New York changes

This is different, since there are no opponents thus far, and there is more and more support mounting. For example, the New York City council just passed resolution 879 to call upon the governor to sign both bills.
These are small bills, with little current impact, but large future potential. Geothermal was on no-ones radar screen in NYS until the NY Geo association was formed and brought many issues to the table, and people in the government indeed started to listen and started to take action.
The bills will have impact on other NYS agencies, and many people did not even know what geothermal is.
So it is understandable and reasonable that NYS and the Governor's staff informs themselves and gets educated about the technology first, which they really currently do.

 

Copy of email I just received.

Subject: PLEASE REVUE: Geo bills on Gov's desk PLEASE leave him a message today
Date: November 10, 2015 at 3:20:45 PM EST

HELLO ALL - I'M GETTING READY TO MOBILIZE A LAST ROUND OF CALLS TO THE GOVERNOR, AS WE JUST HEARD HE'S CALLED OUR BILLS.

I WANT THE MESSAGE BELOW TO GENERATE AS MANY CALLS AS POSSIBLE.

PLEASE REVIEW IT AND SUGGEST ANY CHANGES BEFORE 8 AM TOMORROW.

THANKS

Dear Friends

Governor Cuomo has called the geothermal tax credit (S2905) and sales tax exemption (S4279) bills to his desk !!!

He has until Friday, November 20th to sign them or veto them.

It is our understanding that we probably won't find out until the 20th.

WE DO NOT HAVE AN INDICATION OF WHAT HE'LL DO AND HE NEEDS TO HEAR FROM YOU TODAY.

These bills fit NY State's needs perfectly as they give the state a tool to lower greenhouse gas emissions and peak demand while cutting heating and air conditioning bills for New Yorkers.

At the same time the Governor has often vetoed bills that may impact state revenues when they are passed after the budget has been set (as these were).

That means YOUR CALL can make the difference between success and failure on this initiative.

I've attached a few items that explain these bills, list advantages of geothermal heating and cooling, and document that the bills mill have A minimal revenue impact.

Here's the lowdown on calling the Governor:

Please take a quick minute today to leave a message with Governor Cuomo at (518) 474-1041. Ask him to sign S2905 (geothermal tax credit) and S4279 (geo sales tax exemption), both of which were passed unanimously by the legislature. We CAN move away from burning fossil fuels to heat our homes and buildings!

THE CALL IS EASY - YOU'LL BE ASKED IF YOU WANT TO LEAVE A MESSAGE (press 2) OR TALK WITH AN AIDE (press 3) - IT'S YOUR CHOICE.

If you speak with an aide they'll just listen politely and ask for your zip code.

As you are probably aware, the 2015 New York State Energy Plan notes that 35% of New York's fossil fuel greenhouse gas emissions come from "on-site combustion" - mainly heating homes and buildings by burning oil, gas and propane. We can eliminate these emissions by switching to geothermal heating and cooling, which uses the ground beneath us as a heat source in the winter and as a cooling heat sink in the summer.

In this year's legislative session both the NY Senate and Assembly UNANIMOUSLY passed these bills to give geothermal heat pumps the same tax treatment as solar panels.
PLEASE DON'T DELAY - CALL TODAY - YOUR VOICE CAN MAKE A DIFFERENCE !!!
Put your message in your own words or go with this suggestion "Please tell Governor Cuomo to support renewable energy by signing S-2905, the geothermal tax credit and S-4279, the geothermal sales tax exemption. Geothermal heating and cooling will cut greenhouse gas emissions, create jobs, lower utility bills and cut peak demand".

Bill Nowak
716-882-9237
Executive Director
NY-GEO

 

Anyone know the outcome of this?

 

Vetoed.

https://www.nysenate.gov/legislation/bills/2015/s2905

Not sure that this means it's dead, though.

From:

https://www.nysenate.gov/how-bill-becomes-law-1

"Vetoed bills are returned to the house that first passed them, together with a statement of the reason for their disapproval. A vetoed bill can become law if two-thirds of the members of each house vote to override the Governor's veto."

 

Its been a while since the last post. Are there any updates from the folks who are in the appeals process. I am wondering if any of the cases, that went in front of a judge, have a ruling yet? Doc, I thought you mentioned having a case where the ruling was expected in January. Any update? I have a conciliation meeting early next month, it would sure be nice to show them a judges order.

On a side note, I have noticed the reason for denial changing. First denial letter reason was because geothermal did not utilize solar energy. Second letter stated that ground source heat pumps did not DIRECTLY utilize solar energy. Please let me know if there are any updates. Thanks

 

As to vetoed bills, NYGEO.ORG reported the governor's veto explanation was that the bills properly belong in a Budget Bill and that legislators are working on reintroducing the bills in this year's Budget Bill.

I am also waiting to hear from Doc about his case. I filed a petition late last fall with the Tax Court of Appeals when it became clear that the Counsel's Office of the Tax Department was firm in its directives to everyone throughout the agency to not allow the credit. We also kept receiving varying reasons for denial. I finally received a phone call from the attorney in the Counsel's Office who will represent the State in our appeal. He conceded the earth science that the solar radiation heats the earth and is considering stipulating that GSHP systems use solar radiation. I am waiting to hear on that point. However, he stressed that the State's argument lies with the second sentence of the statute: "Such arrangement or components shall not include equipment connected to solar energy system equipment that is a component of part or parts of a non-solar energy system or which uses any sort of recreational facility or equipment as a storage medium." I believe they are mis-reading this to say that because the GSHP systems use pumps and electricity, that they are excluded from the credit. We will argue for a plain and proper English language reading of the statute. The exclusion in the second sentence was intended for domestic hot water tanks or swimming pools connected to the solar components, nothing more. Check out the legislative history of the tax credit.

 

Would you possibly be able to point me towards that history?

 

http://digitalcollections.archives.nysed.gov/index.php/Detail/Object/Show/object_id/25831

The above link is to the Governor's Bill Jacket for the Laws of New York 2005, Chapter 378 which amended the solar tax credit. Before the Governor signs a bill, his office collects opinions from his executive agencies on the bill. These along with the legislative memos which accompany the bill form the only insight into the meaning of the statute at the time it was passed.

 

Thank you very much.

 

Waiting for the ruling. Last brief was due Jan 6th, it is with the judge now. Should be any day.

 

Thanks for the updates.

 

Any news on the ruling?
I have a conciliation hearing scheduled on 2/11/16. They already want to deny it/" don't bother coming you don't have a case."

 

Again, waiting for it every day. I'll post here as soon as I hear the verdict.

The conciliation hearing is indeed is a waste of time. The mediator also works for the IRS, and he will be told by his superiors that he shall turn this case away. One of them told me point blank in the face: "I absolutely agree with you, but I will be told to disagree."

However, it is an important step in the appeal process, and I don't think you can skip it in order to go in front of a Judge.

Where is your meeting on 2/11?

 

The hearing is in Buffalo.

 

Any help would be greatly appreciated.

 

Did you have a conciliation hearing? or did you just go to Tax Court?

 

Be happy to come along as your expert witness. I am interested in the argument from the DTF. Curious if it changes. In court, they did not argue the fact anymore that this uses solar radiation.

They use 2 arguments:
1) That the statue excludes equipment which is connected to conventional equipment. The opposite is the case. The statue excludes conventional equipment which is connected to qualifying solar equipment. We clarified this to the judge. Not sure if that confusion was intentional or they simply were confused themselves.
2) That it was not the intend of the legislature that ground source heat pumps were included. That is not the case either since the legislature specifically broadened the definition of qualifying solar equipment in 2005 to allow other than solar PV to qualify, and specifically mentions heating, water heating and cooling equipment.

Thats it. That was their argument. There was not merit. Kind of weird.

 

Sounds like the same story I'm getting. I have a conciliation meeting 2/2/16 in buffalo. The tax tech assigned to my case sent me a letter a week or two ago trying to intimidate me into canceling my meeting.
Here is her reasoning direct from the letter.

"A heat pump system is considered a nonsolar energy system as it does not derive it's energy directly from the sun, but from within the earth. The earth, in your argument, could loosely be considered storage medium; even in that case, according to the definition above(definition from IT-255-I), the credit would not apply.
Further attesting to the fact that a geothermal system is not considered a solar energy system, and not eligible for the credit, are the many bills before the legislature requesting the creation of credits pertaining to these systems."

According to this, if you had a PV system connected to batteries, it would disqualify the system from the credit due to the storage ability.

 

The DTF made the argument before with direct versus indirect, but they did not use it in court, since the statue is absolutely silent on direct versus indirect. Essentially they apply a limitation to the law which the law itself does not apply. In other words, they are not following the direct language of the law.

The starting point of statutory interpretation is, of course, plain meaning.” People v. Owusu, 93 N.Y.2d 398, 401 (1999). The Division ignores the plain meaning of the statute in its effort to deny the credit to a system that satisfies the requirements established by the plain language of the statute. Further, “In construing statutes, we must first examine the statutory language. . . if the words chosen have a ‘definite meaning, which involves no absurdity or contradiction, [then] there is no room for construction and courts have no right to add to or take away from that meaning’” Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 (1998) quoting Tompkins v Hunter, 149 NY 117 (1896). In this case, the statutory language does not suffer from any absurdity or contradiction – the plain language of the statute applies unambiguously to technology utilized by the petitioner, and the Division has no right to add or take away from the plain meaning of the statute, which is clearly articulated on its face.

The second point is that the current effort of the legislature to separate out an additional tax credit for GSHPs, independently of the solar tax credit, so homeowners get two tax credits when they put in a solar PV and GSHP system, has nothing to do with the legibility under the current tax law.
The law is the law, there is nothing to interpret.

Again, my offer stands for anyone in the Buffalo area to come along to the arbitration meeting. PM me.

 

Im in the buffalo area and I installed a GSHP this year in May. I'm about to do my taxes, but I'm not sure if I should include it in the solar section of NY. Im a little afraid to get into the battle that you guys are in. Can the tax credit be deferred to another year? Would it be better to wait to apply for the tax credit if and when the legislature separates it from photovoltaic?