Is Software Considered Tangible Personal Property ?
In South Central Bell Telephone Co. v. Barthelemy, 643 So. 2d 1240 (La. 1994), the Supreme Court of Louisiana addressed whether software constituted tangible personal property for purposes of a city sales and use tax.
South Central Bell Telephone (Bell) purchased licenses to use switching software and data processing software.
The switching software was delivered by magnetic tape and the data processing software was transmitted electronically.
The city levied use taxes on Bell's use of both types of software pursuant to a city code provision imposing a use tax on the use of tangible personal property.
The city code defined "tangible personal property" as "personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. . . . " Id. at 1243.
Louisiana courts equated that definition with "corporeal movable property" or "all things that make up the physical world," distinguishing the phrase from incorporeals or intangibles, or those things that encompass the "non-physical world of legal rights." Id.
Considering various publications and legal periodicals discussing the nature of software, the Louisiana court noted as follows:
When stored on magnetic tape, disc, or computer chip, this software, or set of instructions, is physically manifested in machine readable form by arranging electrons, by use of an electric current, to create either a magnetized or unmagnetized space.
The computer reads the pattern of magnetized and unmagnetized spaces . . . . This machine readable language or code is the physical manifestation of the information in binary form. Id. at 1246.