Tax Type
Retail Sales and Use Tax
Description
Leases and rentals; Computer leases
Topic
Taxability of Persons and Transactions
Date Issued
06-11-1997
June 11, 1997
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear***************
This will reply to your letter in which you seek correction of a sales and use tax assessment issued to ********(the Taxpayer) for the period January 1992 through December 1994. In addition, the Taxpayer requests a refund of sales tax collected and remitted to the department on exempt sales.
FACTS
The Taxpayer is a lessor of tangible personal property. The department's audit disclosed that tax had not been collected on payments received from the leasing of tangible personal property. At issue is the untaxed lease of computer software. The Taxpayer contends that the tax was paid on the software lease agreement by the prior lessor in the original leaseback transaction.
In addition, the Taxpayer is requesting a refund of sales tax collected and remitted to the department on exempt sales not related to the audit itself. I understand this matter has been resolved; therefore, this response will address the contested assessment attributable to the software lease agreement.
DETERMINATION
Code of Virginia § 58.1-603 imposes the sales tax on every person who sells or leases or rents tangible personal property in the Commonwealth. Code of Virginia § 58.1-602 defines sale to mean "any transfer of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property...." The sale or lease of prewritten computer software constitutes a taxable lease or rental of tangible personal property and is taxable. See Public Document 96-66 (4/26/96), copy enclosed.
The Taxpayer purchased an existing lease agreement between the original lessor and the customer. According to the terms and conditions of the lease agreement, the prior lessor assigned its rights, title, and interest in the lease to the Taxpayer. The Taxpayer was required to bill the lessee for the remaining lease payments, collect the sales tax on the monthly payments and remit such tax to the proper taxing authorities.
The lease agreement is for computer hardware, computer software, and maintenance. The Taxpayer collected and remitted the tax on the portion of the lease payments in connection with the computer hardware. The Taxpayer maintains that the prior lessor paid the sales tax on the computer software prior to the Taxpayer's involvement in the lease. The Taxpayer also notes that the final lease payment was made September, 1993 and not December, 1993 as indicated in the audit.
While the Taxpayer contends that the tax has been paid by the prior lessor on the contested software, the Taxpayer has provided no documentation to support its contention. In the absence of supporting evidence, l find no basis for adjusting the assessment with respect to the software. However, the audit will be adjusted to remove charges for the lease of computer software subsequent to the termination of the lease agreement. As the assessment is paid in full, a refund will be issued for the tax paid on those charges.
The Taxpayer has requested on several occasions that the department give the Taxpayer additional time in order to obtain sufficient evidence that the tax was paid by the prior lessor on the contested computer software. However, as of this date the Taxpayer has not provided the department any additional information. Nevertheless, l will allow the Taxpayer an opportunity to provide the department with additional information regarding this issue. This information should be sent to *****Office of Tax Policy, P.O. Box 1880, Richmond, Virginia 23218-1880 within 60 days of the date of this letter. If the documentation is not received within the specified time period, the assessment will be considered correct as issued.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/11910T
Rulings of the Tax Commissioner