The Michigan Court of Claims recently held in a summary disposition that remotely accessed software is not subject to Michigan sales and use tax. The court held that software accessed remotely was neither tangible personal property nor ‘used’ by the taxpayer as defined under Michigan statutes. Further, any prewritten computer software provided to the customer was only an incidental component of the various services purchased and did not subject the charges to tax. [Auto-Owners Insurance Company v. Department of Treasury, State of Michigan Court of Claims, No. 12-000082-MT (March 20, 2014)]

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On October 18, 2013, in a 6-1 decision, the Illinois Supreme Court ruled that the state’s click-through nexus law is pre-empted by the federal Internet Tax Freedom Act’s ban against ‘discriminatory taxes on electronic commerce.’ The court did not reach the issue regarding whether the click-through nexus provision violated the US Commerce Clause. [Performance Marketing Association, Inc. v. Hamer, Ill. Sup. Ct., #114496 (10/18/13)]

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Effective June 26, 2013, Maine sales tax applies to products transferred electronically. A “product transferred electronically” is sold in Maine if:

– the product is delivered electronically to a purchaser located in Maine;

– the product is received by the purchaser at the seller’s location in Maine;

– a Maine billing address is provided by the purchaser in connection with the transaction; or

– a Maine billing address is indicated in the seller’s business records.

A “product transferred electronically” is a digital product transferred to a purchaser electronically, the sale of which in non-digital physical form would be subject to tax as a sale of tangible personal property.

This legislation, H.P. 1079, was passed despite the Governor’s veto.