The
Department found that Taxpayer had made a variety of purchases, including
software licenses and software maintenance agreements, on which sales tax was
not paid at the time of purchase nor was use tax remitted to the Department.
…
Taxpayer
maintains that the software license agreements "were either partially or
completely utilized outside Indiana."
…
Taxpayer
asks that an apportioned amount of sales/use tax be refunded and that the
assessment be modified to assess tax on an apportioned amount. Taxpayer's
calculation is apparently based upon the number of its "users" in
Indiana compared to the number of "users" outside Indiana… However,
other than the bare assertion that the licenses are used outside Indiana 69
percent of the time, Taxpayer has presented no independent documentary evidence
which supplements its assertion or which justifies the notion that the sales
tax on a single software license can be apportioned among multiple states or
that any one of the two or hundred copies of the licenses that were purchased
was used "solely outside Indiana." IC § 6-2.5-3-1(b).
…
Taxpayer
is unable to point with particularity to any of the licenses it purchased and
to establish that these particular licenses are used outside Indiana.
Moreover,
it appears Taxpayer invites the Department to treat Taxpayer as complying with "multiple
points of use exemption" found at IC § 6-2.5-13-2 (repealed effective Jan.
1, 2008).
…
Since
Taxpayer neither presented any "MPU exemption forms" to the sellers
at the time of the purchases nor presented any evidence of a written intention
for multiple use to the seller at the time of the purchases, Taxpayer cannot
claim the exemption under IC § 6-2.5-13-2(c) and cannot apportion its use tax
due at the time of purchase.
…
Taxpayer
maintains that since the software "maintenance agreements" do not
contain a provision which guaranteed that Taxpayer would automatically receive
software updates and upgrades, the software "maintenance agreements"
are not subject to Indiana sales/use tax.
…
The
Department is not required to discern whether the maintenance agreement vendors
did or did not provide Taxpayer with computer software updates or whether the
underlying agreement guaranteed that updates would be provided. The Department
presumes that updates were provided pursuant to the agreements.
http://www.in.gov/legislative/iac/20120328-IR-045120127NRA.xml.html
