Taxpayer Providing Digital Certificates Does Not Qualify for Human Effort Exclusion

A taxpayer that provides digital SSL certificates to businesses hosting commercial websites was liable for Washington sales tax and retail business and occupation (B&O) tax since it did not qualify for the human effort exclusion in the definition of “digital automated services” (DAS). Before creating and issuing an SSL certificate, the taxpayer’s employees verify the identity of the customer. This process is not automated. Once the identification is made and the certificate is issued, no additional personal human involvement is necessary by the taxpayer. In order to qualify for the human effort exclusion, a service must primarily (more than 50%) involve the application of human effort, and the human effort must originate after the customer requested the service. The taxpayer claimed that the costs of human effort involved in creating and issuing the certificate were greater than the costs of the automated processes. The taxpayer’s cost calculation included costs that did not appear to be related to human effort. The Washington Department of Revenue determined that the percentage of costs due to human effort are below the 50% threshold necessary for the exclusion. As a result, the taxpayer’s service did not qualify for the human effort DAS exclusion. (Determination No. 16-0141R, Washington Department of Revenue, Decision November 2, 2016 published July 31, 2017)

Posted on May 10, 2018