By Ted Friedman and Timothy Gustafson
The New York State Department of Taxation and Finance issued a Tax Bulletin addressing the application of sales tax to sales of computer software and related services. The Department explained that the sale of prewritten software is taxable, while the sale of custom software is not subject to tax. Accordingly, the sale of an upgrade of prewritten software is subject to tax unless the upgrade is designed and developed to the specifications of a particular purchaser. Further, a sale of software includes any transfer of title or possession, including a license to use, and the sale to a purchaser in New York of a license to remotely access software is subject to tax because, by accessing the software, the purchaser gains “constructive possession of” and “the right to use or control” the software. The situs of the sale is “the location from which the purchaser uses or directs the use of the software, not the location of the code embodying the software.” Separately stated and reasonable charges for maintaining, servicing or repairing software are exempt from sales tax. However, if a software maintenance agreement provides for the sale of taxable and nontaxable elements, the charge for the entire maintenance agreement is subject to tax unless the charges for the nontaxable elements are: (1) reasonable and separately stated in the maintenance agreement; and (2) billed separately on the invoice or other document of sale given to the purchaser. In addition, custom software is exempt from tax when resold or transferred directly or indirectly by the purchaser of the software to either: (1) a corporation that is a member of an affiliated group of corporations that includes the original purchaser of the custom software; or (2) a partnership in which the original purchaser of the custom software and other members of the affiliated group have at least a 50% interest in capital or profits. Finally, services related to computer software, such as training, consulting, troubleshooting, installing, programming and servicing, are exempt from tax, except when provided in conjunction with the sale of prewritten software; then such services are exempt only when related charges are reasonable and separately stated on the invoice or billing statement given to the customer. N.Y. Tax Bulletin, TB-ST-128 (Aug. 5, 2014).