MUNICIPAL ADMINISTRATION OF TAXES AND SURCHARGES IMPOSED ON THE PURCHASE OF UTILITY SERVICES: RATEPAYERS BEWARE! By, Jim Konish

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MUNICIPAL ADMINISTRATION OF TAXES AND SURCHARGES IMPOSED ON THE PURCHASE OF UTILITY SERVICES: RATEPAYERS BEWARE! By, Jim Konish

 

There are currently 412 incorporated municipalities in Florida[1]. They are creatures of the legislature. Unlike state agencies, the §120, Florida Administrative Procedures Act (APA) does not apply[2].

Each municipality has a unique charter prescribed by the legislature, and their own ordinances. Unlike counties, a municipality is neither a political subdivision of a County, nor the State[3]. The legislature can dissolve or amend a municipality’s charter with or without a referendum, over municipal objection[4].

CONSTITUTIONAL FRAMEWORK

Art. VII, § 9, Fla. Const. provides: Local Taxes “Counties, school districts and municipalities shall, and special districts may, levy ad valorem taxes and may be authorized by general law to levy other taxes….”

A Florida Attorney General’s opinion dated June 7, 2013 on page 3, paragraph 3 explains, except for ad valorem taxes, a municipality has no inherent power to tax:

 

“Section 2 Article VIII, Florida Constitution, gives municipalities ‘home rule power’ which may be exercised for any valid municipal purpose, ‘except as otherwise provided by law(,)’ however, the taxing power of municipalities is not derived from this constitutional provision. The origin of municipal taxing power and the limitations on its exercise are found in Sections 1(a) and 9(a), Article VII, Florida Constitution, and such general or special laws relating to other taxes as the Legislature may enact. In the exercise of its taxing power, a municipality is limited to that taxing power conferred expressly, or by necessary implication” [5]. (emphasis added)

 

Absent express statutory authority, a municipality has no inherent power to impose taxes, or to provide exemptions from such taxes. Moreover, a municipality cannot repeal or amend state statutes by ordinance [6].

Municipal taxing powers are thus strictly limited to those expressly conveyed by the

Constitution, or Florida Statute. Either conveyance must be strictly construed in favor of the

Taxpayers.[7] Exemptions are strictly construed against the taxpayer[8]. Unauthorized taxes cannot be justified as user “fees”[9].

 

OVERSIGHT OF AD VALOREM TAXATION

State of Florida oversight of ad valorem taxation is pervasive, and occurs through the Florida Department of Revenue (DOR), and numerous legislative enactments. Moreover, there are elected property appraisers and tax collectors overseen by DOR, as well as supplemental DOR Rules and a substantial body of caselaw, and DOR Advisements. There is even a TRIM notice to furnish complete transparency

ABSENCE OF OVERSIGHT OVER THE LOCAL UTILITY TAX

The only state “oversight” of the discretionary 0 to 10% local § 166.231, Fla. Stat. (2019) Florida Municipal Public Service Tax (Utility Tax) is a requirement for timely DOR listing of applicable rates and/or exemptions imposed by ordinance in various municipalities, and counties [10]. §1213.05, Fla. Stat. (2019) titled “Department of Revenue; Control and Administration of Revenue Law,” provides a sweeping overview of DOR jurisdiction, and avoids any mention of §166.231, Fla. Stat. (2019).

Municipal ordinances regarding their local utility tax can merely track the somewhat succinct 166.231, Fla. Stat. (2019) statutory language. However, supplemental “policies” can and do exist outside of municipal ordinances. Unlike for state agencies, there is no §120 administrative challenge available for such unpromulgated policies [11]. There are also no DOR Rules and/or Advisements for the local utility tax. Unless there is relief from a local administrative appeal process, disputes go to the lower courts, which often result in opinions that are unavailable, or accommodating for the municipality. Courts are wary of utility matters from the top down due to the complexity, sweeping financial impacts and an inclination not to open the floodgates. [12]. §166.235, Fla. Stat. (2019) does provide for “Procedures on purchaser’s request for refund or credit.” Exhaustion of administrative remedies, if they exist, is expressly made prerequisite to any court challenge by this statute. There is an absolute six (6) month limitation period to bring an action[13].

The Florida Tax Guide for Municipal Electric Utilities, prepared by the Florida Municipal Electric Association (FMEA), dated February 2006, states in the “Introduction” behind the cover sheet: “Moreover, the statutes and rules regulating these transactions are often vague and subject to differing interpretations”[14]. This is very costly for Florida utility ratepayers.

In a confidential DOR Letter of Technical Advice dated September 5, 2014 (LTA 14A-B2),

DOR opines the “Electric Utility Tax/Electric Surcharge is not administered by the Department.” In a confidential DOR Letter of Information 14A-01B dated 7/2/14 DOR states ” The (Alachua) County Utility Tax and Gainesville Electric Utility/ Electric Surcharges are not administered by the Department.

Furthermore, §166.233, Fla. Stat. (2019) provides: “The provisions of this paragraph which prescribe elective dates and require municipalities to furnish notifications to the Department (DOR) do not apply to taxes levied on services provided by the municipality levying the tax…”(emphasis added) The thirty-two (32) municipalities [15] that operate their own municipal electric utilities do not even have to notify DOR of their utility tax rates and/or exemptions.

Huge sums of money are involved. The up to 10% statutory cap on the local utility tax,

and other limits, are exceeded in various and complex ways. These municipal overreaches are

of dubious legality, but are subtly encouraged through vague statutes, loose DOR

interpretations, and an obvious municipal conflict of interest. Municipalities receive and get to

keep the utility tax revenues generated inside their boundaries, under their own administration, without any oversight. Unincorporated areas within counties penetrated by municipal utility services piggyback on this tax wagon, feeding utility taxes into county coffers[16]. The ratepayers’ bills usually have insufficient detail to allow an understanding of what is going on. The utilities must navigate this quagmire and have little choice but to be accommodating [17]. In the case of municipal electric utilities, the utility usually administers and interprets taxes even though it is not the taxing authority.

ELECTRIC CUSTOMER CHARGE

This charge is imposed for mere connection to an electric utility. It is owed even if there is no “purchase of electricity”, for years. We see this a lot. It is usually subjected to the local utility tax. §166.231, Fla. Stat. (2019) provides:

 

“A municipality may levy a tax on the purchase of electricity, metered natural gas, liquified petroleum gas either metered or bottled, manufactured gas either metered or bottled, and water service… the tax shall be levied only upon purchases within the municipality and shall not exceed 10 percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service…”. ”Purchase of electricity means the purchase of electric power by a person who will consume it within the municipality” (emphasis added).

 

  • 166.231, Fla. Stat. (2019) provides:

The tax imposed by paragraph (a) shall not be applied against any fuel adjustment charge, and such charge shall be separately stated on each bill. The term ‘fuel adjustment charge’ means all the increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility subsequent to October 1, 1973” (emphasis added).

 

By defining the purchase of electricity, and by implication the purchase of gas and water, as an actual “purchase“, and the fuel adjustment charge as “all increases in cost to the ultimate consumer resulting from an increase in the cost of fuel”, the legislature has clearly and expressly imposed substantial limitations on §166.231, Fla. Stat. (2019) local utility taxation as follows:

 

1) The §166.231, Fla. Stat. (2019) utility tax shall not exceed 10% of the payments received by the seller from the purchaser.

2) The §166.231, Fla. Stat. (2019) utility tax is only applicable to the actual purchase of electricity, gas or water utility services.

3) The fuel adjustment charge includes all increases in the cost of utility services to the ultimate purchaser, is not subject to §166.231, Fla. Stat. (2019) local taxation, and must be “separately stated” on the bill.

 

In §166.231, Fla. Stat. (2019) the words “purchase”, “purchases” or “purchaser” are used five (5) times. The customer charge can go well beyond the cost of reading the meter, and sending out a bill. It in fact often also operates as a capacity charge, especially with increasing penetration of solar self-generation. In 1988, “several public” electric utilities sued DOR claiming their “customer charge” was improperly subjected to the state gross receipts tax [18]. Gross receipts taxation of the “customer charges or monthly customer facility charges” is now expressly mandated by statute in §203.01, Fla. Stat. (2019).

FUEL ADJUSTMENT CHARGE

This is the post– October 1, 1973 portion of “fuel” costs associated with the electricity purchased by the ratepayer. Since at least 1955, it also can include wholesale power purchased by the utility.

The only place the term electric “fuel adjustment charge” is to be found in the Florida Statutes is in §166.231, Fla. Stat. (2019) – the local utility tax statute. By express language in §166.231, Fla. Stat. (2019), the electric “fuel adjustment charge” must be “separately stated” on the electric ratepayer’s bill. This is because the “fuel” charge is exempt from local utility tax. The pre-October 1, 1973 component of “fuel” is taxable. The October 1, 1973 date corresponds to the Arab oil embargo at a time when oil fueled numerous Florida electric utility generators.

GROSS RECEIPTS TAX

The parallel state §203.01, Fla. Stat. (2019) gross receipts tax applies to “a distribution company” that provides “utility services”, and instead INCLUDES the electric “fuel adjustment charge”.

Vague statutory language in §166.231, Fla. Stat. (2019) absence of any state or other oversight or guidance, conflict of interest, and lack of expertise on the part of municipalities have allowed dubious schemes to flourish. DOR rules are deficient or ignored, and some DOR rules may be invalid.   DOR accommodation of overpayment of the §203.01, Fla. Stat. (2019) gross receipts tax is leveraged by municipalities.

PYRAMIDING OF TAXES AND SURCHARGES

In regards to sales tax, § 212.081, Fla. Stat. (2019) Legislative intent provides:

 

“… there shall be no pyramiding or duplication of excise taxes levied by the state under this chapter and no municipality shall levy any excise tax upon any privilege, admission, lease, rental, sale, use or storage for use or consumption which is subject to a tax under this chapter unless permitted by general law; provided, however, that this provision shall not impair valid municipal ordinances which are in effect and under which a municipal tax is being levied and collected on July 1, 1957.”

 

This provision seems to preclude post 07/01/57 application of the § 166.231, Fla. Stat. (2019) utility tax to rental light fixtures. Moreover, this is not a “purchase” of electricity.

DOR Fla. Admin. Code R. 12B-6.0015 expressly purports to authorize the prepyramiding of the state §203.01, Fla. Stat. (2019) gross receipts tax on itself as follows:

 

The gross receipts tax is imposed on the distribution company (utility). The distribution company is allowed to recover it from the ratepayer. The theory is that the recovery of gross receipts tax becomes part of the ratepayer’s bill. If applied above the bottom line on which the sum of all components of the electric bill are itemized and then totaled, the gross receipts tax is then, and only then applied to itself. The statutory cap of 2.5% is thereby increased by an example found in DOR Fla. Admin. Code R. 12B-6.0015(3) to an effective rate of 2.56%. We instead observe 2.5641% being utilized by the City of Gainesville before their utility bill is even itemized.

 

DOR Fla. Admin. Code R. 12B-6.0015 (2)(a)(4) expressly prohibits pyramiding of the §203.01, Fla. Stat. (2019) gross receipts tax, on “any municipal public service tax imposed under §166.231, Fla. Stat. (2019) or §166.232, Fla. Stat. (2019), or any sales tax imposed under chapter 212… when separately itemized on a customer’s bill.” There is no such express statutory prohibition for the local utility tax. None is in fact needed. This is nonetheless regularly exploited by municipalities.

MUNICIPAL CIRCUMVENTION OF THE EXEMPTION FOR “FUEL” FROM LOCAL UTILITY TAX

Municipalities routinely apply their local utility tax to the state gross receipts tax. Therefore, we observe in Gainesville 2.5641% of the expressly exempt fuel adjustment charge subjected to a 10% local utility tax, indirectly.

SURCHARGES ON MUNICIPAL SALES OF ELECTRICITY OUTSIDE THEIR BOUNDRIES

Impacts on municipal ratepayers located outside of municipal boundaries are magnified.

The Florida Public Service Commission (PSC) has relied on its seldom exercised and

limited “rate structure” jurisdiction over municipal electric utilities to allow discretionary imposition of an electric “surcharge” on municipal electric ratepayers located outside of municipal boundaries. PSC Fla. Admin. Code R. 25-9.525 provides that, this surcharge simply mirrors the §166.231, Fla. Stat. (2019) local utility tax. Fla. Admin. Code R. 25-9.525 was upheld by the Florida Supreme Court in 1984 [19]. It provides no clarification of the §166.231, Fla. Stat. (2019) utility tax, which of course would be far outside of PSC jurisdiction. A similar surcharge of 25% on municipal water and sewer services is authorized by § 180.191, Fla. Stat. (2019).

Accordingly, in the case of Gainesville Regional Utilities (GRU), the surcharge gets pyramided on top of the gross receipts tax, and then “additional” gross receipt tax is applied for a third time to itself – amplified by the surcharge, outside of city limits (compromising 1/3 of GRU electric customers) [20].

It is noteworthy that the PSC audits the electric “fuel adjustment charges” of large and small investor – owned utilities (IOU’s), but not those imposed by municipal electric or rural co-op electric utilities. In the previously referenced DOR LTA 14A-01 dated 7/12/14, DOR validated the imposition of the gross receipts tax to a surcharge on the gross receipts tax! GRU’s decade long masking of the rate impacts of a disastrous biomass electric power purchase agreement (PPA) in violation of its own ordinance suggests that PSC oversight of municipal “fuel” “adjustment” charges may be in order [21].

While there has been little litigation over what is properly included in the “fuel

adjustment charge”, issues regarding gas fracking [22] and the cost of transmission lines for interconnection [23] have recently been decided against investor-owned electric utilities and the PSC. Obviously, the basis for any tax is important.

OUTDOOR & STREET LIGHTING.

Many electric utilities rent outdoor and street lighting poles, light fixtures, wiring and

will also service burned out bulbs, without additional charge. Moreover, exorbitant electric rates can also be applied at night when the ratepayer is asleep, despite availability of lower nighttime rates. Municipal electric utilities, with coaching from tax attorneys with the Florida Municipal Electric Association (FMEA), one of whom was named Amanda Swindle, have devised dubious schemes to maximize local and state taxes on outdoor and street rental lighting, with the blessings of DOR.

Here is an example of a particularly bold scheme:

 

On the GRU municipal electric ratepayer’s bill, regardless of rate class, separately state only the “fuel” portion of outdoor lighting electricity purchased, as mandated by §166.231,Fla. Stat. (2019), so that the local utility tax is properly rendered inapplicable. GRU then bundles the taxable nonfuel portion of the charge for electricity in with the rental charge for the outdoor light fixture, and service contract on the burned-out bulbs. Moreover, the electricity purchased sometimes is not metered, and therefore is estimated by their municipal electric utility. Municipalities often use linesmen not NEC (National Electric Code) licensed electricians. Therefore, they often should not work on the ratepayer’s side of the electric meter. They often do so anyway, and install the poles and light fixtures on ratepayers’ properties. These fixtures are then claimed within often lost and/or deficient contracts to be the Municipal utility’s property. Unlimited, regular and large rate increases on inefficient non-LED lighting is widespread in the GRU service area. Finally, GRU imposes the highest applicable electric rate by ordinance at night, despite the availability of much lower nighttime rates [24] (when generation costs are lower).

 

This entire bloated bundle is then subjected to both prepyramided state gross receipts[25] tax, the local utility tax, and surcharges, with additional gross receipts tax outside city limits! This is done regardless of the rate class of the electric customer. This is also done despite the DOR Fla. Admin. Code R. 12B-6.001(2)(h) rule definition of “utility services” which provides:

 

“(h) utility services… This paragraph does not broaden the definition of utility service to include separately stated chargers for tangible personal property or services which are not charges for electricity….”

 

Accordingly, the “purchase” of electricity gets expanded to include “separately stated charges” for rented light fixtures, service contracts on burned out bulbs, and overpriced, estimated, excessive electricity, simply by not separately stating nonfuel electric charges. This outcome is directly prohibited by DOR Fla. Admin. Code R. 12B-6.001(2)(h), if not § 212.081, Fla. Stat. (2019), but is accommodated anyway by a DOR Technical Assistance Advisement (TAA) 04A-067 dated December 9, 2004, as well as in a confidential Letter of Technical Advice dated March 21, 2019. All state agencies including DOR are bound by their own rules [26].

SALES TAX AND ELECTRIC RATE CLASSIFICATIONS

The current state 6.9% sales tax [27] on electricity is complex because of numerous exemptions. This is in complete contrast to the local utility tax, and even more so for the state gross receipts tax, which has almost no exemptions. It ultimately is the duty of the electric ratepayer to claim any applicable exemption. § 212.85, Fla. Stat. (2019) imposes mandatory and severe penalties for fraudulent claims of sales tax exemption. We observe exempt churches and manufacturing facilities routinely subjected to both massive utility and sales taxes [28]. Utilities are not required to steer the ratepayer through state and local taxation (utility, gross receipts, sales and discretionary sales taxes & surcharges), with pyramiding. If the utility rate classification is in conformity with its tariffs on file with the PSC, DOR will defer to the classification the utility chose [29]. Currently thirty-two (32) municipal electric utilities [30] gleefully administer their own utility tax paid to themselves and/or the appurtenant County, free from any oversight whatsoever.

A thorny collateral problem that often arises is the critical and sometimes arbitrary distinction between residential and nonresidential electric rates. Nonresidential electric rates are higher, are sometimes entirely different, and can be very complex. There can be a separate “load”, or “demand” charge. Residential rates generally require that the occupancy be nontransient and purely residential. “Transient” is usually not well defined. Appurtenant facilities are also in the grey area (gates, detached buildings, common areas, hallways, closets, outdoor lights, ect.)

Moreover, nonresidential electricity is also subject to state and local discretionary sales tax, unless exempt. I have a client whose gate to a residential estate on many acres within a municipality was served by a second, stand alone electric meter far from his residence. This client was erroneously assessed an incorrect and much higher nonresidential electric rate, local utility tax and both state and discretionary local sales tax on electricity furnished to his residential gate, for the past 27 years! The sales tax refund goes back three (3) years, [31] the utility tax refund goes back 5 years[32]. The look back period for the erroneous municipal rate classification is unclear. This occurred due to an obscure, unwritten and discontinued GRU policy that automatically classified any second residential meter as “nonresidential,” without an adequate basis in their ordinances, or a field inspection.

The state gross receipts tax is imposed on the utility. DOR states in an unnumbered, confidential letter of Technical Advice dated March 21, 2019:

 

“If your client is seeking a refund, it will have to seek it from GRU, as GRU, being the entity that paid the gross receipts tax, is the only entity that can seek such a refund from the Department. “

 

DOR believes ONLY THE UTILITY can ever apply for a refund, even though this tax is passed on to the electric taxpayer! Moreover, by statute, §203.01, Fla. Stat. (2019) provides this tax “shall not be subject to refund by the State or by the utility or other person that remitted the sums, when the amount remitted was not in excess of the amount of tax imposed by chapter 212 and this section”, i.e. only if the transaction is exempt from §212, Fla. Stat. (2019) state sales tax is a refund possible! Finders keepers losers’ weepers.

CONCLUSION

The statutory caps on nominal tax rates are often far exceeded by a much higher effective rate. This occurs by virtue of pyramiding, circumvention of express exemptions, and bloating of the basis beyond the express statutory authorization.

When I explained this scheme to my local legislator, he opined that it was a Bernie Madoff tax scheme. While he was not a lawyer, he certainly was on point!

James Joseph Konish, Florida Bar No. 296287, has been a member in good standing of the Bar for nearly 40 years and whose legal practice continues to serve in administrative and interpretive functions for legal professionals, in advocating individually and for customer clients in the electric, natural gas, and water industries, and in proposing and crafting utility governance and performance improvement legislation in Florida.

Prepared September 9, 2019

[1] Wikipedia contributors. (2019, September 20). List of municipalities in Florida. In Wikipedia, The Free Encyclopedia. Retrieved 16:34, September 20, 2019, from https://en.wikipedia.org/w/index.php?title=List_of_municipalities_in_Florida&oldid=916774550.

[2] § 120.52, Fla. Stat. (2019).

[3] Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005).

[4] I worked with then Representative Keith Perry, and many others, to draft and pass a local law to allow a referendum to facilitate an appointed, independent governance board to strip the Gainesville City Commission of almost all authority over GRU. This was the first time the legislature went straight to the voters, over a city’s objection and resistance, to propose a sweeping amendment to a city charter. The proposal would have repealed ½ page and added 12 ½ pages to the twenty-two (22) page city charter (see Chapter 2017-200). This proposal was rejected by city voters in November 2018. In the early 1970’s, the legislature created an Airport Authority(without a referendum) and relieved the City of Gainesville of governance authority.

[5] Op. Att’y Gen. Fla. 2013-11 (2013).

[6] Florida Retail Federation, Inc., v. Coral Gables. 44 FLW D2089a (Fla. 3rd D.C.A. August 14, 2019).

[7] Broward County v. Fairfield Resorts Inc, 32 FLW D6a (Fla. 4th D.C.A. December 20, 2006).

[8] Revenue v. City of Gainesville, 918 So.2d 250 (Fla. 2005).

[9] Alachua County v. State of Florida, 24 FLW S212a (Fla. 1999).

[10] Municipal Public Service Tax, available at https://floridarevenue.com/taxes/governments/Pages/mpst.aspx.

[11] § 120.56, Fla. Stat. (2019). An award of attorney’s fees and costs is provided for in § 120.595, Fla. Stat. (2019).

[12] See Sierra Club v. Brown, (243 So.2d 903 (Fla. 2018)).“…when reviewing an

Order of the Commission (PSC), this court accords great deference”.

[13] § 166.235, Fla. Stat. (2019).

[14] The Florida Tax Guide for Municipal Electric Utilities. Third Edition. February 2006. The first paragraph states, behind the cover sheet, “Please do not duplicate, or in a way distribute, this Tax Guide to anyone or any organization that is not affiliated with FMPA or FMEA.” “Yet they posted it online at one time at: FMEA_tax_guide_for_municipal_utilities_2000. It has been taken down, but is a public record available from FMPA, FMEA and any member municipal utility. You may also view it at GRUWhyPayMore.Com

[15] Florida Electric Bill Comparisons, available at https://www.publicpower.com/electric-bill-comparisons.

[16] Mcleod v. Orange County, 645 So. 2d. 411 (Fla. 1994).

[17] § 166.234, Fla. Stat. (2019) provides procedures governing municipal interaction with utilities operating within their boundaries.

[18] See House of Representative Committee on Finance and Taxation Bill # PCB 91-1A, Analysis and Economic Impact Statement, Page 5, dated March 7, 1991.

[19] Polk County v. Florida Public Service Commission, 460 So. 2d 370 (Fla. 1984).

[20] See GRU.com. Search “Calculating your electric bill” (See attached Item 2).

[21]When the biomass PPA was signed in 2009, GRU flat lined the electric “fuel adjustment charge” despite declining fuel costs and accumulated $32,000,000 by the fall of 2013 in overcollection of fuel costs as a “levelization balance”. This “levelization balance” went over $6,000,000 negative by the fall of 2018, when the biomass plant was purchased for $750,000,000.

[22] Citizens v. PSC, 191 So. 3d 897 (Fla. 2016).

[23] Citizens v. PSC, 213 So. 2d 703 (Fla. 2017).

[24] See Sample Bill

[25] See Sample Bill

[26] Bethesda Healthcare System, Inc. v. Agency for Healthcare Administration, 31 FLW D3139a (Fla. 4th D.C.A. December 13, 2006).

[27] § 212.05011, Fla. Stat. (2019).

[28]See GRU letter of apology, Keith Perry’s Church’s bill, manufacturing company bill. (See attached Item 4).

[29] DOR Technical Assistance Advisements: TAA-98A-068, August 26, 1998; TAA 98 (A)-068R July 30, 1999; TAA 00 (A) – 064; Nov. 08, 2000.

[30] § 166.235, Fla. Stat. (2019).

[31] § 95.091, Fla. Stat. (2019).

[32] § 95.091, Fla. Stat. (2019).