Cloudy with a Chance of
State Tax
December 4, 2013
Presented by:
Michael L. Colavito, Jr., Esq.
Alan J. Langelli, CPA
© 2013 | All Rights Reserved | 805 King Farm Boulevard | Suite 300 | Rockville, Maryland 20850 | 301.231.6200 P | 301.231.7630 F | www.aronsonllc.com
Agenda
• What is Cloud Computing?
• Sales Tax Issues
–
–
–
–
–
Characterization
Nexus
State Positions on Taxability
Sourcing
Bundling
• Income Tax Issues
– Nexus
– Sourcing
• What should I do as a taxpayer?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 2
What is Cloud Computing?
• What is the cloud?
• Where is the cloud?
• Are you in the cloud right now?
• Simple Definition - accessing or storing data
and programs over the Internet, instead of on
your computer's hard drive
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 3
What is Cloud Computing? (cont.)
• National Institute of Standards and Technology
(NIST)
– Cloud computing is a model for enabling ubiquitous,
convenient, on-demand network access to a shared
pool of configurable computing resources (e.g.,
networks, servers, storage, applications, and
services) that can be rapidly provisioned and
released with minimal management effort or service
provider interaction.
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 4
What is Cloud Computing? (cont.)
Advantages
•Provider makes technology investment
•Software can be accessed without installing it on each
computer
•Decreased deployment time
•Provider handles all updates and modifications
•Pay-as-you-go
•Scalability
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 5
What is Cloud Computing? (cont.)
Three Cloud Models
1. Software as a Service (SaaS) – remote access to software applications
hosted on a vendor server.
2. Platform as a Service (PaaS) – provides a remotely hosted environment
in which the customer can run applications created or acquired by the
customer. The customer does not manage or control the infrastructure
(i.e., network, servers, operating systems, or storage) but has control over
the deployed applications.
3. Infrastructure as a Service (IaaS) – allows a customer to outsource
equipment used to support its internal operations, including hardware,
servers and other network components.
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 6
Taxing the Cloud
Tax Conundrums
•Has control or possession of the software been
transferred to the customer?
•Am I renting property (e.g., a server) in another state?
•Should software be taxed differently if accessed through
the cloud?
•Where is tax due when the service is being used in
multiple states?
•Am I selling a product or service?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 7
Sales Tax – Nexus Issues
• Physical presence (Quill)
• Can a transaction occurring in the cloud create nexus
in any state?
• Factors to be considered:
– Ownership or use of in-state server
– Hosting software from an in-state server
– Does a customer’s license to use software constitute property in the
state?
– In-state solicitation, training, or other employee/representative
activity
• Safe harbors for accessing servers in a state
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 8
Sales Tax – Nexus Issues (cont.)
• License to use = property in the state
• New Mexico Tax. & Rev. Dept. recently held:
– granting access to hardware and software to New Mexico customers is
a license to use hardware and software
– License to use in NM = property employed in the state = “engaged in
business”
– Arguably unconstitutional
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 9
Taxing the Cloud
• Characterization Drives Taxability
– Sale of software?
• Has the software been “transferred”?
– Rental of property?
– Right to possess?
– Right to access?
– Information service?
– Data processing?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 10
State Approaches to Taxing/Not Taxing the Cloud
• Types of guidance
– Statute
– Regulation
– Letter rulings
– Other informal guidance
– None
• Conflicting guidance
– States changing position (e.g., CO and UT)
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 11
State Approaches to SaaS
• Taxable sale of software
– Taxability of software and software maintenance
agreements varies significantly
• Taxable service or intangible
– Data processing service (TX, OH, DC?)
– Information Service
– Other (CT, WA)
• “True object” test (AZ, MA)
– Mixed transactions
– If true object is a service, still must determine
taxability of the underlying service
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 12
Taxing SaaS as Software
• Many states tax software as tangible personal
property, regardless of method of delivery
• States that do so have taken differing approaches
to SaaS
• Principal issue
– Definition of “Sale” or “Use” – requires a transfer of title or
possession
– Does a SaaS customer obtain either?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 13
Taxing SaaS as Software (cont.)
Does the state tax
software as TPP?
YES
Does the state tax
software delivered
electronically?
YES
Is remote access to
software a taxable
transfer?
YES
Taxable
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 14
Taxing SaaS as Software (cont.)
State Comparison
Colorado
New York
New Jersey
•
•
•
•
Taxes pre-written software delivered on tangible medium
Does not tax software delivered electronically
Does not tax software remotely accessed (Statute)
Reasoning - User lacks control over the software
• Taxes pre-written software, including electronically
delivered software
• Taxes remotely accessed software (Advisory Opinion)
• Reasoning – pre-written software is TPP and the “right to
use” software is a transfer of possession of TPP
• Taxes pre-written software, including electronically
delivered software
• Does not tax software accessed remotely (Tech.
Bull.)
• Reasoning – SaaS providers fully retain and operate
the software; no transfer of title or possession
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 15
Taxing Cloud Computing as a Taxable Service
Data Processing
– States enacting provisions broadly defining “data
processing”:
• Texas – has concluded various cloud services are
taxable data processing
– Access to a website design center allowing a customer to
design, provide, and test content
– An Internet-based application that reads information
contained in a communication and generates a summary
report
• Connecticut – taxes online data storage services
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 16
Taxing Cloud Computing as a Taxable Service (cont.)
• Communication service
– South Carolina
– Virginia
• Information service
– SaaS may not be taxable as software, but the underlying
service may be a taxable information service in the state
– Examples
•
•
•
•
•
Internet-based searched services (NY)
Accessing training courses (TX)
Online access to statistical database (NJ)
Legislative tracking (NJ)
Electronic data retrieval of real estate listings (DC)
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 17
Sales Tax - Sourcing Issues
• Where does the “sale” occur?
– Access point/user location
• NY, NM, PA, UT
– Software server location
• Tenn. Ruling – sale not taxable because customers
remotely accessed software hosted on servers located
outside of Tennessee
• Utah/Pennsylvania – originally used sever location, but
has changed to user location
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 18
Sales Tax - Sourcing Issues (cont.)
• Most states are sourcing cloud computing
transactions based on user location
–Results in the same treatment of software sold in tangible
form
–Customer knows the location of normal use
• What happens when users are in various
locations?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 19
Sales Tax - Sourcing Issues (cont.)
• “Multiple points of use” rules
– Billing location default
– Prorated based on # of users in the state
– Texas - user to provide vendor exemption certificate for the
portion of the service benefiting out-of-state users
– Pennsylvania - rebuttable presumption that sale is 100% taxable
by PA; exemption certificate can rebut presumption indicating %
of PA users
• What if user location is unknown by the vendor?
• What happens when the vendor is not obligated to
collect tax (i.e., no nexus with state of use)?
– Use tax compliance issue for the business using the
product/software
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 20
Bundling Issues
•
•
•
•
Multiple products sold together for one price
State specific rules
Is unbundling allowed?
State may impose tax on entire purchase price is
one of the products is taxable
• “True object” test may be applied to determine if
entire transaction is taxable or not taxable
• Vendor/customer needs to consider presentation of
invoice
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 21
Taxing the Cloud in the Region
• Virginia
– Exempts from sales tax services not involving an exchange of tangible
personal property, including software, data, content and other
information services delivered electronically via the Internet
• Maryland
– Pre-written software is considered taxable TPP; downloaded software
not taxable
– Silent on the cloud
• District of Columbia
– Information services are taxable
– Data processing is taxable
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 22
District of Columbia
Data Processing
– Broadly defined to include the following:
• Providing direct access to computer equipment to
process, examine, or acquire information stored in or
accessible to the computer equipment
• Computer programming or software, provided in
conjunction with and to support the sale, lease,
operation, or application of computer equipment or
systems; and
• Any system or application programming or software
Does this include “cloud computing”
transactions?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 23
Income Tax Issues
• Nexus
– “Physical presence” test only applies to sales tax
– Constitutional constraints may still apply
– Factor presence nexus (CA, CO, CT)
– P.L. 86-272
• Sales Factor Sourcing
– Sale of TPP – destination based sourcing
– Sale of a service/intangible – costs-ofperformance based sourcing
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 24
Practical/Policy Considerations
• What does the contract/license agreement
say?
• What does the bill say?
• Are the charges itemized separately?
• Do I owe use tax on my purchases?
• Requesting updating administrative guidance
to address cloud computing
• Model laws – SSUTA/MTC
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 25
QUESTIONS?
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 26
Contact Information
Michael L. Colavito, Jr., JD
301.231.6298
mcolavito@aronsonllc.com
Alan J. Langelli, CPA
301.231.6210
alangelli@aronsonllc.com
© 2013 | All Rights Reserved | Aronson LLC | www.aronsonllc.com
Slide: 27