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Enterprise Portfolio Management: The Next Generation of New York Nontaxable Products

By David Pope and Jack Trachtenberg

The New York State Department of Taxation and Finance has determined that a financial services fi

May 7, 2013

By David Pope and Jack Trachtenberg

The New York State Department of Taxation and Finance has determined that a financial services firm is not subject to the New York State sales and use tax because the product being sold by the taxpayer constitutes a single, integrated, nontaxable service.  The taxpayer provides its clients with investment management and risk management services and sells a product that consists of a comprehensive enterprise portfolio management support service for financial institutions and investment managers.  The product includes numerous components, including a customized platform to manage information, customized investment analysis services, data control and operations services, customized trade management workflow services, compliance evaluation and reporting services, daily support, and a desktop analytical calculator.  In determining the taxability of the product, the Department considered whether it represents a transaction that bundles taxable and nontaxable components for a single price or a “single integrated product.”  The Department noted that, when considered separately, some components of the taxpayer’s product seem to qualify as taxable (e.g., the web interface for the product is built on taxable prewritten software).  Ultimately, however, the Department determined that the product was a single integrated product—specifically a nontaxable operations and management contract service for portfolio investment managers—because: (i) the product does not come in multiple variants; (ii) customers may use different components of the product in different proportions without incurring extra charges; and (iii) the different components of the product are highly synergistic.  Although nuanced, the Department’s opinion follows prior guidance and case law that distinguishes between bundled transactions and single integrated products.  The opinion also provides a good analysis of the factors that taxpayers may want to consider in determining whether a particular transaction is subject to sales and use tax.  N.Y. Advisory Opinion TSB-A-13(12)S (Apr. 23, 2013).

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