26th Annual
Tuesday & Wednesday, January 24‐25, 2017
Hya Regency Columbus, Columbus, Ohio
Ohio Tax
Workshop E
Advanced: Sales & Gross Receipt Taxes on Technology
Tuesday, January 24, 2017 1:45 p.m. to 2:45 p.m.
Ohio Tax Advanced: Sales & Gross Receipt Taxes on Technology - - PDF document
26th Annual Tuesday & Wednesday, January 2425, 2017 Hya Regency Columbus, Columbus, Ohio Workshop E Ohio Tax Advanced: Sales & Gross Receipt Taxes on Technology Tuesday, January 24, 2017 1:45 p.m. to 2:45 p.m. Biographical
26th Annual
Tuesday & Wednesday, January 24‐25, 2017
Hya Regency Columbus, Columbus, Ohio
Advanced: Sales & Gross Receipt Taxes on Technology
Tuesday, January 24, 2017 1:45 p.m. to 2:45 p.m.
Biographical Information Edward J. ("Ted") Bernert, Partner, Baker & Hostetler LLP 65 E. State Street, Suite 2100, Columbus, Ohio 43215 ebernert@bakerlaw.com 614.462.2687 Fax 614.228.1541 Edward J. (“Ted”) Bernert concentrates his practice in the area of state and local taxes with a particular emphasis on the major Ohio taxes affecting businesses and business owners–sales and use, financial institution, personal income, commercial activity and real property taxes. He represents national companies concerning Ohio tax matters related to compliance, planning and tax legislation. Mr. Bernert regularly deals with various tax department officials upon audit or administrative appeals. He has an active tax litigation practice before the Ohio Board of Tax Appeals and upon appeal to the courts, including the Supreme Court of Ohio.
Tax Committee and is a past chair of the Ohio State Bar Association Taxation Committee and the State and Local Tax Section of the Columbus Bar Association. Mr. Bernert was appointed by the Governor to the Ohio Business Gateway Steering Committee to address the continued development of an electronic link for filing taxes and other matters affecting business. He also serves as a member of The Ohio Chamber of Commerce Taxation Committee. Mr. Bernert is an adjunct professor of state and local taxes at the Capital University Law and Graduate Center and served as Chief Editor of Ohio Tax Review, formerly published by the Center. He currently serves as the co-editor of the Guidebook to Ohio Taxes, published by Commerce Clearing House. He has repeatedly been named an “Ohio Super Lawyer” in the area of Taxation and holds an AV rating by Martindale-Hubbell. Todd A. Whittaker, Program Chair, Information Technology, Franklin University 201 S. Grant Ave, Columbus, OH 43215 Todd.whittaker@franklin.edu 614.947.6110 Todd Whittaker currently serves as the Information Technology and Information Security Program Chair at Franklin University. He has more than 22 years’ experience in computer related fields and has previously held positions as an associate professor at DeVry University, software engineer at Battelle Memorial Institute, and UNIX systems administrator at the University of Akron. He has extensive knowledge of object-oriented programming languages, design patterns, development processes, systems administration, and technology education. When not writing about himself in the third person, he enjoys spending time with his wife and children, and teaching in a small home group Bible study. Anthony C. Ott , Director, State & Local Tax, GBQ Partners LLC 230 West Street, Suite 700, Columbus, Ohio 43215 aott@gbq.com 614.947.5311 Fax: 614.947.5511 Anthony has over 16 years of experience in the state and local tax field. He leads GBQ’s Indirect Tax Service Line and is uniquely positioned to assist GBQ’s clients with state & local tax issues, having spent time in both tax consulting and internal corporate roles. He has served clients in the manufacturing, distribution, technology, healthcare, financial and service industries. Prior to joining GBQ, Anthony was with a Fortune 25 company where he held several roles, including Director, Transactional & Property Taxes. In this role, Anthony led the sales/use/property tax function and was responsible for, among numerous other duties, handling non-income tax audits and the related loss contingencies under FAS 5/ASC 450. Anthony also spent 5 years in the state & local tax practice at a Big 4 firm, serving both public and private companies in the Columbus, Ohio and Portland, Oregon markets. Anthony received his Bachelor of Arts in Accounting from Ohio Wesleyan University. He is a CPA in Ohio and is a member of the Ohio Society of CPA’s and the AICPA.
Ted Bernert Todd Whittaker BakerHostetler LLP Franklin University ebernert@bakerlaw.com todd.whittaker@franklin.edu (614) 462‐2687 (614) 947‐6110 Anthony Ott GBQ Partners, LLC aott@gbq.com (614) 947‐5311
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Factors in Determining Taxability
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Factors in Determining Taxability (Cont.)
Chicago
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Factors in Determining Taxability (Cont.)
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Gaining Clarity?
definition of “use of computer software”
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Gaining Clarity? (Cont.)
Department of Treasury
pronouncements
Technology (IT) Products and Services
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Multiple Points of Use
WA
8
Services Remaining Exempt
widely available) – Customized report
Equalization
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Services Remaining Exempt (Cont.)
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Taxability of the “Software Lifecycle” – Factors to Consider
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Tax Department/IT Team Cooperation
requisition process) to determine sales tax ramifications
project (by vendor)
12
contractual provisions and invoice language
discussions
13
Overview
Appeals of Ohio, 26881, 08/12/2016
that medical transcription services are taxable as automatic data processing services
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processing of data such as keypunching, keystroke verification, rearranging, or sorting of previously documented data for the purpose of data entry or automatic processing, changing the medium
reports, checks, or bills, whether these activities are done by one person or several persons; or
purpose of processing data
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Dayton Physicians’ Position
specialty, flag discrepancies
to software
human service provider
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Tax Commissioner’s Position
professional services
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Tax Commissioner’s Position (Cont.)
services
recognized skill performed by a person who is specifically engaged by the purchaser to perform the act."
physicians’ dictation. Doctor’s responsibility to fill in gaps/discrepancies.
Transcriptionist does not study, alter, interpret, analyze or adjust.
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Other Factors
submitted to prove service is other than ADP
19
Consider
taxability of the transaction
specifically contract language
means of obtaining the exempt service, the transaction is not a bundled transaction and should not be taxable based on the means of communicating the service.
20
Consider (Cont.)
the computer provides any significant benefit, then the entire transaction can be taxed?
Hartford Parkview Associates Limited Partnership v. Groppo, 558 A. 2d 993 (Conn. 1989) that a computer used to provide a reservation service does not make the reservation service computer data processing.
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Overview
“personal/professional services” only for purposes of automatic data processing, computer services or electronic information services
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by means of telecommunications equipment, to computer equipment that is used to enter, upload, download, review, manipulate, store, add,
displaying, delivering, placing, or transferring promotional advertisements to potential customers about products or services or about industry or business brands.”
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Ohio Department of Taxation Response
09/01/2016
advertising with EIS, and EIS may be a “significant portion”
and deem mixed transactions to be taxable
than posting the information?