IDAPA 35.01.02.027 — COMPUTER EQUIPMENT, SOFTWARE, AND DATA SERVICES (RULE 027)

Section 63-3616, Idaho Code
01.
Definitions. For purposes of this rule, the following terms will have the following meanings:
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a.
Canned Software. Canned software is prewritten software which is offered for sale, lease, or use to
customers on an off-the-shelf basis with little or no modification at the time of the transaction beyond specifying the
parameters needed to make the program run. Evidence of canned software includes the selling, licensing, or leasing
of identical software more than once. Software may qualify as custom software for the original buyer, licensee, or
lessee, but become canned software when sold to others. Canned software includes program modules which are
prewritten and later used as part of a larger computer program.
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b.
Computer. A computer is a programmable machine or device having information processing
capabilities and includes word, data, and math processing equipment, testing equipment, programmable
microprocessors, and any other integrated circuit embedded in manufactured machinery or equipment.
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c.
Computer Hardware. Computer hardware is the physical computer assembly and all peripherals,
whether attached physically or remotely by any type of network, and includes all equipment, parts and supplies.
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d.
Computer Program. A computer program, or simply a program, is a sequence of instructions
written for the purpose of performing a specific operation in a computer.
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e.
Computer Software. Computer software, or simply software, is defined as any of the following:
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i.
A computer program;
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ii.
Any part of a computer program;
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iii.
Any sequence of instructions that operates automatic data processing equipment; or
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iv.
Information stored in an electronic medium.
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f.
Custom Software. Custom software is software designed and written by a vendor at the specific
request of a client to meet a particular need. Custom software includes software which is created when a user
purchases the services of a person to create software which is specialized to meet the user's needs.
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g.
Digital Product. See definition for "Information Stored in an Electronic Medium" in Subsection
027.01.h.
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h.
Information Stored in an Electronic Medium. Any electronic data file other than a computer
program which can be contained on and accessed from storage media. The term includes audio and video files and
any documents stored in an electronic format. For purposes of this rule, the term is interchangeable with "digital
product."
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i.
Load and Leave Method. A method of software delivery in which the vendor or an agent of the
vendor loads software onto the user's storage media at the user's location but does not transfer storage media
containing the software to the user.
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IDAHO ADMINISTRATIVE CODE
IDAPA 35.01.02
State Tax Commission
Idaho Sales & Use Tax Administrative Rules
Section 027
Page 21
j.
Remotely Accessed Computer Software. Computer software that a user accesses over the internet,
over private or public networks, or through wireless media, and the user only has the right to use or access the
software by means of a license, lease, subscription, service, or other agreement.
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k.
Storage Media. Storage media include, but are not limited to, hard disks, optical media discs,
diskettes, magnetic tape data storage, solid state drives, and other semiconductor memory chips used for nonvolatile
storage of information readable by a computer.
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02.
Computer Hardware. The sale or lease of computer hardware is a sale at retail. Sales tax is
imposed based on the total purchase price, lease, or rental charges. See Rule 024 of these rules.
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03.
Canned Software. When canned software is sold and delivered on storage media to the user and
the storage media remains in the possession of the user, it is tangible personal property and the sale is taxable. If the
storage media is sold along with other computer hardware, any canned software loaded on the storage media is
tangible personal property the sale of which is taxable. If canned software is sold and delivered electronically or by
the load and leave method, it is not tangible personal property and the sale is not taxable. If canned software is sold
using a physical package but the package does not contain the canned software on storage media, it is not tangible
personal property and the sale is not taxable. For example, if a printed key code is sold in a box that allows the user to
download canned software and activate the canned software using the key code, the sale is not taxable.
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a.
If canned software is loaded on a user's computer but has minimal or no functionality without
connecting to the provider's servers over the internet, the sale of that canned software may still be taxable based upon
the delivery method of the canned software as outlined in Subsection 027.03 of this rule.
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b.
Special rules apply to digital music, digital books, digital videos, and digital games. See
Subsections 027.06 and 027.07 of this rule.
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c.
When a sale of canned software is taxable, tax applies to the entire amount charged to the customer
for canned software. If the consideration consists of license fees, royalty fees, right to use fees or program design
fees, whether for a period of minimum use or for extended periods, all fees are included in the taxable price.
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04.
Remotely Accessed Computer Software. Remotely accessed computer software is not tangible
personal property and charges to use or access such software are not taxable.
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05.
Maintenance Contracts. Maintenance contracts sold in connection with the sale or lease of canned
software generally provide that the buyer will be entitled to receive periodic program enhancements and error
correction, often referred to as upgrades, either on storage media or through remote telecommunications. The
maintenance contract may also provide that the buyer will be entitled to telephone or on-site support services.
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a.
If the maintenance contract is required as a condition of the sale, lease, or rental of canned software,
the gross sales price is taxable if the software to which the contract applies is taxable. Tax applies whether or not the
charge for the maintenance contract is separately stated from the charge for software. In determining whether an
agreement is optional or mandatory, the terms of the contract will be controlling.
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b.
If the maintenance contract is optional to the buyer of canned software:
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i.
Then only the portion of the contract fee representing upgrades is taxable if the fee for any
maintenance agreement support services is separately stated and the upgrades are delivered on storage media;
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ii.
If the fee for any maintenance agreement support services is not separately stated from the fee for
upgrades and the upgrades are delivered on storage media, then fifty percent (50%) of the entire charge for the
maintenance contract is taxable;
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IDAHO ADMINISTRATIVE CODE
IDAPA 35.01.02
State Tax Commission
Idaho Sales & Use Tax Administrative Rules
Section 027
Page 22
iii.
If the maintenance contract only provides upgrades delivered on storage media, and no
maintenance agreement support services, then the entire sales price of the contract is taxable;
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iv.
If the maintenance contract only provides support services, and the customer is not entitled to or
does not receive any canned computer software upgrades or enhancements, then the sale of the contract is not taxable.
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c.
If an optional software maintenance contract provides for software updates to be delivered
electronically but also allows a customer to receive software updates on storage media, no portion of the contract is
taxable unless the customer receives software updates on storage media.
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06.
Digital Products. Digital music, digital books, digital videos, and digital games are tangible
personal property regardless of the delivery or access method but only if the buyer has a permanent right to use the
digital music, digital books, digital videos, or digital games. Where the buyer has a permanent right to use these
digital products, the sale is taxable. Leases or rentals of these digital products are not taxable.
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a.
Other than digital music, digital books, digital videos, or digital games, information stored in an
electronic medium is tangible personal property only if it is transferred to the user on storage media that is retained by
the user.
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b.
If a digital game requires the internet for some or all of its functionality, the sale of that digital game
is taxable if the buyer has a permanent right to use the digital game. If a user pays a periodic subscription charge to
play a digital game, the periodic subscription charge is not taxable. If a user pays a periodic subscription charge for a
gaming service that enables certain functionality such as multiplayer capability in one or more digital games, the
periodic charge is not taxable.
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07.
Digital Subscriptions. Digital subscriptions consist of an agreement with a seller that grants a user
the right to obtain or access digital products in a fixed quantity or for a fixed period of time. Digital subscriptions are
not taxable.
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08.
Reports Compiled by a Computer. The sale of statistical reports, graphs, diagrams, microfilm,
microfiche, photorecordings, or any other information produced or compiled by a computer and sold or reproduced
for sale in substantially the same form as it is produced is a sale of tangible personal property and is taxable if the
final product is printed or delivered in an electronic format on storage media. If a report is compiled from information
furnished by the same person to whom the finished report is sold, the report will be taxable unless the person selling
the report performs some sort of service regarding the data or restates the data in substantially different form than that
from which it was originally presented or delivers the report to the buyer electronically.
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a.
Example: An accountant uses a computer to prepare financial statements from a client's automated
accounting records. No tax will apply since what is sought is the accountant's expertise and knowledge of generally
accepted accounting principles.
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b.
Example: A company sells mailing lists which are transferred to the user on storage media that
remains in the possession of the user. The seller compiles all the mailing lists from a single data base. Since the same
data base is used for all such mailing lists it is not custom software. Therefore, the sale is taxable.
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c.
Example: An auto parts retailer hires a data processing firm to optically scan and record its parts
book on a computer disk. No analysis or other service is performed regarding the data. Essentially, this is the same as
making a copy of the parts books and the sale is, therefore, taxable.
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d.
When additional copies of records, reports, manuals, tabulations, etc., are provided, tax applies to
the charges made for the additional copies. Additional copies are all copies in excess of those produced
simultaneously with the production of the original and on the same printer, where the copies are prepared by running
the same program, by using multiple printers, by looping the program, by using different programs to produce the
same output, or by other means.
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e.
Charges for copies produced by means of photocopying, multilithing, or by other means are
IDAHO ADMINISTRATIVE CODE
IDAPA 35.01.02
State Tax Commission
Idaho Sales & Use Tax Administrative Rules
Section 028
Page 23
taxable.
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09.
Online or Remote Data Storage. Charges to store data on storage media owned and controlled by
another party is a nontaxable service.
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10.
Training Services. Separately stated charges for training services are not taxable, unless they are
incidental services agreed to be rendered as a part of the sale of tangible personal property as provided by Rule 011 of
these rules.
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a.
When separate charges are made for training materials, such as books, manuals, or canned
software, sales tax applies.
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b.
When training materials are provided at no cost to the buyer in conjunction with the sale of tangible
personal property, the training materials are considered to be included in the sales price of the tangible personal
property.
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c.
When no tangible personal property, computer hardware or canned software, is sold and training
materials are provided at no charge to the customer, the provider of the training is the consumer of the training
materials and is required to pay sales tax or accrue and remit use tax.
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11.
Custom Software. The transfer of title, possession, or use for a consideration of custom software is
not taxable. Custom software is specified, designed, and created by a vendor at the specific request of a client to meet
a particular need. Custom software includes software which is created when a user purchases the services of a person
to create software which is specialized to meet the user's needs. The term includes those services that are represented
by separately stated and identified charges for modification to existing canned software which are made to the special
order of the customer, even though the sales, lease, or license of the existing program remains taxable. Examples of
services that do not result in custom software include loading parameters to initialize program settings and arranging
preprogrammed modules to form a complete program.
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a.
Tax does not apply to the sale, license, or lease of custom software regardless of the form or means
by which the program is transferred. The tax does not apply to the transfer of custom software or custom
programming services performed in connection with the sale or lease of computer equipment if such charges are
separately stated from the charges for the equipment.
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b.
If the custom programming charges are not separately stated from the sale or lease of equipment,
they will be considered taxable as part of the sale.
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c.
Custom software includes a program prepared to the special order of a customer who will use the
program to produce and sell or lease copies of the program. The sale of the program by the customer for whom the
custom software was prepared will be a sale of canned software.
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12.
Purchases for Resale. Sales tax does not apply when computer hardware or software is purchased
for resale. A properly executed resale certificate must be on file. See Rule 128 of these rules.
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