Florida Progress Corporation and Subsidiaries - Page 22




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          in Indianapolis Power & Light Co. with regard to deposits.                  
          Respondent argues that the overrecoveries should be included in             
          income under section 61 because the overrecoveries are property             
          of Florida Power under a claim of right and subject to a                    
          conditional obligation to repay.  The conditional obligation to             
          repay vests only if an offsetting underrecovery does not occur              
          before the end of the 6-month recovery period.  However, the true           
          economic substance of Florida Power’s obligation is that, at the            
          end of the month, Florida Power is not entitled to keep the                 
          amount held as an overrecovery, and it must return that amount              
          according to regulatory law either by setoff during the remainder           
          of the recovery period or by the true-up adjustment.                        
               Our decision is consistent with Houston Indus. v. United               
          States, 125 F.3d 1442, 1444 (Fed. Cir. 1997).  In Houston Indus.,           
          the Court of Appeals held that overrecoveries of fuel costs are             
          not required to be included in income when the overrecoveries are           
          part of a plan to create level pricing over a 12-month recovery             
          period.  A taxpayer-utility collected funds from its customers              
          equal to the fuel costs it expected to incur.  The collections              
          were based on estimates and were followed by a reconciliation               
          procedure to account for any over or underrecoveries.  The                  
          governing regulatory agencies required the taxpayer to pay                  
          interest on any overrecoveries.  The taxpayer argued that it was            
          not required to report in gross income overrecoveries for fuel              





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