Does a company have to collect NY sales tax on the electricity it sells at an electric vehicle charging station?

Plain-English summary

The petitioner owns and operates electric vehicle (EV) charging stations in NY and charges customers a per-kilowatt-hour fee for the electricity transferred to their vehicles. It asked whether it must collect sales tax on that electricity.

The Office of Counsel concluded the charge is taxable. Tax Law 1105(b)(1)(A) imposes sales tax on the receipts from every sale of electricity and electric service of whatever nature. Although this is commonly called the "consumer's utility tax," the statute is intended to tax the listed sales and services whether or not the seller is a company regulated as a utility. The words "of whatever nature" mean the terms are given a broad construction (20 NYCRR 527.2(a)(2)). Accordingly, the per-unit charge for electricity to charge an EV -- and any fee -- is subject to sales tax under 1105(b).

What this means for you

EV charging station operators

If you sell electricity to charge EVs in NY -- by the kilowatt-hour or for a fee -- you are selling taxable "electricity and electric service" and must collect sales tax, even though you are not a regulated utility. Register and collect like any other vendor of electricity.

Common questions

Q: We're not a utility company -- does the electricity tax still apply? A: Yes. Tax Law 1105(b) taxes electricity and electric service "of whatever nature," whether or not the seller is a regulated utility.

Q: Is only the per-kWh charge taxable, or fees too?
A: The per-unit charge and any fee for the electricity at the charging station are subject to sales tax.

Citations and references

• Tax Law section 1105(b)(1)(A) (sales tax on electricity and electric service)
• 20 NYCRR section 527.2(a)(2) (broad construction of electricity/electric service)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2013.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a13_18s.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-A-13(18)S
Sales Tax
July 15, 2013

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S121217A

The Department of Taxation and Finance received a Petition for Advisory Opinion from name redacted (Petitioner). Petitioner asks whether it must collect sales tax on the electricity it sells at an electric vehicle charging station. We conclude that the unit charge and any fee it charges its customers for the sale of electricity at an electric vehicle charging station is subject to sales tax under Tax Law
§1105(b)(1)(A).
Facts
Petitioner owns and operates electric vehicle charging stations in this State. Petitioner charges its customers a per unit fee (based on kilowatt hours) for electricity transferred to its customers’ electric vehicles. Analysis Section 1105(b)(1)(A) of the Tax Law imposes sales tax on the receipts from every sale of electricity and electric service of whatever nature. Although this tax is generally known as the “consumer’s utility tax,” the intention of this statute is to tax the enumerated sales and services whether or not rendered by a company subject to regulation as a utility company. The words “of whatever nature” indicate that a broad construction is to be given the terms describing the items taxed. See 20 NYCRR §527.2(a)(2). Accordingly, the Petitioner’s per unit charge for electricity for charging an electric vehicle is subject to sales tax under Tax Law § 1105(b).

DATED: July 15, 2013

NOTE:

/S/
DEBORAH R. LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the facts set forth therein and is binding on the Department only with respect to the person or entity to whom it is issued and only if the person or entity fully and accurately describes all relevant facts. An Advisory Opinion is based on the law, regulations, and Department policies in effect as of the date the Opinion is issued or for the specific time period at issue in the Opinion. The information provided in this document does not cover every situation and is not intended to replace the law or change its meaning.