Were optional Internet-delivered document services and separately stated customer-specific programming taxable when a business also sold printed materials?

Subject

Electronic document, programming, printing, direct mail, and online bill pay services.

Plain-English summary

Virginia removed the optional electronic-document services from the taxable audit items. The taxpayer offered online document viewing, third-party viewing through customer websites, and PDF image transfers. These services were optional, separately charged, independent from printing, and delivered electronically without tangible personal property.

The Internet-services exemption therefore applied even when the same customers also bought printed materials. The charges were not taxable merely because they appeared on the same invoice as printing.

Virginia also found the separately stated programming charges exempt. The work adapted customer data to the taxpayer's systems and was customized for each customer. It qualified when it created a custom program or modified an existing program, and no programming was transferred to customers in tangible form.

What this means for you

• Separate optional digital services factually and contractually from taxable printed products.
• Use separately stated charges and document that delivery occurs electronically.
• For programming, preserve evidence of customer-specific design or modification work.

Citations and references

• Va. Code §§ 58.1-602, 58.1-603, and 58.1-609.5(1), (6), and (7).
• 23 VAC 10-210-4040(D).
• Public Documents 95-68, 02-113, and 03-61.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 14-14

Original ruling text

January 30, 2014

Re: § 58.1-1821 Application: Retail Sales and Use Tax

Dear *:

This will reply to your letter in which you seek the correction of a retail sales and use tax assessment issued to * (the "Taxpayer") for the period October 2008 through September 2011. I apologize for the delay in this response.

FACTS

The Taxpayer is a full service business that provides customers printing, direct mail, electronic document and online bill pay services. The Taxpayer was audited by the Department and assessed sales tax on charges billed to customers for three types of electronic document services that are used over the Internet. The first contested service, known as "eView/eApprove," allows the Taxpayer's customers to view electronic versions of documents, such as billing and bank statements. The second service, "DocSight," allows third parties to view electronic versions of documents, such as bank statements that are viewed by a bank's customers through the bank's website. The third service, "PDF Image Transfer," is the electronic transfer to customers of documents in PDF format. The auditor determined that the contested services were billed in connection with the Taxpayer's sales of printed materials and assessed retail sales tax on the charges billed for these services during the audit period.

In a telephone conversation with a member of my staff regarding this appeal, the Taxpayer also has requested a ruling on the application of the sales and use tax to separately stated software programming charges billed to customers.

DETERMINATION

Electronic Document Services

Virginia Code § 58.1-603 imposes the Virginia retail sales tax upon "every person who engages in the business of selling at retail or distributing tangible personal property in this Commonwealth...." The tax is computed on the gross sales price of tangible personal property and services that are expressly stated as taxable under Virginia law. In addition, sales price is defined in Va. Code § 58.1-602 as "the total amount for which tangible personal property or services are sold, including any services that are a part of the sale , ... without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, losses or any other expenses whatsoever." (Emphasis added.) This definition makes it clear that, absent a statutory exemption in the Code of Virginia , labor or service charges are taxable when billed in connection with the sale of tangible personal property. Unless specifically exempt by law, any services included in a transaction that are in connection with the sale of tangible personal property are subject to taxation unless the sale of the tangible personal property is exempt under the law.

In the Department's audit, charges for electronic document services billed on the same invoices with taxable printed materials were treated as taxable services made in connection with taxable sales of tangible personal property. The electronic document services at issue are separate and optional services that the Taxpayer offers to its customers. A separately stated charge is billed on the customer's invoice for each of the services. The Taxpayer maintains that there is no connection between the electronic document services at issue and the production and sale of printed materials. Each service can be provided independently of the Taxpayer's printing services. The services are completed through the use of the Internet and do not involve the transfer of printed materials or other tangible personal property. The Taxpayer states that the "true object" of the electronic document services is to provide customers access to or the transfer of information electronically. The Taxpayer contends that the Department has exceeded its statutory authority by assessing sales tax on these services.

Virginia Code § 58.1-609.5 1 provides, in part, an exemption from the sales and use tax for "services not involving an exchange of tangible personal property which provide access to or use of the Internet and any other related electronic communication service, including software, data, content and other information services delivered electronically via the Internet." This exemption was amended by the 2004 Virginia General Assembly (see Senate Bill 632, Chapter 607) to clarify and codify the Department's existing policy with respect to the exempt status of software, data, content and other information services delivered electronically via the Internet. For example, Public Document (P.D.) 02-113 (7/26/02) states that the Department traditionally has treated transactions involving the online access of data and the transmission of information via fax, Internet or other electronic means as nontaxable service transactions. P.D. 95-68 (3/30/95) discusses a business that provides customers parts price updates either electronically or on magnetic tape. This determination concludes that the provision of parts price updates by electronic means is a nontaxable service. In contrast, the provision of parts price updates in tangible form, such as on paper, diskette or magnetic tape, is a taxable sale of tangible personal property.

In the instant case, I agree that the electronic document services sold to customers are independent from the Taxpayer's sales of printed materials. The services are not integral to the production of printed materials, are optional and are billed separately to those customers that choose to purchase them. As such, the electronic document services qualify for the exemption in Va. Code § 58.1-609.5 1. The transactions for these services will be removed from the taxable exceptions list and the audit adjusted accordingly.

Programming Services

The Taxpayer offers optional programming services to those customers that require software programming changes to make their data compatible for transmission to the Taxpayer and compatible with the Taxpayer's processing software. The programming changes are not necessary for all the Taxpayer's customers. The programming facilitates the conversion of the customers' data into the printed materials and electronic documents produced by the Taxpayer. The programming services are customized based on each customer's individual requirements and are billed based on an hourly charge. The programming charges are separately stated on the customer's invoice. Customers that desire to utilize the Taxpayer's printing and electronic document services can elect to have the Taxpayer perform the programming services or may make other arrangements to have the programming done based on the specifications required by the Taxpayer.

Virginia Code § 58.1-609.5 6 provides an exemption from the sales and use tax for "[a]n amount separately charged for labor or services rendered in connection with the modification of prewritten programs as defined in § 58.1-602." Virginia Code § 58.1­602 defines a prewritten program as "a computer program that is prepared, held or existing for general or repeated sale or lease, including a computer program developed for in-house use and subsequently sold or leased to unrelated third parties."

The Department has issued several rulings addressing the application of the software modification labor exemption. In P.D. 03-61 (8/19/03), a computer software and services business was assessed sales tax on programming, consulting, travel and administrative charges that the auditor treated as taxable services that were billed in connection with the sale of prewritten software. The Tax Commissioner determined that the exemption for modifications to prewritten programs applied to the taxpayer's charges for direct costs, such as the programming and consulting services used to design, write, test and document modifications to the software. In addition, associated costs such as travel and living costs for programmers, engineers and consultants involved in the modification work and incidental administrative costs were exempt if necessary and associated with the modification effort.

Virginia Code § 58.1-609.5 7 also provides an exemption from the tax for "[c]ustom programs as defined in § 58.1-602." A "custom program" is defined in Va. Code § 58.1-602 as "a computer program which is specifically designed and developed only for one customer. The combining of two or more prewritten programs does not constitute a custom computer program. A prewritten program that is modified to any degree remains a prewritten program and does not become custom."

The Department has established policy that applies the true object test to transactions in which the services and the product are both critical elements of the transaction. Title 23 of the Virginia Administrative Code 10-210-4040 D addresses such situations. Generally, the degree of customization, uniqueness or specific services provided in connection with the product are considered in determining the transaction's appropriate tax status. While the Taxpayer's programming services do facilitate the production and sale of printed materials, the programming is customized and unique to each customer. Applying the true object test to this case, the primary goal of the Taxpayer's customers is to obtain the programming services, which are an exempt service.

If the Taxpayer's programming services are specifically designed and developed for one customer based on the software needs of that customer, then the programming constitutes a custom program and the exemption applies. Likewise, if the Taxpayer performs programming services that constitute modifications to an existing software application and the programming is customized for the customer, the charges qualify for exemption if separately stated on the customer's invoice. Further, it should be noted that there is no transfer of the software programming to the Taxpayer's customers in the form of tangible personal property and title to the programming remains with the Taxpayer.

Based on the cited authorities, the Taxpayer's programming charges are exempt from the sales and use tax. This response is based on the facts provided as summarized above. Any change in the facts or the introduction of new facts may lead to a different result.

CONCLUSION

The audit will be returned to the appropriate field audit staff for revision in accordance with this determination. The charges for the electronic document services will be removed from the audit, and the results of the audit and the assessment will be recalculated. The Department's records indicate that the Taxpayer made a payment of * that was applied to the assessment issued as bill number ***. If there is an assessment balance remaining after the audit is revised, the Taxpayer will be issued a revised bill with interest accrued to date. The bill should be paid within 30 days to avoid the accrual of additional interest. If the revised audit results in an overpayment, the Taxpayer will be issued a refund of the overpayment and applicable interest as soon as practicable.

The Code of Virginia sections, regulation and public documents cited, along with other reference documents, are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions section of the Department's web site. If you have any questions regarding this response, please contact * in the Department's Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-5095537378.S