Foreign companies are becoming increasingly aware of the economic nexus standards established by the U.S. Supreme Court in the Wayfair case, which have been adopted by all 46 states with a state-level sales tax. Many also recognise that around 20 states impose sales tax on Software as a Service (SaaS). However, what may not be widely known is that SaaS offerings could also be subject to local taxes in places like Chicago, Illinois, and various jurisdictions within the states of Colorado and Louisiana, even if the state itself does not impose such taxes. This complexity, where localities may tax SaaS independently of the state, often leads remote sellers and their sales tax software providers to overlook when sales reach economic nexus thresholds, resulting in an obligation to register and collect sales tax. Failure to recognise this obligation can lead to noncompliance, sales tax exposure and penalties. This article aims to raise awareness about how local jurisdictions tax SaaS, outline compliance strategies and suggest ways to address potential exposures.
Although the state of Illinois does not impose sales tax on SaaS, the City of Chicago imposes a 9% Personal Property Lease Transaction Tax (Lease Tax) on leases, including “nonpossessory computer leases,” which are defined to include SaaS, and other offerings such cloud computing, cloud services, hosted environments, platform as a service, infrastructure as a service, and access to information services and databases. The Lease Tax does not apply to separately stated and optional services, such as the programming of custom software or implementation/maintenance of SaaS products.
Knowing the location of a customer’s use and where the agreement for services was signed are key for determining whether the Lease Tax applies. The tax is imposed on SaaS used within the geographical boundaries of Chicago. If the agreement is signed in Chicago, then absent information to the contrary, the City of Chicago will assume the entirety of the purchase is subject to the Lease Tax. If such information is not clear, Chicago will look to the primary business address in Chicago as reflected by the credit card billing address, zip code or other reliable information. However, if the agreement is signed outside Chicago and SaaS is used more than 50% outside Chicago, the transaction is not subject to the tax.
If a purchaser has users accessing the SaaS platform within and outside Chicago, the charges should be apportioned based on the user’s location and documented using the city’s “Affidavit for Apportionment of Use of Nonpossessory Computer Leases” (available on the city’s website). This affidavit allows purchasers to attest to the number of licenses used within and outside Chicago and, going forward, the seller will only need to collect the Lease Tax on the portion of the charge used within Chicago. Note that the city allows this apportionment based on actual data or estimates provided by the purchaser.
Chicago has had economic nexus rules since 1 July 2021 that require remote sellers to administer the tax if they earn over USD 100,000 in receipts during the last four consecutive quarters. Foreign companies without a physical presence but whose sales exceed the safe harbour threshold, must register with the City’s Department of Finance within 60 days, begin collecting Chicago taxes within 90 days and continue collecting Chicago taxes for at least 12 months.
Businesses with a physical presence in Chicago do not benefit from these safe harbour provisions and could have had prior compliance obligations. Additionally, companies based in Chicago, or those with employees working remotely in the city, may face a Lease Tax liability if their suppliers fail to charge tax on leases or licenses that are otherwise taxable.
Chicago offers several tax exemptions, including those for leases intended for re-lease, leases among related group members, a de minimis exemption and a small new business exemption.
Colorado presents a unique challenge with its “home-rule” cities, each having the authority to establish its own tax laws defining nexus and taxability. Therefore, a company with significant sales in Colorado must understand compliance obligations and the differences in tax bases and rates across over 70 home-rule cities.
To simplify compliance post-Wayfair, Colorado created the Sales and Use Tax System (SUTS), allowing cities to join and provide more uniformity in determining nexus, streamlining compliance and collection. Once a remote seller has retail sales exceeding USD 100,000 in Colorado, it is required to register and begin collecting sales tax, including for cities participating in SUTS and approximately 60 cities that have adopted model legislation (including Aurora, Boulder, Colorado Springs, Denver, Greenwood Village).
Some cities in Colorado, including Denver, have laws allowing for the taxation of SaaS. Denver defines SaaS to include software that is rented, leased or subscribed to from a provider and used at the consumer's location, including, but not limited to, applications, systems or programs. Tax at a rate of 4.81% applies when the sale, storage, use, distribution or consumption of SaaS occurs in Denver regardless of where the server is located. However, if SaaS is used both within and outside Denver, Denver’s tax is due only on the portion of the purchase price attributable to the software used in Denver.
Separately stated personal services, such as the installation of software, training and consulting services, are not subject to tax. There are available exemptions; for example, if the transaction is not a retail sale (e.g., a purchase for resale), or if the software is purchased and then incorporated into other software for resale, tax does not apply. However, if the software is not resold, but is instead used by the retailer or wholesaler in Denver, Denver use tax is due.
Due to the lack of uniformity of local taxation in Colorado, companies should work with an adviser to review city ordinances and other guidance to determine if their products, such as SaaS, are subject to local tax.
Louisiana's approach to SaaS taxation is particularly intricate due to its numerous local jurisdictions, each with distinct tax codes. While Louisiana does not impose sales tax on SaaS at the state level, parishes have pursued taxation of SaaS on audits and through published guidance.
For instance, in 2023, Jefferson Parish issued a guideline stating that computer software is tangible personal property regardless of the form of delivery and is subject to its local sales tax. However, the guidance provides that SaaS would not be subject to tax if all the following requirements are met:
The taxation of SaaS at the local level is a dynamic and evolving issue, as seen in places like Chicago and the states of Colorado and Louisiana. To remain compliant in states that do not tax SaaS at the state level but allow local taxation, remote sellers must be vigilant about their nexus-creating activities, the taxability of their products by different jurisdictions, and available exemptions or sourcing methodologies to reduce tax liabilities. Purchasers should ensure that sellers are applying the correct tax rates and determine if any portion of the taxable product is used outside the taxing jurisdiction, which could lower the tax owed. If past noncompliance is identified, businesses should consider assistance from a tax professional to assess their exposure and consider remediation through voluntary disclosure programs, commonly referred to as VDAs. By understanding these nuances and taking proactive steps, companies can mitigate risks and ensure compliance.
Angela Acosta
Ilya Lipin
BDO in the United States
Chicago
Although the state of Illinois does not impose sales tax on SaaS, the City of Chicago imposes a 9% Personal Property Lease Transaction Tax (Lease Tax) on leases, including “nonpossessory computer leases,” which are defined to include SaaS, and other offerings such cloud computing, cloud services, hosted environments, platform as a service, infrastructure as a service, and access to information services and databases. The Lease Tax does not apply to separately stated and optional services, such as the programming of custom software or implementation/maintenance of SaaS products.Knowing the location of a customer’s use and where the agreement for services was signed are key for determining whether the Lease Tax applies. The tax is imposed on SaaS used within the geographical boundaries of Chicago. If the agreement is signed in Chicago, then absent information to the contrary, the City of Chicago will assume the entirety of the purchase is subject to the Lease Tax. If such information is not clear, Chicago will look to the primary business address in Chicago as reflected by the credit card billing address, zip code or other reliable information. However, if the agreement is signed outside Chicago and SaaS is used more than 50% outside Chicago, the transaction is not subject to the tax.
If a purchaser has users accessing the SaaS platform within and outside Chicago, the charges should be apportioned based on the user’s location and documented using the city’s “Affidavit for Apportionment of Use of Nonpossessory Computer Leases” (available on the city’s website). This affidavit allows purchasers to attest to the number of licenses used within and outside Chicago and, going forward, the seller will only need to collect the Lease Tax on the portion of the charge used within Chicago. Note that the city allows this apportionment based on actual data or estimates provided by the purchaser.
Chicago has had economic nexus rules since 1 July 2021 that require remote sellers to administer the tax if they earn over USD 100,000 in receipts during the last four consecutive quarters. Foreign companies without a physical presence but whose sales exceed the safe harbour threshold, must register with the City’s Department of Finance within 60 days, begin collecting Chicago taxes within 90 days and continue collecting Chicago taxes for at least 12 months.
Businesses with a physical presence in Chicago do not benefit from these safe harbour provisions and could have had prior compliance obligations. Additionally, companies based in Chicago, or those with employees working remotely in the city, may face a Lease Tax liability if their suppliers fail to charge tax on leases or licenses that are otherwise taxable.
Chicago offers several tax exemptions, including those for leases intended for re-lease, leases among related group members, a de minimis exemption and a small new business exemption.
Colorado
Colorado presents a unique challenge with its “home-rule” cities, each having the authority to establish its own tax laws defining nexus and taxability. Therefore, a company with significant sales in Colorado must understand compliance obligations and the differences in tax bases and rates across over 70 home-rule cities.To simplify compliance post-Wayfair, Colorado created the Sales and Use Tax System (SUTS), allowing cities to join and provide more uniformity in determining nexus, streamlining compliance and collection. Once a remote seller has retail sales exceeding USD 100,000 in Colorado, it is required to register and begin collecting sales tax, including for cities participating in SUTS and approximately 60 cities that have adopted model legislation (including Aurora, Boulder, Colorado Springs, Denver, Greenwood Village).
Some cities in Colorado, including Denver, have laws allowing for the taxation of SaaS. Denver defines SaaS to include software that is rented, leased or subscribed to from a provider and used at the consumer's location, including, but not limited to, applications, systems or programs. Tax at a rate of 4.81% applies when the sale, storage, use, distribution or consumption of SaaS occurs in Denver regardless of where the server is located. However, if SaaS is used both within and outside Denver, Denver’s tax is due only on the portion of the purchase price attributable to the software used in Denver.
Separately stated personal services, such as the installation of software, training and consulting services, are not subject to tax. There are available exemptions; for example, if the transaction is not a retail sale (e.g., a purchase for resale), or if the software is purchased and then incorporated into other software for resale, tax does not apply. However, if the software is not resold, but is instead used by the retailer or wholesaler in Denver, Denver use tax is due.
Due to the lack of uniformity of local taxation in Colorado, companies should work with an adviser to review city ordinances and other guidance to determine if their products, such as SaaS, are subject to local tax.
Louisiana
Louisiana's approach to SaaS taxation is particularly intricate due to its numerous local jurisdictions, each with distinct tax codes. While Louisiana does not impose sales tax on SaaS at the state level, parishes have pursued taxation of SaaS on audits and through published guidance.For instance, in 2023, Jefferson Parish issued a guideline stating that computer software is tangible personal property regardless of the form of delivery and is subject to its local sales tax. However, the guidance provides that SaaS would not be subject to tax if all the following requirements are met:
- There is no transfer of possession, title or control of the software to the customer;
- No part of the computer software is installed, located, stored or comes to rest on the customer's computer;
- Access to the software does not require proprietary drivers or dynamic link libraries to be installed, located or stored on the customer's computer;
- The software is hosted on the vendor's server located outside the State of Louisiana;
- The software is accessed through a domain name or Internet Protocol address provided by the software vendor;
- Each transaction from the customer requires a real-time call to the vendor's software; and
- Customer access to the software is governed by a subscription that terminates upon nonpayment by the customer.
BDO Insight
The taxation of SaaS at the local level is a dynamic and evolving issue, as seen in places like Chicago and the states of Colorado and Louisiana. To remain compliant in states that do not tax SaaS at the state level but allow local taxation, remote sellers must be vigilant about their nexus-creating activities, the taxability of their products by different jurisdictions, and available exemptions or sourcing methodologies to reduce tax liabilities. Purchasers should ensure that sellers are applying the correct tax rates and determine if any portion of the taxable product is used outside the taxing jurisdiction, which could lower the tax owed. If past noncompliance is identified, businesses should consider assistance from a tax professional to assess their exposure and consider remediation through voluntary disclosure programs, commonly referred to as VDAs. By understanding these nuances and taking proactive steps, companies can mitigate risks and ensure compliance.Angela Acosta
Ilya Lipin
BDO in the United States