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At the present time, Delaware’s position on the issue of establishing an Internet site is that persons conducting business via the Internet are not treated any differently than persons conducting business by traditional means. The Due Process and Commerce Clause provisions of the U.S. Constitution require that there be a minimal contact or presence in the taxing jurisdiction by the business. There are many activities – too many to list here – which create the jurisdictional right to tax, referred to as “nexus”. It is our position that merely creating an Internet site by a non-Delaware business does not, by itself, create nexus. But, locating a server in Delaware would create nexus/jurisdiction to tax the respective business.
Delaware imposes two general taxes on businesses:
Q. Are there any tax laws in Delaware that apply to electronic commerce transactions?
Q. Do any statutes in Delaware apply specifically to electronic software distribution (i.e. downloaded) over the internet?
Q. Do any statutes in Delaware apply specifically to the purchase of goods ordered over the Internet and received in tangible form?
Q. Is there any liability placed on the buyer or vendor of downloaded software over the Internet? Is electronically distributed software considered tangible personal property? And what liabilities are placed on the buyer and vendor of tangible goods over the Internet?
A. It is our current thinking that the mere use of the Internet as a vehicle for selling tangible property or intangible personal property will not create nexus in the market state. Since Delaware does not have a sales tax, the purchase of software will not create a tax liability for the purchaser.
Q. Are services performed over the Internet, such as providing financial information for a fee, subject to sales tax? What tax rate and state would be used? Is the tax rate based upon where the service is performed or where to whom it applies?
A. Chapter 23 of Title 30 of the Delaware Code imposes a license fee and gross receipts tax on various services rendered within the state. It is our unpublished opinion with respect to services provided via the Internet, that such services are determined by the location of the server or mainframe from which such information was accessed.
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