Ohio Tax Advanced: Sales & Gross Receipt Taxes on Technology - - PDF document

ohio tax
SMART_READER_LITE
LIVE PREVIEW

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


slide-1
SLIDE 1

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.

slide-2
SLIDE 2

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.

  • Mr. Bernert is a member of the Executive Committee of the American Bar Association’s State and Local

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.

slide-3
SLIDE 3

WORKSHOP E

Sales & Gross Receipts Taxes on Technology

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

1

slide-4
SLIDE 4

Current Developments in Taxation

  • f Software and Related Services

2

Factors in Determining Taxability

  • Delivery methods
  • Tangible media
  • Downloaded
  • Accessed remotely (Hosted)
slide-5
SLIDE 5

Current Developments in Taxation

  • f Software and Related Services

3

Factors in Determining Taxability (Cont.)

  • Treatment as:
  • Tangible personal property
  • Lease of tangible personal property – City of

Chicago

  • Constructive possession – New York
slide-6
SLIDE 6

Current Developments in Taxation

  • f Software and Related Services

4

Factors in Determining Taxability (Cont.)

  • Treatment as:
  • Digital goods
  • Taxable service:
  • Information service
  • Automatic data processing
  • Telecommunication
  • Security
  • Computer services for system software
  • Exempt service
slide-7
SLIDE 7

Current Developments in Taxation

  • f Software and Related Services

5

Gaining Clarity?

  • Legislative Changes
  • Tennessee – Software accessed remotely meets

definition of “use of computer software”

  • Application/interpretation of prior law
  • Ohio ADP and EIS
slide-8
SLIDE 8

Current Developments in Taxation

  • f Software and Related Services

6

Gaining Clarity? (Cont.)

  • Case law
  • Michigan – Auto‐Owners Insurance Company v.

Department of Treasury

  • Clarification through administrative

pronouncements

  • Minnesota ‐ Fact Sheet #134
  • Washington Tax Topics: Taxability of Information

Technology (IT) Products and Services

  • Streamlined states must publish taxability matrix
slide-9
SLIDE 9

Current Developments in Taxation

  • f Software and Related Services

7

Multiple Points of Use

  • Many states allow – Examples: CO, MA, MN, OH,

WA

  • Focus area in Ohio
  • What qualifies?
  • Hosted software vs. locally loaded version
  • Services
slide-10
SLIDE 10

Current Developments in Taxation

  • f Software and Related Services

8

Services Remaining Exempt

  • Information of personal or individual nature (not

widely available) – Customized report

  • Technology transfer agreement
  • California – Lucent Technologies, Inc. v. Board of

Equalization

slide-11
SLIDE 11

Current Developments in Taxation

  • f Software and Related Services

9

Services Remaining Exempt (Cont.)

  • Web site development and design
  • Application development
  • Custom software for specific user
  • Integration changes when separately stated
slide-12
SLIDE 12

Current Developments in Taxation

  • f Software and Related Services

10

Taxability of the “Software Lifecycle” – Factors to Consider

  • Requirement gathering and design services
  • Implementation services
  • Testing Services
  • Cutover/Deployment
slide-13
SLIDE 13

Current Developments in Taxation

  • f Software and Related Services

11

Tax Department/IT Team Cooperation

  • Early involvement in project (involve Tax team in

requisition process) to determine sales tax ramifications

  • Clear description of what is being purchased and why
  • Delineation of services to be provided as part of

project (by vendor)

slide-14
SLIDE 14

Current Developments in Taxation

  • f Software and Related Services

12

Tax Department/IT Team Cooperation

  • Ability to review and suggest changes to

contractual provisions and invoice language

  • Location of users (applicability of Multiple Points
  • f Use)
  • Access to Vendor Tax Department for detailed

discussions

slide-15
SLIDE 15

Dayton Physicians, LLC v. Testa

13

Overview

  • Dayton Physicians, LLC v. Testa, Court of

Appeals of Ohio, 26881, 08/12/2016

  • Result‐ Court of Appeals affirmed BTA decision

that medical transcription services are taxable as automatic data processing services

slide-16
SLIDE 16

Dayton Physicians, LLC v. Testa

14

  • Definition of ADP ‐ Ohio Admin. Code 5703‐9‐46(A)(1)
  • (a) Processing others' data, including all activities incident to

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

  • n which data is stored, and preparing business documents such as

reports, checks, or bills, whether these activities are done by one person or several persons; or

  • (b) Providing access by any means to computer equipment for the

purpose of processing data

slide-17
SLIDE 17

Dayton Physicians, LLC v. Testa

15

Dayton Physicians’ Position

  • Requires Interpretation, understanding of

specialty, flag discrepancies

  • Service performed by a human in comparison

to software

  • Customers more satisfied with results from

human service provider

slide-18
SLIDE 18

Dayton Physicians, LLC v. Testa

16

Tax Commissioner’s Position

  • Transcription does not meet definition of

professional services

  • Lack of professional certification
  • No specialized training required
  • No regulatory authority oversees profession
slide-19
SLIDE 19

Dayton Physicians, LLC v. Testa

17

Tax Commissioner’s Position (Cont.)

  • Transcription does not meet definition of personal

services

  • “…any intellectual or manual act involving a

recognized skill performed by a person who is specifically engaged by the purchaser to perform the act."

  • Sole objective of creating verbatim record of

physicians’ dictation. Doctor’s responsibility to fill in gaps/discrepancies.

  • No cognitive skills or analytical thought.

Transcriptionist does not study, alter, interpret, analyze or adjust.

slide-20
SLIDE 20

Dayton Physicians, LLC v. Testa

18

Other Factors

  • Lack of written contract
  • True Object – No contract or other evidence

submitted to prove service is other than ADP

slide-21
SLIDE 21

Dayton Physicians, LLC v. Testa

19

Consider

  • Use of a computer to provide services impacts the

taxability of the transaction

  • Importance of specific facts and circumstances,

specifically contract language

  • True object of service when computer is incidental
  • Under R.C. 5739.012(B)(2), when the computer is the

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.

slide-22
SLIDE 22

Dayton Physicians, LLC v. Testa

20

Consider (Cont.)

  • We question whether the Tax Department is correct that if

the computer provides any significant benefit, then the entire transaction can be taxed?

  • Consider the holding of the Connecticut Supreme Court in

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.

slide-23
SLIDE 23

Taxability of Digital Advertising in Ohio

21

Overview

  • H.B. 466 – Effective December 1, 2016
  • Digital Advertising added to list of

“personal/professional services” only for purposes of automatic data processing, computer services or electronic information services

slide-24
SLIDE 24

Taxability of Digital Advertising in Ohio

22

  • “Digital Advertising” defined as “providing access,

by means of telecommunications equipment, to computer equipment that is used to enter, upload, download, review, manipulate, store, add,

  • r delete data for the purpose of electronically

displaying, delivering, placing, or transferring promotional advertisements to potential customers about products or services or about industry or business brands.”

slide-25
SLIDE 25

Taxability of Digital Advertising in Ohio

23

Ohio Department of Taxation Response

  • Ohio Tax Information Release, No. ST 1999‐04,

09/01/2016

  • Advertising has never been a taxable service in Ohio
  • Many transactions may “contain and combine” digital

advertising with EIS, and EIS may be a “significant portion”

  • ODT will continue to tax components representing EIS

and deem mixed transactions to be taxable

  • Is the “advertising company” doing anything other

than posting the information?