FW: $.01 surcharge as "tax" a legal memo follows

 -----Original Message-----
From: 	Williams, Robert C.  
Sent:	Thursday, August 02, 2001 9:16 AM
To:	Mellencamp, Lisa; 'jklauber@llgm.com'
Subject:	FW: $.01 surcharge as "tax"



 -----Original Message-----
From: 	Williams, Robert C.  
Sent:	Friday, July 27, 2001 5:47 PM
To:	Sharp, Vicki
Subject:	$.01 surcharge as "tax"

A typical clause reads as follows:

" 'Taxes' means any and all new or existing governmental or quasi-governmental taxes, assessments, levies, duties, fees, charges and withholdings of any kind or nature whatsoever and howsoever described, including gross receipts, franchise, sales, use , property, excise, capital, stamp, transfer, employment, occupation, generatiion, privilege, Utility Taxes [separately defined to include "any and all franchise, utility, regulatory, BTU or energy, gross receipts, administrative services, municipality, and utility user taxes and similar taxes and energy resource and municipal land use surcharges and other similar surcharges"], regulatory, BTU, energy, consumption, lease, transaction, license, filing, recording, and activity taxes, levies, duties, fees, charges and withholdings, together with any and all penalties, fines, interest, and additions thereto, but excluding any taxes on the net income of EESI or any affilitates."

Under the contracts the Buyer is usually responsible for taxes "applicable to Power at or after the Delivery Point" (the meter); the Seller is usually responsible for taxes "applicable prior to the Delivery Point."  The surcharge would seem to be applicable "at the Delivery Point."

Support for the argument that the surcharge is not a "tax" under the contracts:

     1.  The CPUC refers to it as a "rate increase"

     2.  It was not imposed by a governmental body (such as a state, county, or municipality)

     3.  When first implemented, all proceeds went to the utilities

     4.  It appears that a portion of the proceeds may continue to go to the utilities

Support for the argument that the surcharge is a "tax" under the contracts:

     1.  Since the "frozen tariff" remains in place it is disingenuous to refer to it as a "rate increase"

     2.  It now appears that the proceeds will go to a governmental entity, the DWR

     3.  The definition of "taxes" under the contract is broad and includes surcharges of all types

     4.  To the extent the $.01 surcharge is to pay for generation for bundled customers, those on direct access receive, if anything, only an indirect benefit, which is similar in effect to a tax and not to a rate increase

