By Michael Tavoliero
The Hilcorp tax debate reflects the tension between free enterprise and Alaska government’s growing demand for revenue, compounded by the State’s resistance to cut its own spending and produce structural reform. Hilcorp did not evade the law; it lawfully acquired BP’s Alaska assets in a publicly known, reviewed, and approved $5.6 billion transaction involving major interests in Prudhoe Bay, Point Thomson, Milne Point, TAPS-related assets, and other critical Alaska energy infrastructure. Rather than first confronting Alaska’s own fiscal inefficiencies, bureaucratic costs, and failure to reform government operations, the State now seeks to reframe a lawful private transaction as a tax “loophole” to be closed after the fact.
The “loophole” is not a hidden scheme; it is Alaska’s own statutory framework. Current Alaska corporate income tax applies to C corporations, while pass-through entities such as S corporations, partnerships, and LLCs are treated differently because Alaska repealed its individual income tax and effectively created this exemption decades ago.
A lawful business form does not become a “loophole” simply because government later wants more revenue, or because fiscally irresponsible politicians prefer blaming a successful private operator to confronting their own failure to control spending. When the State writes the tax code, approves the investment, benefits from the capital, and then redefines the investor’s lawful structure as unfair after the fact, it is not practicing neutral tax policy; it is moving the goalposts after private capital has already been committed.
SB 92 would apply Alaska’s oil and gas corporate income tax to certain pass-through entities earning over $5 million, imposing a 9.4% tax on qualified income above that amount and applying retroactively to January 1, 2025. SB 92 stalled in the Senate Resources Committee, but the tax was added to and expanded by SB 280, which the Legislature focused on heavily at the end of the session.
The revenue claims are politically powerful but officially uncertain. Advocates cite figures ranging from $100 million to nearly $200 million, while the State’s own fiscal analysis gives no firm number and instead shows an uncertain revenue effect concentrated among a small number of companies.
Former Governor Frank Murkowski’s fairness argument is a legitimate policy position, but the free-enterprise response is equally valid: fairness cannot mean singling out one successful private operator after the State approved and benefited from a lawful transaction, simply because government later wants more revenue.
The Hilcorp tax proposal raises constitutional concerns because it is not simply a neutral, prospective tax change. If applied retroactively, aimed at a narrow class of pass-through oil-and-gas entities, or justified as a response to one company’s lawful structure, it implicates due process, equal protection, and Alaska effective-date principles. Alaska may change tax laws prospectively, but using fiscal pressure to retroactively burden lawful private investment after capital has been committed risks turning ordinary tax policy into arbitrary government extraction; conduct that would be condemned as coercive, and perhaps extortionate, if attempted by a private actor.
Free enterprise requires stable rules, predictable taxes, property rights, and equal treatment under law. The Hilcorp debate shows government attempting to reverse that order by targeting a productive private enterprise and redefining its lawful business structure as a revenue problem instead of first reforming spending, fiscal policy, and government itself.
That is the oppressive nature of government in fiscal distress. It does not merely regulate for health, safety, or fair dealing. It searches for private success and treats it as a reservoir to be tapped. The business that invested capital, assumed risk, preserved production, employed workers, and operated assets that another global company chose to sell becomes the political target because it is visible, profitable, and unpopular enough to tax.
The issue is not whether Alaska may impose taxes. It can. The issue is whether the State should impose targeted, retroactive, industry-specific taxation on a narrow class of private entities after major investment decisions have already been made under existing law. That kind of tax policy weakens the rule of law because it tells investors that compliance today does not protect them from punishment tomorrow.
A free-enterprise system does not require government to subsidize industry, protect companies from competition, or guarantee profits. But it does require government to keep faith with the legal environment it creates. If Alaska wants a different tax system, it should adopt one that is prospective, neutral, transparent, and broadly applicable. It should not politically weaponize the language of “loopholes” to convert lawful tax status into moral wrongdoing to cover its own fiscal incompetence.
The deeper problem is not Hilcorp’s entity structure. The deeper problem is Alaska’s continuing reliance on extractive revenue politics: when government lacks discipline, requires its own budget contraction through cuts it seeks new revenue from whoever is easiest to blame. Today, that target is a privately held oil and gas company. Tomorrow it may be another industry, another pass-through business, another landowner, another employer, or another local taxpayer. That is why this debate matters beyond Hilcorp.
This is therefore not merely a technical argument over S corporations and C corporations. The Hilcorp tax debate exposes how far Alaska has already moved from free enterprise toward bureaucratic hegemony. The question now is whether the State will find the strength to produce stable, prospective, and neutral rules for private investment, or further normalize a system in which government fiscal failure becomes an excuse for retroactive, targeted extraction from productive enterprises. What would look like extortion in the private sector becomes “tax policy” only because the State possesses sovereign power. That is precisely why constitutional limits matter.
The proposal raises both Alaska and U.S. constitutional issues, especially if it is retroactive or drafted narrowly enough to function as a targeted tax hit on Hilcorp. The strongest claims would be federal due process, Alaska effective-date/retroactivity limits, and equal-protection or special-classification concerns. The State would have defenses, but the constitutional issues are real and should be expressly analyzed before any such legislation is adopted.
