If a company operates an EV charging station and sells electricity at retail to drivers, does it -- rather than the electric cooperative or utility that supplied the power -- have to register with the Department and collect and remit the Electricity Excise Tax?

Plain-English summary

The president/CEO of a company (referred to here as COMPANY) wrote to the Illinois Department of Revenue after seeing an earlier 2021 GIL (ST 21-0040) stating that a person operating an electric vehicle (EV) charging station and selling electricity must register with the Department and collect and remit the Electricity Excise Tax. Because an electric cooperative would typically already collect and remit the Electricity Excise Tax on power it supplies, COMPANY wanted to confirm the cooperative was handling the tax correctly and asked several related questions: should the electric cooperative NOT collect and remit the tax if the EV charging station must do so (to avoid the tax being collected twice); what happens to the cooperative if the charging station fails to collect and remit the tax; what the cooperative should verify or keep on file (such as a Certificate of Resale, Form CRT-61, or a check of the Department's "Verify a Registered Business" tool) if only the charging station is responsible; and whether it matters if the charging station bills by time rather than by kilowatt-hour.

The Department responded with a GIL rather than resolving the inquiry as a binding Private Letter Ruling. It explained that the Electricity Excise Tax Law (35 ILCS 640/2-4; 86 Ill. Adm. Code 511.110) taxes the privilege of using electricity purchased for use or consumption in Illinois. The tax must be collected from the purchaser by the "delivering supplier" -- defined at 86 Ill. Adm. Code 511.100 as the last of the suppliers engaged in delivering electricity to a specific purchaser before that purchaser receives it, in any case where more than one supplier participates in the delivery chain. Delivering suppliers add the tax to the purchase price they charge the purchaser; if a delivering supplier doesn't collect the tax, the purchaser must pay it directly to the Department (35 ILCS 640/2-7; 86 Ill. Adm. Code 511.200).

Applying that framework, the Department confirmed COMPANY's understanding: a company selling electricity to an EV charging station operator is making a sale for resale and is not responsible for collecting and remitting the tax on that sale. The EV charging station operator that then sells electricity at retail to consumers is instead the last supplier in the delivery chain -- the "delivering supplier" -- and so must register with the Department and collect and remit the Electricity Excise Tax based on kilowatt-hours used or consumed by its customers. The Department cited its own prior GIL, ST 21-0400-GIL (Sept. 17, 2021), as consistent with this conclusion.

The Department also walked through the resale documentation mechanics: to treat a sale to the charging station as a sale for resale, the upstream seller (e.g., the electric cooperative) must obtain a valid Certificate of Resale from the purchaser, containing the seller's and purchaser's names and addresses, a description of the property purchased for resale, the purchaser's (or an authorized agent's) signature and date, and the purchaser's registration number. Sellers may accept a Form CRT-61 or an equivalent certificate and generally are not required to independently verify that the purchaser actually resells the product, but must exercise good faith in accepting these certificates. The registration number lets a seller confirm the purchaser is properly registered; if a seller fails to ensure proper registration, the Department can look to the seller for the tax (citing Tri-American Oil Company v. Department of Revenue, 102 Ill. 2d 234, 238 (1984)). A seller may check a submitted registration number using the Department's "Verify a Registered Business" tool, and it has been held proper for the Department to disallow a Certificate of Resale containing an inactive or discontinued registration number (citing Rock Island Tobacco v. Department of Revenue, 87 Ill. App. 3d 476, 478 (1980)).

What this means for you

EV charging station operators

If you sell electricity at retail to EV drivers, you are the "delivering supplier" under 86 Ill. Adm. Code 511.100 because you are the last supplier in the chain before the electricity reaches the retail purchaser. That means you -- not your upstream electric cooperative or utility -- must register with the Illinois Department of Revenue and collect and remit the Electricity Excise Tax, calculated on the kilowatt-hours your customers actually use or consume. This holds even though your own purchase of power from the cooperative is treated as a sale for resale (and so isn't itself taxed at that stage).

Electric cooperatives and utilities that supply EV charging stations

A sale of electricity to a company operating an EV charging station is a sale for resale, so you are not responsible for collecting and remitting the Electricity Excise Tax on that particular sale -- the charging station operator handles that downstream. To support treating the sale as a resale, obtain a valid Certificate of Resale (Form CRT-61 or equivalent) from the charging station operator, containing all the required elements (names/addresses, description of property, signature/date, registration number). You aren't generally required to verify the purchaser actually resells the electricity, but you must act in good faith, and you can check a suspect registration number through the Department's "Verify a Registered Business" tool -- an inactive or discontinued number can invalidate the certificate and expose you to the tax if the Department later challenges the resale claim.

Accountants and tax professionals

This GIL confirms the "delivering supplier" concept applies to EV charging infrastructure the same way it applies to other multi-supplier electricity delivery chains: tax liability follows the last supplier before the retail purchaser, regardless of how that supplier structures its own billing (the Department's answer does not turn on whether the charging station bills by time or by kilowatt-hour -- the tax itself is calculated based on kilowatt-hours used or consumed). Advise clients operating charging stations to register for the Electricity Excise Tax, and advise upstream utilities/cooperatives supplying those stations to maintain proper Certificates of Resale to avoid secondary liability under the Tri-American Oil line of cases.

Common questions

Q: Who has to collect and remit the Electricity Excise Tax when an electric cooperative supplies power to an EV charging station, which then resells it to drivers? A: The EV charging station operator, not the electric cooperative. The charging station is the "delivering supplier" -- the last supplier in the chain before the retail purchaser receives the electricity -- so it must register with the Department and collect and remit the tax based on kilowatt-hours used or consumed by its customers.

Q: Does the electric cooperative face any risk if the EV charging station fails to collect and remit the tax? A: The GIL doesn't say the cooperative becomes liable for the charging station's tax in that scenario, but it does note a related risk: if a seller (like the cooperative) fails to ensure its purchaser is properly registered with the Department when claiming a sale-for-resale exemption, the Department can look to that seller for the tax, per Tri-American Oil Company v. Department of Revenue.

Q: What must an electric cooperative keep on file to support treating a sale to a charging station as a sale for resale? A: A valid Certificate of Resale (Form CRT-61 or an equivalent statement) containing the seller's and purchaser's names and addresses, a description of the electricity/property purchased for resale, the purchaser's signature (or an authorized agent's) and the date, and the purchaser's registration number.

Q: Does it matter if the EV charging station charges by time instead of by the amount of electricity (kWh) delivered? A: The Department's response describes the tax as based on kilowatt-hours used or consumed by customers, and it did not identify the charging station's own billing method (time-based vs. kWh-based) as changing who the delivering supplier is or that supplier's obligation to collect and remit the tax.

Q: Can this GIL be relied on as binding legal protection for a specific company's exact arrangement? A: No. A GIL is not a statement of Department policy and is not binding on the Department, even for the company that requested it. It only directs taxpayers to the relevant statutes and regulations. A company wanting a binding answer on its own specific facts would need to request a Private Letter Ruling under 2 Ill. Adm. Code 1200.110.

Citations and references

Statutes:

• 35 ILCS 640/2-4 (imposition of the Electricity Excise Tax)
• 35 ILCS 640/2-7 (collection of tax by delivering supplier; direct payment if not collected)

Regulations:

• 86 Ill. Adm. Code 511.100 (definition of "delivering supplier")
• 86 Ill. Adm. Code 511.110 (imposition of tax)
• 86 Ill. Adm. Code 511.200 (collection of tax from purchasers)
• 2 Ill. Adm. Code 1200.110 (Private Letter Ruling procedure)
• 2 Ill. Adm. Code 1200.120 (General Information Letter procedure)

Prior Department guidance cited:

• ST 21-0400-GIL (Sept. 17, 2021)

Case law cited:

• Tri-American Oil Company v. Department of Revenue, 102 Ill. 2d 234, 238 (1984) (seller can be liable for tax if it fails to ensure purchaser is properly registered)
• Rock Island Tobacco v. Department of Revenue, 87 Ill. App. 3d 476, 478 (1980) (proper for Department to disallow a Certificate of Resale with inaccurate/inactive registration information)

Source

• Landing page: https://taxarchive.illinois.gov/research/legal/letter-rulings/sales-tax/2023.html
• Original PDF: https://tax.illinois.gov/content/dam/soi/en/web/taxarchive/research/legal/letter-rulings/sales-tax/2023/st23-0030-gil.pdf

Original ruling text

ST-23-0030-GIL 10/10/2023 ELECTRICITY EXCISE TAX
A person that operates an EV charging station selling electricity at retail to consumers is the last supplier engaged in delivering electricity is the delivering supplier for purposes of the Law. Such persons must register with the Department and collect and remit the Electricity Excise Tax to the Department based on kilowatt-hours used or consumed by customers. 35 ILCS 640. (This is a GIL.) October 10, 2023 NAME COMPANY ADDRESS Dear NAME: This letter is in response to your email dated September 27, 2023, in which you requested information. The Department issues two types of letter rulings. Private Letter Rulings (“PLRs”) are issued by the Department in response to specific taxpayer inquiries concerning the application of a tax statute or rule to a particular fact situation. A PLR is binding on the Department, but only as to the taxpayer who is the subject of the request for ruling and only to the extent the facts recited in the PLR are correct and complete. Persons seeking PLRs must comply with the procedures for PLRs found in the Department’s regulations at 2 Ill. Adm. Code 1200.110. The purpose of a General Information Letter (“GIL”) is to direct taxpayers to Department regulations or other sources of information regarding the topic about which they have inquired. A GIL is not a statement of Department policy and is not binding on the Department. See 2 Ill. Adm. Code 1200.120. You may access our website at www.tax.illinois.gov to review regulations, letter rulings and other types of information relevant to your inquiry. The nature of your inquiry and the information you have provided require that we respond with a GIL. In your letter you have stated and made inquiry as follows: I am NAME, President/CEO of the COMPANY. I saw in a 2021 GIL (ST21-0040), that it is the Department’s position that a person that operates an electric vehicle charging station selling electricity must register with the Department and collect and remit the Electricity Excise Tax. Since the electric cooperative would typically collect and remit the Electricity Excise Tax for power received from the electric cooperative, I want to make sure that electric cooperatives are handling this tax appropriately. 1.

2.

Since an EV charging station must collect and remit the Electricity Excise Tax, please confirm that an electric cooperative should not collect and remit the tax. Otherwise, the tax would apparently be collected twice. In the event that the EV charging station does not collect and remit the Electricity Excise Tax, are there any consequences

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October 10, 2023
for the electric cooperative that provided the electricity to the EV charging station? 3.

4.

Assuming that only the EV charging station should collect and remit the Electricity Excise Tax—and not the electric cooperative—is there anything the electric cooperative must inquire about, verify, and/or keep for records? For example: a.

Must the electric cooperative receive a Certificate of Resale (CRT-61) from the EV charging station?

b.

Must the electric cooperative check IDOR’s “Verify a
Registered Business” website that the EV charging
station is active for the electricity excise tax?

Does it matter if the EV charging station charges based on the amount of time the EV is there, not amount of kWh?

Thank you very much for your time and response,
DEPARTMENT’S RESPONSE:
The Electricity Excise Tax Law imposes a tax on the privilege of using in this State electricity purchased for use or consumption. 35 ILCS 640/2-4; 86 Ill. Adm. Code 511.110. The tax must be collected from the purchaser, other than a self-assessing purchaser, by any delivering supplier maintaining a place of business in this State. 86 Ill. Adm. Code 511.200. "'Delivering supplier' means any person engaged in the business of delivering electricity to persons for use or consumption and not for resale who, in any case where more than one person participates in the delivery of electricity to a specific purchaser, is the last of the suppliers engaged in delivering the electricity prior to its receipt by the purchaser." 86 Ill. Adm. Code 511.100. All sales to a purchaser are presumed subject to tax collection unless the Department notifies the delivering supplier that the purchaser has been registered as a self-assessing purchaser. Delivering suppliers shall collect the tax from purchasers by adding the tax to the amount of the purchase price received from the purchaser for delivering electricity for or to the purchaser. Where a delivering supplier does not collect the tax from a purchaser, other than a self-assessing purchaser, such purchaser shall pay the tax directly to the Department. 35 ILCS 640/2-7; 86 Ill. Adm. Code 511.200. A company selling electricity to a person operating an electric vehicle (EV) charging station is making a sale for resale and is not responsible for collecting and

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remitting the tax. A person that operates an EV charging station selling electricity at retail to consumers is the last supplier engaged in delivering electricity is the delivering supplier for purposes of the Law. Such persons must register with the Department and collect and remit the Electricity Excise Tax to the Department based on kilowatt-hours used or consumed by customers. See ST 21-0400-GIL (Sept. 17, 2021). To document that a sale to a purchaser is a sale for resale, a company is obligated by Illinois to obtain a valid Certificate of Resale from the purchaser. A Certificate of Resale is a statement signed by the purchaser that the property purchased is purchased for purposes of resale. In addition to the statement that the property is being purchased for resale, a Certificate of Resale must contain: 1)

the seller's name and address;

2)

the purchaser's name and address;

3)

a description of the items being purchased for resale;

4)

the purchaser's signature, or the signature of an authorized employee or agent of the purchaser, and date of signing; and

5)

the purchaser's registration number.

Retailers generally are not required to verify that their purchasers resell the product and may accept a Form CRT-61, Certificate of Resale or a Certificate of Resale that complies with the foregoing requirements. However, sellers do have an obligation to exercise good faith when accepting Certificates of Resale from purchasers. The registration number issued by the Department is a mechanism that enables a seller to ascertain that the customer is properly registered with the Department. This mechanism ensures that tax due on sales to consumers will be subsequently paid. If a seller fails to ensure that the purchaser is properly registered with the Department, the Department can look to the seller for the tax. See Tri-American Oil Company v Department of Revenue, 102 Ill. 2d 234, 238 (1984). If a seller has a question about the validity of a registration number that is submitted to it on a Certificate of Resale, it can inquire about the number by using "Verify a Registered Business” on the Department's website. It has been held proper for the Department to disallow a Certificate of Resale that contains inaccurate information in the form of an inactive or discontinued registration number. See Rock Island Tobacco v Department of Revenue, 87 Ill. App. 3d 476, 478 (1980).

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I hope this information is helpful. If you require additional information, please visit our website at www.tax.illinois.gov or contact the Department’s Taxpayer Information Division at (217) 782-3336. Very truly yours, Richard S. Wolters Associate Counsel RSW