Our client sells nationwide Internet-based e-mail/fax subscriptions through a toll-free number, using hand-held devices manufactured overseas by OEMs (who license our client's audio-coupling software into the devices) and sold through unrelated third-party Texas retailers. Our client has no office or server in Texas. Does this create Texas sales tax nexus, is the e-mail/fax service itself taxable, and how do we figure out which local tax rate applies?
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This page answers the general question as of 1998. Ezel answers yours, under current Texas tax law, with citations.
Plain-English summary
A company provided nationwide subscriptions to an Internet-based e-mail service (with outbound-only fax capability), reachable by any phone via a toll-free 800 number, using audio-coupling technology built into hand-held devices. The company itself made no sales of tangible personal property — instead, it licensed its software to overseas original equipment manufacturers (OEMs), who embedded the software into hand-held devices and sold them (through their own retail channels) to third-party retailers, who then sold the devices to subscribers, including in Texas. The company's own server was located outside Texas, and it had no owned or leased "point of presence" (local modem/routing infrastructure) in Texas at the time — though it might establish one later. As part of its marketing strategy, unrelated third-party Texas retailers' in-store staff would refer potential subscribers, sometimes demonstrating the device and service, occasionally after training provided directly or indirectly by the company.
The company asked the Comptroller a set of nexus and taxability questions:
1. Do the Texas retailers count as the company's "agents," creating nexus? Yes — on two independent grounds. First and most directly, the company licenses software that physically resides inside the hand-held devices used by its Texas customers — and that alone establishes nexus in every local taxing jurisdiction the devices are taken to, regardless of the retailer relationship. Second, and separately, the in-store sales personnel demonstrating and marketing the device/service appear to be operating as the company's agents for nexus purposes.
2. Would an owned/leased point-of-presence in Texas independently create nexus? Yes.
3. Is the e-mail/fax subscription service itself subject to Texas sales tax? Yes — the service meets Texas's definition of a telecommunications service, so charges for e-mail and facsimile transmissions originated by individuals in Texas are subject to Texas sales tax.
4. Can the company just use a subscriber's billing address to determine the right local tax rate? Only as a fallback. The company should obtain call-detail records from its 800-number service provider to determine where each call actually originates, since local sales tax is based on the rate in effect at the point of origin of the transmission. Only if the point of origin can't be determined should the company fall back to the local rate for the customer's billing address.
5. Can the company issue resale certificates when buying telecommunications services it resells to its own subscribers? Yes.
What this means for you
Software/tech companies licensing embedded software into hardware sold through third-party retail channels
Licensing software that ends up physically inside devices your end customers use in Texas can independently create Texas nexus — wherever those devices go, so does your nexus exposure, separate and apart from any question about whether your retail partners count as your "agents."
Companies marketing services through unrelated third-party in-store retail staff
In-store personnel who demonstrate, refer, or market your service — even without a formal employment or agency contract — can be treated as your agents for nexus purposes, especially if you've trained them (directly or through an intermediary like an OEM).
Telecommunications and Internet service providers billing subscribers nationally
For local tax purposes, prioritize actual call-origin data (from your telecom carrier/800-number provider) over billing address — billing address is only the fallback when true point-of-origin data isn't available.
Accountants and tax professionals advising hardware-plus-software subscription businesses
This letter shows two independent nexus theories stacking on the same fact pattern: embedded-software-in-devices nexus (very broad — follows the device, not any particular retailer) and agent/representative nexus through in-store marketing personnel. Either one alone would be sufficient; a full nexus analysis should check both.
Common questions
Q: Does licensing software that ends up embedded in devices used by Texas customers create nexus, even without any direct retail relationship?
A: Yes — the letter states this creates nexus in every local taxing jurisdiction where the devices are taken by customers.
Q: Do unrelated third-party retailers' in-store staff count as a company's agents for nexus purposes?
A: They can — the letter found the in-store sales personnel demonstrating/marketing the device and service appeared to be operating as agents.
Q: How should local sales tax be sourced for a nationwide telecom subscription service?
A: Based on the rate in effect where the customer's transmission originates (using call-detail data from the telecom carrier), falling back to the customer's billing address only if origin can't be determined.
Q: Can a telecom/Internet service reseller use resale certificates when buying the underlying telecom services it resells to subscribers?
A: Yes.
Q: Can I rely on this letter for my own hardware/software/subscription nexus situation?
A: No. This opinion is rendered based on the facts presented, and if there are additional or different facts, the opinion may change; it can be relied on only by the taxpayer it was issued to.
Citations and references
No specific Tax Code section or Comptroller rule number is cited in this letter; the Comptroller applies the general engaged-in-business/nexus principles (embedded software in customer-used devices; agency through in-store marketing personnel) and the telecommunications services definition without quoting a statute or rule number in the response.
Source
- STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
- Opinion: https://star.comptroller.texas.gov/view/9811994L
Original ruling text
November 10, 1998
Dear Ms. **:
Thank you for your recent letter which is restated in part with response below.
Client is in the business of providing subscriptions to an Internet-based
e-mail service. The subscriptions will be sold to individuals and businesses.
Client's e-mail service is available to subscribers on a nation-wide basis by
way of a toll-free 800 number. Though Client's primary service is e-mail,
Client's service has the capability for subscribers to send (not receive)
facsimiles. Client's initial strategy is to sell its e-mail service for a
flat-rate monthly fee with a separately stated additional charge for facsimile
services. At some point, Client may change its pricing strategy to be based
upon subscriber usage as opposed to a flat-rate fee structure. Client makes no
sales of tangible personal property.
Client licenses software to original equipment manufacturers ("OEMs") to be
embedded into hand-held communication devices ("devices") which the OEMs
manufacture. Client receives royalties from the OEMs for the use of its
software. All OEMs are located outside the United States. The OEMs sell the
devices to third party retailers which, in turn, sell such devices to potential
subscribers. Client is not involved in the retail or wholesale sales of the
devices.
The devices utilize audio coupling technology (Client's software) to
communicate with Client's computer server. This audio technology allows
subscribers the ability to use the devices with any telephone (wireless or
wireline) to access Client's server. Client's server is located in a state
other than Texas.
Nexus Considerations
As noted above, Client's server is located in a state other than Texas. Client
currently does not maintain a point-of-presence network in Texas, though may
establish a point-of-presence network in the future. A point-of-presence
typically consists of leased space with modems and routing equipment.
As part of Client's sales/marketing strategy, it is anticipated that in-store
sales personnel, of unrelated third-party retailers located in Texas, selling
Client's service-enabling device will refer potential subscribers to Client. In
some instances, the in-store sales personnel may make sales demonstrations of
the device and Client's e-mail service. In order to facilitate the selling
efforts of the retailers, Client may train representatives of the retailers in
the use of the service. The representatives would in turn train the in-store
sales personnel. As an alternative, Client may train the OEMs in the use of
Client's service. The OEMs would then be responsible for training the
retailers. Client's training activities may or may not occur in Texas.
Client's E-mail Service
A subscriber initiates communication with Client's server by using any
telephone to dial Client's 800 number. The call is then connected to a
switching station of an unrelated third-party telecommunications service
provider. A Regional Bell Operating Company ("RBOC") maintains the connection
between its switching station and Client's server.
Once connected to Client's server, the subscriber places the device next to the
receiver of the phone, at which time information is transferred between the
phone and the device via the audio coupling technology.
All applicable federal, state and local telecommunications taxes are currently
paid by Client to unrelated third-party telecommunications service providers.
Client does not add such telecommunications taxes to subscribers bills.
RULING REQUESTED
Client respectfully requests the following legal rulings:
- Whether, under the facts described above, the retailers located in Texas
will likely be considered the "agents" of Client for the purpose of
establishing sufficient nexus between Client and Texas to subject Client to a
sales/use tax collection responsibility.
Response: The Client establishes nexus in Texas sufficient to require it to
collect Texas tax on its sales of telecommunications services by virtue of
having software that it licenses in Texas. The fact that the software resides
in the hand-held communications devices used by its customers gives the Client
nexus in every local taxing jurisdiction in which it is taken by Client's
customers. In the alternative, the in-store sales personnel appear to be
operating as agents in marketing the clients services.
- Whether a client-owned or leased point-of-presence in Texas would establish
sufficient nexus between Client and Texas to subject Client to a sales/use tax
collection responsibility.
Response: Yes.
- Whether Client's e-mail service is subject to Texas's sales or use tax.
Response: Client's e-mail and facsimile services meet the definition of
telecommunications services in Texas. Client's charges for e-mail and
facsimile transmissions originated by individuals in Texas are subject to Texas
sales tax.
- Provided Client's e-mail service is subject to Texas's sales or use tax,
whether Client may rely on its subscriber's billing address to determine the
appropriate taxing jurisdiction.
Response: The Client can obtain a detail from its 800 service provider to
determine where calls originate and so collect the correct tax rate from its
customers. Local sales tax rates are determined based on the rate in effect
where the customer originates the transmission. If the point of origin of the
transmission cannot be determined, local tax may be collected based on the rate
in effect at the customer's billing address.
- Whether Client is authorized to issue resale certificates to
telecommunications service providers in purchasing telecommunications services
for resale to Client's subscribers.
Response: Yes.
This opinion is rendered based on the facts presented. If there are additional
or different facts, the opinion may change.
You may call me toll free at 1-800-531-5441, ext. 3-4680. The direct line is
512/463-4680. You may also write to Tax Policy, Comptroller of Public
Accounts. The email address is .
Sincerely,
Al Van Allen
Tax Policy Division
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