By David Pope and Timothy Gustafson
The Michigan Court of Appeals held that Thomson Reuters’ sale of Checkpoint, an online tax and accounting research program, was the sale of a nontaxable information service and not tangible personal property for purposes of Michigan’s use tax. The Michigan Department of Treasury argued Checkpoint was tangible personal property because it constituted the sale of “prewritten computer software subject to tax when plaintiff’s Michigan customers used and controlled the computer code that resided on the web browser interface and on the server side.” Applying Michigan’s “incidental to service test,” however, the Court of Appeals found Checkpoint customers sought access to information, not the underlying computer code that constituted less than one percent of the transaction. Thus, any transfer of tangible personal property was incidental to the information service. This unpublished decision provides insight into the Department’s position regarding the taxability of prewritten computer software accessible via the internet, particularly where the Court of Appeals stated in a footnote that “such software may indeed be taxable” but for the application of the “incidental to service test” in this instance. Thomson Reuters Inc. v. Dep’t of Treasury, No. 313825, LC No. 11-000091-MT (Mich. Ct. of App. May 13, 2014) (unpublished opinion).