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Westrock Virginia Corp. v. United States

United States Court of Appeals, Federal Circuit

June 28, 2019

WESTROCK VIRGINIA CORPORATION, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of Federal Claims in No. 1:15-cv-00355-LKG, Judge Lydia Kay Griggsby.

          Jerry Stouck, Greenberg Traurig LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Pamela J. Marple, Michael J. Schaengold.

          Andrew M. Weiner, Tax Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Bruce R. Ellisen, Richard E. Zuckerman.

          Before Newman, Linn, and Wallach, Circuit Judges.

          LINN, CIRCUIT JUDGE.

         WestRock Virginia Corporation ("WestRock") appeals a decision of the United States Court of Federal Claims ("Claims Court") affirming the Department of the Treasury's award of a cash grant to WestRock in an amount that WestRock contends is less than the grant amount required under Section 1603 of the American Recovery and Reinvestment Act of 2009 ("Section 1603"). WestRock Va. Corp. v. United States, 136 Fed.Cl. 267 (2018). Because the Claims Court correctly determined that the amount of Treasury's grant award was consistent with Section 1603, we affirm.

         I

         In 2009, President Obama signed the American Recovery and Reinvestment Act ("Recovery Act") into law to encourage investments in clean energy property. Pub. L. No. 111-5, 123 Stat 115, 115-16 ("The purposes of this Act include . . . invest[ing] in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits."). At the time of enactment, Section 48 of the Internal Revenue Code ("IRC" or "Code") already encouraged such investments by providing lump sum, investment tax credits for certain qualifying property. But, because tax credits are beneficial only if one is already generating income, Congress enacted Section 1603 of the Recovery Act to create an alternate program that provides cash grants in lieu of a tax credit to investors for certain qualifying investments. See H.R. Rep. No. 111-16 at 620- 21 ("It is intended that the grant provision mimic the operation of the credit under [IRC] section 48."). Section 1603, which is administered by Treasury, recites, in relevant part:

SEC. 1603. GRANTS FOR SPECIFIED ENERGY PROPERTY IN LIEU OF TAX CREDITS.
(a) IN GENERAL.-Upon application, the Secretary of the Treasury shall, subject to the requirements of this section, provide a grant to each person who places in service specified energy property to reimburse such person for a portion of the expense of such property as provided in subsection (b).
** *
(b)GRANT AMOUNT.-
(1)IN GENERAL.-The amount of the grant under subsection (a) with respect to any specified energy property shall be the applicable ...

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