State taxes and cloud computing: Storms ahead! August 22, 2012

Transcription

1 State taxes and cloud computing: Storms ahead! August 22, Baker Tilly Virchow Krause, LLP Baker Tillyrefers to Baker Tilly Virchow Krause, LLP, an independently owned and managed member of Baker Tilly International.

2 Presenters Moderator/Panelist Panelist Panelist Jon Skavlem Director State and Local Tax Services Practice Matt Haller Senior Principal Consulting Larry Ewing Director State and Local Tax Services Practice 2

3 Agenda > Cloud computing Background > Sales and use tax considerations > Sales and use tax: Specific states > Income, franchise, and business entity tax considerations > The cloud computing tax to do list 3

4 Cloud computing Background

5 Background > Definition of cloud computing > Five essential characteristics > Types of cloud computing SaaS PaaS IaaS 5

6 Background > What the heck is the cloud? a question asked by Larry Ellison of Oracle > Worldwide cloud computing sales are expected to reach $150 billion by 2014 > The federal government has announced a plan to allocate $20 billion of its $80 billion annual IT budget to cloud computing > IBM white paper on cloud computing investments shows average annual ROI ranging from 75.78% for a small manufacturer to % for a large bank 6

7 What are the benefits? Drivers IT is too complex and costly, causing distraction from core business focus IT is not agile enough/long development cycles, unable to react to business needs with speed Benefits Scalable solution that supports rapid business growth Increased speed and agility to serve customers or gain operational efficiencies Enable business to focus on core competencies by outsourcing noncore functions Provide Enterprise Class infrastructure to smallmedium companies Pay-as-you-go model/ease of licensing Cost transparency to the end-user/business Large economies of scale Access to better infrastructure : 7

8 What is cloud computing? Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction Three service models : software, platform, and infrastructure Four deployment models private, community, public, and hybrid categorize ways to deliver cloud services Five essential characteristics of cloud computing: on-demand self-service, broad network access, resource pooling, rapid elasticity or expansion, and measured service Source: The NIST Definition of Cloud Computing 8

9 What is cloud computing? Three service models Multi-tenant architecture for SaaS is important for economies of scale 9

10 What is cloud computing? Four deployment models 1. Private: Hosted 2. Community: SaaS provider 3. Public: Amazon, Rackspace 4. Hybrid: Combinations of 1,2,3 Source: The NIST Definition of Cloud Computing 10

11 What is cloud computing? Key elements Five key elements 1. On-demand self-service: Get it when you need it 2. Measured service: Pay for what you use 3. Rapid elasticity: Increase and decrease capacity quickly 4. Broad network access: Access it from any Internet connection 5. Resource pooling: Share fixed costs, which lowers individual costs Source: The NIST Definition of Cloud Computing 11

12 What is cloud computing? Models and characteristics are not mutually exclusive Example: A SaaS ERP vendor, with its own cloud infrastructure serving its community of subscribers, providing a development platform and integration tools. Enabling broad access and rapid scale for its customers. IT strategy implications: > Business objectives Serve customers better Operate more efficiently > What do you put in the cloud? Core applications Development and prototyping Sensitive information > Risk management Business continuity Information security Tax implications? Often overlooked Source: The NIST Definition of Cloud Computing 12

13 Sales and use tax considerations

14 The more things change, the more they stay the same In 1976, the first state supreme court case considered the taxability of computer software for sales tax purposes in Tennessee. The court held that furnishing computer software did not constitute a sale of tangible personal property. Disregarding the form of the transaction, it stated no product is created. What is created and sold is information. Commerce Union Bank, 538 SW2d 405, 406 (Tenn. 1976) 14

15 Host of issues > The sales and use tax treatment of cloud computing poses significant problems for tax authorities and taxpayers Nexus standards: How much presence is enough? Defining the tax base: tangible person property (TPP), digital product, service, or intangible? Taxable situs of the transaction Local taxes 15

16 Nexus > States aggressively asserting nexus to fill a $55 billion budget gap for FY 2012 > Physical presence test of Quill decision in question: affiliate, click-through, agency nexus laws > If SaaS is prewritten/canned software, is it tangible personal property that creates a taxable presence? > PaaS Amazon example of leasing a server; arguably, fails Quill test 16

17 Defining tax base > Many states have not ruled on the taxability of cloud computing applications > They do not neatly fit in Streamlined Sales and Use Tax Agreement (SSUTA) framework as prewritten software or a digital product > Array of different fees: software license, app usage, server rental, data handling, processing/analysis, service, CBT training > Sales/use tax treatment of each cloud computing application varies within and among states 17

18 Defining tax base > Is SaaS a software license or a service? > Is IaaS a lease of TPP, e.g., server? If so, it would appear that the lessee does not enjoy the normal contractual rights to use the hardware > In states where services are not taxed, there is a strong argument that cloud computing applications are not part of the sales and use tax base > Bundled software, hardware, and services: Apply SSUTA bundled transaction rules? 18

19 Sourcing A nightmare? > Sourcing will be influenced by classification of a cloud computing transaction. Factors: Location of the server: What if multiple servers are involved? Seller location: Where application is developed and maintained Customer billing address User location: Allocation of contracts/licenses for users in multiple locations? 19

20 Sales and use tax: Specific states

21 Colorado: Ruling on Web-based IT solution > Letter Ruling PLR (Dec. 20, 2011): Fees related to Web-based file transfer and tracking solution are not subject to sales or use tax > Similar to Google services > Essence of the transaction : Not the license of software or use of hardware but obtaining a nontaxable service > Rental of hardware: Customer did not have sufficient degree of control, e.g., seller retained custody of servers 21

22 Iowa Hosted software and training > IDOR Policy Letter (Jan. 11, 2012): Hosted software and training fees are not subject to Iowa sales or use tax > Cited the National Institute for Standards and Technology s definition of cloud computing > Noted that no software is downloaded or delivered to customers; title/possession to not transferred > Fees meet definition of cloud computing services > No statutory Iowa authority to tax such services 22

23 New York SaaS > Constructive possession of software Use of out-of-state ASP software is taxable even absent delivery of the software to the user. Software is deemed to be constructively received in New York. On Demand ASP Software (TSB-A-08(62)S): Involved a software product that allowed a customer to upload an image onto the petitioner s servers and manipulate the image to show various colors and views (for example, a clothing item front, back). Software resides on servers located outside New York. Held: taxable license to use software. 23

24 New York SaaS > Constructive possession of software Use of out-of-state payroll processing service is taxable absent delivery of software because the software is deemed to be constructively received in New York National Football League ((TSB-A-09(37)S), Aug. 25, 2009): Related to a software product allowing a customer to upload payroll data to a server in Michigan. Application aids in processing payroll data. Held: the location of the code is irrelevant because the software can be used even without a download. Service component nontaxable. 24

25 New York Bundled software/services > Primary objective : service or software? Online educational services: Tower Innovative Learning Solutions (TSB-A-06(5)S (Feb. 2, 2006)). Taxpayer provided software to customers for professional development skills. Upon completion of the Internet course, it awarded a certificate of completion from a learning subsidiary of Cornell University. Academic support (hosting online discussions) offered as a service. Held nontaxable: Rationale was that the students primary objective is to attend a course of study. Students were not purchasing software. 25

26 Texas Hosted software creates nexus > Texas Comptroller of Public Accounts, Doc , July 21, 1998: Software licensed in Texas held to be tangible personal property owned by the licensor > Minnesota software provider had no direct physical presence in Texas > Software hosted on a server in the state > Nexus arose from licensor s in-state presence of software ( tangible personal property ) even where license fees are generated by activities primarily outside of Texas 26

27 Washington Remote access software > 2009 ESHB: clarified the application of Washington sales and use tax to digital products > Remote Access Software (RAS) held to be taxable > RAS defined as prewritten software provided remotely; buyer pays for the right to access and use the software which resides on the seller s or a third-party s server (example: ASP software vendor) > SSUTA sourcing rules apply 27

28 Wisconsin ASP software > Letter Ruling W (WTB No. 168): Charges related to ASP software are not subject to Wisconsin sales or use tax > Fees are not for the license of software but rather a nontaxable service > Degree of control by buyer insufficient > Nontaxable charges include amounts paid for: application service, support, set-up, training, data migration, and forms programming > Tax applies to software purchased by the ASP service provider if placed on a server in Wisconsin 28

29 Other states > Massachusetts: Cloud computing charges for the use of a provider s software by Massachusetts customers are taxable as a sale of prewritten software. Fees for data transfer (but not storage) are taxable as a telecommunication service. MA Letter Ruling 12-8 (July 16, 2012) > Michigan: ASP and SaaS charges to access prewritten software are equivalent to licensing such software and are taxable. Michigan Dept. of Treasury letter ruling issued April 20,

30 Other states > Missouri: A sale of software hosted on out-of-state servers is not subject to sales or use tax when accessed from an in-state location. Missouri Dept. of Rev., Letter Ruling No. LR5753 (July 16, 2009) > Nebraska: ASP charges for services that allow customer remote access to software are not taxable if ASP retains title to software and does not grant a license with ownership rights to customer. Nebraska Information Guide No , July

31 Other states > Pennsylvania: Cloud computing software is tangible personal property. Access fees to Pennsylvania customers are taxable because they exercise a right to use the software as well as control. Pennsylvania Ruling SUT (May 31, 2012) > Utah: License fees for remotely accessed prewritten software are taxable if it is used by an in-state customer. If the software is used both within and outside of Utah, seller must allocate the fees among the locations. Utah Informational Publication 64 (effective July 1, 2012) 31

32 Federal action on cloud computing taxes? > Hodge-podge of state tax laws affecting cloud computing and related transactions has stirred action at the federal level. > Digital Goods and Services Fairness Act (H.R. 1860), introduced by Rep. Smith. Prohibits multiple and discriminatory taxes on digital goods and services delivered or access electronically (including ASP, SaaS). Must be sourced to state of customer location. > Surprise! SSUTA opposes the legislation. 32

33 Sales and use tax conclusions > States are relying on a variety of legal approaches to analyze cloud computing > Notably, SSUTA has not come out with an opinion of SaaS or related cloud computing products/services > Creates sales tax exposure for sellers and use tax exposure for purchasers > Nexus is a factor for sellers (must exist for state to require registration and collection of tax) > Consider materiality of cloud transaction in making use tax determinations 33

34 Income, franchise, and business entity tax considerations

35 View of income/franchise taxes from the cloud > Most of the attention on cloud computing has been devoted to sales and use taxes > While there are some tentative connections between the two bodies of tax law, sales and use tax classifications are not dispositive > In general, federal tax law treats software as an intangible asset regardless of whether it is custom or canned > Again, result is confusion and uncertainty 35

36 Clouding the issues > Nexus current theories of economic nexus suggest selling cloud computing services can create a filing obligation without physical presence > If SaaS and ASP transaction involves canned software, does P.L apply? > For non-income taxes like commercial activity tax (CAT) and business and occupation tax (B&O), state could assert nexus under bright-line concepts and on other grounds 36

37 Clouding the issues > Apportionment: How do state rules apply for cloud computing transactions? > IaaS: Allows use of a service provider s hardware, e.g., servers. Include payments as rent in property factor? > SaaS/ASP: For prewritten software, capitalize software in property factor as rent? Most states are silent with respect to treatment of software in the property factor. Not TPP? 37

38 Clouding the issues > Apportionment: Sales factor is primary factor to consider in analyzing the treatment of cloud computing transactions and businesses > Classifications: Service: SaaS, EaaS Tangible personal property: prewritten software, IaaS? Intangible: software license payments? 38

39 Clouding the issues > States that classify cloud computing as a service will either apply the Cost of Performance (COP) or Market Approach (benefits received) to assign a situs to receipts in the sales factor > States moving to market-based allocation of revenue to determine sales factor (see list on slide 45 of states now employing some version) > COP: Traditional approach 39

40 COP: The basics > Receipts are sourced to a state: if the income-producing activity is performed there (or) if the activity occurs in more than one state, to the state where the greatest proportion of the costs of performing the activity are incurred > In practice, COP method has two variants: Preponderance (all or nothing) Pro rata 40

41 States following COP Alaska Massachusetts North Carolina Arizona* Missouri North Dakota California Mississippi Oregon District of Columbia Montana Pennsylvania Florida Nebraska** Rhode Island Hawaii New Hampshire Tennessee Idaho New Jersey Utah Indiana New Mexico Vermont Kansas New York West Virginia Kentucky * Some taxpayers can elect market approach after 2013 ** Through

42 COP: Perceived problems > Generally, COP fails to capture income or valued added from services performed outside the state that benefit in-state customers > Difficult to apply in practice and clear guidelines are lacking in most states > Does not lend itself to sourcing receipts from license fees and other charges from cloud computing > Lack of uniformity can lead to nowhere income or over-apportionment > Sales and use tax rules for services and digital goods diverging from COP to market sourcing 42

43 Market-based sourcing: Perceived advantages > Market approach better adapted to capture income or valued added from services performed outside the state and from intangibles > Dovetails well with economic nexus standards > Attempted reliance on black and white allocation rules > Thought to reduce nowhere income 43

44 Market sourcing in practice > Considerable variation among states, from general standards to detailed rules > Special software allocation rules in some states, e.g., Michigan Do these rules cover SaaS, PaaS, etc.? > General approach Oklahoma: Receipts from services included in the numerator of the sales factor if the receipts are derived from customers within the state or if the receipts are otherwise attributable to Oklahoma s marketplace 44

45 States that recently adopted market-based sourcing > Alabama > California > Georgia > Illinois > Iowa > Maine > Maryland > Michigan > Minnesota > Nebraska* > New York > Ohio** > Oklahoma > Utah > Washington** > Wisconsin * After 2013 ** Does not have corporate income tax 45

46 Income/franchise tax conclusions > Absent specific rules for software, receipts from cloud transactions can likely be sourced under state-specific COP or market sourcing rules > For prewritten/canned software, consider treating as TPP; customer destination determines situs > TPP argument for IaaS and PaaS? > Consider impact of throwback 46

47 Cloud computing tax to do list

48 What does it mean to my business? > Financial & Tax Move from CAPEX to OPEX affects operational considerations for the CFO Source of service changes impact tax considerations Costs and ROI should look out far enough to factor upgrade impact > Structuring Agreements The subscribing entity bears the state tax burden Pay attention to future module costs and increases to subscriptions Significant software development may bring R&E credit opportunities Some implementation costs can be capitalized > International Can bring additional regulatory requirements There are solutions 48

49 Cloud computing: Tax to do list > Research nature of specific cloud computing transactions. Talk with IT personnel. > Examine the software/service contract carefully: license, rental or service agreement? > Does state have cloud computing or software rules that are on point? > Nexus determinations are critical: sales, income/franchise, and non-income business entity taxes, e.g., Ohio CAT, Washington B&O tax 49

50 Cloud computing: Tax to do list > Sourcing: Can transaction be sitused in a nontaxable jurisdiction, e.g., Oregon? > Unbundle mixed transactions by separately invoicing taxable and nontaxable portions > Determine exposure and materiality aspects (ASC 740 and ASC 450) of cloud computing transactions > Federal tax considerations: Capitalize or expense cloud computing charges? 50

51 Conclusion What s at stake: > Cloud computing can create new opportunities for your business > Tax impacts and structuring agreements Cloud computing provides a modern platform for delivering cost effective enterprise technology 51

52 Questions? Questions?

53 Contact information Moderator/Panelist Panelist Panelist Jon Skavlem Director State and Local Tax Matt Haller Senior Principal Consulting Larry Ewing Director State and Local Tax

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