HD19 - Report of the 2015 Communications and Sales and Use Tax Study (HJR 635, 2015)


Executive Summary:
House Joint Resolution 635 requires the Department of Taxation (“Department”) to study the Communications Sales and Use Tax (“CSUT”) with the assistance of an advisory panel comprised of representatives of local governments and affected segments of the communications industry. The Department is required to i) evaluate the overall performance of the CSUT, ii) determine whether competing communications services are being taxed on an equal basis, iii) identify any communications services that are receiving a competitive advantage by not being taxed, and iv) determine whether the tax is structured such that it will apply to new methods of communications.

The advisory panel met on June 9, 2015, to determine the scope of the study and identify issues regarding the CSUT that have been encountered by the advisory panel members. The consensus of the advisory panel was to focus on a revenue analysis of the CSUT, the administrative expenses taken out of the Fund for the administration of the Communications Taxes by the Department and the operation of the telecommunications relay service, and the current exemptions from the tax. Additionally, while the advisory panel recognized that there may be concerns regarding the allocation of revenues to localities, it determined that those concerns were outside the scope of this report. Summaries of the issues and recommendations are below.

Revenue Analysis

Since the tax became effective on January 1, 2007, the revenue deposited into the Communications Sales and Tax Trust Fund (“Fund”) has generally decreased each year (Fiscal Year 2013 being the exception). However, deposits into the Fund do not reflect a complete picture of transactions subject to the tax because of refunds paid out of the fund in later fiscal years. Also, the erroneous reporting by taxpayers of CSUT revenues as Retail Sales and Use Tax revenues resulted in CSUT revenue being recognized in later fiscal years. For purposes of this report, revenue has been adjusted to reflect refunds and transfers in the fiscal year in which the transactions occurred.

The advisory panel discussed whether the decrease in communications tax revenue is due to new technology and changes in consumer behavior. Between 2007 and 2014, the number of telephone landlines has decreased by an estimated 21.1 percent. Another change in the telecommunications industry affecting CSUT revenue is the sharp decline in revenue from satellite radio services. Between 2007 and 2014, gross receipts from satellite radio services decreased by 91.1 percent. Also, streaming audio and video services and prepaid calling services, which are not currently subject to the tax, have become more popular.

The Department also estimated the impact on CSUT revenue of increasing the tax rate from 5 percent to 5.3 or 6 percent. If the tax had been imposed at the rate of 5.3 percent in Fiscal Year 2014, an additional $24.1 million in revenues would have been available for distribution. Imposing the tax at the rate of 6 percent would have resulted in an additional $80.3 million available for distribution. However, the consensus of the advisory panel was that there was little support for a rate increase.

Administrative Expenses

The advisory panel also discussed the Department’s administrative expenses, which are transferred from the Fund prior to distribution to localities. The Department is authorized to transfer from the Fund its direct costs of administration of the tax, which include three full time auditors, time spent by several other employees who assist with the administration of the tax, and return processing charges. The Department’s administrative fee for Fiscal Year 2014 was $430,094.

Telecommunications Relay Service

Moneys from the Fund also are distributed to the Virginia Department of Deaf and Hard-of-Hearing (“VDDHH”) to pay for the operation of the telecommunications relay service. VDDHH awarded a new contract for the telecommunications relay service effective August 1, 2015, that is anticipated to result in savings of approximately $5 million a year to the Fund. These savings will increase the amounts in the Fund available for distribution to localities.

Exemptions

The advisory panel reviewed the current exemptions from the CSUT, specifically the exemption for streaming audio and video and the exemption for prepaid calling services.

The Department currently allows an exemption for audio and video streaming services based on the statutory exemption provided under Va. Code § 58.1-648, for “digital products delivered electronically.” If the exemption for digital products delivered electronically was clarified so as to not cover audio and video streaming services, such services would be subject to taxation. The current exemption for streaming audio and video services places similar services provided by cable television providers at a competitive disadvantage.

Also, under Va. Code § 58.1-648, charges for the sale or recharge of prepaid calling services are not included in the sales price for purposes of the tax. The current exemption for prepaid calling services puts similar services sold on a post-paid basis at a competitive disadvantage. Between 2012 and 2014, the amount of Prepaid Wireless E-911 Fee revenues is estimated to have grown by 18.4 percent. However, between 2011 and 2014, the amount of Postpaid Wireless E-911 Surcharge revenues is estimated to have grown by only 1.7 percent.

Recommendations

While the advisory panel recognized that there may be concerns regarding the allocation of tax revenues to localities, there was consensus that those concerns were outside the scope of this report. Additionally, there was consensus that there was little support for a tax rate increase.

If the General Assembly would like to enact legislation to increase CSUT revenues and level the playing field, this can be accomplished by broadening the tax base by eliminating the current exemptions for audio and video streaming services and prepaid calling services.