By Mike Kerman and Eric Coffill

On remand from the Oregon Supreme Court, the Oregon Tax Court ruled that receipts from sales of electricity to California purchasers cannot be sourced to Oregon. The Oregon Supreme Court had ruled in Powerex Corp. v. Dept. of Rev., 357 OR. 40 (2015) that sales of electricity are sales of tangible personal property under UDITPA and directed the Tax Court on remand to decide whether the transmission systems that carried the electricity were the functional equivalent of common carriers and, if so, the ultimate destination of those sales. On the first question, the Tax Court ruled that the transmission systems were either common carriers or a function equivalent to common carriers. On the second question, the Tax Court ruled that the receipts from the taxpayer’s sales of electricity cannot be sourced to the point of contractual delivery, i.e., the “hub” where the taxpayer contractually agreed to deliver electricity and the point where title passed before the electricity reached its final destination. Rather, the hub is a trading or contractual notion that allows contracting parties to allocate risk of loss and responsibility for transporting electricity to its final destination. The Tax Court ruled that the only sales includible in the Oregon sales factor numerator were those which both parties agreed were sales to purchasers in Oregon. The vast majority of the sales were to the California Department of Water Resources. Powerex Corp. v. Department of Revenue, No. TC 4800.