Ohio Tax Advanced: The Taxation of Technology Tuesday, January 23, - - PDF document

ohio tax
SMART_READER_LITE
LIVE PREVIEW

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.


slide-1
SLIDE 1

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.

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 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.

slide-3
SLIDE 3

WORKSHOP U

Taxation of 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 Technology

2

Overall Themes

  • Administrative pronouncements
  • Expanding nexus – apps, cookies and networks
  • Traditionally exempt services under attack
  • Continued focus on access, use, control or

possession of remotely accessed software

  • Treatment as Telecommunications
  • Preloaded software bundled with tangible

personal property

slide-5
SLIDE 5

Current Developments in Taxation

  • f Technology

3

Gaining Clarity?

  • Pennsylvania
  • Sales and Use Tax Ruling No. SUT‐17‐001
  • “Support” to canned software is subject to tax
  • “Support” includes providing advice or guidance, help

desk or call center support

  • Far reaching interpretation may also impact certain

consulting services

  • Ruling published, then retracted amid complaints,

revised and republished

slide-6
SLIDE 6

Current Developments in Taxation

  • f Technology

4

Gaining Clarity?

  • Colorado
  • General Information Letter No. GIL‐17‐012,

07/28/2017

  • Listing of services provided by taxpayer and

related taxability

  • Software delivered electronically is not tangible

personal property ‐ Exempt

  • SaaS/Hosting – Exempt
slide-7
SLIDE 7

Current Developments in Taxation

  • f Technology

5

Gaining Clarity?

  • Arizona
  • Taxpayer Information Ruling No. LR16‐011,

09/23/2016 (released March 2017)

  • Taxpayer’s subscription billing and recurring payment

processing services not subject to tax

  • Fees are based on transactions processed
  • Determination that taxpayer not selling/renting

tangible personal property (software)

  • Commentary: Use of software to provide service and

access by customer to software did not taint transaction

slide-8
SLIDE 8

Current Developments in Taxation

  • f Technology

6

Gaining Clarity?

  • Arizona
  • Taxpayer Information Ruling No. LR16‐012,

12/05/2016

  • Software company not liable for use tax on code

written by third‐party developers

  • Taxpayer pays to have code created but code remains

property of third party developers on their servers

  • No taxable sale because no tangible personal property

is transferred

slide-9
SLIDE 9

Current Developments in Taxation

  • f Technology

7

Gaining Clarity?

  • Tennessee
  • Revenue Ruling No. 17‐17, 10/31/2017

– Interpretation of Tenn. Code Ann. § 67‐6‐231(a)(2)

  • “Access and use of computer software”
  • Charges for access to on‐line webinars

– Self Study – Taxable – Instructor Lead – Exempt

  • Key consideration is user interaction with software
slide-10
SLIDE 10

Current Developments in Taxation

  • f Technology

8

Gaining Clarity?

  • Tennessee (Cont.)
  • Additional interpretation of Ruling No. 17‐17
  • Access to dating website is taxable

– User enters profile and contacts others through site

  • Access to on‐line newsletters or on‐line lists

are exempt

– Presumably, user does not “interact” with the software

slide-11
SLIDE 11

Current Developments in Taxation

  • f Technology

9

Gaining Clarity?

  • Indiana
  • Revenue Ruling No. ST 15‐07, 03/07/2017
  • “Software Interfaces” determined exempt
  • Taxpayer engaged third party to develop, and operate

remotely, interfaces between Taxpayer’s other remotely accessed software

  • No control and possession of software provided to

taxpayer

  • Interface software is never transferred to the customer
  • Vendor is providing an exempt service
slide-12
SLIDE 12

Current Developments in Taxation

  • f Technology

10

Gaining Clarity?

  • Indiana
  • Revenue Ruling No. ST 15‐08, 03/07/2017
  • Mobile text messaging service determined to be

taxable telecommunication service

  • Cloud based software service (SaaS) allowing receipt

and auto reply to text messages from third parties

  • Department ruled that service meets the definition of

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.”

slide-13
SLIDE 13

Current Developments in Taxation

  • f Technology

11

Gaining Clarity?

  • Indiana (Cont.)
  • What is the true object of the service?

– 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

  • How is this software different than email

applications?

slide-14
SLIDE 14

Current Developments in Taxation

  • f Technology

12

Gaining Clarity?

  • Texas
  • Private Letter Ruling No. 151250584
  • Taxpayer’s cloud based software texting service

determined to be taxable data processing services

  • Very similar facts to Indiana ruling
  • Texas classified service as SaaS
  • Highlights use of available statutes to tax the same

service in two different manners

– Telecommunication – Data processing

slide-15
SLIDE 15

Current Developments in Taxation

  • f Technology

13

Gaining Clarity?

  • Utah
  • Private Letter Ruling No. ST 16‐004, 03/31/2017
  • Taxpayer sells remote cloud storage and virtual computing

environment – Infrastructure as a Service

  • Taxpayer’s servers are outside Utah
  • Essence of transaction is use of Taxpayer’s computer hardware
  • Because hardware is outside Utah, transaction is sitused

elsewhere

  • Commentary: Normal receipt of benefit analysis for IaaS is

moot because it was determined Taxpayer was not providing a service

slide-16
SLIDE 16

Current Developments in Taxation

  • f Technology

14

Gaining Clarity?

  • Massachusetts
  • Letter Ruling No. 17‐1, 03/23/2017
  • “Service fees” charged to restaurants for mobile

point of sale devices placed on tables

  • Service fee constitutes lease of device together

with included prewritten software

  • Entire service charge is taxable
  • Premium license fees charged to restaurant

customers is taxable prewritten software

slide-17
SLIDE 17

Current Developments in Taxation

  • f Technology

15

Gaining Clarity?

  • Massachusetts (Cont.)
  • Adopted new Regulation effective 9/22/2017

– Mass. Regs. Code 64H.1.7

  • Nexus creating activities conducted by internet

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

  • perating in Massachusetts
slide-18
SLIDE 18

Current Developments in Taxation

  • f Technology

16

Ohio Sales Tax Nexus Changes

  • House Bill 49
  • Ohio Rev. Code Ann. § 5741.01(I)(2)(h) and (i)
  • “Substantial nexus with this state” is presumed to exist

when the seller:

  • “Uses in‐state software to sell or lease taxable tangible

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”

slide-19
SLIDE 19

Current Developments in Taxation

  • f Technology

17

Ohio Sales Tax Nexus Changes

  • House Bill 49 (Cont.)
  • “Provides or enters into an agreement with another

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,

  • r consumption in this state or from providing services

the benefit of which is realized in this state.”

slide-20
SLIDE 20

Current Developments in Taxation

  • f Technology

18

Ohio Sales Tax Nexus Changes

  • Sales Tax Information Release ST 2017‐02
  • Explains ODT’s position on enforcement of

“Software Nexus” and “Network Nexus”

  • In‐state software and content distribution

networks provide requisite physical presence under Quill

  • $500K threshold is said to insure seller’s

connection is substantial

slide-21
SLIDE 21

Current Developments in Taxation

  • f Technology

19

Ohio Sales Tax Nexus Changes

  • Sales Tax Information Release ST 2017‐02 (Cont.)
  • Example provided by ODT
  • Sale of clothing by retailer through catalog

application downloaded to individual’s phone or computer

  • The application is considered in‐state software
  • The presence of the application on the user’s

phone/computer satisfies the physical presence requirement under Quill

slide-22
SLIDE 22

Current Developments in Taxation

  • f Technology

20

Ohio Sales Tax Nexus Legislation

  • Commentary
  • Ohio not specifically targeting “cookies” like

Massachusetts

  • Quill Physical presence standard in question
  • Can software be treated as tangible for purposes
  • f nexus?
  • May be discriminatory under Internet Tax

Freedom Act

slide-23
SLIDE 23

Current Developments in Taxation

  • f Technology

21

Increased complexity in sourcing

  • For gross receipts and income taxes, business are required to allocate

gross receipts from services

  • Allocation traditionally based on where the benefit of the service is

received

  • Seller may not know where the benefit is received
  • May be done based on

– Clicks/viewings – Users – Percentage of population – Billing address

  • Possibility of different application of sourcing rules by states resulting in

the same receipts being taxed multiple times

slide-24
SLIDE 24

Current Developments in Taxation

  • f Technology

22

Increased complexity in sourcing

  • Sales and Use Tax
  • Traditionally sitused based on where the benefit of the service is

received

  • Opportunity for purchaser to look through to its customers who

may use/access the software without a charge?

  • This methodology is consistent with sourcing for gross

receipts/income tax

  • Alternatively, must the service always be sitused to purchaser’s

corporate headquarters or based on use by purchaser’s employees?

  • Some states are situsing service based on location of service

provider’s servers