New York finds charges for utilities incorporated as “”rent”” not taxable.

In New York, two related manufacturing companies with common ownership operate their businesses in a shared location. One company acts as landlord while the other company pays monthly rent for usage of the facilities. Electricity usage is not metered separately; rather a separate charge for the estimated portion of electricity used by the tenant is included on the monthly invoice for rent. Under Sec. 1105(b) of New York Tax Law, charges to a tenant for electric service, know as the Electricity Rent Inclusion Factor, are incidental to the rental of the property and are not a separate transaction. These charges are therefore not subject to tax, disallowing the landlord from claiming a resale exemption when purchasing the electricity from the utility company. However, electricity used in manufacturing is exempt in New York under Sec. 1115(c ). The landlord may be eligible for a credit or refund for taxes paid on any electricity used in the production of tangible personal property for sale by either the landlord or tenant. (TSB-A-04(24)S, New York Commissioner of Taxation and Finance, September, 28, 2004)

Posted on December 15, 2004