Pulp Manufacturers Scratching Their Heads Over Son of Black Liquor Ruling

U.S. pulp makers are still trying to figure out exactly what the IRS’ recent “Son of Black Liquor” ruling means, but the largest one said yesterday it sees little if any gain.

“We don’t see a huge benefit for the company,” said Timothy Nicholls, CFO of International Paper, during the company’s quarterly earnings call. “When you layer in the consideration that we would have to return the credits that we filed for last year under the alternative fuel mixture tax credits [the original black liquor tax credits] and then accrue those benefits over some period of time, we don't see the rationale for making any kind of change from what we've previously done at this point.”

Others were a bit more optimistic but still uncertain about exactly how to interpret the ruling that became public earlier this month. (For details, see IRS Brings Son of Black Liquor Back From the Dead; Ruling May Be Worth Billions to U.S. Pulp Makers and Why Tax Credits for Black Liquor Don’t Add Up | IMHO.)

Here’s the explanation presented this week by Temple-Inland’s CFO, Randy Levy, during that company’s earnings call:

“We expect to be registered as a cellulosic biofuel producer during the third quarter. We have received $228 million in cash from alternative fuel mixture tax credits for the period from late March 2009 to year-end 2009.

“We may have the potential to ultimately receive up to an additional $130 million to $140 million of after-tax credits by selecting the cellulosic biofuel producer [Son of Black Liquor] credit, about $80 million to $85 million of which is attributable to the January 1 through late March period when we were not yet mixing and about $50 million to $55 million for the incremental credit between the alternative fuel mixture credit and the cellulosic biofuel credit for the balance of the year.

“However, in order to convert from the alternative fuel mixture tax credit to the cellulosic biofuel credits the cash we previously received would have to be returned plus interest. A key piece of information for us that is currently not available is whether both credits may be claimed in the same year on different volumes. Our objective is to maximize the present value of these credits. There is still a lot of uncertainty surrounding this issue.”

The biggest uncertainty is the process for obtaining the Son of Black Liquor credits, writes Robert Tita of Dow Jones Newswires. “The IRS says companies that received 50-cent credits can't collect a second, higher credit on the same black liquor. Companies, however, could return the money from the 50-cent credit and apply for the $1.01 credit instead.” However, he notes, “the $1.01 credit would be applied as a noncash offset to companies' cash expenses for federal income taxes. The 50-cent credits were distributed as cash subsidies.”

“Given the complexities of acquiring the larger credit, companies could conclude that the reward isn't worth the effort," Tita adds. "Pursuing the higher credit also could expose paper companies to further outrage from members of Congress who remain angry over the paper industry's use of a regulatory loophole to obtain the 50-cent credit.”

Congressional outrage didn’t carry much weight or have much impact on the paper industry last year. Various members of Congress expressed outrage in the spring of 2009 when they learned that U.S. paper companies makers were receiving tax credits for doing what manufacturers of kraft pulp around the world had been doing for decades – burning black liquor to power their mills. But Congress did nothing to close the loophole before the law expired on Dec. 31, enabling pulp and paper companies to rack up more than $8 billion in direct federal subsidies.

In fact, the IRS’ logic-defying June 28 ruling looks like a gift to Congress. The relevant law requires that a qualifying cellulosic biofuel “meets the registration requirements for fuels and fuel additives established by the Environmental Protection Agency”. Normal people, and many pulp manufacturers, interpreted that to mean that a biofuel must be registered by the EPA to receive the credits and that black liquor is therefore excluded because it can’t be used as a motor fuel.

But the IRS ruling exempts black liquor from the EPA requirement specifically because it is not a motor fuel or fuel additive. (That makes me wonder what would happen if someone, perhaps a Canadian pulp manufacturer, tried to register black liquor as a motor fuel. Would the EPA’s rejection close the Son of Black Liquor loophole?)

Congress’ “pay-for” rules (that is, new programs must be paid for with offsetting cost savings or revenue gains) have led to some odd accounting methods – “odd” as in “If you, private citizen, used this kind of accounting, you’d end up in the slammer.” The ObamaCare health law includes $23 billion in “savings” from declaring black liquor ineligible for cellulosic biofuel credits starting on Jan. 1, 2010, even though no money had ever been budgeted for that alleged expense in the first place.

So how long will it take some enterprising Congressman to propose "paying for" a new multibillion-dollar program by changing that date to Jan. 1, 2009?