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Michigan Court Cloud Computing Decision: Non-Taxable Services

author photo of Carolynn Iafrate Kranz

While a number of state taxing authorities have taken the position through administrative rulings and policy pronouncements that cloud based services involving remotely accessed software constitutes the sale of prewritten computer software, Michigan courts have rejected the Michigan Department of Treasury’s classification of cloud transactions as the taxable sale of prewritten computer software. In Thomas Reuters, Inc. v. Department of Treasury, No. 313825 (Mich. Ct. App. 5/13/2014) (unpublished), the Court of Appeals reversed the ruling of the Court of Claims and held that access to Checkpoint, an online tax and accounting research tool, did not constitute the sale of taxable prewritten computer software, but rather, constituted the provision of a nontaxable service.

The Court of Claims had reasoned that the case "involved an evolution of services, and because this product was taxable when it was in book or CD format, it was taxable now.” The Court of Appeals found the lower court’s reasoning “unpersuasive.” Applying the “incidental to service test,” the Court of Appeals concluded that “any transfer of tangible personal property was incidental to the service provided. . . . Customers sought the expert knowledge of Checkpoint’s content creators in synthesizing, compiling, and organizing the materials, thereby rendering research more efficient. There is no evidence that any de minimus amount of software transferred was the object of the transaction, or that customers sought to own or otherwise have responsibility for the prewritten computer software." The Court of Appeals also noted that the fact that the license agreement entitles users to access and use Checkpoint program does not establish that users primarily sought the physical software.

The Thomas Reuters, Inc. decision follows on the heels of the Michigan Court of Claims decision in Auto-Owners Insurance Co. v. Department of Treasury, Case No. 12-000082-MT (3/20/2014), in which the Court of Claims similarly held that an insurance company's access to a third party's software via the Internet was not subject to the state's use tax as a use of pre-written computer software. Rather, the court determined that the software-as-a-service transactions were properly characterized as a nontaxable service under the statute. In Auto-Owners Insurance, Co., the Court of Claims ruled that mere access to the property did not constitute use because the taxpayer had not "exercised a right or power incident to ownership in the underlying software." In addition, the court noted that even if the pre-written software was delivered to and was used by the taxpayer, under the statute, that use was exempt from taxation because it was "merely incidental to the services rendered by the third-party providers and would not subject the overall transactions to use tax."

The Michigan decisions along with the New York Division of Tax Appeals decision In Re SunGard Securities Finance LLC, DTA No. 824336 (2/12/2014) (see prior blog, "NY Appeal - ASP is Not Software"), indicate that courts are rejecting the taxing authority’s policy of classifying cloud transactions as the taxable sale of prewritten computer software and instead properly concluding that such services constitute the nontaxable sale of services. These decisions provide additional guidance to taxpayers seeking to challenge the aggressive positions taken by taxing authorities with regard to cloud computing services.

Carolynn is the founder and Managing Member of Industry Sales Tax Solutions, LLC (“ISTS”), which offers a subscription database containing the sales and use taxability of software related transactions, digital content and cloud services; she is also the Managing Member of Kranz & Associates, PLLC, a boutique law firm specializing in state and local tax consulting. See Carolynn's AUTHOR page in order to send a message and/or consultation request.

Other recent “Cloud, Software & Digital Tax” posts by Carolynn Iafrate Kranz:

NOTE: All blog content, comments, and participation subject to disclaimer at bottom of page.

Comments

3 Responses to Michigan Court Cloud Computing Decision: Non-Taxable Services

  • Posted by Lindsey on March 31, 2015 12:51am:

    http://www.streamlinedsalestax.org/otm/state_matrix.php?st=Michigan&ab=MI&y=2013&v=2014.3&nv=0.0
    Michigan is a member of SST, and their taxability matrix is included. Cloud computing would fall under the electronically downloaded category or "load and leave", which is taxable. The membership for Michigan was updated after this article was posted.

    • Posted by Author photo of Carolynn Iafrate KranzCarolynn Iafrate Kranz on April 3, 2015 7:06am:

      I appreciate your comment, Lindsey, and you are correct that Michigan taxes prewritten computer software, regardless of delivery method. However, SaaS has not been determined to be prewritten computer software by the SST Governing Board, and therefore, the taxability matrix is not applicable to SaaS. Michigan's position that SaaS is prewritten computer software has been raised as a compliance issue by the BAC, as the BAC disagrees that SaaS is prewritten computer software, as do several other SST states (note that both New Jersey and Nebraska issued very clear guidance last year specifically expressing that SaaS is not prewritten computer software).

  • Posted by Bob on May 18, 2014 12:53am:

    Carolyn,
    I believe that as long as states hold that a majority of services are NOT taxable, those same states will essentially be "hung" when it comes to taxing/not taxing cloud software.
    For those states like SD & OH that tax a number of computer services, it is far easier to EXTEND that logic towards the taxing of cloud software.
    My point with this observation is that over time, I believe that states are so starved for tax revenue streams that they will turn towards heretofore not taxable services & deem them taxable.
    So that although states are rendering decisions on cloud software NOW, I view those who do not tax cloud software as static and subject to subsequent revision once those same states change services to TAXABLE.
    At the same time, these rulings make me wonder why/how these same states that will not tax cloud software WILL tax services involved with preparing food (e.g. diners/restaurants/fast food).
    Drill into food preparation & ask why should a SERVICE that PREPARES an otherwise NOT TAXABLE product (Food & beverages) for immediate consumption be taxable in states that generally DO NOT tax services?
    I am suggesting that as states rule against taxing cloud software, they are essentially exposing the flaws within their sales/use tax scheme on other goods/services!

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