Were a utility's electricity sales through electric-vehicle charging stations subject to Florida sales and gross receipts taxes?

Plain-English summary

Florida applied both sales tax and gross receipts tax to the utility's electricity sales in the electric-vehicle charging arrangements described in the ruling.

For electricity sold directly through utility-owned charging stations, the taxable charges included applicable charging-network and vehicle-idling fees under the utility's tariff. The ruling states a 4.35% state sales-tax rate for those electricity sales and concludes that gross receipts tax also applied.

The same two taxes applied when the utility sold electricity to nonutility companies that operated charging stations. That conclusion did not change when the charging company billed drivers by kilowatt-hour, by time, or through a flat fee. The Department explained that the nonutility companies provided licenses to use their stations rather than making retail electricity sales under section 366.94(1).

What this means for you

Electric utilities

Electricity delivered through EV charging can remain a taxable utility sale even though the customer accesses and pays for it through a charging network or mobile application.

Charging-station operators

A nonutility's billing method did not turn the utility's sale of electricity to that operator into an exempt resale on these facts.

Common questions

Were direct sales to EV drivers taxable? Yes, for both sales tax and gross receipts tax.

Were network-provider and idle fees included? Yes, when applicable under the described tariff.

Did the third-party operator's billing method matter? No. Kilowatt-hour, time-based, and flat-fee charging all produced the same result for the utility's sale.

Citations and references

• Fla. Stat. Sec. 212.02(19)
• Fla. Stat. Sec. 212.05(1)(e)1.c.
• Fla. Stat. Sec. 203.01
• Fla. Stat. Sec. 203.012(3)
• Fla. Stat. Sec. 366.94(1)
• Fla. Admin. Code R. 12A-1.053(1)(a)
• Fla. Admin. Code R. 12B-6.0015(5)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 21A-003

Original ruling text

QUESTIONS:

1. Whether Taxpayer’s sales of electricity directly to electric vehicle owners are subject to sales
   tax.
2. Whether Taxpayer’s sales of electricity directly to electric vehicle owners are subject to gross
   receipts tax.
3. Whether Taxpayer’s sales of electricity to non-utility companies providing vehicle charging
   services are subject to sales tax:
   a. when the company charges vehicle owners on a kilowatt basis,
   b. when the company charges vehicle owners on a time basis, and/or
   c. when the company charges vehicle owners on a flat fee basis.
4. Whether Taxpayer’s sales of electricity to non-utility companies providing vehicle charging
   services are subject to gross receipts tax:
   a. when the company charges vehicle owners on a kilowatt basis,
   b. when the company charges vehicle owners on a time basis, and/or
   c. when the company charges vehicle owners on a flat fee basis.

RESPONSES:

1. Taxpayer’s sales of electricity directly to electric vehicle owners are subject to sales tax.
2. Taxpayer’s sales of electricity directly to electric vehicle owners are subject to gross receipts
   tax.
3. Taxpayer’s sales of electricity to non-utility companies providing vehicle charging services are
   subject to sales tax:
   a. when the company charges vehicle owners on a kilowatt basis,
   b. when the company charges vehicle owners on a time basis, and
   c. when the company charges vehicle owners on a flat fee basis.

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 2

4. Taxpayer’s sales of electricity to non-utility companies providing vehicle charging services are
   subject to gross receipts tax:
   a. when the company charges vehicle owners on a kilowatt basis,
   b. when the company charges vehicle owners on a time basis, and
   c. when the company charges vehicle owners on a flat fee basis.

February 5, 2021

XXXXXX
XXXXXX
XXXXXX
XXXXXX
Re:

Technical Assistance Advisement No. -- 21A-003
Sales and Use Tax – Electric Vehicle Charging Stations
XXXXXX (“Taxpayer”)
FEI No. XXXXXX
BP No. XXXXXX
Sections 212.02, 212.05, 212.06, 203.01, 366.02, and 366.94, Florida Statutes (“F.S.”)
Rules 12A-1.039, 12A-1.053, and 12B-6.0015, Florida Administrative Code (“F.A.C.”)

Dear XXXXXX:
This letter is a response to your petition on behalf of XXXXXX (“Taxpayer”), dated XXXXXX for the
Florida Department of Revenue’s (the “Department’s”) issuance of a Technical Assistance
Advisement ("TAA") with regards to the taxability of Taxpayer’s sales of electricity directly to
electric vehicle owners and Taxpayer’s sales of electricity to third-party companies providing
electric vehicle charging services to vehicle owners pursuant to Section 212.04(1)(d), F.S. Your
petition has been carefully examined and the Department finds it to be in compliance with the
requisite criteria set forth in Chapter 12-11, Florida Administrative Code. This response to your
request constitutes a TAA and is issued to you under the authority of s. 213.22, F.S.

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 3

Requested Advisement

1. Whether Taxpayer’s sales of electricity directly to electric vehicle owners are subject to sales
   tax.
2. Whether Taxpayer’s sales of electricity directly to electric vehicle owners are subject to gross
   receipts tax.
3. Whether Taxpayer’s sales of electricity to non-utility companies providing vehicle charging
   services are subject to sales tax:
   d. when the company charges vehicle owners on a kilowatt basis,
   e. when the company charges vehicle owners on a time basis, and/or
   f. when the company charges vehicle owners on a flat fee basis.
4. Whether Taxpayer’s sales of electricity to non-utility companies providing vehicle charging
   services are subject to gross receipts tax:
   d. when the company charges vehicle owners on a kilowatt basis,
   e. when the company charges vehicle owners on a time basis, and/or
   f. when the company charges vehicle owners on a flat fee basis.
   Brief Answer
5. Taxpayer’s sales of electricity directly to electric vehicle owners are subject to sales tax.
6. Taxpayer’s sales of electricity directly to electric vehicle owners are subject to gross receipts
   tax.
7. Taxpayer’s sales of electricity to non-utility companies providing vehicle charging services are
   subject to sales tax:
   d. when the company charges vehicle owners on a kilowatt basis,
   e. when the company charges vehicle owners on a time basis, and
   f. when the company charges vehicle owners on a flat fee basis.
8. Taxpayer’s sales of electricity to non-utility companies providing vehicle charging services are
   subject to gross receipts tax:
   d. when the company charges vehicle owners on a kilowatt basis,
   e. when the company charges vehicle owners on a time basis, and

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 4

f. when the company charges vehicle owners on a flat fee basis.
Facts As Provided
Taxpayer’s letter provides the following in part:
XXXXXX (“Taxpayer”), a Florida utility, generates and supplies electrical power to
customers across its service territory. XXXXXX
The XXXXXX tariff provides the vehicle charging stations may be accessed by any
person (“User”) at Taxpayer-owned stations installed at Taxpayer or Host
locations. Any User must register an account with the Taxpayer’s mobile
application or network provider, including payment information, prior to charging
the electronic vehicle.
The proposed rate for the sale of electricity is $ XXXXXX/kWh. Charging network
fees as determined by the charging station network provider may apply at certain
stations. Vehicle idling fees at a rate up to of $ XXXXXX per minute following a tenminute grace period may apply at certain stations located in close proximity to
highway corridors or other highly trafficked areas. The rates applicable to the
specific station including the rate per kWh, taxes and charging network provider
and idle fees will be visible to the users via the app and/or display. Users will be
notified when the charging session is complete via the display located at the
charging dispenser and through the Company’s mobile application and will have
the ability to obtain a detailed receipt of the charge session.
Additionally, Taxpayer sells electricity to third-party companies that operate
electric vehicle charging stations located across Taxpayer’s service territory. These
vehicle charging companies may charge customers for their usage on a kilowatt
basis (directly related to the electricity consumed), time basis, flat fee, or other
method.
Taxpayer included with its request the following documentation:

1. XXXXXX,
2. Form DR-835, and
3. Statement of Deletions.

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 5

Taxpayer’s Argument
It is Taxpayer’s position that:

1. The charges for Taxpayer’s sales of electricity directly to electric vehicle owners, including any
   applicable network provider and idle fees, provided pursuant to the pilot program tariff are
   subject to sales tax.
2. The charges for Taxpayer’s sales of electricity directly to electric vehicle owners, including any
   applicable network provider and idle fees, provided pursuant to the pilot program tariff are
   subject to gross receipts tax.
3. The charges for Taxpayer’s sales of electricity to non-utility companies providing vehicle
   charging services are subject to sales tax regardless of the methodology used to calculate the
   charges to the electric vehicle owners.
4. The charges for Taxpayer’s sales of electricity to non-utility companies providing vehicle
   charging services are subject to gross receipts tax regardless of the methodology used to
   calculate the charges to the electric vehicle owners.
   Applicable Law and Discussion
   Sales Tax
   Section 212.05, F.S., provides that the sale of tangible personal property is subject to tax. All
   sales of tangible personal property in the State of Florida are subject to tax, unless specifically
   exempt by Chapter 212, F.S. Section 212.02(19), F.S., defines tangible personal property as
   "personal property which may be seen, weighed, measured, or touched, or is in any manner
   perceptible to the senses, including electric power or energy." (Emphasis added.) Section
   212.05(1)(e)1.c., F.S., provides that the tax rate for sales of electrical power or energy is 4.35
   percent.”
   Accordingly, Rule 12A-1.053(1)(a), F.A.C., indicates that “[t]he sale of electric power or energy by
   an electric utility is taxable. The sale of electric power or energy for use in residential
   households, to owners of residential models, or to licensed family day care homes by utilities
   who are required to pay the gross receipts tax imposed by subparagraph 203.01(1)(a)1., F.S., is
   exempt. Also exempt is electric power or energy sold by such utilities and used in the common
   areas of apartment houses, cooperatives, and condominiums, in residential facilities . . ..”
   (Emphasis added.)

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 6

Section 366.02(2), F.S., defines “electric utility” as “. . . any municipal electric utility, investorowned electric utility, or rural electric cooperative which owns, maintains, or operates an electric
generation, transmission, or distribution system within the state.”
Rule 12A-1.039(1), F.A.C., declares that “[i]t is the specific legislative intent that each and every
sale, use, storage, consumption, or rental is taxable, unless such sale, use, storage, consumption,
or rental is specifically exempt. The exempt nature of the transaction must be established by the
selling dealer.” Subparagraph (b) of this same rule provides that a sale for resale is exempt from
sales and use tax when the sale complies with the requirements of such rule.
Gross Receipts Taxes
Section 203.01, F.S., imposes a tax on gross receipts from utility services that are delivered to a
retail consumer in this state. Section 203.012(3), F.S., defines “utility services” as “. . . electricity
for light, heat, or power . . . including transportation, delivery, transmission, and distribution of
the electricity . . ..” The applicable tax rate to electrical power or energy is 2.6 percent. The gross
receipts tax is levied on charges for, or the use of, electrical power or energy that is subject to
sales and use tax pursuant to ss. 212.05(1)(e)1.c., or 212.06(1), F.S. If a transaction or use is
exempt from sales and/or use tax, the transaction or use is also exempt from the gross receipts
tax imposed by s. 203.01, F.S. The gross receipts tax applies to charges for electrical power or
energy and is due and payable at the same time as the sales and use tax.
Furthermore, s. 203.01(1)(c)1., F.S., declares that this tax “. . . shall be levied against the total
amount of gross receipts received by a distribution company for its sale of utility services if the
utility service is delivered to the retail consumer by a distribution company and the retail
consumer pays the distribution company a charge for utility service which includes a charge for
both the electricity and the transportation of electricity to the retail consumer.”
The gross receipt tax does not apply to “[t]he sale or delivery of electricity to a public or private
utility . . . for resale, or as part of an electrical interchange agreement or contract between such
utilities for the purpose of transferring more economically generated power . . ..” (Emphasis
added.) It does not apply to the wholesale sales of electric transmission service, either.
Accordingly, Rule 12B-6.0015(5), F.A.C., provides, in pertinent part, that the sale, transportation,
or delivery of utility services for resale is only exempt from the gross receipts tax if such sale,
transportation, or delivery is documented in strict compliance with the rule. Distribution
companies must obtain resale certificates from customers who purchase transportation,
delivery, or utility services for resale.
Electric Vehicle Charging Stations
Pursuant to s. 366.94(1), F.S., “[t]he provision of electric vehicle charging to the public by a
nonutility is not the retail sale of electricity for the purpose of this chapter.”

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 7

Taxpayer’s sales of electricity directly to electric vehicle owners
Based on the fact provided, Taxpayer, a registered utility, intends to sell electricity directly to
electric vehicle owners, through Taxpayer-owned charging stations installed at Taxpayer or Host
Locations. Specifically, under the XXXXXX, Taxpayer will provide utility service directly to electric
vehicle owners. None of the statutory exemptions applies to these sales; therefore, the charges
for such electricity, including any applicable network provider and idle fees, provided pursuant
to the pilot program tariff are subject to sales tax at the state rate of 4.35 percent. Consequently,
these charges are subject to the gross receipts tax.
Taxpayer’s sales of electricity to non-utility companies providing vehicle charging services
Based on the fact provided, Taxpayer, a registered utility, sells electricity to companies providing
charging stations to electric vehicle owners. Most of these companies are self-described nonutilities which, pursuant to s. 366.94(1), F.S., are not selling electricity at retail when providing
electric vehicle charging stations to the public. These non-utility companies are not selling
electricity but providing a license to use their charging stations. None of the statutory
exemptions applies to these sales; therefore, Taxpayer’s sales of electricity to non-utility
companies providing charging stations to vehicle owners, are subject to the sales tax at the state
rate of 4.35 percent. Consequently, these sales are subject to gross receipts tax.
Conclusion
Taxpayer’s sales of electricity to non-utility companies providing charging stations to electric
vehicle owners are subject to both, sales and gross receipts taxes.
Taxpayer’s sales of electricity directly to electric vehicle owners through Taxpayer-owned
charging stations are subject to both, sales and gross receipts taxes.
This response constitutes a Technical Assistance Advisement under section 213.22, F.S., which is
binding on the Department only under the facts and circumstances described in the request for
this advice as specified in section 213.22, F.S. Our response is predicated on those facts and the
specific situation summarized above. You are advised that subsequent statutory or
administrative rule changes, or judicial interpretations of the statutes or rules, upon which this
advice is based, may subject similar future transactions to a different treatment than that
expressed in this response. You are further advised that this response, your request and related
backup documents are public records under Chapter 119, F.S., and are subject to disclosure to
the public under the conditions of section 213.22, F.S. Confidential information must be deleted
before public disclosure. In an effort to protect confidentiality, we request you provide the
undersigned with an edited copy of your request for Technical Assistance Advisement, the
backup material, and this response, deleting names, addresses, and any other details which might

XXXXXX
February 05, 2021
Florida Department of Revenue
Page 8

lead to identification of the taxpayer. Your response should be received by the Department
within 15 days of the date of this letter.
Sincerely,

Ivonne De Feria-Molini
Ivonne De Feria-Molini
Tax Law Specialist
Technical Assistance & Dispute Resolution
Record ID: 437532