Identification & taxability of digital products

For the most part, all consumer spending was for items with physical qualities, or things that could be weighed, packaged, mailed, carried, or driven.

The body of sales tax law we live and work with today is based on original statutes whose logic and drafting style adhered to the predominant model of their time and focused exclusively on sales of tangible goods. At the time, no one envisioned a society where services were equally valued as products, let alone products and services delivered in cyberspace.

Around the second half of the last century, a significant portion of consumer spending shifted to services where the value elements are intangible, including specialized training, experience, even raw hours and complex projects. Since a customer’s object in purchasing a service is intangible, sales tax law slowly but steadily followed the shift in consumer preferences.

By 2013, many states routinely apply sales taxes to services, yet the shift in consumer spending leaves us a body of sales tax laws originally drafted with tangible goods in mind that are now regularly, if not uniformly, applied to intangible services.

Let’s say this as nicely as possible: The adaptation and application of sales tax laws to services has not occurred uniformly across the states.

There is a great deal of divergence among the states in determining how and when services are taxed:

• definitions and terms are not universal,
• treatment of particular services varies,
• sourcing of services remains a mystery, and
• almost all states rely on a variety of a “true object” or a “dominant purpose” test to determine when property sold with a service is part of the service or treated separately for sales tax purposes.

Whew! No wonder this is confusing!

Adapting and applying sales tax laws to digital products has also taken dissimilar paths among the states, albeit with a few recognizable trends. Noting the crooked path taken by the states in adapting sales tax laws to services is instructive for two reasons. First, it helps reinforce the general principle that there is great variance among the states. Second, many states applied existing sales tax laws meant for tangible products to digital products, so it helps to understand how we got here.

Remember the first time you downloaded a file named an “MP3” from a site called “Napster?” Digital products first started attracting consumers’ interest just prior to the tech boom in the late 1990s, where it seemed any online-based provider of goods would seemingly be around forever. Of course, this didn’t happen, and only those companies that had strong infrastructures, recognized true service needs among consumers, and complied effectively with existing laws survived the cut.

At that time, existing laws and regulations imposing sales taxes focused on tangible property and specific services only. Since a sale of digital products involved no tangible property and no specific service was delivered, the sale was a non-event according to sales tax laws on the books. The eventual adaptation of sales tax law from goods to services provides a framework to view the shift from goods and services to digital products. In order to embrace the taxation of digital products, the states must define digital products and eventually make some basic decisions on taxability.

The digital revolution arrived nonetheless and states have been busy figuring out how they can increase revenues by exploring taxation of the marketplace for digital products.

In 2011, the United States Congress weighed in with The Digital Goods and Services Tax Fairness Act of 2011, a federal attempt to prevent states from taxing digital goods in a manner inconsistent with a state’s existing legal framework for applying sales tax. Although it has only been a short time since the Act was enacted, states currently taxing digital goods have not stepped outside the boundaries of existing sales tax rates or sought to impose taxes separate from existing sales taxes. The impact of the federal law may or may not be significant and on a practical level, it remains to be seen whether this federal law will have any real bearing on the taxation of digital goods.

Digital products are broadly construed in many formats. Our focus is on digital products known colloquially as digital goods:

• digital audio files — music and podcasts,
• digital video files — television shows or movies,
• or digital books, delivered electronically without physical media.

This rough definition of digital goods gets stretched and contracted by some states, but it is important to remind you that this whitepaper does not address data processing, computer software, or online (cloud) services, among other related products and services often lumped together in official and unofficial communications. We also do not explore legal strategies to aggressively avoid taxation of digital products, such as analysis of true object or inapplicability of tangible property rules.

Finally, remember that whether a state does a good job defining digital goods has little or no bearing on whether digital goods are taxable in that state.

Now, here is what you came for:

Many states make some allusion to digital goods in their body of legislative and administrative law. In addition, the Streamlined Sales Tax Governing Board has made the identifying and defining of digital products a cornerstone of their effort.

There are three categories of states’ approaches in defining digital goods:

1. States that specifically define digital goods on their books through their adoption of SST model legislation.
2. States that define digital goods through laws, regulations or informational documents, often relating digital goods to existing sales tax objects.
3. States that have not defined digital goods for sales tax purposes to any level of usefulness.

The SST is a voluntary organization of 22 states with the goal of encouraging uniformity among states with regard to sales tax compliance obligations. The SST is not designed to dictate taxability or rate structure among the states. Instead, it focuses on centralization of reporting, uniformity of definitions and other efficiency related initiatives. One of the areas where membership in the SST requires legislative reform at a state level is the identification of objects for sales tax purposes.

The body of SST model legislation spends a great deal of ink devoted to the definition of digital goods. With the primary category of “specified digital products:” “Specified digital products” means electronically transferred.

1. “Digital Audio-Visual Works,” which means a series of related images that, when shown in succession, impart an impression of motion, together with accompanying sounds, if any;
2. “Digital Audio Works,” which means works that result from the fixation of a series of musical, spoken, or other sounds, including ringtones; and
3. “Digital Books,” which means works that are generally recognized in the ordinary and usual sense of “books.”¹

Here are the 12 states that utilize the SST definition of specified digital goods:

• Indiana²
• Kentucky³
• New Jersey⁴
• Nebraska⁵
• Nevada⁶
• North Dakota⁷
• Rhode Island⁸
• Tennessee⁹
• Vermont¹⁰
• Washington¹¹
• Wisconsin¹²
• Wyoming¹³

Here are the 16 states that fall into this category:

Arkansas is an SST member state that defines two categories of specified digital goods: “Digital audio-visual works” and “Digital audio work.”¹⁴

Connecticut defines digital goods within its section of telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Connecticut law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”¹⁵

Georgia defines digital goods within its section of telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful.¹⁶

Iowa defines digital goods in regulations: “Sales of items < delivered digitally or electronically include> artwork, drawings, photographs, music, electronic greeting cards, “canned” software ... , entertainment properties (e.g., films, concerts, books, and television and radio programs), and all other digitized products.”¹⁷

Illinois defines digital goods as “downloaded books, musical recordings, newspapers or magazines.”¹⁸

Kansas defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Kansas law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”¹⁹

Louisiana includes “digital or electronic products such as “canned” computer software, electronic files, and “on demand” audio and video downloads within the category of taxable tangible property.²⁰

Michigan defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Michigan law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”²¹

Minnesota defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Minnesota law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”²²

Maine defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Maine law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”²³

Mississippi is not a member of the SST, but the state uses a similar definition structure for digital goods as SST: “Specified digital products” means electronically transferred digital audio-visual works, digital audio works and digital books.”²⁴

In North Carolina, digital property includes items “delivered or accessed electronically ... an audio work; an audiovisual work; a book, magazine, newspaper, newsletter, report or other publication; or a photograph.”²⁵

Ohio defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. Ohio law states “digital products delivered electronically, including software, music, video, reading materials, or ring tones.”²⁶

Oklahoma defines digital products: “digital products delivered electronically include music, video, ringtones, and books.”²⁷

Texas defines digital goods as tangible property. “Digital products, such as photographs and music are tangible personal property as defined in Section 151.009 of the Texas Tax Code.”²⁸

West Virginia defines digital goods within its section on telecommunication services law. Note the law here specifically omits digital goods from the category of telecommunications services, but the definition is helpful. West Virginia law states “digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.”²⁹

Here are the 18 states that fall into this category:

Alabama law does not specifically define digital goods for sales tax purposes. In Alabama, tangible property is described as “personal property which ... is in any manner perceptible to the senses.”³⁰

Arizona law does not specifically define digital goods for gross receipts tax purposes. In Arizona, tangible property is described as “personal property which ... is in any manner perceptible to the senses.”³¹

California does not specifically define digital goods for sales tax purposes.

Colorado does not specifically define digital goods for sales tax purposes. The Colorado definition of tangible personal property is limited to “corporeal personal property.”³²

District of Columbia does not specifically define digital goods for sales tax purposes. The DC definition of tangible personal property is limited to “corporeal personal property.”³³

Florida does not specifically define digital goods for sales tax purposes. In Florida, tangible personal property is “property which ... is in any manner perceptible to the senses.”³⁴

Hawaii does not specifically define digital goods for sales tax purposes.

Idaho does not specifically define digital goods for sales tax purposes.

Maryland does not specifically define digital goods for sales tax purposes. In Maryland, tangible property is “corporeal personal property of any nature.”³⁵

Massachusetts does not specifically define digital goods for sales tax purposes.

Missouri does not specifically define digital goods for sales tax purposes.

New Mexico does not specifically define digital goods for sales tax purposes.

New York does not specifically define digital goods for sales tax purposes.

Pennsylvania does not specifically define digital goods for sales tax purposes.

South Carolina does not specifically define digital goods for sales tax purposes.

South Dakota does not specifically define digital goods for sales tax purposes.

Utah does not specifically define digital goods for sales tax purposes.

Virginia does not specifically define digital goods for sales tax purposes.

Based on the list of states in the three categories, there are about 65% of states have some definition of digital goods for sales tax purposes, either by explicit definition, by including them specifically in the category of tangible property or by referring to their exclusion from telecommunications services. In defining digital goods, some states answer the question of ‘what are digital goods?’ with precision, some do not. Once we have the tools available to define or identify digital goods for sales tax purposes, the next critical, but still basic, question is ‘whether to tax?’ Note from the results below that a state’s ability to positively define digital goods is not necessarily related to how that state taxes or not taxes digital goods.

Clearly, some states dissect the issue to an even greater degree and there are many, many gray areas. For example, digital photographs are carved out in some states. Other questions such as whether a digital good is transferred permanently, whether a digital good is subject to a subscription contract or whether a digital good is delivered with the aid of a physical storage device can all impact specific taxability of specific digital products in specific states. It is strongly recommended each vendor consult with a tax professional to determine the precise treatment required for your products in the states where you sell. While this whitepaper is only meant as a guide, this information will hopefully trigger some good conversation and deeper understanding.

Once again, there are three rough categories to help understand the varying treatments given by the states in taxing (or not taxing) digital goods:

1. States that specifically tax digital goods on their books in law and regulation.
2. States that tax some or all digital goods, often relating the taxability of digital goods to existing sales tax laws originally meant to cover other products.
3. States who do not tax digital goods.

Here are the 10 states that fall into this category:

Indiana law states "A person is a retail merchant making a retail transaction when the person: (1) electronically transfers specified digital products to an end user; and (2) grants the right of permanent use of the specified digital products to the end user that is not conditioned upon continued payment by the purchaser."

Mississippi imposes its gross receipts tax “Upon every person engaging or continuing within this state in the business of selling, renting or leasing specified digital products.”

Nebraska law applies sales taxes to sales of digital goods as of June, 2011.

New Jersey law applies sales tax to “The receipts from every retail sale of ... a specified digital product for permanent use or less than permanent use, and regardless of whether continued payment is required, except as otherwise provided in this act.”

North Carolina law applies sales taxes to any product delivered electronically that would be taxable if delivered in tangible form, specifically including digital products as defined.

Tennessee law states “The retail sale, lease, licensing, or use of specified digital products transferred to or accessed by subscribers or consumers in this state shall be subject to the sales tax.”

Vermont law applies sales tax to “specified digital products transferred electronically to an end user regardless of whether for permanent use or less than permanent use and regardless of whether or not conditioned upon continued payment from the purchaser.”

Washington law defines the category of taxable retail sales to include “sales to consumers of digital goods.”

Wisconsin law applies sales tax to “the sale, lease, license, or rental of specified digital goods and additional digital goods at retail for the right to use the specified digital goods or additional digital goods on a permanent or less than permanent basis and regardless of whether the purchaser is required to make continued payments for such right.”

Wyoming law states: ‘The sale of “specified digital products’ as defined in W.S. 39-15-101 “is subject to sales tax when the product is transferred for permanent use to the taxpayer.”

Here are the 15 states that fall into this category:

Alabama: When it comes to digital photographs specifically, Alabama regulations identify the digital files as tangible property and thus taxable. Based on these regulations and the broadly interpreted Alabama definition of tangible personal property, digital goods are generally considered taxable in Alabama.

Arkansas taxes “digital audio-visual works” and “digital audio works” only when there is a “sale of a subscription for digital audio-visual work and digital audio work to an end user that does not have the right of permanent use granted by the seller and the use is contingent on continued payments by the purchaser.”

Arizona broadly defines tangible personal property. Digital goods are considered included in that definition by Arizona DOR and are taxable in Arizona as tangible personal property.

Colorado does not define digital goods nor affirmatively tax them. Note though, Colorado does consider electronic versions of otherwise taxable newspapers or magazines to be tangible personal property and taxable. The class of taxable ‘newspapers’ in Colorado is somewhat limited but the existence of the taxable class of digital goods is instructive.

Connecticut specifically taxes electronically delivered periodicals and “digital downloads.” Connecticut treats these sales of digital goods as computer and data processing services, subject to a reduced rate of 1%.

Hawaii: Even in the absence of a specific description of digital goods, Hawaii’s regulations plainly state that Hawaii law “subject virtually every economic activity to the general excise tax.”

Idaho subjects digital goods to sales tax. See proposed clarification of Idaho regulations: “This rule clarifies that digital goods ... accessed remotely (i.e. over the Internet or other network) are taxable.”

Kentucky law applies sales taxes broadly to “digital property”, which includes digital audio works and digital books. Note digital audio-visual works are excluded from the definition of digital property.

Louisiana includes digital products in its category of taxable tangible property.

Maine DOR states in an informational document: “Digital products delivered or downloaded to a cellular telephone electronically, including music, video, text or ringtones ... are subject to the Sales and Use Tax.”

Missouri DOR stated in a 2011 Letter Ruling that digital content associated with taxable software is taxable, while digital content associated with non-taxable software is exempt from sales tax.

New Mexico’s gross receipts tax has broad reach. In a 1997 informational document, the NM DOR stated any sale of information exchanged between two computers represents a taxable event.

South Dakota law applies sales tax to any sale of a product delivered electronically that would be taxable if delivered in tangible form.

Texas law applies sales tax to digital goods if the items would be taxable if delivered in physical form. “Digital products, such as photographs and music are tangible personal property as defined in Section 151.009 of the Texas Tax Code.”

Utah law applies sales tax to any product delivered electronically that is taxable if delivered by any other means.

Here are the 21 states that fall into this category:

California does not affirmatively tax digital images or digital books based on their lack of physicality.

The District of Columbia does not affirmatively tax digital goods. There is also a special exemption for sales of “digital content” by “Qualified High Technology Companies” in DC.

Florida does not directly address the taxability of digital goods in statute. Even though Florida defines tangible property very broadly, (it even includes electricity), the Florida Department of Revenue has ruled items electronically delivered and lacking physicality are not taxable.

Georgia does not affirmatively tax digital goods.

Iowa regulations specifically exempt any product delivered “digitally.”

Illinois regulations specifically exempt sales of digital goods based on the product’s lack of physicality.

Kansas generally does not tax electronic downloads of digital products. The Kansas Department of Revenue states “Digital products, services, and information can be sold and delivered over the Internet. Nontaxable sales include electronic downloads of movies, music, photographs, newspapers, and other similar products. These downloads are not taxed because they are not tangible personal property.”

Maryland does not affirmatively tax digital goods.

Massachusetts does not tax digital products. In a 2005 informational document, MA DOR specifically exempted digital products delivered electronically.

Michigan does not affirmatively tax digital goods. Electronically delivered software is taxable, but digital products are not included in the state’s definition of tangible property as software is.

Minnesota does not affirmatively tax digital goods.

New York does not affirmatively tax digital products and the Dept. of Taxation and Finance has stated in several informational documents that specific digital goods are exempt.

Nevada does not tax products delivered electronically.

North Dakota law states “Gross receipts from the sale of ... specified digital products are exempt from sales tax.”

Ohio does not affirmatively tax digital goods.

Oklahoma does not affirmatively tax digital goods.

Pennsylvania does not affirmatively tax digital goods. However, Pennsylvania DOR recently released a Letter Ruling indicating cloud based software and “digital content” are taxable when accessed in PA.

Rhode Island does not affirmatively tax digital goods.

South Carolina does not affirmatively tax digital goods.

Virginia specifically exempts sales of “digital products delivered electronically, such as software, downloaded music, ring tones, and reading materials.”

West Virginia does not affirmatively tax digital goods.

Where do we go from here? There’s no doubt the taxation of digital goods is a phenomenon with significant momentum. As such, the growth of the digital goods marketplace is incentivizing the states to work out the taxability of these products in order to grow state revenue.

The isolated concepts of definitions and taxability do not tell the whole story for vendors, of course. Once a state takes the time and effort to define a digital good and presumably decide to tax a sale of one, consumers and retailers of digital goods are only learning part of the story. One source of added confusion is that a vendor of a digital good does not typically maintain a brick and mortar store front, or even a dusty warehouse for that matter. Often, a seller of a digital good is utterly remote from the consumer, across the nation or across the world.

There are three additional layers involved in the taxability of digital goods. First, where do digital goods begin and other related technologies end? how do states address digital goods-related nexus? Third, how do states address digital goods-related sourcing issues?

On the first issue, for example, virtual items, virtual currency and virtual realities are not addressed by any state law or regulation yet. Even in markets with more widespread use and consumption, such as data processing, software and cloud services, there are a lot of issues left open. Vendors need to get a handle on the rules that apply now, but with a keen eye on how new technologies will steer the market and eventually the sales tax collector too.

The second issue is as old as the first tax ever collected. Nexus is the legal connection a state has with a vendor that gives the state the right to compel the vendor to collect sales taxes on behalf of the state. Nexus analysis looks closely at a customer’s location, location of an actual sale, delivery details, ownership elements, and the vendor’s location, including their servers or other technology. These elements need to be explored in the digital goods context for vendors and providers supplying digital goods trying to comply with nexus rules.

The third issue, sourcing, describes the location were a given transaction is taxed. Put another way, what rates and rules are applicable to the sale? What state or locality gets the money? For example do the rules apply at the customer’s address, the vendor’s location, or the vendor’s server, or the location of a customer’s smart phone when a digital item is downloaded?

Given the uneven participation in SST, and the diversity of related digital goods definitions and statutes, it’s easy to see the confusion among vendors. When Frank Sinatra crooned “My Way,” he could never have imagined the ways in which his song could be saved, delivered and sold in the future. He likely could not have imagined how his creation could someday influence state revenue collection.

Footnotes

1 SSUTA Library of Definitions
2 Ind. Code § 6-2.5-1-26.5
3 Ky. Rev. Stat. Ann. § 139.010
4 N.J. Rev. Stat. § 54:32B-2
5 Neb. Rev. Stat. §77-2701
6 Nev. Rev. Stat. § 360B.483
7 N.D. Cent. Code § 57-39.2-04
8 R.I. Reg. SU 11-25
9 Tenn. Code Ann. § 67-6-102
10 Vt. Stat. Ann. § 9701
11 Wash. Admin. Code 458-20-15503
12 Wis. Stat. § 77.51
13 Wyo. Stat. § 39-15-101
14 Ark. Code Ann. § 26-52-301
15 Conn. Gen. Stat. § 12-407
16 Ga. Code Ann. § 48-8-2
17 Iowa Admin. Code 701--231.14 (423)
18 Ill. Admin. Code 130.2105
19 Kan. Stat. Ann. § 79-3602
20 La. Admin. Code 61:I.4301
21 Mich. Comp. Laws Ann. § 205.93c
22 Minn. Stat. § 297A.61
23 Me. Rev. Stat. Ann. § 2551
24 Miss. Code Ann. § 27-65-26
25 N.C. Gen. Stat. § 105-164.4
26 Ohio Rev. Code Ann. § 5739.01
27 Okla. Admin. Code 710:65-19-156
28 Texas DOR Policy Letter 200005359L
29 W. Va. Code § 11-15B-2b
30 Ala. Code § 40-12-220
31 Ariz. Rev. Stat. Ann. § 42-5001
32 Colo. Rev. Stat. § 39-26-102
33 D.C. Code Ann. § 47-2001
34 Fla. Stat. § 212.02
35 Md. Code Ann. Tax-Gen. § 11-101
36 Ind. Code § 6-2.5-4-16.4
37 Miss. Code Ann. § 27-65-26
38 Neb. Admin. R. & Regs. 1-045
39 N.J. Rev. Stat. § 54:32B-3
40 N.C. Gen. Stat. § 105-164.4
41 Tenn. Code Ann. § 67-6-233
42 Vt. Stat. Ann. § 9771
43 Wash. Rev. Code § 82.04.050
44 Wis. Stat. § 77.52
45 Wyo. Rules Dept. Rev. 15
46 Ala. Admin. Code 810-6-1-.119
47 Ark. Code Ann. § 26-52-301
48 Ariz. Rev. Stat. Ann. § 42-5001
49 Col. DOR Informational Letter No. GIL-11-014, 07/29/2011
50 Colo. Code Regs. 1 CCR 201-5:SR-32
51 CT DOR Policy Statement PS2006(6)
52 CT DOR Taxpayer Answer Center FAQ #750. www.askdrs.ct.gov Viewed March 12, 2013.
53 Ibid
54 Haw. Admin. Rules 18-237-1
55 IDAHO STATE TAX COMMISSION COMMISSIONERS’ OPEN MEETING MINUTES OF MEETING HELD 2/6/13. www.tax.idaho.gov Viewed March 25, 2013
56 Ky. Rev. Stat. Ann. § 139.200
57 La. Admin. Code 61:I.4301
58 Maine DOR Instructional Bulletin #56
59 Missouri DOR Letter Ruling LR 6866 8/17/11
60 New Mexico Ruling 401-97-6
61 S.D. Codified Laws § 10-45-2.4
62 Texas DOR Policy Letter 200005359L
63 Utah Code Ann. § 59-12-103
64 CA BOE Informational Pub. 109
65 D.C. Code Ann. § 47-2001
66 Example see: FL DOR Technical Assistance Advisement (TAA) 10A-028
67 Iowa Admin. Code 701-18.61 (422, 423)
68 Ill. Admin. Code 130.2105
69 Kansas DOR Information Guide EDU-71R 07/23/10
70 MA DOR Tax Information Release TIR-05-8 07/14/05
71 Mich. Comp. Laws Ann. § 205.51a
72 ie: New York Advisory Opinion TSB-A-12(26)S 10/15/12 ; TSB-M-11(5)S 4/7/11
73 Nevada DOR FAQ http://tax.state.nv.us/About%20taxes%20and%20Faqs.html Viewed March 20, 2013
74 N.D. Cent. Code § 57-39.2-04
75 Okla. Admin. Code 710:65-19-156
76 PA DOR Letter Ruling SUT-12-001 5/31/12
77 Va. Code Ann. § 58.1-648