Photo by Sam Howzit / Creative Commons

COLUMBUS -- “'In most cases, and in this case, the question turns on the third criteria: Who benefits from the assessment?' said retired tax attorney M. Susan Murnane, who is not involved in the case. 'If the general public is the primary beneficiary, then the assessment is likely a tax. If a small number of nuclear energy providers are the primary beneficiaries, then the assessment is likely a fee.' Ultimately, the issue is 'a question of fact for the court,' she added.

FirstEnergy Solutions’ brief also notes that the U.S. Supreme Court found that penalties under the Affordable Care Act were a tax. However, there are differences.

'The HB 6 assessment applies to all utility users, whereas the individual mandate only applied if a taxpayer failed to purchase health insurance,' said retired government tax attorney Dennis Driscoll, who also is not involved in the case. 'Another difference is that the benefit of the HB 6 assessment will primarily go to a few utility companies.' In contrast, 'the ACA assessment was used to fund the medical insurance subsidies for the general public.'

Trish Demeter, chief of staff for the Ohio Environmental Council, said the subsidies will clearly and overwhelmingly benefit one company and its shareholders. 'They have $150 million per year for at least six years at stake. This is an estimated total going to FirstEnergy Solutions or a successive owner of Ohio’s nuclear plants of $900 million.'"

-- Kathiann M. Kowalski, Energy News Network

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