Too often the sales and use tax considerations of licensing software are overlooked when entering into the licensing agreement, only to find out years down the road that the transaction is under scrutiny in a state sales and use tax audit. In December 2014, we brought you the article, Sales Tax and Technology Solutions: Accepting the “Mission Impossible.” The article focused on 10 tips to consider up front that would help you navigate the complex sales tax world of technology solutions. This series of blog posts will focus on the taxability of software that is accessed over the Internet.
This is a software product or solution, usually licensed from a software company that cannot be modified or altered beyond the original functionality. Typically this is referred to as “off the shelf” or “canned” software because it can be used right away. The software is typically downloaded to an individual’s computer or company server.
Most states that impose a sales and use tax will require sales tax to be charged and collected based on where the customer takes possession of the software. To the extent that the seller does not charge sales tax, the responsibility falls on purchasers to self-assess and remit “use tax” to their state revenue agency. In some states such as California, Florida, Iowa, and Nevada (to name a few), states do not impose sales or use tax on canned software that is delivered electronically to the purchaser as long as the purchaser does not receive a physical copy of the software through other means.
The license or purchase of canned software is generally the most commonly adjusted item during a state sales and use tax audit. It is highly recommended that you have procedures in place to track software license arrangements through not only the IT department, but other areas within the organization as well (i.e., engineering, marketing, etc.) to verify that proper taxes have been paid on the transaction.
In the next blog post, we will look at the taxability of Software as a Service.