2
3
4
5
6
7 LONG TITLE
8 Committee Note:
9 The Retirement and Independent Entities Interim Committee recommended this bill.
10 Legislative Vote: 11 voting for 0 voting against 4 absent
11 General Description:
12 This bill repeals the Utah Energy Infrastructure Authority and modifies provisions
13 related to the Utah Energy Infrastructure Board.
14 Highlighted Provisions:
15 This bill:
16 ▸ defines terms;
17 ▸ repeals provisions related to the Utah Energy Infrastructure Authority;
18 ▸ moves the Utah Energy Infrastructure Board under the Office of Energy
19 Development;
20 ▸ clarifies the duties of the Utah Energy Infrastructure Board regarding the evaluation
21 of an application for a tax credit under the High Cost Infrastructure Development
22 Tax Credit Act; and
23 ▸ makes technical and conforming changes.
24 Money Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None
28 Utah Code Sections Affected:
29 AMENDS:
30 63E-1-102, as last amended by Laws of Utah 2018, Chapter 393
31 79-6-602, as renumbered and amended by Laws of Utah 2021, Chapter 280
32 79-6-603, as renumbered and amended by Laws of Utah 2021, Chapter 280
33 79-6-604, as renumbered and amended by Laws of Utah 2021, Chapter 280
34 ENACTS:
35 79-6-903, Utah Code Annotated 1953
36 RENUMBERS AND AMENDS:
37 79-6-901, (Renumbered from 63H-2-102, as last amended by Laws of Utah 2021,
38 Chapter 280)
39 79-6-902, (Renumbered from 63H-2-202, as last amended by Laws of Utah 2021,
40 Chapter 280)
41 REPEALS:
42 63H-2-101, as last amended by Laws of Utah 2012, Chapter 37
43 63H-2-201, as last amended by Laws of Utah 2012, Chapter 37
44 63H-2-203, as enacted by Laws of Utah 2009, Chapter 378
45 63H-2-204, as last amended by Laws of Utah 2021, Chapter 282
46 63H-2-301, as last amended by Laws of Utah 2012, Chapter 37
47 63H-2-302, as last amended by Laws of Utah 2012, Chapter 37
48 63H-2-401, as last amended by Laws of Utah 2014, Chapter 301
49 63H-2-402, as last amended by Laws of Utah 2012, Chapter 37
50 63H-2-403, as enacted by Laws of Utah 2009, Chapter 378
51 63H-2-404, as last amended by Laws of Utah 2012, Chapter 37
52 63H-2-501, as enacted by Laws of Utah 2009, Chapter 378
53 63H-2-502, as last amended by Laws of Utah 2021, Chapters 84 and 345
54 63H-2-503, as enacted by Laws of Utah 2009, Chapter 378
55 63H-2-504, as last amended by Laws of Utah 2021, Chapter 345
56
57 Be it enacted by the Legislature of the state of Utah:
58 Section 1. Section 63E-1-102 is amended to read:
59 63E-1-102. Definitions -- List of independent entities.
60 As used in this title:
61 (1) "Authorizing statute" means the statute creating an entity as an independent entity.
62 (2) "Committee" means the Retirement and Independent Entities Committee created by
63 Section 63E-1-201.
64 (3) "Independent corporation" means a corporation incorporated in accordance with
65 Chapter 2, Independent Corporations Act.
66 (4) (a) "Independent entity" means an entity having a public purpose relating to the
67 state or its citizens that is individually created by the state or is given by the state the right to
68 exist and conduct its affairs as an:
69 (i) independent state agency; or
70 (ii) independent corporation.
71 (b) "Independent entity" includes the:
72 (i) Utah Beef Council, created by Section 4-21-103;
73 (ii) Utah Dairy Commission created by Section 4-22-103;
74 (iii) Heber Valley Historic Railroad Authority created by Section 63H-4-102;
75 (iv) Utah State Railroad Museum Authority created by Section 63H-5-102;
76 (v) Utah Housing Corporation created by Section 63H-8-201;
77 (vi) Utah State Fair Corporation created by Section 63H-6-103;
78 (vii) Utah State Retirement Office created by Section 49-11-201;
79 (viii) School and Institutional Trust Lands Administration created by Section
80 53C-1-201;
81 (ix) School and Institutional Trust Fund Office created by Section 53D-1-201;
82 (x) Utah Communications Authority created by Section 63H-7a-201;
83 [
84 [
85 [
86 63H-1-201.
87 (c) Notwithstanding this Subsection (4), "independent entity" does not include:
88 (i) the Public Service Commission of Utah created by Section 54-1-1;
89 (ii) an institution within the state system of higher education;
90 (iii) a city, county, or town;
91 (iv) a local school district;
92 (v) a local district under Title 17B, Limited Purpose Local Government Entities - Local
93 Districts; or
94 (vi) a special service district under Title 17D, Chapter 1, Special Service District Act.
95 (5) "Independent state agency" means an entity that is created by the state, but is
96 independent of the governor's direct supervisory control.
97 (6) "Money held in trust" means money maintained for the benefit of:
98 (a) one or more private individuals, including public employees;
99 (b) one or more public or private entities; or
100 (c) the owners of a quasi-public corporation.
101 (7) "Public corporation" means an artificial person, public in ownership, individually
102 created by the state as a body politic and corporate for the administration of a public purpose
103 relating to the state or its citizens.
104 (8) "Quasi-public corporation" means an artificial person, private in ownership,
105 individually created as a corporation by the state, which has accepted from the state the grant of
106 a franchise or contract involving the performance of a public purpose relating to the state or its
107 citizens.
108 Section 2. Section 79-6-602 is amended to read:
109 79-6-602. Definitions.
110 As used in this part:
111 (1) "Applicant" means a person that conducts business in the state and that applies for a
112 tax credit under this part.
113 (2) "Energy delivery project" means a project that is designed to:
114 (a) increase the capacity for the delivery of energy to a user of energy inside or outside
115 the state; or
116 (b) increase the capability of an existing energy delivery system or related facility to
117 deliver energy to a user of energy inside or outside the state.
118 [
119 refinery in order to make the refinery capable of producing fuel that complies with the United
120 States Environmental Protection Agency's Tier 3 gasoline sulfur standard described in 40
121 C.F.R. Sec. 79.54.
122 [
123 delivery project or a fuel standard compliance project:
124 (a) (i) that expands or creates new industrial, mining, manufacturing, or agriculture
125 activity in the state, not including a retail business;
126 (ii) that involves new investment of at least $50,000,000 in an existing industrial,
127 mining, manufacturing, or agriculture entity, by the entity; or
128 (iii) for the construction of a plant or other facility, including a fueling station, for the
129 storage, production, or distribution of hydrogen fuel used for transportation, electricity
130 generation, or industrial use;
131 (b) that requires or is directly facilitated by infrastructure construction; and
132 (c) for which the cost of infrastructure construction to the entity creating the project is
133 greater than:
134 (i) 10% of the total cost of the project; or
135 (ii) $10,000,000.
136 [
137 (a) an energy delivery project [
138 (b) a railroad as defined in Section 54-2-1;
139 (c) a fuel standard compliance project;
140 (d) a road improvement project;
141 (e) a water self-supply project;
142 (f) a water removal system project;
143 (g) a solution-mined subsurface salt cavern; or
144 (h) a project that is designed to:
145 (i) increase the capacity for water delivery to a water user in the state; or
146 (ii) increase the capability of an existing water delivery system or related facility to
147 deliver water to a water user in the state.
148 [
149 agreement with the office that qualifies the applicant to receive a tax credit as provided in this
150 part.
151 (b) "Infrastructure cost-burdened entity" includes a pass-through entity taxpayer, as
152 defined in Section 59-10-1402, of a person described in Subsection [
153 [
154 creating a high cost infrastructure project, in a taxable year, that is directly attributable to a high
155 cost infrastructure project, under:
156 (a) Title 59, Chapter 7, Corporate Franchise and Income Taxes;
157 (b) Title 59, Chapter 10, Individual Income Tax Act; and
158 (c) Title 59, Chapter 12, Sales and Use Tax Act.
159 [
160 79-6-401.
161 [
162 [
163 infrastructure cost-burdened entity that:
164 (a) lists the name of the infrastructure cost-burdened entity;
165 (b) lists the infrastructure cost-burdened entity's taxpayer identification number;
166 (c) lists, for a taxable year, the amount of the tax credit authorized for the infrastructure
167 cost-burdened entity under this part; and
168 (d) includes other information as determined by the office.
169 Section 3. Section 79-6-603 is amended to read:
170 79-6-603. Tax credit -- Amount -- Eligibility -- Reporting.
171 (1) Before the office enters into an agreement described in Subsection (3) with an
172 applicant regarding a project, the office, in consultation with the Utah Energy Infrastructure
173 [
174 necessary, shall, in accordance with the procedures described in Section 79-6-604, certify:
175 (a) that the project meets the definition of a high cost infrastructure project under this
176 part;
177 (b) that the high cost infrastructure project will generate infrastructure-related revenue;
178 (c) the economic life of the high cost infrastructure project; and
179 (d) that the applicant has received a certificate of existence from the Division of
180 Corporations and Commercial Code.
181 (2) (a) Before the office enters into an agreement described in Subsection (3) with an
182 applicant regarding a project, the Utah Energy Infrastructure [
183 the project's net benefit to the state, [
184 (i) whether the project is likely to increase the property tax revenue for the municipality
185 or county where the project will be located;
186 (ii) whether the project would contribute to the economy of the state and the
187 municipality or county where the project will be located;
188 [
189 type of infrastructure the project would create is underdeveloped;
190 (iv) whether the project is supported by a business case for providing the revenue
191 necessary to finance the construction and operation of the project;
192 [
193 (vi) whether the project promotes responsible energy development;
194 [
195 ensure the entity's continued operation and economic viability; [
196 [
197 to the applicant under this part[
198 (ix) other relevant factors that the board specifies in the board's evaluation.
199 (b) Before the office enters into an agreement described in Subsection (3) with an
200 applicant regarding an energy delivery project, in addition to the criteria described in
201 Subsection (2)(a) the Utah Energy Infrastructure Board shall determine that the project:
202 (i) is strategically situated to maximize connections to an energy source project located
203 in the state that is:
204 (A) existing;
205 (B) under construction;
206 (C) planned; or
207 (D) foreseeable;
208 (ii) is supported by a project plan related to:
209 (A) engineering;
210 (B) environmental issues;
211 (C) energy production;
212 (D) load or other capacity; and
213 (E) any other issue related to the building and operation of energy delivery
214 infrastructure; and
215 (iii) complies with the regulations of the following regarding the building of energy
216 delivery infrastructure:
217 (A) the Federal Energy Regulatory Commission;
218 (B) the North American Electric Reliability Council; and
219 (C) the Public Service Commission of Utah.
220 [
221 office deny an applicant a tax credit if [
222 Utah Energy Infrastructure [
223 (i) the project does not sufficiently benefit the state based on the criteria described in
224 Subsection (2)(a)[
225 (ii) for an energy delivery project, the project does not satisfy the conditions described
226 in Subsection (2)(b).
227 (3) Subject to the procedures described in Section 79-6-604, if an applicant meets the
228 requirements of Subsection (1) to receive a tax credit, and the applicant's project receives a
229 favorable recommendation from the Utah Energy Infrastructure [
230 Subsection (2), the office shall enter into an agreement with the applicant to authorize the tax
231 credit in accordance with this part.
232 (4) The office shall grant a tax credit to an infrastructure cost-burdened entity, for a
233 high cost infrastructure project, under an agreement described in Subsection (3):
234 (a) for the lesser of:
235 (i) the economic life of the high cost infrastructure project;
236 (ii) 20 years; or
237 (iii) a time period, the first taxable year of which is the taxable year when the
238 construction of the high cost infrastructure project begins and the last taxable year of which is
239 the taxable year in which the infrastructure cost-burdened entity has recovered, through the tax
240 credit, an amount equal to:
241 (A) 50% of the cost of the infrastructure construction associated with the high cost
242 infrastructure project; or
243 (B) if the high cost infrastructure project is a fuel standard compliance project, 30% of
244 the cost of the infrastructure construction associated with the high cost infrastructure project.
245 (b) except as provided in Subsections (4)(a) and (d), in a total amount equal to 30% of
246 the high cost infrastructure project's total infrastructure-related revenue over the time period
247 described in Subsection (4)(a);
248 (c) for a taxable year, in an amount that does not exceed the high cost infrastructure
249 project's infrastructure-related revenue during that taxable year; and
250 (d) if the high cost infrastructure project is a fuel standard compliance project, in a total
251 amount that is:
252 (i) determined by the Utah Energy Infrastructure [
253 (A) the applicant's likelihood of completing the high cost infrastructure project without
254 a tax credit; and
255 (B) how soon the applicant plans to complete the high cost infrastructure project; and
256 (ii) equal to or less than 30% of the high cost infrastructure project's total
257 infrastructure-related revenue over the time period described in Subsection (4)(a).
258 (5) An infrastructure cost-burdened entity shall, for each taxable year:
259 (a) file a report with the office showing the high cost infrastructure project's
260 infrastructure-related revenue during the taxable year;
261 (b) subject to Subsection (7), file a report with the office that is prepared by an
262 independent certified public accountant that verifies the infrastructure-related revenue
263 described in Subsection (5)(a); and
264 (c) provide the office with information required by the office to certify the economic
265 life of the high cost infrastructure project.
266 (6) An infrastructure cost-burdened entity shall retain records supporting a claim for a
267 tax credit for the same period of time during which a person is required to keep books and
268 records under Section 59-1-1406.
269 (7) An infrastructure cost-burdened entity for which a report is prepared under
270 Subsection (5)(b) shall pay the costs of preparing the report.
271 (8) The office shall certify, for each taxable year, the infrastructure-related revenue
272 generated by an infrastructure cost-burdened entity.
273 Section 4. Section 79-6-604 is amended to read:
274 79-6-604. Tax credit -- Application procedure.
275 (1) An applicant shall provide the office with:
276 (a) an application for a tax credit certificate;
277 (b) documentation that the applicant meets the requirements described in Subsection
278 79-6-603(1), to the satisfaction of the office, for the taxable year for which the applicant seeks
279 to claim a tax credit; and
280 (c) documentation that expressly directs and authorizes the State Tax Commission to
281 disclose to the office the applicant's returns and other information concerning the applicant that
282 would otherwise be subject to confidentiality under Section 59-1-403 or Section 6103, Internal
283 Revenue Code.
284 (2) (a) The office shall, for an applicant, submit the documentation described in
285 Subsection (1)(c) to the State Tax Commission.
286 (b) Upon receipt of the documentation described in Subsection (1)(c), the State Tax
287 Commission shall provide the office with the documentation described in Subsection (1)(c).
288 (3) If, after the office reviews the documentation from the State Tax Commission
289 under Subsection (2)(b) and the information the applicant submits to the office under Section
290 79-6-603, the office, in consultation with the Utah Energy Infrastructure [
291 created in Section [
292 tax credit under Section 79-6-603, or that the applicant's documentation is inadequate, the
293 office shall:
294 (a) deny the tax credit; or
295 (b) inform the applicant that the documentation supporting the applicant's claim for a
296 tax credit was inadequate and request that the applicant supplement the applicant's
297 documentation.
298 (4) Except as provided in Subsection (5), if, after the office reviews the documentation
299 described in Subsection (2)(b) and the information described in Subsection 79-6-603(6), the
300 office, in consultation with the Utah Energy Infrastructure [
301 [
302 tax credit adequately demonstrates that the applicant is eligible for the tax credit under Section
303 79-6-603, the office shall, on the basis of the documentation:
304 (a) enter, with the applicant, into the agreement described in Subsection 79-6-603(3);
305 (b) issue a tax credit certificate to the applicant; and
306 (c) provide a duplicate copy of the tax credit certificate described in Subsection (4)(b)
307 to the State Tax Commission.
308 (5) The office may deny an applicant a tax credit based on the recommendation of the
309 Utah Energy Infrastructure [
310 (6) An infrastructure cost-burdened entity may not claim a tax credit under Section
311 59-7-619 or 59-10-1034 unless the infrastructure cost-burdened entity receives a tax credit
312 certificate from the office.
313 (7) An infrastructure cost-burdened entity that claims a tax credit shall retain the tax
314 credit certificate in accordance with Subsection 79-6-603(7).
315 (8) Except for the information that is necessary for the office to disclose in order to
316 make the report described in Section 79-6-605, the office shall treat a document an applicant or
317 infrastructure cost-burdened entity provides to the office as a protected record under Section
318 63G-2-305.
319 Section 5. Section 79-6-901, which is renumbered from Section 63H-2-102 is
320 renumbered and amended to read:
321
322 [
323 As used in this [
324 [
325 [
326 [
327 [
328
329 [
330
331 (1) "Application" means an application for a tax credit under Title 79, Chapter 6, Part
332 6, High Cost Infrastructure Development Tax Credit Act.
333 [
334 in Section [
335 [
336
337 [
338 term is defined in Section 11-13-103.
339 [
340 [
341 [
342
343 [
344
345 [
346 [
347 [
348 [
349 [
350 [
351
352 [
353 [
354 [
355
356 [
357 [
358 [
359 [
360 [
361 (5) "Fuel standard compliance project" means the same as that term is defined in
362 Section 79-6-602.
363 (6) "Office" means the Office of Energy Development created in Section 79-6-401.
364 (7) "Tax credit" means the same as that term is defined in Section 79-6-602.
365 Section 6. Section 79-6-902, which is renumbered from Section 63H-2-202 is
366 renumbered and amended to read:
367 [
368 (1) There is created within the office the Utah Energy Infrastructure [
369 that consists of nine members as follows:
370 (a) members appointed by the governor:
371 (i) the energy advisor or the director of the Office of Energy Development, who shall
372 serve as chair of the board;
373 (ii) one member from the Governor's Office of Economic Opportunity;
374 (iii) one member from a public utility or electric interlocal entity that operates electric
375 transmission facilities within the state;
376 (iv) two members representing the economic development interests of rural
377 communities as follows:
378 (A) one member currently serving as county commissioner of a county of the third,
379 fourth, fifth, or sixth class, as described in Section 17-50-501; and
380 (B) one member of a rural community with work experience in the energy industry;
381 (v) two members of the general public with relevant industry or community
382 experience; and
383 (vi) one member of the general public who has experience with public finance and
384 bonding; and
385 (b) the director of the School and Institutional Trust Lands Administration created in
386 Section 53C-1-201.
387 (2) (a) The term of an appointed board member is four years.
388 (b) Notwithstanding Subsection (2)(a), the governor shall, at the time of appointment
389 or reappointment, adjust the length of terms to ensure that the terms of board members are
390 staggered so that approximately half of the board is appointed every two years.
391 (c) The governor may remove a member of the board for cause.
392 (d) The governor shall fill a vacancy in the board in the same manner under this section
393 as the appointment of the member whose vacancy is being filled.
394 (e) An individual appointed to fill a vacancy shall serve the remaining unexpired term
395 of the member whose vacancy the individual is filling.
396 (f) A board member shall serve until a successor is appointed and qualified.
397 (3) (a) Five members of the board constitute a quorum for conducting board business.
398 (b) A majority vote of the quorum present is required for an action to be taken by the
399 board.
400 (4) [
401 [
402 [
403
404 [
405
406 [
407
408 (5) A member may not receive compensation or benefits for the member's service, but
409 may receive per diem and travel expenses in accordance with:
410 (a) Section 63A-3-106;
411 (b) Section 63A-3-107; and
412 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
413 63A-3-107.
414 Section 7. Section 79-6-903 is enacted to read:
415 79-6-903. Powers and duties of the board -- Oversight -- Staff support.
416 (1) Subject to the provisions of this part and in accordance with Title 79, Chapter 6,
417 Part 6, High Cost Infrastructure Development Tax Credit Act, the board shall:
418 (a) evaluate each application using the criteria described in Subsections 79-6-603(1)
419 and (2);
420 (b) make recommendations to the office regarding each application; and
421 (c) for an application related to a fuel standard compliance project, determine the
422 amount of the authorized tax credit using the criteria described in Subsection 79-6-603(4).
423 (2) The office shall:
424 (a) oversee the board's performance;
425 (b) provide the board office space, furnishings, and supplies; and
426 (c) provide the board staff support.
427 (3) With the consent of the attorney general, the office may retain legal counsel to
428 advise the board on matters relating to the board's operations.
429 Section 8. Repealer.
430 This bill repeals:
431 Section 63H-2-101, Title.
432 Section 63H-2-201, Creation of Utah Energy Infrastructure Authority.
433 Section 63H-2-203, Powers of the board and authority -- Officers.
434 Section 63H-2-204, Dissolution of authority.
435 Section 63H-2-301, Prioritization of energy delivery projects.
436 Section 63H-2-302, Approval of qualifying energy delivery project.
437 Section 63H-2-401, Resolution authorizing issuance of authority bond --
438 Characteristics of bond.
439 Section 63H-2-402, Sources from which an authority bond may be made payable --
440 Authority powers regarding authority bond.
441 Section 63H-2-403, Purchaser of an authority bond.
442 Section 63H-2-404, Obligee rights -- Board may confer other rights.
443 Section 63H-2-501, Fiscal year.
444 Section 63H-2-502, Annual authority budget -- Auditor forms -- Requirement to
445 file form.
446 Section 63H-2-503, Audits.
447 Section 63H-2-504, Relation to other state statutes.