Is the Sale of Canned Software Be Considered Taxable As Tangible Personal Property ?
In Graham Packaging Co., LP, v. Commonwealth, 882 A.2d 1076 (Pa. Cmwlth. 2005), the court addressed the same issue raised herein, to wit, whether fees paid to renew licenses to use canned software programs were taxable under Section 202 of the Code.
In order to answer that question, the court was required to determine whether canned software constituted tangible personal property, an issue of first impression at that time.
In concluding that canned software constituted tangible personal property under the Code, the court examined the applicable statutory and regulatory provisions, focusing on both the amendments thereto and the definition of tangible personal property, the inherent nature of software, and the analyses employed in other jurisdictions addressing the same issue.
These factors lead to the conclusion that "the sale of all canned software, whether transmitted electronically or on a physical medium, is taxable as the sale of tangible personal property.
Accordingly, since Graham purchased licenses to use canned software, the sales tax was properly imposed." 882 A.2d at 1087.