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Sales and Use Tax TAA 18A-005 Machinery and Equipment Used to Produce Electricity

QUESTION:
ARE PURCHASES OF MACHINERY AND EQUIPMENT USED TO PRODUCE ELECTRICITY EXEMPT FROM TAX UNDER THE PROVISIONS OF S. 212.08(5)(C), F.S.?

ANSWER:
PURCHASES OF MACHINERY AND EQUIPMENT DIRECTLY USED TO PRODUCE ELECTRICITY ARE EXEMPT FROM TAX UNDER THE PROVISIONS OF S. 212.08(5)(C), F.S.

March 28, 2018
XXXX
XXXX
XXXX
Re: Technical Assistance Advisement No. 18A-005
XXXXXXXXXXXXXXX
Florida Sales and Use Tax
Machinery and Equipment Used to Produce Electricity
Sections 212.05, 212.055, 212.08(5)(c), 212.085, Florida Statute (F.S.)
Rule 12A-1.051, Florida Administrative Code (F.A.C.)
BP#: XXXXXX

Dear XXXXXX:

This letter is in response to your request dated July 27, 20171, and received in this office on August 1, 2017, for issuance of a Technical Assistance Advisement (“TAA”) pursuant to Section 213.22, F.S., and Rule Chapter 12-11, F.A.C., concerning manufacturing exemptions. An examination of your request has established you complied with the statutory and regulatory requirements for issuance of a TAA. Therefore, the Department is hereby granting your request for a TAA.

STATED FACTS

Taxpayer is a city municipality that operates an electrical utility. The electricity produced by Taxpayer is sold to the general public. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The equipment for both projects will be powered by natural gas fuel. XXXXXXXXXXXXXXXXXXXXXX. Taxpayer believes that the machinery and equipment to be purchased for both projects, and identified within Attachment 4 and 6 of its request, meet the requirements for tax exemption under s. 212.08(5)(c), F.S., for machinery and equipment used in the production of electrical or steam energy.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

TAXPAYER’S REQUESTED ADVISEMENT

Based on the facts and analysis set forth above, Taxpayer requests the following guidance:
1. Does all the equipment needed for the XXXXXXXXXXXXXXXXXX, as set forth in Taxpayer’s Attachment 4, qualify for the exemption from tax set forth in section 212.08(5)(c), F.S.?
2. Does all the equipment needed for the XXXXXXXXXXXXXX, as set forth in Taxpayer’s Attachment 6, qualify for the exemption from tax set forth in section 212.08(5)(c), F.S.?
3. Does the draft affidavit enclosed as Attachment 2 meet the requirements of section 212.08(5)(c)3., Florida Statutes for purposes of claiming the exemption?

LAW & DISCUSSION

Unless a specific exemption applies2, s. 212.05, F.S., provides it is the legislative intent that every person is exercising a taxable privilege that engages in the business of selling tangible personal property3 in this state. For exercising such a privilege, a tax is levied on each taxable transaction or incident. The tax is due and payable at the rate of 6 percent, plus any applicable surtaxes imposed under s. 212.055, F.S., on the total consideration received for each item or article of tangible personal property when sold at retail in this state.

Machinery and Equipment used in Production of Electrical or Steam Energy

Section 212.08(5)(c), F.S., provides that the purchase of machinery and equipment for use at a fixed location in which the machinery and equipment are necessary in the production of electrical or steam energy resulting from the burning of fuels other than residual oil is exempt from Florida sales and use the tax. Such electrical or steam energy must be primarily for use in manufacturing, processing, compounding, or producing for sale items of tangible personal property in Florida. Additionally, the exemption provided by s. 212.08(5)(c), F.S., is not limited to the original machinery and equipment used in the construction of an electrical or steam generation facility. The exemption also extends to repairs, maintenance, and replacement of such machinery, equipment, and parts thereof.

The scope of s. 212.08(5)(c), F.S., as determined in the JEA/FPL Declaratory Statement was reviewed by the First District Court of Appeal of Florida in Jacksonville Electric Authority v. Department of Revenue, 486 So.2d 1350 (Fla. 1st DCA 1986). That case involved the taxable status of certain machinery and equipment purchased by the Jacksonville Electric Authority to be used in the burning of coal to produce electrical energy.

The District Court of Appeal determined that it was the legislative intent, based on the tape-recorded proceedings of the Florida Senate Committee on Ways and Means, to embrace the “integrated plant theory” as a basis for interpreting the exemption for machinery and equipment provided in s. 212.08(5)(c), F.S. Under the “integrated plant theory,” machinery and equipment used in the process of generating electrical energy, regardless of the fact that such machinery and equipment was not intrinsically necessary to generate electrical energy, or the sole purpose of such machinery and equipment was to make the plant function more practically, would be considered a component part of the manufacturing process.

Therefore, only the machinery and equipment used in the process of generating electrical energy, would qualify for the exemption provided in s. 212.08(5)(c), F.S. The exemption does not extend to switchyard, distribution, or transmission machinery and equipment at a facility. Generally, the exemption is considered as ending at the first step-up transformer, or at that point where the electrical power is at such a voltage level that is necessary for transmission to the electrical grid. The exemption will include all such electrical equipment as is necessary for internal plant purposes, such as cabling, rack systems, ducts, instrumentation, monitoring equipment, grounding, cathodic protection, and interconnect facilities.

Additionally, the exemption under s. 2l2.08(5)(c), F.S., does not extend to real property improvements at a generating facility. Accordingly, site improvements that do not constitute foundations or sub-surface improvements for foundations for machinery and equipment that is integral to the production of electrical energy will not qualify for exemption. Contractors performing real property improvements are subject to the provisions of Rule 12A-1.051, F.A.C. Generally, contractors will be subject to tax on all materials consumed in the real property improvement activities. Structures or facilities whose only purpose is to enclose, provide shelter, or control environments for qualifying items of machinery and equipment are considered to be an integral part of that machinery and equipment and do not constitute real property improvements. Accordingly, such structures or facilities will qualify for exemption.

Last, the exemption under s. 212.08(5)(c), F.S., is only applicable to items that are installed as a permanent part of the machinery and equipment that is integral to the production of electrical energy. Accordingly, the rental of any construction equipment, such as cranes, scaffolding, or earthmovers, etc., will remain fully taxable to the contractors.

It should be noted that this exemption is subject to audit verification by the Department, and Taxpayer, must be able to substantiate its eligibility for the exemption with proper documentation and records.

Affidavit Procedures

Section 212.08(5)(c)3., F.S., provides in part that purchasers of machinery and equipment qualifying for the exemption provided in s. 212.08(5)(c), F.S., shall furnish the vendor with an affidavit stating that the item or items to be exempted are for the use designated therein. Any person furnishing a false affidavit to the vendor for the purpose of evading payment of any tax imposed under Chapter 212, F.S., shall be subject to the penalty set forth in s. 212.085, F.S., and as otherwise provided by law.
For this specific situation, the benefit of the exemption inures to Taxpayer and to the contractors. The exemption is implemented by extending an affidavit to the machinery and equipment or materials vendor at the time of the purchase transaction. At no time when extending an affidavit for the exemption provided in s. 212.08(5)(c), F.S., should anyone include another business entity’s Certificate of Registration number (sales tax number), Consumer’s Certificate of Exemption number, or Direct Pay Certificate number. Each of those numbers may only be used by the business entity to which it was assigned.

Procedurally, an affidavit must be given by Taxpayer to the contractor. The contractor, in turn, would then issue its own affidavit to any subcontractors along with a copy of the affidavit provided by Taxpayer. This process continues from subcontractors to sub-subcontractors until the actual purchase order is issued to the vendor or supplier for the qualifying machinery and equipment or materials.

The affidavit may be a separate document attached to purchase orders or it may be incorporated within the purchase order itself. If the affidavit is incorporated within the purchase order, a statement that would have the same effect as the statement regarding a false affidavit, as provided in the sample affidavit, must be incorporated within the purchase order. Further, it is the position of the Department that the affidavit must be notarized regardless of whether the affidavit is incorporated within the purchase order or is an independent affidavit attached to the purchase order. Attached is a suggested format for the affidavit.

Taxpayer’s Proposed Projects

XXXXXXXXXXXXXXXXXX
For the XXXXXXXXXXXXXXXXXXXX, the equipment denoted below and referenced in Attachment 4 will be directly purchased by Taxpayer. These items will qualify for tax exemption under s. 212.08(5)(c), F.S., based on a review of Taxpayer’s documents which indicate the items are machinery and equipment that is directly related to production of electricity or an item that is integral to qualifying machinery and equipment.

• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX

Taxpayer will also acquire additional equipment and materials for the XXXXXXXXXXXXXXXXXX through its General Contractor Contract for the purposes of generating electricity for sale. The equipment obtained through the contractor and identified immediately below will qualify for tax exemption:

• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX

Listed below is the machinery, equipment, and materials obtained and installed through the general contractor that will not qualify for the tax exemption:

• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
XXXXXXXXXXXXXXXXXXXX

For the XXXXXXXXXXXXX, the machinery, equipment, and materials denoted below and referenced in Attachment 6 will be directly purchased by Taxpayer and will qualify for tax exemption.

• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX

The XXXX will acquire the balance of the necessary equipment and materials for the XXXXXXXX XXXXX through the General Contractor Contract. The equipment purchased from the contractor and identified immediately below will qualify for tax exemption:

• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX
• XXXXXXXX

Listed below is the machinery, equipment, and materials utilized or installed that will be purchased for the XXXXXXXXXXXX that do not qualify for the tax exemption:

• XXXXXXXX
• XXXXXXXX

In response to Taxpayer’s request for advisement under question number three, the answer is “no.”. The affidavit submitted by Taxpayer omits language relating to the furnishing of a false affidavit to the vendor. The following language should be added to Taxpayer’s affidavit:

I understand any person furnishing a false affidavit to a vendor for the purpose of evading payment of any tax imposed under Chapter 212, Florida Statutes, shall be subject to the penalty set forth in Section 212.085, Florida Statutes, and as otherwise provided by law.

For more information concerning all the taxes administered by the Department of Revenue, please refer to the Department’s Internet site at:
http://floridarevenue.com

This response constitutes a Technical Assistance Advisement under s. 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 s. 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 expressed in this response.

You are further advised that this response and 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 s. 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 lead to identification of the taxpayer. Your response should be received by the Department within 15 days of the date of this letter.

Kind Regards,
Alan R. Fulton
Alan R. Fulton
Tax Law Specialist
Technical Assistance & Dispute Resolution
850-717-6735
Enclosure: Section 212.08(5)(c), F.S. – Suggested Affidavit
ARF\tadrstaff
Record ID: 17035

End Notes:

1 Pertaining to the request for the Technical Assistance Advisement, additional clarifying information was submitted to the Department’s Office of General Counsel on January 3, 2018.

2 The Department must point out that while taxing statutes are strictly construed against the taxing authority, statutes that grant an exemption are strictly construed against the taxpayer. See Asphalt Pavers v. Dept. of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991), at 57 (citing the rule that exemptions from tax are strictly construed against the taxpayer, with any ambiguity resolved in favor of the administrative agency); State ex rel. Szabo Food Services Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973) (“Exemptions to taxing statutes are special favors granted by the Legislature and are to be strictly construed against the taxpayer.”). See also, United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959) (also stating that exemptions from tax are strictly construed against the taxpayer) and Wanda Marine Corp. v. Dep’t of Revenue, 305 So.2d 65, 69 (Fla. 1st DCA 1975).

3 Tangible personal property means and includes personal property which may be seen, weighed, measured, or touched or is in any manner perceptible to the senses. See s. 212.02(19), F.S.

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