Legislature(2007 - 2008)BUTROVICH 205

10/29/2007 09:30 AM Senate JUDICIARY


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Audio Topic
09:38:48 AM Start
09:39:08 AM SB2001
05:06:38 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
+ SB2001 OIL & GAS TAX AMENDMENTS TELECONFERENCED
Heard & Held
Bill Overview
Penalties/Qui Tam
Personnel Issues: Auditors
Itemization of Returns
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                        October 29, 2007                                                                                        
                           9:38 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Bill Wielechowski                                                                                                       
Senator Gene Therriault                                                                                                         
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Lesil McGuire                                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 2001                                                                                                            
"An Act  relating to  the production  tax on oil  and gas  and to                                                               
conservation  surcharges  on oil;  relating  to  the issuance  of                                                               
advisory  bulletins and  the  disclosure  of certain  information                                                               
relating to the  production tax and the  sharing between agencies                                                               
of certain information relating to  the production tax and to oil                                                               
and gas or  gas only leases; amending the State  Personnel Act to                                                               
place in  the exempt service  certain state oil and  gas auditors                                                               
and their immediate supervisors; establishing  an oil and gas tax                                                               
credit  fund and  authorizing payment  from that  fund; providing                                                               
for retroactive  application of certain statutory  and regulatory                                                               
provisions  relating to  the production  tax on  oil and  gas and                                                               
conservation  surcharges on  oil;  making conforming  amendments;                                                               
and providing for an effective date."                                                                                           
     HEARD AND HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB2001                                                                                                                  
SHORT TITLE: OIL & GAS TAX AMENDMENTS                                                                                           
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
10/18/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
10/18/07       (S)       RES, JUD, FIN                                                                                          
10/19/07       (S)       RES AT 9:00 AM BUTROVICH 205                                                                           
10/19/07       (S)       Heard & Held                                                                                           
10/19/07       (S)       MINUTE(RES)                                                                                            
10/20/07       (S)       RES AT 8:00 AM BUTROVICH 205                                                                           
10/20/07       (S)       Heard & Held                                                                                           
10/20/07       (S)       MINUTE(RES)                                                                                            
10/21/07       (S)       RES AT 1:00 PM HOUSE FINANCE 519                                                                       
10/21/07       (S)       Heard & Held                                                                                           
10/21/07       (S)       MINUTE(RES)                                                                                            
10/22/07       (S)       RES AT 11:30 AM BUTROVICH 205                                                                          
10/22/07       (S)       Heard & Held                                                                                           
10/22/07       (S)       MINUTE(RES)                                                                                            
10/23/07       (S)       RES AT 9:00 AM BUTROVICH 205                                                                           
10/23/07       (S)       Heard & Held                                                                                           
10/23/07       (S)       MINUTE(RES)                                                                                            
10/24/07       (S)       RES AT 10:00 AM BUTROVICH 205                                                                          
10/24/07       (S)       Heard & Held                                                                                           
10/24/07       (S)       MINUTE(RES)                                                                                            
10/25/07       (S)       RES AT 10:00 AM BUTROVICH 205                                                                          
10/25/07       (S)       Heard & Held                                                                                           
10/25/07       (S)       MINUTE(RES)                                                                                            
10/26/07       (S)       RES AT 1:30 PM BUTROVICH 205                                                                           
10/26/07       (S)       Heard & Held                                                                                           
10/26/07       (S)       MINUTE(RES)                                                                                            
10/27/07       (S)       RES AT 9:00 AM BUTROVICH 205                                                                           
10/27/07       (S)       Moved CSSB2001(RES) Out of Committee                                                                   
10/27/07       (S)       MINUTE(RES)                                                                                            
10/28/07       (S)       RES AT 0:00 AM BUTROVICH 205                                                                           
10/28/07       (S)       -- MEETING CANCELED --                                                                                 
10/29/07       (S)       JUD AT 9:00 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                              
MARCIA DAVIS, Deputy Commissioner                                                                                               
Department of Revenue (DOR)                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions regarding SB 2001.                                                                     
                                                                                                                                
JONATHAN IVERSEN, Director                                                                                                      
Tax Division                                                                                                                    
Department of Revenue (DOR)                                                                                                     
POSITION STATEMENT: Answered questions regarding SB 2001.                                                                     
                                                                                                                                
ROBERT MINTZ, Consulting Attorney for the Administration                                                                        
Kirkpatrick & Lockhart Preston Gates Ellis LLP (K&L Gates)                                                                      
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions regarding SB 2001.                                                                     
                                                                                                                                
KEVIN BROOKS, Deputy Commissioner                                                                                               
Department of Administration (DOA)                                                                                              
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions regarding auditor                                                                      
requests in SB 2001.                                                                                                            
                                                                                                                                
NIKKI NEAL, Director                                                                                                            
Division of Personnel and Labor Relations                                                                                       
Department of Administration                                                                                                    
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Defined classified and exempt employment.                                                                 
                                                                                                                                
JAN DEYOUNG, Attorney                                                                                                           
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions about exempt employees.                                                                
                                                                                                                                
JIM DUNCAN, Business Manager,                                                                                                   
Alaska State Employees Association--Local 52 (ASEA)                                                                             
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Supported hiring classified employees for                                                                 
oil and gas revenue auditor positions in SB 2001.                                                                               
                                                                                                                                
BRUCE LUDWIG, Business Manager                                                                                                  
Alaska Public Employees Association/AFT                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Supported using classified employees.                                                                     
                                                                                                                                
MARILYN CROCKET, Executive Director                                                                                             
Alaska Oil and Gas Association (AOGA)                                                                                           
Anchorage Alaska                                                                                                                
POSITION STATEMENT: Introduced Tom Williams.                                                                                  
                                                                                                                                
TOM WILLIAMS, Senior Royalty and Tax Council                                                                                    
BP Exploration-Alaska, Inc.                                                                                                     
Chair of the AOGA tax committee                                                                                                 
Anchorage Alaska                                                                                                                
POSITION STATEMENT: Spoke in opposition to SB 2001.                                                                           
                                                                                                                                
MICHAEL HURLEY, Director                                                                                                        
Government Relations                                                                                                            
ConocoPhillips                                                                                                                  
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Spoke in opposition to SB 2001.                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing                                                                      
Committee meeting to order at 9:38:48 AM. Present at the call to                                                              
order  were Senators  Huggins,  Therriault,  and French.  Senator                                                               
Wielechowski arrived later.                                                                                                     
                                                                                                                                
                SB2001-OIL & GAS TAX AMENDMENTS                                                                             
                                                                                                                              
9:39:08 AM                                                                                                                  
CHAIR FRENCH announced  the consideration of SB  2001. Before the                                                               
committee was  CSSB 2001(RES), labeled  25-GS0014\M. The  plan is                                                               
to get an overview and walk  through a series of legal questions.                                                               
On  Wednesday there  will be  a  discussion of  net versus  gross                                                               
taxation. Today  the committee will  begin to  discuss penalties;                                                               
the legality of penalties; information  sharing; Qui Tam (whistle                                                               
blower);  statute   of  limitations;  retroactivity   of  certain                                                               
aspects of  the bill, including  corrosion; duration  of lawsuits                                                               
and  settlements of  a net-based  system whereby  the public  has                                                               
expressed concern; and any other legal questions.                                                                               
                                                                                                                                
CHAIR  FRENCH  recognized  Senate  President  Green  and  Senator                                                               
Hoffman.                                                                                                                        
                                                                                                                                
9:41:45 AM                                                                                                                    
MARCIA DAVIS,  Deputy Commissioner, Department of  Revenue (DOR),                                                               
said  she did  a topical  analysis  of ACES  [Alaska's Clear  and                                                               
Equitable  Share]  in  the  resources  committee.  There  is  now                                                               
version "E",  which has portions  of the bill deferred  for later                                                               
consideration.                                                                                                                  
                                                                                                                                
CHAIR  FRENCH  said  a  topical   presentation  of  the  bill  as                                                               
initially presented would be best.                                                                                              
                                                                                                                                
9:43:30 AM                                                                                                                    
SENATOR THERRIAULT said he reviewed  the bill and legal memo. "It                                                               
appeared that  there were  a lot of  sections that  were deleted,                                                               
sort of  conforming because a  previous section had  dropped out.                                                               
But I wasn't sure  that I was able to track all  of those, and so                                                               
the global discussion would be good for me too."                                                                                
                                                                                                                                
MS. DAVIS said she can note  what language has remained in Senate                                                               
version "E".                                                                                                                    
                                                                                                                                
CHAIR FRENCH said time is short  and his intention is to move the                                                               
bill this  week. Public testimony  will be more limited  and will                                                               
probably occur  at the  end of  each day.  It will  be truncated,                                                               
however, so the  bill can be moved. He said  he's a firm believer                                                               
that there are two sides of each question.                                                                                      
                                                                                                                                
9:45:32 AM                                                                                                                    
MS.  DAVIS said  Robert  Mintz  is on  the  line,  and he  helped                                                               
prepare the topical overview.                                                                                                   
                                                                                                                                
9:46:11 AM                                                                                                                    
ROBERT  MINTZ, Attorney,  Kirkpatrick  &  Lockhart Preston  Gates                                                               
Ellis LLP (K&L Gates), said he  has been working with DOR and the                                                               
Department of Law (DOL) drafting  production tax legislation. The                                                               
oil and  gas production tax has  been in Alaska law  since before                                                               
statehood.  That revenue  is in  addition to  royalties on  state                                                               
lands, property tax,  and corporate income tax.  A production tax                                                               
typically applies a tax rate to  some measure of the value of oil                                                               
and  gas  that  is produced.  He  said  to  keep  in mind  it  is                                                               
exercising  the state's  taxing power  and, unlike  royalties, it                                                               
applies to production from private, federal, and state lands.                                                                   
                                                                                                                                
9:48:42 AM                                                                                                                    
MR.  MINTZ referred  to  slide  3, "Core  Provisions  of HB  3001                                                               
(enacted in  2006)". Section 011  levies the  tax on oil  and gas                                                               
based on a  percentage of value. Section 160  helps calculate the                                                               
taxable value of oil and  gas-the production tax value. "Think of                                                               
it  as  the net  value,"  he  said.  An  important part  of  that                                                               
calculation is  the deduction of  the upstream costs,  defined in                                                               
Sections  165  and 170.  Another  change  from  that law  was  to                                                               
establish new  tax credits. Unlike previous  production tax laws,                                                               
it provides for an annual tax  with an annual return, and it also                                                               
provides for monthly estimated installment payments.                                                                            
                                                                                                                                
9:50:40 AM                                                                                                                    
MR. MINTZ  said he will now  speak of the core  provisions of the                                                               
Governor's bill and  how those would change current  law. Slide 8                                                               
refers to  Section 15, which  is not in the  committee substitute                                                               
(CS).  It levies  a tax  on  the producer  that is  equal to  the                                                               
production tax value  of oil and gas multiplied by  the tax rate.                                                               
Subsection (g) gives the tax rate  two components: a base rate of                                                               
25  percent  plus   a  progressivity  tax  rate,   but  the  term                                                               
'progressivity' is  not in the  bill. That rate is  an additional                                                               
1/5 of a percentage point for  every dollar per barrel over a $30                                                               
net value. The current law  provides for a slightly steeper slope                                                               
of   1/4  of   a   percentage  for   each   dollar  per   barrel.                                                               
Progressivity  currently kicks  in  at $40  per  barrel, but  the                                                               
governor's  will  kick in  at  $30.  Currently, progressivity  is                                                               
calculated  monthly   and  it's   annual  under   the  governor's                                                               
proposal.                                                                                                                       
                                                                                                                                
9:52:57 AM                                                                                                                    
CHAIR FRENCH  clarified that version  \M is before  the committee                                                               
and  the provisions  being discussed  were in  the original  bill                                                               
submitted by the governor. He asked  how the drafters came to the                                                               
trigger value of $30 versus $40.                                                                                                
                                                                                                                                
JONATHAN IVERSEN,  Director, Tax Division, Department  of Revenue                                                               
(DOR),  said starting  the progressivity  at a  lower amount  was                                                               
made  to  capture "situations  in  which  there are-where  you're                                                               
driving  down production  tax values.  You've got  a higher  cost                                                               
that  would drive  down the  net per  barrel, so  in a  high-cost                                                               
environment, when you're  at a $30 per barrel  amount, that would                                                               
start  the  progressivity  trigger  at an  earlier  time,  so  it                                                               
captures more of that."                                                                                                         
                                                                                                                                
SENATOR THERRIAULT  said, "So  you've got a  lower trigger  … but                                                               
starting earlier than PPT [profits-based  production tax of 2006-                                                               
current law]."                                                                                                                  
                                                                                                                                
MS. DAVIS  said costs are  much higher than anticipated  when PPT                                                               
was passed.  "Previously it  was thought  because the  costs were                                                               
lower …  the value you  look at to  decide whether it's  above or                                                               
below the  trigger is the value  at point of production  and it's                                                               
the  net  value  at  the  point  of  production.  So  you  deduct                                                               
transportation  costs, you  get to  the point  of production  and                                                               
then it's net,  so you deduct the OPEX and  CAPEX," which "drives                                                               
the number  down, and then you  look at that number.  And the way                                                               
it was  written in the  … PPT; that number  was $40, and  what we                                                               
found  is because  the costs  had gone  up significantly,  it was                                                               
going to take a West Coast  price of approximately $62 before the                                                               
trigger-the   progressivity  price-would   kick   in.  That   was                                                               
approximately $10  higher than people  had anticipated  when they                                                               
originally passed  PPT." The trigger  price was moved to  $30, so                                                               
it   would  work   as   originally   intended,  "because   you're                                                               
subtracting a larger number at the point of production."                                                                        
                                                                                                                                
9:55:39 AM                                                                                                                    
SENATOR THERRIAULT  asked what  all was in  play, and  "what were                                                               
you trying to strike a balance  with on the fiscal terms." He has                                                               
heard that  part of decision of  setting the tax and  trigger was                                                               
based on the lower 10 percent gross floor.                                                                                      
                                                                                                                                
MS. DAVIS  said that was  a good description.  The administration                                                               
made a base tax  rate of 25 percent to capture  a larger share of                                                               
the revenue,  and the progressivity  trigger was changed  to kick                                                               
in  sooner. Based  on the  resulting net  present value  (npv) to                                                               
ongoing operations  and new field  developments in  that climate,                                                               
the  administration  made an  assessment  of  the npv  of  future                                                               
projects to see  if it would impact future  decisions. "We wanted                                                               
to compare  what that resulting government  take percentage would                                                               
be  and compare  that  to what  we thought  were  our peer  group                                                               
comparison-Norway,  UK, Gulf  of  Mexico, and  Alberta, and  make                                                               
sure  we hadn't  … increased  the  state's government  take to  a                                                               
point where  it made  us uncompetitive  with other  countries, in                                                               
terms of competing for investment dollars."                                                                                     
                                                                                                                                
MS.  DAVIS said  the tax,  progressivity, and  10 percent  floor-                                                               
which were directed  at legacy fields-made a need  for a slightly                                                               
lower slope of  recovery. So there is a 0.2  percent increase for                                                               
each  dollar instead  of 0.25  percent. "We  flattened the  curve                                                               
slightly in  balance to  keep the government  take number  in the                                                               
ball park; to  keep the npv of future  development projects we're                                                               
assessing  in the  range of  positive,  so it  was a  multifactor                                                               
calibration." Each factor  played some role. "Any  time you reach                                                               
in and  take, say, a  10 percent floor out  … then …  the balance                                                               
there  was, if  the  state  was going  to  secure  itself with  a                                                               
minimum stream,  it does  impact …  from an  investment decision,                                                               
they have  to evaluate  the downside  of being  in a  world where                                                               
you've  got a  minimum tax  rate  that's essentially  set like  a                                                               
gross, and it might be uneconomic  at low prices, and … companies                                                               
are  willing to  take that  risk  if there's  a more  significant                                                               
upside.  So that's  when …  we  didn't push  high if  we had  the                                                               
floor. But if the will of this body  is to not have a floor, then                                                               
the option  is now  open to then-in  countries around  the world,                                                               
when they  … return capital  quickly, even at  a low price,  in a                                                               
low-risk   environment,  the   countries   generally  feel   more                                                               
comfortable  taking a  higher share  of the  upside. So  once you                                                               
teeter it here,  you actually have the option to  teeter it up on                                                               
the upper  end." She noted that  the committee has a  blank slate                                                               
because before it is the current PPT.                                                                                           
                                                                                                                                
9:59:29 AM                                                                                                                    
CHAIR FRENCH  asked if the  progressivity of the  current version                                                               
takes into account the high cost of developing heavy oil.                                                                       
                                                                                                                                
MS. DAVIS said  the current progressivity trigger is  still a net                                                               
number; therefore,  the evaluation  takes into account  the costs                                                               
of  a given  barrel produced.  Prudhoe  oil has  high margins  of                                                               
profit  compared with  heavy Kuparuk  oil,  so the  progressivity                                                               
would be triggered at different points.                                                                                         
                                                                                                                                
CHAIR FRENCH asked  if the high costs of developing  heavy oil is                                                               
built into the base that rises before progressivity kicks in.                                                                   
                                                                                                                                
MS. DAVIS said yes.                                                                                                             
                                                                                                                                
Senator Thomas joined meeting.                                                                                                  
                                                                                                                                
SENATOR THERRIAULT  said there is  an idea that the  state should                                                               
just  get its  take  by adjusting  progressivity  instead of  the                                                               
trade off between  the progressivity percentage rate  and the tax                                                               
rate.  He asked  how that  would change  the investment  climate,                                                               
"because  whatever the  tax rate  is, that's  also the  deduction                                                               
rate   that  the   companies  get."   That  isn't   set  by   the                                                               
progressivity rate.  "So you can reach  out and grab more  with a                                                               
higher tax rate,  but that means you're going to  also offer more                                                               
in the  incentives through the  deductions. If you reach  out and                                                               
grab more through progressivity, you  don't have an offset on the                                                               
investment side."                                                                                                               
                                                                                                                                
MS. DAVIS  said that  is an interesting  aspect between  the base                                                               
rate  and  progressivity  rate.  As   the  tax  rate  is  raised,                                                               
ironically, it enhances the more  expensive new field development                                                               
because  it makes  the credits  have greater  value because  they                                                               
offset a higher tax.                                                                                                            
                                                                                                                                
CHAIR  FRENCH said  it  is  counterintuitive and  is  one of  the                                                               
aspects of the net tax that the public doesn't get.                                                                             
                                                                                                                                
10:03:00 AM                                                                                                                   
MS.  DAVIS explained  that  if  the tax  rate  is  20 percent  of                                                               
profits  and $100  is spent  and allowed  to be  deducted against                                                               
taxes, then when that $100 is  deducted against taxes, there is a                                                               
20 percent or  $20 savings. So, that capital was  really $80. The                                                               
state has invested the $20. If  the tax rate were 30 percent, the                                                               
calculation would  be a  $70/$30 split  between the  investor and                                                               
the state. "The irony is that  in terms of their spend, which may                                                               
be the  same thing, they  get a greater uplift-a  greater subsidy                                                               
of their costs, the higher the tax rate is."                                                                                    
                                                                                                                                
CHAIR FRENCH asked if it is true  with or without a credit, or is                                                               
it the credit that really makes that viable.                                                                                    
                                                                                                                                
MS.  DAVIS said  it is  true  with the  base deductions,  because                                                               
under PPT that capital spend gets  two boosts: it can be deducted                                                               
in the net  tax and it can  be a capital credit.  So, it's really                                                               
more the base  deduction. The credit comes  after "you've applied                                                               
your percentage and  now it's just straight off  the bottom line.                                                               
So it's really the deduction."                                                                                                  
                                                                                                                                
10:04:56 AM                                                                                                                   
MR.  IVERSEN said  the deduction  rate tracks  the tax  rate. The                                                               
credit rates don't necessarily track the same way. It's fixed.                                                                  
                                                                                                                                
SENATOR THERRIAULT  said a  company is going  to be  attracted to                                                               
the  investment by  getting the  deduction based  on the  capital                                                               
dollar that  was spent last  year, "so  you get it  back quickly,                                                               
and that's real important to  the companies because it's a dollar                                                               
almost immediately back  to them, versus something  well out into                                                               
the future."                                                                                                                    
                                                                                                                                
MS. DAVIS said  that is absolutely correct. As DOR  looked at the                                                               
economic variables, there's  no question that it  was the ability                                                               
for a company to receive  that immediate return or offset against                                                               
their  capital  costs  that  was   the  most  leveraging  in  the                                                               
determination  of npv  for a  project. That's  where she  learned                                                               
that  the  higher  the  tax   rate,  the  higher  npv  the  newer                                                               
developments had. It is also is impacted by the capital credits.                                                                
                                                                                                                                
SENATOR  THERRIAULT  said  that  leads him  to  believe  that  if                                                               
someone was  interested in getting  another dollar  of government                                                               
take, but  also concerned about  reinvestment, "you then  want to                                                               
be  careful of  your choice  of whether  you get  that government                                                               
take additional dollar through progressivity  or through the base                                                               
tax  rate." Doing  it through  the  base tax  rate provides  more                                                               
incentive for the companies to make the investment.                                                                             
                                                                                                                                
MS.  DAVIS  said  that  is correct  for  new  developments.  "The                                                               
countervailing side of it is when  we looked at the tax structure                                                               
from a state  perspective, and we were trying to  assess what the                                                               
revenue impacts were;  what we found is: increasing  the tax rate                                                               
is very  slow or not  significantly an increase  in state-revenue                                                               
take. In fact what was  more leveraging was the progressivity. In                                                               
an environment  that's triggering a progressivity,  that enhances                                                               
the state revenue more significantly than a tax rate change."                                                                   
                                                                                                                                
10:07:25 AM                                                                                                                   
SENATOR HUGGINS  said he used some  of the same rationale  in his                                                               
resources committee. "Because of  the balance that you described,                                                               
we removed  the floor  with the  understanding that  the balance,                                                               
now, when  you talk  about tax rate  versus progressivity,  and I                                                               
never was  able to come to  a full conclusion when  I listened to                                                               
people  presenting about  whether  tax rate  was  a big  impacter                                                               
versus other  variables. And  then right towards  the end  of the                                                               
committee process, someone  says, we'll no longer  be the highest                                                               
taxing authority in North America  because of Alberta. And then I                                                               
heard a  few hours ago that  that was not the  case--that Alberta                                                               
had, in fact, backed away from  some of the things that Pedro van                                                               
Meurs had described to us." He asked where Alberta ended up.                                                                    
                                                                                                                                
MS. DAVIS said there is an  outline of an update of where Alberta                                                               
stands. Alberta's  strategy is a  mixed bag-some things  are more                                                               
aggressive and  some are not,  but overall Alberta  increased its                                                               
government  take. She  doesn't know  where it  falls relative  to                                                               
others.                                                                                                                         
                                                                                                                                
SENATOR  HUGGINS  said progressivity  can  be  more surgical  and                                                               
flexible.                                                                                                                       
                                                                                                                                
MS.  DAVIS said  she thinks  that's accurate.  There are  ways to                                                               
select different  trigger prices for different  rates. It doesn't                                                               
have to be a single trigger price and a single slope.                                                                           
                                                                                                                                
SENATOR  HUGGINS  said  he  saw a  news  program  that  mentioned                                                               
catastrophic events like oil prices  at $140 a barrel. Looking at                                                               
that  scenario, the  progressivity has  some advantages  of being                                                               
able to self adjust.                                                                                                            
                                                                                                                                
MS. DAVIS  said a  slope can  be created to  look at  prices that                                                               
high.  The question  is whether  the trigger  is a  gross or  net                                                               
number. Gross,  as defined by the  House Oil & Gas  Committee, is                                                               
the sales  price without transportation costs.  It doesn't matter                                                               
what kind of  oil it is, it will all  pay the same progressivity.                                                               
The trigger price may become  outdated. "If we multiply the error                                                               
by adding  in yet another  progressivity for a much  higher take,                                                               
we really  get an out-of-whack system,  so we would have  to come                                                               
back in  and retune the  progressivity to match the  market." The                                                               
nice thing about a net progressivity is it is self adjusting.                                                                   
                                                                                                                                
10:12:53 AM                                                                                                                   
CHAIR FRENCH said the tax should be in place for a decade.                                                                      
                                                                                                                                
SENATOR  THERRIAULT  said  in   Alberta  the  federal  government                                                               
disallowed  the  deduction  of  the royalty,  so  part  of  their                                                               
severance tax applies  to total production, which  would skew the                                                               
data.                                                                                                                           
                                                                                                                                
MS. DAVIS agreed.                                                                                                               
                                                                                                                                
10:14:29 AM                                                                                                                   
MR. MINTZ  said there are  two exceptions  in current law  to the                                                               
tax.  One  is  a  tax  floor  for  North  Slope  production.  The                                                               
governor's  bill  would replace  a  floor  that applies  only  to                                                               
legacy fields,  which are units  that have produced  a cumulative                                                               
total of  a billion  barrels and  are producing at  a rate  of at                                                               
least 100,000 barrels a day. The  minimum tax would be 10 percent                                                               
of gross value  at the point of production.  The second exception                                                               
to the  core tax  is for  Cook Inlet. The  new bill  won't change                                                               
that. It has wording changes to make it clearer.                                                                                
                                                                                                                                
CHAIR  FRENCH  asked  where lease  expenditures  are  defined  in                                                               
Version \M.                                                                                                                     
                                                                                                                                
10:16:14 AM                                                                                                                   
MR. MINTZ  said in  Sections 19,  20, and  21 of  the CS  that is                                                               
before the  committee. Section 160  of current law is  changed by                                                               
the governor's proposal,  but the CS doesn't change  it. He spoke                                                               
of the PPT and a tax ceiling in Cook Inlet.                                                                                     
                                                                                                                                
The committee took an at-ease from 10:19:12 AM to 10:21:56 AM.                                                              
                                                                                                                                
MR. MINTZ  summarized the  changes that SB  2001 made  in Section                                                               
160 that  are not  in the  current CS. The  changes were  made to                                                               
make  explicit  some  rules  about  how  lease  expenditures  are                                                               
deducted to  implement the different  tax treatment  of different                                                               
parts of the state.                                                                                                             
                                                                                                                                
MS. DAVIS asked Mr. Mintz to define point of production.                                                                        
                                                                                                                                
MR. MINTZ said the term "wellhead  value" is often used for point                                                               
of production.  The term implies  the value  of oil and  gas just                                                               
before  it comes  out  of well,  but it  is  more complicated  in                                                               
practice because of the processing  after it comes out. Oil, gas,                                                               
and water need  to be separated. Oil is  considered produced when                                                               
fluids are separated  and it is in marketable  condition. It also                                                               
requires  accurate metering.  Typically  the gross  value at  the                                                               
point  of production  is determined  by subtracting  the cost  of                                                               
transportation from the sales price at the destination.                                                                         
                                                                                                                                
CHAIR  FRENCH noted  that the  point  of production  is the  last                                                               
place at  which costs can be  deducted against the tax.  "If it's                                                               
upstream to the  point of production, it's a  deductible cost; if                                                               
it's downstream, it is not."                                                                                                    
                                                                                                                                
MR.  MINTZ  said the  transportation  costs  after the  point  of                                                               
production  are,  and always  have  been,  deductible, but  in  a                                                               
different way. The PPT maintained  the current interpretation for                                                               
determining the  value at  the point of  production, and  then it                                                               
added a new provision for deducting the upstream costs.                                                                         
                                                                                                                                
CHAIR FRENCH  said there is a  physical place in each  field that                                                               
can be identified.                                                                                                              
                                                                                                                                
MR. MINTZ said that is generally true.                                                                                          
                                                                                                                                
CHAIR  FRENCH  said he  was  confused  previously. He  worked  at                                                               
Kuparuk, and it  has a custody transfer meter at  the last flange                                                               
as  the oil  leaves that  facility, and  then the  oil goes  in a                                                               
transportation  pipeline  to  pump  station one.  When  the  leak                                                               
developed  at Prudhoe,  "I  assumed that  was  downstream of  the                                                               
point of production  because it was downstream  of the production                                                               
facilities."  But  at  Prudhoe  Bay  the  custody  transfers  are                                                               
handled differently;  they handle it  right at pump  station one.                                                               
He asked about Alpine and Endicott.                                                                                             
                                                                                                                                
10:26:56 AM                                                                                                                   
MR. MINTZ  said he understands  that the AOGCC  requires metering                                                               
before oil  and gas leave the  unit. That would mean  there would                                                               
be a point of production before  it is taken off the unit. Within                                                               
each  unit there  are different  satellites. After  separation in                                                               
the main facility  it goes to the last meter.  Slide 15 speaks to                                                               
a provision that is in the governor's bill and the CS.                                                                          
                                                                                                                                
10:28:54 AM                                                                                                                   
SENATOR WIELECHOWSKI joined the hearing.                                                                                        
                                                                                                                                
MR. MINTZ  said Section 165 of  the law is where  the term "lease                                                               
expenditure" is described.                                                                                                      
                                                                                                                                
CHAIR FRENCH asked for the sections in the CS.                                                                                  
                                                                                                                                
MS. DAVIS said Sections 19, 20, and 21.                                                                                         
                                                                                                                                
MR.  MINTZ  said  these  provisions   are  the  same  as  in  the                                                               
governor's bill.  Most of  it was written  for more  clarity, but                                                               
one  substantive change  in  Section 19  of the  CS  is that  the                                                               
department  may,   but  is  not  required   to,  provide  further                                                               
definition by regulation. The bill  changes it to provide that in                                                               
order  to be  a  deductible  lease expenditure,  a  cost must  be                                                               
allowed  by  regulation.  It  is  to make  it  clearer  and  more                                                               
predictable in determining what costs are deductible.                                                                           
                                                                                                                                
CHAIR FRENCH asked if the regulations are written.                                                                              
                                                                                                                                
MR. MINTZ said  not on that point, but there  is a voluminous set                                                               
of regulations that  went into effect last March.  Since then the                                                               
department has been working on developing phase two.                                                                            
                                                                                                                                
10:32:06 AM                                                                                                                   
MR.  IVERSEN  said the  regulations  on  lease expenditures  were                                                               
carved  out from  PPT. He  said the  department has  been on  two                                                               
tracks, and  one is to  get the first  set of returns  in without                                                               
having honed in on these  particular expenditure leases. "We have                                                               
been grappling with those over time."                                                                                           
                                                                                                                                
MS.  DAVIS  said  the  department   was  getting  ready  for  the                                                               
regulations  to  go out  for  comment  at  the time  the  special                                                               
session  was called.  They  didn't want  to  be inefficient  with                                                               
people's  time.  The goal  is  to  have  the regulations  out  by                                                               
January.                                                                                                                        
                                                                                                                                
SENATOR HUGGINS  said, "It's  my understanding  [that] we  are in                                                               
concurrence  that affirmatively  stating the  deductions is  what                                                               
we're pursuing and that we concur with that. Is that correct?"                                                                  
                                                                                                                                
MS. DAVIS said, absolutely, "We want  to state what is in and not                                                               
simply what is out."                                                                                                            
                                                                                                                                
CHAIR FRENCH  said the PPT had  a list of 16-17  things that were                                                               
disallowed,   and   it   left  open   the   universe   of   other                                                               
possibilities. That  is reversed by  saying what a  deduction is,                                                               
and it must be affirmatively listed  or it will never qualify. In                                                               
the  bill   in  front  of   the  committee  it  will   happen  in                                                               
regulations, not statute.                                                                                                       
                                                                                                                                
MS.  DAVIS said  yes, with  the guidelines  that the  legislature                                                               
places in this bill.                                                                                                            
                                                                                                                                
10:35:00 AM                                                                                                                   
SENATOR  THERRIAULT asked  if the  infield costs  were deductible                                                               
from the gross before the tax is applied.                                                                                       
                                                                                                                                
MS. DAVIS said that is correct.                                                                                                 
                                                                                                                                
SENATOR THERRIAULT said there was  discussion about whether there                                                               
are any  fields in production  that now  have an allowance  for a                                                               
deduction on  the royalty side.  "Do we have a  similar deduction                                                               
of  infield  expenses  on  the royalty  side,  when  the  royalty                                                               
valuation is calculated?"                                                                                                       
                                                                                                                                
MR. MINTZ said  100 percent of the  qualifying lease expenditures                                                               
are  deductible. "There's  no allocation  …  between royalty  and                                                               
non-royalty  [indecipherable]."  Section  20 language  is  simply                                                               
moved around for clarity with no substantive changes.                                                                           
                                                                                                                                
MS. DAVIS  said Section 20(c)  deals with overhead, which  is now                                                               
in Section 19(2).                                                                                                               
                                                                                                                                
MR. IVERSEN said that was  changed because currently the PPT sets                                                               
forth overhead as a direct cost which typically isn't.                                                                          
                                                                                                                                
10:37:30 AM                                                                                                                   
MR. MINTZ  said Section 21  of the  CS maintains and  expands the                                                               
list  of  exclusions. Paragraph  6  of  subsection (e)  currently                                                               
includes costs arising from fraud,  willful misconduct, and gross                                                               
negligence,  and  the  administration added  costs  arising  from                                                               
violation of  law or failure to  comply with a lease,  permit, or                                                               
license obligation.  This change  came from  a suggestion  from a                                                               
member  of  the  public.  The   second  change  in  the  list  of                                                               
exclusions is in  paragraph 15, and it  deals with dismantlement,                                                               
removal, and  restoration costs.  Current law excludes  that type                                                               
of  cost  for  past  production,  but  it  allows  it  if  it  is                                                               
attributable  to future  production. "These  costs really  should                                                               
not be deductible  under … and shouldn't be considered  … cost of                                                               
production."  The  change in  that  paragraph  would exclude  all                                                               
dismantlement, removal, and restoration costs.                                                                                  
                                                                                                                                
CHAIR  FRENCH  asked  if  the  theory is  that  when  building  a                                                               
facility  the economics  of dismantling  and restoring  should be                                                               
part of the plan.                                                                                                               
                                                                                                                                
MS. DAVIS  said yes. Under the  leases the lessee is  required to                                                               
build in future  abandonment costs. In fact,  they generally make                                                               
an allowance in  their federal tax and depreciate  that cost over                                                               
time,  recovering  it  as  a  normal  incident  of  the  cost  of                                                               
business.                                                                                                                       
                                                                                                                                
CHAIR FRENCH  surmised that  the day a  lease is  awarded through                                                               
the  competitive bid  process, part  of the  lease payment  takes                                                               
into account the removal costs.                                                                                                 
                                                                                                                                
MS. DAVIS  said yes. "When  you acquire  the lease you  incur the                                                               
legal obligation  that should you  do any development …  you will                                                               
have  that incumbent  responsibility-financial responsibility-for                                                               
doing the  abandonment, and  for that reason,  when we  looked at                                                               
how  the  state's  dollars  should  be targeted  by  way  of  the                                                               
deductions  and the  credits, we  didn't feel  it appropriate  to                                                               
essentially  spend those  dollars toward  something that  a party                                                               
was already  legally required  to do  and had  built in  to their                                                               
decision."  As   lease-hold  expenditures  the  costs   are  both                                                               
deductions and capital credits.                                                                                                 
                                                                                                                                
10:40:58 AM                                                                                                                   
MR. MINTZ said  the third change to the list  of exclusions deals                                                               
with  issues from  SB 80  of 2007.  The bill  takes a  little bit                                                               
different approach  to the  same issue. [He  was told  that issue                                                               
will be  discussed tomorrow.]  The final  exclusion is  for costs                                                               
for a crude oil refinery or topping plant.                                                                                      
                                                                                                                                
CHAIR FRENCH  asked why that  is excluded,  and he noted  that he                                                               
worked at a crude oil topping plant.                                                                                            
                                                                                                                                
MS. DAVIS  said it is  not considered an  upstream cost. It  is a                                                               
midstream  refining process.  It is  oil that  is taken  from the                                                               
lease  and  is  run  through   a  processing  plant  to  yield  a                                                               
marketable  product, "and  we do  not consider  that in  the same                                                               
vein  as  what  we  consider upstream  costs-the  costs  to  take                                                               
production and deliver it to market."                                                                                           
                                                                                                                                
SENATOR  HUGGINS stated  that the  resources committee  asked the                                                               
administration  to continue  to look  at that,  because presently                                                               
the diesel  would have to  be pipelined to Anchorage  from Kenai,                                                               
railed to Fairbanks,  and trucked north. He said that  is a left-                                                               
handed way to get diesel to the  North Slope, so based on risk of                                                               
pollution  and   road  degradation,   the  committee   asked  the                                                               
administration  to make  it attractive  for the  producers to  do                                                               
this function on the North Slope.                                                                                               
                                                                                                                                
MS. DAVIS  said it is a  balance of environmental, cost,  and job                                                               
issues and  the overall  revenue to the  state. When  low sulphur                                                               
diesel is needed,  it is manufactured in  Nikiski and transported                                                               
north. Kuparuk  has lower  sulphur diesel  than Prudhoe,  but air                                                               
emissions requirements will require  lower sulphur. "So they need                                                               
to do  modifications to the  Prudhoe topping plant that  would be                                                               
upwards of $300 million."                                                                                                       
                                                                                                                                
CHAIR FRENCH asked  if the diesel produced on the  North Slope is                                                               
used to run trucks and other equipment.                                                                                         
                                                                                                                                
MS. DAVIS said it is used for a  wide variety of purposes.  It is                                                               
incumbent upon them  to make modifications, and  she believes the                                                               
producers are looking at modifying  the Kuparuk plant and not the                                                               
plant at  Prudhoe. There  also may be  a third  plant constructed                                                               
further  east  if  development  makes  it  viable.  It's  a  very                                                               
expensive  retrofit.  "Whether  the  state  should  undertake  to                                                               
subsidize  those in  some fashion  or  decide that  they want  to                                                               
subsidize them  to the tune of  20 percent plus whatever  the tax                                                               
rate is  … it needs to  balance that, which has  its benefits and                                                               
detriments to the  options, which is the haul  road repair costs,                                                               
which were  estimated by the  Department of Transportation  to be                                                               
$1.5 million  for an increase of  up to 150 truck  trips, as well                                                               
as the  fact that in Fairbanks  right now, there is  a group that                                                               
had purchased a  refinery and as a consequence  of their contract                                                               
with  the state,  the  state  sold them  royalty  oil,  and as  a                                                               
consequence of  selling the  royalty oil,  they were  required to                                                               
retrofit the plant in Fairbanks  to be low sulphur. What happened                                                               
in  lieu  of  that  is  they,  instead,  funded  the  low-sulphur                                                               
modifications to the plant in Nikiski."                                                                                         
                                                                                                                                
SENATOR HUGGINS noted that is would  be 150 trucks per day-a huge                                                               
amount.                                                                                                                         
                                                                                                                                
MS. DAVIS said that was a cost estimate.                                                                                        
                                                                                                                                
SENATOR HUGGINS said one can imagine accidents and spills.                                                                      
                                                                                                                                
MS. DAVIS  said the  estimate from ConocoPhillips,  if it  is not                                                               
allowed  to  modify its  plant  at  Kuparuk, was  an  incremental                                                               
increase of 10 trucks per day.                                                                                                  
                                                                                                                                
10:49:17 AM                                                                                                                   
MR. MINTZ said the governor's  bill and the CS repeal AS43.55.165                                                               
(c)  and (d),  and "those  provisions allowed  the department  to                                                               
substitute  cost  billings  under unit  operating  agreements  in                                                               
place   of   the   general  standards   for   determining   lease                                                               
expenditures."  Instead of  applying  the  general definition  of                                                               
lease  expenditures,  it  would  be  the  actual  costs  that  an                                                               
operator is  allowed to  bill under  a unit  operating agreement.                                                               
The  department confronted  some  serious implementation  issues,                                                               
which convinced it  that it is preferable not to  have the second                                                               
track, but  go with  a single track,  which would  be regulations                                                               
specifying allowable lease expenditures. So  that is why the bill                                                               
repeals it.                                                                                                                     
                                                                                                                                
10:51:54 AM                                                                                                                   
MR. MINTZ said  Slide 19 deals with tax credits.  The PPT enacted                                                               
a group of new tax credits, and  some are in AS 43.55.023. The CS                                                               
omits all of  the changes made by SB2001 except  one, which deals                                                               
with Transitional  Investment Expenditures (TIE).  The governor's                                                               
bill, SB2001,  made changes including  a provision to  spread out                                                               
the use  of capital credits  so that no  more than half  could be                                                               
used the first year.  SB2001 has information-sharing requirements                                                               
that explorers  would have to  agree to  in order to  get credits                                                               
for  exploration  expenditures.  Slide 20  states  the  following                                                               
change: "credits  for capital expenditures  in a unit  subject to                                                               
the tax  floor may  be applied  only against tax  on oil  and gas                                                               
production from that  or another unit subject to  the tax floor."                                                               
There are  several agency  rules that follow  from the  gross tax                                                               
floor on the legacy fields  to avoid undercutting that floor, and                                                               
this is one of those rules.                                                                                                     
                                                                                                                                
MR. MINTZ  referred to  Slide 21 that  states the  following: "no                                                               
carry-forward for unused lease expenditures  for units subject to                                                               
the  tax floor."  That is  a change  in the  carry-forward annual                                                               
loss  credit. An  explorer or  producer that  incurs a  cost that                                                               
would  be deductible,  but there  is no  production to  deduct it                                                               
against, those  costs can be turned  into a credit to  be used in                                                               
the future or  sold. The Governor's bill  conforms the percentage                                                               
of that  credit to the  tax rate: 25  percent. If a  producer can                                                               
deduct costs against the 25 percent  tax rate, it reduces the net                                                               
cost. Current  law only  allows a 20  percent credit  rate, which                                                               
introduces  a  disparity  between  producers  that  have  current                                                               
production and those  that don't have any to  apply their credits                                                               
against.                                                                                                                        
                                                                                                                                
10:54:57 AM                                                                                                                   
MS. DAVIS  said regardless  of what tax  rate comes  forward, "we                                                               
just want to council you to match that rate to this provision."                                                                 
                                                                                                                                
MR.  MINTZ said  there is  another  rule to  implement the  North                                                               
Slope  tax  floor  to  prevent  undercutting  that  floor.  Under                                                               
current law, the  person that earns the tax credit  can turn that                                                               
into a  transferable certificate.  Under the governor's  bill, an                                                               
explorer that doesn't have any  production tax liability would be                                                               
under the 50 percent rule as well.                                                                                              
                                                                                                                                
SENATOR THERRIAULT  said he  understands that  the administration                                                               
wants to spread out the application  of credit for the benefit of                                                               
the  state treasury.  "But by  delaying  the company's  recouping                                                               
that  dollar,  you   impact  the  net  present   value  of  their                                                               
investment decision, and I'm just wondering if it's worth it.                                                                   
                                                                                                                                
MS.  DAVIS said  there is  that negative  effect of  delaying the                                                               
return  of  that  value  for  the  investor.  But  this  aids  in                                                               
providing the legislature with clear  revenue flow figures to aid                                                               
in budgeting.  In a  year with  a spike in  spending, it  can hit                                                               
rigorously  and the  state will  find an  unexpected decrease  in                                                               
revenue. This would moderate the  swing leading into a high year.                                                               
It hasn't been a problem in  the recent past. Producers may spend                                                               
extraordinarily large chunks on heavy oil development.                                                                          
                                                                                                                                
10:59:20 AM                                                                                                                   
MR.  MINTZ noted  Section  14  of the  CS.  The  bill gives  more                                                               
express authority  to require electronic  tax filing in  a usable                                                               
form.                                                                                                                           
                                                                                                                                
CHAIR FRENCH asked how taxes are paid now.                                                                                      
                                                                                                                                
MR. MINTZ said  large payments must be  made electronically. This                                                               
would eliminate any  doubt. Referring to Slide  33, under current                                                               
law the  requirement to file a  tax return is triggered  by owing                                                               
tax.  But it  is  important for  the department  to  know of  tax                                                               
credits as  well as liabilities.  The bill requires  producers to                                                               
file  an annual  return whether  or not  there is  tax liability.                                                               
That is in Section 14 of the CS.                                                                                                
                                                                                                                                
11:02:52 AM                                                                                                                   
MS. DAVIS said an oil or gas  producer must file a report even it                                                               
there is no  tax due. The report will contain  the information in                                                               
14(1) through  (9), including the details  about where production                                                               
is  located, the  gross  amount  of the  oil,  the costs,  credit                                                               
claims, and more. It is a  tax return, but this was required only                                                               
when paying the tax.                                                                                                            
                                                                                                                                
11:04:33 AM                                                                                                                   
CHAIR FRENCH  said Alaska has a  net profits tax system,  so "how                                                               
can we not  be in a position of knowing  what each company makes,                                                               
given the lay of the land?"                                                                                                     
                                                                                                                                
MS. DAVIS said the state does know.                                                                                             
                                                                                                                                
MR. IVERSEN  said the returns  for calendar year 2006  were filed                                                               
in March of 2007. They aren't public documents.                                                                                 
                                                                                                                                
CHAIR FRENCH  asked if there  is any reason the  public shouldn't                                                               
know the net  profit of each company since that  is the basis for                                                               
the tax system.                                                                                                                 
                                                                                                                                
MS. DAVIS said, "We should  be able to aggregate the information,                                                               
and roll  up what a net  profit would be across  the North Slope,                                                               
for instance."                                                                                                                  
                                                                                                                                
CHAIR FRENCH said  he can go to Wall Street  and find the profits                                                               
of  a  company  globally,  so why  can't  Alaska  have  statutory                                                               
requirements to provide the information.                                                                                        
                                                                                                                                
MS. DAVIS  said, "We essentially  do." She  said to look  at page                                                               
21, Section 23  of the CS regarding the public  disclosure of tax                                                               
information. The statute authorizes  and clarifies that the state                                                               
needs  to aggregate  at  least three  taxpayers  and release  the                                                               
information  listed,  which  provides the  ability  to  calculate                                                               
profit by gross value and the deductions.                                                                                       
                                                                                                                                
CHAIR FRENCH asked why it had to be aggregated.                                                                                 
                                                                                                                                
MS. DAVIS  said the aggregation  is required because  current law                                                               
prohibits   the  state   from   disclosing  individual   taxpayer                                                               
information.   Generic  information   can   be  provided.   Three                                                               
companies  are  aggregated because  it  is  successfully done  in                                                               
fisheries taxes. It  is done so as not  to violate constitutional                                                               
issues related to privacy.                                                                                                      
                                                                                                                                
11:08:00 AM                                                                                                                   
CHAIR FRENCH asked how the rights  to privacy are overcome on the                                                               
New  York  Stock  Exchange.   Shareholders  get  thick,  detailed                                                               
financial reports from these companies.                                                                                         
                                                                                                                                
MS. DAVIS said a state law prevents revealing that information.                                                                 
                                                                                                                                
CHAIR FRENCH asked if the bill repeals that.                                                                                    
                                                                                                                                
MS.  DAVIS  said  she  thinks  it  does  "in  the  sense  that  …                                                               
basically, not  withstanding those provisions, we  can reveal the                                                               
information in  Section 890. So we  are carving out this  body of                                                               
information  saying  we're  not  going   to  have  this  type  of                                                               
information  be constrained  from  public  disclosure under  that                                                               
general statute."                                                                                                               
                                                                                                                                
11:09:02 AM                                                                                                                   
SENATOR THERRIAULT asked  if that is normal for  an oil producing                                                               
state.                                                                                                                          
                                                                                                                                
MS.  DAVIS said  there is  a sense,  globally, that  you need  to                                                               
protect  that  requirement.  Virtually all  other  countries  had                                                               
"some sense of  needing to aggregate it." Exceptions  are some of                                                               
the newer  countries that tend  to be third world  countries that                                                               
need  to meet  standards established  by the  United Nations  for                                                               
transparency.                                                                                                                   
                                                                                                                                
CHAIR FRENCH said  he is struggling with the idea  that the stock                                                               
exchange requires  revealing information  in great detail,  yet a                                                               
company  is protected  in Alaska.  If a  company gets  a profits-                                                               
based  tax,  then  the  state  should know  its  profits  and  it                                                               
shouldn't be forced  to guess through an  aggregation process. "I                                                               
should be  able to  go to  each taxpayer and  say, 'what  did you                                                               
make?'"  This is  not a  Mom  and Pop  store; it  is the  central                                                               
foundation of  the state's  fiscal regime, and  there is  a great                                                               
deal of  public interest in this.  There is a big  public push to                                                               
have more transparency.                                                                                                         
                                                                                                                                
11:11:35 AM                                                                                                                   
SENATOR HUGGINS said the administration  is working to respond to                                                               
Senator  Wielechowski's   [request  to  learn  how   much  profit                                                               
ExxonMobil made in Alaska last year].                                                                                           
                                                                                                                                
MS. DAVIS  said there is  a requirement for materiality  before a                                                               
company  has to  break out  segments of  its report,  and because                                                               
Alaska doesn't  meet the  threshold for  BP's and  Exxon's global                                                               
portfolios, Alaska can't  look at the records  that are currently                                                               
filed  under the  SEC and  ferret  out the  Alaska portions.  For                                                               
ConocoPhillips, Alaska  does meet  the materiality  criteria, and                                                               
it can look at its Alaska portion on its public filing.                                                                         
                                                                                                                                
CHAIR FRENCH said, "I thought they  did it out of the goodness of                                                               
their hearts."                                                                                                                  
                                                                                                                                
11:13:10 AM                                                                                                                   
MR.  MINTZ referred  to Slide  34, provisions  that are  aimed at                                                               
insuring  that the  department has  the information  it needs  to                                                               
properly administer the tax. Section  15 of the CS establishes an                                                               
additional  penalty  for  failure  to  supply  all  the  required                                                               
reports.  Under  current law  there  are  existing penalties  for                                                               
failure to file;  however, the amount of the penalty  is based on                                                               
the amount of  the tax deficiency. Some of the  new reports don't                                                               
have taxes.                                                                                                                     
                                                                                                                                
CHAIR FRENCH asked  if the reports referenced on page  12 are tax                                                               
reports.                                                                                                                        
                                                                                                                                
MS.  DAVIS said  yes, they  are  the annual  and monthly  reports                                                               
required of producers and  non-producers. Without this provision,                                                               
there is no mechanism for DOR to enforce the requirement.                                                                       
                                                                                                                                
MR. MINTZ said  Section 16 of the CS imposes  an annual reporting                                                               
requirement.                                                                                                                    
                                                                                                                                
11:16:03 AM                                                                                                                   
MS.  DAVIS said  there  was  also a  blank  spot  on the  state's                                                               
ability to  collect information because  an explorer  or producer                                                               
that was developing a project but  had not yet had production was                                                               
previously not required to file a return. This closes that gap.                                                                 
                                                                                                                                
CHAIR FRENCH  suggested that  a company  doing seismic  work will                                                               
still need to file a report.                                                                                                    
                                                                                                                                
MS.  DAVIS  said   yes  because  it  would   be  incurring  lease                                                               
expenditures that  will show up  later. Having the  annual report                                                               
gives  the department  an understanding  of what  is yet  to come                                                               
regarding credits and deductions.                                                                                               
                                                                                                                                
CHAIR FRENCH said that sounds like a good idea.                                                                                 
                                                                                                                                
MS.  DAVIS said  Section 17  in  the CS  gives DOR  the right  to                                                               
request forecast information. Under  existing rules the DOR could                                                               
request information as it related  to a taxpayer's tax liability.                                                               
That is  a backward  way to do  it, and the  revision makes  it a                                                               
forward-looking  feature. It  is  narrowly focused  and does  not                                                               
make   taxpayers  create   a   separate   report,  but   includes                                                               
information  already  shared  with   other  interest  owners.  In                                                               
advance  of a  year  the  owners will  sit  down  and develop  an                                                               
operating  plan  and  make a  proposal  to  the  working-interest                                                               
owners. Once they know what  the operations will be, they develop                                                               
a cost  scenario and  essentially issue  bills to  their working-                                                               
interest owners  quarterly. There may  be changes along  the way,                                                               
and  those will  get flagged  at that  accounting level,  and the                                                               
bills  will change.  "We want  the state  in the  same footing  …                                                               
pretend like  we're working-interest  owners; give  us a  copy of                                                               
all  the  correspondence."  It  will  not  be  a  burden  to  the                                                               
taxpayer,  and   the  state  can  adjust   the  revenue  forecast                                                               
accordingly.                                                                                                                    
                                                                                                                                
11:20:26 AM                                                                                                                   
CHAIR FRENCH  asked about Section  5 on page 14,  which describes                                                               
that process. But it seems to  carve out specific reports on line                                                               
28, and  it seems that the  state isn't asking for  the bills but                                                               
just for the communications between the two.                                                                                    
                                                                                                                                
MS. DAVIS said it uses  communications in the broad sense because                                                               
the  state didn't  want it  limited  to the  written record.  She                                                               
expressed concern that once the  accounting organization is aware                                                               
the state is  getting copies of everything, things  might be done                                                               
verbally.                                                                                                                       
                                                                                                                                
CHAIR  FRENCH said  it  looks like  the  required information  is                                                               
limited to just communications and not billings.                                                                                
                                                                                                                                
MS. DAVIS said  it is intended it to be  broad, and an [authority                                                               
for  expenditure] issued  by an  operator  to a  working-interest                                                               
owner  is a  communication. Bills  and solicitation  of approvals                                                               
are  too.  If  it  doesn't  read that  way,  then  it  should  be                                                               
reworded.                                                                                                                       
                                                                                                                                
CHAIR FRENCH said  he will come back to this.  He added that this                                                               
is a second type of penalty-it's not a tax report penalty.                                                                      
                                                                                                                                
11:23:59 AM                                                                                                                   
MS. DAVIS  said it attaches to  the obligation to respond  to the                                                               
department's request for reports on the forecast information.                                                                   
                                                                                                                                
MR. IVERSEN  said the  penalty is  associated with  receiving the                                                               
information; it's not related to the forecast being off.                                                                        
                                                                                                                                
MS.  DAVIS turned  to  slide  36, Section  18  of  the CS,  which                                                               
requires electronic filing  of reports in a  format prescribed by                                                               
the department.  The state  is creating a  database that  will be                                                               
populated with  the annual  and monthly  returns that  get filed.                                                               
The correct  format will  reduce errors,  time lag,  and staffing                                                               
needs.  She hopes  that it  will upload  automatically giving  an                                                               
immediate picture. Some information will be shared with DNR.                                                                    
                                                                                                                                
11:26:21 AM                                                                                                                   
CHAIR FRENCH asked what stage the database is in.                                                                               
                                                                                                                                
MS. DAVIS said there are bids on the cost.                                                                                      
                                                                                                                                
MR. IVERSEN said  a scoping contract has been done.  It is like a                                                               
needs assessment, but bids haven't been solicited.                                                                              
                                                                                                                                
CHAIR FRENCH asked how long it will take to create.                                                                             
                                                                                                                                
MR. IVERSEN said it will be  a multi-year process to get it fully                                                               
integrated and functional.                                                                                                      
                                                                                                                                
CHAIR FRENCH asked how returns are filed now.                                                                                   
                                                                                                                                
MR. IVERSEN said it's a mix  of paper and electronic returns. The                                                               
taxpayers can also use a  template from the state's website. Some                                                               
of the provisions  in the bill are geared  to getting information                                                               
in a useful format.                                                                                                             
                                                                                                                                
11:29:01 AM                                                                                                                   
MS. DAVIS said subsection (g) of  Section 18 was added. The state                                                               
wants to  be able  to issue advisory  bulletins to  give guidance                                                               
through the initial  phases. Mr. Mintz researched  and found that                                                               
this section  gives the  department the authority  to be  able to                                                               
issue advisory bulletins for any tax.                                                                                           
                                                                                                                                
MR. MINTZ clarified that it is limited to the production tax.                                                                   
                                                                                                                                
SENATOR THERRIAULT questioned the use of the bulletins.                                                                         
                                                                                                                                
MS.  DAVIS said  advisory bulletins  have been  used to  head off                                                               
audit problems with regard to  how the department is interpreting                                                               
and applying a regulation. It can flag things early.                                                                            
                                                                                                                                
SENATOR THERRIAULT asked if a taxpayer can still disagree.                                                                      
                                                                                                                                
MS. DAVIS said yes.                                                                                                             
                                                                                                                                
CHAIR FRENCH asked how many taxpayers are on the North Slope.                                                                   
                                                                                                                                
MR. IVERSEN estimated there to be about 30.                                                                                     
                                                                                                                                
CHAIR  FRENCH asked  who else  is  making money  besides the  big                                                               
three producers.                                                                                                                
                                                                                                                                
MR. IVERSEN  said he will look  up who is actually  making money.                                                               
It is probably significantly less than that.                                                                                    
                                                                                                                                
CHAIR  FRENCH said  it  probably boils  down  to 10-15  corporate                                                               
entities.                                                                                                                       
                                                                                                                                
MR.  IVERSEN said  that might  be closer  to it.  There are  also                                                               
others generating credit.                                                                                                       
                                                                                                                                
11:33:49 AM                                                                                                                   
MS.  DAVIS said  Slide 37  references  ACES Section  2, and  this                                                               
language  was included  in the  Senate CS.  It authorizes  DNR to                                                               
share oil  and gas information with  DOR. It is a  provision that                                                               
has  a companion  piece for  sharing information  the other  way.                                                               
There  are confidentiality  requirements for  both agencies,  and                                                               
the ability to speak to  each other about relevant information is                                                               
very limited. The two have had to  jump through a lot of hoops to                                                               
be able  to work together,  including making models  generic, for                                                               
example. Consultants were quite surprised  that the state put the                                                               
two agencies in "such silos." That  is not found in other places,                                                               
so  the  goal  is  to   enable  the  sharing  while  keeping  the                                                               
protection of information.                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI said  page  3 shows  two  reasons that  the                                                               
director can request the information,  and one is for forecasting                                                               
revenue and the other is for  administering AS 43.55. He wants to                                                               
make it broad  enough. How do you define  forecasting revenue and                                                               
what is 43.55?                                                                                                                  
                                                                                                                                
MS.  DAVIS   said  43.55  is  specifically   the  production  tax                                                               
provision.  It would  not  include  the oil  and  gas income  tax                                                               
provision.  This was  the area  where the  information came  into                                                               
play. Section 13 of ACES or Section  12 of the CS is the parallel                                                               
provision. It doesn't have a limitation on DNR's use of it.                                                                     
                                                                                                                                
11:38:24 AM                                                                                                                   
CHAIR  FRENCH said  to suppose  commissioners couldn't  decide if                                                               
the  information  is  released  fast  enough.  A  governor  could                                                               
straighten that out.                                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  said it  may be best  to have  the sections                                                               
conform more. He expressed concern over hamstringing DOR.                                                                       
                                                                                                                                
MS. DAVIS said  the intent is that  DOR would be able  to use the                                                               
information it needs, so she wouldn't object to that.                                                                           
                                                                                                                                
11:39:56 AM                                                                                                                   
MR. MINTZ  said to keep  in mind  the scope of  the proclamation.                                                               
Venturing outside the  production tax could be a  problem. But it                                                               
is written very  broadly to make sure the department  can get the                                                               
relevant information for administering production taxes.                                                                        
                                                                                                                                
MS. DAVIS  said Section 23 in  the CS is about  public disclosure                                                               
of information  and how to aggregate  it. She referred to  a list                                                               
on Slide 39  of administrative improvements. There  is an auditor                                                               
provision and a transition provision  to keep current auditors to                                                               
stay in classified  service. There are two places  that relate to                                                               
the statute of  limitations, and it was not picked  up in the CS.                                                               
The governor's  bill proposed a  change from three to  six years,                                                               
and the CS doesn't.                                                                                                             
                                                                                                                                
11:42:32 AM                                                                                                                   
MS. DAVIS  said Slide 40 deals  with a provision that  was in the                                                               
governor's bill  and not  in the  CS. Its  intention was  for the                                                               
legislature  to  confirm  an existing  regulation  of  DOR.  When                                                               
taxable  value changes,  the DOR  has always  taken the  position                                                               
that the statute  of limitations does not run on  a claim for the                                                               
state to  recover the differential,  even though it may  have run                                                               
on  that tax  period.  There is  not a  current  lawsuit on  that                                                               
issue.  The  AOGA  said  this  had a  hidden  agenda  related  to                                                               
interest on the tax due-"that  when we recognize that our statute                                                               
of limitations  operates to  allow us  to go back  and pick  up a                                                               
period that had  otherwise been closed such that there  was now a                                                               
tax liability for  a previously closed period,  their concern is:                                                               
does this  provision alter  the balance of  the ability  to fight                                                               
about what interest  rate should apply and when  it should attach                                                               
to  that liability.  It was  never our  intention to  affect that                                                               
dialogue or that legal debate."                                                                                                 
                                                                                                                                
11:44:59 AM                                                                                                                   
CHAIR FRENCH said the \M CS doesn't have that provision.                                                                        
                                                                                                                                
MS. DAVIS said that is correct.                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI  asked about  a current tariff  dispute, and                                                               
"how many years back would that cover if we were to prevail?"                                                                   
                                                                                                                                
MR.  MINTZ  said Congress  recently  passed  a law  placing  some                                                               
limitations on that. He said he  didn't think it would affect any                                                               
pending dispute on TAPS tariff.                                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI  said it seems  that if there was  a lawsuit                                                               
and the  state was supposed to  be getting X tariffs  but didn't,                                                               
the state would be due interest.  That is standard civil law, "so                                                               
I think we need to be careful when crafting that provision."                                                                    
                                                                                                                                
MR. MINTZ  said that one  of the reasons  for the debate  is that                                                               
typically when  FERC orders  a retroactive  refund, it  does come                                                               
with interest. However, if the interest rate is different ….                                                                    
                                                                                                                                
11:47:05 AM                                                                                                                   
SENATOR WIELECHOWSKI said  if it was money the  state should have                                                               
gotten under the state system, it should be the state interest.                                                                 
                                                                                                                                
CHAIR FRENCH asked  the difference between interest  under a FERC                                                               
ruling versus the state.                                                                                                        
                                                                                                                                
MR. IVERSEN said  the state would assess interest  at 11 percent.                                                               
The IRS charges about 8 percent, but he doesn't know about FERC.                                                                
                                                                                                                                
11:47:59 AM                                                                                                                   
MS. DAVIS said Slide 42  relates to transition, applicability and                                                               
effective dates. They are essentially the same in both versions.                                                                
                                                                                                                                
MR.  MINTZ   added  that  applicability  and   retroactivity  are                                                               
companion  provisions. The  expansion of  the list  of exclusions                                                               
and the  repeal of 155  (a) and (d)  on unit agreements  are made                                                               
retroactive to 2006,  when PPT started. Other  changes are either                                                               
prospective or immediate.                                                                                                       
                                                                                                                                
CHAIR  FRENCH  said  the  committee will  discuss  how  far  back                                                               
retroactivity  will go,  but tax  changes will  take effect  next                                                               
year and corrosion issues go back to April 1, 2006.                                                                             
                                                                                                                                
11:50:15 AM                                                                                                                   
MS.  DAVIS said  there  is  a provision  that  the resolution  of                                                               
statute  of limitations  applies to  tax periods  that are  still                                                               
open, so if  something was in its second year  and had not passed                                                               
the three-year statute of limitations,  six years would extend it                                                               
out  another  four years.  Nothing  would  be reopened  that  was                                                               
closed.                                                                                                                         
                                                                                                                                
MR. MINTZ added that Section 29  was done in the PPT legislation,                                                               
and it makes  sure the department is  implementing regulations as                                                               
soon as  the new statuary  provisions apply, even though  it will                                                               
take some time to develop the regulations.                                                                                      
                                                                                                                                
CHAIR FRENCH  said he  is having  trouble understanding  how some                                                               
provisions will be retroactive to 2008  if the bill passes in the                                                               
next month.                                                                                                                     
                                                                                                                                
MR. MINTZ said the regulations might not be adopted by then.                                                                    
                                                                                                                                
11:52:39 AM                                                                                                                   
MS.  DAVIS said  the  CS  didn't carry  through  Section 023  (l)                                                               
regarding tax-exempt entities not  receiving credits. However, it                                                               
was amended  to the House  version yesterday, she said.  It needs                                                               
to be discussed.                                                                                                                
                                                                                                                                
11:53:24 AM                                                                                                                   
CHAIR FRENCH outlined this afternoon's  schedule and recessed the                                                               
meeting from 11:54:16 AM until 1:23:52 PM.                                                                                  
                                                                                                                                
The committee reconvened with  Senators Wielechowski, Huggins and                                                               
French.                                                                                                                         
                                                                                                                                
1:24:21 PM                                                                                                                    
KEVIN BROOKS,  Deputy Commissioner, Department  of Administration                                                               
(DOA),  Juneau, Alaska,  explained  that Sections  9  and 28,  in                                                               
version M CSSB  2001(RES), moves classified oil  and gas auditors                                                               
to the  exempt service with  the intention  of being able  to pay                                                               
them what  the market  is requiring  these days.  He said  he has                                                               
been seeing difficulties in recruiting  revenue auditors, and the                                                               
DOR did a  pay analysis. There are 60 individuals  in the auditor                                                               
job  class family,  but the  primary focus  was the  oil and  gas                                                               
auditors, but  the system requires  dealing with the family  as a                                                               
whole. They  raised the pay 15  percent across the board  for all                                                               
60 employees  based on the market.  This bill refers to  about 23                                                               
auditors from DNR and DOR, and it exempts them.                                                                                 
                                                                                                                                
CHAIR FRENCH asked what it means to be exempt.                                                                                  
                                                                                                                                
MR.  BROOKS replied  that  they aren't  represented  by a  union.                                                               
Every employee  is considered classified  unless the  position is                                                               
listed as exempt. Alaska is  a right-to-work state; employees are                                                               
represented by unions.                                                                                                          
                                                                                                                                
MR.  BROOKS  said the  increased  pay  didn't have  its  "desired                                                               
effects."  DOR  and  DNR are  still  having  problems  attracting                                                               
employees because private industry pays significantly more.                                                                     
                                                                                                                                
CHAIR FRENCH  surmised that  the public is  asking why  you can't                                                               
pay these employees more.                                                                                                       
                                                                                                                                
SENATOR THERRIAULT joined the committee.                                                                                        
                                                                                                                                
MR.   BROOKS  replied   that  statutorily,   classifications  are                                                               
constructed on  a "like-pay for  like-work" concept. It's  not so                                                               
simply  to pay  employees  what  the market  will  bear. The  pay                                                               
adjustment was the  first attempt to work  within the constraints                                                               
of  the rules.  Instead  of changing  the  complex statutes,  the                                                               
other  strategy is  to make  the employees  legislatively exempt.                                                               
Medical professionals,  oil and  gas geologists, and  the Limited                                                               
Entry Commission  are fully  exempt. So  he is  suggesting taking                                                               
these specific jobs and making them fully exempt.                                                                               
                                                                                                                                
CHAIR  FRENCH asked  if classified  and exempt  are the  only two                                                               
choices. What is a partially exempt employee?                                                                                   
                                                                                                                                
NIKKI NEAL, Director, Division of  Personnel and Labor Relations,                                                               
Department  of  Administration,  Juneau, Alaska,  said  partially                                                               
exempt employees are subject to  the classification and pay plan,                                                               
so they cannot be paid an  override rate. They are not subject to                                                               
recruitment provisions and are often at-will employees.                                                                         
                                                                                                                                
1:32:49 PM                                                                                                                    
MR. BROOKS said we all serve at the pleasure [of the governor].                                                                 
                                                                                                                                
CHAIR FRENCH said you could be discharged for any or no reason.                                                                 
                                                                                                                                
1:33:09 PM                                                                                                                    
JAN  DEYOUNG, Attorney,  Department  of  Law, Anchorage,  Alaska,                                                               
said there are some restrictions on termination for bad reasons.                                                                
                                                                                                                                
1:33:35 PM                                                                                                                    
CHAIR FRENCH  said but a person  can be discharged for  no reason                                                               
but is  still subject to  the pay classification rules.  He asked                                                               
who the partially-exempt employees are.                                                                                         
                                                                                                                                
MR.  BROOKS  said they  are  identified  in statute  and  include                                                               
assistant  attorney  generals,  division  directors,  deputy  and                                                               
assistant  commissioners,   and  executive  assistants   for  the                                                               
commissioners.                                                                                                                  
                                                                                                                                
CHAIR FRENCH  asked if the  exempt employees are at-will  and not                                                               
tied to the like-pay strictures.                                                                                                
                                                                                                                                
MR.  BROOKS replied  yes.  He  said he  is  partially exempt  and                                                               
serves at  the pleasure and  political whims. There are  a number                                                               
of  fully-exempt  employees  including  pharmacists  and  medical                                                               
professionals.   There  is   less   turnover  with   fully-exempt                                                               
professionals as opposed to political appointees.                                                                               
                                                                                                                                
MR. BROOKS,  referring to the  topic at  hand, said there  are 23                                                               
positions classified  as oil  and gas  revenue auditors,  and the                                                               
bill specifies:  and their immediate supervisor.  Currently there                                                               
are six vacancies.                                                                                                              
                                                                                                                                
CHAIR FRENCH  asked if 23 are  enough to maintain a  strong cadre                                                               
of sharp pencils.                                                                                                               
                                                                                                                                
1:35:51 PM                                                                                                                    
MR.  BROOKS replied  that DNR  and DOR  should answer  that. Some                                                               
positions were added  after the PPT was passed.  Some people have                                                               
asked  if the  positions can  be contracted,  but the  bargaining                                                               
contracts require  a feasibility  study. It has  to be  more cost                                                               
effective, and the  idea is to pay these people  more. Making the                                                               
positions fully exempt allows them to be contracted temporarily.                                                                
                                                                                                                                
SENATOR WIELECHOWSKI said  Section 28 would allow  people who are                                                               
currently in the  bargaining unit to opt in or  out of the exempt                                                               
service.                                                                                                                        
                                                                                                                                
MR. BROOKS said yes.                                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  asked if the current  exempt employees will                                                               
get paid more.                                                                                                                  
                                                                                                                                
MR. BROOKS said yes, if they are doing the same kind of work.                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI noted  that  there will  be people  working                                                               
side by side getting different salaries.                                                                                        
                                                                                                                                
MR.  BROOKS  replied  yes, but  with  different  protections  and                                                               
rights.                                                                                                                         
                                                                                                                                
1:39:03 PM                                                                                                                    
CHAIR FRENCH  asked if  the work is  highly technical,  why isn't                                                               
that sufficient  reason to create  a higher  classification. That                                                               
set of skills must require a higher price out in the market.                                                                    
                                                                                                                                
MR. BROOKS replied  that it is a bit of  a quandary. The like-pay                                                               
for like-work requirements  would have to get into  a niche among                                                               
auditor work.                                                                                                                   
                                                                                                                                
CHAIR  FRENCH asked  if he  is concerned  that creating  a higher                                                               
classification  for  these oil  and  gas  revenue auditors  would                                                               
encourage other auditors to demand the same.                                                                                    
                                                                                                                                
MR. BROOKS said there is an  element of that. Currently there are                                                               
auditors 1 through  4, and they start  at a range 18.  An oil and                                                               
gas auditor 4  who has been around  about 5 or 6  years is making                                                               
about $85,000  a year after  adding the 15 percent.  A partially-                                                               
exempt division  director is a  range 27, and the  auditors would                                                               
go beyond that.                                                                                                                 
                                                                                                                                
CHAIR FRENCH asked how much the state will need to pay auditors.                                                                
                                                                                                                                
1:42:26 PM                                                                                                                    
MR. BROOKS replied that he is  not sure, but fully-exempt oil and                                                               
gas engineers  and geologists working in  DNR and in the  Oil and                                                               
Gas Conservation Commission make $125,000 to $150,000.                                                                          
                                                                                                                                
CHAIR FRENCH asked how many fall under that category.                                                                           
                                                                                                                                
MR. BROOKS replied about 25, and they are in another section.                                                                   
                                                                                                                                
1:44:22 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if grievances  can be  filed by  the                                                               
bargaining unit or by individuals.                                                                                              
                                                                                                                                
MR. BROOKS said it can be an individual or a group.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  said he  thought that  the union  pursues a                                                               
grievance on behalf of the individual.                                                                                          
                                                                                                                                
MS. DEYOUNG replied that is correct.                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  said if  the union agreed  to some  kind of                                                               
solution, would that preclude an individual from disagreeing.                                                                   
                                                                                                                                
MS. DEYOUNG said  there is a process for the  union employee, but                                                               
the state  is in  litigation frequently  with employees  who have                                                               
exhausted that process and have other claims.                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI asked about the union agreeing.                                                                            
                                                                                                                                
MS.  DEYOUNG said,  "We like  to argue  that that  should be  the                                                               
final decision … but that's not actually clear in the case law."                                                                
                                                                                                                                
SENATOR WIELECHOWSKI said that is usually discrimination issues.                                                                
                                                                                                                                
MS. DEYOUNG  said that is  one area  because one has  a statutory                                                               
right to make those claims that the union can't foreclose.                                                                      
                                                                                                                                
1:46:44 PM                                                                                                                    
SENATOR   THERRIAULT  asked   if  professional   geologists  make                                                               
$125,000 to $150,000.                                                                                                           
                                                                                                                                
MR. BROOKS said it is petroleum engineers.                                                                                      
                                                                                                                                
CHAIR  FRENCH  said the  auditors  will  be pursuing  potentially                                                               
multi-million   dollar   claims    against   extremely   powerful                                                               
companies.  He  asked  what  assurance  they  will  have  against                                                               
political pushing and retribution.                                                                                              
                                                                                                                                
MS. DEYOUNG  said they  would be  exempt from  those protections.                                                               
The grievance procedure applies to classified employees.                                                                        
                                                                                                                                
1:48:56 PM                                                                                                                    
CHAIR  FRENCH said,  "You could  imagine  that you  might have  a                                                               
governor  who takes  a  position that  we  shouldn't be  pursuing                                                               
claims too rigorously … It is an  item of concern for me in these                                                               
audits  with millions  of dollars  at  stake that  there be  some                                                               
insulation  between  the person  pursuing  those  claims and  the                                                               
political forces in the world."                                                                                                 
                                                                                                                                
SENATOR  THERRIAULT  asked if  there  could  be a  whistle-blower                                                               
provision to protect them.                                                                                                      
                                                                                                                                
MS.  DEYOUNG  said  statutory  protections  are  there,  and  the                                                               
whistle-blower would be one of them.                                                                                            
                                                                                                                                
CHAIR FRENCH said he thought  a whistle blower was someone inside                                                               
the  organization.  These  are state  employees  looking  at  oil                                                               
companies.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT explained that  someone could be pressured not                                                               
to follow the dictate of the statute.                                                                                           
                                                                                                                                
1:50:19 PM                                                                                                                    
MS.  DEYOUNG  replied  there  are  lots  of  protections  against                                                               
unlawful  discrimination,  and  that  would  be  one.  But  there                                                               
doesn't need to be good cause to fire an at-will employee.                                                                      
                                                                                                                                
SENATOR THERRIAULT suggested getting  a good understanding of the                                                               
protections.                                                                                                                    
                                                                                                                                
MR.  BROOKS  added  that  there   are  thousands  of  exempt  and                                                               
partially exempt  employees. Previous legislatures  have provided                                                               
this tool to others to specify positions.                                                                                       
                                                                                                                                
Senators Thomas and Hoffman are in attendance.                                                                                  
                                                                                                                                
1:52:41 PM                                                                                                                    
SENATOR WIELECHOWSKI  said he was  a hearing officer  for workers                                                               
compensation.  He was  glad to  have  the protection  of being  a                                                               
classified  employee. All  hearing officers  who were  exempt had                                                               
been  fired  when  a  new  administration  took  office.  He  was                                                               
concerned that these  positions can be terminated  for any reason                                                               
at all.                                                                                                                         
                                                                                                                                
1:55:26 PM                                                                                                                    
SENATOR HUGGINS  said these are  key positions  for professionals                                                               
in  a very  competitive environment,  "so I'm  supportive of  the                                                               
administration  being   able  to  do   this  because  it's   …  a                                                               
cornerstone to  what we're  asked to  do in this  case for  a net                                                               
tax."                                                                                                                           
                                                                                                                                
1:55:57 PM                                                                                                                    
JIM   DUNCAN,   Business    Manager,   Alaska   State   Employees                                                               
Association--Local  52   (ASEA),  said  ASEA  is   the  exclusive                                                               
representative of  many of these  positions being  discussed here                                                               
today.  If they  are not  supervisors,  the auditors  are in  his                                                               
union.  It is  critical  to  have auditors  who  can perform  the                                                               
necessary  duties   to  protect  the  revenues   of  Alaska.  The                                                               
disagreement is  that those  positions can  be in  the classified                                                               
service. The  merit system of  state employees  is set up  in the                                                               
constitution.   Exempt  personnel   should  be   in  policy-level                                                               
positions. A  revenue auditor is  not setting policy.  The exempt                                                               
auditor would be  exempt from the state personnel  act, the state                                                               
pay  plan,  and  a  competitive   hiring  process.  They  can  be                                                               
discharged at any time. Title 39  has a list of exempt positions,                                                               
and most of  those work for boards and commissions;  they are not                                                               
in the departments themselves.                                                                                                  
                                                                                                                                
2:00:42 PM                                                                                                                    
MR.  DUNCAN said  the auditors  won't have  a right  of appeal  a                                                               
dismissal  to the  state personnel  board. They  will be  subject                                                               
only to  general labor laws  of Alaska and personnel  policies of                                                               
the  agency.  Those  policies can  change  with  administrations.                                                               
There is a legitimate concern  about the pressures these auditors                                                               
will come under. There will  be clients out there very interested                                                               
in  what oil  and gas  revenue  auditors are  doing. Clients  can                                                               
approach  the administration  and request  a change.  He said  he                                                               
doesn't believe the current administration  would respond to that                                                               
type of  pressure, but there  will be other  administrations. The                                                               
state risks continuity of service in exempt positions.                                                                          
                                                                                                                                
MR.  DUNCAN  said  the  auditors  could  be  subject  to  outside                                                               
pressures, and the  public would be opposed to that.   He said he                                                               
heard Mr. Brooks  say they need to do this  to fill the positions                                                               
even  after the  two-range  increase. He  finds  it difficult  to                                                               
understand  why  they  can't  find  the  auditors.  There  are  7                                                               
auditor-4 positions at a range 24,  and 6 are filled. There are 2                                                               
auditor-3 positions, and  they are filled. There  are 6 auditor-2                                                               
positions,  and 2  are filled,  but it  is noted  that the  other                                                               
positions  are being  held vacant.  They are  not having  trouble                                                               
recruiting based on the  organizational chart. The administration                                                               
hasn't  expressed  this  problem  to   the  union.  He  was  just                                                               
bargaining,  and this  issue about  recruitment  of auditors  was                                                               
never  brought  up.   He  said  ASEA  was   just  presented  with                                                               
administrative order  237 from August  24, where  a cabinet-level                                                               
work group  was created, and the  chair asked for input.  He gave                                                               
her several  suggestions on positions  that were hard  to recruit                                                               
for. That task force should deal with this if it is an issue.                                                                   
                                                                                                                                
2:07:12 PM                                                                                                                    
MR. DUNCAN said several things could  be done. There is no reason                                                               
not to  have auditors-5 at  a range of 26,  and that would  be 15                                                               
percent higher  pay. Salary  ranges in ASEA's  contract go  up to                                                               
range 27-"we  could even put  28 and 29  if we want  to negotiate                                                               
that." If it  gets to close to supervisor  salaries, then perhaps                                                               
their pay needs  to go up too. He is  willing to provide language                                                               
for  the bill  to  resolve the  issue.  He recommended  temporary                                                               
establishment  of unique  salary  schedules  and offering  moving                                                               
allowances, hiring  bonuses, and  forgiving student  loans. There                                                               
is a  way to  improve the  compensation package  if the  state is                                                               
flexible.                                                                                                                       
                                                                                                                                
2:09:57 PM                                                                                                                    
MR. DUNCAN noted page 2 or 3  on the 10/17/07 fiscal note, and he                                                               
said he would  work with management on the  issue of "contracting                                                               
out  to  hire some  experts  to  help  train the  auditors."  The                                                               
auditors should be trained and  have the best knowledge possible,                                                               
and he offered help with writing a provision for this.                                                                          
                                                                                                                                
2:12:19 PM                                                                                                                    
CHAIR  FRENCH  said  the  administration   wants  to  pay  up  to                                                               
$150,000. He asked if that can occur with classified service.                                                                   
                                                                                                                                
MR.  DUNCAN  said  it  can't   happen  with  the  current  salary                                                               
schedule,  which   goes  through   range  27,  but   he  proposes                                                               
constructing some language to create  unique salary schedules and                                                               
remain in classified service.                                                                                                   
                                                                                                                                
MR. DUNCAN  said right now  the schedule  maxes out at  range 27,                                                               
but more ranges can be added.  When last at the bargaining table,                                                               
"we could very  well have just added  a range 28 and  range 29 if                                                               
we had some specific issues that needed to be addressed."                                                                       
                                                                                                                                
2:14:07 PM                                                                                                                    
SENATOR WIELECHOWSKI thanked  Mr. Duncan for pointing  out page 2                                                               
of the  fiscal not. "These  are auditors  doing the same  type of                                                               
work that  the other  current auditors are  doing." It  is $4,000                                                               
per  week. It  would  seem that  the state  doesn't  need to  pay                                                               
anything  near  that.  The  state  could  pay  half  of  that  in                                                               
classified service, he surmised.                                                                                                
                                                                                                                                
MR. DUNCAN  said he thinks  that is reasonable. He  repeated that                                                               
six  out of  seven positions  are  filled, and  by unique  salary                                                               
schedules, the state can find the people to do the job.                                                                         
                                                                                                                                
SENATOR  THERRIAULT  asked if  it's  a  problem to  allow  higher                                                               
ranges in a narrow band of employment.                                                                                          
                                                                                                                                
MR.  DUNCAN answered  that it  wouldn't open  the door.  There is                                                               
always pressure to  raise salaries. And nurses were  all moved up                                                               
recently. The state  won't have to move everybody  up. This would                                                               
address unique circumstances.                                                                                                   
                                                                                                                                
SENATOR THERRIAULT asked  if the nursed were moved  up within the                                                               
already established range.                                                                                                      
                                                                                                                                
MR. DUNCAN guessed that they were moved from a range 15 to 17.                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI  presented the question of  if the employees                                                               
are exempted and with high  salaries, will the state start paying                                                               
the directors and commissioners more too.                                                                                       
                                                                                                                                
MR.  DUNCAN replied  that is  another problem.  Commissioners and                                                               
directors got a sizable raise three or four years ago.                                                                          
                                                                                                                                
SENATOR WIELECHOWSKI asked if an  auditor-5 was created, could it                                                               
be isolated to oil and gas auditing.                                                                                            
                                                                                                                                
MR.  DUNCAN  replied that  he  wasn't  sure.  There could  be  an                                                               
internal  alignment  problem,  but  that could  be  addressed  by                                                               
putting an auditor-5  in all categories. It would not  have to be                                                               
filled if the work is not as specialized.                                                                                       
                                                                                                                                
2:20:51 PM                                                                                                                    
SENATOR WIELECHOWSKI asked  if it would be possible  to break out                                                               
the oil and gas auditors  in a separate job classification, which                                                               
is done with hearing officers.                                                                                                  
                                                                                                                                
MR. DUNCAN replied it's possible.                                                                                               
                                                                                                                                
CHAIR FRENCH asked if worker's  compensation hearing officers get                                                               
paid differently than a standard hearing officer.                                                                               
                                                                                                                                
MR. DUNCAN said there are two different classifications.                                                                        
                                                                                                                                
2:21:54 PM                                                                                                                    
SENATOR THERRIAULT said hearing officers were put into a pool.                                                                  
                                                                                                                                
MR. DUNCAN said ASEA is working with management on that issue.                                                                  
                                                                                                                                
2:22:51 PM                                                                                                                    
BRUCE   LUDWIG,  Business   Manager,   Alaska  Public   Employees                                                               
Association/AFT,   said  he   represents  supervisory   employees                                                               
including two of  the auditors being discussed.  He stressed that                                                               
the constitution requires  a civil service system,  which is very                                                               
important.  It  is  what  keeps  government clean  in  a  lot  of                                                               
respects. The exempt statute has  "whole pages of exceptions, and                                                               
it  almost makes  you wonder  what's left  in the  other." It  is                                                               
likely that most of the  thousands of exempt employees get salary                                                               
overrides. The  Murkowski administration raised  commissioner pay                                                               
by  39  percent.  But  there   is  deferred  maintenance  on  the                                                               
classified service.  "Our pay is  virtually 39 percent  less than                                                               
what the cost  of living has done in the  last twenty years." The                                                               
result  is  not  finding  people  to  fill  jobs.  Some  division                                                               
directors have  a 33  percent vacancy,  and he  has been  told by                                                               
some  directors   that  "if  we   can't  do  something   to  spur                                                               
recruitment,  they're not  even  going to  have  people that  are                                                               
going to be able to permit  AGIA when we get applications in five                                                               
years."  Something  has to  be  done  with the  salaries.  Making                                                               
auditors exempt  defeats the purpose  of the  classified service.                                                               
This  came  up  when  the legislature  took  pharmacists  out  of                                                               
classified service.                                                                                                             
                                                                                                                                
MR.  LUDWIG  said, "The  division  of  personnel is  saying  they                                                               
aren't   special   enough   that   they  could   be   their   own                                                               
classification that  we could set  salaries on. If it's  this big                                                               
of a problem that's dragging you  all into it, seems to me that's                                                               
special enough  that it would require  a special classification."                                                               
He  said his  bargaining  unit  is still  open  and  he would  be                                                               
willing  to  add salary  ranges.  He  said  auditors tend  to  be                                                               
conservative people and might not want  to take a job that is at-                                                               
will.                                                                                                                           
                                                                                                                                
2:27:25 PM                                                                                                                    
MR.  LUDWIG said  his union  used  to represent  doctors and  the                                                               
state  epidemiologist.  A  doctor  called him  and  said  federal                                                               
services are making  $40,000 per year more than him.  He had been                                                               
told by  personnel that the only  way the doctor could  make more                                                               
money was  by going  into the  exempt service,  but he  liked the                                                               
protection he  had. There are  no more doctors in  the bargaining                                                               
unit. Many  departments contract  out work  for $200,000  a year,                                                               
and "we don't pay our own people anywhere close to that."                                                                       
                                                                                                                                
2:29:10 PM                                                                                                                    
Senator Ellis joined the hearing.                                                                                               
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  administration has raised this                                                               
as an issue.                                                                                                                    
                                                                                                                                
MR. LUDWIG said, "No, in fact  at our table we raised recruitment                                                               
and retention.  We brought it  up from  the very first  day." The                                                               
only thing  they got  back from the  administration was  a slogan                                                               
contest  and an  idea from  the commissioner  of relaxing  hiring                                                               
requirements.                                                                                                                   
                                                                                                                                
2:30:30 PM                                                                                                                    
SENATOR THERRIAULT asked if 6 of the 7 positions are full.                                                                      
                                                                                                                                
MR. BROOKS clarified that out of  23, 6 are vacant. He offered to                                                               
get  accurate  vacancies. Oil  and  gas  revenue auditors  are  a                                                               
separate job classification with 4  series. He doesn't know which                                                               
are vacant.                                                                                                                     
                                                                                                                                
CHAIR FRENCH asked for that. He  asked for a response to the idea                                                               
of keeping the positions in a classified service.                                                                               
                                                                                                                                
MR. BROOKS said  there were a lot of general  statements that are                                                               
discussed with the  union on a regular basis.  "Perhaps you could                                                               
put a  fifth level, but there's  a lot of different  factors." As                                                               
you progress up the salary schedule,  once you pass range 25, the                                                               
spread  between  ranges  is  only   3.5  percent.  Everything  is                                                               
compressed as the ranges get  higher. "I'm sure that higher range                                                               
wouldn't bother the unions at all;  I'm sure if we added whatever                                                               
number of  steps or ranges  that we  wanted to, and  those become                                                               
part of a more complex bargaining exchange."                                                                                    
                                                                                                                                
2:33:31 PM                                                                                                                    
CHAIR FRENCH said he would  like to pay auditors sufficiently and                                                               
protect them within the union at the same time.                                                                                 
                                                                                                                                
MR. BROOKS said  they did a market-based pay  analysis, and about                                                               
1,000 classified  employees have benefited from  the adjustments.                                                               
Nurses  were part  of one  of the  study groups  and hundreds  of                                                               
nurses got raises. The attempt to  do that with auditors had some                                                               
success, but this group needs a surgical adjustment.                                                                            
                                                                                                                                
2:35:24 PM                                                                                                                    
SENATOR WIELECHOWSKI asked about the executive order.                                                                           
                                                                                                                                
MR. BROOKS said  that was Administrative Order 237,  and they are                                                               
looking  at recruitment  and retention  issues more  broadly. The                                                               
goal  is to  make recommendations  to the  governor in  November.                                                               
The belief is  that there are other things to  do outside of pay,                                                               
like  flexible  staffing  and  flexible  work  weeks.  Input  was                                                               
solicited from the unions. This won't be solved overnight.                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI  asked if recruiting is  difficult elsewhere                                                               
within the classified service.                                                                                                  
                                                                                                                                
MR. BROOKS replied yes - some more than others.                                                                                 
                                                                                                                                
SENATOR WIELECHOWSKI said he is hearing it's systemic.                                                                          
                                                                                                                                
MR. BROOKS replied it's many,  but not all. The administration is                                                               
trying  to establish  criteria of  failed  recruitment rates  and                                                               
then do a market-based analysis.                                                                                                
                                                                                                                                
2:38:58 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if the  administration plans  to come                                                               
to the legislature and exempt more individuals.                                                                                 
                                                                                                                                
MR. BROOKS  replied there  is no  intent to  whittle away  at the                                                               
unionized work force;  the administration is trying  to address a                                                               
specific need here. "It's not something you see very often."                                                                    
                                                                                                                                
2:39:32 PM                                                                                                                    
SENATOR  THERRIAULT  asked  about  recruiting  the  oil  and  gas                                                               
auditors and  if they need to  be trained. A CPA  has learned all                                                               
kinds  of accounting,  but  this is  very  specialized. "Are  you                                                               
trying to  get to a point  where you actually have  the potential                                                               
of attracting  somebody from a  company who's done  that training                                                               
up for you?"                                                                                                                    
                                                                                                                                
MR. BROOKS said to ask the DOR.                                                                                                 
                                                                                                                                
SENATOR THERRIAULT  said he  is curious if  the state  is looking                                                               
for someone who is already trained and ready to work.                                                                           
                                                                                                                                
MR. BROOKS said the requirements  are established for the family,                                                               
and then the DOR looks for  the specific experience in the field.                                                               
A less experienced person could be hired at a lower level.                                                                      
                                                                                                                                
2:41:51 PM                                                                                                                    
SENATOR  WIELECHOWSKI  noted the  fiscal  note  had just  over  a                                                               
million dollars for 3 auditors, and the math doesn't compute.                                                                   
                                                                                                                                
MR. BROOKS said it is  a weighted number because contractors have                                                               
to pay  their own social  security tax  or benefits. The  DOR put                                                               
the fiscal note together.                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  asked if  it's an  average of  $340,000 per                                                               
auditor.                                                                                                                        
                                                                                                                                
MR. BROOKS said to ask the DOR.                                                                                                 
                                                                                                                                
2:43:13 PM                                                                                                                    
SENATOR WIELECHOWSKI asked the average salary of ranges 24-28.                                                                  
                                                                                                                                
MR. BROOKS replied that a range 24-F is $7,000 month.                                                                           
                                                                                                                                
CHAIR  FRENCH  asked  Mr.  Brooks   for  the  number  of  auditor                                                               
vacancies by class and the allowable  pay scale. He asked for him                                                               
to have a conversation with Jim Duncan of ASEA.                                                                                 
                                                                                                                                
The committee recessed from 2:44:37 PM to 2:59:03 PM.                                                                       
                                                                                                                                
SENATOR GARY STEVENS joined the committee.                                                                                      
                                                                                                                                
CHAIR FRENCH asked for an overview of the penalty sections.                                                                     
                                                                                                                                
JONATHAN IVERSEN,  Director, Tax Division, Department  of Revenue                                                               
(DOR), said  penalties relate to  the transmittal  of information                                                               
to DOR and are not based on  delinquent tax payments. It is up to                                                               
$1,000  per  day  for  failure to  provide  monthly,  annual,  or                                                               
forecasting information.  This is the  way to force  companies to                                                               
file  the reports  whether tax  is due  or not.  Current statutes                                                               
deal only with unpaid tax.                                                                                                      
                                                                                                                                
CHAIR FRENCH noted a helpful memo on that topic.                                                                                
                                                                                                                                
MR.  IVERSEN  said  there  are  several  penalty  provisions.  AS                                                               
43.555.430, Section 46 of ACES, and  Section 14 of the CS discuss                                                               
the annual reporting requirement.                                                                                               
                                                                                                                                
CHAIR FRENCH asked the penalty for not filing it timely.                                                                        
                                                                                                                                
MR.  IVERSEN  said it  is  up  to $1000/day  in  ACES  and is  in                                                               
addition to other civil and criminal penalties.                                                                                 
                                                                                                                                
CHAIR FRENCH  asked if this  makes certain that anyone  doing oil                                                               
and gas business on the North Slope files a return.                                                                             
                                                                                                                                
MR. IVERSEN said it is statewide.                                                                                               
                                                                                                                                
SENATOR THERRIAULT asked for clarification.                                                                                     
                                                                                                                                
3:04:20 PM                                                                                                                    
MR. IVERSEN replied  it could be an additive penalty  if there is                                                               
failure to  file with an  underpayment. The first one  is related                                                               
to the annual filings.                                                                                                          
                                                                                                                                
CHAIR  FRENCH asked  if  an oil  company decides  to  not file  a                                                               
return, could it  skirt the law by paying a  $365,000 penalty for                                                               
missing 365 days of reporting.                                                                                                  
                                                                                                                                
3:05:43 PM                                                                                                                    
MR.  IVERSEN replied  he  will answer  that  by discussing  other                                                               
penalty  provisions.  The  basic   penalty  provision  is  in  AS                                                               
43.05.220, and it  sets up a civil penalty of  5 percent for each                                                               
30-day  period,  or  fraction  of that  period,  during  which  a                                                               
taxpayer fails to file or  underpays. That penalty may not exceed                                                               
25 percent in  the aggregate underpayment. If a  company fails to                                                               
file, the  DOR will do an  assessment and jeopardy audit,  and it                                                               
will base the tax on that.                                                                                                      
                                                                                                                                
CHAIR FRENCH  asked if the new  requirement in ACES is  on top of                                                               
existing laws to bring taxpayers into compliance.                                                                               
                                                                                                                                
MR.  IVERSEN replied  yes. There  is a  "get-out-of-penalty" free                                                               
card if the  burden of proof is met where  the taxpayer can show-                                                               
which is not easy-that the failure  to file or to make payment is                                                               
due to a  reasonable cause and not willful neglect.  He said that                                                               
wording is  based on internal  revenue code standards and  it's a                                                               
tough burden to  meet. From Section (b) there  is another penalty                                                               
due to intentional disregard of the  law or to negligence with an                                                               
additional 5 percent  assessed of the unpaid amount.  There is an                                                               
option  for reasonable  cause. In  the same  section, (c)  covers                                                               
fraud penalties,  which are 50  percent or $500. There  are other                                                               
penalty  provisions  addressing interest.  AS43.05.290  describes                                                               
criminal penalties  based on willful attempts  to evade taxation.                                                               
There are felony and misdemeanor  charges, perjury penalties, and                                                               
abetting  penalties.  What  ACES  adds  are  just  penalties  for                                                               
failing to file reports even if there is no tax consequence.                                                                    
                                                                                                                                
3:11:36 PM                                                                                                                    
SENATOR WIELECHOWSKI asked how often the penalties are used.                                                                    
                                                                                                                                
MR. IVERSEN  said interest is  a different matter, but  "we don't                                                               
see  a  failure-to-file  type penalty  currently."  There  are  a                                                               
limited number  of taxpayers. There  is a penalty  provision that                                                               
relates to the estimated installment payments from the PPT.                                                                     
                                                                                                                                
3:14:36 PM                                                                                                                    
CHAIR  FRENCH   asked  about   failure  to   provide  independent                                                               
information in ACES.                                                                                                            
                                                                                                                                
MR. IVERSEN said Section 17 is the penalty for not reporting.                                                                   
                                                                                                                                
CHAIR FRENCH asked  if it was for  specific information requested                                                               
by the DOR.                                                                                                                     
                                                                                                                                
MR. IVERSEN said  it is information that is  deemed necessary for                                                               
forecasting revenue.                                                                                                            
                                                                                                                                
CHAIR FRENCH said it needs to be  worked out, but he wanted to be                                                               
clear that there are two types  of penalties, one for returns and                                                               
one for  forecasting. The forecasting information  penalty is the                                                               
same as the report penalty--$1,000 per day.                                                                                     
                                                                                                                                
MR.  IVERSEN  said yes.  That  one  penalty provision  hits  both                                                               
monthly  and  annual  reports. The  other  hits  the  forecasting                                                               
information.  The  annual one  is  due  on  March 31.  The  final                                                               
monthly is due at the end of January for December production.                                                                   
                                                                                                                                
CHAIR FRENCH surmised there are  12 monthly reports and 1 annual.                                                               
"So someone who  is getting into trouble at least  knows that the                                                               
maximum amount  of trouble they're  going to  get into is  13 per                                                               
year." But is seems different  under the forecasting information,                                                               
which could be  requested everyday. It is brand new,  so how will                                                               
it work and how will penalties be assessed?                                                                                     
                                                                                                                                
MR.  IVERSEN said  there are  a lot  of vagaries,  but DOR  would                                                               
request  budget-related  materials  that are  being  communicated                                                               
between  parties in  the units.  If  there is  only one  working-                                                               
interest owner  in a unit,  DOR would request  whatever budgetary                                                               
projections they  have. At that  point, DOR would likely  ask for                                                               
specific  information  about  how  often  those  are  done,  with                                                               
updates on  a monthly basis.  If a  unit is only  doing quarterly                                                               
budget updates, then DOR might get only that.                                                                                   
                                                                                                                                
CHAIR FRENCH  asked how to  know what to ask  for, and if  any of                                                               
that information is collected now.                                                                                              
                                                                                                                                
MR. IVERSEN said  it will likely not come from  the auditors, but                                                               
from the economic research staff.  Michael Williams heads up that                                                               
section. There is  a certain amount of value  in these forecasts,                                                               
but it is not the be all and  end all. It won't be used to harass                                                               
the taxpayers for everything they have.                                                                                         
                                                                                                                                
3:22:45 PM                                                                                                                    
CHAIR FRENCH assumed a scenario  of the state making a reasonable                                                               
request that  is not complied with,  and he asked if  that is one                                                               
violation or an ongoing violation.                                                                                              
                                                                                                                                
MR. IVERSEN said if DOR requested  a report that it knows exists,                                                               
it would be $1,000 per day until it was received.                                                                               
                                                                                                                                
CHAIR FRENCH  noted that 10 reports  would add up to  $300,000 in                                                               
one month. He asked if there will be appeal rights.                                                                             
                                                                                                                                
MR. IVERSEN  said it  will be  the same as  exists now.  It would                                                               
first go to  an informal conference within the DOR,  and it could                                                               
end in the Superior Court.                                                                                                      
                                                                                                                                
3:25:43 PM                                                                                                                    
CHAIR FRENCH mentioned  a memo from Mr. Bullock  on penalties. He                                                               
believes these penalties are defensible.                                                                                        
                                                                                                                                
MR. IVERSEN spoke  of the statute of  limitations-the time period                                                               
from when  the return was filed  until DOR could assess  it. ACES                                                               
made it 6 years; the CS keeps it at 3 years.                                                                                    
                                                                                                                                
CHAIR  FRENCH  asked   if  that  pertains  to   the  two  penalty                                                               
provisions.                                                                                                                     
                                                                                                                                
3:27:46 PM                                                                                                                    
MR.  IVERSEN said  the  statute of  limitations  begins when  the                                                               
return is filed. That period can  easily be more than three years                                                               
anyway if both parties agree. If  the state runs out of time with                                                               
the  statute  of  limitations  and   the  taxpayer  still  hasn't                                                               
provided the  information, DOR would  be forced to do  a jeopardy                                                               
assessment, making  its best guess at  the tax. DOR wants  to use                                                               
the joint-interest  billings as  part of  its audit  process, and                                                               
the audits  of joint-interest  billings between  taxpayers. Those                                                               
can  take years  to accomplish.  After filing,  there are  "a few                                                               
years  there where  we've got  joint-interest audits  ongoing and                                                               
then conflicts and hopefully an  eventual resolution." That would                                                               
be through  arbitration, negotiation,  or litigation  between the                                                               
parties, and  "we would like to  have the benefit of  those audit                                                               
resolutions in  making our own  assessment." That is part  of the                                                               
impetus for  the extended  statute of  limitations. Also,  DOR is                                                               
now dealing with the extra figures of upstream costs.                                                                           
                                                                                                                                
SENATOR THERRIAULT asked for the section.                                                                                       
                                                                                                                                
MR. IVERSEN  said the first reference  in ACES is in  Section 14.                                                               
It is also in AS 43.55.075, Section 50.                                                                                         
                                                                                                                                
3:34:17 PM                                                                                                                    
SENATOR WIELECHOWSKI asked the revenue  consequences to the state                                                               
if the statute of limitation is not extended.                                                                                   
                                                                                                                                
MR. IVERSEN  answered that the state  could run out of  time with                                                               
the compressed  time frame  and the additional  data it  needs to                                                               
deal  with. There  may not  be more  tax revenue.  But there  are                                                               
extra  costs associated  with that.  Jeopardy  assessments are  a                                                               
tough way to  do business and the state prefers  not to. He would                                                               
rather have the time to do it  right the first time and not fight                                                               
it out during appeals, with all the associated costs.                                                                           
                                                                                                                                
3:36:11 PM                                                                                                                    
SENATOR  WIELECHOWSKI  surmised  that  there might  be  a  little                                                               
saving  in money  or  time  and aggravation.  The  other side  is                                                               
complaining about the 6 years of back interest at 11 percent.                                                                   
                                                                                                                                
MR. IVERSEN  said if  they underpaid  their tax,  that's correct.                                                               
Using  waivers under  current  law,  they now  have  to pay  that                                                               
interest.  "If  we do  a  refund  of  the  amount that  has  been                                                               
assessed within  … 90 days of  the date the return  was filed and                                                               
the state  does not owe interest  … for an overpayment.  It is an                                                               
issue." The counter argument is  that more information is needed,                                                               
and under  PPT and  ACES, the  state is required  to look  at the                                                               
billing   practices.  The   pressure   will  burden   information                                                               
management and  being able to  use the information in  making the                                                               
assessments. Auditing is  always behind; one must  wait until the                                                               
returns are filed.  That triggers an amended  return, which would                                                               
start  the clock  again.  He  said DOR  has  been rather  speedy,                                                               
however. But PPT returns audits have not begun.                                                                                 
                                                                                                                                
3:39:45 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked if  the  state  loses anything  when                                                               
negotiating the time limits with taxpayers.                                                                                     
                                                                                                                                
MR. IVERSEN replied no, it is  not a compromise at all. "We don't                                                               
decrease the amount of tax due;  we don't abate any penalties; we                                                               
don't reduce any interest … because  we'll just go ahead and make                                                               
the  assessment." The  provision is  more  of a  means to  reduce                                                               
conflict.                                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  state doesn't have the time to                                                               
do an assessment and three years  comes up, "can you just make an                                                               
assessment with not very much foundation?"                                                                                      
                                                                                                                                
MR. IVERSEN replied  he didn't know of  any specific prohibition,                                                               
but  he would  want  to  avoid that.  "It  would  be horrible  on                                                               
taxpayer relations."  A jeopardy assessment would  come into play                                                               
when the  state is not  getting the  information and there  is no                                                               
willingness by the taxpayer to waive the time limit.                                                                            
                                                                                                                                
3:42:06 PM                                                                                                                    
SENATOR HUGGINS said a witness spoke  about 38 cents and 92 cents                                                               
on  the   dollar  with  regard   to  this  provision.   It  needs                                                               
examination.                                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI said it is based on compound interest.                                                                     
                                                                                                                                
MR. IVERSEN added  that other states have  gross production taxes                                                               
with a statute of limitations of 4  or 5 years, and Alaska is the                                                               
only state using a net production tax.                                                                                          
                                                                                                                                
CHAIR FRENCH noted that 6 years  appears to be the outer boundary                                                               
of what  other states use, but  no state has adopted  the complex                                                               
net production tax.                                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  asked why the  state really needs  6 years.                                                               
"Is it the joint billings?"                                                                                                     
                                                                                                                                
MR.  IVERSEN  took   him  to  AS  43.55.165  where   there  is  a                                                               
requirement for  determining what  costs are  lease expenditures,                                                               
and the  state is required  to look  at direct costs  and typical                                                               
industry practices  and standards. Joint-interest  billing audits                                                               
are  a tool  in seeing  what items  have been  excluded by  other                                                               
interested partners.                                                                                                            
                                                                                                                                
CHAIR FRENCH said the items  excluded are what the partners won't                                                               
be reimbursed for.                                                                                                              
                                                                                                                                
3:47:52 PM                                                                                                                    
SENATOR HUGGINS  said the DOR is  not bound by that,  so there is                                                               
flexibility.                                                                                                                    
                                                                                                                                
3:48:31 PM                                                                                                                    
CHAIR  FRENCH asked  about  the itemization  of  returns and  how                                                               
detailed and specific it is.                                                                                                    
                                                                                                                                
MR. IVERSEN  replied that  it varies.  DOR has  not been  able to                                                               
determine costs attributable to a  particular well from the filed                                                               
returns. It can determine operating  and capital expenses and the                                                               
value of production from a unit.  For example, "For a taxpayer in                                                               
the  Prudhoe Bay  unit  it would  be  that particular  taxpayer's                                                               
share of that unit, and sometimes  it is broken down, in addition                                                               
to that, by  field." He said it  depends on the area.  It is more                                                               
specific in Cook Inlet, for  instance, because the calculation is                                                               
made based on each lease or  property. There is a level of detail                                                               
provided and  it is delineated  according to the  components that                                                               
would go into  the tax calculation. The DOR  gets varying degrees                                                               
of   backup  data.   Some  taxpayers   submitted  very   detailed                                                               
spreadsheets  down to  the nuts  and bolts  level of  capital and                                                               
operating expenses.                                                                                                             
                                                                                                                                
CHAIR FRENCH  asked if DOR has  the level of specificity  that is                                                               
needed to do accurate audits.                                                                                                   
                                                                                                                                
MR. IVERSEN  said that is the  start; "that is the  base document                                                               
that we  audit." So by  taking that information, then  with every                                                               
audit, "we ask a lot of questions."                                                                                             
                                                                                                                                
CHAIR  FRENCH surmised:  "You volley  back  with 20,  30, 40,  50                                                               
questions and try to separate that out."                                                                                        
                                                                                                                                
MR. IVERSEN said that is correct in some instances.                                                                             
                                                                                                                                
CHAIR FRENCH asked why not  require that information in the first                                                               
place.                                                                                                                          
                                                                                                                                
MR. IVERSEN  said DOR is working  toward that to some  degree. It                                                               
has  to  be  audited  anyway.   ACES  asks  for  "the  additional                                                               
authority … with the annual  reporting requirements, there are at                                                               
least  a couple  more  delineations. And,  really,  we have  this                                                               
authority anyway, but we wanted  to clarify it and crystallize it                                                               
in  the  ACES  bill  so  that   when  we  get  to  the  point  of                                                               
standardizing  that information  that we  want to  feed into  the                                                               
database in the form that  we want-electronically--that we're not                                                               
going to  have any  pushback to  get there."  It's a  step toward                                                               
standardization, and it has been a learning process.                                                                            
                                                                                                                                
CHAIR FRENCH said he  is asking if the state will  be able to get                                                               
enough information  through this  legislation because it  will be                                                               
hard to make changes in the  future if the state needs more power                                                               
to do that.                                                                                                                     
                                                                                                                                
MR. IVERSEN said there is  a catchall provision, which has caused                                                               
some  angst  with the  taxpayers.  Section  48  of the  bill  and                                                               
Section 16 of the CS refer  to the monthly reports: other records                                                               
and  information  the  department  considers  necessary  for  the                                                               
administration of this  chapter. He noted that  under the general                                                               
powers of  the commissioner of  revenue, it gives  the department                                                               
broad powers  to gather  information for  computing tax.  We have                                                               
the authority,  arguably, under current  law. What  we're seeking                                                               
to  do with  ACES,  again, is  to crystallize  that--particularly                                                               
with (f)  relating to the monthly  reporting requirements." Under                                                               
current  law  there isn't  the  same  type of  monthly  reporting                                                               
requirements.                                                                                                                   
                                                                                                                                
3:57:36 PM                                                                                                                    
CHAIR FRENCH said  "qui tam" is a provision  for whistle blowers.                                                               
Qui tam is a legal provision  in the United States code under the                                                               
false claims act. It dates back  to the Civil War when there were                                                               
a lot  of false  billings. It compensates  people who  report the                                                               
wrongdoers. Recently,  ConocoPhillips was fined for  an oil spill                                                               
from a tanker,  and the crew member who reported  it to the Coast                                                               
Guard  got $250,000.  Without that  tip-off the  spill might  not                                                               
have been discovered.  There is no qui tam provision  in ACES. It                                                               
was argued that  it would only pertain to oil  taxes because that                                                               
is the issue at hand. He asked the administration's position.                                                                   
                                                                                                                                
MR.  IVERSEN said  he doesn't  have the  authority to  state that                                                               
right  now.  There  are  concerns  of just  relating  it  to  the                                                               
production tax.  He said  Illinois had such  a provision,  and it                                                               
was  repealed as  it applied  to taxes.  There are  at least  two                                                               
states, Oregon  and Florida, that have  whistle-blower provisions                                                               
relating to tax.                                                                                                                
                                                                                                                                
The committee took an at-ease from 4:01:47 PM until 4:15:07 PM.                                                             
                                                                                                                                
MARILYN  CROCKET,   Executive  Director,   Alaska  Oil   and  Gas                                                               
Association (AOGA),  said AOGA  is a  trade organization  with 17                                                               
members  representing the  majority of  oil and  gas exploration,                                                               
production,  refining, marketing,  and transportation  activities                                                               
in Alaska. She  introduced Tom William who is a  tax attorney for                                                               
BP. He was once  the Director of the Tax Division  in the DOR and                                                               
later the commissioner.  He was the architect of  several oil and                                                               
gas  tax methodologies  that are  in  place today.  He wrote  the                                                               
regulations   that  implemented   the  state's   former  separate                                                               
accounting  tax  and   the  tax  method  that   replaced  it.  He                                                               
supervised  the  first  property  tax  valuation  of  the  Alaska                                                               
pipeline, and he administered the  state's temporary reserves tax                                                               
in 1976. He was on the  Board of Trustees for the permanent fund.                                                               
He  became  the  father  of ELF  [economic  limiting  factor  tax                                                               
method].   He  was   vice  president   of  Cook   Inlet  Regional                                                               
Corporation  before joining  BP.  The tax  committee developed  a                                                               
unanimous testimony for SB 2001.                                                                                                
                                                                                                                                
4:18:55 PM                                                                                                                    
TOM  WILLIAMS, Senior  Royalty And  Tax Council,  BP Exploration-                                                               
Alaska, Inc., Chair of the  AOGA tax committee, said AOGA concurs                                                               
that  the  state should  have  capable  auditors. "Session  audit                                                               
staff  is essential  for legislators,  government officials,  and                                                               
the public  to have  full confidence that  Alaska's tax  laws are                                                               
being firmly, fairly, and consistently  enforced." That will help                                                               
provide stability and transparency,  which will help AOGA members                                                               
pay the correct  amount of tax as it become  due. He doesn't mean                                                               
to disparage  any auditor  currently working  for the  state. The                                                               
legislature  can  make  the  tax  fair  and  straightforward  for                                                               
auditors, or it can  make it a nightmare for them  as well as for                                                               
the  taxpayers.  The difference  lies  in  whether producers  and                                                               
explorers may  rely on an  operator's joint-interest  billings to                                                               
them. If  allowed by DOR,  such billings would still  be adjusted                                                               
to remove  expenditures in them that  are specifically disallowed                                                               
or  to adjust  those  that  are subject  to  allocation. AOGA  is                                                               
worried that  repealing AS  43.55.165 (c)  and (d)  could deprive                                                               
DOR of this important tool.                                                                                                     
                                                                                                                                
4:21:17 PM                                                                                                                    
CHAIR FRENCH said he has a copy of the white paper on that.                                                                     
                                                                                                                                
MR. WILLIAMS  said it  was encouraging to  hear that  Mr. Iversen                                                               
would  like  to  use  the joint-interest  billings  where  it  is                                                               
appropriate. He said the authority  to use them will be repealed.                                                               
The  original version  of the  bill,  Page 42,  adds language  to                                                               
43.55.165 (b), which says: "in  determining whether cost or lease                                                               
expenditures,   the  department   shall  consider,   among  other                                                               
factors, typical  industry practices  and standards in  the state                                                               
that determine  the costs that an  operator is allowed to  bill a                                                               
producer  that  is  not  an   operator."  AOGA's  concern  is  if                                                               
beginning with industry standards and  practices, "it is a little                                                               
like saying 'here  is books and records with 10,000  or … 100,000                                                               
receipts that we've been invoiced for  and we're going to let you                                                               
…  we're just  going to  hand the  internal revenue  code to  see                                                               
where  you start.'"  That is  different from  starting the  audit                                                               
with  the   filed  tax   return.  "Here   it's  saying   use  the                                                               
principles." It  can use this  authority to adopt  regulations to                                                               
proscribe  exactly what  those practices  and  standards are.  He                                                               
doesn't  dispute that,  but  once  a standard  is  set, it's  not                                                               
always  the same  as starting  with  the results  that have  been                                                               
created under  them. The work  for the auditor and  the taxpayers                                                               
will be much harder if DOR doesn't start with the billings.                                                                     
                                                                                                                                
4:24:46 PM                                                                                                                    
MR. WILLIAMS  said he thinks  Mr. Iversen was agreeing  with that                                                               
point. It  can be  a very useful  starting point,  especially for                                                               
the people who  don't operate the field. "That's all  they get is                                                               
the billings from the operator, and they write their checks."                                                                   
                                                                                                                                
MR. WILLIAMS said it starts on page 16 of version m.                                                                            
                                                                                                                                
SENATOR  THERRIAULT asked  what part  of that  language is  being                                                               
proposed for deletion.                                                                                                          
                                                                                                                                
MR. WILLIAMS said  that is in his white paper.  The first page of                                                               
the white paper has language  in bold that reads: "the department                                                               
may authorize or require ... that  the costs that are incurred by                                                               
the operator  during a  year and  are billable  or billed  to the                                                               
producer may be used as the  lease expenditures." He said this is                                                               
the specific authority  to use billings from the  operator to the                                                               
partners. It  is not  mandatory and is  subject to  conditions of                                                               
regulations. The  department can put  conditions upon the  use of                                                               
the joint-operator  billings if it  finds that it  is appropriate                                                               
to do that. These will be in phase  2. His whole point is if this                                                               
is discretionary,  DOR may do it,  but if the conditions  are met                                                               
and comply  with the regulations  then the billings can  be used.                                                               
Under (c), if  there was a field right next  door, the department                                                               
could  authorize to  take  the principles  from  the field  where                                                               
there  are arms-length  billings  and extend  them  to that  next                                                               
field. It wouldn't have to, he noted.                                                                                           
                                                                                                                                
4:27:58 PM                                                                                                                    
MR.  WILLIAMS said  that if  the discretion  is repealed-not  the                                                               
directive-"doesn't that  usually mean  that the  department can't                                                               
do it?"  He said there is  nothing proposed for deletion  that is                                                               
tricky, other than the fact that  it does say that the department                                                               
may  authorize  or  require  these  materials to  be  used  as  a                                                               
starting point.  That is a  good starting  point, but if  it gets                                                               
repealed it  implies that now DOR  can't use those, they  must go                                                               
back  to  the  first  principles.  This  is  the  short  cut  for                                                               
taxpayers and  auditors, because they  will know where  to start.                                                               
They  don't have  to figure  out what  costs weren't  billed. The                                                               
costs  that aren't  going  to  be billed  may  be  costs that  an                                                               
operator  has that  aren't sufficiently  direct costs.  "We don't                                                               
get into  fights about whether  it's ordinary or  necessary. What                                                               
we  have  instead is  a  starting  point-what the  partners  were                                                               
willing  to  pay, who  aren't  in  the  business of  letting  the                                                               
operator spend  their money  unless it's  for the  right purpose.                                                               
And that's the point."                                                                                                          
                                                                                                                                
CHAIR FRENCH said  is seems like Mr. Williams is  arguing to give                                                               
the DOR more power.                                                                                                             
                                                                                                                                
MR. WILLIAMS said, "We want the  Department of Revenue to be able                                                               
to start  with the thing  that makes the  most sense. We  want to                                                               
have a tax that,  when we report and pay it, and  we may have all                                                               
these  penalties that  you just  heard about  if we  underpay it;                                                               
we'd like to be able to get it  right the first time." It will be                                                               
audited, and  nothing will  be slipped  by. There  is a  value to                                                               
getting  it  done  right.  A  lot of  it  is  automated  for  the                                                               
operators and partners. If the  software is right the first time,                                                               
it will  repeat with the  same groups  of billings. It  will make                                                               
things easier for taxpayers and simplify it for the auditors.                                                                   
                                                                                                                                
4:31:22 PM                                                                                                                    
MR.  WILLIAMS said  he thinks  the repeal  could have  unintended                                                               
consequences. The  authority is  that the DOR  "may" do  this, so                                                               
there is no  harm by keeping it  on the books. It  is not forcing                                                               
the department to do anything, but it gives it the discretion.                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  said  he  would like  DOR's  comments.  AS                                                               
43.55.165 seems  to lay out a  way for the DOR  to determine what                                                               
is a lease expenditure. On page 16  of the CS, there is a section                                                               
that   reads:   "in   determining   whether   costs   are   lease                                                               
expenditures,   the  department   shall  consider,   among  other                                                               
factors,  a number  of things  listed." He  asked if  there is  a                                                               
conflict there and that is why the DOR took it out.                                                                             
                                                                                                                                
4:33:06 PM                                                                                                                    
MR. WILLIAMS said he doesn't know where the concern was.                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if there  is a  dispute between  the                                                               
language requiring DOR  to make a finding of fact  and page 16 in                                                               
the CS. "I'm wondering if that is why they changed it."                                                                         
                                                                                                                                
MR.  WILLIAMS said  the language  of the  CS is  currently almost                                                               
exactly the same as  in 165 (a) now. This is  not new language in                                                               
the tax law; it  is being relocated from (a) to  (b). But (c) and                                                               
(d)  are  in  there  as  well,  and  that  is  the  discretionary                                                               
authority to start with what's been billed to the partners.                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI said  it requires the DOR to  make a finding                                                               
that operating  agreements are substantially consistent  with DOR                                                               
determinations  of  standards.  "It  is  very  complex,  but  I'm                                                               
wondering if that's the difference  because what they're changing                                                               
requires them  to make an  actual finding,  and I'm not  sure the                                                               
new law actually requires them to make that similar finding."                                                                   
                                                                                                                                
4:35:32 PM                                                                                                                    
MR. WILLIAMS said  the new law does. The  word is 'determination'                                                               
at the  bottom of  Page 16.  The DOR  will make  a determination.                                                               
There  is  nothing  here  that  the DOR  isn't  going  to  do  in                                                               
enforcing the  tax, and the  whole purpose is  not to get  into a                                                               
debate with  the DOR, but  to caution  about repealing it  for no                                                               
reason.                                                                                                                         
                                                                                                                                
CHAIR FRENCH said  the law doesn't say it is  mandatory, nor does                                                               
the  overview.  It  allows,  not   mandates,  DOR  to  substitute                                                               
billings. Perhaps  they have been  imprecise in  their testimony,                                                               
but the  language suggests it  is still allowable. "Am  I missing                                                               
something?"                                                                                                                     
                                                                                                                                
4:37:08 PM                                                                                                                    
MR.  WILLIAMS said  the  commissioner said  it  was mandatory  at                                                               
hearings. "I  don't know why  he thinks  that, but if  that's the                                                               
reason, then so be it." But it  seems that nothing in (c) and (d)                                                               
seems to be  mandatory, but the justification has  been that they                                                               
aren't necessary. He  is not telling the committee  what it does,                                                               
but the  committee will know  after reading it carefully.  But if                                                               
there  is a  high element  of  discretion about  using the  joint                                                               
interest  billings,  and  it  is taken  away,  the  most  logical                                                               
consequence and  implication is that  it can't be done  any more.                                                               
If  there is  a problem  with the  language, fix  it rather  than                                                               
repeal it.                                                                                                                      
                                                                                                                                
4:38:33 PM                                                                                                                    
CHAIR FRENCH asked if changing the  word "shall" to "may" on Page                                                               
16, line 31, would satisfy this concern.                                                                                        
                                                                                                                                
MR.  WILLIAMS said,  "That  language  is not  the  source of  our                                                               
concern." "Our concern  is that when you  have language elsewhere                                                               
that's  going to  be repealed  that says  you may  use the  joint                                                               
interest billings,  that doing  that repeal  may be  construed to                                                               
take away that authority."                                                                                                      
                                                                                                                                
SENATOR HUGGINS suggested conferring on this. It is interesting.                                                                
                                                                                                                                
4:39:48 PM                                                                                                                    
MR.  WILLIAMS said  AOGA has  no position  on whether  [auditors]                                                               
should  be  classified.  On  the issue  of  penalties,  AOGA  has                                                               
problems with  the two penalties  referred to by Mr.  Iverson. He                                                               
noted the  $1,000 per  day for  late tax  returns in  addition to                                                               
$1,000  per day  for each  report, statement,  or other  document                                                               
that DOR considers  necessary to forecast state  revenue. It runs                                                               
from the  date that DOR  requires the information.  The penalties                                                               
are unnecessary  because there are already  significant penalties                                                               
on  the books,  and they  threaten  to become  excessive out  all                                                               
reasonable proportion  to the  nature of  the infraction  in most                                                               
situations. There already  is a 5 percent penalty  for failure to                                                               
file based on the amount of the  unpaid tax. If a company ends up                                                               
paying a  tax but  doesn't file  a return, there  may still  be a                                                               
penalty for not paying on time.  It is capped at 25 percent after                                                               
4 months and a day.                                                                                                             
                                                                                                                                
MR.  WILLIAMS said  there is  a second  one for  underpaying. The                                                               
third penalty is 5 percent  for an underpayment due to negligence                                                               
without  intent   to  defraud.  Sometimes  taxpayers   believe  a                                                               
regulation is wrong,  and their position is  legally correct. The                                                               
penalty is paid unless the  taxpayer wins. By regulation, DOR has                                                               
linked  this failure-to-pay  penalty to  the 25  percent penalty,                                                               
making it  a 30 percent  payment. There  is a 50  percent penalty                                                               
for underpayment due to fraud.  In addition, AS 43.05.130 already                                                               
provides that a  person who violates a provision of  the tax code                                                               
or a  regulation adopted under  those provisions is subject  to a                                                               
civil penalty of not more than $1,000 for each violation.                                                                       
                                                                                                                                
4:43:38 PM                                                                                                                    
MR. WILLIAMS  said in terms of  DOR's ability to use  other means                                                               
of  getting  the  information  it   needs,  43.05.010  makes  the                                                               
commissioner    hold    investigations    necessary    for    the                                                               
administration  of state  tax and  revenue laws.  "That gets  you                                                               
right into  the issue of forecasting-that's  existing authority."                                                               
The commissioner  can issue subpoenas and  require the production                                                               
of  necessary documents  and correspondence.  Section  40 of  the                                                               
general provisions of  the tax code also amplifies  on the powers                                                               
of  the  DOR  to  issue   subpoenas  and  provides  for  judicial                                                               
enforcement  of them.  If DOR  wants information  it can  get it.                                                               
With  respect  to  forecasting information,  DOR  could  just  as                                                               
easily write a  regulation on the types of  information it wants.                                                               
There is  sufficient statutory  basis for  such a  regulation. It                                                               
has  the  further  advantage  of  being  open  to  updating  when                                                               
circumstances change.  For these reasons, the  proposed penalties                                                               
are  not  necessary.  A  penalty  of  $1,000  per  day  for  each                                                               
"document" can quickly reach disproportional levels.                                                                            
                                                                                                                                
4:46:05 PM                                                                                                                    
MR. WILLIAMS said  to suppose an individual document  is given to                                                               
the DOR on a  timely basis, but copies of it  are two weeks late.                                                               
It  is the  information that  DOR needs--not  all the  documents.                                                               
This  should  be  dealt  with   in  regulations.  He  recalled  a                                                               
situation involving  the former  $25 a  day late  filing penalty,                                                               
and DOR issued  an audit for $28 million, even  though the amount                                                               
of tax was less than $4 million.  There is nothing in the bill to                                                               
indicate  the standards  for  setting the  penalty.  This is  the                                                               
administration's  bill,   so  DOR   could  have   explained  some                                                               
standards. He  said to ask the  DOR on how the  penalty should be                                                               
scaled down  from $1,000 per  day and  for what reasons.  Even if                                                               
the legislature  chooses not to proscribe  standards for reducing                                                               
the penalty,  at least DOR's  opinion can guide taxpayers  if the                                                               
penalty becomes law.                                                                                                            
                                                                                                                                
4:48:24 PM                                                                                                                    
MR. WILLIAMS asked  if he can submit testimony on  the statute of                                                               
limitations.  Qui  tam is  the  kind  of  lawsuit that  arose  in                                                               
medieval England, and it became common  in the United States as a                                                               
suit  by a  private person  brought against  someone for  alleged                                                               
fraud  against the  federal government,  usually by  overcharging                                                               
the government for  goods and services. Under it,  the lawsuit is                                                               
filed under seal  and the defendant is  forbidden from disclosing                                                               
anything  about the  case  to  anyone. The  U.S.  attorney has  a                                                               
choice of appearing  in the case and taking  over the prosecution                                                               
of   the  claims.   Otherwise,   the  plaintiff--or   relator-can                                                               
prosecute the case alone. A  successful relator gets a percentage                                                               
of  the government's  recovery plus  attorney's  fees. The  whole                                                               
concept is  inapplicable to the  concept of the oil  tax. Because                                                               
of the confidentiality  of the tax information, no  one will have                                                               
the  information  except  for company  employees  and  the  state                                                               
employees who  enforce the  tax. No one  working for  the company                                                               
preparing the tax return is  a plausible candidate, because those                                                               
people are  under oath,  and the penalties  for perjury  would be                                                               
applicable  if  a  false  return   were  knowingly  filed.  State                                                               
employees already  audit the tax returns,  so it is their  job to                                                               
find erroneous claims.                                                                                                          
                                                                                                                                
4:51:18 PM                                                                                                                    
CHAIR FRENCH asked  about people working for the  company who are                                                               
not in  charge of preparing the  returns, but may stumble  upon a                                                               
false claim or another attempt to deceive the state.                                                                            
                                                                                                                                
MR. WILLIAMS said that is a  remote possibility given the size of                                                               
even  the small  companies.  He  noted the  thousand  or tens  of                                                               
thousands of  bills Prudhoe Bay  pays each month  to contractors.                                                               
So it  is automated  as much as  possible. The  opportunities for                                                               
individuals to  intervene are slim,  because it is a  computer. A                                                               
software  error  should   be  fairly  easy  to   find,  "but  the                                                               
opportunities for a person to actually  say, 'well, is this in or                                                               
out?'--those are pretty unusual."                                                                                               
                                                                                                                                
4:53:26 PM                                                                                                                    
CHAIR FRENCH said that reasoning doesn't  go to the point that no                                                               
one working  for the  company is a  plausible qui  tam candidate.                                                               
There may  be individuals who  become aware of tax  misdeeds, and                                                               
absent  a financial  incentive, they  won't expose  their company                                                               
and risk their jobs.                                                                                                            
                                                                                                                                
MR.  WILLIAMS  said  there  are  two  people  working  in  volume                                                               
accounting at BP,  and they make sure that all  the partners know                                                               
how many barrels  of oil are being produced and  that their share                                                               
is  exactly what  they  nominated to  receive.  Other people  are                                                               
responsible for  talking with software people  regarding changes.                                                               
Otherwise, they are mostly working  with the state in response to                                                               
audit requests. The head of the  division is a federal tax person                                                               
working with the IRS. He said  his job is to provide legal advice                                                               
when  regulations change.  "I suppose  it is  me who  could be  a                                                               
whistle blower, and I can  tell you from personal experience that                                                               
if  there were  anything that  I thought  was false  or incorrect                                                               
that was  in the return, I  would blow the whistle  internally to                                                               
try to  stop us from doing  it before it  ever got so far  as I'd                                                               
have to come to the state in a qui tam proceeding."                                                                             
                                                                                                                                
4:57:11 PM                                                                                                                    
SENATOR WIELECHOWSKI  said no one  is implicating you,  but there                                                               
are  bad apples  in  organizations, and  criminal negligence  was                                                               
just pled.  There are breakdowns  in systems. This revenue  is 85                                                               
percent of  Alaska's budget. If  information is being  hid, there                                                               
is a lot  of trepidation by the  Alaska people in going  to a net                                                               
profit system, and qui tam is an extra layer of protection.                                                                     
                                                                                                                                
4:58:22 PM                                                                                                                    
MICHAEL HURLEY,  Director, Government  Relations, ConocoPhillips,                                                               
spoke  of moving  the statute  of limitations  from three  to six                                                               
years. "Our perspective was: we  were hiring more auditors, so if                                                               
you have more auditors you  shouldn't need extra time." Six years                                                               
is  a  long  time,  especially  with  11  percent  interest.  The                                                               
auditor's job is  to find underpayments, and they  always do. "We                                                               
fight about it,  and sometimes we just pay it  off, and sometimes                                                               
we  argue about  it  some  more." Going  to  six  years makes  it                                                               
difficult.                                                                                                                      
                                                                                                                                
MR. HURLEY said  reporting and penalties go together.  In the CS,                                                               
Section 14,  there is a discussion  about what is going  to be in                                                               
an  annual return.  Additional detail  is required.  That's fine,                                                               
but subsection (f)  on page 13 covers monthly  reporting. That is                                                               
analogous  to federal  quarterly  filings. The  annual filing  is                                                               
awful with forms  of all kinds and detail once  a year. Quarterly                                                               
filings are  just one little form,  and that was the  way the PPT                                                               
was set  up. He understands  the department's desire to  get more                                                               
than  just a  check, but  there are  seven things  required on  a                                                               
monthly basis plus anything else DOR  wants. "I have no clue what                                                               
that means; I don't  know if it means my entire  set of books and                                                               
records, or what?"  He said he doesn't feel  comfortable with the                                                               
DOR getting whatever it wants every month.                                                                                      
                                                                                                                                
5:03:13 PM                                                                                                                    
MR.  HURLEY said  the other  reporting relates  to forecasts.  In                                                               
asking  for  information  about  the  future,  the  tax  division                                                               
director  said it  includes whatever  the operators  and working-                                                               
interest  owners talk  about. He  said he  understands that,  but                                                               
when  there is  no working-interest  owner, it  could be  lots of                                                               
information. For  example, ConocoPhillips  regularly participates                                                               
in lease  sales, and under this  language, DNR and DOR  can share                                                               
information. So  DNR can tell  DOR to ask ConocoPhillips  what it                                                               
plans to spend on a lease sale.  That would be legal. The DOR can                                                               
require the company to tell what  it plans to spend. Sharing that                                                               
information isn't always a good thing.                                                                                          
                                                                                                                                
5:06:12 PM                                                                                                                    
CHAIR FRENCH said it is unreasonable to ask what you will spend                                                                 
for a lease next month. He said he reads it differently but                                                                     
understands his concerns.                                                                                                       
                                                                                                                                
SB 2001 was held in committee.                                                                                                  
The committee adjourned at 5:06:38 PM.                                                                                        

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