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Income Taxes
12 Months Ended
Dec. 31, 2012
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy Arkansas [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy Gulf States Louisiana [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy Louisiana [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy Mississippi [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy New Orleans [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

Entergy Texas [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.

 

System Energy [Member]
 
Income Taxes

NOTE 3. INCOME TAXES (Entergy Corporation, Entergy Arkansas, Entergy Gulf States Louisiana, Entergy Louisiana, Entergy Mississippi, Entergy New Orleans, Entergy Texas, and System Energy)

     Income taxes from continuing operations for 2012, 2011, and 2010 for Entergy Corporation and Subsidiaries consist of the following:

2012 2011 2010
(In Thousands)
Current:
  Federal  ($47,851)
  Foreign 143 130 131
  State  (41,516) 152,711 19,313
    Total  (89,224) 605,554 164,605
Deferred and non-current -- net 131,130 (311,708) 468,698
Investment tax credit
   adjustments -- net (11,051) (7,583) (16,064)
Income tax expense from 
    continuing operations $30,855 $286,263 $617,239

 

     Income taxes for 2012, 2011, and 2010 for Entergy's Registrant Subsidiaries consist of the following:

 

2012 2011
(In Thousands)
Deferred tax liabilities:
    Plant basis differences - net ($8,240,342) ($7,043,758)
    Regulatory assets       (898,143)        (930,370)
    Nuclear decommissioning trusts       (848,918)        (553,558)
    Combined unitary state taxes       (233,210)        (227,427)
    Power purchase agreements                   -         (17,138)
    Other       (485,550)        (402,097)
        Total (10,706,163) (9,174,348)
Deferred tax assets:
    Nuclear decommissioning liabilities         733,103         612,945
    Regulatory liabilities         404,852         197,554
    Pension and other post-employment benefits         358,893         315,134
    Sale and leaseback         195,074         217,430
    Accumulated deferred investment tax credit         110,690         108,338
    Provision for contingencies          61,576           28,504
    Power purchase agreements                   -
    Other         141,592         160,620
    Net operating loss carryforwards         960,235         253,518
    Capital losses           13,631           12,995
    Valuation allowance         (86,881)         (85,615)
        Total      2,936,482       1,821,423
   
Noncurrent accrued taxes (including unrecognized 
     tax benefits)       (210,534)        (814,597)
   
      Accumulated deferred income taxes and taxes accrued  ($7,980,215) ($8,167,522)

    

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers, tax credit carryovers, and other tax attributes reflected on income tax returns.

     Because it is more likely than not that the benefit from certain state net operating and capital loss carryovers will not be utilized, a valuation allowance $69.6 million and $13.6 million of has been provided on the deferred tax assets relating to these state net operating and capital loss carryovers, respectively.

     Significant components of accumulated deferred income taxes and taxes accrued for the Registrant Subsidiaries as of December 31, 2012 and 2011 are as follows:

 

     The Registrant Subsidiaries' estimated tax attributes carryovers and their expiration dates as of December 31, 2012 are as follows:

 

     As a result of the accounting for uncertain tax positions, the amount of the deferred tax assets reflected in the financial statements is less than the amount of the tax effect of the federal and state net operating loss carryovers and tax credit carryovers. 

Unrecognized tax benefits

     Accounting standards establish a "more-likely-than-not" recognition threshold that must be met before a tax benefit can be recognized in the financial statements. If a tax deduction is taken on a tax return, but does not meet the more-likely-than-not recognition threshold, an increase in income tax liability, above what is payable on the tax return, is required to be recorded. A reconciliation of Entergy's beginning and ending amount of unrecognized tax benefits is as follows:

 

 

2012

 

2011

 

2010

 

 

(In Thousands)

 

 

 

 

 

 

 

Gross balance at January 1

 

$4,387,780

 

$4,949,788

 

$4,050,491 

Additions based on tax positions related to the
current year

 


163,612 

 


211,966 

 


480,843 

Additions for tax positions of prior years

 

1,517,797 

 

332,744 

 

871,682 

Reductions for tax positions of prior years

 

(476,873)

 

(259,895)

 

(438,460)

Settlements

 

(1,421,913)

 

(841,528)

 

(10,462)

Lapse of statute of limitations

 

 

(5,295)

 

(4,306)

Gross balance at December 31

 

4,170,403 

 

4,387,780 

 

4,949,788 

Offsets to gross unrecognized tax benefits:

 

 

 

 

 

 

Credit and loss carryovers

 

(4,022,535)

 

(3,212,397)

 

(3,771,301)

Cash paid to taxing authorities

 

 

(363,266)

 

(373,000)

Unrecognized tax benefits net of unused tax attributes and payments (1)

 


$147,868 

 


$812,117 

 


$805,487 

     (1) Potential tax liability above what is payable on tax returns

     The balances of unrecognized tax benefits include $203 million, $521 million, and $605 million as of December 31, 2012, 2011, and 2010, respectively, which, if recognized, would lower the effective income tax rates. Because of the effect of deferred tax accounting, the remaining balances of unrecognized tax benefits of $3.968 billion, $3.867 billion, and $4.345 billion as of December 31, 2012, 2011, and 2010, respectively, if disallowed, would not affect the annual effective income tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.

    

Entergy has made deposits with the IRS against its potential liabilities arising from audit adjustments and settlements related to its uncertain tax positions.  Deposits are expected to be made to the IRS as the cash tax benefits of uncertain tax positions are realized.    The total amount of cash deposits shown for 2011 has been fully offset against settled liabilities which arose in 2012.

     Entergy accrues interest expense, if any, related to unrecognized tax benefits in income tax expense. Entergy's December 31, 2012, 2011, and 2010 accrued balance for the possible payment of interest is approximately $146.3 million, $99 million, and $45 million, respectively.

    

 

 

The Registrant Subsidiaries' balances of unrecognized tax benefits included amounts which, if recognized, would have reduced income tax expense as follows:

 

 

December 31,
2012

 

December 31,
2011

 

December 31,
2010

 

(In  Millions)

 

 

 

 

 

 

Entergy Arkansas

$0.6

 

$-

 

$0.2

Entergy Gulf States Louisiana

$44.0

 

$107.9

 

$129.6

Entergy Louisiana

$92.4

 

$281.3

 

$286.7

Entergy Mississippi

$3.9

 

$3.8

 

$5.3

Entergy New Orleans

 $-

 

$-

 

$-

Entergy Texas

$8.6

 

$7.3

 

$6.0

System Energy

$3.5

 

$-

 

$12.1

 
Income Tax Litigation

 

In October 2010 the U.S. Tax Court entered a decision in favor of Entergy for tax years 1997 and 1998. The issues decided by the Tax Court are as follows:

 

  • The ability to credit the U.K. Windfall Tax against U.S. tax as a foreign tax credit.  The U.K. Windfall Tax relates to Entergy's former investment in London Electricity.
  • The validity of Entergy's change in method of tax accounting for street lighting assets and the related increase in depreciation deductions.

 

The IRS did not appeal street lighting depreciation, and that matter is final. The IRS filed an appeal of the U.K. Windfall Tax decision, however, with the U.S. Court of Appeals for the Fifth Circuit in December 2010. Oral arguments were heard in November 2011. In June 2012 the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed the U.S. Tax Court decision. As a result of this decision, Entergy reversed its liability for uncertain tax positions associated with this issue. On September 4, 2012, the U.S. Solicitor General, on behalf of the Commissioner of Internal Revenue, petitioned the U.S. Supreme Court for a writ of certiorari to review the Fifth Circuit judgment.

 

Concurrent with the Tax Court's issuance of a favorable decision regarding the above issues, the Tax Court issued a favorable decision in a separate proceeding, PPL Corp. v. Commissioner, regarding the creditability of the U.K. Windfall Tax.  The IRS appealed the PPL decision to the United States Court of Appeals for the Third Circuit.  In December 2011 the Third Circuit reversed the Tax Court's holding in PPL Corp. v. Commissioner, stating that the U.K. tax was not eligible for the foreign tax credit.  PPL Corp. petitioned the U.S. Supreme Court for a writ of certiorari to review the U.S. Court of Appeals for the Third Circuit decision.  On October 29, 2012, the U.S. Supreme Court granted PPL Corp.'s petition for certiorari.    The Solicitor General's petition for writ of certiorari in Entergy's case is currently on hold pending the disposition of the PPL case.  Entergy's case will be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.  Oral argument in PPL's case was heard on February 20, 2013.

 

The total tax at issue on the U.K. Windfall Tax credit matter is $152 million, and interest on the underpayment of such tax is estimated to be $102 million resulting in total exposure of $254 million.

 

            In February 2008 the IRS issued a Statutory Notice of Deficiency for the year 2000.  The deficiency resulted from a disallowance of foreign tax credits (the same issue discussed above) as well as the disallowance of depreciation deductions on non-utility nuclear plants.  Entergy filed a Tax Court petition in May 2008 challenging the IRS treatment of these issues.  In June 2010 a trial on the depreciation issue was held in Washington, D.C.  In February 2011 a joint stipulation of settled issues was filed under which the IRS conceded its position with respect to the depreciation issue.  The outcome of the foreign tax credit matter for the year 2000 will also be determined consistent with the U.S. Supreme Court's decision in the PPL proceeding.

Income Tax Audits

 

            Entergy and its subsidiaries file U.S. federal and various state and foreign income tax returns.  Other than the matters discussed in the Income Tax Litigation section above, the IRS's and substantially all state taxing authorities' examinations are completed for years before 2005.

 

2002-2003 IRS Audit

 

In September 2009, Entergy entered into a partial agreement with the IRS for the years 2002 and 2003. In the partial agreement, Entergy did not agree to the IRS's disallowance of foreign tax credits for the U.K. Windfall Tax and the street lighting depreciation issues. As discussed above, the IRS did not appeal the Tax Court ruling on the street lighting depreciation. The U.K. Windfall tax credit issue will be governed by the U.S. Supreme Court's decision in the PPL Corp. proceeding as explained in "Income Tax Litigation", above.

 

2004-2005 IRS Audit

 

            The IRS issued its 2004-2005 Revenue Agent's Report (RAR) in May 2009.

 

            In June 2009, Entergy filed a formal protest with the IRS Appeals Division indicating disagreement with certain issues contained in the 2004-2005 RAR.  The major issues in dispute are:

 

  • Depreciation of street lighting assets (because the IRS did not appeal the Tax Court's 2010 decision on this issue, it will be fully allowed in the final Appeals Division calculations for this audit).
  • Inclusion of nuclear decommissioning liabilities in cost of goods sold for the nuclear power plants owned by the Utility resulting from an Application for Change in Accounting Method for tax purposes (the "2004 CAM").

 

During the fourth quarter 2012, Entergy settled the position relating to the 2004 CAM.   Under the settlement Entergy conceded its tax position, resulting in an increase in taxable income of approximately $2.97 billion for the tax years 2004 - 2007.  The settlement provides that Entergy Louisiana is entitled to additional tax depreciation of approximately $547 million for years 2006 and beyond.  The deferred tax asset net of interest charges associated with the settlement is $155 million for Entergy.  There was a related increase to Entergy Louisiana's member's equity account.

 

2006-2007 IRS Audit

 

            The IRS issued its 2006-2007 RAR in October 2011.  In connection with the 2006-2007 IRS audit and resulting RAR, Entergy resolved the significant issues discussed below. 

 

In August 2011, Entergy entered into a settlement agreement with the IRS relating to the mark-to-market income tax treatment of various wholesale electric power purchase and sale agreements, including Entergy Louisiana's contract to purchase electricity from the Vidalia hydroelectric facility.  See Note 8 to the financial statements for further details regarding this contract and a previous LPSC-approved settlement regarding the tax treatment of the contract.

 

With respect to income tax accounting for wholesale electric power purchase agreements, Entergy recognized income for tax purposes of approximately $1.5 billion, which represents a reversal of previously deducted temporary differences on which deferred taxes had been provided.  Also in connection with this settlement, Entergy recognized a gain for income tax purposes of approximately $1.03 billion on the formation of a wholly-owned subsidiary in 2005 with a corresponding step-up in the tax basis of depreciable assets resulting in additional tax depreciation at Entergy Louisiana.  Because Entergy Louisiana is entitled to deduct additional tax depreciation of $1.03 billion in the future, Entergy Louisiana recorded a deferred tax asset for this additional tax basis. The tax expense associated with the gain is offset by recording the deferred tax asset and by utilization of net operating losses. With the recording of the deferred tax asset, there was a corresponding increase to Entergy Louisiana's member's equity account. The agreement with the IRS effectively settled the tax treatment of various wholesale electric power purchase and sale agreements, resulting in the reversal in third quarter 2011 of approximately $422 million of deferred tax liabilities and liabilities for uncertain tax positions at Entergy Louisiana, with a corresponding reduction in income tax expense. Under the terms of an LPSC-approved final settlement, Entergy Louisiana recorded a $199 million regulatory charge and a corresponding net-of-tax regulatory liability.

 

After consideration of the taxable income recognition and the additional depreciation deductions provided for in the settlement, Entergy's net operating loss carryover was reduced by approximately $2.5 billion.

 

2008-2009 IRS Audit

In the third quarter 2008, Entergy Louisiana and Entergy Gulf States Louisiana received $679 million and $274.7 million, respectively, from the Louisiana Utilities Restoration Corporation ("LURC"). These receipts from LURC were from the proceeds of a Louisiana Act 55 financing of the costs incurred to restore service following Hurricane Katrina and Hurricane Rita. See Note 2 to the financial statements for further details regarding the financings.

 

In June 2012, Entergy effectively settled the tax treatment of the receipt of these funds, which resulted in an increase to 2008 taxable income of $129 million and $104 million for Entergy Louisiana and Entergy Gulf States Louisiana, respectively. As a result of the settlement, Entergy recorded an income tax benefit of $172 million, including $143 million for Entergy Louisiana and $20 million for Entergy Gulf States Louisiana, resulting from the reversal of liabilities for uncertain tax positions. Under the terms of an LPSC-approved settlement related to the Louisiana Act 55 financings, Entergy Louisiana and Entergy Gulf States Louisiana recorded, respectively, a $137 million ($84 million net-of-tax) and a $28 million ($17 million net-of-tax) regulatory charge and a corresponding regulatory liability to reflect their obligations to customers with respect to the settlement. See Note 8 to the financial statements for further discussion of the LPSC settlement.

 

              In the fourth quarter 2009, Entergy filed Applications for Change in Accounting Method (the "2009 CAM") for tax purposes with the IRS for certain costs under Section 263A of the Internal Revenue Code.  In the Applications, Entergy proposed to treat the nuclear decommissioning liability associated with the operation of its nuclear power plants as a production cost properly includable in cost of goods sold.  The effect of the 2009 CAM  was a $5.7 billion reduction in 2009 taxable income.  The 2009 CAM was adjusted to $9.3 billion in 2012.

 

            In the fourth quarter 2012 the IRS disallowed the reduction to 2009 taxable income related to the 2009 CAM.  Entergy has disagreed with this disallowance and will file a protest with IRS Appeals at the conclusion of the 2008-09 examination.

 

Other Tax Matters

 

            Entergy regularly negotiates with the IRS to achieve settlements.  The results of all pending litigations and audit issues could result in significant changes to the amounts of unrecognized tax benefits, as discussed above.

 

In March 2010, Entergy filed an Application for Change in Accounting Method with the IRS. In the application, Entergy proposed to change the definition of unit of property for its generation assets to determine the appropriate characterization of costs associated with such units as capital or repair under the Internal Revenue Code and related Treasury Regulations. The effect of this change was an approximate $1.3 billion reduction in 2010 taxable income for Entergy, including reductions of $292 million for Entergy Arkansas, $132 million for Entergy Gulf States Louisiana, $185 million for Entergy Louisiana, $48 million for Entergy Mississippi, $45 million for Entergy Texas, $13 million for Entergy New Orleans, and $180 million for System Energy.

 

During the second quarter 2011, Entergy filed an Application for Change in Accounting Method with the IRS related to the allocation of overhead costs between production and non-production activities. The accounting method affects the amount of overhead that will be capitalized or deducted for tax purposes. The accounting method is expected to be implemented for the 2014 tax year.