The Virginia Tax Commissioner issued a determination addressing use tax on the purchase of a software. Virginia statute provides an exemption for services not involving the exchange of tangible personal property, which provide access to or use of the internet and any other related electronic communication services including software, data, content and other information services delivered electronically via the internet. The Commissioner cited to a prior determination where it reasoned that to support this exemption, the sales invoice or contract must expressly certify the electronic delivery of the software and that no tangible medium for the software has been furnished to the customer. While the taxpayer provided correspondence from the vendor stating that the software was delivered electronically, the Commissioner found that this fact alone was not sufficient evidence that electronic delivery was the only method available. The invoice provided by the taxpayer did not substantiate electronic delivery and the taxpayer did not submit other proof of electronic delivery such as a delivery confirmation email. Based on the failure to provide sufficient documentation to meet its burden, the Commissioner determined that the transaction was taxable.
