tangible personal property Archives - Page 2 of 3

Louisiana Taxpayers Beware Non-Uniform Sales Tax Treatment

by Stephen P. Kranz | Jun 25, 2014 | Local Tax, Sales Tax, Tax Base

On June 11, 2014, the Louisiana 24th Judicial District Court held in Normand v. Cox Communications Louisiana, LLC that video-on-demand and pay-per-view programming were not subject to Jefferson Parish sales tax because they were not tangible personal property, but non-taxable services.

Prior to this case, the taxability of pay-per-view and video-on-demand programming within the local jurisdictions of Louisiana was uncertain. While the State has taken the position that this programming is not subject to sales tax, Jefferson Parish has imposed local sales tax on these transactions.

Louisiana Revised Statutes § 47:301(16)(a) defines tangible personal property to “mean[] and include[] personal property which may be seen, weighed, measured, felt or touched or is in any other manner perceptible to the senses. Louisiana Administrative Code title 61, § I.4301 includes as tangible personal property “digital or electronic products such as … ‘on demand’ audio and video downloads.”

In Revenue Information Bulletin No. 10-015, the Louisiana Department of Revenue ruled that pay-per-view and video-on-demand movies were tangible personal property subject to Louisiana sales and use tax because they were perceptible to the senses and because, while the customers do not take title to the programs, they have control over paying fees to watch the programs. However, following pushback from the Louisiana business community, Louisiana Revenue Information Bulletin No. 10-028 temporarily suspended and No. 11-009 permanently repealed the implementation of No. 10-015 with regard to “Pay-Per-View and Video-on-Demand movies purchased for viewing by customers of cable television and satellite television providers.” The Louisiana Department of Revenue now takes the position that Pay-Per-View and Video-on-Demand programming is not subject to Louisiana sales and use tax.

Though the Jefferson Parish Code of Ordinances incorporates Louisiana’s definition of “tangible personal property,” Jefferson Parish disregarded the State’s position and instead pushed for the taxation of pay-per-view and video-on-demand programming as the lease of tangible personal property. Jefferson Parish Code of Ordinances § 35-17. Other parishes appear to be following Jefferson Parish’s lead to impose tax even though the state has said such services are exempt – and the lack of uniformity in approach to the local tax base will continue to cause problems for taxpayers.

The judge did not provide reasons for his decision, and it is unlikely that written reasons will be published unless one of the parties requests them. It is anticipated that the case will be appealed by the parish.

Normand v. Cox Commc’ns La., L.L.C., Jefferson Parish 24th Judicial District Court, Case No. 706-766 (2014).

Michigan Appeals Court Reaffirms True Object Test for Remote Access Software

by McDermott Will & Emery and McDermott Will & Emery | May 28, 2014 | Michigan, Sales Tax

In Thomson Reuters, Inc. v. Department of Treasury, No. 313825 (Mich. Ct. App. May 13, 2014) (unpublished), the Michigan Court of Appeals, reversing the ruling of the Court of Claims, held that a taxpayer’s sale of online research products was not subject to Michigan use tax. The court held that the transaction was not taxable because it was the sale of a nontaxable service and not the sale of taxable tangible personal property.

The taxpayer sold numerous information products, including subscriptions to its research platform Checkpoint. Checkpoint is a product of particular interest to state tax practitioners as many of us use it for research. For the uninitiated, Checkpoint is an online tax and accounting research program that provides subscribers with access, via a web browser, to court cases, rulings and other information that is compiled, synthesized and organized by Checkpoint’s content creators from multiple up-to-date sources.

The Michigan Department of Treasury determined that the taxpayer’s sales of Checkpoint subscriptions constituted the taxable sale of “prewritten computer software” and were therefore taxable. The taxpayer argued that the sale of subscriptions to Checkpoint constituted the nontaxable sale of an information service and, alternatively, even if tangible personal property was transferred, the sale was nonetheless “primarily” the sale of a service. The Court of Claims granted the Department’s motion for summary judgment and held that the sales were taxable.

The taxpayer appealed and the Court of Appeals overturned the Court of Claims decision. The Court of Appeals found that the taxpayer’s transfer of tangible personal property was incidental to the service that the taxpayer provided, and thus the transaction as a whole was not taxable. The Court of Appeals applied the test established by the Michigan Supreme Court in Catalina Marketing Sales Corp. v. Dept. of Treasury. 678 N.W.2d 619 (Mich. 2004). Under the Catalina test, a court must objectively analyze the entire transaction and determine whether the transaction is “principally” the transfer of tangible personal property or the transfer of services with a transfer of tangible personal property that is incidental to the service. Applying the test in this case, the Court of Appeals found that Checkpoint subscribers were not seeking the software underlying the product, but rather were primarily seeking access to up-to-date information relevant to their research needs and benefited from the expert knowledge of Checkpoint’s content creators which rendered the customers’ research more efficient.

This is the second decision out of Michigan regarding the Catalina test. In Auto-Owners Insurance Company v. Dept. of Treasury, Case No. 12-000082-MT (Mich.Ct.Claims Mar. 20, 2014), the Michigan Court of Claims held that certain remote software access transactions were not subject to use tax because they were nontaxable services, not the transfer of software. The Court of Claims held that under the statute, which applied use tax to software “delivered by any means,” the taxpayer’s products were not taxable because the software was not delivered. Although the transactions were not taxable under this interpretation, the Court of Claims went on to [...]

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Revise Your Tax Matrix: Remote Access of Software Exempt in Michigan and Idaho

by Diann Smith and Stephen P. Kranz | May 6, 2014 | Idaho, Michigan, Nationwide Importance, Sales Tax, Tax Base, Transaction Taxes

A trend is developing in response to aggressive Department of Revenue/Treasury policymaking regarding cloud computing. The courts and legislatures are addressing the issue and concluding that the remote access to software should not be taxed. Here are two recent developments that illustrate the trend:

Michigan – Auto-Owners Insurance Company v. Department of Treasury

On March 20, 2014, the Michigan Court of Claims held in Auto-Owners Insurance Company v. Department of Treasury that certain cloud transactions were not subject to use tax because the transactions were nontaxable services. The State has appealed this decision.

Auto-Owners engaged in transactions with numerous vendors to provide services and products that Auto-Owners used to conduct its business. The court grouped Auto-Owners’ transactions into transactions with six categories of providers: (1) Insurance industry providers; (2) Marketing and advertising providers; (3) Technology and communications providers; (4) Information providers; (5) Payment remittance and processing support providers; and (6) Technology providers. The transactions all involved, on some level, Auto-Owners accessing software through the Internet. No software was downloaded by Auto-Owners.

The Michigan use tax is imposed on the privilege of using tangible personal property in the state. Tangible personal property includes prewritten, non-custom, software that is “delivered by any means.” Mich. Comp. Laws § 205.92b(o). The court held that the transactions were not subject to use tax under the plain language of Michigan’s statute.

First, the court held that use tax did not apply because the court interpreted the “delivered by any means” language from Michigan’s statute to apply to the electronic and physical delivery of software, not the remote access of a third-party provider’s technology infrastructure. Second, the court held that the software was not “used” by Auto-Owners. Auto-Owners did not have control over the software as it only had the “ability to control outcomes by inputting certain data to be analyzed.” Third, the court held that even if prewritten computer software was delivered and used, the use was “merely incidental to the services rendered by the third-party providers and would not subject the overall transactions to use tax.” Michigan case law provides that if a transaction includes the transfer of tangible personal property and non-taxable services, the transaction is not taxable if the transfer of property is incidental to the services.

Practice Note: This decision is encouraging in that the court said that the Department was ignoring the plain meaning of the statute and overreaching, and determined that the legislature must provide specific language extending the sales and use tax for such transactions to be taxable. It is important to note that the Michigan statute uses the phrase “delivered by any means,” and the court focused on the definition of deliver in reaching its decision. This decision will likely have implications for other streamlined sales tax (SST) member states. Auto-Owners Ins. Co. v. Dep’t of Treas., No. 12-000082-MT (Mich. Ct. Cl. Mar. 20, 2014).

Idaho – H.B. 598

On April 4, 2014, Governor Butch Otter signed into law Idaho [...]

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