Exhibit D(1)
TAX ALLOCATION AGREEMENT
BETWEEN
ENRON CORP. AND PORTLAND GENERAL ELECTRIC COMPANY AND ITS
SUBSIDIARIES
TABLE OF CONTENTS
PREAMBLE .....................................................................1
ARTICLE I .....................................................................2
DEFINITIONS ..........................................................2
ARTICLE II ....................................................................4
FILING OF CONSOLIDATE RETURNS ........................................4
2.1 Consent to File ..........................................4
2.2 Cooperation ..............................................5
ARTICLE III ...................................................................5
ALLOCATIONS OF TAX LIABILITIES .......................................6
3.1 Allocation of Consolidated Tax Liability for Earnings
and Profits Purposes .....................................6
3.2 Allocation of Consolidated Tax Liability and Compensation
For Tax Differences ......................................6
ARTICLE IV.....................................................................7
PAYMENTS; CARRYBACKS/CARRYFORWARDS ...................................7
4.1 Intercompany Settlements .......................7
4.2 Carrybacks and Carryovers of Losses and Credits ..........8
ARTICLE V......................................................................8
ADJUSTMENTS TO CONSOLIDATED TAX LIABILITY ............................8
5.1 Recomputations ...........................................8
5.2 Member's Liability........................................8
5.3 Enron Liability ..........................................8
5.4 Interest and Penalties ...................................9
ARTICLE VI ....................................................................9
MISCELLANEOUS.........................................................9
6.1 Term of this Agreement ...................................9
6.2 Assignability ............................................9
6.3 Effect of Changes to the Code ............................9
6.4 Disqualification of a Member .............................9
6.5 Other Taxes; Unitary Taxes ..............................10
6.6 Record Retention ........................................10
6.7 Binding Effect ..........................................10
6.8 Governing Law ...........................................10
SIGNATURES....................................................................11
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TAX ALLOCATION AGREEMENT
BETWEEN
ENRON CORP. AND PORTLAND GENERAL ELECTRIC COMPANY
THIS TAX ALLOCATION AGREEMENT ("Agreement") is made and entered into
effective as set forth in Section 6.1, between Enron Corp., ("Enron"), Portland
General Electric Company, ("PGE"), Portland General Transport Corp. ("PGT"), 000
X. X. Xxxxxx Xx. Corp. ("SWS"), World Trade Center Northwest Corp. ("WTC"),
Salmon Springs Hospitality Group, Inc. ("SSH"), Efficiency Services Group, Inc.
("ESG") and Portland General Resource Development, Inc. ("PGRD"). Enron, PGE,
PGT, SWS, WTC, SSH, ESG and PGRD may be collectively referred to hereinafter as
the "Parties" and individually as a "Party".
PREAMBLE
WHEREAS, one hundred percent (100%) of the outstanding common stock of PGE
is owned by Enron; and
WHEREAS, one hundred percent (100%) of the outstanding common stock of PGT,
SWS, SSH, ESG AND PGRD is owned by PGE; and
WHEREAS, one hundred percent (100%) of the outstanding common stock of WTC
is owned by SWS; and
WHEREAS, as of the effective date of this Agreement, Enron is the "common
parent" corporation of an "affiliated group" of corporations (as such terms are
used in ss. 1504(a) of the Internal Revenue Code of 1986, as
amended--hereinafter "Code"), and such affiliated group includes PGE, PGT, SWS,
WTC, SSH, ESG and PGRD; and
WHEREAS, Enron and PGE recognize the importance under the "normalization"
provisions of Code s. 168(i)(9) for federal tax purposes and those comparable
provisions for state and local tax purposes to have the tax consequences of each
of their respective operations accounted for as if each Party filed federal
income tax returns on a "stand-alone" basis; and
WHEREAS, so long as it continues to be permissible under the federal income
tax laws and the applicable state and local tax laws to file consolidated income
tax returns, the Parties to this Agreement believe that it will be in their best
interests to file (and continue to file) such consolidated income tax returns;
and
WHEREAS, the Parties have always accounted for their respective operations
as if each Party filed income tax returns on a "stand-alone" basis, and continue
to believe that the apportionment and allocation of federal income and other tax
liabilities among and between the Parties to this Agreement are also deemed
desirable; and
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WHEREAS, the Parties to this Agreement wish to confirm in writing their
understanding as to certain matters and procedures pertaining to their federal
income tax, Other Taxes, and Unitary Tax as previously followed and accounted
for; and
WHEREAS, under custom and practice of the Consolidated Group the
definitional and operational provisions of this Agreement are applicable to all
of those entities (i.e., "Member") included in the Consolidated Group, the
purpose of this Agreement is to more particularly articulate in writing such
provisions as they may apply to PGE, PGT, SWS, WTC, SSH, ESG and PGRD as Members
of the Consolidated Group vis-a-vis their relationship to Enron.
NOW, THEREFORE, the Parties to this Agreement for good and valuable
consideration, agree as follows:
ARTICLE I
DEFINITIONS
In addition to any defined terms which may have their meanings ascribed to
them elsewhere in this Agreement, the following defined terms shall have the
following meanings:
"Agreement" means this Tax Allocation Agreement.
"Code" means Internal Revenue Code of 1986, as amended, or
corresponding provisions of any subsequent federal tax laws. Reference to the
Code also includes any applicable and corresponding provisions of the Treasury
Regulations.
"Consolidated Alternative Minimum Tax Liability" means, for any tax
year, the amount of the Consolidated Group's consolidated alternative minimum
tax liability computed in accordance with Code Sections 55, 1502, and 1503, and
shown on a Consolidated Return.
"Consolidated Group" means the "affiliated group" of corporations of
which Enron is the "common parent corporation" and PGE, PGT, SWS, WTC, SSH, ESG
and PGRD are "includible corporations," as such terms are defined in Code
Section 1504(a)(1).
"Consolidated Minimum Tax Credit" means, for any tax year, the amount
of the Consolidated Group's consolidate minimum tax credit computed in
accordance with Code Sections 53, 1502, and 1503, and shown on a Consolidated
Return.
"Consolidate Return(s)" ("CR") means the consolidated federal income
tax return of the Consolidate Group for each taxable year as filed or to be
filed by Enron on behalf of the Consolidated Group, including PGE, PGT, SWS,
WTC, SSH, ESG and PGRD.
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"Consolidated Tax Liability" means, except as provided below, for any
tax year, the consolidated federal income tax liability computed in accordance
with Section 1.1502-2 of the Treasury Regulations and shown on a Consolidate
Return, taking into account all credits to which the Consolidate Group is
entitled under the Code (including foreign tax credits), but not taking into
account any Consolidated Alternative Minimum Tax Liability or any Consolidate
Minimum Tax Credit.
"Credit Member' means a Member whose losses and/or credits have
resulted in a Tax Difference for one or more Members.
"CR Tax" means, for any tax year, the amount of Consolidated Tax
Liability allocated to a Member pursuant to Article III, Section 3.2 of this
Agreement.
"Future Subsidiary" and "Future Subsidiaries" mean a Subsidiary or
those Subsidiaries, respectively, which are not currently a party to this
Agreement in the capacity as a Present Subsidiary or Present Subsidiaries.
"IRS" means the Internal Revenue Service.
"Member" means Enron, a Present Subsidiary, or Future Subsidiary.
"Members" means Enron, the Present Subsidiary, and any Future Subsidiaries.
Unless otherwise noted, particular reference to a "Member" in this Agreement
shall refer to a Present Subsidiary.
"Other Taxes" means any taxes (including any penalties and interest)
or other than federal income taxes and the federal environmental tax under Code
Section 59A, and Unitary Tax. Other Taxes shall include, but shall not be
limited to, state and local income taxes, franchise taxes, severance taxes,
gross receipts taxes, ad valorem taxes, foreign income taxes, transfer taxes,
and excise taxes.
"Present Subsidiary" means any Subsidiary which is a party to this
Agreement. At the date of original execution of this Agreement, the Present
Subsidiaries (for purposes of this Agreement) are PGE, PGT, SWS, WTC, SSH, ESG
and PGRD.
"Subsidiary" means any subsidiary of Enron and/or PGE (as a Present
Subsidiary), i.e., any corporation which would be an includible member of an
affiliated group of which Enron would be the ultimate common parent corporation
within the meaning of Code Section 1504(a)(1)) in the individual sense. A
Subsidiary includes both a Present Subsidiary and any Future Subsidiary.
"Subsidiaries" shall mean any such subsidiaries of Enron and/or PGE, in the
collective sense.
"SR Tax" means, with respect to any tax year, the "separate return"
tax liability of a Member as determined pursuant to Section 1.1552-1(a)(2)(ii)
of the Treasury Regulations, except that such determination shall not take into
account (i) any net operating losses or tax credits which are not utilized in
the computation of
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Consolidated Tax Liability and (ii) any alternative minimum tax liability or
(iii) any Consolidated Minimum Tax Credit.
"Tax Difference" means, with respect to a Member for any tax year, the
excess of SR Tax over such Member's CR Tax, if any.
"Tax Difference Member" means, with respect to any tax year, a Member
who has a Tax Difference.
"Treasury Regulations" mean the federal income tax regulations issued
as the official Treasury Department's interpretation of the Internal Revenue
Code. The term shall include proposed regulations, temporary regulations, and
final regulations.
"Unitary Taxes" means state income tax reported on a Unitary Tax
Return.
"Unitary Tax Return" means a state income tax return which reflects
combined reporting (on either a domestic or worldwide basis) of the Members' net
income on an apportioned basis.
ARTICLE II
FILING OF CONSOLIDATED RETURNS
2.1 Consent to File.
(a) Enron and the Present Subsidiaries hereby consent, and agree to
cause any Future Subsidiary to consent, to the extent necessary, to the filing
of Consolidate Returns, including the tax year ended December 31, 2002, and for
each year thereafter in which Enron and the Present Subsidiaries or Future
Subsidiary are eligible to file Consolidate Returns, until such time as Enron,
in the exercise of its sole discretion, elects to refrain from filing
Consolidated Returns. Such agreement reflects prior practice of Enron and the
Present Subsidiaries and their intention to continue such practice absent an
amendment to or termination of this Agreement.
(b) Enron and the Present Subsidiaries agree to furnish and cause each
Future Subsidiary to furnish, all information and to execute all elections or
other documents which may be necessary or appropriate to evidence such consent
and to prepare and file such Consolidated Returns and such applications for
extension of time to file such Consolidated Returns as Enron may from time to
time request.
(c) Enron and the Present Subsidiaries agree, and shall cause each
Future Subsidiary to agree, that Enron shall be authorized to and shall
undertake those actions which are within the scope of Enron's "agency" (within
the meaning of and pursuant to Section 1.1502-77(a) of the Treasury Regulations)
in connections with a Consolidated Return, including, without limitation:
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(i) taking any and all action necessary or incidental to the
preparation and filing of a Consolidated Return;
(ii) making elections and adopting accounting methods;
(iii) filing all extensions of time, including extensions of time
for payment of tax under Section 6161 and other sections of the Code;
(iv) filing claims for refund or credit;
(v) giving waivers or bonds;
(iv) executing closing agreements, settlement agreements, offers
in compromise, and all other documents;
(vii) obtaining private letter rulings or technical advice
memoranda; and
(viii) contesting (both administratively and judicially (the
proposal of adjustments to tax liability and the assessment of any deficiency.
It is intended that the Present Subsidiaries shall not have any authority to act
for or to represent themselves in any such matter to which this paragraph
relates; however, to the extent any such matter described in this Section 2.1
relates to a Present Subsidiary or to a Future Subsidiary, Enron agrees to
timely apprise PGE's management and tax personnel regarding such matter.
Furthermore, Enron agrees that in those situations when it is exercising its
agency to settle proposed adjustments to the federal income tax liability of the
Consolidate Group, it will, with regard to any tax issue which could impact the
Subsidiaries, timely apprise such Subsidiaries' management and tax personnel of
the plans for settling such issue.
2.2 Cooperation
(a) Enron and PGE agree to cooperate, and Enron and PGE agree to cause
each Present and Future Subsidiary to cooperate, with Enron in filing any return
or consent or taking any other action contemplated by this Agreement and agrees
to take such action as Enron may request in connection therewith. Enron and PGE
agree that Enron shall bear its own costs in meeting its obligation to prepare
and file consolidated Returns pursuant to this Article 2 of the Agreement.
(b) The authorization and obligations set forth herein under Article
II shall survive the termination of this Agreement with respect to any tax year
(or portion thereof) ending on or prior to termination of this Agreement.
ARTICLE III
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ALLOCATIONS OF TAX LIABILITIES
3.1 Allocation of Consolidated Tax Liability for Earnings and Profits
Purposes. With respect to the determination of earnings and profits for federal
income tax purposes (as described under Treasury Regulation Section
1.1502.33(d)), the Present Subsidiaries shall have allocated to them that
portion of the Consolidated Tax Liability determined in accordance with the
method set forth in Code Section 1552(a)(1) and Treasury Regulation Section
1.1552-1(a)(1), all as required under Treasury Regulation Section
1.1552-1(c)(1).
3.2 Allocation of Consolidated Tax Liability and Compensation for Tax
Differences.
(a) The Parties shall allocate the Consolidated Tax Liability for each
taxable period among the Members and compensate a Member for the use of its net
operating losses and/or tax credits in arriving at the Consolidated Tax
Liability pursuant to the following steps:
(i) Step One: Except as provided herein, the Consolidate Tax
Liability shall be allocated to each Present Subsidiary in accordance with
Treasury Regulation Section 1.1552-1(a)(1) (i.e., Consolidated Tax Liability
allocated on the basis of "separate return" taxable income to total consolidated
income) and the amount allocated to a Present Subsidiary shall be its CR Tax.
Each Present Subsidiary shall be liable for and pay to Enron, pursuant to the
provisions of Article IV of this Agreement, the amount of its CR Tax.
(ii) Step Two: The Tax Difference, if any, shall be calculated
with respect to each Present Subsidiary and if a Present Subsidiary is a Tax
Difference Member it shall be liable for and pay to Enron, pursuant to the
provisions of Article IV of this Agreement the amount of its Tax Difference.
(iii) Step Three: Enron shall be liable for and pay to each
Present Subsidiary, if it is a Credit member, the portion of the total Tax
Difference attributable to it as a Credit Member, determined in accordance with
the "percentage method" requirements of Treasury Regulation Section
1.1502.33(d)(3). Such payments will be equal to: (y) in the case of net
operating losses, the product of (1) the amount of net operating losses of such
Credit Member claimed as deductions in computing the Consolidated Tax Liability
used in the calculation of the Tax Difference times (2) the statutory tax rate
applicable to the Consolidate Return filed for the tax period in which the net
operating losses are claimed as deductions; and (z) in the case of tax credits,
one hundred percent (100%) of the tax credits of such Credit Member utilized in
the determination of Consolidated Tax Liability, reduced by the amount by which
the SR Tax of the Credit Member, computed without regard to such credits,
exceeds the CR tax of the Credit Member.
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(b) The following rules shall apply in carrying out the steps of
Section 3.2(a) of this Agreement:
(i) In determining the "net operating loss' of a Present
Subsidiary if a Credit Member, the principles of Revenue Ruling 66-374, 1966-2
C.B. 427, shall be utilized;
(ii) In no event shall a Tax Difference payment be made to a
Present Subsidiary, if a Credit member, unless the net operating loss and/or tax
credit to which such payment relates resulted in a reduction in the Consolidated
Tax Liability; and
(iii) In calculating the amount of Tax Difference resulting from
a carryback or carryover of net operating losses, adjustment shall be made to
the SR Tax for such prior year or subsequent year as required under Code
Sections 172(b)(2) and 172(d). For purposes of this calculation, the election
under Section 172(b)(3) of the Code shall be in the sole discretion of Enron.
(c) The liability of a present Subsidiary to Enron for the amount of
its CR Tax and Tax Difference, if any, shall be represented on the books of the
Present Subsidiary and Enron as an account payable and account receivable,
respectively. The liability of Enron to a Present Subsidiary, if a Credit
Member, for the portion of total Tax Difference attributable to it shall be
represented on the books of Enron and the Present Subsidiary as an account
payable and account receivable, respectively, as provided for under Article IV.
ARTICLE IV
PAYMENTS; CARRYBACKS/CARRYFORWARDS
4.1 Intercompany Settlements.
(a) The intercompany accounts established for each Present Subsidiary
shall be adjusted as of the "accounting close" following the end of each month
so as to reflect each Present Subsidiary's obligations and entitlements under
Section 3, 4 and 5. If a Present Subsidiary has a liability to Enron for a
month, the intercompany accounts shall be settled in cash by the earlier of (i)
15 days after each calendar quarter-end or (ii) immediately prior to a Present
Subsidiary ceasing to be a member of the Consolidated Group. If Enron has a
liability to a Present Subsidiary for a month, Enron shall settle its obligation
in cash immediately upon determination of such liability.
(b) On or before the ninetieth (90th) day after the date of the filing
of a Consolidate Return for a tax period, each Present Subsidiary's intercompany
payable account vis-a-vis Enron shall be increased for the tax period (or any
relevant portion thereof) so as to reflect any additional Tax Difference
attributable to such Present Subsidiary that has not previously been recorded in
the intercompany accounts.
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(c) On or before the ninetieth (90th) day after the date of the filing
of a Consolidated Return for a tax period, each Present Subsidiary's
intercompany receivable account vis-a-vis Enron shall be increased for the tax
period (or any relevant portion thereof) so as to reflect any additional Tax
Difference attributable to such Present Subsidiary (as a Credit Member) that has
not previously been recorded in the intercompany accounts.
4.2 Carrybacks and Carryovers of Losses and Credits. If part or all of any
unused consolidated net operating loss or tax credit is allocated to a present
Subsidiary pursuant to Section 1.1502-79 of the Treasury Regulations, and it is
carried back or forward to a year in which the Present Subsidiary filed a
separate income tax return or was included in a consolidated federal income tax
return with another affiliated group, any refund or reduction in federal income
tax liability arising from the carryback or carryover shall be retained (or, if
appropriate, credited to such Present Subsidiary if a refund is received by
another Member) by such Present Subsidiary.
ARTICLE V
ADJUSTMENTS TO CONSOLIDATED TAX LIABILITY
5.1 Recomputations: If a Consolidate Tax Liability is adjusted for any
taxable period, whether such adjustment is by means of an amended return, claim
for refund, or examination by the IRS, the calculations made under Article IV of
this Agreement shall be recomputed by giving effect to such adjustments. In all
cases the recomputations required by the preceding sentence shall be performed
consistently with the definition of "Consolidated Tax Liability", which requires
that consolidated federal income tax liability be computed in accordance with
Section 1.1502-2 of the Treasury Regulations, which generally requires (i) that
taxable income of the Consolidated Group be determined, (ii) that tax liability
for the Consolidated Group be determined based on such consolidated taxable
income, and (iii) that credit then be applied against the tax on the
consolidated taxable income.
5.2 Member's Liability. If, following such recomputation, a Present
Subsidiary is liable to Enron for additional CR Tax or Tax Difference, the
Present Subsidiary's intercompany payable account shall be increased so as to
reflect such additional amount within ninety (90) days after the earlier of
either of the following events which relate to such recomputation: (i) Enron
files an amended Consolidated Return; or (ii) Enron settles an examination with
the IRS.
5.3 Enron Liability: If, following such recomputation, Enron is liable to a
Present Subsidiary, as a Credit Member, for an increase in the portion of the
total Tax Difference attributable to such Present Subsidiary, the Present
Subsidiary's intercompany receivable account shall be credited by Enron so as to
reflect such benefit. Such adjustment shall be made at the following times: if
Enron is in a net refund position with respect to such recomputation, the
adjustment shall be made under this Section 5.3 within
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ninety (90) days of receipt of the refund; otherwise, within ninety (90) days
after Enron makes payment to the IRS with respect to such recomputation.
5.4 Interest and Penalties: Any interest and/or penalty not specifically
allocated to a Present Subsidiary by the IRS may be allocated to a present
Subsidiary upon such basis as Enron deems just and proper after consulting with
PGE's management and tax personnel and in view of all applicable circumstances.
ARTICLE VI
MISCELLANEOUS
6.1 Terms of this Agreement
(a) This agreement is effective for all "open years" under Code
Section 6501 and the applicable state and local provisions for purposes of
federal income taxes, Unitary Taxes of the Members, and Other Taxes, including
the tax year ended December 31, 2002. As such, this Agreement shall apply to all
taxable years or portions thereof (including those prior to the date of this
Agreement) for which a Consolidated Return or Unitary Tax Return was or is filed
with respect to a Present Subsidiary that were included as part of such
Return(s), unless Enron and the Present Subsidiary agree in writing to another
arrangement or otherwise agree to terminate this Agreement. Notwithstanding such
termination, this Agreement shall continue in effect with respect to any payment
or refund due for all taxable periods prior to termination. Nothing herein shall
be construed to prevent Enron from terminating its election to file a
Consolidated Return.
(b) Enron and PGE agree to cause and permit each Future Subsidiary to
join in, and become parties to, this Agreement having rights and obligations
comparable to the rights and obligations of Present Subsidiaries.
6.2 Assignability. The rights and obligations under this Agreement of the
parties to this Agreement may not be assigned by a Party without the prior
written and unanimous consent of the other Parties to this Agreement.
6.3 Effect of Changes to the Code. Any alteration, modification, addition,
deletion, or other change in the federal income tax laws or regulations relating
to consolidated federal income tax returns shall automatically be applicable to
this Agreement, provided, however, that if all the Parties to this Agreement
unanimously agree, this Agreement shall be amended or terminated in the event of
any such alteration, modification, addition, deletion or other change.
6.4 Disqualification of a Member. Failure of a Present Subsidiary to
continue to qualify as a Member shall not operate to terminate this Agreement
with respect to the other Members as long as Enron and one other Member continue
to so qualify.
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6.5 Other Taxes; Unitary Taxes. To the extent a Present Subsidiary is
permitted or required to file consolidate or combined returns (including Unitary
Tax Returns) with one or more related parties that may or may not be
Subsidiaries, such Other Taxes and Unitary Taxes shall be allocated among the
Members in accordance with the principles and provisions of this Agreement
including, without limitation, the principles and provisions in respect of
payments and adjustments.
6.6 Record Retention. Enron and PGE shall make available, and Enron and/or
PGE shall cause the Present and Future Subsidiaries to make available, to Enron
all materials (including, without limitation, returns, supporting schedules,
work papers, correspondence, and other documents) relating to the Consolidate
Returns filed for the taxable years during which this Agreement was effect
during regular business hours for a period that is not less than the applicable
Federal record retention requirement period.
6.7 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Parties hereto; but no
assignment shall relieve any party's obligations hereunder without the written
consent of the other parties. In the event PGE leaves the Consolidate Group, it
shall be bound, nevertheless, by this Agreement with respect to any matter which
involves a taxable year (or portion thereof) during which it was included in a
Consolidated Return.
6.8 Governing Law. This Agreement shall be governed by the laws of the
State of Oregon.
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IN WITNESS THEREOF, the Parties hereto have caused their names to be
subscribed and executed by their respective authorized officers as indicated.
ENRON CORP.
By:/s/ Jordan X. Xxxxx
---------------------------------------------
Name: Jordan X. Xxxxx
Title: Managing Director and General Tax Counsel
PORTLAND GENERAL ELECTRIC COMPANY
[illegible] By:/s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: CEO/President
PORTLAND GENERAL TRANSPORT CORP.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
000 X.X. XXXXXX XX. CORP.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
WORLD TRADE CENTER NORTHWEST CORP.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
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SALMON SPRINGS HOSPITALITY GROUP INC.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
EFFICIENCY SERVICES GROUP, INC.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
PORTLAND GENERAL RESOURCE DEVELOPMENT, INC.
[illegible] By:/s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Sr. Vice President
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