New York Rules Bundled Digital Services Taxable: NetDocuments Prewritten Software Case

The Division of Tax Appeal of the State of New York published conclusions regarding the case involving a Utah-based and New York sales tax-registered company that provides cloud-based document management services to the legal, financial, and accounting industries.

The case and the decision made by the Administrative Law Judge clarify the taxability rules for transactions that include a bundle of taxable property and non-taxable services sold together for one charge.

Facts of the Case and The Ruling

NetVoyage Corp., or NetDocuments.com, petitioned to revise a determination or refund of sales and use taxes. In 2020, the Division of Taxation commenced a sales and use tax field audit of the company for the period between June 2017 and November 2019. 

After conducting a field audit, the auditors underwent a comprehensive audit of the company's services and all relevant tax-related documents and reports. It was determined that around 25% of the petitioner’s reported New York State sales were not taxed during the audit period. The main reasons for not taxing the sales were the lack of invoices, including unsubstantiated credit memos, invoices where items were not taxed, and rate errors.

The audit led to the conclusion that the services offered by the company to the customers in New York are selling software as a service (SaaS), not an information service. As a final result of two years of audit, the auditors concluded that the company owed USD 301,810.87, plus interest on sales and use taxes for the audit period.

After carefully reviewing all involved parties' facts, evidence, claims, and findings, the Administrative Law Judge (ALJ) concluded that the company's sales to consumers in New York constituted taxable sales of prewritten software rather than non-taxable, cloud-based services. More specifically, the ALJ determined that, in this case, taxable prewritten software was sold as part of a bundle that included services for one charge, rather than a platform-as-a-service (PaaS).

The ALJ also added that when a bundle of taxable property and non-taxable services is sold together for one charge, that is one single price, the entire transaction is taxable. Finally, due to the company's failure to provide evidence and supporting documents, the ALJ concluded that it could not prove it was entitled to an apportionment of its customers’ fees for using the software.

Conclusion

The case between the NetVoyage Corp and the State of New York is a critical reminder that determining the appropriate taxability rules requires a detailed understanding of how products and services are bundled, presented, and invoiced.

Businesses, especially those operating in the digital services space, must ensure accurate documentation, clear invoicing practices, and consistent tax treatment of each transaction part to avoid misclassification of services, which could lead to unpaid or unreported sales and use tax, penalties, and interest.

Source: Deloitte, Determination DTA No. 850246