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| Montana Administrative Register Notice 42-2-790 | No. 4 02/28/2008 | |
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BEFORE THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 21, 2007, the department published MAR Notice No. 42-2-790 regarding the proposed amendment of ARM 42.4.118, 42.4.201, 42.4.203, 42.4.204, and 42.4.205 at page 1913 of the 2007 Montana Administrative Register, issue no. 22.
2. A public hearing was held on December 12, 2007, to consider the proposed amendment. Oral and written testimony received at the hearing is summarized as follows, along with the response of the department:
COMMENT NO. 1: James C. Wangerin, Certified Public Accountant, appeared at the hearing and testified that he was in favor of the rule regarding the recognition of an energy credit for each taxpayer, two credits per couple. However, he stated he was concerned about incorrect instructions that had been previously given to department staff regarding the application of this credit. Mr. Wangerin stated that he believes there is an estimated $10 million in Montana tax that has been wrongfully assessed and he requested the department send a letter to all taxpayers who have filed an Energy Conservation Installation Credit (ENRG-C) and Alternative Energy System Credit (ENRG-B) schedule explaining the department's change of position.
RESPONSE NO. 1: The department appreciates Mr. Wangerin's support of this amendment to the rule with regard to alternative energy systems credit. With regard to Mr. Wangerin's concern about incorrect instructions to department staff, the department does not believe department staff was operating under incorrect instructions. The department's hearings officer rendered a decision in 2005, which indicated that the Energy Conservation Installation Credit (ENRG-C) of $500 should be allowed for each taxpayer, rather than each household. Upon further review, it was determined that this interpretation was also applicable to the Alternative Energy System Credit (ENRG-B) credits. The department advised tax practitioners of this change at various times and updated forms and tax booklets as necessary. Mr. Wangerin did not provide any evidence to support his allegation that there is an estimated $10 million in Montana tax that has been wrongfully assessed, therefore the department cannot respond to this statement. The suggestion is not a comment on the rules themselves, but is instead relevant to administrative implementation with the context of limited budgets. The department is responsible for providing information to taxpayers on hundreds of provisions of law relating to 39 taxes and fees. Because of budget limitations on the department's expenditures, the department generally uses mass public education efforts to advise taxpayers instead of individual notification. The adoption of these and prior rules on this topic are, in and of themselves, one form of public education.
COMMENT NO. 2: John Fitzpatrick, Executive Director of Governmental Affairs for NorthWestern Energy appeared at the hearing and testified that he was very concerned about the department's intent to review energy bills or energy audits to verify savings of 5% or more from the previous year. Mr. Fitzpatrick suggested that this rule would be very difficult to manage because there are so many variables, including variables which are beyond the control of households and would impact any form of viable audit trail using this method. Nobody has control over the climate, if we go through an exceptionally hot period in the summertime, energy bills will go up, notwithstanding conservation measures that may have been implemented or employed earlier in the year. Likewise, if we get an exceptionally cold period in the winter time consumption can go back up again. Residents of the dwelling moving in or out can have a significant impact on the energy usage. Mr. Fitzpatrick suggested the department adopt an audit methodology to see if the capital investment was made and not try to get into worrying about if an individual household actually achieved 5% savings or not. He suggested that the expense of managing this type of process would outweigh the benefit. Mary Whittinghill, Executive Director, Montana Taxpayers Association (MonTax) appeared at the hearing and supported Mr. Fitzpatrick's concerns regarding the intent to review an energy bill or energy audit for a 5% savings. She further stated that MonTax believes it would be a complicated process in managing this savings. Mr. Wangerin also supported removing the 5% language because in many cases a 5% savings cannot be demonstrated. The American Association of Retired Persons (AARP) Montana, submitted written comments regarding concern for the 5% language. AARP stated they support the need to rein in an abuse of the tax credit but are concerned about their members who use medical and other life support equipment in their homes. As health and wellness needs change over lifetimes, it is possible that medical equipment is needed without allowing for planning or efforts to make use of energy comparables in successive years. AARP members are very active using weatherization and conservation strategies as a means of survival, and they would likely be in strong support of an objective criterion for evaluating applications for the tax credit. However, AARP believes that the 5% criteria proposed in the rule will not work, and will have detrimental effects on elders who are trying to age in their homes and taking advantage of every tax option they can.
RESPONSE NO. 2: The department thanks the participants who commented with regard to the 5% savings language and agrees that it should not be adopted. It should be noted that the 5% savings language that was proposed applied only to investments not on the list of qualified measures. The current rule states that for such investments that are not on the list of qualified measures, taxpayers must prove that such "non-listed" investments result in a substantial reduction in energy use. Since "substantial reduction" is not defined and is a fuzzy target, the department proposed making the energy reduction target fixed and definite at 5% in the interest of greater certainty and predictability for the taxpayers. Once the department proposed this fixed target for "non-listed" investments, the measurement problem described by those making comments came into sharp focus. It is logical that if it is not reliably possible to measure a 5% reduction in energy use, it is even less possible for a taxpayer to measure an undefined substantial reduction in energy use. Thus, the public comments have led the department to the conclusion that the only way to provide predictable and certain guidance to taxpayers wishing to claim the credit is to rely exclusively on lists of qualified investments and examples, for information purposes, of what does not qualify. The department has further concluded that due to changing energy conservation technology that lists of qualified capital investments and examples of nonqualified items should be updated annually. After reaching this conclusion, the department contacted NorthWestern Energy, AARP-Montana, and Representative Jon Sonju about adopting the approach of establishing definite lists of qualified energy conservation investments, providing examples of items that do not qualify, and conducting an annual update process for both. Representative Sonju was contacted as the sponsor of unsuccessful legislation (HB 748) in the 2007 Legislative Session encouraging the department to adopt definite rules embodying lists of qualified and unqualified investments. William Thomas of NorthWestern Energy in an e-mail message of January 23, 2008, forwarded to the department by John Fitzpatrick, indicated general support for the new listing and updating approach with the comment, "Our thinking here is very much in agreement with what is embodied in the draft document" (referring to a draft of the department's new approach). NorthWestern Energy also had specific suggestions that were incorporated as noted in the response to Comment 16 below. Claudia Clifford of AARP Montana stated in an e-mail message of January 24, 2008, that "You(r) intent to create a list of what qualifies and what does not, using the list in the current rules and proposed rules seems like a good way to go to us." Representative Sonju in an e-mail message of January 21, 2008, referred to the new approach as a ". . . win/win for your department and the taxpayers." Representative Sonju also made a suggestion which is responded to under Comment 12. The department believes that the approach of definite lists, examples of nonqualified items and an annual update process for both responds effectively to the comments of those who were concerned about the uncertainties involved in having taxpayers measure a 5% reduction in energy use for certain items. The department appreciates greatly the dialogue with those who made comments on this rule and that that dialogue has led to a set of rules that lends much greater certainty and clarity to the energy conservation credit and is, in Representative Sonju's words, a "win/win" for the department and the taxpayers.
COMMENT NO. 3: Mr. Wangerin stated he was opposed to special treatment on Energy Star homes manufactured outside of Montana. Credit should be allowed in the same way as for houses built in Montana (Exhibit A refers to the Department of Environmental Quality's (DEQ) web site which states the homes are certified by states where they are manufactured). He refers to DEQ's web site that promotes Energy Star homes manufactured in Idaho, Washington, Oregon, or California.
RESPONSE NO. 3: The department has verified with the Department of Environmental Quality that Montana's standard building code requirements for all manufactured or modular homes shipped into and sold in Montana must be met. Therefore, the Energy Star upgrade would indicate that the building was exceeding Montana standard building code requirements.
COMMENT NO. 4: Mr. Wangerin testified that he believes the department violated the requirements of 2-4-302, MCA, because it did not notify the primary sponsor for 15-32-109, MCA. He further stated that the proposed regulations do not follow the intent of 15-32-102 and 15-32-109, MCA.
RESPONSE NO. 4: The department complied with the requirements of 2-4-302, MCA, when the rules were first adopted in 2002 and notified not only the sponsor of the legislation but many other legislators. The department respectfully disagrees with Mr. Wangerin because it believes the regulations do follow the intent of 15-32-102 and 15-32-109, MCA.
COMMENT NO. 5: Mr. Wangerin stated he was opposed to prescriptive path as part of a building definition. It conflicts with the definitions in 15-32-102, MCA. He suggested different definitions for the terms "capital investment" and "energy conservation purposes." He stated that prescriptive path should not be added because other physical attributes of building outside of prescriptive path are recognized as saving energy.
RESPONSE NO. 5: The department has removed the reference to "prescriptive path" in the rules with the deletion of section (4) in ARM 42.4.204 as shown below. Therefore, the definition of "prescriptive path" will also be deleted from ARM 42.4.201.
COMMENT NO. 6: Mr. Wangerin testified that he was opposed to the list of standard items that are standard components of a building. The language should not indicate exclusion of standard components of a building. The choice of which components to use can dramatically affect the energy efficiency of the home. All the items listed in ARM 42.4.204(1) are standard components of a home.
RESPONSE NO. 6: The department appreciates Mr. Wangerin's comments and the confusion that this may cause by using the term "standard component" and has amended the rule accordingly as shown below.
COMMENT NO. 7: Mr. Wangerin stated he was opposed to the list excluding maintenance and repair. Some of the items in the list of eligible items are maintenance and repair and should not be excluded if it is done for an energy conservation purpose. Maintenance and repair can dramatically affect the energy efficiency of the home.
RESPONSE NO. 7: Maintenance and repair are considered normal upkeep and a standard requirement for home ownership. These areas do not necessarily lend themselves to energy conservation credit as anticipated in the law.
COMMENT NO. 8: Mr. Wangerin testified that he is opposed to the list because it excludes space heaters, portable air conditioners, and appliances because they are not capital investments. It is necessary to allow energy conserving expenditures (like Energy Star appliances and zone heating and air conditioning) to reduce the amount of energy required for proper utilization of the building. Energy Star appliances are capital investments required for proper utilization of the building.
RESPONSE NO. 8: The items identified by Mr. Wangerin are not installed as required in 15-32-102, MCA. The appliances are not part of the physical attributes of the building, nor are they part of the water, heating, or cooling system of the building, 15-32-109, MCA. Based on the decision of the department's hearings officer in 2006, appliances are deemed personal property and, therefore, do not meet the requirements for these credits. Simply put, appliances are not a capital investment in a building.
COMMENT NO. 9: Mr. Wangerin testified that the creation of a list of energy conserving expenditures not qualifying for energy credit is a new program to be implemented by the department and the primary sponsors should have been notified of proposed regulations to implement a new program listing nonqualifying expenditures (15-32-109, MCA). The list is a direct conflict of the list of qualifying items contained in regulations previously implemented by 15-32-109, MCA.
RESPONSE NO. 9: This is not a new program, but an expansion of existing rules that were adopted in 2002, at which time the primary sponsors of the various legislation were notified where appropriate. The department does not believe the new rules are in direct conflict with 15-32-109, MCA.
COMMENT NO. 10: Mr. Wangerin stated that the department is implementing 15-32-106, MCA, for the first time and, therefore, should have notified the bill sponsor of this action. He quotes 15-32-106, MCA, as stating the Department of Revenue may deny a deduction or credit that it finds to be impractical or ineffective. He further states that the legislation affects more than one program. Previous rules were part of a program to provide examples of what capital investments do qualify for energy conservation credits. The proposed rule changes are part of a new program to provide examples of what capital investments do not qualify for energy conservation credits. He stated that the proposed rule changes probably get their impetus from HB 748, which died in committee in the Senate. The fact that there was a bill that passed the House is more indication that it is a new program. Of course, it is important to note that the Senate did not pass the bill. Further he stated that the sponsors of 15-1-116, MCA, should have been notified because the rules impact that statute.
RESPONSE NO. 10: The department thanks Mr. Wangerin for pointing out that 15-32-106, MCA, should be included as an implementing cite to these rules. The department has amended the rules as shown below to include that statute. With regard to notification to the sponsor of the bill that amended 15-32-106, MCA, two areas must be addressed. First, the department had not intended to implement that statute with the rule proposal notice so the sponsor notification would not have applied. Second, 2-4-302(8), MCA, requires a former legislator who wishes to receive notice of rulemaking action to notify the Secretary of State with their name, address, e-mail address, and telephone number. The sponsor of 15-32-106, MCA, was Senator Duane Grimes and he has not requested future notification through the Secretary of State. The department conducts a biennial review of all of its rules and the amendments proposed in these rules are the result of that review and policy discussions. The department disagrees with the statement that this is a new program because of a bill that did not pass. The department testified before the 2007 Legislature that the department would be conducting a biennial review of these rules irrespective of the proposed legislation. The department understood the concerns raised by the Legislature and would take those concerns into account when reviewing these rules. Section 15-1-116, MCA, is a property tax statute that, although it addresses manufactured homes, has no bearing on these rules. Therefore, no sponsor notification was necessary.
COMMENT NO. 11: Mr. Wangerin stated the rules were unlawfully implemented prior to adoption, by using lists of items ineligible for credit that were not yet adopted as administrative rules. The department was using the lists proposed in the rules with the 2007 tax instructions for ENRG-C of investments that will not qualify such as: carpet, roof repair, paint, foundation repair, siding with little insulation, portable air conditioners, space heaters, and household appliances such as Energy Star stoves, washers, and dryers prior to the rules being adopted.
RESPONSE NO. 11: In consulting with DEQ, the department continually updates the energy conservation credit to incorporate changes found in technology. When these updates occur, we advise taxpayers, tax practitioners, and department staff of new qualifying or nonqualifying items. The department believes the rules are a result of those changes and fully within the scope of the law.
COMMENT NO. 12: Representative Jon Sonju suggested the department look at sheet rock to see if it has an R-value for energy conservation.
RESPONSE NO. 12: The department contacted several construction personnel and they were not aware of any sheet rock in today's market with energy conservation savings above the standard values. As shown in the new rule below, the department will consider any new product that may be brought to its attention.
COMMENT NO. 13: On December 21, 2007, Mr. Wangerin sent requests to numerous legislators requesting their opposition to the rules. Nine legislators submitted the following comments: Representative Jon Sonju - On December 21, 2007, Representative Sonju stated in an e-mail request that the proposed changes are unclear and confusing and the department should review the rules. Representative Gary MacLaren - On December 21, 2007, Representative MacLaren stated in an e-mail request that he formally objected to MAR Notice No. 42-2-790. The determination not to notify the legislative sponsor is absolutely unacceptable. Senator Dave Lewis - On December 21, 2007, Senator Lewis stated in an e-mail request that he objected to MAR Notice No. 42-2-790. Representative William Jones - On December 21, 2007, Representative Jones asked Mr. Wangerin in an e-mail message to "forward his objection to MAR Notice No. 42-2-790 to the appropriate place." Representative Ray Hawk - On December 21, 2007, Representative Hawk stated in an e-mail comment that he objected to MAR Notice No. 42-2-790 on the basis that it appears that the primary sponsor of the bill has not been notified. Representative Bob Lake - On December 21, 2007, Representative Lake stated in an e-mail comment that he was formally objecting to MAR Notice No. 42-2-790. He further stated, "The bill sponsor must be notified of any rule considered that interprets the legislative intent of the passed legislation." Representative Chas Vincent - On December 21, 2007, Representative Vincent stated in an e-mail comment the he would like to object to MAR Notice No. 42-2-790. He further stated, "It was the intent of Representative Sonju to clarify, not confuse, what is and isn't to be considered a conservation credit." Representative Tom McGillvray - On December 21, 2007, Representative McGillvray stated in an e-mail comment, "There appears to be some concern about MAR Notice 42-2-790. Therefore, I wish to object to the proposed rule changes and suggest a poll be taken of the legislature to confirm that the rule is consistent with legislative intent." Representative George Everett - On December 22, 2007, Representative Everett stated in an e-mail comment, "I received correspondence from James C. Wangerin, CPA, on 12/21/07 regarding the above-subject notice. I also spoke to Representative Jon Sonju about his bill H.B. 748. I feel there is enough ambiguity between the existing code/rules and the newly created administrative rules. Too many citizens have been concerned over their financial obligations created by the DOR's indiscriminate treatment of the energy credit deduction. I want to submit my protest against the administrative rule change as noticed above."
RESPONSE NO. 13: The department thanks the legislators for their time and comments regarding these rules. The department believes that it has properly complied with the sponsor notification and the rules have been thoroughly reviewed, along with the comments provided by interested parties. Also, see Response No. 10 above regarding the notification to the sponsor of 15-32-106, MCA. In particular, the department has responded to comments on a lack of clarity in the original proposals made by Representative Sonju, Representative Chas Vincent and Representative George Everett, by changing, in these final rules to the approach of: 1) definite list of qualified investments; 2) examples of items that do not qualify; and 3) an annual update process for both. (See the discussion above under Response No. 2.) This change of approach adds a much higher level of clarity and certainty for taxpayers.
COMMENT NO. 14: Ms. Whittinghill questioned the intent to disallow a credit if the action to achieve the energy savings required "human action" as stated in ARM 42.4.204(d). Mr. Wangerin also commented that he was opposed to the department including items in the list that would require human actions. He stated that it is confusing to allow energy conserving expenditures requiring human action in a list of allowed items but exclude them in a list of items not allowed. Nonprogrammable thermostats can be used to create zone heating or cooling and save energy. Honeycomb cellular window shades have an R-value of .9 and double paned windows an R-value of 1.9. The energy savings on the shades pays for them in less than two years. Decks and outdoor grills can be used as an alternative to air conditioning requiring energy. Cooking indoors adds heat to the interior of the home. Using the deck until the evening breeze cools down the home naturally can eliminate the need for air conditioning. Air conditioning actually increases the heat transferred into the house since it increases the differential in temperature. Use of deck as an outdoor kitchen and dining area can allow for zone cooling instead of cooling the entire house. Decks may have a retractable awning which shades the home and thereby reduces cooling requirements. Air conditioning averages 7% of the energy costs in Montana.
RESPONSE NO. 14: There are too many variables with regard to human actions that might occur when it comes to conserving energy. Even if there were the same set of circumstances with similar buildings and capital investments, the actions of the residents may vary so much that energy savings could be obtained in one building and not in the other. Items requiring regular human action to achieve energy savings do not reliably guarantee that an energy conservation purpose will actually be realized.
COMMENT NO. 15: Ms. Whittinghill further stated that it was her understanding that the geothermal credit addressed in ARM 42.4.118 is up to $1500 and she believes that applies to the residence, so the rule that should have been amended was ARM 42.4.202, which actually talks about the credit and Form 2 and the ENRG-C form. She stated that this seems to be confusing and there should be some technical way to make this easier for the taxpayers and CPAs to understand that a person can qualify for both the property tax exemption and the credit.
RESPONSE NO. 15: The department would like to thank Ms. Whittinghill for her comments and can appreciate that there could be potential for confusion regarding the difference in the rules. For clarification purposes, ARM 42.4.118 currently addresses ENRG-B credits. It appears Ms. Whittinghill has confused the ENRG-C and ENRG-B credits in two subchapters. The rules in Title 42, chapter 4, subchapter 2, only address ENRG-C credits. ENRG-B credits are specifically addressed in subchapter 1 and that was why ARM 42.4.118 was amended.
COMMENT NO. 16: John Fitzpatrick, NorthWestern Energy, suggested minor amendments to ARM 42.4.204.
RESPONSE NO. 16: The department thanks Mr. Fitzpatrick for his suggested amendments and has amended the rule as shown below.
3. As a result of the comments received and further review of the rules, the department has determined that ARM 42.4.202 and 42.4.207 should be amended as shown below and further amends ARM 42.4.201, 42.4.203, 42.4.204, and 42.4.205 with the following changes, stricken matter interlined, new matter underlined:
42.4.201 DEFINITIONS The following definitions apply to this subchapter: (1) through (14) remain as proposed.
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-105, 15-32-109, MCA
42.4.202 INDIVIDUAL INCOME TAX CREDIT FOR ENERGY CONSERVING EXPENDITURES (1) A credit against individual income tax for energy-conserving expenditures provided in 15-32-109, MCA, is claimed by filing an Individual Income Tax Return
AUTH: 15-1-201, MCA IMP: 15-32-106, 15-32-109, MCA
42.4.203 CREDIT FOR ENERGY CONSERVATION INVESTMENT (1) through (5) remain as proposed.
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-102, 15-32-105, 15-32-106, 15-32-109, MCA
42.4.204 (a) through (k) remain as proposed. (l) replacement of incandescent light fixtures with light fixtures of a more efficient type such as those with electronic ballast and compact or linear fluorescent lamps and LED lights; (m) and (n) remain as proposed. (o) installation of
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-102, 15-32-105, 15-32-106, 15-32-109, MCA
42.4.205 CALCULATION OF THE ENERGY CONSERVATION CREDIT (1) through (6) remain as proposed.
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-102, 15-32-105, 15-32-106, 15-32-109, MCA
42.4.207 RECORD RETENTION REQUIREMENTS (1) remains the same.
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-105, 15-32-106, 15-32-109, MCA
4. In addition to the amendments shown above, the department has determined a new rule is necessary to explain how the qualifying criteria will be established annually. The text of this new rule is as follows:
NEW RULE I (42.4.208) ANNUAL UPDATE OF CAPITAL INVESTMENTS QUALIFYING FOR THE ENERGY CONSERVATION CREDIT (1) Each September, the department will review ARM 42.4.204 to consider other capital investments that qualify for the energy conservation credit for the following tax year. (2) The department will consider any information received that may indicate that capital investments should be added or deleted from the capital investments in ARM 42.4.204. The department will consult with the Department of Environmental Quality to determine whether capital investments should be added or deleted. (3) The following standards for items that do not qualify for the credit will be applied in the annual review of capital investments. The examples under each standard are provided to aid the public in understanding the type of items that do not qualify for the credit. (a) Components of conventional buildings will typically not qualify for the energy conservation credit. Examples of such components that do not qualify for the credit include: (i) carpeting, carpet padding, or other flooring of any type; (ii) paint; (iii) roof vents; (iv) awnings that are not a component of a qualified "passive solar system"; (v) garage doors, whether insulated or not, that are installed in an existing or new building that does not consume any energy; or (vi) any item with an R-value of less than 1. (b) Expenditures for maintenance and repairs to a building do not qualify for the credit. Examples of such expenditures include: (i) patching holes; (ii) replacing a foundation; (iii) replacing siding; (iv) replacing or reshingling a roof; or (v) replacing existing asbestos insulation around heating pipes with other insulation. (c) Items that are not improvements to real property do not qualify for the credit. Examples of such items include: (i) space heaters; (ii) portable air conditioners; (iii) appliances such as ovens, stoves, refrigerators, dishwashers, clothes washers, and dryers that are not attached fixtures are not capital expenditures, and therefore do not qualify for the credit. (d) Any item that requires periodic human action, whether on a regular or irregular basis, to achieve energy savings, does not qualify for the credit. Examples of such items include: (i) nonprogrammable thermostats; (ii) moveable shades; (iii) decks; and (iv) outdoor grills installed as fixtures to the real estate.
AUTH: 15-1-201, 15-32-105, MCA IMP: 15-32-102, 15-32-105, 15-32-106, 15-32-109, MCA
5. Therefore, the department amends ARM 42.4.201, 42.4.202, 42.4.203, 42.4.204, 42.4.205, and 42.4.207 with the amendments listed above, adopts New Rule I (ARM 42.4. 208), and amends ARM 42.4.118 as proposed.
6. An electronic copy of this Adoption Notice is available through the department's site on the World Wide Web at www.mt.gov/revenue, under "for your reference"; "DOR administrative rules"; and "upcoming events and proposed rule changes." The department strives to make the electronic copy of this Adoption Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
/s/ Cleo Anderson /s/ Dan R. Bucks CLEO ANDERSON DAN R. BUCKS Rule Reviewer Director of Revenue
Certified to Secretary of State February 19, 2008 |
A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
