Emcore Solar New Mexico, LLC

16-21

On December 18, 2013, the New Mexico Environment Department granted the Taxpayer a Certificate of Eligibility for the Taxpayer’s qualified generating facility.  The Taxpayer is listed as the only financial entity holding an interest in its qualifying generating facility.  The Taxpayer submitted an application for approval with the Department for an advanced energy combined reporting tax credit on October 1, 2014.  On July 13, 2015, the Department partially approved the Taxpayer’s request, but for a slightly lower amount than requested.  The Taxpayer did not protest the partial denial of the credit.  Between October 9, 2015 and November 24, 2015, the Taxpayer’s consultant discussed with a Department employee the possibility of selling a portion of the ownership interest in the Taxpayer to a third party for the sole purpose of allowing the third party to utilize the credit.  The Taxpayer has not sold any interest in its business to a third party, nor has it merged with any corporation or changed its organizational structure, those possibilities are all hypothetical at this point.  On November 24, 2015, the Department denied the Taxpayer’s request to allocate the credit because the third party entity did not have ownership interest in the Taxpayer at the time it applied for the credit with the New Mexico Environment Department.  The Department stated in its denial that any allocation of the credit should have been done at the time of applying for the credit.  The entity who applies for the credit is the one who may claim the credit, and Regulation 3.13.8.12(B) NMAC prohibits the transfer of the credit to any other person, including an affiliate.  Only when two or more corporations merge or if an entity changes its organizational form and the resulting entity is a continuation of the predecessor, may the resulting entity claim the credit.  On February 1, 2016, the Taxpayer protested the denial of the transfer of the credit to a hypothetical third party.  The hearing officer found that the facts in this case were too speculative and hypothetical in nature.  The Taxpayer’s protest was denied.