The instant non-metered electricity service charges are incidental to the commercial tenants' rent charges, and do not constitute "sales" or "resales" of electricity for purposes of Tax Law § 1105 (b). Although prorated per square foot for each lease, such charges are for use and occupancy and are not indicative of the amount of electricity consumed by each tenant (see, e.g., Matter of Mobil Oil Corp. v. Finance Adm'r of City of N Y, 58 N.Y.2d 95).
Plaintiff is not obligated to exhaust its administrative remedies since it is not challenging the amount of the tax assessment but the tax statute's constitutionality and applicability (see, Tully v. Griffin, Inc., 429 U.S. 68, 75). It is for this reason as well that plaintiff is entitled to a toll of the 90-day Statute of Limitations within which to administratively challenge the actual tax assessment (supra).
Finally, we agree with the IAS court that the imposition of the sales tax on non-metered electricity charges amounts to double taxation since the tenants pay commercial occupancy rent tax as well. The taxes are, in essence, imposed by the same taxing authority. Indeed, New York City, in imposing the commercial occupancy tax, "`is acting as part of the State under authority given it by the people of the State'" (Matter of Atlas Tel. Co., 273 N.Y. 51, 54).
We have considered all other claims and find them to be meritless.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ellerin and Kassal, JJ.