To fall within the exclusion from Virginia sales taxation, the taxpayer must meet minimum documentation requirements. These minimum documentation requirements can be fulfilled in various ways, but the main position the documentation must support is that the software was solely delivered electronically. The documentation cannot allow for other modes of delivery.
Samples of documentation that should support that the software was solely delivered electronically are:
- Purchase requisition and/or Purchase Agreement
- Terms and Conditions of Sale (must not allow for ground transportation or tangible property to be transferred)
- Affidavits (if necessary)
According to the Virginia Ruling, transfer of a CD of the software for "back-up" purposes still constituted a transfer of tangible personal property that made the sale taxable.
Virginia Based Companies
If you are a Virginia based company, you should review your purchase agreements, contracts and terms and conditions for your purchases of prewritten software to ensure they meet the requirements stated above.
Companies Based Outside Virginia
Even though the ruling discussed in this post is specific to Virginia, companies based outside Virginia should be aware that other states in many cases (other than purchases of prewritten software) put the burden on the taxpayer to rebut the presumption of taxability. Therefore, each company should take the necessary steps to ensure all documentation related to a transaction supports the tax result the company is expecting or trying to achieve.
Other states may not have the same requirements in regards to prewritten software, but they may have the same requirements regarding some other item.
Form over substance? Substance over form? Form AND substance?
Minimum documentation requirements.