Are Your Products Tangible?

Sales tax is complicated. Part of the complication has to do with definitions. Different sales tax jurisdictions define things, including simple terms like “manufacturer” and “groceries,” in different ways. This means that the sales tax regulations are different from one jurisdiction to another, even if the words seem to be the same. One prime example of this issue is with the word “tangible.” Sales taxes are usually required on sales of tangible personal property — but just what counts as tangible?

What’s tangible?

“Tangible” literally means “touchable.” An airplane, a house, or a tomato would be tangible. A plane ride or mortgage or cooking class would not. Tangible goods and intangible goods are distinguished by whether or not they can be touched.

Sounds simple, right? Not exactly. For example, a Kindle book is taxable in Indiana but not in Florida. Some states collect sales tax on digital goods and some don’t. Essentially, some states have decided that digital goods are tangible, even though you might not be able to pick them up. In fact, som estates have redefined “tangible” to mean things that can be discerned with the senses. A Kindle book is visible, but it can be seen or heard, and the device it is on can be touched.

The device

Sometimes the difference between taxable and not is based on the item. For example, Kentucky charges sales tax for digital goods if they are “purchased for storage.” A streaming movie is therefore not taxable, but a movie downloaded to your computer is. Software is taxable — unless it’s custom software, in which case it is exempt from sales tax.

But some states charge tax on digital goods only if they are delivered in a tangible form. For example, if you buy software on a CD-ROM or flash drive, it will nearly always be taxable. If you download it, it often won’t be.

In some states, if you receive the software on a flash drive and then return the flash drive, it will not be taxable. If you keep the flash drive, the same software will be taxable.

Is it a service?

In Texas, a website design is taxable, because web design is considered a service, and as a service it is taxable. It doesn’t matter whether the design is downloaded or furnished to the customer in a tangible form, because it is taxed as a service.

In Colorado, the service of web design is not taxable. However, if the files for the website are delivered on a disk or drive, they become a product and are taxable. If the designer uploads the files to a web host’s servers, the website is not taxable.

When you’re checking whether your product is taxable, you may need to determine whether the states where you have nexus think of your goods as products or as services. You may also need to consider whether you are bundling goods and services. If you bundle services or intangible goods together with tangible products, you might need to collect sales tax on all or part of that bundle.

Things change

Many of the examples of goods that may or may not be considered tangible are digital goods. This makes sense, because many of the laws about sales tax predate digital goods. If you decide to teach a class on diamond mining, you are offering an intangible product. If you write what you know into a book and sell it, you are offering a tangible product. But if you upload a video course on the subject and sell people a link to download the video course…well, that’s a gray area. Some states have gone in one direction and some in another.

As more types of digital goods become available and popular, laws will have to change to keep up. Chances are good that economic and political realities will affect the decisions legislators make in various states just as much as whether a product can literally be touched or not.

Sales Tax DataLINK can help

Sales Tax DataLINK sales tax compliance software stays up to date. What’s more, we have a team of expert accountants who can answer your thorny questions about taxability, nexus, thresholds, and all the other complications that can make sales tax compliance challenging. Call 479-715-4275 or fill out our simple form to get started.

Image courtesy of Adobe

Latest Articles

Sales Tax on Shipping?

Sales Tax on Shipping?

Do you need to collect sales tax on shipping? It depends. Find out what it depends on in this article from SalesTaxDataLINK.

read more