Michigan Incidental to Service Test
The Commonwealth also notes that some jurisdictions apply the "incidental to service" test to determine whether a taxable transfer of tangible personal property or a nontaxable provision of a service has occurred. This test has been described as follows:
Under this test, "sales tax will not apply to transactions where the rendering of a service is the object of the transaction, even though tangible personal property is exchanged incidentally." 85 C.J.S.2d, Taxation, 2018, p. 976. the "incidental to service" test looks objectively at the entire transaction to determine whether the transaction is principally a transfer of tangible personal property or a provision of a service. . . . If the consideration paid in a transaction is not paid for the transfer of the tangible property, but for the service provided, and the transfer of the tangible property is only incidental to the service provided, the transaction is not a sale at retail . . . .Catalina Mrtg. Sales Corp. v. Department of Treasury, 470 Mich. 13, 678 N.W.2d 619, 626 (Mich. 2004).
The incidental to service test requires consideration of:
(1) the object sought by the buyer;
(2) the seller's business;
(3) whether goods were provided as a retail enterprise with a profit-making goal;
(4) whether the tangible goods could be sold without the service;
(5) the extent that the intangible product or service contributed to the value of the tangible product transferred;
(6) any other factors relevant to the transaction. Id. at 627.
In Catalina Mrtg. Sales Corp. v. Department of Treasury, the court rejected the essence of the transaction test, concluding that it focused exclusively on the perspective of the purchaser rather than on the entire transaction as required by the incidental to service test.
The Court discern little practical difference, however, between the essence of the transaction test and the incidental to service test, at least in the present context.
Under either approach, the mechanism of transfer is irrelevant, in the first case because the essence of the sale--the commodity for which money is paid--is the computer program itself, and in the other because the physical transfer of a disk or other physical media is simply incidental to the purchase of the ability to use the program developed by the seller.