Noteworthy Cases

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On January 8, 2013, the Sutherland State and Local Tax (SALT) Team appeared before the Oregon Supreme Court in an important case concerning the scope of Oregon’s central assessment method of property taxation. Comcast Corporation v. Department of Revenue, Case No. S059764. The issue in the case concerns whether cable television and Internet access services are within the scope of “data transmission services” for ad valorem tax purposes. This case is being followed closely by participants in the Digital Economy (e.g., sellers of Internet access, digital goods and services, and cloud computing providers) and taxing jurisdictions throughout the country.Continue Reading Sutherland SALT Argues Digital Economy Central Assessment Case

On December 18, 2012, the California Court of Appeal ruled that receipts from the right to replicate software are sourced as sales “other than tangible personal property.” In reversing the trial court, the Court of Appeal upheld the taxpayer’s use of costs of performance sourcing. Microsoft Corporation v. Franchise Tax Board, Case No. A131964…

The New York State Department of Taxation and Finance (Department) issued a pair of advisory opinions regarding the sales taxability of consulting services and software. New York’s Tax Law generally imposes sales and use tax on receipts for furnishing information services. N.Y. Tax Law § 1105(c)(1). However, in both advisory opinions, the primary transactions were not subject to New York sales tax because they were within the exception for personalized information services and information services provided orally. See 20 NYCRR § 527.3(b)(2) & (3).Continue Reading Software in Conjunction with Information Services: What’s Your Function?

In two reletter rulings, the Texas Comptroller’s office evaluated the sales and use taxability of certain unique web-based services. In Tex. Policy Letter Ruling 201207531L (July 31, 2012), the Comptroller’s office ruled that Internet marketplace listing fees were not subject to Texas sales and use tax; however, the provision of webstore development services were taxable data processing services.Continue Reading The Lone Star State Swings the Lasso Around E-Commerce Services

While most states that have “click-through nexus” sales tax laws have issued little to no guidance addressing the scope of their provisions, the Pennsylvania Department of Revenue (Department) issued guidance explaining the types of payment mechanisms that will trigger nexus.

The Department’s ruling supplements a December 1, 2011 Tax Bulletin (Tax Bull. 2011-01)…

The Virginia Tax Commissioner concluded in two recent rulings that a reseller of mobile telephone services is not a “telephone company” for purposes of the Virginia Business, Professional and Occupational License (BPOL) tax and therefore is not subject to the higher BPOL tax rate levied against telephone companies. Va. Dept. of Taxation, Pub. Doc. Nos. 12-182 & 12-183 (Nov. 13, 2012). The taxpayer, a limited partnership, is not licensed by the FCC or the state regulatory agency, though its two partners are licensed by the FCC.Continue Reading Virginia Commissioner: Reseller of Mobile Telephone Services Not a “Telephone Company”

The Missouri Department of Revenue (Department) issued guidance stating that gift certificates sold below face value by a radio station, which are redeemable for goods and services purchased at local retailers, are not subject to sales tax. Although the primary determination is not noteworthy, the private letter ruling further stated that the retailers receiving the…

In 2007, Kentucky enacted a nonrefundable income tax credit of up to $1 per gallon of ethanol produced in the state. Under the statute, ethanol producers were required to file a credit claim “on forms prescribed by the department by January 15 following the close of the preceding calendar year.” The Department of Revenue (Department) appears to have…