The following information in this article has been presented to the Alachua County Legislative Delegation Hearing on

September 23rd , 2019

1:00 pm-5:00 pm

For meeting Agenda Click below :

Alachua County Legislative Deleg

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[i].  They are creatures of the legislature.  Unlike state agencies, the §120, Florida Administrative Procedures Act (APA) does not apply[ii].

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[iii].  The legislature can dissolve or amend a municipality’s charter with or without a referendum, over municipal objection[iv].

CONSTITUTIONAL FRAMEWORK

Article VII, section 9, Local Taxes- Provides: “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…. (emphasis added)

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” [v]. (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 ^[vi].

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.^[vii]  Exemptions are strictly construed against the taxpayer[viii].  Unauthorized taxes cannot be justified as user “fees”^[ix].

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(1) 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 [x]. §1213.05 titled “Department of Revenue; Control and Administration of Revenue Law,” provides a sweeping overview of DOR jurisdiction, and avoids any mention of §166.231 (1).

Municipal ordinances regarding their local utility tax can merely track the somewhat succinct 166.231 (1) 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 [xi].  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. [xii].  §166.235 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 a six (6) month limitation period to bring an action[xiii].

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”[xiv]. 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(2)(h) 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 [xv] 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 [xvi].  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 [xvii].

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 (1)( a ) 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 (1) (b) 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 local utility taxation as follows:

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

2) The §166.231 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 local taxation, and must be “separately stated” on the bill.

In §166.231 (1) (a) 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 [xviii].  Gross receipts taxation of the “customer charges or monthly customer facility charges” is now expressly mandated by statute in §203.01.

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 (1) – the local utility tax statute.  By express language in §166.231 (1), 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 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(1), 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 gross receipts tax is leveraged by municipalities.

PYRAMIDING OF TAXES AND SURCHARGES

In regards to sales tax, § 212.081(2)(b) 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.”

DOR Rule 12B-6.0015 expressly purports to authorize the prepyramiding of the state §203.01 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 Rule 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 Rule 12B-6.0015 (2)(a)(4) expressly prohibits pyramiding of the §203.01 gross receipts tax, on “any municipal public service tax imposed under §166.231 or §166.232, 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 2.56341% 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.  By PSC Rule 25-9.525, this surcharge simply mirrors the §166.231(1) local utility tax. This PSC Rule 25-9.525 was upheld by the Florida Supreme Court in 1984 [xix].  It provides no clarification of the §166.231(1) 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.

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) [xx].

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 [xxi]. 

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

adjustment charge”, issues regarding gas fracking [xxii] and the cost of transmission lines for interconnection [xxiii] 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(1), so that the local utility tax is properly rendered inapplicable.  Then bundle 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 the municipal electric utility.  This is because municipalities often use linesmen not 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 utility’s property. Unlimited, regular and large rate increases on inefficient non-LED lighting is widespread in the GRU service area. Finally, impose the highest applicable electric rate by ordinance at night, despite the availability of much lower nighttime rates [xxiv].

This entire bloated bundle is then subjected to both prepyramided state gross receipts[xxv] 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 Rule 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 Rule 12B-6.001(2)(h) 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 [xxvi].

SALES TAX AND ELECTRIC RATE CLASSIFICATIONS

The current state 6.9% sales tax [xxvii] 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 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 [xxviii]. 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 [xxix]. Currently thirty-two (32) municipal electric utilities [xxx] 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.

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, [xxxi] the utility tax refund goes back 5 years[xxxii].  The look back period for the erroneous municipal rate classification is unclear. This occurred due to an obscure 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(8) 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 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!  Based upon the foregoing information contained in this presentation and other available information, the presenter specifically requests that the Alachua County Legislative Delegation request that the (Joint) Legislative Auditing Committee direct the Auditor General for the State of Florida to conduct a comprehensive Operational Audit in compliance with Section 11.45, Florida Statutes, of the City of Gainesville, Florida, with regard to compliance with all applicable Florida laws and their respective legislative intent concerning the assessment, collection, remittance, and reconciliation of the following listed Gainesville Regional Utilities (GRU)- related taxes or activities, including GRU’s interrelationships with The Energy Authority (TEA), the Jacksonville Energy Authority (JEA), and the Florida Municipal Power Agency (FMPA); these Gainesville Regional Utilities (GRU)-related taxes or activities include:

• Gross Receipts Tax
• Municipal Public Service Tax (Utility Tax)
• Sales Tax on Sale of Utilities, Tangible Personal Property, and Services
• Discretionary Sales Surtax
• Surcharge on Customers Outside City Limits
• Use Tax
• Fuel Tax
• Communications Service Tax
• Excise Tax
• Joint Pole Attachment Agreements
• Utility Purchases
• Franchise Fees
• Customer Charges

(1) See https://en.wikipedia .org/wiki/list_of_municipalities_in_Florida (See attached Item 1)

(2) §120.52 (1) (c)

(3) Revenue v. City of Gainesville. Supreme Court. December 8, 2005. 30 FLW S829a.

(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 of 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

(5) AGO 2013-11 dated June 7, 2013

(6) Florida Retail Federation, Inc. et al. v. Coral Gables. 3^rd D.C.A. August 14^th, 2019. 44 FLW D2089a.

(7) Broward County v. Fairfield Resorts Inc et. al. 4th DCA. December 20, 2006. 32 FLW D6a

(8) Revenue v. City of Gainesville. Supreme Court. December 8, 2005 32 FLW S829a.

(9) Alachua County v. State of Florida, et al. Supreme Court. May 13, 1999. 24 FLW S212a

(10) https://floridarevenue.com/taxes/governments/Pages/mpst.aspx

(11) §120.56(4). An award of attorney’s fees and costs is provided for in § 120.595(4)

(12) See Sierra Club v. Brown. Supreme Court.  May 17, 2018. “…when reviewing an

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

(13) §166.235 (2)

(14) The Florida Tax Guide for Municipal Electric Utilities.  Third Edition.  February 2006. The first paragraph also 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.

(15) Publicpower.com (search for residential rate comparison)

(16) See House of Representative Committee on Finance and Taxation Final Bill Analysis and Economic Impact Statement, Page 5, dated June 12, 1991

(17) §166.234 provides procedures governing municipal interaction with utilities operating within their boundaries.

(18) In Mcleod v. Orange County 645 So. 2d 411 (Fla 1994), the Supreme Court held “that charter counties may impose by ordinance any tax in the area of its tax jurisdiction which municipalities may impose.”  Before this case, it was believed that the §166.231 municipal public service tax was only available to municipalities.

(19) Polk County v. Florida Public Service Commission. Supreme Court. December 6, 1984. 460 So. 2d 370 (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, et al. Supreme Court. May 19, 2016 191. So. 3d 897

(23) Sierra Club v. Brown. Supreme Court. May 17, 2018. 243 So. 3d 903

(24) See Sample Bill (See Attached Item 2)

(25) See attached Item 3

(26)Bethesda Healthcare System, Inc. v. Agency for Healthcare Administration, et. al. 4th D. CA. December 13, 2006. 31 FLW D3139a

(27) §212.05011

(28) See GRU letter of apology, Keith Perry’s Church’s bill, Manufacturing company bill. (See Attached Item 4)

(29)Technical Assistance Advisement – TAA-98A-068, read next to last page, dated July 30, 1999.

(30) See footnote 13

(31) §95.091, (3) (a) (1) (b)

(32) §95.091 (1) (b)

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

[i] See https://en.wikipedia .org/wiki/list_of_municipalities_in_Florida (See attached item 1)

[ii] §120.52 (1) (c)

[iii] Revenue v. City of Gainesville. Supreme Court. December 8, 2005. 30 FLW S829a.

[iv] 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 of 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

[v] AGO 2013-11 dated June 7, 2013

[vi] Florida Retail Federation, Inc. et al. v. Coral Gables. 3^rd D.C.A. August 14^th, 2019. 44 FLW D2089a.

[vii] Broward County v. Fairfield Resorts Inc et. al. 4th DCA. December 20, 2006. 32 FLW D6a

[viii] Revenue v. City of Gainesville. Supreme Court. December 8, 2005 32 FLW S829a.

[ix] Alachua County v. State of Florida, et al. Supreme Court. May 13, 1999. 24 FLW S212a

[x] https://floridarevenue.com/taxes/governments/Pages/mpst.aspx

[xi] §120.56(4). An award of attorney’s fees and costs is provided for in § 120.595(4)

[xii] See Sierra Club v. Brown. Supreme Court.  May 17, 2018. “…when reviewing an

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

[xiii] §166.235 (2)

[xiv] 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.

[xv] Publicpower.com (search for residential rate comparison)

[xvi] See House of Representative Committee on Finance and Taxation Final Bill Analysis and Economic Impact Statement, Page 5, dated June 12, 1991

[xvii]§166.234 provides procedures governing municipal interaction with utilities operating within their boundaries.

[xviii] See House of Representative Committee on Finance and Taxation Final Bill Analysis and Economic Impact Statement, Page 5, dated June 12, 1991

[xix] Polk County v. Florida Public Service Commission. Supreme Court. December 6, 1984. 460 So. 2d 370 (1984)

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

[xxi]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.

[xxii] Citizens v. PSC, et al. Supreme Court. May 19, 2016 191. So. 3d 897

[xxiii] Sierra Club v. Brown. Supreme Court. May 17, 2018. 243 So. 3d 903

[xxiv] See Sample Bill (See attached Item 2)

[xxv] See attached Item 3

[xxvi] Bethesda Healthcare System, Inc. v. Agency for Healthcare Administration, et. al. 4th D. CA. December 13, 2006. 31 FLW D3139a

[xxvii] §212.05011

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

[xxix] Technical Assistance Advisement – TAA-98A-068, read next to last page, dated July 30, 1999.

[xxx] See footnote 13

[xxxi] §95.091, (3) (a) (1) (b)

[xxxii] §95.091 (1) (b)

March 18, 2019

NOTICE OF GRU TAX SCAM ON UNECONOMIC GRU OUTDOOR LIGHTING

To: All Clients

From: Jim Konish

Re: Over Taxation of GRU Outdoor Lighting

166. UTILITY TAX (City of Gainesville or Alachua County, a/k/a Public Service Tax (§166.231, Fla Stat.)

166.231 (1) (a) Provides: “A municipality (or County) may levy a tax on the purchase of electricity…” “The tax shall be levied only upon purchases… and shall not exceed 10 percent…”

166.231 (1) (b) Provides: “The tax…, shall not be applied against any fuel adjustment charge, and such charge shall be separately stated on each bill.”

203. GROSS RECEIPTS TAX (State of Florida) §203.01 (1) (a) (1) Provides: “A tax (Prepyramided from 2.5% to 2.5641%) is imposed on gross receipts from utility services…”

Florida Department of Revenue (DOR) Rule 12B-6.001(2)(h) provides “This paragraph does not broaden the definition of utility service to include separately stated charges for tangible personal property…”

GRU imposes charges labelled as “Lights and Poles” on the front of the GRU bill. (See Item 1)

GRU provides “Light and Pole Details” on the back of the bill (See Item 2). Under “Description”, GRU separately states its charges for rental light fixtures and poles. It also separately states an “ELECTRIC FUEL ADJUSTMENT” charge. Finally, the “FLORIDA GROSS RECEIPTS TAX” and “ELEC UTIL TAX (City of Gainesville or Alachua County) are also separately stated – if applicable.

ANALYSIS: The charge for taxable fuel, and the non-fuel charges for estimated electricity furnished to the GRU light fixtures installed are not separately stated. Instead, these charges are bundled in with the rental of the light fixture.

Also, the GRU servicing of burned out bulbs at the customers’ request is likewise bundled in with the rental fees for the light fixture.

GRU is raising its charge for rental outdoor light fixtures as much as 22% per year. Many of these fixtures are inefficient non-LED fixtures.

Then, GRU improperly imposes both the State Gross Receipts Tax and the Utility Tax (unless there is an exemption), on the bundled (1) rental fees for the light fixture, (2) the service contract for burned out bulbs and (3) the non-fuel and taxable fuel components of estimated electricity delivered to the light fixture. (See Item 3) The pole rental fees are not taxed.

Moreover, the Utility Tax, when applicable, is also applied to the Gross Receipts Tax.

Accordingly, all GRU outdoor lighting bills are incorrect as to Gross Receipts Tax and Utility Tax – if applicable.

State of Florida Sales Tax, and local Sales Surtaxes, are also applied, if applicable. (See Item 4)

The overcharge for GRU outdoor lighting ranges from 2.5641% when there is a utility tax exemption, to 12.82% when there is no utility tax exemption (exclusive of surcharges and pole rental fees.)

Please provide guidance to how you want me to proceed. A Revenue Ruling has been requested from the Florida Department of Revenue (DOR) in regard to the Gross Receipts Tax, and is expected to be received soon.

Sincerely,

Jim Konish

Attorney for GRU Ratepayers Only