27th Annual
Tuesday & Wednesday, January 23‐24, 2018
Hya Regency Columbus, Columbus, Ohio
Ohio Tax
Workshop U
Advanced: The Taxation
- f Technology
Tuesday, January 23, 2018 4:15 p.m. to 5:15 p.m.
Ohio Tax Advanced: The Taxation of Technology Tuesday, January 23, - - PDF document
27th Annual Tuesday & Wednesday, January 2324, 2018 Hya Regency Columbus, Columbus, Ohio Workshop U Ohio Tax Advanced: The Taxation of Technology Tuesday, January 23, 2018 4:15 p.m. to 5:15 p.m. Biographical Information Edward J.
27th Annual
Tuesday & Wednesday, January 23‐24, 2018
Hya Regency Columbus, Columbus, Ohio
Advanced: The Taxation
Tuesday, January 23, 2018 4:15 p.m. to 5:15 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 20 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, indirect tax compliancy, related audits and transactional planning. 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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Overall Themes
possession of remotely accessed software
personal property
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Gaining Clarity?
desk or call center support
consulting services
revised and republished
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Gaining Clarity?
07/28/2017
related taxability
personal property ‐ Exempt
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Gaining Clarity?
09/23/2016 (released March 2017)
processing services not subject to tax
tangible personal property (software)
access by customer to software did not taint transaction
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Gaining Clarity?
12/05/2016
written by third‐party developers
property of third party developers on their servers
is transferred
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Gaining Clarity?
– Interpretation of Tenn. Code Ann. § 67‐6‐231(a)(2)
– Self Study – Taxable – Instructor Lead – Exempt
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Gaining Clarity?
– User enters profile and contacts others through site
are exempt
– Presumably, user does not “interact” with the software
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Gaining Clarity?
remotely, interfaces between Taxpayer’s other remotely accessed software
taxpayer
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Gaining Clarity?
taxable telecommunication service
and auto reply to text messages from third parties
Telecommunications:
– “Electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points.”
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Gaining Clarity?
– Transmission/routing of information between points; or – A remotely accessed software tool that allows for the receipt of messages in a consolidated manner and for a custom or automatic reply
applications?
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Gaining Clarity?
determined to be taxable data processing services
service in two different manners
– Telecommunication – Data processing
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Gaining Clarity?
environment – Infrastructure as a Service
elsewhere
moot because it was determined Taxpayer was not providing a service
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Gaining Clarity?
point of sale devices placed on tables
with included prewritten software
customers is taxable prewritten software
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Gaining Clarity?
– Mass. Regs. Code 64H.1.7
vendors
– Use of “in‐state software” and “ancillary data” – specifically targeting apps and cookies – Contracts with content distribution networks – Contracts with market facilitators or delivery companies
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Ohio Sales Tax Nexus Changes
when the seller:
personal property or services to consumers, provided the seller has gross receipts in excess of five hundred thousand dollars in the current or preceding calendar year from the sale of tangible personal property for storage, use, or consumption in this state or from providing services the benefit of which is realized in this state”
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Ohio Sales Tax Nexus Changes
person to provide a content distribution network in this state to accelerate or enhance the delivery of the seller's web site to consumers, provided the seller has gross receipts in excess of five hundred thousand dollars in the current or preceding calendar year from the sale of tangible personal property for storage, use,
the benefit of which is realized in this state.”
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Ohio Sales Tax Nexus Changes
“Software Nexus” and “Network Nexus”
networks provide requisite physical presence under Quill
connection is substantial
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Ohio Sales Tax Nexus Changes
application downloaded to individual’s phone or computer
phone/computer satisfies the physical presence requirement under Quill
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Ohio Sales Tax Nexus Legislation
Massachusetts
Freedom Act
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Increased complexity in sourcing
gross receipts from services
received
– Clicks/viewings – Users – Percentage of population – Billing address
the same receipts being taxed multiple times
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Increased complexity in sourcing
received
may use/access the software without a charge?
receipts/income tax
corporate headquarters or based on use by purchaser’s employees?
provider’s servers