James v. TRES Computer Service, Inc.

• Decision Date: 03 December 1982
• Docket Number: No. 63662,63662
• Citation: 642 S.W.2d 347
• Parties: Ray S. JAMES, Director of Revenue, State of Missouri, Petitioner, v. TRES COMPUTER SYSTEMS, INC., et al., Respondents.
• Court: Missouri Supreme Court

Page 347

642 S.W.2d 347

Ray S. JAMES, Director of Revenue, State of Missouri, Petitioner, v. TRES COMPUTER SYSTEMS, INC., et al., Respondents.

No. 63662.

Supreme Court of Missouri En Banc.

Dec. 3, 1982.

John Ashcroft, Atty. Gen., Madeleine O. Birmingham, Asst. Atty. Gen., Jefferson City, for petitioner.

Johnny K. Richardson, James C. Swearengen, Jefferson City, for respondents.

DONNELLY, Chief Justice.

TRES Computer Systems, Inc. is a Texas-based corporation authorized to conduct business in Missouri. TRES sold computer software known as TRES On-Line Customer Information System (custom-made data and computer programming) to a Missouri customer. This sale was accomplished through the use of tapes containing the data and programs. The retail value of the tapes before they contain any information is fifty dollars. The Missouri customer paid TRES approximately $135,000 for the data and programs.

TRES reported to the Missouri Department of Revenue that the transaction involved fifty dollars--i.e., the retail value of the tapes. In July 1979, the Department of Revenue determined that TRES should pay a use tax based on the $135,000 transaction value of the software. Accordingly, the Department of Revenue made an additional tax assessment of $4218.75, plus $421.88 penalty, plus $295.32 in interest. TRES did not pay any of the additional assessment but instead filed a petition for review of the assessment with the Administrative Hearing Commission.

In that proceeding the parties stipulated to certain operative facts: (1) the retail value of the tapes without any data or programming on them is fifty dollars, (2) the tapes containing the data and programs were sold for approximately $135,000, (3) "the data is intangible property, however, the tapes on which this data is contained and transmitted are tangible personal property," (4) TRES could have transmitted the data and programs involved to its customer by electronic signals directly over electronic telecommunications, and (5) TRES sold to its Missouri customer a perpetual non-exclusive license for this software, but the customer cannot sell or otherwise convey the software to others.

The Administrative Hearing Commission determined that the Department of Revenue's additional assessment was null and void because the sale of the data on tapes was the sale of intangible technical professional services--not tangible personal property--and the use of the information on the tapes was not the use of tangible personal property. Therefore, it was not taxable under § 144.610, RSMo 1978.

Subsequent to that decision, the Director of Revenue filed with this Court a petition for judicial review, pursuant to § 161.337, RSMo 1978. This Court has jurisdiction to review the final decision of the Administrative Hearing Commission because construction of a revenue law of this State is involved. Mo.Const. art. V, § 3; Daily Record Company v. James, 629 S.W.2d 348, 349 (Mo.banc 1982); Goldberg v. Administrative Hearing Commission, 609 S.W.2d 140, 142 (Mo.banc 1980). A decision of the Administrative Hearing Commission "shall be upheld when authorized by law and supported by competent and substantial evidence upon the whole record, ... and if the approval or disapproval of the exercise of authority in question by the administrative hearing commission does not create a result or results clearly contrary to that which the court concludes were the reasonable expectations of the general assembly at the time such authority was delegated to the agency." § 161.338, RSMo 1978. But of course, where a question of law is involved, it is a matter "for the independent judgment of the reviewing court, and correction where erroneous." Daily Record Company v. James, 629 S.W.2d 348, 351 (Mo.banc 1982).

The Director of Revenue contends that the computer software is taxable as tangible personal property under § 144.610, RSMo 1978, because he views the data and programs as being inseparable from the tapes containing them. TRES, on the other hand, views the tapes as mere conduits or containers for the intangible professional services sold.

Give that there is no dispute that the data and programs sold are intangible personal property, the question is whether, by their presence on the tapes, they could become tangible personal property so as to be taxable under § 144.610, RSMo 1978. Chapter-144 does not provide any guidance on the specific issue at hand. Cf. § 144.010.1(8), RSMo 1978. However, many courts have spoken on the issue and most have decided that the intangible character is not lost. See e.g., State v. Central Computer Services, Inc., 349 So.2d 1160 (Ala.1977); Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.1976); First National Bank of Fort Worth v. Bullock, 584 S.W.2d 548 (Tex.Civ.App.1979). Some courts apply the "essence of the transaction" test. That is, where the court determines that the presence of the data on the tapes is merely an incidental physical commingling of the tangible tapes and the intangible information which is actually the subject of the transaction. E.g., State v. Central Computer Services, Inc., supra; First National Bank of Springfield v. Department of Revenue, 85 Ill.2d 84, 51 Ill.Dec. 667, 421 N.E.2d 175 (1981). In a related test, the court attempts to discover the intent of the parties. If they intend that the tapes serve only to convey the computer data and then be discarded, the value of the professional services is not considered taxable as tangible personal property. E.g., First National Bank of Fort Worth v. Bullock, supra; see also Texas Instruments, Inc. v. United States, 407 F.Supp. 1326 (N.D.Texas 1976). By comparison, the court in Commerce Union Bank v. Tidwell, supra, sought to ascertain whether a finished product was created and sold, as opposed to whether information was being conveyed. 538 S.W.2d at 407. The Tidwell court decided that computer data and programs were being conveyed and therefore the information's value was not taxable as tangible personal property. Id.

Most of the difficulty present in resolving the question before us is attributable to the necessity of employing the word "tangible", a word obviously associated with simple human sensory perception, to analyze a problem set in a background of high technology. We recognize that computer technology is rapidly developing in complexity and, therefore, do not intend to formulate a fixed, general rule which later could have unpredictable results.

The data and programs in this case should not be taxed as tangible personal property. First, the tapes themselves were not the ultimate object of the sale. The customer purchased them because they contained the data and programs which it desired for its computer. The tapes are merely a medium to convey the data and programs to the customer's computer. After they are used to program the computer they can be discarded. The court in Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.1976), said it well:

What is created and sold here is information and the magnetic tapes which contain this information are only a method of transmitting these intellectual creations from the originator to the user. It is merely incidental that these intangibles are transmitted by way of a tangible reel of tape that is not even retained by the user.

Commerce Union Bank v. Tidwell, 538 S.W.2d at 407. The Tidwell court also stated:

When the information is transferred from the tape to the computer, the tape is no longer of any value to the user; and it is not retained in the possession of the user. The information on the tape, unlike [a] phonograph record, is not complete and ready to be used at the time of its purchase. It must be translated into a language understood by the computer. Once this information has been translated and introduced into the computer and the tapes returned or the punch cards destroyed, what actually remains in the computer is intangible knowledge; that is what was purchased, not the magnetic tapes or the punch cards. District of Columbia v. Universal Computer Associates, Inc., 151 U.S.App.D.C. 30, 465 F.2d 615 (1972). Transfer of tangible personal property under these circumstances is merely incidental to the purchase of the intangible knowledge and information stored on the tapes. (citations omitted)

Commerce Union Bank v. Tidwell, 538 S.W.2d at 408; see also Janesville Data Center, Inc. v. Wisconsin Department of Revenue, 84 Wis.2d 341, 267 N.W.2d 656, 658 (1978); cf. Bullock v. Statistical Tabulating Corp., 549 S.W.2d 166 (Tex.1977).

Second, it was not necessary that the information purchased be put on tape. It could have been sent to the customer through electronic communications and fed directly into the computer. In Tidwell the court observed:

A magnetic tape is only one method whereby information may be transmitted from the originator to the user by way of telephone lines, or it may be fed into the user's computer directly by the originator of the program.

Commerce Union Bank v. Tidwell, 538 S.W.2d at 408. See also State v. Central Computer Services, 349 So.2d 1160, 1162 (Ala.1977).

The Director argues that the Hearing Commission's decision is contrary to Universal Images, Inc. v. Department of Revenue, 608 S.W.2d 417 (Mo.1980) because there the Court held that motion picture film was taxable as tangible personal property at its transaction value. The Director equates the film with the tapes in this case. We disagree. Instead, we embrace the idea that "[t]he physical presence of the movie film is essential to broadcasting the intangible artistic efforts of the actors." State v. Central Computer Services, 349 So.2d at 1162. This view is also shared by the Illinois Supreme Court which, in holding computer software not taxable as tangible personal property, stated:

The plaintiff bank purchased, in substance, the means of programming its computer so that it could perform functions the bank needed to have performed. The...