- 22 - 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 fuelPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011