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The brave new world of taxing digital bundles

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As the range of digital goods and services expands every day, the tax issues associated with them have only grown, and one of the most complicated issues that retailers, providers, and tax authorities are facing currently involves digital bundling.

Since the beginnings of sales taxation, retailers have been tasked with collecting the total tax from customers and remitting it to the proper tax authorities, according to Scott Peterson, vice president of U.S. tax policy and government relations for Avalara — a fairly straightforward proposition.

“Over time, retailers began putting different products together to sell as a bundled item,” Peterson said. “For example, at Christmas, grocers put together gift baskets with fruit, cheese, a knife, cutting board, etc. When that was done in a state that exempts groceries (and most states do so) fruit and cheese are exempt, but other items are subject to sales tax. States and retailers have struggled to come to consensus on what should be charged for bundled items.”

“Predominant use” is the phrase typically used in taxation. The state wants to determine the motivation driving purchases to arrive at a relatively uniform direction to determine taxation. 

And then came digital products, and with those products, a greater number of things to be bundled together that are treated quite differently from state to state. This started with the telephone industry, and the companies looked to states and Congress to find a rational way to tax, given that some items on the phone bill were exempt from sales tax. And states were all over the board in terms of how they taxed or exempted what was on the telephone bill. 

For example, phone companies used to have warranties to cover phone lines in a user’s house in addition to outside the house. After years of this, telephone companies convinced states to support congressional legislation to allow them to use books and records to prove they remitted the right amount of tax to states, regardless of what was listed on a telephone bill. The telephone companies provide a bill to consumers that shows the portion subject to sales tax — but it’s confusing to consumers, since the companies don’t have to itemize the tax on their bill. 

The current landscape

Today, states have rules in place specific to digital goods and services, according to Peterson. 

“The Multistate Tax Commission has been studying digital goods to figure out if a definition actually represents what’s being sold,” he said. “The MTC has written a research paper on the digital goods industry, and now they are trying to figure out digital goods bundling — whether it’s a bundle of all digital goods, or digital goods bundled with hardware. “

Online shopping cart icons concep

Urupong – stock.adobe.com

“It’s very complicated because businesses are so creative, constantly trying to find ways of selling goods produced,” Peterson explained. “The marketing department often doesn’t care what the tax department thinks when a product is in development. This is easy if you’re selling shoes, but in selling digital goods, it becomes very complex.”

“Marketing is driving complexity on the tax side, as there are so many things that can be sold together,” he noted. “Many states exempt real-time digital classes, such as webinars for CPE, for example. But if you record that class and make it available on demand, it’s no longer live. States then treat it as taxable — it’s no longer education, it’s something else, and states are working to determine how to characterize that ‘something else.'”

The MTC’s primary concern is that this situation will only get worse as everything goes digital. 

“The SST [StreamlinedSalesTax] attempted to put together a bundled transaction rule 20 years ago, but it’s now out of date,” said Peterson, who was previously executive director of the SST Governing Board. “MTC is in the discovery phase now of looking at digital goods bundling and taxation. States should be thinking about the complexity that goes with how to charge tax on a portion of a sales price for a bundle with taxable and exempt items. How does a seller prove to an auditor that they charged tax on the one taxable item in a bundle?  The safest practice in selling a bundled package is to itemize each item and only charge sales tax on taxable items.”

“Businesses need to be able to break the bundle apart,” said Peterson. “The fruit and cheese board was an easy exercise in tax and invoicing, but bundled digital goods is a brave new world for businesses and tax authorities. CPAs would recommend having an invoice that is crystal-clear — ‘I’m selling you A,B,C and D. A and D are exempt, so no tax was charged.’ Every day, some retailer creates a new product/service bundle, and it has the potential to reset the taxation conversation. There are no simple answer in this area.”

And things are only getting more complicated: Peterson further referenced a private letter ruling in which the South Carolina Department of Revenue stated that a company’s sales and rentals of digital textbooks purchased for and used in institutions of higher learning as part of a prescribed course of study are exempt, regardless of the format. (Private Letter Ruling #24-3, South Carolina Department of Revenue, March 18, 2024.)

This is only the latest in a series of state developments, including a California case, Bekkerman, that ruled last month on how the state should tax bundled versus unbundled cellphones.

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Accounting

EV makers win 2-year extension to qualify for tax credits

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The Biden administration gave carmakers a partial reprieve in finalizing electric-vehicle tax credit rules intended to loosen China’s grip on battery materials crucial to the car industry’s future.

Starting in 2025, plug-in cars containing critical minerals from businesses controlled by U.S. geopolitical foes, including China, will be ineligible for up to $7,500 tax credits, the Treasury Department said Friday. Automakers will get an extra two years, however, to shore up sourcing of graphite and other materials considered difficult to trace to their origin.

The rules put finishing touches on President Joe Biden’s push to develop an alternative to China’s preeminent EV and battery supply chains. The administration is imposing stringent sourcing requirements for raw materials and components in order for electric cars to qualify for the tax credits that are a powerful draw for consumers otherwise put off by still-high prices.

“These actions provide a strong signal to automakers that we want to see EVs built here in America with components and critical minerals sourced from the U.S. and our allies and partners,” White House Climate adviser John Podesta said.

The two-year exemption speaks to the challenges automakers have had reducing their reliance on Chinese suppliers of materials such as graphite. The mineral used in battery anodes emerged as a geopolitical flashpoint last year when Beijing placed restrictions on exports, sparking fears of global shortages.

The Biden administration’s rules don’t allow tax breaks for vehicles with batteries containing critical minerals from foreign entities of concern, a term referring to businesses controlled by US geopolitical foes such as China, North Korea, Russia and Iran. Those requirements take effect in 2025, as proposed.

But Biden has given auto and battery manufacturers some flexibility on this front, too. In December, the administration decided to allow materials from foreign subsidiaries of privately owned Chinese companies in non-FEOC countries — such as Australia or Indonesia — to count toward tax credit eligibility. This drew criticism from Western miners and policymakers who want Biden to more aggressively cut China out of the supply chain.

Automakers will now have until 2027 to curb the use of certain difficult-to-trace materials from FEOCs, provided that they submit plans to comply after the two-year transition and it’s approved by the government, the Treasury Department said.

“FEOC exemptions for any battery materials should be temporary,” said Abigail Hunter, the executive director of the Center for Critical Minerals Strategy at SAFE, a Washington think tank. “We need a clear exit strategy, lest we continue our dependencies on adversaries and further undermine the competitiveness of U.S. and allied critical minerals projects.”

The rules release concludes two years of work on requirements that already have reduced the number of EVs eligible for tax credits. About 20 models qualify today, compared to as many as 70 previously. Treasury Department officials said Friday they expect the number of qualifying vehicles to continue to fluctuate as companies adjust their supply chains.

Automakers including Tesla Inc., General Motors Co. and Toyota Motor Corp. have lobbied for additional flexibility to meet requirements. A lobby group representing automakers based outside the US praised the additional two years provided for the difficult-to-trace materials.

“It will take time for the global production and sourcing of graphite and other critical minerals needed to produce EVs to match the strict standards required by automakers,” Autos Drive America President Jennifer Safavian said in a statement.

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Accounting

Oregon senator Ron Wyden demands refunds for TurboTax customers over glitch

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Senate Finance Committee Chairman Ron Wyden, D-Oregon, demanded in a letter that Intuit give a refund to Oregonians who, due to a software glitch in the company’s TurboTax tax prep software, were steered toward taking the standard deduction when they would have paid less tax if they’d itemized. The senator said the company had known of this glitch in early April, but didn’t acknowledge it until shortly before the filing deadline.

The glitch, according to the Oregonian, affected about 12,000 people, some of whom reported having to pay hundreds more in tax dollars than they needed to. They were generally using the desktop version of the software, versus the online version.

“Fixing this error will require identifying all affected Oregonians, notifying them, and ensuring they can be made whole,” said the senator. “In part because of TurboTax’s various guarantees and market share, Oregonians who overpaid due to TurboTax’s error likely assumed the software opted them into claiming state standard deduction to minimize their taxes. That assumption was wrong. And because the vast majority of taxpayers understandably dread filing season and avoid thinking about taxes after it ends, many of those affected will not learn on their own that they overpaid. Intuit must act to inform them and help them get the full tax refunds they are entitled to receive.”

The TurboTax logo on a laptop computer in an arranged photograph in Hastings-on-Hudson, New York, U.S., on Friday Sept. 3, 2021. Photographer: Tiffany Hagler-Geard/Bloomberg

Tiffany Hagler-Geard/Bloomberg

An Intuit spokesperson said the company is currently working to resolve the issue, referencing their tax return lifetime guarantee.

“As part of our tax return lifetime guarantee, we are committed to the accuracy of TurboTax tax filers’ tax returns to ensure they receive the maximum refund possible. We are quickly working to resolve an issue impacting a small number of customers and actively engaging with those filers impacted to ensure their returns are correct and that they receive the maximum refund they are owed,” said the spokesperson.

The senator has also asked Intuit for an explanation of how this glitch happened in the first place, as well as an approximate timeline for the steps it took once it became aware of it. He has also asked for a count of precisely how many people were affected, as well as Intuit’s plans for both addressing this problem and what the company will do to prevent it in the future.

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Accounting

On the move: RSM names a client experience leader

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RSM US named its first enterprise client experience leader; the Financial Accounting Foundation is looking for nominees for its Financial Accounting Standards Advisory Council; RKL named a new office managing partner; REDW appointed three new vice presidents; and other firm and personnel news from across the accounting profession.

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