Tax Law

“Process” This: Maryland Court of Special Appeal Reverses Tax Court and Holds Utility Entitled to Sales Tax Exemption

The Maryland Court of Special Appeals held that the Maryland Tax Court erred as a matter of law in ruling that none of the equipment purchased by a public utility company and used in transmitting electricity from a third-party power plant to the utility’s customers in Maryland qualified for a sales tax exemption applicable to property used in a “production activity.”  A “production activity” is defined by statute to mean, among other things, “processing” Tangible Personal Property (“TPP”) for resale.  The Court explained that within the utility’s transmission and delivery network, the voltage of the electricity (which is treated as TPP in Maryland) is stepped up and stepped down, as needed, to ensure that it travels long distances and is made available to the utility’s customers at a voltage that is appropriate for the intended residential or commercial use.  The Court concluded that “some degree of processing was required” between the point at which the utility received the electricity from the generating plant and the point of delivery to its customers, and that there was no rational basis for the Tax Court to rule that such activity does not fall within the statutory definition of a “production activity.”  Potomac Edison Co. v. Maryland Comptroller of the Treasury, Dkt. No. 1645 (Md. Ct. Spec. App. Apr. 29, 2019).