Court Awards $206 Million in Section 1603 Grant Wind Project Case

By and on November 3, 2016

The US Court of Federal Claims awarded damages of more than $206 million to the plaintiffs in a case involving the cash grant program pursuant to Section 1603 of the American Recovery and Reinvestment Act of 2009 (the Section 1603 Grant).  In its opinion, published on October 31, 2016, the court held that the US Treasury Department (Treasury) had underpaid the Section 1603 Grants arising from projects in the Alta Wind Energy Center because it had incorrectly reduced the plaintiffs’ eligible basis in the projects.  The court rejected the Treasury’s argument that the applicants’ basis in the facilities was limited to only development and construction costs, and accepted the plaintiffs’ position that the arm’s length purchase price of the projects prior to their placed-in-service date was a reasonable starting point to determine the projects’ value.  The court determined that the facilities, having not yet been placed in service and having only one customer pursuant to a master power purchase agreement (PPA), could not have any value assigned to goodwill or going concern value which would reduce the amount of eligible costs for purposes of the Section 1603 Grant.  The court noted that the transactions surrounding the sales of the facilities were conducted at arm’s length by economically self-interested parties, and that the purchase prices and side agreements were not marked by “peculiar circumstances” that influenced the parties to agree to a price in excess of the assets’ value.  Importantly, the court also held that PPAs were more like land leases, and should not be viewed as separate intangible assets from the underlying facilities, and are thus eligible property for purposes of the Section 1603 Grant.  Finally, the court accepted the plaintiffs’ pro rata allocation of costs between eligible and ineligible property.

An interesting side note to the trial was the court’s refusal to allow the government’s economics expert to testify. According to the court’s procedural rules, experts are required to list “all publications authored in the previous ten years.”  During voir dire, the expert confirmed that he had provided a listing of all of his articles, not just the ones that he had published in the last 10 years.  The plaintiffs’ counsel also introduced a report that the government’s expert had authored in another case, and the expert also confirmed that the second report had a listing of all of his articles.  However, during trial, the plaintiffs’ counsel exposed that the government’s expert had “attempted to conceal articles he wrote for Marxist and East German publications.”  While the hidden articles had nothing to do with the testimony he was prepared to give to the court, nonetheless, the court refused to admit him as an expert and to testify explaining “[t]he Court simply could not rely on the substantive expert testimony of a witness who was untruthful in describing his background and qualifications.”  As a result, the government had no expert to rebut the plaintiffs’ case and to support its counterclaims against the plaintiffs.

Heather Cooper
  Heather Cooper works on federal income tax matters, with a focus on energy tax issues. She represents clients in restructurings, mergers and acquisitions, and other transactional energy related matters. Heather's national practice includes advising on all aspects of renewable energy transactions such as solar and wind projects. She provides advice on tax equity structures, refinancings, acquisitions and dispositions, restructurings and workouts. Read Heather Cooper's full bio.


Kevin Spencer
Kevin Spencer focuses his practice on tax controversy issues. Kevin represents clients in complicated tax disputes in court and before the Internal Revenue Service (IRS) at the IRS Appeals and Examination divisions. In addition to his tax controversy practice, Kevin has broad experience advising clients on various tax issues, including tax accounting, employment and reasonable compensation, civil and criminal tax penalties, IRS procedures, reportable transactions and tax shelters, renewable energy, state and local tax, and private client matters. After earning his Master of Tax degree, Kevin had the privilege to clerk for the Honorable Robert P. Ruwe on the US Tax Court. Read Kevin Spencer's full bio.

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