Virginia Software Product Sales Agreement
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FAQ
There is typically no transfer or provision of tangible personal provided to customers of cloud-computing services. Therefore, the Taxpayer incurs no taxable use in downloading from the Developer's servers in Virginia.
Sales of digital products are exempt from the sales tax in Virginia.
Charges for services generally are exempt from the retail sales and use tax. However, services provided in connection with sales of tangible personal property are taxable.
In other words, Software-as-a-Service as a cloud-computing program that is only accessed remotely without delivery of a tangible media and does not include the user taking possession of the program is not subject to sales or use tax.
In most states, where services aren't taxable, SaaS also isn't taxable. Other states, like Washington, consider SaaS to be an example of tangible software and thus taxable. Just like with anything tax related, each state has made their own rules and laws.
Only two states Tennessee and Vermont have specific statutes in place to address SaaS transactions and sales tax. Several states have ping-ponged on their decisions, the most recent being Michigan, who ultimately decided to exempt it.
The Virginia Department of Revenue has maintained a long-standing policy, which is referenced in Virginia Public Document Ruling No. 05-44 , that sales of software delivered electronically do not constitute the sale of tangible personal property and are not subject to sales tax.
The Taxpayer is correct that the sale of software delivered electronically to customers does not constitute the sale of tangible personal property and is generally not subject to Virginia sales and use taxation.
In the state of Virginia, any maintenance contracts that provide only repair labor are considered to be exempt. Any contracts that provide both parts and labor are definitely subject to tax on one-half the total charge for the contract. Contracts which provide only parts are considered to be taxable.
The Taxpayer is correct that the sale of software delivered electronically to customers does not constitute the sale of tangible personal property and is generally not subject to Virginia sales and use taxation.
