By Charles Capouet and Madison Barnett

The Florida Department of Revenue determined that a Florida data center’s power fees are not subject to gross receipts tax but may be subject to sales tax. The taxpayer operates a colocation data center and purchases electricity to power the data center from a utility. The taxpayer’s customers have the option of paying for the electricity through a fixed monthly recurring “Breakered Power Fee.” The fee is charged regardless of actual usage, although the customer cannot use more than 80% of the allotted power circuit’s breakered capacity limit. If additional power is needed, the customer may pay for additional power circuits. Florida imposes a tax on certain “gross receipts received by a distribution company for its sale of utility services.” The Department determined that the data center power fees are not subject to gross receipts tax because the taxpayer is “not a distribution company, it charges a set rate based on circuits (and not usage), and it does not manipulate or purify” the electricity it buys. The Department instead characterized the power fees as “consideration for the license to use real property ([that are] taxed accordingly for sales and use tax).” Fla. Dep’t of Revenue, Tech. Assist. Adv. No. 15A-003 (Feb. 24, 2015).