Ind AS 109 is applicable to commodity contracts / contracts to buy or sell non-financial items that may be settled net. What is the meaning of “net settlement”? In accordance with Ind AS 109, there are various ways in which an entity may be able to net settle a contract to buy or sell a non-financial item. These include:
a) The terms of contract permit either party to settle it net.
b) The contract does not contain any specific terms permitting parties to settle it net. However, the entity has a past practice of settling similar contracts net. For example, net settlement may occur either with the counterparty, or by entering into an offsetting contract or by selling the contract before it is exercised or lapses. Infrequent historical incidences of net settlement in response to events that could not have been foreseen at inception of a contract would not taint an entity’s ability to apply the own-use exception to other contracts; for example, an unplanned break-down in a power plant. However, any regular or foreseeable events leading to net settlements would taint the entity’s ability to apply the own-use exception to other contracts.
c) For similar contracts, the entity has a practice of taking delivery of the underlying and selling it within a short period after delivery to generate a profit from short-term fluctuations in price or dealer’s margin.
d) Non-financial item covered in the contract is readily convertible to cash.
However, it is noted that Ind AS 109 will not apply to all contracts that may be settled net in cash. A contract for purchase or sale of non-financial items will still be scoped out from Ind AS 109, if the entity can demonstrate that the contract was entered into and continue to be held for the receipt / delivery of a non-financial item in accordance with its expected purchase, sale or usage requirements. This is commonly referred to as ‘own use exception’ or ‘normal purchase or sale exception (NPSE)’.
There was always a question around how to apply the own-use exception to renewable energy contracts for which the source for production of the renewable electricity is nature-dependent so that supply cannot be guaranteed at particular times or in particular volumes. Examples of sources include wind-, solar- and hydroelectricity.
Consider the example below.
EXAMPLE
Kleen Co. enters into a power purchase agreement (PPA) with a windmill operator to purchase electricity. Both Kleen and the operator are connected through a common national grid. The PPA obliges Kleen to acquire a 45% fixed share of the wind energy produced by the operator. The price per unit for the energy is fixed in advance and remains stable throughout the contract duration of 25 years. The operator does not guarantee a specific amount of output (energy) but estimates with 80% probability an expected amount. The energy produced is transferred to Kleen through the national grid.
The total energy demand of Kleen by far exceeds both the contracted share of the estimated output and the contracted share of the peak output of the wind park. However, Kleen does not operate its production facilities 24/7 but pauses production during the night times, on weekends and holiday season. There is thus a mismatch between the demand profile of Kleen and the supply profile of the wind park.
Kleen is obliged to acquire the energy of the wind park in the amount (45% of the current production volume) and at the time it is produced. Since Kleen has no feasible option to store the energy, it sells energy that cannot be consumed immediately (e.g., on weekends or overnight) to the spot market and repurchases (at least) the same amount from that market at times when the production facilities are operated. The windmill operator continues to transfer the amounts of energy fed into the grid to the account of Kleen and Kleen has to sell unused amounts from its account to third parties. The process of selling and repurchasing is designed to be an autopilot that acts without the intention of trading to realise profits and has the sole intention to enable the Kleen’s operations. The process of selling and repurchasing is delegated to a service provider.
For the purpose of this discussion, it is assumed that the conditions do not change throughout subsequent periods and that some market transactions become necessary for unused amounts of energy.
Will own-use exception apply in this case, and consequently whether the above PPA is to be treated as a derivative or not?
Kleen has considered aspects relating to whether the PPA is accounted for applying another Ind AS Accounting Standard, for example Ind AS 110 Consolidated Financial Statements, Ind AS 111 Joint Arrangements and / or Ind AS 116 Leases, and believe those do not apply in the extant fact pattern.
RELEVANT REQUIREMENTS OF IND AS 109 FINANCIAL INSTRUMENTS
Paragraph 2.4 of Ind AS 109 states:
This Standard shall be applied to those contracts to buy or sell a non financial item that can be settled net in cash or another financial instrument, or by exchanging financial instruments, as if the contracts were financial instruments, with the exception of contracts that were entered into and continue to be held for the purpose of the receipt or delivery of a non financial item in accordance with the entity’s expected purchase, sale or usage requirements. However, this Standard shall be applied to those contracts that an entity designates as measured at fair value through profit or loss in accordance with paragraph 2.5.
Paragraph 2.6 of Ind AS 109 states:
There are various ways in which a contract to buy or sell a non- financial item can be settled net in cash or another financial instrument or by exchanging financial instruments. These include:
(a) when the terms of the contract permit either party to settle it net in cash or another financial instrument or by exchanging financial instruments;
(b) when the ability to settle net in cash or another financial instrument, or by exchanging financial instruments, is not explicit in the terms of the contract, but the entity has a practice of settling similar contracts net in cash or another financial instrument or by exchanging financial instruments (whether with the counterparty, by entering into offsetting contracts or by selling the contract before its exercise or lapse);
(c) when, for similar contracts, the entity has a practice of taking delivery of the underlying and selling it within a short period after delivery for the purpose of generating a profit from short-term fluctuations in price or dealer’s margin; and
(d) when the non-financial item that is the subject of the contract is readily convertible to cash.
A contract to which (b) or (c) applies is not entered into for the purpose of the receipt or delivery of the non financial item in accordance with the entity’s expected purchase, sale or usage requirements and, accordingly, is within the scope of this Standard. Other contracts to which paragraph 2.4 applies are evaluated to determine whether they were entered into and continue to be held for the purpose of the receipt or delivery of the non financial item in accordance with the entity’s expected purchase, sale or usage requirements and, accordingly, whether they are within the scope of this Standard.
ACCOUNTING FOR THE PPA
On the date of inception of the contract, Kleen regards the sole purpose of the PPA as a contract to buy a non-financial item as it is entered for the purpose of the receipt of energy in accordance with the it’s expected usage requirements as laid out in Ind AS 109.2.4. Kleen does not designate the contract as measured at fair value through profit or loss in accordance with Ind AS 109.2.5. Kleen views the difference in prices (lower prices during night times, on weekends and during holiday season when production is paused vs. higher prices when repurchased on spot markets during peak times) as costs of storage, i.e., it uses the energy spot market as a storage facility. Kleen does not operate as a trading party in the market, the production schedule and the consumption profile dictate spot price transactions.
Kleen further analyses whether the contract can be settled net in cash in accordance with Ind AS 109.2.6.
Kleen is always in a net purchaser position, i.e., it buys more energy from the spot market than it has sold to it based on a monthly view (meaning that for every calendar month, the Kleen has purchased more energy on spot markets than it has sold). The average purchase price exceeds the average sale’s price, so that Kleen incurs expenses for “storing” the energy on sport markets which is part of the fee paid to a service provider involved to sell unused amounts of energy to and repurchase additional demands from the grid/spot markets.
The various views are presented below.
VIEW A
Kleen assesses at the inception of the contract that:
(a) the terms of the contract do not provide for an option to settle net in cash or by exchanging financial instruments.
(b) Kleen has no practice of settling similar contracts net in cash or another financial instrument or by exchanging financial instruments.
(c) Kleen intends to sell unwanted energy out of the contract to the spot market and also intends to purchase at least the same amount of energy at times when it is needed. Kleen uses the spot market as a storage mechanism and does not intend to generate profits from those transactions although it cannot rule out that some transactions will lead to profits or losses. Transactions on the spot market are solely used to store the energy.
(d) Kleen assesses the non-financial item to be readily convertible to cash as there is an active market where unused energy can be sold and purchased at any time.
Kleen concludes that the own-use-exception applies to its contract because it is entered into and continues to be held for the purpose of taking delivery of the non-financial asset (energy) in accordance with the entity’s expected (energy) consumption.
VIEW B
Kleen expects transactions on the spot market already at inception of the contract for the amount of energy it cannot use when it is produced. Under View B this would disqualify the contract from the application of the own-use-exception because the contract was not – in its entirety – being held to the purpose of the receipt of the energy at the specific time of production (Ind AS 109.2.4) but with some anticipated sales transactions.
VIEW C
As Kleen intends to sell unused energy to the spot market, it creates a practice of settling similar contracts on the spot market and therefore the contract is not entered into for the purpose of the receipt of the energy (Ind AS 109.2.6(b)).
VIEW D
Under this View D, the transactions on the spot market may lead to a breach of the requirement set out in Ind AS 109.2.6(c) (generating profit from short term fluctuations in price or dealer’s margin) because Kleen cannot rule out that profit arises from some sales transactions, even though this is not intended.
AMENDMENTS TO IND AS 109
As can be seen above, multiple views were possible. However, Ind AS 109 is now proposed to be amended with respect to contracts referencing nature-dependent electricity that requires an entity to buy and take delivery of the electricity when it is generated. These contractual features expose the entity to the risk that it would be required to buy electricity during a delivery interval in which the entity cannot use the electricity. The entity might also have no practical ability to avoid making sales of unused electricity because the design and operation of the electricity market in which the electricity is transacted under the contract require any amounts of unused electricity to be sold within a specified time. Such sales are not necessarily inconsistent with the contract being held in accordance with the entity’s expected usage requirements. An entity entered into and continues to hold such a contract in accordance with its expected electricity usage requirements if the entity has been, and expects to be, a net purchaser of electricity for the contract period. An entity is a net purchaser of electricity if it buys sufficient electricity to offset the sales of any unused electricity in the same market in which it sold the electricity.
In determining whether an entity is a net purchaser of electricity, the entity shall consider reasonable and supportable information (that is available without undue cost or effort) about its past, current and expected future electricity transactions over a reasonable amount of time. The entity identifies ‘a reasonable amount of time’ by considering the variability in the amount of electricity expected to be generated due to the seasonal cycle of the natural conditions and the variability in the entity’s demand for electricity due to its operating cycle. In determining whether the entity has been a net purchaser, ‘a reasonable amount of time’ shall not exceed 12 months.
An entity shall apply these amendments for annual reporting periods beginning on or after 1st April, 2026. Earlier application is not permitted. Some of the amendments are subject to prospective application and others subject to retrospective application.