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1 Sweet Sixteen? Developments and Trends Under the Mobile Telecommunications Sourcing Act Dustin Davis Ryan Matt Boch DDH Telestrategies Communications Taxation May 17, 2016

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Page 1: Sweet Sixteen? Developments and Trends Under the Mobile ...telestrategies.com/TAX/Presentations2016/Boch_Davis.pdf · International roaming – USA residents traveling abroad Texas

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Sweet Sixteen? Developments and Trends Under the Mobile Telecommunications Sourcing Act

Dustin Davis Ryan

Matt Boch DDH

Telestrategies Communications Taxation

May 17, 2016

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Sweet Sixteen? Developments and Trends Under the Mobile Telecommunications Sourcing Act

  Agenda – Overview of the Mobile Telecommunications Sourcing Act – What services are subject to MTSA –  Application of MTSA sourcing –  Bootstrapping of MTSA sourcing for other taxes or services –  Unbundling

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Mobile Telecommunications Sourcing Act

  MTSA Overview – Why was it needed? – What’s excluded? – What does it establish?

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MTSA Overview   Why was it needed? –  Increasing number of cellular phone subscribers –  Use of cellular service in multiple jurisdictions during a billing period –  Trend toward flat-fee billing –  Validity of billing address taxation under Goldberg? –  Potential for multiple taxation –  Difficulty in compliance and auditing

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MTSA Overview

  What did it establish? –  Required sourcing of mobile telecommunications services to “place of

primary use” –  Allowed unbundling of nontaxable charges for mobile

telecommunications services –  Creates provisions for electronic database containing jurisdiction

information for addresses –  Sets limitations

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Services Subject to MTSA

  What is Mobile Telecommunications Service? –  “[C]ommercial mobile radio service, as defined in section 20.3 of title 47

of the Code of Federal Regulations as in effect on June 1, 1999.” 4 U.S.C. § 124(7).

  What services are excluded? –  Prepaid telephone calling services –  Air-ground radio telephone services –  Services excluded by the ITFA

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Services Subject to MTSA

  Sample definition § “The term includes cellular telecommunications services, personal

communications services (PCS), specialized mobile radio services, wireless voice over Internet protocol services, and paging services. The term does not include telephone prepaid calling cards or airground radio telephone services as defined in 47 C.F.R. 22.99 of FCC regulations in effect on June 1, 1999.” Tex. Admin. Code tit. 34, § 3.344(6).

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Services Subject to MTSA

  Inclusion of VoIP services in MTSA –  Internet Tax Freedom Act of 2007 (amending §1105(5)(D)) –  Removes voice, audio or video programing that uses the internet or

successor protocols from the list of protected internet services –  Allowed states to begin taxing VOIP (Voice Over Internet Protocol)

services as telecommunications services

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Services Subject to MTSA

  VOIP: Kansas Private Letter Ruling P-2013-001 (Jul. 3, 2013) –  Conferencing and Video Solutions company, using the internet along

with the PSTN –  Verified that Kansas treats VOIP services as telecommunications

services –  Since they are considered telecom services, the sourcing rules will

follow the MTSA and use customers’ primary places of use –  Looked to other decisions treating VOIP as telecom §  Cable One, Inc. v. Arizona Dept. Revenue (2013) (property tax) §  Baltimore v. Vonage (2008) (local telecom tax)

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Services Subject to MTSA   VOIP in Flight?

Illinois Letter Ruling ST-10-0005-PLR (Aug. 9, 2010) § Company provides VoIP service via Wi-Fi on commercial airplanes

§ Service provided to airlines allowing airline personnel to place and receive calls in flight

§ Phones on aircraft are assigned telephone numbers that have an area code associated with the location of the data center the signal travels through

§ Data centers are located in Illinois

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Services Subject to MTSA   VOIP in Flight? (cont’d)

Illinois Letter Ruling ST-10-0005-PLR (Aug. 9, 2010) § Determined service provided is an air to ground radio telephone service

§ Thus it is sourced using the Telecommunications Excise Act instead of the MTSA

§ Reduced tax burden, because TET is only due on when an airline originates or terminates calls while equipment is located in IL and the bill for service is sent to an Illinois address

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Sourcing

  What if the customer moves outside of the licensed service area? Texas Policy Ltr. STAR 200208353L (Aug. 6, 2002) –  If a customer has actually moved, the old address is no longer a place of

primary use. Use new address as place of primary use. –  “The Mobile Telecommunications Sourcing Act did not contemplate

such situations since it was assumed for economic reasons that service providers would not sell mobile telecommunications services outside their licensed service areas, and even if some did, that a customer would soon switch to a service provider with a licensed service area that covered the customer.”

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Sourcing

  What if the customer lives where no service is available? Utah State Tax Commission PLR 02-028 (Jan. 14, 2003) –  If an alternative address (office, second home, etc.) is available, use that

alternative address. – Otherwise, treat home address as place of primary use despite obvious

absence of any actual use

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Sourcing

  Nomadic VOIP Ill. Dep’t of Revenue OAH TC 12-01 (Feb. 3, 2012) –  Company provides VoIP service which allows customers to place and

receive telephone calls wherever they can connect to a broadband network

–  Under the ITFA amendments, Congress specifically allows states to tax VoIP services

–  Found that even with a “nomadic VoIP,” the billing address of the customer constitutes substantial nexus and a place of primary use

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Sourcing

  No billing address? IL ST 14-0003-PLR (Jun. 26, 2014) –  Company offers VoIP and other online telecommunications services –  Company does not collect billing address information –  IP address captured during registration process; can use IP address

lookup service to associate with physical address –  Use of IP registration address allowed as place of primary use

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Sourcing

  International roaming – overseas residents visiting USA –  International roaming charges for customers of foreign carriers making

calls in USA –  Can a user have an overseas place of primary use?   Rulings –  Fla. Dep’t of Revenue Tech. Assistance Advisement 15A19-001 (Jan. 7,

2015) –  Ill. Dep’t of Revenue Hearing TC 14-01 (Aug. 22, 2012) –  N.Y. Dep’t of Tax’n & Fin. TSB-A-10(5)C / TSB-A-10(24)S (May 4, 2010

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Sourcing

  International roaming – USA residents traveling abroad Texas Comptroller Hearing 201006688H (Jun. 4, 2010) –  Texas cannot apply MTSA place of primary use to tax non-US

international calls (e.g. intra-Mexico calls)

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Sourcing

  Telecommunications service vs. other service Texas Letter Ruling 201207533L (Jul. 31, 2012) –  Company offers multiple online technology infrastructure services –  “Service D” provides use of a cloud-based email software and server

power in lieu of an in-house email solution –  Taxable as telecommunications service, not data processing –  Source under landline rules or under MTSA place of primary use

approach?

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Bootstrapping MTSA to Other Impositions or Services

  Universal Service Fees Federal Communications Commission FC 10-185 (Nov. 5, 2010) –  Provides insight on Universal Service Fund contribution methodology –  In paragraphs 18-21 the MTSA is adopted to determine where the USF

fees should be billed –  Prevent customers from double-paying fees –  Noted reasonableness for use of customer’s 911 location as proxy for

primary place of use

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Application of MTSA to Other Impositions or Services

  Prepaid Wireless Cases –  States sometimes apply MTSA primary use principles to telecoms not

specifically eligible for MTSA –  Does imposition based on place of primary use mean that an E-911 tax

does not apply to prepaid wireless?

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Application of MTSA to Other Impositions or Services

  Prepaid Wireless Cases (cont’d) –  TracFone Wireless, Inc. v. Dep’t of Revenue, 242 P.3d 810 (Wash. 2010) –  Commission on State Emergency Communications v. Tracfone Wireless,

Inc., 343 S.W.3d 233 (Tex. App. 2011) –  T-Mobile South, LLC v. Bonet, 85 So. 3d 963 (Ala. 2011) –  Virgin Mobile USA, L.P. v. Ariz. Dep’t of Revenue, 282 P.3d 1281 (Ariz. Ct.

App. 2012) –  Virgin Mobile USA, L.P. v. Commonwealth of Kentucky (Ky. App. 2012),

rev’d 448 S.W.4d 241 (Ky. 2014)

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Application of MTSA to Other Impositions or Services   Satellite radio

South Carolina Revenue Ruling #06-8 (Nov. 16, 2016) § “It is the Department’s opinion charges for mobile satellite communication

services, such as automobile satellite radio programming or other mobile communication services, are sourced to the primary place of use of the customer (e.g., the residence of an individual customer) as defined in the Mobile Telecommunications Sourcing Act.”

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Application of MTSA to Other Impositions or Services

  Cloud Computing & Digital Products   Chicago - Nonpossessory Computer Leases & Amusement Services –  Personal Property Lease Transaction Tax Ruling #12 –  FAQ #2- Customer’s location isn’t clear § Use MTSA stating with PPU § Can use apportionment between Chicago use and non-Chicago use

–  Similar guidance for amusement tax   SSUTA & Kentucky –  Kentucky required to change place of primary use statute (2009)

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Application of MTSA to Other Impositions or Services

  Message services – Haw. Letter Ruling No. 2012-11 (Jul. 17, 2012) –  Taxpayer provides remote phone-answering services – While this appears to have been an analog service, the DOT applies

MTSA place of primary use principles

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MTSA Unbundling

  Bundling Provision –  “If a taxing jurisdiction does not otherwise subject charges for mobile

telecommunications services to taxation and if these charges are aggregated with and not separately stated from charges that are subject to taxation, then the charges for nontaxable mobile telecommunications services may be subject to taxation unless the home service provider can reasonable identify charges not subject to such tax, charge, or fee from its books and records that are kept in the regular course of business.”

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MTSA Unbundling

  New York v. Sprint Nextel Corp. ( N.Y. Oct. 20, 2015) –  Sprint being held liable for failing to collect sales taxes on the interstate

component of their bundled wireless phone services –  New York False Claims act suit brought on by a whistle blower –  In 2005 Sprint unbundled its wireless offerings for sales tax purposes –  They took it a step further to separate the fees related to interstate calls

versus intrastate calls –  They did this in order to avoid paying tax on interstate calls as they

were not subject to sales tax

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MTSA Unbundling

  New York v. Sprint Nextel Corp. ( N.Y. Oct. 20, 2015) (cont’d) – What does this have to do with the MTSA? –  Sprint used the argument that the MTSA preempts the New York sales

tax laws –  New York Supreme Court found that the New York tax law doesn’t

conflict with the MTSA –  Also, “that the tax law unambiguously imposes a tax on receipts from

the sale of mobile telecommunications that are voice services sold for a fixed periodic charge”

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MTSA Unbundling

  Helio, LLC, DTA No. 525010 (N.Y. Div. Tax App. June 12,2014), aff’d by No. 525010 (N.Y. Tax. App. Trib. July 2, 2015) –  Helio sold wireless products and services generally sold as plans for fixed monthly charge

–  Helio collected New York sales tax on charges for intrastate voice service based on FCC safe harbor percentages

–  Helio also didn’t tax data charges as they considered these separately stated internet access charges

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MTSA Unbundling

  Helio, LLC, DTA No. 525010 (N.Y. Div. Tax App. June 12,2014), aff’d by No. 525010 (N.Y. Tax. App. Trib. July 2, 2015) –  State once again found that the total receipts from fixed periodic

charges for mobile services were subject to tax not just intrastate charges

–  Case law dictates that to determine the proper tax treatment of any service, you must focus on the service in its entirety versus a review of its components

–  After examination it also found the MTSA doesn’t prevent the states from taxing both intrastate and interstate services

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MTSA Unbundling

  Helio, LLC, DTA No. 525010 (N.Y. Div. Tax App. June 12,2014), aff’d by No. 525010 (N.Y. Tax. App. Trib. July 2, 2015) –  Helio argued that its internet access services were not subject to New

York sales tax –  State argued that internet access services were a component of the

bundle, not separately stated, and thus subject to tax –  Court found that Helio was able to determine the component amount

of the bundle that was charged for Internet access services, and that this portion was non-taxable

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MTSA’s Future

  What will constitute mobile telecommunications service? –  Application of sourcing to the Internet of Things?   Continued adoption of “place of primary use” concept for taxing

other services   Integration of MTSA with Digital Goods and Services Tax Fairness Act

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Questions?

Matthew Boch Dover Dixon Horne PLLC

[email protected] 501-978-9929

Dustin Davis Ryan, LLC

[email protected] 972-934-0022 x10-1286

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© 2016 Ryan, LLC and Dover Dixon Horne PLLC. All rights reserved. All logos and trademarks are the property of their respective companies and are used with permission.

This document is presented by Ryan, LLC and Dover Dixon Horne PLLC for general informational purposes only, and is not intended as specific or personalized recommendations or advice. The application and effect of certain laws can vary significantly based on specific facts, and professional advice of any nature should be

sought only from appropriate professional advisors. This document is not intended, and shall not be deemed, to constitute legal, accounting or other professional advice.