina General Statutes and the Governor of North Carolina
have designated the North Carolina Department of Transportation (NCDOT) as the agency responsible for
administering federal and state public transportation funds; and
WHEREAS, the North Carolina Department of Transportation will apply for a grant from the US Department of
Transportation, Federal Transit Administration and receives funds from the North Carolina General Assembly to
provide assistance for rural public transportation projects; and
WHEREAS, the purpose of these transportation funds is to provide grant monies to local agencies for the
provision of rural public transportation services consistent with the policy requirements for planning, community
and agency involvement, service design, service alternatives, training and conference participation, reporting and
other requirements (drug and alcohol testing policy and program, disadvantaged business enterprise program,
and fully allocated costs analysis); and
WHEREAS, (Legal Name of Applicant) Person County hereby assures and certifies that it will provide the required
local matching funds; that its staff has the technical capacity to implement and manage the project, prepare
required reports, obtain required training, attend meetings and conferences; and agrees to comply with the federal
and state statutes, regulations, executive orders, Section 5333 (b) Warranty, and all administrative requirements
related to the applications made to and grants received from the Federal Transit Administration, as well as the
provisions of Section 1001 of Title 18, U. S. C.
NOW, THEREFORE, be it resolved that the (Authorized Official’s Title)* County Manager of (Name of Applicant’s Governing
Body) Person County is hereby authorized to submit a grant application for federal and state funding, make the
necessary assurances and certifications and be empowered to enter into an agreement with the NCDOT to
provide rural public transportation services.
I (Certifying Official’s Name)* Brenda B. Reaves (Certifying Official’s Title) Clerk to the Person County Board of Commissioners do
hereby certify that the above is a true and correct copy of an excerpt from the minutes of a meeting of the (Name of
Applicant’s Governing Board) Person County Board of Commissioners duly held on the 17th day of October, 2016.
Signature of Certifying Official
*Note that the authorized official, certifying official, and notary public should be three separate individuals.
Seal Subscribed and sworn to me (date)
Notary Public *
Printed Name and Address
My commission expires (date)
Affix Notary Seal Here
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October 3, 2016
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PERSON COUNTY BOARD OF COMMISSIONERS OCTOBER 3, 2016
MEMBERS PRESENT OTHERS PRESENT
David Newell, Sr. Heidi York, County Manager
Tracey L. Kendrick C. Ronald Aycock, County Attorney
Jimmy B. Clayton Brenda B. Reaves, Clerk to the Board
Kyle W. Puryear
B. Ray Jeffers
The Board of Commissioners for the County of Person, North Carolina, met in
regular session on Monday, October 3, 2016 at 7:00pm in the Commissioners’ meeting
room in the Person County Office Building.
Chairman Newell called the meeting to order and offered condolences to
Commissioner Jeffers for the death of his grandmother. Commissioner Clayton gave an
invocation. Chairman Newell asked members of the Cub Scout Troop 249, present in the
audience, to lead the group in the Pledge of Allegiance.
DISCUSSION/ADJUSTMENT/APPROVAL OF AGENDA:
A motion was made by Commissioner Jeffers and carried 5-0 to approve the
agenda.
RECOGNITION:
RESOLUTION OF APPRECIATION:
Chairman Newell read and presented a Resolution of Appreciation to Person
County Retiree, Keith Day.
General Services Director, Ray Foushee added that Mr. Day had worked for the
County four years on a part-time basis prior to the eight years of service noting he was an
outstanding employee.
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October 3, 2016
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PROCLAMATION FOR NATIONAL 4-H WEEK IN PERSON COUNTY:
Person County Extension Agent with 4-H Youth Development, Beth Davis and
Chairman Newell read the following National 4-H Week Proclamation.
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October 3, 2016
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PUBLIC HEARING:
REQUEST TO RENAME THE EASTERN DEAD END SECTION OF
PROVIDENCE ROAD TO PROVIDENCE CEMETERY COURT:
A motion was made by Commissioner Puryear and carried 5-0 to open the duly
advertised public hearing for a request to rename the eastern dead end section of Providence
Road to Providence Cemetery Court.
GIS Manager, Sallie Vaughn recalled the Board of Commissioners’ action at its
September 6, 2016 meeting to rename the eastern dead end section of Providence Road to
Providence Cemetery Court, to set a public hearing for October 3, 2016 at 7:00pm, and to
authorize notice of the public hearing in the newspaper. Ms. Vaughn noted that a sign was
also placed in the area advertising the public hearing.
Ms. Vaughn further noted that since that time, the GIS Manager has received the
following citizen input:
1. Two responses to certified letters mailed on July 29th, 2016 were received
recommended the name “Hicks A-Gape Rd.”
2. A citizen held objection to the suffix of “Ct” and would prefer other options such
as Ln, Way, or Ave.
Ms. Vaughn stated to reduce ambiguity and because of similarities between
“Hicks A-Gape Rd” and several existing roads, this name was not recommended. Ms.
Vaughn stated the allowable suffixes as defined in Section 404 of the Addressing
Ordinance for a dead end roadway are 1) Ct – Court, 2) Ln – Lane, and 3) Pl – Place.
There were no individuals appearing before the Board to speak in favor of the
request to rename the eastern dead end section of Providence Road to Providence Cemetery
Court.
The following individual spoke in opposition to the request to rename the eastern
dead end section of Providence Road to Providence Cemetery Court:
Mr. Robert Wilborn of 855 Providence Road and a representative of Providence
Baptist Church stated opposition to the suffix of Court to the recommended name of
Providence Cemetery Court.
A motion was made by Commissioner Jeffers and carried 5-0 to close the public
hearing for a request to rename the eastern dead end section of Providence Road to
Providence Cemetery Court.
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October 3, 2016
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CONSIDERATION FOR A ROADWAY NAME FOR THE EASTERN DEAD END
SECTION OF PROVIDENCE ROAD:
Commissioner Jeffers asked if another public hearing would have to be scheduled
should the Board take action to change the suffix of the recommended roadway name of
Providence Cemetery Court. County Attorney, Ron Aycock confirmed no additional
public hearing would be required should the Board change the suffix on the recommended
name as action to the public hearing. Commissioner Jeffers suggested the suffix of Lane
instead of Court. The Board asked Mr. Robert Wilborn if there was any objection to
Providence Cemetery Lane to which he noted no opposition.
A motion was made by Commissioner Jeffers and carried 5-0 to approve
Providence Cemetery Lane as the roadway name for the eastern dead end section of
Providence Road.
INFORMAL COMMENTS:
The following individual appeared before the Board to make informal comments:
Ms. Betty Blalock of 144 Tirzah Ridge, Rougemont said she did not understand
why Vice Chairman Kendrick would not consider the resolutions at the last meeting; the
resolutions would be better for the County with part of it being state law. Ms. Blalock then
noted the 491 wells she had counted telling the group that Durham County had to pay
$1.3M for wells contaminated with oil.
DISCUSSION/ADJUSTMENT/APPROVAL OF CONSENT AGENDA:
A motion was made by Commissioner Puryear and carried 5-0 to approve the
Consent Agenda with the following items:
A. Approval of Minutes of September 6, 2016,
B. Approval of Minutes of September 19, 2016,
C. Budget Amendment #7,
D. Budget Amendment #8,
E. Resolution Requesting Abandonment of a portion of Secondary Road R-2241A,
and
F. Allocations for FY2017 ROAP Program
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October 3, 2016
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UNFINISHED BUSINESS:
A RESOLUTION OF SUPPORT TO DEDICATE AND RENAME A SECTION OF
US 158 EAST IN PERSON COUNTY TO COMMEMORATE THE SERVICE OF
WORLD WAR I VETERAN, CORPORAL JESSE LUNSFORD:
Commissioner Clayton read and presented a Resolution of Support to Dedicate and
Rename a Section of US 158 East in Person County to Commemorate the Service of World
War I Veteran, Corporal Jesse Lunsford for Board approval.
A motion was made by Commissioner Clayton and carried 5-0 to adopt a
Resolution of Support to Dedicate and Rename a Section of US 158 East in Person County
to Commemorate the Service of World War I Veteran, Corporal Jesse Lunsford and to
appropriate $2,000 from the contingency fund.
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October 3, 2016
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NEW BUSINESS:
CONCERNS OF RESIDENTS AROUND ROXBORO PLANT:
Commissioner Jeffers stated some of his neighbors had contacted him with
concerns and after he attended one of their meetings, thought it appropriate for them to
share their concerns with the rest of the Board of Commissioners. Commissioner Jeffers
called upon Ms. Sandra Majors to make comments.
Ms. Majors stated she resides at 4072 McGhee’s Mill Road, Semora and that she
along with the group present in the audience represent a larger group of concerned citizens
of Person County that live around the Roxboro and Mayo plants, and drink water from
private wells, have been deeply concerned about their health, quality of life and the loss of
property value of their residences, due to the long accumulation of coal ash close to their
homes. Ms. Majors said their purpose at the Board meeting was to share their concerns
and to ask for support noting their group began meeting in 2015 to call for clean, safe water
and protection of their environmental health. With recent legislation, Ms. Majors stated
their concerns elevated with the proposed cap in place instead of the evacuation and
removal of the coal ash to safe above ground storage. Ms. Majors recognized the enormous
tax revenue the County receives from Duke Energy however requested justice for the
citizens impacted for many years with a plea for safe drinking water.
Ms. Elsie Grant of 5517 McGhee’s Mill Road, Semora said she was born and raised
in Person County and returned to the County in 2004 and had no expectation that she would
be inheriting a coal ash problem. Ms. Grant noted she lives less than a mile from the plant
and did not receive an advisory letter. She requested Duke Energy to test her well water
and those living further than the half-mile threshold for testing. Ms. Grant asked the Board
of Commissioners to have a field inspected on the north side of McGhee’s Mill Road just
before Edwin Robertson Road to confirm whether or not coal ash was being placed at this
site. Ms. Grant said she had cancer in 2008 but currently was cancer free.
Mr. Christopher Crawley of 4094 McGhee’s Mill Road, Semora asked the
commissioners to help this community noting he would like to have the water tested every
quarter along with additional subsidies for all well testing for Person County residents as a
public health measure and to make well testing more affordable as Person County has the
highest costs in the state. He requested for the Board to support the results reported using
science-based health advisories as issued to well owners for decades but stopped in March
of this year by DEQ and DHHS. Mr. Crawley stated the use of scientifically based Health
Risk Evaluations (HRE) in current and future reporting to well owners of the well analyses
performed by the NC Public Health Laboratory. These HRE’s, as defined in NC’s long
standing groundwater regulations, have been issued to thousands of well owners over the
past two or more decades. Advisories to well owners around coal ash sites in NC were
rescinded by appointed leadership of DEQ and DHHS in March, 2016, over objection of
scientists in those agencies. Mr. Crawley gave the commissioners a handout that listed the
Groundwater Quality Standards as written in the NC Administrative Code as of January 1,
2010.
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October 3, 2016
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Ms. Vicky McGiver said that her mother resides at 4136 McGhee’s Mill Road and
though she was appreciative of what Duke Energy has done so far, she asked for the support
of the commissioners for Duke Energy to pay for all costs associated with connection to
public water lines and payment of water bills for a minimum of 20 years after public service
begins or until all risks of coal ash contamination of groundwater is removed by cleanup
and removal of ash.
Ms. Faye Woods of 4591 McGhee’s Mill Road, a resident who lives just outside
the half-mile boundary whose water has tested positive for elevated coal ash contamination.
As a property owner of 80 acres, Ms. Woods asked for assistance to reduce the property
taxes to account for the fact that their residences and properties are degraded by the
continued threat of contamination by coal ash. Ms. Woods said land plus coal ash equals
no value.
Ms. Majors concluded the citizens’ presentation by urging the Board of
Commissioners for more water testing, quarterly testing for those with contaminations and
a further range of the testing with more affordable costs for the water testing. Additionally,
a reduction in property taxes with Duke Energy to cover the full costs of connecting the
homes to the City Lake public water supply and absorb the costs for the water bills for a
minimum of 20 years and details of the possible coal ash site that is nearby that has not
been exposed to the community. Lastly, Ms. Majors said that Duke Energy should be
responsible for the community rebuild and its value by construction of a new community
center for area children and youth, including an indoor/outdoor pool and gym, with
contributed funding by Duke Energy.
Commissioner Jeffers, the commissioner representative on the County’s
Environmental Issues Advisory Committee, asked the County Attorney to address if the
County was allowed to subsidize a certain part of the county for the well testing fees.
County Attorney, Ron Aycock stated, without doing any specific research, he felt
that if the Board finds that there are environmental hazards that needs to be addressed, there
may be a way to subsidize fees; however he said that generally, the fees need to be uniform
throughout the county. Commissioner Jeffers asked Mr. Aycock to further research the
county’s ability to subsidize fees and asked the County Manager to research by comparison
of the fees for counties. Commissioner Jeffers asked the Health Director to explain the
current fee structure for the chemical test.
Health Director, Janet Clayton confirmed the fee for processing well samples was
$110 for a full panel which included bacteria, chemical and nitrate. Additional fees are
added for testing of petroleum of $110; pesticide at $110; coal ash panel at $110 and
hexavalent chromium at $95. Commissioner Clayton added that the costs have increased
due to the state passing along its costs to the counties which are now passed to the citizens.
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October 3, 2016
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Commissioner Jeffers also asked for the data on how many wells have been tested
and the number that were deemed contaminated. Ms. Hope Taylor, Executive Director of
Clean Water for NC, a non-profit, stated initially there were twelve letters to property
owners within 1,000 ft., noting a lot more wells have been tested since that time.
Commissioner Jeffers asked if the data was public record. Vice Chairman Kendrick stated
affirmatively referencing the DEQ website for information on the wells.
Vice Chairman Kendrick disclosed that he was a current Duke Energy employee,
and noted his extensive research related to the well water samples within the half-mile
perimeter contained no hexavalent chromium above the EPA standard while there were
elevated levels of aluminum, phosphorous and magnesium.
Ms. Taylor noted the initial testing performed last year through several labs and
paid for by Duke Energy resulted in the initial health advisories to the twelve residents.
Ms. Taylor opined that the federal standard Vice Chairman Kendrick referred was outdated
and under review for a federal drinking water standard. Ms. Taylor stated the advisory
level was .07 parts per billion as compared to the EPA standard of 100 parts per billion.
Vice Chairman Kendrick corrected misinformation that legislation allowed Duke
Energy to downgrade the risk noting the risk was not downgraded by Duke Energy but the
risk was downgraded by DEQ.
Commissioner Jeffers noted citizen concerns related to coal ash near the power
plants and near the landfill further noting the NC DEQ will be holding a public hearing on
Tuesday, October 4th at 6:00pm in the County Office Building Auditorium for comments.
Vice Chairman Kendrick pointed out the May 28, 2015 letter from NC DHHS Gary
Lowring related to a synopsis of Person County’s health which reported no higher incident
rate of cancer in Person County and mirrored other parts of the state.
Tanya Evans of Duke Energy reassured the residents that a permanent water
solution for all property owners within a half-mile of an ash basin was being evaluated at
this time and as mandated by recent legislation regardless of the testing of the water. Ms.
Evans stated that water does not flow up hill and based on detailed analysis with the US
Geological Service Mapping, those wells within the half-mile radius of ash basins are up
hill from the ash basins. Ms. Evans said the data shows the same constituents across the
state and there was no scientific data that indicates the ash basins are, in fact, impacting
wells in Person County.
Ms. Evans told the group Duke Energy plans to close all ash basins, although no
decision on how they will close them has been made. Ms. Evans stated the cap in place
method has been demonstrated by the EPA as a safe and effective method without impacts
to groundwater.
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October 3, 2016
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Chairman Newell asked Ms. Evans what will Duke Energy do with the coal ash
being generated by the plant. Ms. Evans stated future ash generated by the Mayo and
Roxboro plants will be placed into on-site lined landfills.
Chairman Newell asked how the half-mile designation was determined. Ms. Evans
said the half-mile designation was determined by the state; the half-mile radius is from the
perimeter of the ash basin not the plant.
Ms. Lisa Hughes stated her well water was tested by a private company earlier this
year with elevated levels of vanadium and hexavalent chromium; she decided to dig a new
well. Ms. Hughes asked how long would it be before her new well would be contaminated.
Ms. Hughes said she has spoken with Ms. Evans a few times noting she lived beyond the
1,500 ft. boundary and beyond the one mile boundary thereby nothing has been done
related to her drinking water to which she said she was not comfortable to drink. She urged
consideration for the five houses just before the bridge that are not included to be included
in the perimeter for well testing. Ms. Hughes also wanted to know how often should she
be testing her well water and she was the responsible person to do it. Chairman Newell
noted the Board did not have all the answers but they would ask more questions.
Ms. Phyllis Jeffers of 225 Dunaway Road asked about the data that resulted in the
do not drink letters which was contradictory with the data that Vice Chairman Kendrick
found that the levels were within standard. Vice Chairman Kendrick stated the data showed
no elevated results and noted the DEQ took a precautionary measure to notify citizens
while the testing was ongoing and once the levels were deemed within standard, the do not
drink advisory was rescinded. Ms. Jeffers asked for more precautionary measures to test
more wells. Vice Chairman Kendrick countered that the data for the wells within the half-
mile boundary reflected the water met the federal drinking water standards.
Ms. McGiver asked why Duke Energy gave out bottled water when the water was
deemed safe per federal regulations.
Ms. Evans said the bottled water was provided on a voluntary basis by Duke Energy
to ensure the quality of the resident’s water so that the testing could be done, the geological
survey was conducted and to collect the data; this was not an admission of anything wrong,
it was the right thing to do. Ms. Evans stated as water lines were offered into the legislation,
that was Duke Energy trying to do the right thing regardless of the results of the well water
testing for those residents living within the half-mile radius.
Ms. Taylor clarified that the data has not changed for the wells, what changed was
the health advisories which were calculated according to decade old groundwater
regulations in NC was removed.
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October 3, 2016
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Ms. Sarah Crutchfield of 4291 McGhee’s Mill Road stated concerns about the air
quality in the area noting multiple times, especially four-five years ago that the coal ash
was consistently blowing and it was thick enough to write your name. She contacted the
Raleigh office and they had someone to bring a water truck to wet the ash to prevent it
from flying.
*****
There was no report from the Chairman, County Manager or any of the
commissioners. Commissioner Jeffers thanked everyone for their support and acts of
kindness during his family’s loss of his grandmother.
CLOSED SESSION #1
A motion was made by Commissioner Puryear and carried 5-0 to enter Closed
Session per General Statute 143-318.11(a)(5) at 8:09pm for the purpose to consider the
acquisition or lease of real property with the following individuals permitted to attend:
County Manager, Heidi York, Clerk to the Board, Brenda Reaves, and County Attorney,
Ron Aycock.
A motion was made by Vice Chairman Kendrick and carried 5-0 to return to open
session at 8:14pm before Closed Session #1 took place. Vice Chairman Kendrick asked
the Board to hear from Mr. Robert Daniel and Ms. Nan Jeffers representing Piedmont
Career Academy. It was the consensus of the Board to hear comments from Mr. Daniel
and Ms. Jeffers.
Vice Chairman Kendrick stated Piedmont Career Academy was in the planning
stages for a vocational charter middle and high school and he had discussed the possibility
for their Board of Directors to tour the former Helena School for potential utilization of the
facility for a period of time as long as they kept up the maintenance. At any time the facility
was not used for this use or should the vocational charter school not be approved, Vice
Chairman Kendrick noted the property would revert back to the county.
Mr. Daniel, Chairman of the Board of Trustees for Piedmont Career Academy, and
a retiree of the Public Schools in NC after 36 years, spending 20 years as a high school
principal and four years as a Superintendent. Mr. Daniel has been involved in starting three
schools in NC and all three are thriving. Mr. Daniel said Piedmont Career Academy would
soon be incorporated as a public charter school. Mr. Daniel noted the process for opening
a public charter school takes between two to five years. Mr. Daniel stated the application
will filed for a charter public high school in Person County in September 2017 with a
planned opening goal of 2019.
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Mr. Daniel stated Person County has a higher than average rate of students who do
not attend college here in the county and employs a higher than state or national average
number of people who are in positions that do not require a college education. Mr. Daniel
said Piedmont Career Academy would like to graduate students who are ready to be hired
into entry level positions throughout the County.
Mr. Daniel stated interest in touring the former Helena School to see if the facility
will meet the needs for a viable public charter school.
Vice Chairman Kendrick said Mr. Daniel and the Piedmont Career Academy board
of directors would be meeting and he wanted to give them an update for a preliminary look
at the facility. Vice Chairman Kendrick stated support to partner to get them into the empty
facility and asked the County Manager to set up a tour if the Board thought it was a good
idea. It was the consensus of the Board to allow the Piedmont Career Academy Board of
Directors the opportunity to tour and evaluate the former Helena School for use as a
vocational charter school.
County Manager, Heidi York stated the County has some studies and cost
assessments that she could share for information.
Ms. York told the Board that she had a meeting scheduled with Mr. Dan Holloman
of Person County Schools and Dr. Walter Bartlett of Piedmont Community College for use
of the former Helena School as a middle school alternative.
A motion was made by Vice Chairman Kendrick and carried 5-0 to enter Closed
Session per General Statute 143-318.11(a)(5) at 8:26pm for the purpose to consider the
acquisition or lease of real property with the following individuals permitted to attend:
County Manager, Heidi York, Clerk to the Board, Brenda Reaves, and County Attorney,
Ron Aycock.
A motion was made by Vice Chairman Kendrick and carried 5-0 to return to open
session at 8:42pm.
ADJOURNMENT:
A motion was made by Chairman Newell and carried 5-0 to adjourn the meeting
at 8:42pm.
_____________________________ ______________________________
Brenda B. Reaves David Newell, Sr.
Clerk to the Board Chairman
(Draft Board minutes are subject to Board approval).
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10/17/2016
Dept./Acct No.Department Name Amount
Incr / (Decr)
EXPENDITURES General Fund
Public Safety 156
Culture & Recreation 500
REVENUES General Fund
Other Revenues 656
EXPENDITURES Economic Catalyst Fund 58,750
REVENUES Economic Catalyst Fund
Intergovernmental Revenue 58,750
Explanation:
BUDGET AMENDMENT
Appropriate donations received for Animal Services ($45), VIP Program ($111), and the Public Library
($500); and One NC economic development funds from the State for SpunTech ($58,750).
BA‐921
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AGENDA ABSTRACT
Meeting Date: October 17, 2016
Agenda Title: Tax Adjustments for October 2016
Summary of Information: Attached please find the tax releases and motor vehicle pending
refunds:
1. October 2016 tax releases.
2. October 2016 North Carolina Vehicle Tax System (NCVTS) pending refunds.
Recommended Action: Motion to accept reports and authorize refunds.
Submitted By: Russell Jones, Tax Administrator
60
COSSYS PERSON COUNTY TAX OFFICE COLLECTION SCROLL-12:LEVY ADJUSTMENTS ALL TAX YEARS 10102016 PAGE: 1
ACCOUNT # COLREC COUNTY-TAX DISTRICT DISTRICT DOG PENALTY INT/DISC LIEN-COST TOTAL NUMBER TRNREC CLRK DATE
DISTRICT-"
24658 1012016 DREAMWORKS MOTORSPORTS BUSINESS PERSONAL
24658 101 41112 -56.71 0.00- 0 0.00- 0 0.00 0.00 0.00 0.00 -56.71 15592R 1122 RH 09152016
-54.28-50 0.00 0.00 -54.28__________ -110.99 REASON:RECD AMENDED LISTING F16
56044 1012016 CLAYTON FAMILY FARM LLC BUSINESS PERSONAL
56044 101 41819 -226.80 0.00- 0 0.00- 0 0.00 -22.68 0.00 0.00 -249.48 15594R 1130 RH 09212016 REASON:PER VISIT EQUIP SOLD PRIOR TO JAN 1
9535 3032016 CLAYTON CLARA PERS/FARM/FORM2
9535 303 36147 -67.24 0.00- 0 0.00- 0 0.00 -6.72 0.00 0.00 -73.96 15601R 1131 RH 09212016
REASON:FARM EQUIP SOLD PRIOR TO JAN 1
9535 3032016 CLAYTON CLARA LIFE ESTATE 94/100 AC & HOUSE 9535 303 9900 -20.11 0.00- 0 0.00-30 0.00 -2.01 0.00 0.00 -22.12 15602R 1132 RH 09212016
REASON:SOLD FARM EQUIP PRIOR TO JAN 1
5534 1102010 BROOKS CHANIGO SEDEKIA VAN VOYAGER VN 5534 110 44336 -7.98 0.00- 0 0.00- 0 0.00 0.00 -4.12 0.00 -12.10 15541R 1133 BSG 09232016 REASON:BANKRUPTCY DISCHARGE 9/20/16
34164 1132013 BRAY TERRY LEE IMPALA 4S 34164 113 48380 -0.01 0.00- 0 0.00- 0 0.00 0.00 0.00 0.00 -0.01 2013R 1142 SRJ 09302016 REASON:UNDER ONE DOLLAR
65917 3012016 BATTLE NELLIE S & OTHERS 63 & 09/100ACRES
65917 301 13946 -0.01 0.00- 0 -0.01-30 0.00 0.00 0.00 0.00 -0.02 2016R 1143 SRJ 09302016 REASON:UNDER ONE DOLLAR
61201 3012016 DOWD THOMAS E & NANCY HOLEMAN PLNT/P1/L9/H&L
61201 301 25123 -0.08 0.00- 0 -0.01-30 0.00 0.00 0.00 0.00 -0.09 2016R 1144 SRJ 09302016
REASON:UNDER ONE DOLLAR
65129 5012016 DUKENET COMMUNICATIONS LLC STATE APPRAISED 65129 501 33031 -0.60 0.00- 0 0.00- 0 0.00 0.00 0.00 0.00 -0.60 2016R 1145 SRJ 09302016
REASON:UNDER ONE DOLLAR
21643 1102010 ROUSON GLENDA BELL TRIBUTE I 4X2 MP 21643 110 44263 -34.08 0.00- 0 0.00- 0 0.00 0.00 -4.16 0.00 -38.24 15541R 1146 BSG 10052016 REASON:BANKRUPTCY DISCHARGE 9/30/16
58916 3012016 JOHNSON LINDA LANE PLEASANT VALLEY/T11/DW&L 58916 301 22747 -168.00 0.00- 0 -8.00-30 0.00 -16.85 0.00 0.00 -192.85 15603R 1163 MP 10062016 REASON:INCORRECT VALUE ON 99 FORD EXPEDITION
58916 3012016 JOHNSON LINDA LANE PLEASANT VALLEY/T11/DW&L
58916 301 22747 168.00 0.00- 0 8.00-30 0.00 16.85 0.00 0.00 192.85 15603R 1164 MP 10062016 REASON:STORM WATER FEE LEFT OFF
58916 3012016 JOHNSON LINDA LANE PLEASANT VALLEY/T11/DW&L
58916 301 22747 -168.00 0.00- 0 0.00-30 0.00 -16.85 0.00 0.00 -184.85 15603R 1165 MP 10062016
REASON:INCORRECT VALUE FOR 99 FORD EXPEDITION
32357 3012016 RALSTON WILLIAM ANTHONY 13 & 95/100 AC & SW/P 32357 301 19109 -28.00 0.00- 0 0.00-30 0.00 0.00 0.00 0.00 -28.00 15604R 1166 MP 10072016
REASON:VALUE OF SINGLEWIDE ADJUSTED PER SRJ NOTE ON 2013 LISTING FORM
61
COSSYS PERSON COUNTY TAX OFFICE COLLECTION SCROLL-12:LEVY ADJUSTMENTS ALL TAX YEARS 10102016 PAGE: 2
TRANSACTION TOTALS PAGE
TRANSACTIONS FROM 1 THROUGH 1166 IN SY0:TAX .MOD AMOUNTS FROM -999999999.99 THROUGH 999999999.99TRANSACTION TYPES:R
TRANSACTIONS 09092016->10092016 0 PAYMENTS 0 DISC/CORR 14 RELEASES TOTAL CREDIT NET CREDIT (PAYMENT+RELEASE) (TOTAL-DISC/CORR)PERSON COUNTY TAX OFFICE 0.00 0.00 -609.62 609.62 609.62LATE LISTING 0.00 0.00 -48.26 48.26 48.26
DOG 0.00 0.00 0.00 0.00 0.00
CODE DISTRICT NAME 30 STORMWATER FEE 0.00 0.00 -0.02 0.02 0.02 --------------- --------------- --------------- --------------- --------------- SUB-TOTAL 0.00 0.00 -657.90 657.90 657.90
STATE 3PCT INTEREST 0.00 0.00 0.00 0.00 0.00
DISCOUNT 0.00 0.00 0.00 0.00 0.00INTEREST 0.00 0.00 -8.28 8.28 8.28LIEN SALE COST 0.00 0.00 0.00 0.00 0.00 --------------- --------------- --------------- --------------- ---------------
TOTAL 0.00 0.00 -666.18 666.18 666.18
50 CITY OF ROXBORO 0.00 0.00 -54.28 54.28 54.28LATE LISTING 0.00 0.00 0.00 0.00 0.00 --------------- --------------- --------------- --------------- ---------------
SUB-TOTAL 0.00 0.00 -54.28 54.28 54.28
DISCOUNT 0.00 0.00 0.00 0.00 0.00INTEREST 0.00 0.00 0.00 0.00 0.00 --------------- --------------- --------------- --------------- --------------- TOTAL 0.00 0.00 -54.28 54.28 54.28
TOTAL TAXES 0.00 0.00 -712.18 712.18 712.18TOTAL LIEN COST 0.00 0.00 0.00 0.00 0.00TOTAL DISCOUNT 0.00 0.00 0.00 0.00 0.00
TOTAL INTEREST 0.00 0.00 -8.28 8.28 8.28
TOTAL STATE 3PCT INTEREST 0.00 0.00 0.00 0.00 0.00 =============== =============== =============== =============== =============== GRAND TOTAL 0.00 0.00 -720.46 720.46 720.46
62
Payee NameAddress 3Refund Type Refund Reason Create DateTax JurisdictionLevy Type Change Total Change01 Tax ($58.80) ($58.80)$58.8001 Tax ($167.92) ($167.92)$167.9201 Tax ($167.92) ($167.92)$167.9201 Tax ($3.96) ($3.96)$3.9601 Tax ($18.84) ($18.84)$18.8401 Tax ($72.96) ($72.96)$72.9601 Tax ($4.96) ($4.96)50 Tax ($4.67) ($4.67)50 Vehicle Fee $0.00$0.00$9.6301 Tax ($13.91) ($13.91)$13.9101 Tax ($6.49) ($6.49)$6.4901 Tax ($3.22) ($3.22)$3.2201 Tax ($30.46) ($30.46)$30.4601 Tax ($55.39) ($55.39)$55.3901 Tax ($63.28) ($66.45)$66.4501 Tax ($12.70) ($12.70)$12.7001 Tax ($27.73) ($27.73)$27.7301 Tax ($36.87) ($38.71)$38.71FARRAR, THOMAS JEFFERY HURDLE MILLS, NC 27541ProrationVehicle Sold 09/22/2016DAYE, LINDA MARIE ROUGEMONT, NC 27572ProrationVehicle Sold 09/13/2016DAY, JUDENE KEARNEY TIMBERLAKE, NC 27583Proration Vehicle Totalled 09/20/2016DAY, GRAHAM LEE ROUGEMONT, NC 27572ProrationVehicle Sold 09/26/2016COZART, PATRICK KEITH ROXBORO, NC 27573ProrationVehicle Sold 09/19/2016CLAY, DAVID SOLOMON HURDLE MILLS, NC 27541ProrationVehicle Sold 09/09/2016CLAY, DAVID SOLOMON HURDLE MILLS, NC 27541ProrationVehicle Sold 09/09/2016CLARK, DANNY RAY ROXBORO, NC 27574Proration Vehicle Totalled 09/26/2016CHAMBERS, SANDRA RUDDER RALEIGH, NC 27612ProrationVehicle Sold 09/29/2016CASE, MICHAEL ANGELO ROXBORO, NC 27573ProrationVehicle Sold 09/22/2016CARVER, ELIZABETH BRAY ROXBORO, NC 27574ProrationVehicle Sold 09/12/2016BUCKLEY, DAVID RAYMOND TIMBERLAKE, NC 27583ProrationVehicle Sold 09/26/2016BOWES, JEFFREY TODD ROXBORO, NC 27574ProrationVehicle Sold 09/30/2016ANTIOCH BAPTIST CHURCH INC TIMBERLAKE, NC 27583 Adjustment >= $100 Exempt Property 09/19/2016ANTIOCH BAPTIST CHURCH INC TIMBERLAKE, NC 27583 Adjustment >= $100 Exempt Property 09/19/2016Vehicle Sold 09/12/2016 ROXBORO, NC 27574ProrationALLEN, RONALD WAYNE63
Payee NameAddress 3Refund Type Refund Reason Create DateTax JurisdictionLevy Type Change Total Change01 Tax ($1.19) ($1.19)$1.1901 Tax ($38.14) ($38.14)50 Tax ($36.50) ($36.50)$74.6401 Tax ($32.98) ($32.98)$32.9801 Tax ($10.80) ($10.80)$10.8001 Tax ($1.46) ($1.46)$1.4601 Tax ($21.79) ($21.79)$21.7901 Tax ($4.08) ($4.28)50 Tax ($3.85) ($4.05)50 Vehicle Fee $0.00 ($0.50)$8.8301 Tax ($13.83) ($13.83)$13.8301 Tax ($33.18) ($33.18)$33.1801 Tax ($41.12) ($41.12)50 Tax ($38.77) ($38.77)50 Vehicle Fee $0.00 $0.00$79.8901 Tax ($6.04) ($6.04)$6.0401 Tax ($73.34) ($73.34)$73.3401 Tax ($1.67) ($1.67)50 Tax ($1.58) ($1.58)50Vehicle Fee$0.00$0.00$3.25TILLMAN, DEBORA SALMON ROXBORO, NC 27574 ProrationVehicle Sold 09/30/2016SLAUGHTER, NANCY COUNCIL ROXBORO, NC 27574ProrationVehicle Sold 09/30/2016SAMPSON, RICKEY DEANGELO TIMBERLAKE, NC 27583ProrationTag Surrender 09/12/2016PURNELL, MARY FUQUA ROXBORO, NC 27573ProrationVehicle Sold 09/07/2016PHILLIPS, PAUL DOWLING ROXBORO, NC 27574ProrationVehicle Sold 09/19/2016PAUL, KIMBERLY HILL ROXBORO, NC 27574Adjustment < $100 Mileage 09/19/2016NEWMAN, PHYLLIS FAISON ROXBORO, NC 27573Proration Vehicle Totalled 09/26/2016MEYER, BERNARD LEO TIMBERLAKE, NC 27583ProrationVehicle Sold 09/22/2016HOWERTON, KEITH ALLEN ROXBORO, NC 27574ProrationTag Surrender 09/09/2016GUILL, JOHN ROBERT SR ROXBORO, NC 27574ProrationVehicle Sold 09/27/2016GENTRY, JOHN KYLE ROXBORO, NC 27573ProrationVehicle Sold 09/20/2016GAYADEEN, MAHINDRA WAYNE BALTIMORE, MD 21229 Adjustment < $100 Over Assessment 09/20/2016FUQUA, JUNE HARRIS ROXBORO, NC 27574ProrationVehicle Sold 09/07/201664
Payee NameAddress 3Refund Type Refund Reason Create DateTax JurisdictionLevy Type Change Total Change01 Tax ($8.74) ($8.74)$8.7401 Tax ($73.18) ($73.18)$73.1801 Tax ($3.68) ($3.92)$3.92ZAJAC, KELLYE LEIGH TIMBERLAKE, NC 27583ProrationVehicle Sold 09/09/2016WRIGHT, MELBA JEANE ROXBORO, NC 27574ProrationVehicle Sold 09/26/2016WADE, ROBERT EDWARD ROXBORO, NC 27573ProrationVehicle Sold 09/09/201665
PERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
304 South Morgan Street, Room 212
Roxboro, NC 27573-5245
336-597-1720
Fax 336-599-1609
October 17, 2016
Governor McCrory
North Carolina Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301
Honorable Governor McCrory:
Person County respectfully requests your consideration to help our residents living near
the Duke Energy Coal Ash Basins and the privately operated Upper Piedmont Landfill
here in Person County. Our residents need the assurance that their drinking water is safe
for use and consumption and we need the help of the Department of Water Quality to
provide adequate testing of wells. Please consider having the Department of Water
Quality extend the perimeter of the private well testing beyond the half mile radius of the
coal ash basins up to an additional mile for a total of a 1.5 mile radius for both the ash
basins and the landfill and to subsidize the testing fees for those residents in these
targeted areas.
Thank you for your consideration and partnership.
Sincerely,
David Newell, Sr.
Chairman
66
AGENDA ABSTRACT
Meeting Date: October 17, 2016
Agenda Title: Appeal of valuation of new equipment for Spuntech’s Line 5
Recommended Action: Determine if equipment was in production prior to January 1.
Submitted By: Russell Jones, Tax Administrator
Summary of Information:
Spuntech has filed a timely appeal of the assessment of their 2016 Business Personal Property Taxes.
The evidence provided by Spuntech is included as ATTACHMENT I.
Discussions with Spuntech have narrowed the appeal to the new equipment for their new line, also
known as LINE 5. The real estate (land and buildings) and other equipment is not being appealed. The
appeal is based on whether LINE 5 should be depreciated for 2016, or was the equipment still under
construction. Currently, this equipment is assessed at 100% of the installed cost, or $ 57,706,408.
Below is the definition and explanation of Construction in Progress (CIP) and a definition of Depreciation
from the North Carolina Department of Revenue, and is an excerpt from the Personal Property Appraisal
and Assessment Manual:
Construction in Progress
The investment in production equipment which has not been placed into operation is typically identified
in the taxpayers accounting records as CIP. The CIP account represents tangible personal property and
is to be listed. Our position with regard to the appraisal of this property is that it should be appraised at
100% of the investment as of the date of appraisal (January 1, 2016). The property has suffered no
physical wear and tear, and therefore no allowance for depreciation is warranted.
It is important to point out that there are differences in the Federal IRS rules (Depreciation-
accounting) and NC Property Tax rules(Depreciation-appraising). For example, under the
NCGS that govern Property Taxes, an asset that is still being used and fully depreciated would
67
still have a taxable value (normally at 25% of original value). The IRS often has special or
bonus accelerated depreciation to encourage spending and investments that do not apply to our
Property Taxes.
Depreciation in appraising
A decease in the upper limit of value due to physical wear and tear, functional obsolescence, and/or
economic obsolescence. A loss in value from all causes.
Depreciation‐accounting
The amount of annual expense taken as a reduction of income necessary to recapture the cost of an
asset and does not represent actual losses in value.
The LINE 5 was not in a "ready state" on the valuation date of January 1, partially due to the fact
that the building was not certified to be occupied until March 7, 2016. A temporary Certificate
of Occupancy was issued on January 5, 2016, which permitted the stocking of the offices and the
starting up the line.
The LINE 5 requires employees, serving as operators, to be located at various locations
throughout the manufacturing line. Since employees were not legally permitted to be in the
building under construction, the new line could not be in a "ready state".
Even if a temporary use of the new line was allowed for testing/calibration, the line was not able
to be placed in a "ready state", since the purpose of the manufacturing line was not met.
"Property is first placed in service when first placed in a condition or state of readiness and
availability for a specifically assigned function."
Mr. Daniel Sharon, Stuart Gilbert, and I met in December 2015, and discussed the methodology
that would be used to assess the equipment associated with LINE 5. At this meeting, our
position was disclosed to conclude that LINE 5 must be assessed as Construction in Progress
(CIP, full cost without depreciation) unless a full CO was obtained prior to January 1.
ATTACHMENT II-EMAIL BETWEEN SPUNTECH AND PERSON COUNTY
Emails were exchanged on December 18, 2015 confirming that the building was not ready.
Delays in the CO were not due to scheduling issues with our Inspections Department. There
were several life safety issues, among other items, that delayed the CO.
Spuntech has offered a court case, STINE, LLC V. UNITED STATES EX REL. INTERNAL REVENUE SERV., as their
evidence. While this court case deals with IRS rules which can be very different than North
Carolina Property Tax General Statutes, in this instance, the facts are very similar.
ATTACHMENT III-STINE, LLC v. USA
The STINE case does not directly compare to the Spuntech case, however there are references
included in this case to other federal cases that are very helpful.
68
The STINE case involves special "Go Zone" legislation for non residential real property, and a
special immediate 50% deduction for this property for IRS purposes. The case was about real
property, not equipment. The building was completed and had obtain the proper CO before
January 1, the valuation date. Although the building was completed, the "official" opening had
not occurred. The court ruled that the building should be depreciated since it was in a state of
"readiness", even though the official opening occurred at a later date.
"It is undisputed that both stores had been issued certificates of occupancy."
"Property is first placed in service when first placed in a condition or state of readiness and
availability for a specifically assigned function."
"the determination of readiness or availability of the building shall be made by taking into
account the readiness and availability of such machinery or equipment."
ATTACHMENT IV-BROWN VS. COMMISSIONER
The BROWN case, which is referenced in the STINE case, is a great indicator of how to handle
business personal property depreciation. The BROWN case involved an airplane (business
personal property) that was used by the taxpayer on December 30 and flown over 4,000 miles.
The $22 million airplane was complete, with the exception of the installation of a customized
conference table for on-flight meetings and upgrades to the installed computer monitors
(changed from 17" to 20" monitors), which was completed by the end of January.
"The court concluded that because the taxpayer testified that use of a conference table and larger
enhanced display screens was necessary to meet the specific needs of his business clients,
without these added components, the asset was not fully functional. Thus, the tax court found
that the taxpayer did not place the airplane in service for this insurance business during the tax
year at issue."
"Brown understood that taking delivery wasn’t enough to capture the bonus depreciation he was
hunting. So his eventful day had only just begun. In what the Commissioner calls “tax flights,”
Brown proceeded to take several trips in the Challenger."
ʺCases [citations and names omitted] tell us to look at the taxpayer—he’s the one who gets to determine what an
asset’s specifically assigned function is. And here that asset’s function wasn’t just to fly Brown around; it was to be
configured in a particular way to meet his very particular business needs. Even though an asset like the Challenger
may be operational, it’s not placed in service until it is operational for its intended use on a regular basis.ʺ
ATTACHMENT V-SEALY POWER, LTD v. CIR
The SEALY case, which is another case referenced in the STINE case, also involved business
personal property. This case involved equipment related to a solid waste incinerator, and the by-
product was electricity.
"Thus, the placed-in-service test requires that before property can be considered placed in a
condition or state of readiness and availability for a specifically assigned function, it must be
available for service on a regular basis."
69
"Only after the facility was complete and working on regular basis could the assets be
considered to be placed in service. Thus, in order for any part of the facility to be considered
placed in service, the entire facility must be functioning for its intended purpose of generating
electricity."
ATTACHMENT VI-VALLEY NATURAL FUELS v. COMMISSIONER
The VALLEY NATURAL FUELS case, again another case referenced in the STINE case,
involved an ethanol distillation plant. In December, the ethanol produced at the facility was less
proof than required. Other equipment had to be installed in order for the facility operate as
designed.
"We similarly conclude that the ethanol still, which was constructed in 1983, the
molecular sieve, which was installed in 1984, and the additional equipment, which was
installed in 1985, were component assets of the facility and functionally formed a single
property. Only after all of these component assets were installed and functioning did the
facility constitute a complete unit that was operational and served the purpose intended
by petitioner, to wit, the production of 198.2 proof ethanol."
"Accordingly, we conclude that the facility was not placed in service for purposes of
depreciation and the investment tax credit and business energy credit prior to that date."
CONCLUSION
Based on the facts above, the conclusion that all of the equipment associated with LINE 5, which are
housed in a building without a CO as of the valuation date (January 1, 2016), must be assessed at the full
value of $57,706,408. The equipment was not in a "ready state", the building was not safe to occupy, to
occupy the building in a production state would be unlawful, and the equipment had suffered no
depreciation (no wear/tear).
The assessed value of Spuntech’s Line 5 of $ 57,706,408 should be upheld.
70
ATTACHMENT I-Spuntech-Taxpayer Evidence
IRS Publication 946 (2015)
When Does Depreciation Begin and End?
You begin to depreciate your property when you place it in service for use in your trade or business or for the production of income. You stop
depreciating property either when you have fully recovered your cost or other basis or when you retire it from service, whichever happens first.
Placed in Service
You place property in service when it is ready and available for a specific use, whether in a business activity, an income-producing activity, a tax-
exempt activity, or a personal activity. Even if you are not using the property, it is in service when it is ready and available for its specific use.
Case law
No cases determine that a certificate of occupancy is a sole element to determining when “placed in service” occurs. It is viewed as “one mean”,
among others for determination for buildings but never for machinery.
Please read the following cases that are available on the issue of “placed in service”. None of the cases use the certificate of occupancy as
a determining factor:
STINE, LLC V. UNITED STATES EX REL. INTERNAL REVENUE SERV.
Brown v. Comm'r.,
Sealy Power, Ltd v. CIR
Brown v. Comm'r.,
Valley Natural Fuels v. Commissioner
See pictures of commercial production initiation of products we subsequently sold DEC 10, 2015 (will
be provided on date). These pictures are highly confidential
71
ATTACHMENT II-EMAILS BETWEEN SPUNTECH AND PERSON COUNTY
From: Travis Seawell [mailto:TSeawell@SametCorp.com]
Sent: Friday, December 18, 2015 7:48 AM
To: Dale Tillman
Cc: Onn Oren (onn_o@spuntech.com)
Subject: spuntech
Dale
Is there a letter you can email the owner today showing substantial completion?
Travis Seawell | | Project Superintendent II | | SPUNTECH INDUSTRIES 555 Northpark Dr,
Roxboro, NC
309 Gallimore Dairy Road, Suite 102 (27409)
P.O. Box 8050 | Greensboro | NC | 27419
Main: 336-544-2600| Fax: 336-544-2638| Cell: 336-542-8006
TSeawell@SametCorp.com | www.sametcorp.com
********************************************************
From: Dale Tillman [mailto:dtillman@personcounty.net]
Sent: Friday, December 18, 2015 8:03 AM
To: Travis Seawell
Subject: RE: spuntech
Travis,
I will e mail you after today on where we stand with everything and you can forward it to them.
Dale L Tillman
Senior Code Enforcement Officer
Person County Inspections
dtillman@personcounty.net
336 597 0570
fax 336 598 6838
********************************************************
From: Travis Seawell [mailto:TSeawell@SametCorp.com]
Sent: Friday, December 18, 2015 8:16 AM
To: Dale Tillman
Subject: RE: spuntech
10‐4…thank you
Travis Seawell | | Project Superintendent II | | SPUNTECH INDUSTRIES 555 Northpark Dr,
Roxboro, NC
309 Gallimore Dairy Road, Suite 102 (27409)
P.O. Box 8050 | Greensboro | NC | 27419
Main: 336-544-2600| Fax: 336-544-2638| Cell: 336-542-8006
72
TSeawell@SametCorp.com | www.sametcorp.com
********************************************************
From: Dale Tillman [mailto:dtillman@personcounty.net]
Sent: Friday, December 18, 2015 1:09 PM
To: Travis Seawell
Cc: Sam Hobgood; Andrew Oakley; Paula Murphy
Subject: RE: spuntech
Travis,
Here is where we stand after my inspection today:
1. The plumbing has been signed off.
2. The mechanical has been signed off, but I understand that some new duct work is being added
(to a piece of equipment) that has to pass through 2 fire walls.
3. The electrical has been inspected and we are still waiting on a disconnect to be certified since it
has no approved testing label on it.
4. The sprinkler test has passed but we still have the pump house to test.
5. The electrical contractor that wired the motors and equipment still needs his final, also there
are label that need to be installed on some disconnects and motors. I understand that some of
this is the responsibility of the owner, but it will need to be done before a CO is written.
6. Planning and zoning is going to want an As built survey and NCDENR approval.
7. We will need as built engineered drawings
8. Check with the city of Roxboro (Andy Oakley) about signing off on any water and sewer
connections
9. We still have a few fire doors to test once they are wired to the alarm.
10. I will be Back on January 5 to complete the alarm test while the plant is shut down.
11. I understand from you that we will conduct a building final the week following the test on the
5th
If you have any questions or inspection needs while I am out please coordinate with Sam Hobgood.
Dale L Tillman
Senior Code Enforcement Officer
Person County Inspections
dtillman@personcounty.net
336 597 0570
fax 336 598 6838
********************************************************
From: Daniel Sharon [mailto:dsharon@spuntech.com]
Sent: Friday, December 18, 2015 1:51 PM
To: Stuart Gilbert; Russell Jones
Cc: Onn Oren
Subject: [SPAM] RE: New Building assessment
Importance: Low
73
The inspections have been done, we are doing what we need too. Dale will be back on the 5th of January
(he isn’t working from now till then) and then he will do the final inspection and provide the certificate.
What should we do?
Dale can sign a document saying everything is complete pending a couple of things till he is back. Would
that cut it?
Daniel Bertz-Sharon Corporate Controller
Spuntech Industries, Inc.
555 North Park Dr., Roxboro NC 27573 Office: +1 (336) 330 9007|Cell: +1 (336) 583 0693|Fax: +1 (919) 640 8660
dsharon@spuntech.com | www.spuntech.com
********************************************************
From: Russell Jones [mailto:rjones@personcounty.net]
Sent: Friday, December 18, 2015 2:11 PM
To: Daniel Sharon; Stuart Gilbert
Cc: Onn Oren
Subject: RE: New Building assessment
If building inspections will sign off stating that all is complete except a few minor issues, and the final CO
is obtain early January, then the tax office will consider this building complete as of January 1.
Spuntech should not be penalized for not having a final CO if it is simply a scheduling issue due to county
staffing.
********************************************************
From: Onn Oren [mailto:onn_o@spuntech.com]
Sent: Friday, December 18, 2015 2:33 PM
To: Sam Hobgood; Dale Tillman
Cc: Daniel Sharon
Subject: [SPAM] FW: spuntech
Importance: Low
Sam, Dale‐
Please write small letter, as per the wording of Russel Jones below.
It will help us with our managers.
Regards,
Onn Oren
Project Manager
Spuntech Industries, Inc.
555 North Park Dr. ,Roxboro
NC, 27573
Office: 336-330-9050
74
Mobile:336-583-9320
********************************************************
From: Sam Hobgood
Sent: Friday, December 18, 2015 3:51 PM
To: Onn Oren; Dale Tillman
Cc: Daniel Sharon; Stuart Gilbert; Russell Jones
Subject: RE: spuntech
Onn,
I am not sure what you need on the letterhead other than the information that Dale has already
provided. After talking with Dale & Travis, I do know there are several life safety issues that have not
been inspected at this time ( i.e. complete fire alarm, automatic fire doors, new duct work that was
being added today that requires fire dampers, pump house test, etc.). As set forth by North Carolina
General Statutes, Person County Inspections will not be able to issue any kind of conditional or
temporary CO until all life safety issues are completed and inspected. The fire alarm inspection
scheduled for Jan. 5th was a request made by Spuntech because that was the next scheduled date for a
shutdown.
On another note so I can clear up a miscommunication that has circulated in some previous emails: Our
staffing issues have NOT hindered any inspections on this job. If anything, Spuntech has been treated as
a priority in regards to its inspections. I know Dale is on vacation next week but I am here on Monday &
Tuesday of next week and can perform any inspection that may be needed. Dale will return after
Christmas on Dec. 28th, not the first of January. If anything needs to be scheduled between Dec. 28th –
Dec. 31st, we will be glad to accommodate any inspections.
Thank you and we look forward to assisting you in the completion of your project.
ftÅ [ÉuzÉÉw
Director of Inspections & Permits
Person County Inspections Dept.
325 South Morgan St., Suite A
Roxboro, NC 27573
(336)597‐0570
(336)598‐6838 Fax
www.personcounty.net
********************************************************
From: Russell Jones
Sent: Thursday, August 11, 2016 8:57 AM
To: Sam Hobgood
Subject: RE: spuntech
What activity, if any, was allowed in the Spuntech building prior to their final CO? I assume that the
equipment was allowed to be put in a test mode for calibration and final checks for installation, but not
allowed to be in full production.
75
Was the new equipment allowed to be used and be in production prior to the final CO? What were the
dates of any temporary CO and what did the temporary CO permit? What was the date of the final CO?
Spuntech is stating that the equipment was in production before 1/1/2016 and should be depreciated
for this year, and I disagree based on the fact that the building was not able to be occupied and
therefore the equipment was still new as of 1/1/2016.
Any feedback that you can provide on this will be helpful.
********************************************************
From: Sam Hobgood
Sent: Thursday, August 11, 2016 9:23 AM
To: Russell Jones
Subject: RE: spuntech
We gave permission (Temporary CO) to stock the offices and start up the line on 1/5/2016. On this date,
we performed an inspection on all the fire alarm issues that were mentioned below. They were given
permission to test (only) all of the equipment prior to this date. As stated in my previous email, the fire
alarm issues were life safety items, so we didn’t allow any production until they were corrected and
inspected.
The final CO was issued on 3/7/16.
ftÅ [ÉuzÉÉw
Director of Inspections & Permits
Person County Inspections Dept.
325 South Morgan St., Suite A
Roxboro, NC 27573
(336)597‐0570
(336)598‐6838 Fax
www.personcounty.net
********************************************************
From: Russell Jones [mailto:rjones@personcounty.net]
Sent: Tuesday, August 16, 2016 2:25 PM
To: Daniel Sharon
Subject: FW: spuntech
I have reviewed NCGS as they pertain to the taxation of equipment for property taxes, and discussed the
issues that you raised with our Building Inspection department.
Based on this review, the Person County Tax Office will not be reducing the equipment value to
represent any depreciation.
Our decision is based primarily on the fact that the equipment was not allowed to operate before
1/5/2016, and therefore the equipment did not suffer any depreciation. Also, there are no other factors
that would make the equipment less valuable.
76
Our decision will become final after 30 days. Our decision may be appealed to the Person County Board
of County Commissioners, which serve as our Board of Equalization and Review when our Special Board
of Equalization and Review is not in session.
Please let me know if you wish to be placed on the Board's agenda for appeal.
********************************************************
From: Daniel Sharon [mailto:dsharon@spuntech.com]
Sent: Tuesday, August 16, 2016 2:58 PM
To: Russell Jones
Subject: [SPAM] RE: spuntech
Importance: Low
The property was being used and producing material I have proof of that. You mention “the fact that
the equipment was not allowed to operate before 1/5/2016” . Allowed by who exactly?
I ask you to reconsider your position before we escalate this.
Thanks
Daniel Bertz‐Sharon
Corporate Controller
<image001.png>
Mobile: (336) 583‐0396
Office: (336) 330‐9017
dsharon@spuntech.com
www.spuntech.com
********************************************************
From: Russell Jones [mailto:rjones@personcounty.net]
Sent: Tuesday, August 16, 2016 3:19 PM
To: Daniel Sharon
Subject: RE: spuntech
Our office has completed a thorough review of all evidence presented. Please let me know if it your
companies' desire to appeal before the Person County Board of Commissioner's before September 15,
2016.
********************************************************
From: Daniel Sharon [mailto:dsharon@spuntech.com]
Sent: Wednesday, August 17, 2016 12:39 PM
To: Russell Jones
Subject: [SPAM] RE: spuntech
Importance: Low
I want to appeal please
Daniel Bertz‐Sharon
77
Corporate Controller
<image001.png>
Mobile: (336) 583‐0396
Office: (336) 330‐9017
dsharon@spuntech.com
www.spuntech.com
********************************************************
From: Russell Jones [mailto:rjones@personcounty.net]
Sent: Wednesday, August 17, 2016 1:39 PM
To: Daniel Sharon
Subject: RE: spuntech
The Person County Board of Commissioners' will meet on September 6 at 9am. The board meets at 304
S. Morgan St, Room 215. We request that all evidence to be submitted to the board be provided to the
tax office no later than Friday, August 26 at 5pm. We will forward all evidence to the Board on your
behalf.
Please submit any documentation that you wish for the board to review in an electronic format.
The valuation in dispute is the $57,706,408 equipment for the new Line 5. What do you contend that
the value of this equipment was on 1/1/2016?
As you are aware, the tax office contends that this equipment should be valued at your historical cost of
$56,706,408, and that the equipment had not suffered any depreciation as of 1/1/2016.
********************************************************
From: Daniel Sharon [mailto:dsharon@spuntech.com]
Sent: Wednesday, August 17, 2016 3:19 PM
To: Russell Jones
Subject: [SPAM] RE: spuntech
Importance: Low
I need a bit more time for the evidence cause I’m flying to israel this Friday till the 30th (vacation)
Daniel Bertz‐Sharon
Corporate Controller
<image001.png>
Mobile: (336) 583‐0396
Office: (336) 330‐9017
dsharon@spuntech.com
www.spuntech.com
********************************************************
On Aug 18, 2016, at 3:18 PM, Russell Jones <rjones@personcounty.net> wrote:
78
As we discussed on the phone this afternoon, your appeal has been rescheduled to September 19, 2016
at 9am. Please forward any evidence that you wish to be provided to the Person County Board of
Commissioners' to the tax office by email before Friday, September 9 at 5pm.
We will forward all evidence to the Board on your behalf.
********************************************************
From: Daniel Sharon [dsharon@spuntech.com]
Sent: Thursday, August 18, 2016 4:12 PM
To: Russell Jones
Subject: Re: spuntech
Ok, thanks
Sent from my iPhone
79
ATTACHMENT III-Stine case
Stine, LLC v. United States ex rel. Internal
Revenue Serv.
W.D. La.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE
CHARLES DIVISION
DOCKET NO. 2:13-03224
01-27-2015
STINE, LLC v. USA on behalf of INTERNAL REVENUE SERVICE
JUDGE TRIMBLE
MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court are two motions: "Motion for Summary Judgment" (R. #14) filed by plaintiff,
Stine LLC ("Stine") and the "Government's Motion for Summary Judgment" (R. #32) filed by
the United States of America. In its motion, Stine seeks to have the government ordered to
refund taxes it paid under protest. The government's motion seeks a ruling from this court that
Stine is not entitled to take an accelerated depreciation allowance granted by the Gulf
Opportunity Zone Act of 2005 (hereinafter referred to as the "Go Zone" allowance); the
government disallowed the incentive allowance because the relevant buildings were not open for
business prior to December 31, 2008.
The buildings were newly constructed in Broussard and Walker, Louisiana.
On January 21, 2015, the court heard oral arguments as to the motions; the parties have
submitted their summary judgment evidence and fully briefed their arguments. For the following
reasons, Stine's motion will be granted and the government's motion will be denied.
FACTUAL STATEMENT
The undisputed facts are as follows: Stine, LLC is a retail operation that among other things sells
home building material and supplies. This matter was filed by Stine to recover corporate income
80
taxes and interest collected from Stine by the Internal Revenue Service ("IRS"). In its 2008 tax
returns, Stine took the Go Zone allowance which was a 50% depreciation of two (2) buildings
constructed in Walker and Broussard, Louisiana. The accelerated depreciation deduction created
a loss for 2008 which allowed Stine to carry back those losses for the 2003,2004 and 2005 tax
years. Thus, after filing the appropriate forms, Stine received a refund for the 2003, 2004 and
2005 tax years. The IRS disallowed Stine's Go Zone depreciation deduction and assessed Stine
with taxes owed in the amount of $2,164,486.00 for the tax years 2003 through 2008. Stine
remitted payment in this amount with a Notice of Deficiency Waiver.
the IKS is an agency of defendant, the United States of America.
Stine filed Amended Corporation Income Tax Returns containing the refund claims for the tax
years in question; the IRS issued a Notice of Disallowance.
Stine is seeking a refund of its corporate income taxes which it alleges the IRS erroneously
collected in the amount of $2,164,486.00 for the tax years 2003 through 2008, plus interest on
the refund pursuant to IRC § 661, and attorney fees, costs and any other sums allowed by law.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, when viewed in the light most favorable
to the non-moving party, indicate that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." A fact is "material" if its existence
or nonexistence "might affect the outcome of the suit under governing law." A dispute about a
material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for
the non-moving party. As to issues which the non-moving party has the burden of proof at trial,
the moving party may satisfy this burden by demonstrating the absence of evidence supporting
the non-moving party's claim." Once the movant makes this showing, the burden shifts to the
non-moving party to set forth specific facts showing that there is a genuine issue for trial. The
burden requires more than mere allegations or denials of the adverse party's pleadings. The non-
moving party must demonstrate by way of affidavit or other admissible evidence that there are
genuine issues of material fact or law. There is no genuine issue of material fact if, viewing the
evidence in the light most favorable to the non-moving party, no reasonable trier of fact could
find for the non-moving party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted."
LAW AND ANALYSIS
The accelerated depreciation allowance taken by Stine involved tax incentives enacted by
Congress to stimulate the economy, business activity and capital investment in and around
Southeast and Southwest Louisiana after the devastation caused by Hurricanes Katrina and Rita
in 2005. The "Go Zone" legislation, among other things, allowed for an immediate 50%
deduction for nonresidential real property "placed in service" after August 28,2005 and before
January 1, 2009.
81
26 U.S.C. § 1400N(d)(1)(A) and (d)(2)(A); 26 U.S.C. § 167(a).
IRC § 1400N(d)(1)(A) is the Go Zone incentive depreciation provision and provides in pertinent
part:
(A) the depreciation deduction provided by section 167(a) for the taxable year in which such
property is placed in service shall include an allowance equal to 50 percent of the adjusted basis
of such property... .
To qualify, property must meet the following conditions:
(I) be property which is described in section 168(k)(2)(A)(I), or,
be property which is nonresidential real property or residential rental property,
(ii) substantially all of the use of the property must be in the Gulf Opportunity Zone and is in the
active conduct of a trade or business by the taxpayer in such zone,
(iii) the original use of the property in the Gulf Opportunity Zone commences with the taxpayer
on or after August 28, 2005,
(iv) property that is acquired by the taxpayer by purchase (as defined in section 179(d)) on or
after August 28, 2005, but only if no written binding contract for the acquisition was in effect
before August 28, 2005, and
(v) the property is placed in service by the taxpayer on or before December 31, 2007 (December
31, 2008, in the case of nonresidential real property and residential rental property)
The parties' only dispute in the motions for summary judgment is when the property was "placed
in service." Stine maintains that when the depreciable assets- the buildings- were substantially
complete, the buildings were then ready and available for their intended use - to store and house
equipment, racks, shelving and merchandise. Stine presented as summary judgment evidence the
deposition testimony and affidavit of the building's architect, Stephen M. Viguerie, and other
relevant documents including certificates of completion and occupancy which establishes that
the buildings were substantially complete, and limited occupancy was granted.
Plaintiff's exhibit C; plaintiff's exhibit E, pp. 28-29, 42-43, 46, 56, 82-83, 86, 94-95 and 99;
Plaintiff's exhibit F.
Plaintiff's exhibit C.
The government's position is that because the two buildings were not open for business, the
taxpayer has failed to meet the December 31, 2008 "placed in service" deadline. Therefore, the
taxpayer did not qualify and was not entitled to the Go Zone tax incentive.
The government argues that the depreciation allowance offends the "matching principle" because
the revenue Stine would receive from the buildings will not be matched with the depreciation
82
deduction taken within a taxable year. We find this argument totally without merit. The Go Zone
depreciation allowance which allows a 50% depreciation deduction in the first year the asset is
placed in service inherently offends the matching principle. It is a tax subsidy purposefully
created to increase business investments and stimulate the economy. As noted by Stine, by its
very nature, the Go Zone allowance mismatches expenses with any corresponding revenue.
It is undisputed that both stores had been issued certificates of occupancy which allowed them to
receive equipment, shelving, racks and merchandise as well as the appropriate personnel to
install and or stock said equipment, shelving, racks and merchandise. Furthermore, neither party
dispute the fact that on December 31,2008, the stores were not open for business and the
certificates of occupancy did not allow the public, which this court understands to be customers,
to enter the buildings.
IRC § 1400N(d)(1)(A) states that the Go Zone depreciation is governed by IRC § 167 and the
related treasury regulations. Treas. Reg. § 1.167(a)-10(b) provides that the depreciation period
for an asset begins when the asset, in this case, the building, is "place in service." "Placed in
service" is defined as follows:
Property is first placed in service when first placed in a condition or state of readiness and
availability for a specifically assigned function, whether in a trade or business, in the production
of income, in a tax-exempt activity, or in a personal activity. . . . In the case of a building which
is intended to house machinery and equipment and which is constructed, reconstructed, or
erected by or for the taxpayer and for the taxpayer's use, the building will ordinarily be placed in
service on the date such construction, reconstruction or erection is substantially complete and the
building is in a condition or state of readiness and availability. Thus, for example, in the case of a
factory building, such readiness and availability shall be determined without regard to whether
the machinery or equipment which the building houses, or is intended to house, has been placed
in service. However, in an appropriate case, as for example where the building is essentially an
item of machinery or equipment, or the use of the building is so closely related to the use of the
machinery or equipment that it clearly can be expected to be replaced or retired when the
property it initially houses is replaced or retired, the determination of readiness or availability of
the building shall be made by taking into account the readiness and availability of such
machinery or equipment. . . .
During oral arguments and in their memoranda, the government argues that the case law
indicates that an asset for a retail operation must be open for business in order for the
depreciation recovery to commence. The government relies on three cases: Sealy Power, Ltd v.
CIR., Piggly Wiggly Southern, Inc. v. Comm'r,, and Brown v. Comm'r.,
46 F.3d382 (5th Cir. 1995).
84 T.C. 739(1985).
2013 WL 6244549, *10 (Tax. Ct. 2013).
83
In Brown, first we note that this case is not final; it involves a bonus depreciation deduction for
an airplane, not a building. In reading the lengthy, but thorough opinion, the tax court repeatedly
discounted the testimony of the taxpayer and found that his evidence and his testimony was not
credible. The court concluded that because the taxpayer testified that use of a conference table
and larger enhanced display screens was necessary to meet the specific needs of his business
clients, without these added components, the asset was not fully functional. Thus, the tax court
found that the taxpayer did not place the airplane in service for his insurance business during the
tax year at issue. Again, we reiterate, this case is not final.
The court contacted the Tax Court and according to the docket, this is a consolidated case; a final
judgment has not been rendered or the case is still open, and a status report is due March 16,
2015.
In Sealy, the court noted that to determine the trade or business of the taxpayer, one must
examine the "substance of [taxpayer's] intended business activity." The Sealy court involved
component parts of an electric power generating facility. The taxpayer maintained that the
"placed in service" test should apply separately to each component of the facility as opposed to
the facility as a whole. The court concluded that for purposes of the "placed in service" test, the
facility functionally formed a single property, as opposed to a number of interdependent
components. The Sealy case does not involve a building which houses merchandise, shelving
and racks and functions as a retail operation, rather than a power generating facility, and thus is
not applicable.
Sealy Power, Ltd, 46 F.3d at 390.
In Valley Natural Fuels v. Commissioner, the tax court was asked to determine when an ethanol
distillation plant was placed in service for purposes of depreciation, the investment tax credit and
business energy credit. The purpose of the business was to produce ethanol and the purpose of
the asset was to produce ethanol. The Valley Natural court expressly noted that the asset in
which the items in dispute were claimed and disallowed was not the building, but the distillation
equipment. Thus, the court clearly noted the distinction between a building and equipment for
depreciable assets.
T.C.Memo. 1991-341 (1991).
Notably, the taxpayer in Valley Natural, relied on Fort Howard Paper v. Comm'r. for the
proposition that its "equipment" did not have to be operational to be placed in service. However,
the asset in Fort Howard involved a "building" used to house a turbine, which the tax court
determined was placed in service years before its equipment (a second turbine) was installed
and/or operational. The Valley Natural court clearly distinguished a building from equipment
noting as follows: "In this case (Valley Natural), however, the building was not the asset on
which the items in dispute were claimed and disallowed".
T.C. Memo 1977-422 (1977).
Id. at p. 7.
84
We find based on the case law and the relevant statutory law, that there is a marked difference in
a building as opposed to equipment and how the tax courts determine when these assets are
placed in service.
The Piggly Wiggly case relied upon by the government, decided when certain equipment was
placed in service for purposes of the investment tax credit. We find for the reasons set forth
above that this case does not apply because it concerns equipment, not buildings.
Stine cites and relies on Williams v. Commissioner, wherein the taxpayer purchased a building
on July 1, 1981 as part of his muffler installation and auto repair business. The building required
substantial improvements, however, the taxpayer claimed that the building was placed in service
on July 1, 1981 relying on the undisputed fact that he had "opened for business" based on
occasional muffler and auto repairs. The court completely disregarded the fact that the building
was open for business and/or could function to provide the business's operations, and instead
totally relied on the fact that the taxpayer had failed to submit evidence as to when the
improvements to the building had been completed. The court concluded that the building was
placed in service when the refurbishing had been completed, not when the business was open for
business.
T.C.M. 1203, T.C. Memo 1987-308 (1987).
Stine argues that this case is in conformity with Treas. Reg. § 1.167(a)-11(e)(1)(I) as stated
herein above. Stine also relies on Prop. Reg. § 1.168-2(e)(3) which provides:
For purposes of this section, a building shall be considered placed in service (and, therefore,
recovery will begin) only when a significant portion is made available for use in a finished
condition (e.g., when a certificate of occupancy is issued with respect to such portion) . . . .
and
the IRS's Audit Technique Guide for Rehabilitation Tax Credits which provides guidance for
rehabilitated buildings under IRC § 47 as follows:
[A] 'Certificate of Occupancy' is one means of verifying the 'Placed in Service' date for the entire
building (or part thereof).
The government's position is that the building must be open for business. The tax law cases,
regulations, revenue rulings and tax guides say otherwise. Stine has presented undisputed
summary judgment evidence that the buildings had been issued certificates of occupancy; they
were substantially complete, and were fully functional to house and secure shelving, racks and
merchandise. Even though the government adamantly suggests that the buildings were placed in
service when they opened their doors for business, the government has failed to cite any
authority whatsoever to show that "placed in service" equates to "open for business." In fact,
during oral arguments, the government candidly admitted, that no such authority currently exists.
We do not believe the IRS is "hiding the ball" from the taxpayer, but instead opine that whether a
building is open for business is of no moment; rather the building is placed in service when it is
substantially complete meaning in a condition of readiness and availability to perform the
85
function for which it was built- in this instance to house and secure racks, shelving and
merchandise. The court finds that the Walker and Broussard buildings were placed in service
prior to December 31, 2008 fully qualifying the taxpayer to take advantage of the "Go Zone"
bonus depreciation allowance.
The court would make this finding whether we decided this case based on either a liberal or
narrow construction. The case law and the fact that the lawmakers know how to word statutes,
rules and regulations, and understanding that Congress could have easily expressed that a
building would be placed in service when open for business leads this court to believe that there
is no requirement that a building be open for business in order for it to be placed in service for
purposes of a depreciation allowance.
CONCLUSION
For the reasons set forth above, the motion for summary judgment filed by Stine, LLC will be
granted and the motion for summary judgment filed by the USA will be denied. Although
attorney fees were sought by Stine in the prayer, there was no statutory authority mentioned by
Stine either in the complaint, the motion for summary judgment, the briefs in support thereof, or
at oral arguments. The court will enter judgment based upon its opinion on the issues briefed and
argued. If Stine wishes to pursue the issue of attorney fees, it may move to reopen for that
limited purpose. The court will be guided by the law which may or may not allow attorney fees
and which may require the court to deem the claim waived inasmuch as it was not presented
beyond mention in the prayer.
THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, this 27 day of January,
2015.
86
ATTACHMENT IV-Brown case
A Round Trip Ticket to Unwanted IRS
Attention: False Documents and Fraud
December 31, 2013 by Leslie Book 4 Comments
8 Flares Filament.io Made with Flare More Info 8 Flares ×
As we approach year‐end and clients push to get deals done, I am going to briefly discuss the cautionary tale of
Brown v Commissioner from earlier this month. On paper, the issue in the case is dry: whether a taxpayer who took
ownership of a plane on December 30, 2003 placed that plane “in service” in 2003 for the purpose of qualifying for
bonus depreciation.
The case though makes for a fascinating read. It involves a $22 million dollar private plane, letters purportedly
drafted by a CFO (also a CPA) whose responsibility included making up documents “to get the substantiation for
deductions when the IRS requests them”, related audits that resulted in income adjustments of over $50 million, and
over $20 million in civil fraud penalties.
In this post, I will highlight the procedural issue in Brown, namely the Court’s analysis of the civil fraud penalty. The
case illustrates that while closing a deal before year’s end may make sense, sometimes the drive to secure tax benefits
can lead to major tax problems.
read more...
Depreciation: In Service
Some judges have a flair for making any issue interesting. Having spent some time recently with a Judge Holmes
TEFRA opinion that I discussed here (involving affected items and notices of deficiency), and now with an opinion in
case involving bonus depreciation, I appreciate his style. His opinions clearly discuss the applicable technical rules,
directly address the authorities, and somehow manage to be funny even when discussing unfunny topics like TEFRA
and depreciation.
In Brown v Commissioner, the issue revolved around whether Brown, a life insurance salesman to ultra high net worth
clients, was able to take about $11 million in bonus depreciation deductions for a custom jet. The dispute was one of
timing: Brown purchased the plane (a Challenger) on December 16, 2003 and took delivery on December 30, 2003. On
December 30, he picked the plane up in Portland, and flew to a client in Seattle for a lunch meeting. After that
meeting, he flew for about 3.5 hours to a colleague in Chicago, where he gave his colleague a 10 minute tour of the
plane and met for under an hour at an airport pizza restaurant. After the meeting, Brown flew back to Portland,
arriving back shortly after midnight on December 31.
After returning the plane (and flying his other plane to Mexico to celebrate New Year’s Eve), the new plane stayed
back in Portland where customizers worked on making changes to the plane that Brown insisted on as necessary for
his business. Those changes were 20 inch rather than 17 inch monitors he would use for Powerpoint presentations
and a custom conference table for on‐flight meetings. The customizer made the changes in January 2004, and Brown
picked up the plane for final delivery at the end of January, 2004.
Despite the changes Brown arranged for the plane, he wanted to claim 50% bonus depreciation in 2003.To get the
depreciation deduction in 2003, Brown was aware of the need to treat the plane as in service before the end of 2003.
As Judge Holmes describes:
87
Brown understood that taking delivery wasn’t enough to capture the bonus depreciation he was hunting. So his
eventful day had only just begun. In what the Commissioner calls “tax flights,” Brown proceeded to take several trips
in the Challenger.
For those who are interested in or who advise clients on whether property is placed in service for depreciation
purposes, I recommend reading the opinion. For purposes of this post, I’ll summarize and state that the regs under
Section 168 require that the otherwise depreciable object is in service when it is “first placed in a condition or state of
readiness and availability” for the “specifically assigned function” for which a taxpayer purchased it. The main issue
in the case was whether Brown’s returning the plane and adding the custom conference table and larger monitors
meant that the plane was not ready and available for the assigned function until he took delivery in 2004. Because
Brown testified that he “needed” the custom conference table and that the monitors and the table were “required” for
his business, the court found that Brown did not place the plane in service until 2004, when the plane was specifically
outfitted with the changes Brown insisted on:
Cases [citations and names omitted] tell us to look at the taxpayer—he’s the one who gets to determine what an
asset’s specifically assigned function is. And here that asset’s function wasn’t just to fly Brown around; it was to be
configured in a particular way to meet his very particular business needs. Even though an asset like the Challenger
may be operational, it’s not placed in service until it is operational for its intended use on a regular basis.
Penalties: Fraud and Substantial Understatement
In addition to IRS reversing the $11 million bonus depreciation, its notice of deficiency added a 75% civil fraud
penalty. Some context for the penalty is helpful. Section 6663(a) adds a penalty equal to 75% of the portion of the
underpayment attributable to the fraud. Generally, IRS has the burden of proving fraud, which requires clear and
convincing evidence that a taxpayer underpaid tax and that the underpayment was due to the fraud. Under Section
6663(b) the burden shifts back to the taxpayer if the IRS proves that any part of the underpayment was due to fraud.
Prior to trial the taxpayers agreed that $1.8 million of other adjustments to income from 2003 were subject to the
fraud penalty—thus, the burden shifted back to Brown, who had to show that the bonus‐depreciation was not
attributable to fraud.
Fraud, as Brown discussed, is the “intentional wrongdoing with the specific purpose of avoiding a tax believed to be
owed.” Because it is unusual to have direct proof of the fraud, courts and IRS look to a grab bag of factors (often
called badges). The opinion lists a number of the factors that courts and IRS alike have identified.
One of the factors the courts look to as a sign of fraud is the use of false documents. Here, to support its finding of
fraud, the IRS principally relied on that factor (as well as the taxpayer’s sophistication and multi‐year and multi‐
million dollar patter of overstating deductions). Let’s consider the false documents, and consider why in some cases
there are really bad false documents and only somewhat bad false documents.
False Documents and Fraud
To justify his position that he placed the plane in service in 2003, Brown introduced letters from two people he
supposedly flew to and visited on December 30, a client in Seattle and a business associate in Chicago.
First, the opinion discussed the client letter. Brown testified that he flew to Seattle on December 30 and had lunch at
a restaurant for 1.5 to 2 hours, where the client introduced Brown to two potential clients. The opinion included the
letter. The client did not testify at Brown’s tax trial—he was a fugitive facing money laundering and fraud charges.
Following is an excerpt from the letter:
Because of your extraordinary knowledge of insurance and related matters, I was happy to introduce you to a
business associate of mine and his wife. I enjoyed watching their eyes light up as you discussed how you could help
88
them take advantage of various estate planning alternatives. I trust you will be able to turn this introduction into a
win‐win situation for both parties. Again, thanks for all you have done for me and my family in the past and I look
forward to working with you in the future.
Best regards, /s/ Michael Mastro
Judge Holmes was skeptical: “[n]ot only do our eyes not light up, but we sense something doesn’t smell quite right
with the whole Seattle visit.” The flight logs suggested that Brown was in Seattle for only 66 minutes, but Brown said
his lunch meeting in Seattle lasted between 90 minutes and two hours. At trial, Brown admitted that the letter was
neither contemporaneous nor even prepared by Mastro. He admitted his CFO/CPA, Gary Fitzgerald, drafted the
letter sometime much later and had Mastro sign it. Although at one point Brown said he thought he had told
Fitzgerald to write the letter “several months” after year end, we find more credible his later testimony that one of
Fitzgerald’s jobs is to write letters on behalf of Brown’s business associates “to get the substantiation for deductions
when the IRS requests them.” We therefore find that Fitzgerald didn’t write this letter until at least 2006 when the
IRS began auditing Brown’s return for the 2003 tax year. We do not take it seriously as proof of anything but a reason
to question Brown’s credibility.
A similar finding was made with respect to a letter from a business colleague, who Brown claimed he had visited in
Chicago for about an hour. Here’s the letter Brown introduced from his colleague:
Thanks for coming through for me when I told you how vital it was for us to meet before the books are closed on
2003.
As we discussed yesterday in Chicago, due to my efforts, we were able to share insurance commissions on well over
a million dollars of policies in 2003. The list we reviewed, of prospective clients in the greater Chicago area, should
generate even greater commissions in 2004.
Our relationship has always been mutually rewarding in the past, and based on yesterday’s meeting, looks like it will
continue so well into the future. Thanks again. Sincerely, OAK VENTURE ADVISORS, LLC /s/ Marc A. Pasquale
Marc A. Pasquale
Again, Judge Holmes found problems with the letter:
This is just not believable. Brown admitted that Fitzgerald [Brown’s CFO/CPA] had written the letter at his direction–
like the Mastro letter–and sent it to Pasquale to sign. (Pasquale confirmed he signed a letter that had been written for
him.) Pasquale “couldn’t recall” exactly when he received it, saying he thought it was at some point in 2004 but also
that it was possible that it was given to him as late as 2006. In light of that testimony, and Brown’s testimony that one
of Fitzgerald’s jobs was to get documentation for these events only “when the IRS requests [it],” we find–as we did
with the Mastro letter–that Fitzgerald didn’t send this letter to Pasquale until after the IRS began auditing Brown’s
return in 2006.
Despite the problems with the letters, they did not support a finding of fraud. In addition to pointing out that it “was
not clear the contents of the letter were patently false,” even if they were false, they did not support a finding of the
required fraudulent intent, which must exist at the time the taxpayer files the return.
Some cases have looked to postfiling events as suggestive of finding intent that formed earlier. Despite those cases,
Brown “credibly” testified that he only had his employee write the letters for others to sign when the IRS requested
them at audit. Thus, according to Judge Holmes, they were not supportive of an intent to mislead at the time of filing,
the crucial time when the intent must exist to justify a fraud penalty.
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What also helped the court decide that Brown should not be subject to the fraud penalty was that the IRS conceded
that the bonus depreciation expense was legitimate—albeit for 2004, not 2003, and that he actually took ownership of
the plane in 2003. The court also concluded that Brown indeed did fly to Chicago to meet with his business associate
Pasquale. To the court, Brown did try to meet the “placed in service” requirement and he “actually believed he
completed all the steps necessary to use the plane in 2003” to justify taking the expense. In light of the above, even
with the burden on Brown, the court concluded that the fraud penalty should not apply.
Substantial Understatement
Despite the finding that there was no fraud, it was not a complete wipeout for the IRS on penalties. While the IRS
cannot stack the fraud and 20% accuracy‐related penalties, it can, and often does, argue them in the alternative. The
Court sustained the 20% accuracy related penalty attributable to a substantial understatement of income taxes. That
issue turned on determining whether the claimed depreciation was justified based upon substantial authority.
Finding that the penalty applied, the court rightly identified that the substantial authority standard is objective, but
also seemed to fault the taxpayer for barely mentioning favorable case law in its briefs that arguably justified its
position that the plane was placed in service in 2003 (“we previously noted that the discussion in their opening brief
of that term was limited to one footnote that didn’t even discuss the regulation or any pertinent caselaw interpreting
it”). Nonetheless, given the weight of the case law that suggested that the plane was not placed in service in 2003, the
court found that there was not substantial authority. Substantial authority exists only “if the weight of the authorities
supporting the treatment is substantial in relation to the weight of authorities supporting contrary treatment.” Sec.
1.6662‐4(d)(3).
90
ATTACHMENT V-Sealy case
SEALY POWER, LTD. v. COMMISSIONER
Docket No. 13568-88.
63 T.C.M. 2482 (1992)
T.C. Memo. 1992-168
Sealy Power, Ltd., Donald E. Rutt, Tax Matters Partner v. Commissioner.
United States Tax Court.
Filed March 23, 1992.
Attorney(s) appearing for the Case
Ruth E. Salek, 1200 Smith St., Houston, Tex., and George W. Connelly, Jr., for the petitioner.
T. Richard Sealy, III, for the respondent.
Memorandum Findings of Fact and Opinion
NIMS, Chief Judge:
Respondent proposed adjustments to partnership items of Sealy Power, Ltd. (the partnership),
pursuant to the partnership audit and litigation procedures of sections 6221-6233 with respect to
taxable years 1983 and 1984. The proposed adjustments are as follows:
1983
Taxes ................................... $ 58,792
Depreciation ............................ 41,411
General partner's fee ................... 157,500
Accounting fees ......................... 1,250
Bug spray ............................... 900
Dow therm ............................... 27,640
Legal fees .............................. 20,000
Management fees ......................... 100,000
Power lines ............................. 83,900
Investment tax credit (basis) ........... 3,261,837
Business energy tax credit .............. 2,248,457
Net earnings from self empl. ............ 136,813
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Accelerated depreciation (tax preference
item) ............................... 1,709
Net investment income ................... 338,024
1984
Depreciation ............................ $ 707,586
Legal fees .............................. 10,000
Interest expense ........................ 98,625
Bank charges ............................ 97
Insurance expense ....................... 233
Check printing and deposit expense ...... 115
Amortization expense .................... 2,502
Net earnings from self empl. ............ 236,877
Accelerated depreciation ................ 20,508
Qualified investment expenses (tax
preference item) .................... 367,021
After concessions, the issues for decision are: (1) Whether the notice of final partnership
administrative adjustment was arbitrary so as to shift the burden of going forward with the
evidence to respondent; (2) whether the partners of the partnership were at risk within
the meaning of section 465 so as to be entitled to the claimed deductions and credits;
and (3) whether for purposes of depreciation and investment and energy tax credits the
property of the partnership's facility was placed in service in 1983, 1984, or some other
year. Unless otherwise indicated, all section references are to the Internal Revenue
Code for the years at issue. All Rule references are to the Tax Court Rules of Practice
and Procedure.
Findings of Fact
Some of the facts have been stipulated and are found accordingly. The stipulation of facts and
attached exhibits are incorporated herein by this reference.
On March 30, 1988, respondent issued the notice of final partnership administrative adjustment
(FPAA) in this case. Donald E. Rutt (petitioner), as the tax matters partner, filed a petition for
readjustment of partnership items. Rutt resided in Kingwood, Texas, at the time he filed the
petition.
The partnership is a Texas limited partnership. It filed its Certificate of Limited Partnership on
October 21, 1983. The partnership's stated purpose was to build and operate a power
production facility (facility) in Sealy, Texas, which was to produce, from solid waste, 38,400
kilowatt hours per day of electricity to be sold to Houston Lighting and Power Co. (HLP).
During 1983 and 1984, the partnership had two general partners (Donald E. Rutt and Jim R.
Connatser), three new limited partners, and 39 limited partners. The partnership was adequately
capitalized, with the partners contributing substantial amounts of cash, promissory notes, and
letters of credit. The total initial cash contribution to the partnership by the limited partners was
$392,000, and each limited partner pledged a letter of credit that was used to obtain a $790,500
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loan from Texas Investment Bank. Each limited partner paid his or her share of the $790,500
partnership loan from Texas Investment Bank.
Energy Advancement, Inc. (EAI) built the facility on behalf of the partnership on property located
next to the City of Sealy's landfill. The lease agreement between the partnership and the City of
Sealy required the partnership to operate the landfill.
Tor Lileng, an engineer employed by EAI, designed and supervised construction of the personal
property, related buildings, and foundations at the facility. Lileng's design for the facility provided
for acquiring various units of machinery from different manufacturers, placing them on concrete
slabs and connecting them with wires and pipes.
The facility consisted of the following property:
a. A building where garbage was deposited by trucks and housed;
b. a hopper with a screw/auger feeder, attached to the building. Garbage in the building was
loaded into the hopper, and the feeder would move the garbage into the incinerator;
c. an incinerator where the garbage was to be burned in two stages; and
d. various equipment designed to recover the heat generated by burning the garbage and turn it
into electricity, such as a vaporiser, steam superheater, separator, expander, and steam
turbines.
A large building was constructed at the facility. In this building trash was accepted, sorted, and
dried so that it could be burned by the incinerator. A tractor was used in this part of the facility to
move and sort the garbage.
The building also contained a conveyor which moved the dried garbage to the incinerator. The
incinerator was located on its own slab in a pit next to, but separate from, the building. The
incinerator had two chambers. In the first chamber the garbage was heated without air so it
would be gasified. The second chamber burned the gasses that were generated in the first
chamber. The heat produced by the incineration process turned two separate turbine systems,
one steam and one dowtherm, to generate electricity.
The facility, which cost approximately $3,500,000 to construct, functionally formed a single
property. The purpose of the facility was to generate electricity from solid waste. On June 6,
1984, EAI entered into an agreement with HLP on behalf of the partnership which provided for
the sale of the electricity produced by the facility to HLP at a price equal to the costs which HLP
avoided by not having to produce the power itself.
From the winter of 1983 through a portion of 1988, the partnership operated the landfill adjacent
to the facility. In so doing, it employed two gatekeepers and paid for required bulldozing.
The ground lease between the City of Sealy and the partnership provided that the City of Sealy
and its residents could dispose of their garbage at the landfill free of charge. Commercial
establishments located within the Sealy city limits could dispose of an incidental amount of
garbage at the landfill free of charge, but they had to pay a "tipping fee" equal to the current
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commercial rate for garbage disposal if they wished to dispose of more than an incidental
amount. The partnership was not to be compensated for operating the landfill unless the cost of
operation exceeded $60,000. The partnership would be reimbursed for any costs incurred
over $60,000. The partnership reported the following tipping fees from persons
depositing garbage at the landfill:
1984 ..................... $ 5,471
1985 ..................... -0-
1986 ..................... 11,200
1987 ..................... 9,664
The partnership first operated the incinerator at the facility on or before December 31, 1983.
The facility functioned sporadically for a short period of time. A number of problems kept the
facility from becoming operational: The feed mechanism continually jammed with different types
of garbage, such as plastic bags and telephone books. There were problems with the ash
conveyor, which was supposed to convey ashes from the incinerator to a dump truck for deposit
in the landfill. The facility's most critical problem was with the incinerator. Although its
manufacturer claimed the incinerator would generate 20 million BTUs per hour, it never
consistently generated heat at its rated capacity.
These problems prevented the facility from generating commercial quantities of electricity.
According to HLP's records, the facility generated the following amounts of electricity into the
HLP system:
January 1985 .................. 80 kilowatt hours
February 1986 ................. 30 kilowatt hours
March 1986 .................... 88 kilowatt hours
This production entitled the partnership to a credit against its customer charges in the amount of
$5.34. The facility was disconnected from the HLP system on April 1, 1986.
By early 1985, it was evident that the facility could not become operational with its then-existing
equipment and that more money would be required to make it operational. About this time, Rutt
and Connatser began contacting potential investors for this purpose. They were not successful,
and the partnership eventually filed for bankruptcy on July 1, 1988.
The property of the facility is tangible personal property within the meaning of section
48(a)(1)(A). The assets of the facility are section 38 property and would otherwise be eligible for
depreciation, investment tax credit, and biomass energy credit in a year during which the assets
were placed in service.
Opinion
The partnership took an investment tax credit and a biomass energy tax credit in 1983 and
depreciation deductions in 1983 and 1984 with respect to nearly all of its property. Respondent
disallowed the deductions and credits. After concessions, the issues for decision are: (1)
Whether the FPAA is arbitrary so as to shift the burden of going forward with evidence to
respondent; (2) whether the partners had a sufficient amount at risk within the meaning of
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section 465; and (3) whether the facility was placed in service in 1983, 1984, or some other
year.
Arbitrary
Petitioner alleges that the FPAA in this case was nothing more than a boiler-plate notice,
determining adjustments that had no basis in fact. Petitioner argues that the FPAA is merely a
naked assessment and should be held to be arbitrary so as to shift the burden of going forward
to respondent.
It is well settled that respondent's determinations, as embodied in the notices of deficiency, are
generally presumed correct. Welch v. Helvering [3 USTC ¶ 1164], 290 U.S. 111, 115 (1933).
We have recognized the similarity between FPAAs and notices of deficiency: both are
notifications of respondent's final administrative determination and are prerequisites to the
initiation of a proceeding in this Court. Clovis I v. Commissioner [Dec. 43,856], 88 T.C. 980, 982
(1987).
The partnership adjustments in the case before us did not result from a determination by
respondent that the partnership had unreported illegal income which was based upon no
substantive evidence. See Jackson v. Commissioner [Dec. 36,460], 73 T.C. 394, 401 (1979).
Rather, the adjustments resulted from respondent's determination, among others, that the
partnership had failed to substantiate that it was entitled to the claimed deductions and credits
and that the indebtedness owed to the partnership was real. Consequently, petitioner continues
to bear the burden of going forward with the evidence. Rule 142(a).
At Risk
Petitioner introduced a substantial amount of evidence and devoted a great deal of time and
space in his briefs on the issue of whether the partners of the partnership were sufficiently at
risk so as to be entitled to the claimed deductions and credits.
Determinations with respect to partnership assets, investments, transactions, and operations
that are necessary to enable the partnership or the partners to determine amounts at risk in any
activity are made at the partnership level. Sec. 301.6231(a)(3)-1(a)(1)(vi), Proced. & Admin.
Regs. However, whether an individual partner is at risk pursuant to section 465 so as to be able
to properly take deductions and credits is an "affected item". Dial USA, Inc. v.
Commissioner [Dec. 46,686], 95 T.C. 1, 5 n. 5 (1990); Roberts v. Commissioner [Dec. 46,638],
94 T.C. 853, 858-861 (1990); sec. 301.6231(a)(5)-1T(c), Temporary Proced. & Admin. Regs.,
52 Fed. Reg. 6790 (Mar. 5, 1987).
This Court does not have jurisdiction over affected items in a partnership level proceeding.
N.C.F. Energy Partners v. Commissioner [Dec. 44,257], 89 T.C. 741 (1987). Therefore, we do
not have jurisdiction over and do not decide whether the partners were at risk in this case.
Placed in Service
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The partnership took depreciation deductions in 1983 and 1984 and a biomass energy tax credit
and an investment tax credit for the facility in 1983. The partnership is entitled to a depreciation
deduction beginning in the year an asset eligible for depreciation is placed in service. Sec. 167.
Likewise, the partnership is entitled to an investment tax credit and a biomass energy credit for
certain section 38 property in the year such property is placed in service. Sec. 46. The parties
have agreed that the partnership is entitled to the deductions and credits taken in the year the
property is placed in service. Thus, we must determine in which year, if any, those assets were
placed in service.
Petitioner argues that all of the assets of the facility were placed in a state of readiness by the
end of 1983. In the alternative, petitioner argues that the assets were placed in service in 1984,
at which time, petitioner asserts, the facility first became operational. Respondent, on the other
hand, argues that the assets were not placed in service in 1983 or 1984 because the facility
never produced a consistent amount of electricity.
Section 1.46-3(d)(1), Income Tax Regs., provides:
(d) Placed in service. (1) For purposes of the credit allowed by section 38, property shall be
considered placed in service in the earlier of the following taxable years:(i) The taxable year in
which, under the taxpayer's depreciation practice, the period for depreciation with respect to
such property begins; or(ii) The taxable year in which the property is placed in a condition or
state of readiness and availability for a specifically assigned function, whether in a trade or
business, in the production of income, in a tax-exempt activity, or in a personal activity.
We applied the above placed-in-service regulations in Consumers Power Co. v. Commissioner
[Dec. 44,250], 89 T.C. 710 (1987). In that case, the taxpayer began construction of a
hydroelectric power plant in 1969. In September 1972, the taxpayer received final approval from
the Federal Power Commission to begin regular operation of the plant, subject to the successful
completion of preoperational testing on part of the plant (unit 1). In October 1972, as part of
preoperational testing, unit 1 began pumping water from Lake Michigan into the upper reservoir.
In November 1972, the generation mode of unit 1 was placed on line. From November 18, 1972,
through December 5, 1972, unit 1 generated 4,580 megawatt hours of electrical power,
substantially all of which was sold to the taxpayer's customers. On December 7, 1972, unit 1
temporarily shut down for repairs. Preoperational testing resumed on January 9, 1973, and was
completed on January 17, 1973. The taxpayer formally accepted unit 1 on that date.
We rejected the taxpayer's contention that unit 1 was placed in service in 1972 because it
actually pumped water and generated electrical power as of that date, and we stated:
Although unit 1 pumped water into the reservoir and generated electrical power during
preoperational testing in 1972, unit 1 was not available in 1972 to provide electrical power on a
regular basis in 1972. The amount of electrical power generated in 1972 is insufficient to
establish that the *** [power plant] was available for full operation on a regular basis in 1972. ***
Not until January 17, 1973, after unit 1 successfully had completed all phases of preoperational
testing, thereby demonstrating that it was available for service on a regular basis, was the unit in
a state of readiness and availability for its specifically assigned function within the meaning of
sections 1.46-3(d)(1)(ii) and 1.167(a)-11(e)(1)(i), Income Tax Regs. [Consumers Power Co. v.
Commissioner, supra at 724; emphasis added.]
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Thus, the placed-in-service test requires that before property can be considered placed in a
condition or state of readiness and availability for a specifically assigned function, it must be
available for service on a regular basis.
In the instant case, the problems encountered with the incinerator prevented the facility from
generating electricity on a regular basis. While the regulations do not require that the facility be
free of all flaws and defects, the facility must ultimately operate in fulfillment of its specifically
assigned function. See Noell v. Commissioner [Dec. 33,927], 66 T.C. 718, 728-729 (1976). The
facility was designed to generate 38,400 kilowatt hours of electricity per day. HLP records
indicate that the facility generated a total of 198 kilowatt hours of electricity while it was
operational. Given these facts, it cannot be said that the facility was operating on a regular
basis.
Petitioner argues that even though we may find that the entire facility was not functioning
properly and thus could not be considered placed in service as a whole, we should find that
each part of the facility was placed in service when it was in a state of readiness for its assigned
function regardless of whether the other items of the facility were operational.
In Consumers Power Co. v. Commissioner, supra at 726, we held that the hydroelectric plant at
issue "must be viewed as one integrated unit because the physical plant and the reservoir
operate simultaneously and as a unit in order to produce electrical power." Our holding was
based in part on Hawaiian Independent Refinery, Inc. v. United States [83-1 USTC ¶ 9141], 697
F.2d 1063 (Fed. Cir. 1983), in which the Court of Appeals for the Federal Circuit concluded that
the "component assets" of an oil refinery complex "`functionally [formed] a single property' and
held that the entire refinery complex was to be treated as a single asset for purposes of the
investment credit." Consumers Power Co. v. Commissioner, supra at 726.
We likewise conclude that in the instant case the component assets of the facility functionally
formed a single property. Only after the facility was complete and working on regular basis could
the assets be considered to be placed in service. Thus, in order for any part of the facility to be
considered placed in service, the entire facility must be functioning for its intended purpose of
generating electricity.
We have found as a fact that the purpose of the facility was to generate electricity by burning
solid waste. The electricity generated was to be sold to HLP. Until the facility was connected to
HLP and selling electricity, the facility could not fulfill its intended purpose. It never did generate
or sell electricity on a regular basis, and it cannot therefore be considered to have been placed
in service in the years at issue. The partnership did not finalize the agreement to sell electricity
with HLP until June 6, 1984. The records of HLP reflect that the facility did not generate
saleable amounts of electricity until 1985, and even then the amounts were negligible.
Petitioner contends that the records of HLP are off by a year and that the facility actually began
generating electricity in 1984. We find no evidence to support petitioner's contention, and even if
there were, since the facility never generated more than an incidental amount of electricity, such
evidence would not make a difference. The facility never generated electricity on a regular basis
during 1983 or 1984, and we therefore hold that if the facility was placed in service at all, it was
not done until after the years at issue.
Petitioner next argues that the facility's purpose was to be a waste disposal facility, not to
generate electricity. However, the partnership consistently represented itself as a power-
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producing facility. For example, its Certificate of Limited Partnership states that the partnership's
purpose includes "the construction, management and operation of a production facility *** which
will convert solid waste into electricity that will be sold to *** [HLP]." The partnership did not
receive a fee for operating the landfill and only received modest tipping fees. Without the money
received from the anticipated sale of electricity, the partnership could in no way justify the multi-
million dollar cost of the facility. We think that the only plausible purpose for the partnership and
the facility, if they are considered to be operated for profit, is as a producer of electricity.
Next, petitioner relies on Sears Oil Co. v. Commissioner [66-1 USTC ¶ 9384], 359 F.2d 191 (2d
Cir. 1966), revg. on this issue T.C. Memo. [Dec. 27,262(M)] 1965-39; and SMC Corp. v. United
States, 46 AFTR 2d 80-5827, 80-2 USTC ¶ 9642 (E.D. Tenn. 1980), affd. [82-1 USTC ¶ 9309]
per curiam 675 F.2d 113 (6th Cir. 1982), in an effort to show that the facility was placed in
service in 1983. Petitioner argues that the assets of the facility were placed in a condition of
readiness and that it was only the incinerator's failure to function, a problem outside the control
of the partnership, that prevented the facility from being fully operational.
In Sears Oil Co., the taxpayer acquired a barge used to transport petroleum products. The
taxpayer was prevented from actually using the barge in the year in which it was acquired
because the barge was frozen in a canal in upstate New York.
The Court of Appeals for the Second Circuit reversed this Court's holding that the barge was not
placed in service until actually used. In so holding the Second Circuit stated that the barge was
placed in service in the earlier year, but was not actually used because the use was prevented
by a factor beyond the control of the taxpayer. Sears Oil Co. v. Commissioner, supra at 198.
Petitioner asserts that the instant case is similar to Sears Oil Co. in that all of the assets in the
facility were operational and that it was only the incinerator's failure to consistently operate at
capacity, a circumstance beyond the partnership's control, that caused the facility to fail to
generate power on a regular basis. Petitioner therefore argues that the assets were available for
use, but such use was prevented by a factor outside the partnership's control. We disagree.
In Piggly Wiggly Southern, Inc. v. Commissioner [Dec. 42,039], 84 T.C. 739 (1985), affd. [86-2
USTC ¶ 9789] 803 F.2d 1572 (11th Cir. 1986), we reviewed several cases, including Sears Oil
Co. v. Commissioner, supra, and SMC Corp. v. United States, supra, in which the
placed-in-service requirement was met for assets not yet in actual use but available or in a state
of readiness for use in an operating trade or business. We identified two factors significant to
the result in these so-called idle asset cases: (1) The taxpayers were already engaged in the
business for which the equipment had been purchased; and (2) the taxpayers had done all that
was in their power to place the equipment into service. We find that petitioner has failed to
satisfy both requirements.
First, petitioner has failed to show that the partnership was already engaged in the production of
electricity from solid waste prior to constructing the facility. The partnership was formed to
construct and operate the facility, and the facility was the first power plant of the partnership.
The partnership did not have several other plants at the Sealy landfill generating power, to
which the partnership could add this facility. Thus, petitioner was not already engaged in the
business for which the equipment had been purchased.
98
Second, petitioner has failed to show that the partnership had done all that was in its power to
place the facility into service. In Sears Oil Co. v. Commissioner, supra, for example, the
taxpayer was prevented from placing the asset in service by an act of God; i.e., the freezing of
the canal. Here, while it is true that the incinerator failed to function up to the manufacturer's
specifications, this does not mean that the problem with the facility was out of the control of the
partnership. Petitioner has not shown that the problems with the incinerator were
insurmountable or that the incinerator was not financially feasible to repair. Merely because the
facility did not work does not mean that it could not work. Thus, we find that petitioner has failed
to show that the circumstances preventing the use of the facility were out of the control of the
partnership, and he may therefore not rely on Sears Oil Co. or SMC Corp. to support his
position.
Petitioner's next argument alleges that the facility was placed in service in 1984 because it
satisfied the requirements articulated in Oglethorpe Power Corp. v. Commissioner [Dec.
46,887], T.C. Memo. 1990-505. In that case, we noted five factors which the Internal Revenue
Service considers in determining in what year an electric generating unit is placed in service: (1)
Whether the necessary permits and licenses for operation have been obtained; (2) whether
critical tests necessary for proper operation have been performed; (3) whether the taxpayer has
control of the facility; (4) whether the unit has been synchronized with the transmission grid; and
(5) whether daily operation has begun.
Petitioner argues that the facility has met each of the above criteria and should therefore be
considered placed in service in 1984. However, we need not decide whether the facility satisfied
each of the above requirements sufficiently to cause the facility to be deemed to have been
placed in service in either of the years before us. In Oglethorpe Power Corp., while quoting the
above factors, we did not decide the placed-in-service issue based on the factors. Instead, we
relied on Consumers Power Co. and Piggly Wiggly to hold that property is placed in service in
the year regular operation begins, stating:
Not until the operational defects discovered during post-synchronization testing had been
corrected and the unit had demonstrated its ability to sustain power generation near its rated
capacity was *** [the unit] available for the specific function for which it had been designed and
constructed. *** [Emphasis added.]
In the instant case, to use the words of Oglethorpe Power Corp., the facility did not demonstrate
"its ability to sustain power generation near its rated capacity". In fact, the facility never
generated power at its rated capacity for even a single day. Thus, petitioner has failed to show
that the facility was "available for the specific function for which it had been designed and
constructed", and Oglethorpe Power Corp. does not support petitioner's position.
Finally, petitioner asserts that there are not one but two placed-in-service requirements, one for
tangible personal property and another for other tangible property which is an integral part of the
production of electricity. According to petitioner, assets that are "other tangible property" under
section 48(a)(1)(B) must actually be used on a regular basis as articulated in Consumers Power
Co. and Oglethorpe Power Corp. because section 48 also requires that such assets be an
integral part of manufacturing or production. See sec. 48(a)(1)(B). However, since section
48(a)(1)(A) does not require that tangible personal property be an integral part of manufacturing
or production, such property, according to petitioner, is placed in service the moment it is
available for the taxpayer to use, even though it cannot factually be used because of other
factors not related to the tangible personal property itself. Since the property of the facility was
99
tangible personal property, petitioner contends the property was placed in service in 1983 when
it became available for use.
Petitioner acknowledges that the cases he cites do not make any distinction between "other
tangible property" and "tangible personal property". The cases petitioner discusses in his brief
do not limit the placed-in-service requirements to other tangible property which is an integral
part of production, nor could they, given the statutory framework. Section 48, to which petitioner
refers, provides the definition
of section 38 property. The time at which section 38 property is considered placed in service is
governed by the regulations under section 46. We find nothing within the definition of section 38
property or the placed-in-service test which would warrant disparate treatment depending on the
type of property, and we therefore consider petitioner's argument to be without merit.
To reflect the foregoing and concessions,
Decision will be entered under Rule 155.
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ATTACHMENT VI-Valley Natural Fuels case
Memorandum Findings of Fact and Opinion
COHEN, Judge:
Respondent determined the following adjustments to Valley Natural Fuels' (VNF) partnership
return for 1983, 1984, and 1985:
Adjustment 1983 1984 1985
ACRS Depreciation ................. $ 1,653 $295,020 $ 90,098
investment Credit Property ........ 1,490,000 70,000
(299,290)
Business Energy Credit Property ... 1,490,000 70,000
(299,290)
The issues for decision are (1) whether VNF's ethanol distillation plant was placed in service in
December 1983 or June 1985 for purposes of depreciation and the investment tax credit and
business energy credit; (2) whether an agreement executed in 1985 by VNF and the seller of
the ethanol distillation plant changed the nature of VNF's promissory obligation to the seller; and
(3) whether adjustments to the purchase price of the ethanol distillation plant in 1985 required
VNF to recapture investment tax credit and business energy credit that it reported in 1983 and
1984.
Unless otherwise indicated, all section references are to the Internal Revenue Code as
amended and in effect for the years in issue.
Findings of Fact
Some of the facts have been stipulated, and the facts set forth in the stipulations are
incorporated in our findings by this reference. VNF's principal place of business at the time the
petition was filed was Fresno, California. Steven Arthur Richards (Richards) is the tax matters
partner of VNF. Richards and Ken Leister (Leister) each own a 50-percent interest in, and are
officers of, High Energy Fuels, Inc. (High Energy), the general partner of VNF.
Background
VNF prepared an offering circular in connection with its formation. The offering circular stated
that the business of the partnership was as follows:
The principal business of the Partnership shall be to acquire and operate an ethanol distillation
plant from FreeAn, Inc. The Partnership's objective is to produce and sell Anhydrous Ethanol
(198.2+ proof Ethyl Alcohol). Petroleum companies purchase Ethanol to mix with unleaded
gasoline to produce octane enhanced Super Unleaded gasoline. * * *
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Similarly, the marketing plan that was attached to the offering circular stated that VNF
anticipated that the primary market for the ethanol that it produced would be independent oil
companies in California who sell gasoline/ethanol fuel blends.
The offering circular also described the "ethanol industry" and the process of blending ethanol
with unleaded gasoline to produce "Super Unleaded" gasoline, a product originally marketed as
gasohol. There was no mention of any other use for ethanol in the offering circular. The offering
circular projected income and cash flow based on the sale of "199+ proof ethanol."
Prior to the time that VNF was formed, Leister, as well as certain officers of FreeAn, explored
the potential uses of ethanol and found that there was a potential market in the Midwest for
ethanol that was less than 198.2 proof. Such ethanol was used as fuel alcohol for certain farm
machinery and equipment. VNF did not, however, include the sale of any such ethanol in its
projection of income and cash flow in the offering circular.
The actual cash contributions of the partners of VNF during the years in issue totaled $231,121.
Two of the partners of VNF also executed promissory notes payable to VNF, dated December
30, 1983. These notes recited that they were executed by the maker "as evidence of the * * *
[maker's] obligation to pay under the terms and conditions of that certain Certificate and
Agreement of Limited Partnership of * * * [VNF]." VNF had not filed a certificate of limited
partnership with the State of California as of the end of 1983.
The Purchase Agreement
On or about December 30, 1983, VNF agreed to purchase an ethanol distillation plant (the
facility) from FreeAn, Inc. (FreeAn), a company formed for the purpose of building ethanol
distillation plants. The material terms of that agreement were contained in an unexecuted draft
of a purchase agreement (the purchase agreement). The facility constituted section 38 property
for purposes of the investment tax credit and energy property for purposes of the business
energy credit.
VNF agreed to pay FreeAn the sum of $1,650,000 for the facility. On December 30, 1983, VNF
executed a promissory note payable to FreeAn in the principal sum of $1,452,500, together with
interest at the rate of 10 percent per annum (the FreeAn note). The FreeAn note provided that
payments were to be made on an annual basis in the principal amount of $145,250, plus
accrued interest. The first payment of principal and interest was due in January 1985.
On its books, VNF allocated $160,000 of the purchase price to a construction-in-process
account, which represented the approximate future cost of a molecular sieve and of the
construction of a building. VNF did not include that amount in calculating its investment tax
credit and business energy credit.
FreeAn warranted that the facility would "operate at the minimum of 1500 gallons of Ethanol per
day for a period of 24 months." The purchase agreement provided that VNF's obligation to pay
was based upon the completion of the facility and the facility's "ability to produce 199+ proof
Ethanol at a rate of 1,500 gallons per day." VNF anticipated problems with the ethanol
production equipment. To insure that the plant operated as FreeAn had warranted, a penalty
clause was included in the purchase agreement.
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Operation of the Facility
The facility was first operated in December 1983. As of December 30, 1983, the ethanol
produced at the facility was less than 198.2 proof; the facility could not produce 198.2 proof
ethanol without a molecular sieve. Actual ethanol production in 1983 was less than 1,500
gallons. At least a portion of that production was used for experiments on machinery at the
facility.
A molecular sieve was installed in the Spring of 1984. It was leased on a long-term basis by
VNF from FreeAn for $70,000. Also, in 1984, a wood-framed, metal-clad building was
constructed at the facility.
In late 1984, VNF experienced certain problems with the operation of the facility and with the
operation of the molecular sieve. VNF hired Ray Thacker (Thacker), a consultant, to correct
these problems. Thacker inspected the facility on December 21, 1984, and provided certain
recommendations to VNF. Based upon Thacker's recommendations, VNF installed additional
equipment at the facility in 1985. After the installation of the molecular sieve in 1984 and the
other equipment in 1985, VNF was able to produce ethanol at the 198.2 proof level.
Adjustments to the FreeAn Note
By letter dated December 22, 1984, VNF informed FreeAn that the facility had not yet achieved
optimum production and provided FreeAn a summary of Thacker's recommendations that were
necessary "to get production to the level indicated by * * * [FreeAn's] warranty." On February 26,
1985, the letter was executed by representatives of VNF and of FreeAn to reflect agreement
between them as to changes in VNF's obligation (the February agreement). FreeAn agreed to
reduce the purchase price of the facility by $160,000 and to forgive principal and interest
payments due in 1984 but not paid. The February agreement provided:
* * * [FreeAn] agrees to forgive the principle [sic] and interest due to * * * [FreeAn] from * * *
[VNF] for the year 1984 and treat it as being paid by * * * [VNF] and that the note due * * *
[FreeAn] has been reduced by same. It is also agreed that * * * [VNF] will postpone the
enforcement of the penalty clause of the Purchase Agreement for a period of 6 months to allow
* * * [FreeAn] to make the required correction to have the plant in optimum production as
warranted. It is also agreed that the purchase price as stated in the Purchase Agreement be
reduced by $160,000.00. The * * * [FreeAn note] will be amended to show the corrected loan
amount. * * *It is further agreed that all payments to * * * [FreeAn] from this time forward will [be]
made on a percentage of sales made by * * * [VNF]. The terms of these payments are detailed
in the accompanying Optional Payment Agreement.
The $160,000 reduction to the purchase price reflected the parties' understanding that the
molecular sieve was to be treated separately from the purchase agreement; the remainder of
the reduction reflected an adjustment to compensate for some of the problems with the facility
and for the building that was constructed in 1984.
With respect to the "corrected loan amount" referred to in the February agreement, the parties
agreed to reduce the FreeAn note by $148,183. VNF treated that amount as consulting income
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for services provided by Leister to FreeAn. FreeAn agreed to forgive interest in the amount of
$150,463.
In 1985, the production of ethanol became economically nonviable for VNF due to the declining
price of oil and other external factors. On December 23, 1985, FreeAn agreed to reduce the
FreeAn note in the amount of $636,823 (December agreement). The December agreement
provided:
It is hereby agreed between * * * [VNF] and * * * [FreeAn] that for consideration of postponing
enforcement of the penalty clause of the purchase agreement until 12/31/86 and because of the
production equipment failures experienced to date, * * * [FreeAn] forgives $500,000 of the
outstanding debt and waives principle [sic] and interest payments on the remaining debt until
production and lease income exceeds $50,000 per year. 80% of any amounts received by * * *
[VNF] over $50,000 will go to amortize the remaining balance of the loan to * * * [FreeAn]. In its
business records, FreeAn recorded payments received from VNF in the amounts of
$153,014.25 and $7,044.34 in 1984 and 1985, respectively. The last payment was received by
FreeAn on March 29, 1985. The majority of these payments were identified as a downpayment
from VNF; these totals did not include amounts identified as labor or payroll. As of the date of
trial of this case in October 1990, the FreeAn note had not been paid in full, and FreeAn had not
commenced any collection action on the FreeAn note. Tax Treatment On its 1983 Federal
Partnership Return of Income, VNF reported a basis of $1,490,000 in investment credit property
and business energy investment credit property and claimed depreciation of $1,653 on ethanol
distillation equipment placed in service in 1983 (the 1983 acquisition). On Schedule L (balance
sheet) attached to that return, VNF reported as a current asset the $160,000 in its construction-
in-process account. VNF also reported gross receipts from the sale of ethanol in the amount of
$250. On its 1984 Federal Partnership Return of Income, VNF reported a basis of $70,000 in
investment credit property and business energy investment credit property for the lease of the
molecular sieve from FreeAn. VNF claimed depreciation of $295,020 on the 1983 acquisition.
VNF reported gross receipts of $299,418; $772 was attributed to sales of ethanol, $150,463 was
attributed to forgiveness of interest, and $148,183 was attributed to consulting income. VNF
claimed an interest expense deduction of $150,463. No balance was shown for the
construction-in-process account on the balance sheet attached to the return. On its 1985
Federal Partnership Return of Income, VNF reported a basis of $50,055 in investment credit
property and business energy investment credit property for the equipment installed in 1985.
VNF claimed depreciation of $154,634; $147,877 was attributed to the 1983 acquisition, and
$6,757 was attributed to ethanol distillation equipment placed in service on June 30, 1985. VNF
reported gross receipts of $920 from sales of ethanol. Further, on the 1985 return, VNF
excluded from gross income the $636,823 reduction to the FreeAn note and filed a Form 982,
Reduction of Tax Attributes Due to Discharge of Indebtedness. On the Form 982, VNF elected
to treat the $636,823 as qualified business indebtedness; VNF attached to the Form 982 a
statement explaining that the basis in ethanol distillation equipment was reduced by the amount
of principal discharged on notes payable by a creditor of the company. VNF reduced the basis
of the 1983 acquisition in the amount of $636,823, and the depreciation that VNF claimed in
1985 was computed on the basis thus adjusted. In the Notice of Final Partnership Administrative
Adjustment (FPAA), respondent determined that VNF was not entitled to the investment tax
credit or business energy credit in 1983 or 1984 or the depreciation deductions that VNF
claimed in those years, because the facility was not placed in service or in a state of readiness
to be placed in service during that time. Corresponding determinations were made for 1985
based on a June 30, 1985, placed-in-service date. Ultimate Findings of Fact The assigned
function of the facility was to produce and sell 198.2 proof ethanol to be blended with gasoline to
produce gasohol. The facility was not in a condition or state of readiness and availability for its
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assigned function and was not placed in service prior to June 30, 1985. The February 1985
agreement rendered the FreeAn note nonrecourse and contingent, and it was not thereafter
likely to be paid. Opinion Placed in Service The first issue is whether VNF is entitled to the
investment tax credit and business energy credit that it reported and the depreciation deduction
that it claimed on the 1983 and 1984 returns. Depreciation and the tax credits are allowed in the
year in which the qualifying property is placed in service by the taxpayer. Secs. 38(a), 46(a)(1)
and (2), and 46(c)(1); secs. 1.46-3(a)(1), 1.167(a)-10(b), and 1.167(a)-11(e)(1)(i), Income Tax
Regs. Petitioner bears the burden of proof. Welch v. Helvering [3 USTC ¶ 1164], 290 U.S. 111
(1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Section 1.46-3(d), Income Tax
Regs., provides in pertinent part: (d) Placed in service. (1) For purposes of the credit allowed by
section 38, property shall be considered placed in service in the earlier of the following taxable
years: (i) The taxable year in which, under the taxpayer's depreciation practice, the period for
depreciation with respect to such property begins; or (ii) The taxable year in which the property
is placed in a condition or state of readiness and availability for a specifically assigned function,
whether in a trade or business, in the production of income, in a tax-exempt activity, or in a
personal activity. Thus, if property meets the conditions of subdivision (ii) of this subparagraph
in a taxable year, it shall be considered placed in service in such year notwithstanding that the
period for depreciation with respect to such property begins in a succeeding taxable year * * *
Generally, the provisions of section 1.46-3(d)(1)(ii), Income Tax Regs., apply in determining
when property is placed in service for purposes of depreciation. See section 1.167(a)-
11(e)(1)(i), Income Tax Regs. Petitioner's position is that the facility was placed in service on
December 30, 1983. Petitioner contends that the assigned function of the facility was to produce
a warranted quantity of commercially marketable ethanol, whether such ethanol was 198.2
proof, 190 proof or 150 proof and that, as of December 30, 1983, the facility was capable of
performing this function. Respondent's position is that the facility was not placed in service until
June 1985 because: (1) that was the earliest date that the plant could have been ready and
available for its specifically assigned function, which was to produce ethanol at 198.2+ proof for
purposes of blending with gasoline to make gasohol; (2) all of the components of the facility
were not installed until that date; [and] (3) this was the first date that the molecular sieve could
be properly synchronized * * * We have found as ultimate facts that the assigned function of the
facility was to produce and sell 198.2 proof ethanol to be blended with gasoline to produce
gasohol and that the facility could not produce such ethanol until 1985. Thus we agree with
respondent for the reasons that follow. Petitioner relies primarily on the testimony of the
principals of FreeAn and VNF to support the contention that a market existed for ethanol that
was less than 198.2 proof and that the facility was capable of producing the warranted quantity
of such ethanol. That testimony, however, does not support petitioner's contention. Leister
testified that he was aware that a potential use of ethanol, other than 198.2 proof ethanol that
was used to produce gasohol, was in certain farm machinery and equipment and that a market
for the foregoing existed in the Midwest. VNF did not, however, consider any such potential
sales in its projection of income and cash flow in the offering circular; rather, the offering circular
projected income and cash flow based solely on the sale of 199+ proof ethanol. Further, the
marketing plan attached to VNF's offering circular discussed only the use of 198.2 proof ethanol.
In addition, VNF's reported sales of less than 198.2 proof ethanol ($250 in 1983, $772 in 1984,
and $920 in 1985) do not support petitioner's contention that an actual market existed for such
ethanol. With respect to the 1983 production, Leister testified as follows: Q. Now you said you
had willing buyers. Did — you mention this production on December 30th, was everything that
was manufactured that day sold? A. I don't know if everything was. In fact, I don't think
everything that — I don't know. I didn't do an audit of — I remember that there was something
sold. I'm not sure exactly how much of it. Ralph Freeman, the secretary and treasurer of
FreeAn, testified that some of the 1983 production was sold to someone who just wanted to buy
the first alcohol produced and that he did not know what he did with it or what happened to it.
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Roy Angus (Angus), a shareholder of FreeAn and one of the primary operators of the facility,
testified that the 1983 production was used * * * for experiments on the machinery around the
place. The nature of the reported sales in 1984 and 1985 is equally unclear. Therefore, even
though VNF may have been aware that there was a potential use for ethanol that was less than
198.2 proof, petitioner did not establish that VNF contemplated the sale of such ethanol, that
any of the ethanol production in the years in issue was actually sold commercially in such a
market, or that such a market existed. Moreover, assuming such a market existed, petitioner's
contention that the facility was capable of producing the warranted quantity of ethanol as of
December 30, 1983, is not supported by the testimony relied on by petitioner and discussed
below. The warranted quantity of ethanol in the purchase agreement was production at the rate
of 1,500 gallons of ethanol per day. Richards' testimony relates to ethanol production in 1984
and, in any event, does not establish that the facility was capable of producing 1,500 gallons of
ethanol per day as of December 30, 1983. Ralph Freeman testified that the facility could
produce 65 to 70 gallons an hour; he also testified that, at the most, the facility was run eight to
ten hours at a time. This does not equate to 1,500 gallons per day. Moreover, this testimony
similarly relates to 1984. Finally, Angus testified as follows: Q. Okay. As of — December 1983,
could you estimate the capacity of the plant in terms of gallons per day? A. With everything
working right, it would be probably a thousand gallons a day. Q. A thousand gallons a day? A.
We didn't do anywheres near that but we could have. Thus, the most optimistic estimate was
that, as of December 30, 1983, the facility could produce 1,000 gallons per day. Further, the
parties executed the February agreement because the facility had not operated at optimum
production levels, and the parties executed the December agreement because of equipment
failures. It is apparent from the evidence that, as of December 30, 1983, the facility was not
capable of producing the warranted quantity of ethanol. Finally, our finding that the assigned
function of the facility was to produce 198.2 proof ethanol is supported by VNF's stated business
purpose. VNF's express objective, as stated in the offering circular, was to produce and sell
Anhydrous Ethanol (198.2+ proof Ethyl Alcohol) to petroleum companies who purchase Ethanol
to mix with unleaded gasoline to produce octane enhanced `Super Unleaded' gasoline. The
marketing plan stated that VNF anticipated that the primary market for the ethanol that it
produced would be independent oil companies in California who sell gasoline/ethanol fuel
blends. Further, under the terms of the purchase agreement, VNF's obligation to pay was based
upon the completion of the facility and the facility's ability to produce 199+ proof Ethanol at a
rate of 1,500 gallons per day. Petitioner next argues that, although the clearly stated initial
business objective of * * * [VNF] was to produce 198.2+ proof ethanol, it is improper to assume
that the taxpayer's business objective must automatically equate to the assigned function of the
taxpayer's equipment. Petitioner cites no authority in support of this argument. Furthermore, we
are unable to discern such a differentiation based on the facts in this case. In a related
argument, petitioner asserts that the facility consisted of three independent components — the
ethanol still, the building, and the molecular sieve — and that: the * * * [facility], without
installation of the molecular sieve, was a completely operable and commercially viable facility as
of December 30, 1983. Installation of the molecular sieve in 1984 upgraded the quality (but not
quantity) of the ethanol which could be produced but did not change the fundamental nature of
the facility as a viable ethanol producing plant. Petitioner relies on Cornfeld v. Commissioner
[86-2 USTC ¶ 9613], 797 F.2d 1049 (D.C. Cir. 1986), revg. a Memorandum Opinion of this
Court [Dec. 41,034(M)], which he contends stands for the proposition that property may be
considered placed in service when acquired and used for an interim business purpose (or
`function'). In this case, however, the facility was not actually used in an interim business.
Petitioner also relies on Fort Howard Paper Co. v. Commissioner [Dec. 34,786(M)], T.C. Memo.
1977-422, and argues that, in the instant case, the building was ready and available for its
function of housing distillation equipment, even though the molecular sieve had not been
installed, and that therefore, * * * the building was placed in service in 1984. In this case,
106
however, the building was not the asset on which the items in dispute were claimed and
disallowed. The distillation equipment is the asset in question, and it was not in a state of
readiness and availability for its specifically assigned function in 1984. Finally, petitioner relies
on Sears Oil Co. v. Commissioner [66-1 USTC ¶ 9384], 359 F.2d 191 (2d Cir. 1966), and SMC
Corp. v. United States, 46 AFTR 2d 80-5827, 80-2 USTC ¶ 9642 (E.D. Tenn. 1980), affd. per
curiam [82-1 USTC ¶ 9309] 675 F.2d 113 (6th Cir. 1982). Petitioner argues: The foregoing
cases stand for the sole proposition that the equipment may be considered placed in service
during the taxable year even though not actually used during that year. In the instant case,
Petitioner actually operated the facility during the taxable year * * *. The property at issue in
each of those cases was in a state of readiness and availability to perform its assigned function,
although not actually used by the taxpayer during the year in issue due to circumstances
beyond the control of the taxpayer. The facts in those cases are distinguishable from the facts in
the instant case, where operations were not at or near the intended level of production.
Respondent argues that the resolution of the placed-in-service issue is controlled by our
decision in Consumers Power Co. v. Commissioner [Dec. 44,250], 89 T.C. 710 (1987). In that
case, the taxpayer began construction of a hydroelectric power plant in 1969. In September
1972, the taxpayer received final approval from the Federal Power Commission to begin regular
operation of the plant, subject to the successful completion of preoperational testing on a
particular unit (unit 1). In October 1972, as part of preoperational testing, unit 1 began pumping
water. In November 1972, the generating mode of unit 1 was placed on line. From November
18, 1972, through December 5, 1972, unit 1 generated electrical power, substantially all of
which was sold to the taxpayer's customers. On December 7, 1972, electrical power to unit 1
was disrupted, causing damage to the unit. Unit 1 temporarily was shut down for repairs.
Preoperational testing resumed on January 9, 1973, and was completed on January 17, 1973.
The taxpayer formally accepted unit 1 on that date. Respondent determined that the plant was
not placed in service in 1972. We rejected the taxpayer's contention that unit 1 was placed in
service in 1972 because it actually pumped water and generated electrical power as of that
date, and we stated: Although unit 1 pumped water into the reservoir and generated electrical
power during preoperational testing in 1972, unit 1 was not available in 1972 to provide
electrical power on a regular basis in 1972. * * * The generation of electrical power and the
pumping of water into the upper reservoir were both necessary parts of preoperational testing. *
* * Not until January 17, 1973, after unit 1 successfully had completed all phases of
preoperational testing, thereby demonstrating that it was available for service on a regular basis,
was the unit in a state of readiness and availability for its specifically assigned function within
the meaning of sections 1.46-3(d)(1)(ii) and 1.167(a)-11(e)(1)(i), Income Tax Regs. [Consumers
Power Co. v. Commissioner [Dec. 44,250], 89 T.C. 710, 724 (1987).] Petitioner attempts to
distinguish Consumers Power Co. First, petitioner argues that, in Consumers Power Co., the
taxpayer did not `formally accept' the facility until the following tax year, whereas Petitioner
`formally' accepted the * * * [facility] on December 30, 1983. We do not believe that this is a fair
characterization of the facts in this case; but this point is not dispositive. Rather, our analysis in
Consumers Power Co. was dependent on whether the plant at issue was available for service
on a regular basis and hence in a state of readiness and availability for its specifically assigned
function. [Dec. 44,250] 89 T.C. at 724. Second, petitioner argues that, as of December 30,
1983, VNF, unlike the taxpayer in Consumers Power Co., had completed all preoperational
testing of the facility. The facility was first operated in December 1983; the amount of testing, if
any, that had been conducted prior to December 30, 1983, is not clear. Regardless of the
amount of preoperational testing, however, the facility, unlike the hydroelectric plant in
Consumers Power Co., was not capable of performing its assigned function as of December 30,
1983. Petitioner also argues that The period from December 30, 1983, to June 30, 1985, which
Respondent characterizes as the preoperational testing period, is more accurately the
postoperational shakedown period discussed in * * * [sec. 1.46-3(d)(2)(iii), Income Tax Regs.].
107
Section 1.46-3(d)(2)(iii), Income Tax Regs., furnishes an example where property acquired by
the taxpayer for use in a trade or business shall be considered in a condition or state of
readiness and availability for a specifically assigned function; the example in that section states
that property is in such a condition or state of readiness when Equipment is acquired for a
specifically assigned function and is operational but is undergoing testing to eliminate any
defects. (Emphasis supplied.) The cited regulation does not require that property be free of all
flaws and defects as of the time that it is first operated; ultimately, however, the property must
be operating in the fulfillment of its specifically assigned function. See Noell v. Commissioner
[Dec. 33,927], 66 T.C. 718, 728-729 (1976). The ethanol distillation facility in this case was not
capable of performing its specifically assigned function without a molecular sieve, which was not
installed until 1984. After the sieve was installed, petitioner acknowledges that additional
refinements and enhancements were required to enable the facility to produce 198.2 proof
ethanol. These refinements and enhancements were not completed until 1985. The installation
of the molecular sieve in 1984 and the additional refinements and enhancements in 1985 are
significant and are more than mere testing to eliminate defects. In Consumers Power Co. v.
Commissioner [Dec. 44,250], 89 T.C. 710 (1987), we held that the hydroelectric plant at issue
must be viewed as one integrated unit because the physical plant and the reservoir operate
simultaneously and as a unit in order to produce electrical power. [Dec. 44,250] 89 T.C. at 726.
Our holding was based in part on Hawaiian Independent Refinery v. United States [83-1 USTC
¶ 9141], 697 F.2d 1063 (Fed. Cir. 1983), wherein the Court of Appeals for the Federal Circuit
concluded that the component assets of an oil refinery complex `functionally [formed] a single
property' and held that the entire refinery complex was to be treated as a single asset for
purposes of the investment credit. Consumers Power Co. v. Commissioner [Dec. 44,251], 89
T.C. at 726. We similarly conclude that the ethanol still, which was constructed in 1983, the
molecular sieve, which was installed in 1984, and the additional equipment, which was installed
in 1985, were component assets of the facility and functionally formed a single property. Only
after all of these component assets were installed and functioning did the facility constitute a
complete unit that was operational and served the purpose intended by petitioner, to wit, the
production of 198.2 proof ethanol. On its 1985 return, VNF reported that the additional
equipment installed in 1985 was placed in service on June 30, 1985. Accordingly, we conclude
that the facility was not placed in service for purposes of depreciation and the investment tax
credit and business energy credit prior to that date. Effect of the February Agreement The
second issue is whether the February agreement affected VNF's liability to FreeAn in that the
FreeAn note is not properly includable in VNF's basis for purposes of depreciation and the
investment tax credit and business energy credit. VNF is a partnership within the meaning of
section 6231(a) and is therefore subject to the unified audit and litigation proceedings for
partnership items under sections 6221 through 6233. Section 6221 provides that the tax
treatment of any partnership item shall be determined at the partnership level. Section
6231(a)(3) defines a partnership item as any item required to be taken into account for the
partnership's taxable year to the extent that regulations provide that such item is more
appropriately determined at the partnership level than at the partner level. Section
301.6231(a)(3)-1(a)(1)(v), Proced. & Admin. Regs., provides that the determination of the
partnership aggregate and each partner's share of Partnership liabilities (including
determinations with respect to the amount of the liabilities, whether the liabilities are
nonrecourse, and changes from the preceding taxable year) is a partnership item. Respondent
determined in the FPAA that only the actual costs of the molecular sieve and the additional
equipment installed in 1985 and the actual cash payments made to FreeAn with respect to the
FreeAn note were properly included in VNF's basis for purposes of computing depreciation and
the investment tax credit and business energy credit on the facility. Respondent concedes that
the FreeAn note constituted recourse financing from 1983 through February 26, 1985, the date
that the February agreement was executed. Respondent, however, argues that, as a result of
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the February agreement, the promissory note was converted from recourse to nonrecourse
financing. Although basis for purposes of depreciation and the investment tax credit and
business energy credit normally includes valid indebtedness, a liability is not includable in basis
unless its repayment is reasonably certain. We look to the substance of the purported debt, and
not its form, to determine the tax consequences. See Waddell v. Commissioner [Dec. 43,023],
86 T.C. 848, 902 (1986), affd. per curiam [88-1 USTC ¶ 9192] 841 F.2d 264 (9th Cir. 1988), and
cases cited therein. Even if an obligation is recourse, it will not be treated as a true debt where,
pursuant to its terms, payment is too contingent. [Dec. 43,023] 86 T.C. at 901. In Waddell, with
respect to the taxpayers' facially recourse note, we stated: If on the basis of all the facts and
circumstances we cannot conclude that payment of * * * [the taxpayers'] purchase money note
was reasonably likely, we cannot include the note as part of their basis for tax purposes.
[Waddell v. Commissioner [Dec. 43,023], 86 T.C. at 903.] Petitioner contends that both VNF and
FreeAn believed and understood that the February Agreement did not relieve the Partnership,
or any individual partner, of liability for the * * * [FreeAn note]. To determine the substance of the
transactions at issue, however, we must look at both the language of the agreement and its
effect. The February agreement, as set forth above in our findings of fact, provided: It is further
agreed that all payments to * * * [FreeAn] from this time forward will [be] made based on a
percentage of sales made by * * * [VNF]. The terms of these payments are detailed in the
accompanying Optional Payment Agreement. Petitioner did not produce the Optional Payment
Agreement. Petitioner argues that, notwithstanding language expressly stating that all payments
were to be made based on a percentage of sales, the February agreement does not purport to
relieve VNF of any legal liability. We are not persuaded, however, that the parties to the
agreement intended that VNF would make payments on the FreeAn note from any source other
than the sale of ethanol produced at the facility. As petitioner acknowledges, the February
agreement was entered into to reflect concessions of the parties resulting from production and
equipment difficulties at the facility. Richards testified: We previously referred to the penalty
clause that is mentioned on page one of * * * [the February agreement] which postponed the —
any attempt by us to enforce that penalty clause for six months in exchange for the concessions
that were made by FreeAn. One of those concessions is that we would pay them on a
percentage basis. We felt that within six months that we would be able to have production that
would pay them a significant amount of money. It was conceivable that the production would
result in enough income that they would be — they would have a greater amortization of the
note than we had previously agreed to. Although Richards asserted that the agreement did not
negate any obligation to FreeAn, he did not acknowledge an obligation to pay from any other
source. Further, the December agreement provided that FreeAn would waive all principal and
interest payments until production income exceeded a certain level. This supports our
conclusion that, as of the date of the February agreement, the parties expected that the sole
source of payments on the FreeAn note was income from the sale of ethanol produced at the
facility. The inference that repayment of the FreeAn note was not reasonably likely, as of 1985,
is supported by the testimony of Ralph Freeman, who testified as follows with respect to the
economic conditions and the state of the facility in 1985: A. To my best recollection, we were
economically unable to — I say we, Valley Natural Fuels was economically unable to operate
the plant because of various — well, the depletion of oil — the depletion, that's the wrong word
— the downward spiral — Q. Decrease? A. — decreasing of oil prices and at the pumps the oil
price had diminished considerably and — causing a reflection upon the price of ethanol as well
as the State of California had also done away with its particular fuel incentive program and there
was — it was virtually economically not sound. So we were unable to — when I say we, the
Valley Natural Fuels was somewhat unable to operate the facility because of that particular
condition * * *. At the time that the parties entered the February agreement, VNF had not
produced 198.2 proof ethanol and had not shown that it had the capability to realize any
substantial profits therefrom. Further, given the state of the ethanol market and the lack of
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economic incentives, the ability of the facility to generate any profits from the sale of ethanol at
that time was unlikely. If the facility was not then capable of generating sufficient production, no
payments would be forthcoming; hence, there was no fixed and definite date for repayment.
Moreover, with respect to petitioner's contention that the February agreement did not affect
VNF's liability to FreeAn, Ralph Freeman testified as follows: Q. So you believe they're still —
the partnership is still responsible to FreeAn for the payment of that promissory note? A. Well,
exactly, yeah. Q. Okay. Has that promissory note been paid in full? A. It has not. Q. Have you
ever considered bringing an action to collect the promissory note, the balance of the promissory
note? A. I would say no, we have not. Q. You have not, and why is that? A. Well, it was no
absolute fault of theirs that the facility was not able to — to operate, as it was not our fault
either. It was just an economic condition which persisted and it didn't affect only us but it
affected nearly every ethanol plant in the country and that particular business and so we didn't
pursue them personally. * * * Although Thomas Freeman, the president of FreeAn, had been
served with a subpoena to produce the original note at trial, he produced neither the original nor
a copy of the note. The failure to do so was not explained. Considering the quoted testimony
and the entire record, we do not believe that FreeAn intended to or could have enforced the
FreeAn note, according to its terms in the event that the facility did not generate sufficient
revenue. In light of the above, we conclude that after February 1985 the FreeAn note was
payable only out of revenues generated by, or assets used in, the activity and that, due to the
problems with the facility and the then prevailing economic conditions, payment of the FreeAn
note was not reasonably likely. The FreeAn note is not includable in VNF's basis for purposes of
computing depreciation and the investment tax credit and business energy credit. Accordingly,
inasmuch as petitioner has failed to establish that VNF paid to FreeAn amounts in excess of the
amounts that respondent determined were paid on the FreeAn note, we sustain respondent's
determinations in the FPAA. Because of our conclusion, we need not address respondent's
contention that the reductions to the FreeAn note resulted in a recapture of investment tax credit
and business energy credit in 1985, the year that the facility was placed in service. See section
47(a)(1) and section 1.47-2(a)(2)(i), Income Tax Regs. We have considered the other
arguments of the parties, and they do not affect our decision.
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To: Person County Board of County Commissioners
From: C. Ronald Aycock, Person County Attorney
Re: Spuntech property tax appeal
Spuntech has appealed the valuation of a portion of its personal property. The
basic issue presented to the BCC is whether any “depreciation” should be allowed
in determining the proper valuation. Spuntech contends that IRS depreciation
rules should be applied. The proper rule is not the IRS rule, but the rules
governing property tax valuation. The IRS income tax depreciation rules are
intended to reflect the amount of reduction in value as a result of a business
taking an expense and thereby reducing the basis (value) in the property. The
property tax depreciation rules are intended to reflect a reduction in value
because of wear and tear or functional or economic obsolescence on/of the
property.
A basic feature of the NC property tax system is that there must be a uniform
valuation date to ensure equity among and between all taxpayers. That valuation
date is January 1. All property is valued as of that date. The Spuntech personal
property must be valued as of January 1. Spuntech did not receive a certificate of
occupancy until January 5. Therefore, there could not have been any property tax
eligible depreciation as of the valuation date (January 1) since there was no use
authorized and no wear and tear.
Spuntech apparently argues that the reason that they did not get a certificate of
occupancy by January 1 was because of the failure of the Person County
Inspections Department to act in a timely manner. The letter from the head of the
Person County Inspections Department clearly shows that there were multiple
deficiencies and failures by Spuntech in getting the property and equipment in
position to receive a certificate of Occupancy by January 1.
It is my legal opinion that Spuntech is not entitled to take any depreciation as a
reduction in the value of the subject personal property.
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AGENDA ABSTRACT
Meeting Date: October 17, 2016
Agenda Title: Permission to accept Federal Land and Water Conservation Fund Grant
and Apply for 2017 North Carolina Parks and Recreation Trust Fund Grant
Summary of Information:
In May of 2016 the Person County Recreation, Arts, and Park Department applied for the North
Carolina Parks and Recreation Trust fund grant (PARTF) with a contingency to be considered for the
Federal Land and Water Conservation Fund Grant (LWCF) if the PARTF Grant was not awarded.
Person County was not awarded the 2016 PARTF Grant. We recently received notification that the
County has been recommended for funding of the 2016 LWCF Grant for $250,000.
Further, Parks and Recreation had applied for a wavier of retroactivity for the 2016 PARTF Grant
that allows more time to apply for the 2017 PARTF grant for the same Sports Plex project. With this
waiver Person County has the opportunity to improve the last 2016 PARTF grant application and
submit for consideration of the 2017 grant funding cycle. Person County also has the opportunity to
use the current $250,000 LWCF Grant award as the match for the 2017 PARTF Application.
Recommended Action:
Grant Permission for Parks and Recreation to proceed through the process of accepting the LWCF
Grant and applying for the 2017 PARTF Grant. Once awarded, apply the funds back into the Sport
Plex facility and programs to increase the quality and marketability of the Recreational Complex.
Submitted By: John Hill, Director of Recreation, Arts, and Parks Department
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