[comp.misc] Software: why does sales tax apply?

cck@deneb.ucdavis.edu (Earl H. Kinmonth) (08/05/89)

I was installing a piece of software today, and in reading through the
copyright claim, it asserted that the publisher retained ownership and
the user was only ~renting~.  Nevertheless, my colleague was charged
~sales~ tax by the vendor, although in California, ~sales~ tax is not
(as far as I know) collected on ~rent~.

Has anyone tried refusing to pay ~sales~ tax on software where the
publisher claims that no sale is involved?

It's a shame there is no foundation to support legal tests of the
hypocritical claims of software vendors and publishers.

My employer could save a rather large amount of money (6-7 percent of
software costs) if software acquistion by individual faculty was
actually a rent rather than sales situation.

mrm@sceard.com (M.R.Murphy) (08/07/89)

In article <5050@ucdavis.ucdavis.edu> cck@deneb.ucdavis.edu (Earl H. Kinmonth) writes:
>I was installing a piece of software today, and in reading through the
>copyright claim, it asserted that the publisher retained ownership and
>the user was only ~renting~.  Nevertheless, my colleague was charged
>~sales~ tax by the vendor, although in California, ~sales~ tax is not
>(as far as I know) collected on ~rent~.
>
>Has anyone tried refusing to pay ~sales~ tax on software where the
>publisher claims that no sale is involved?
>
>It's a shame there is no foundation to support legal tests of the
>hypocritical claims of software vendors and publishers.
>
>My employer could save a rather large amount of money (6-7 percent of
>software costs) if software acquistion by individual faculty was
>actually a rent rather than sales situation.

Prof. Kinmonth is mistaken in his understanding of the sales tax in the
State of California. The sales tax is charged by the State of California,
not the vendor. The State of California gives the vendor the privilege of
collecting the tax for the State Board of Equalization (newspeak:-). The
vendor also gets to fill out the paperwork for the State. The exact definition
of taxable software depends on current interpretation by the State Board of
Equalization of legislation passed by the legislature of the State of
California. This is a moving target. Try and get a written determination from
the State Board of Equalization on the taxability of a particular sales
transaction. The basic philosophy of the tax is the State gets the money,
whether the transaction is called a sale, a license, a lease, ...
The (6-7 percent) range mentioned in the posting above is caused by taxes
that vary based on the source and destination of the sale. What a pain.

BTW, the University of California has at least one RESALE certificate from
the State of California. Sometimes they use it to avoid the tax, sometimes
they don't.  Near as we can tell, the determination for use is based on the
last digit of the shoe size of the buyer involved.
---
Mike Murphy  Sceard Systems, Inc.  544 South Pacific St. San Marcos, CA  92069
mrm@Sceard.COM        {hp-sdd,nosc,ucsd,uunet}!sceard!mrm      +1 619 471 0655

Horne-Scott@cs.yale.edu (Scott Horne) (08/07/89)

In article <5050@ucdavis.ucdavis.edu>, cck@deneb (Earl H. Kinmonth) writes:
> I was installing a piece of software today, and in reading through the
> copyright claim, it asserted that the publisher retained ownership and
> the user was only ~renting~.  Nevertheless, my colleague was charged
> ~sales~ tax by the vendor, although in California, ~sales~ tax is not
> (as far as I know) collected on ~rent~.

Demand a refund at the store, and tell them that they shouldn't be paying
taxes on the "rented" merchandise.

What goes around comes around.  If software vendors want to get cagey with
their words, then let's just see them explain these "rentals" to the
government.  Is rental permitted in the business licenses of these software
companies?  Why aren't the terms of the "rental" specified more clearly?
If the software is being "rented", then aren't we "lessees" entitled to some
maintenance (upgrades) at the expense of the "lessors"?  And isn't it
interesting that one isn't informed that he is "renting" the software until
he opens the package--long after he has given his money on the assumption that
he *purchased* the software?

Someone has some explaining to do.

					--Scott

Scott Horne                     Undergraduate programmer, Yale CS Dept Facility
horne@cs.Yale.edu                         ...!{harvard,cmcl2,decvax}!yale!horne
Home: 203 789-0877     SnailMail:  Box 7196 Yale Station, New Haven, CT   06520
Work: 203 432-1260              Summer residence:  175 Dwight St, New Haven, CT
Dare I speak for the amorphous gallimaufry of intellectual thought called Yale?

rrt@halley.UUCP (Robert Teisberg) (08/08/89)

In article <5050@ucdavis.ucdavis.edu> cck@deneb.ucdavis.edu (Earl H. Kinmonth) writes:
>I was installing a piece of software today, and in reading through the
>copyright claim, it asserted that the publisher retained ownership and
>the user was only ~renting~.  Nevertheless, my colleague was charged
>~sales~ tax by the vendor, although in California, ~sales~ tax is not
>(as far as I know) collected on ~rent~.
>
>Has anyone tried refusing to pay ~sales~ tax on software where the
>publisher claims that no sale is involved?
>

Check your state sales tax statute.  In Texas, until recently,
software was not subject to sales tax (not because of some legal
fiction about "rental," but because supplying software was considered
a non-taxable service).  Two years ago the Legislature tried to
partially offset its oil-glut-induced revenue shortfall by
specifically assessing sales tax on software.  I wouldn't be surprised
if California did something similar.

In other words, it may not matter whether it's called "rent" or
"sale."  Here, at least, as long as it's called "software," it's
taxable (:-().

-- 
Bob Teisberg @ Tandem Computers, Inc. | ...!rutgers!cs.utexas.edu!halley!rrt
14231 Tandem Blvd.                    | soon to be rrt@mpd.tandem.com
Austin, Texas  78728                  | (512) 244-8119
Any resemblance to the opinions of a real person or corporation is concidental.

jacka@hpcupt1.HP.COM (Jack C. Armstrong) (08/08/89)

In many states (e.g. California) there is an attempt to tax and otherwise
encumber software developers, many of whom wish to be classed as a 'service'
industry.  We do not, for example, pay sales taxes on dental work.  (We do
on a toothbrush).  One is a service, the other a product.  Speaking as an
ex-consultant who often wrote custom software, I can tell you it is not just
an attempt to save the customer's money, it is a grade-A pain for a small
operator to sell a 'product' instead of a 'service'.  When the project involves
delivery of software, one recommended tactic is to *not* sell the software -
read the fine print - you may discover that the authors have given you an
'unlimited license to use', but in fact retained ownership of the software
itself.  This, of course, brings up the ugly matter of inventory tax - if
Borland really retains 'ownership' of all that software, they may owe a heap
of inventory tax come January.

In the case of shrink-wrapped software, I find it hard to classify as a 
'service', but what about the individually customised accounting package that
comes with considerable onsite training and support?  Things tend to get a
bit fuzzy.  Many attorneys in California suggest that software houses *not*
charge sales tax, but place funds in escrow, just in case the state rules that
it should have been collected.  Sort of makes you wish for the good old days
of nice, clean radical ethics again - Down With The Tyranny of Government!!

ehr@ecsvax.UUCP (Ernest H. Robl) (08/09/89)

In connection with the ongoing discussion as  to whether one should
have to pay sales tax on software:

This is not the only area where this problem comes up.  Photographers
who sell to publications often have the same problem.  (For those
not familiar with the field, there's such a thing called "stock
photography" where the publication buys rights to the use of a
particular picture but the photographer retains rights to physical
image and can later sell rights to it to another client.

I deal with this while wearing my other hat -- that of 
freelance writer/photographer.)

Why bring this up in a computer newsgroup?  Because the real 
problem is dealing with the state (or sometimes Federal) tax
people who don't understand their own regulations, if they know
anything about them at all.  With the volume of business that I
currently do with my photography, most of my income from that area
would be eaten up if I had to employ the services of an accountant
and an attorney.  Yet it appears to be very difficult for the small
businessperson to get along without them.

I often feel that the current tangle of regulations is stacked 
against the small enterpreneur, whether he's providing photos or
software.  I really don't care so much if I have to collect sales
(or use) tax for certain activities or products, as long as someone
can tell me clearly WHEN I have to collect it.  Since I'm apparently
one of only a handful of people in North Carolina dealing in stock
photography, the N.C. tax people never have any clear answers.

Well, that's my $0.02 for this discussion.  -- Ernest

-- 
My opinions are my own and probably not IBM-compatible.--ehr
Ernest H. Robl  (ehr@ecsvax)  (919) 684-6269 w; (919) 286-3845 h
Systems Specialist (Tandem System Manager), Library Systems,
027 Perkins Library, Duke University, Durham, NC  27706  U.S.A.