Read the opinion: Midwest Energy [PDF 18 KB]
The taxpayer—a regulated electric cooperative—sold electricity to residential and commercial customers.
Under Michigan law, the taxpayer was required to implement an energy optimization plan, the costs of which were passed on to customers as a separate charge on their bill.
The taxpayer collected and remitted sales tax on its sales of electricity, but claimed that the mandatory charge was not subject to sales and use tax.
A Michigan court of claims held that the energy optimization charge was included in the sales tax base because it was an incidental service to the retail sale of electricity. The taxpayer subsequently appealed.
The Michigan appeals court first found that the court of claims erred when it applied the incidental to service test, which is used to determine whether the transfer of tangible property is incidental to the rendering of certain services. The issue in the instant case was whether the energy optimization charge was incidental to the sale of electricity (which is tangible personal property under Michigan law).
The appeals court next addressed the state’s alternative argument that the charges were taxable because they were necessary to complete the sale of electricity. Under Michigan law, the sales price upon which sales tax is imposed includes charges by a seller for any services necessary to complete the sale. The court, noting that the taxpayer was required to implement an energy optimization plan to engage in sales of electricity, held that the charge was taxable as a service necessary to complete the sale.
For more information, contact KPMG’s National Director of Cooperative Tax Services:
David Antoni, in Philadelphia
Or Associate National Director of KPMG’s Cooperative Tax Services
Brett Huston, in Sacramento