Internet Access Tax Moratorium: Revenue Impacts Will Vary by State
Released: 2006-01-23T00:00:00

Letter

Background

As shown in figure 1, residential and small business users often connect to an Internet service provider (ISP) to access the Internet. Well-known ISPs include America Online (AOL) and Comcast. Typically, ISPs market a package of services that provide homes and businesses with a pathway, or “on-ramp,” to the Internet along with services such as e-mail and instant messaging. The ISP sends the user’s Internet traffic forward to a backbone network where the traffic can be connected to other backbone networks and carried over long distances. By contrast, large businesses often maintain their own internal networks and may buy capacity from access providers that connect their networks directly to an Internet backbone network. We are using the term access providers to include ISPs as well as providers who sell access to large businesses and other users. Nonlocal traffic from both large businesses and ISPs connects to a backbone provider’s network at a “point of presence” (POP). Figure 1 depicts two hypothetical and simplified Internet backbone networks that link at interconnection points and take traffic to and from residential units through ISPs and directly from large business users.

As public use of the Internet grew from the mid-1990s onward, Internet access and electronic commerce became potential targets for state and local taxation. Ideas for taxation ranged from those that merely extended existing sales or gross receipts taxes to so-called “bit taxes,” which would measure Internet usage and tax in proportion to use. Some state and local governments raised additional tax revenues and applied existing taxes to Internet transactions. Owing to the Internet’s inherently interstate nature and to issues related to taxing Internet-related activities, concern arose in Congress as to what impact state and local taxation might have on the Internet’s growth, and thus, on electronic commerce. Congress addressed this concern when, in 1998, it adopted the Internet Tax Freedom Act, which bars state and local taxes on Internet access, as well as multiple or discriminatory taxes on electronic commerce.

Internet usage grew rapidly in the years following 1998, and the technology to access the Internet changed markedly. Today a significant portion of users, including home users, access the Internet over broadband communications services using cable modem, DSL, or wireless technologies. Fewer and fewer users rely on dial-up connections through which they connect to their ISP by dialing a telephone number. By 2004, some state tax authorities were taxing DSL service, which they considered to be a telecommunications service, creating a distinction between DSL and services offered through other technologies, such as cable modem, that were not taxed.

Originally designed to postpone the addition of any new taxes while the Advisory Commission on Electronic Commerce studied the tax issue and reported to Congress, the moratorium was extended in 2001 for 2 years and again in 2004, retroactively, to remain in force until November 1, 2007. The 2001 extension made no other changes to the original act, but the 2004 act included clarifying amendments. The 2004 act amended language that had exempted telecommunications services from the moratorium.

Recognizing state and local concerns about their ability to tax voice services provided over the Internet, it also contained language allowing taxation of telephone service using Voice over Internet Protocol (VoIP). Although the 2004 amendments extended grandfathered protection generally to November 2007, grandfathering extended only to November 2005 for taxes subject to the new moratorium but not to the original moratorium.

Objectives, Scope, and Methodology

To determine the scope of the Internet tax moratorium, we reviewed the language of the moratorium, the legislative history of the 1998 act and the 2004 amendments, and associated legal issues.

To determine the impact of the moratorium on state and local revenues, we worked in stages. First, we reviewed studies of revenue impact done by CBO, FTA, and the staff of the Multistate Tax Commission and discussed relevant issues with federal representatives, state and local government and industry associations, and companies providing Internet access services. Then, we used structured interviews to do case studies in eight states that we chose as described earlier. We did not intend the eight states to represent any other states.

For each selected state, we focused on specific aspects of its tax system by using our structured interview and collecting relevant documentation. For instance, we reviewed the types and structures of Internet access service taxes, the revenues collected from those taxes, officials’ views of the significance of the moratorium to their government’s financial situation, and their opinions of any implications to their states of the new definition of Internet access. We also learned whether localities within the states were taxing access services. When issues arose, we contacted other states and localities to increase our understanding of these issues.

We discussed with state officials how they derived the estimates they gave us of tax dollars collected and how firm these numbers were. We could not verify the estimates, and CBO supplemented estimates that it received from states. Nevertheless, based on other information we obtained, the state estimates appeared to provide a sense of the order of magnitude of the numbers compared to state tax revenues.

We did our work from February through December 2005 in accordance with generally accepted government auditing standards.

Internet Access Services, Including Bundled Access Services, May Not Be Taxed, but Acquired Services May Be

The moratorium bars taxes on the service of providing access, which includes whatever an access provider reasonably bundles in its access offering to consumers. On the other hand, the moratorium does not prohibit taxes on acquired services, referring to goods and services that an access provider acquires to enable it to bundle and provide its access package to its customers. However, some providers and state officials have expressed a different view, believing the moratorium barred taxing acquired services in addition to bundled access services.

Internet Access Services, Including Bundled Broadband Services, May Not Be Taxed

“a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to users. The term ‘Internet access’ does not include telecommunications services, except to the extent such services are purchased, used, or sold by a provider of Internet access to provide Internet access.” (italics provided)

As shown in the simplified illustration in figure 2, the items reasonably bundled in a tax-exempt Internet access package may include e-mail, instant messaging, and Internet access itself. Internet access, in turn, includes broadband services, such as cable modem and DSL services, which provide continuous, high-speed access without tying up wireline telephone service. As figure 2 also illustrates, a tax-exempt bundle does not include video, traditional wireline telephone service referred to as “plain old telephone service” (POTS), or VoIP. These services are subject to tax. For simplicity, the figure shows a number of services transmitted over one communications line. In reality, a line to a consumer may support just one service at a time, as is typically the case for POTS, or it may simultaneously support a variety of services, such as television, Internet access, and VoIP.

Our reading of the 1998 law and the relevant legislative history indicates that Congress had intended to bar taxes on services bundled with access. However, there were different interpretations about whether DSL service could be taxed under existing law, and some states taxed DSL. The 2004 amendment was aimed at making sure that DSL service bundled with access could not be taxed. See appendix I for further explanation.

Acquired Services May Be Taxed

Figure 3 shows how the nature and tax status of the Internet access services just described differ from the nature and tax status of services that an ISP acquires and uses to deliver access to its customers. An ISP in the middle of figure 3 acquires communications and other services and incidental supplies (shown on the left side of the figure) in order to deliver access services to customers (shown on the right side of the figure). We refer to the acquisitions on the left side as purchases of “acquired services.” For example, acquired services include ISP leases of high-speed communications capacity over wire, cable, or fiber to carry traffic from customers to the Internet backbone.

Purchases of acquired services are subject to taxation, depending on state law, because the moratorium does not apply to acquired services. As noted above, the moratorium applies only to taxes imposed on “Internet access,” which is defined in the law as “a service that enables users to access content, information, electronic mail, or other services offered over the Internet.…” In other words, it is the service of providing Internet access to the end user—not the acquisition of capacity to do so—that constitutes “Internet access” subject to the moratorium.

Some providers and state officials have construed the moratorium as barring taxation of acquired services, reading the 2004 amendments as making acquired services tax exempt. However, as indicated by the language of the statute, the 2004 amendments did not expand the definition of “Internet access,” but rather amended the exception from the definition to allow certain “telecommunication services” to qualify for the moratorium if they are part of the service of providing Internet access. A tax on acquired services is not a tax directly imposed on the service of providing Internet access.

Our view that acquired services are not subject to the moratorium on taxing Internet access is based on the language and structure of the statute, as described further in appendix I. We acknowledge that others have different views about the scope of the moratorium. Congress could, of course, deal with this issue by amending the statute to explicitly address the tax status of acquired services.

Some States Have Applied the Moratorium to Acquired Services

As noted above, some providers and state officials have construed the moratorium as barring taxation of acquired services. Some provider representatives said that acquired services were not taxable at the time we contacted them and had never been taxable. Others said that acquired services were taxable when we contacted them but would become tax exempt in November 2005 under the 2004 amendments, the date they assumed that taxes on acquired services would no longer be grandfathered.

As shown in table 1, officials from four out of the eight states we studied— Kansas, Mississippi, Ohio, and Rhode Island—also said their states would stop collecting taxes on acquired services, as of November 1, 2005, in the case of Kansas and Ohio whose collections have actually stopped, and later for the others. These states roughly estimated the cost of this change to them to be a little more than $40 million in revenues that were collected in 2004. An Ohio official indicated that two components comprised most of the dollar amounts of taxes collected from these services in 2004: $20.5 million from taxes on telecommunications services and property provided to ISPs and Internet backbone providers, and $9.1 million from taxes for private line services (such as high-capacity T-1 and T-3 lines) and 800/wide-area telecommunications services that the official said would be exempt due to the moratorium. The rough estimates in table 1 are subject to the same limitations described in the next section for the state estimates of all taxes collected related to Internet access.

While the Revenue Impact of Eliminating Grandfathering Would Be Small, the Moratorium’s Total Revenue Impact Has Been Unclear and Any Future Impact Would Vary by State

According to CBO data, grandfathered taxes in the states CBO studied were a small percentage of those states’ tax revenues. However, because it is difficult to know which states, if any, might have chosen to tax Internet access services and what taxes they might have chosen to use if no moratorium had ever existed, the total revenue implications of the moratorium are unclear. In general, any future impact related to the moratorium will differ from state to state.

According to Information in CBO Reports, States Would Lose a Small Fraction of Their Tax Revenues If Grandfathered Taxes on Dial-up and DSL Services Were Eliminated

In 2003, CBO reported how much state and local governments that had grandfathered taxes on dial-up and DSL services would lose in revenues if the grandfathering were eliminated. The fact that these estimates represented a small fraction of state tax revenues is consistent with other information we obtained. In addition, the enacted legislation was narrower than what CBO reviewed, meaning that CBO’s stated concerns about VoIP and taxing providers’ income and assets would have dissipated.

CBO provided two estimates in 2003 that, when totaled, showed that no longer allowing grandfathered dial-up and DSL service taxes would cause state and local governments to lose from more than $160 million to more than $200 million annually by 2008. According to a CBO staff member, this estimate included some amounts for what we are calling acquired services that, as discussed in the previous section, would not have to be lost. CBO provided no estimates of revenues involved for governments not already assessing the taxes and said it could not estimate the size of any additional impacts on state and local revenues of the change in the definition of Internet access. Further, according to a CBO staff member, CBO’s estimates did not include any lost revenues from taxes on cable modem services. In October 2003, around the time of CBO’s estimates, the number of cable home Internet connections was 12.6 million, compared to 9.3 million home DSL connections and 38.6 million home dial-up connections.

CBO first estimated that as many as 10 states and several local governments would lose $80 million to $120 million annually, beginning in 2007, if the 1998 grandfather clause were repealed. Its second estimate showed that, by 2008, state and local governments would likely lose more than $80 million per year from taxes on DSL service.

CBO’s estimates resulted from systematic, detailed analyses of information from state and national sources and involved assumptions to deal with uncertainties. In arriving at these estimates, CBO asked each state with grandfathered taxes for information on how much it collected in taxes related to access services. In addition, it estimated each state’s access service-related taxes by using such data as the number of Internet users in the state, the average fees that users paid to providers, applicable state tax rates, expected amounts of dial-up versus broadband usage, and estimates of possible noncompliance with tax assessments. See appendix II for further information on the CBO methodology and associated limitations. Rather than again doing what CBO had done and gathering information on all 50 states, we tried to supplement what we learned from CBO by exploring more in-depth information in case studies of eight states.

The CBO numbers are a small fraction of total state tax revenue amounts. For example, the $80 million to $120 million estimate for the states with originally grandfathered taxes for 2007 was about 0.1 percent of tax revenues in those states for 2004—3 years earlier.

The fact that CBO estimates are a small part of state tax revenues is consistent with information we obtained from our state case studies and interviews with providers. For instance, after telling us whether various access-related services, including cable modem service, were subject to taxation in their jurisdictions, the states collecting taxes gave us rough estimates of how much access service-related tax revenues they collected for 2004 for themselves and their localities, if applicable. (See table 2.) All except two collected $10 million or less. Even the largest state tax amount reportedly collected in 2004 for Internet access revenues, excluding collections for localities—$50 million in Texas—was only about one-sixth of 1 percent of the state’s tax revenues for that year; the largest percentage for any of our case study states was about 0.2 percent.

The states made their estimates by assuming, for instance, that access service-related tax revenues were a certain percentage of state telecommunications sales tax revenues, by reviewing providers’ returns, or by making various calculations starting with census data. Most estimates provided us were more ballpark approximations than precise computations, and CBO staff expressed a healthy skepticism toward some state estimates they received. They said that the supplemental state-by- state information they developed sometimes produced lower estimates than the states provided. According to others knowledgeable in the area, estimates provided us were imprecise because when companies filed sales or gross receipts tax returns with states, they did not have to specifically identify the amount of taxes they received from providing Internet access- related services to retail consumers or to other providers. As discussed earlier, sales to other providers remain subject to taxation, depending on state law. Some providers told us they did not keep records in such a way as to be able to readily provide that kind of information. Also, although states reviewed tax compliance by auditing taxpayers, they could not audit all providers.

The dollar amounts in table 2 include amounts, where provided, for local governments within the states. For instance, Kansas’s total includes about $2 million for localities and North Dakota’s about $400,000 for localities. In these states as well as in others we studied, local jurisdictions were piggybacking on the state taxes, although the local tax rates could differ from each other. For example, according to a state official, in Kansas the state tax was 5.3 percent, and the state collected an average of another 1.3 percent for local jurisdictions. While we did encounter localities outside our case study states that taxed access services under their own authority, almost all the collections for local jurisdictions that we came across were amounts collected by the states that were sent back to the localities.

State tax officials from our case study states who commented to us on the impacts of the revenue amounts did not consider them significant. Similarly, state officials voiced concerns but did not cite nondollar specifics when describing any possible impact on their state finances arising from no longer taxing Internet access services. However, one noted that taking away Internet access as a source of revenue was another step in the erosion of the state’s tax base. Other state and local officials observed that if taxation of Internet access were eliminated, the state or locality would have to act somehow to continue meeting its requirement for a balanced budget. At the local level, officials told us that a revenue decrease would reduce the amount of road maintenance that could be done or could adversely affect the number of employees available for providing government services.

Because of the provisions in the enacted 2004 law, some unquantified revenue losses noted by CBO in its 2003 study that could have grown to be large no longer seem to pose the threat that some feared. For example, CBO mentioned the possibility of state and local governments being unable to tax customers’ telephone calls over the Internet. However, as enacted, the 2004 amendments differed from the version reviewed by CBO and contained language excluding Internet-based telephone service, known as VoIP, from the moratorium.

In addition, CBO expressed concern that providers could bundle products containing content, such as books and movies, call the product Internet access, and have the whole bundle be exempt from taxes. Although some people we interviewed still feared bundled content and information might become tax free, they and others indicated they were aware of no court cases in which this argument has been asserted.

The 2004 amendments also included a provision specifically allowing states to tax Internet providers’ net income, capital stock, net worth, or property value, addressing another concern raised by some parties.

Timing of Moratorium Might Have Precluded Many States from Taxing Access Services, with Unclear Revenue Implications

Because it is difficult to predict what states would have done to tax Internet access services had Congress not intervened when it did, it is hard to estimate the amount of revenue that was not raised because of the moratorium. For instance, at the time the first moratorium was being considered in 1998, the Department of Commerce reported Internet connections for less than a fifth of U.S. households, much less than the half of U.S. households reported 6 years later. Access was typically dial-up. As states and localities saw the level of Internet connections rising and other technologies becoming available, they might have taxed access services if no moratorium had been in place. Taxes could have taken different forms. For example, jurisdictions might have even adopted bit taxes based on the volume of digital information transmitted.

The number of states collecting taxes on access services when the first moratorium was being considered in early 1998 was relatively small, with 13 states and the District of Columbia collecting these taxes, according to the Congressional Research Service. Five of those jurisdictions later eliminated or chose not to enforce their tax. In addition, not all 37 other states would have taxed access services related to the Internet even if they could have. For example, California had already passed its own Internet tax moratorium in August 1998.

Still, after the moratorium began, other states showed an interest in taxing Internet access services. Although the 1998 act precluded those jurisdictions from taxing Internet access, it included language stating that access services did not include telecommunications services. States seeking to take advantage of this provision taxed parts of DSL service they considered a telecommunications service and not an Internet access service. If taxing DSL service shows a desire to tax access services in general, many states not taxing dial-up or cable modem service might have done so but for the moratorium.

Given that some states never taxed access services while relatively few Internet connections existed, that some stopped taxing access services, and that others taxed DSL service, it is unclear what jurisdictions would have done if no moratorium had existed. However, the relatively early initiation of a moratorium reduced the opportunity for states inclined to tax access services to do so before Internet connections became more widespread.

Any Future Impact of the Moratorium Will Vary by State

Although as previously noted the impact of eliminating grandfathering would be small in states studied by CBO or by us, any future impact related to the moratorium will vary on a state-by-state basis for many reasons. State tax laws differed significantly from each other, and states and providers disagreed on how state laws applied to the providers. Appendix III summarizes information we gathered about our case study states.

As shown in table 3, states taxed Internet access using different tax vehicles imposed on diverse tax bases at various rates. The tax used might be generally applicable to a variety of goods and services, as in Kansas, which did not impose a separate tax on communications services. There, the state’s general sales tax applied to the purchase of communications services by access providers at an average rate of 6.6 percent, combining state and average local tax rates. As another example, North Dakota imposed a sales tax on retail consumers’ communications services, including Internet access services, at an average state and local combined rate of 6 percent. Rhode Island charged a 5 percent tax on companies’ telecommunications gross receipts.

Our case study states showed little consistency in the base they taxed in taxing services related to Internet access. States imposed taxes on different transactions and populations. North Dakota and Texas taxed only services delivered to retail consumers. In a type of transaction which, as discussed earlier, we do not view as subject to the moratorium, Kansas and Mississippi taxed acquired communications services purchased by access providers. Ohio and Rhode Island taxed both the provision of access services and acquired services, and California and Virginia officials told us their states taxed neither. States also provided various exemptions from their taxes. Ohio exempted residential consumers, but not businesses, from its tax on access services, and Texas exempted the first $25 of monthly Internet access service charges from taxation.

Some state and local officials and company representatives held different opinions about whether certain taxes were grandfathered and about whether the moratorium applied in various circumstances. For example, some providers’ officials questioned whether taxes in North Dakota, Wisconsin, and certain cities in Colorado were grandfathered, and whether those jurisdictions were permitted to continue taxing. Providers disagreed among themselves about how to comply with the tax law of states whose taxes may or may not have been grandfathered. Some providers told us they collected and remitted taxes to the states even when they were uncertain whether these actions were necessary; however, they told us of others that did not make payments to the taxing states in similarly uncertain situations. In its 2003 work, CBO had said that some companies challenged the applicability of Internet access taxes to the service they provided and thus might not have been collecting or remitting them even though the states believed they should.

Because of all these state-by-state differences and uncertainties, the impact of future changes related to the moratorium would vary by state. Whether the moratorium were lifted or made permanent and whether grandfathering were continued or eliminated, states would be affected differently from each other.

External Comments

We showed staff members of CBO, officials of FTA, and representatives of telecommunications companies assembled by the United States Telecom Association a draft of our report and asked for oral comments. On January 5, 2006, CBO staff members, including the Chief of the State and Local Government Unit, Cost Estimates Unit, said we fairly characterized CBO information and suggested clarifications that we have made as appropriate. In one case, we have noted more clearly that CBO supplemented its dollar estimates of revenue impact with a statement that other potential revenue losses could potentially grow by an unquantified amount.

On January 6, 2006, FTA officials, including the Executive Director, said that our legal conclusion was clearly stated and, if adopted, would be helpful in clarifying which Internet access-related services are taxable and which are not. However, they expressed concern that the statute could be interpreted differently regarding what might be reasonably bundled in providing Internet access to consumers. A broader view of what could be included in Internet access bundles would result in potential revenue losses much greater than we indicated. However, as explained in appendix I, we believe that what is bundled must be reasonably related to accessing and using the Internet. FTA officials were also concerned that our reading of the 1998 law regarding the taxation of DSL services is debatable and suggests that states overreached by taxing them. We recognize that Congress acted in 2004 to address different interpretations of the statute, and we made some changes to clarify our presentation. We acknowledge there were different views on this matter, and we are not attributing any improper intent to the states’ actions.

When meeting with us, representatives of telecommunications companies said they would like to submit comments in writing. Appearing in appendix IV, their comments argue that the 2004 amendments make acquired services subject to the moratorium and therefore not taxable, and that the language of the statute and the legislative history support this position. In response, we made some changes to simplify appendix I. That appendix, along with the section of the report on bundled access services and acquired services, contains an explanation of our view that the language and structure of the statute support our interpretation.

We are sending copies of this report to interested congressional committees and other interested parties. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov.

If you or your staffs have any questions about this report, please contact me at (202) 512-9110 or whitej@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Bundled Access Services May Not Be Taxed, but Acquired Services Are Taxable

The moratorium bars taxes on the service of providing access, which includes whatever an access provider reasonably bundles in its access offering to consumers. On the other hand, the moratorium does not bar taxes on acquired services.

Bundled Services, Including Broadband Services, May Not Be Taxed

As noted earlier, the 2004 amendments followed a period of significant growth and technological development related to the Internet. By 2004, broadband communications technologies were becoming more widely available. They could provide greatly enhanced access compared to the dial-up access technologies widely used in 1998. These broadband technologies, which include cable modem service built upon digital cable television infrastructure as well as digital subscriber line (DSL) service, provide continuous, high-speed Internet access without tying up wire-line telephone service. Indeed, cable and DSL facilities could support multiple services—television, Internet access, and telephone services—over common coaxial cable, fiber, and copper wire media.

The Internet Tax Freedom Act bars “taxes on Internet access” and defines “Internet access” as a service that enables “users to access content, information, electronic mail, or other services offered over the Internet.” The term Internet access as used in this context includes “access to proprietary content, information, and other services as part of a package of services offered to users.” The original act expressly excluded “telecommunications services” from the definition. As will be seen, the act barred jurisdictions from taxing services such as e-mail and instant messaging bundled by providers as part of their Internet access package; however, it permitted dial-up telephone service, which was usually provided separately, to be taxed.

The original definition of Internet access, exempting “telecommunications services,” was changed by the 2004 amendment. Parties seeking to carve out exceptions that could be taxed had sought to break out and treat DSL services as telecommunications services, claiming the services were exempt from the moratorium even though they were bundled as part of an Internet access package. State and local tax authorities began taxing DSL service, creating a distinction between DSL and services offered using other technologies, such as cable modem service, a competing method of providing Internet access that was not to be taxed. The 2004 amendment was aimed at making sure that DSL service bundled with access could not be taxed. The amendment excluded from the telecommunications services exemption telecommunications services that were “purchased, used, or sold by a provider of Internet access to provide Internet access.”

The fact that the original 1998 act exempted telecommunications services shows that other reasonably bundled services remained a part of Internet access service and, therefore, subject to the moratorium. Thus, communications services such as cable modem services that are not classified as telecommunications services are included under the moratorium.

Acquired Services May Be Taxed

As emphasized by numerous judicial decisions, we begin the task of construing a statute with the language of the statute itself, applying the canon of statutory construction known as the plain meaning rule. E.g. Hartford Underwriter Insurance Co. v. Union Planers Bank, N.A., 530 U.S. 1 (2000); Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Singer, 2A Sutherland Statutory Construction, §§ 46:1, 48A:11, 15-16. Thus, under the plain meaning rule, the primary means for Congress to express its intent is the words it enacts into law and interpretations of the statute should rely upon and flow from the language of the statute. “The term ‘Internet access’ means a service that enables users to access content, information, electronic mail, or other services offered over the Internet….The term “Internet access” does not include telecommunications services, except to the extent such services are purchased, used, or sold by a provider of Internet access to provide internet access.” Section 1105(5).

The language added in 2004--exempting from “telecommunications services” those services that are “purchased, used, or sold” by a provider in offering Internet access--has been read by some as expanding the “Internet access” to which the tax moratorium applies, by barring taxes on “acquired services.” Those who would read the moratorium expansively take the view that everything acquired by Internet service providers (ISP) (everything on the left side of figure 3) as well as everything furnished by them (everything in the middle of figure 3) is exempt from tax.

In our view, the language and structure of the statute do not permit the expansive reading noted above. “Internet access” was originally defined and continues to be defined for purposes of the moratorium as the service of providing Internet access to a user. Section 1105(5). It is this transaction, between the Internet provider and the end user, which is nontaxable under the terms of the moratorium. The portion of the definition that was amended in 2004 was the exception: that is, telecommunication services are excluded from nontaxable “Internet access,” except to the extent such services are “purchased, used, or sold by a provider of Internet access to provide Internet access.” Thus, we conclude that the fact that services are “purchased, used, or sold” by an Internet provider has meaning only in determining whether these services can still qualify for the moratorium notwithstanding that they are “telecommunications services;” it does not mean that such services are independently nontaxable irrespective of whether they are part of the service an Internet provider offers to an end user. Rather, a service that is “purchased, used, or sold” to provide Internet access is not taxable only if it is part of providing the service of Internet access to the end user. Such services can be part of the provision of Internet access by a provider who, for example, “purchases” a service for the purpose of bundling it as part of an Internet access offering; “uses” a service it owns or has acquired for that purpose; or simply “sells” owned or acquired services as part of its Internet access bundle.

In addition, we read the amended exception as applying only to services that are classified as telecommunications services under the 1998 act as amended. In fact, the moratorium defines the term “telecommunications services” with reference to its definition in the Communications Act of 1934, under which DSL and cable modem service are no longer classified as telecommunications services. Moreover, under the Communications Act, the term telecommunications services applies to the delivery of services to the end user who determines the content to be communicated; it does not apply to communications services delivered to access service providers by others in the chain of facilities through which Internet traffic may pass. Thus, since broadband services are not telecommunications services, the exception in the 1998 act does not apply to them, and they are not affected by the exception.

The best evidence of statutory intent is the text of the statute itself. While legislative history can be useful in shedding light on the intent of the statute or to resolve ambiguities, it is not to be used to inject ambiguity into the statutory language or to rewrite the statute. E.g., Shannon v. United States 512 U.S. 573, 583 (1994). In our view, the definition of Internet access is unambiguous, and, therefore, it is unnecessary to look beyond the statute to discern its meaning from legislative history. We note, however, that consistent with our interpretation of the statute, the overarching thrust of changes made by the 2004 amendments to the definition of Internet access was to take remedial correction to assure that broadband services such as DSL were not taxable when bundled with an ISP’s offering. While there are some references in the legislative history to “wholesale” services, backbone, and broadband, many of these pertained to earlier versions of the bill containing language different from that which was ultimately enacted. The language that was enacted, using the phrase “purchased, used, or sold by a provider of Internet access” was added through the adoption of a substitute offered by Senator McCain, 150 Cong. Rec. S4402, which was adopted following cloture and agreement to several amendments designed to narrow differences between proponents and opponents of the bill. Changes to legislative language during the consideration of a bill may support an inference that in enacting the final language, Congress intended to reject or work a compromise with respect to earlier versions of the bill. Statements made about earlier versions carry little weight. Landgraf v. USI Film Products, 511 U.S. 244, 255-56 (1994). Singer, 2A Sutherland Statutory Construction, § 48:4. In any event, the plain language of the statute remains controlling where, as we have concluded, the language and the structure of the statute are clear on their face.

CBO’s Methodology for Estimating Costs Relating to Taxing Internet Access Services

According to Congressional Budget Office (CBO) staff, CBO estimated revenue losses to states and localities from changing how Internet access was taxed by using two independent methodologies and comparing their results. First, it collected information directly from the states. Using data from the Federation of Tax Administrators and the Multistate Tax Commission to identify states taxing access and their related tax collections, CBO discussed with state officials what the dollar amounts included and what they did not. It then reduced the state loss estimates by various percentages to get a sense of the ranges possible by assuming, for instance, that providers were not always paying the taxes states thought they should pay.

To estimate from a second direction, CBO compiled its own state-by-state information. It multiplied the number of Internet users by state times an average access fee for each user times the state’s applicable tax rate. It then discounted each state total based on assumptions about noncompliance with tax assessments.

To arrive at the number of users, according to CBO staff, CBO consulted the Department of Commerce, the Federal Communications Commission, and studies of Internet usage. From these sources, it obtained historical numbers of users and trends that it could project showing the number of users growing over time, and how usage was changing between dial-up and high-speed.

Finally, according to the staff members, CBO gathered the other information for its state-by-state estimate from other sources. It obtained state tax rates from Council on State Taxation information and computed a weighted average access fee after calling access providers about their current rates. It assumed that any change in revenues brought on by changes in technology and markets would offset each other. It estimated noncompliance to cover both tax avoidance and nexus issues by using indications it had of certain Internet service providers not paying an access tax, considering their market share, and assuming various percentages of tax not being paid.

CBO considered information from both the approaches it was using to get a range for each state. It used these estimates to produce the part of its analysis that it could quantify--the nationwide range of $80 million to $120 million beginning in 2007 for states with originally grandfathered taxes and more than $80 million per year by 2008 for the states taxing DSL. CBO did not give point estimates or ranges for specific states, an appropriate choice given the uncertainties in the methodologies used. Although the nationwide estimates should be used with caution, they provide reasonable bases for comparisons with the size of other revenue sources, such as that for overall receipts from state taxes, and for informing policy makers about the relative size of revenue losses related to the moratorium.

Case Study States’ Taxation of Services Related to Internet Access

Table 4 and the following summaries show how our case study states significantly differed from each other in how they taxed services related to Internet access. State tax officials gave us much of the following information in conversations and written communications, and it represents their opinions of the application of the Internet Tax Freedom Act and the 2004 amendments to their own unique state laws. That said, the officials’ comments are not necessarily binding and reflect their interpretation of state law.

California

According to a state official, California had no grandfathered taxes on Internet access under any provision of the 2004 amendments. In addition, she said that California had enacted its own Internet Tax Freedom Act that generally prohibited imposing taxes on access starting January 1, 1999. Under this act, local governments were prohibited, with specified exceptions, from imposing any taxes on buying or using Internet access or other online computer services. Expiring January 1, 2004, the law did, however, expressly permit imposing sales and use taxes, utility user taxes, and other taxes of general application on goods and services that included access services. At the time of our contact in mid-2005, California officials were not aware of any state law either authorizing or preventing the taxation of access.

Kansas

According to a state Department of Revenue official, Kansas taxes on acquired services were grandfathered under the 2004 amendments. The state imposed a general sales tax of 5.3 percent (with, according to the official, local governments adding an average of another 1.3 percent) that applied to telecommunications services bought by an ISP and used to provide Internet access. ISPs paid sales tax on these acquired services to other providers that then remitted the funds to the state. According to the official, the state annually collected an estimated $9 million to $10 million in revenue from this tax, including about $2 million of local tax revenues. The $9 million to $10 million was an unverified estimate based on conversations between the Department of Revenue and telecommunications providers about the providers’ volume of sales to ISPs. It was derived by taking 10 percent of the $98 million total telecommunications sales tax receipts that the state collected in 2004. The approximately $8 million of state revenue was about 0.15 percent of Kansas’s total tax receipts of about $5.3 billion in 2004. According to the official, he expected Kansas to lose this yearly revenue starting on November 1, 2005.

Mississippi

According to Mississippi State Tax Commission officials, although the state did not tax access that was purchased by retail consumers, its tax on sales of telecommunications services to ISPs--services we are categorizing as acquired services--was grandfathered under the 2004 amendments. Since before the 1998 Internet Tax Freedom Act, the state collected a gross income tax on public utilities, including telecommunications providers, which operated much as a sales tax would. No sale-for-resale exemption applied to these services, according to the officials, because under Mississippi law the ISP was not a reseller of the same service; the ISP changed the service before selling it to the retail consumer. The tax rate was 7 percent and, although officials told us the amount of resulting revenue collections was extremely difficult to calculate due to a lack of data, they believed the total amount to be less than $1 million per year. This was about 0.02 percent of Mississippi’s 2004 tax revenues of about $5.1 billion. According to the officials, telecommunications companies remitted sales tax collected from ISPs to the state on a monthly basis. As there were no local option sales taxes in Mississippi, the state was the only Mississippi entity that taxed the telecommunications services.

North Dakota

North Dakota Office of State Tax Commissioner officials maintained that their state was grandfathered under the 2004 amendments, and as such continued to tax retail consumer Internet access. The state imposed a sales tax on communications services, which it applied to Internet access. The tax rate was 5 percent and, according to the officials, led to state revenue collections of about $2 million per year, which was about 0.16 percent of North Dakota’s approximately $1.2 billion in 2004 tax revenues. In addition, local rates of generally 1 percent provided about another $400,000 in yearly collections for local jurisdictions. Retail consumers were taxed on intrastate Internet access transactions, whether through dial-up, cable modem, DSL, or wireless technologies. ISPs collected the taxes and then transferred them to the state. To determine the amount of tax revenue collected, state officials said they reviewed each registered ISP and approximated how much income resulted from providing Internet access. According to the officials, the state’s determinations were confirmed by subsequent state audits.

Ohio

According to Ohio Department of Taxation officials, Ohio was grandfathered to continue taxing business (but not residential) purchases of Internet access and provider purchases of other services to provide access. Ohio imposed a 5.5 percent sales tax on business users of telecommunications and electronic information services, supplemented, according to the officials, by an average 1 percent tax for local jurisdictions. The same taxes also applied to acquired services. Ohio also provided a 25 percent sales tax credit for electronic information service providers, which meant that ISPs could get a tax credit for the equipment that they purchased and used primarily to provide Internet access.

Because Ohio taxed Internet access as part of electronic information services for business users, it was difficult for state officials to determine exactly how much tax was paid on Internet access. Officials estimated that in 2004, the state collected $17 million in taxes paid on Internet access services (including some research services) sold to end users, and an additional $2.8 million from local taxes on those same services. They derived these numbers using economic census data and vendors’ tax returns.

In addition, an Ohio official estimated collecting another $27.3 million in state taxes and $5 million in local taxes in 2004 from other Internet access- related services that state officials said Ohio could no longer tax starting in November 2005. The combined $32.3 million state and local revenues for services not taxable in November 2005 included several components. The largest was $20.5 million on telecommunications services and property provided to ISPs and Internet backbone providers, for example, high-speed lines leased by an ISP from a telecommunications provider. In arriving at this estimate, state officials assumed that 10 percent of telephone and wireless services would become tax exempt. The next largest component was $9.1 million for private line services, such as T-1 and T-3 lines, and 800/wide-area telecommunications-type services that an official said would be exempt due to the moratorium. The state derived this number by assuming that 10 percent of the relevant services were attributable to Internet customers. These services had become taxable as of July 1, 2003, when Ohio repealed exemptions for them, but, according to state officials, these services were becoming tax exempt again at November 1, 2005, under the changed definition of Internet access.

The amount of Internet access-related state taxes that an Ohio official said the state collected in 2004 was $44.3 million. This was the sum of the $17 million from retail services and $27.3 million from acquired services. This total amounts to about 0.2 percent of Ohio’s approximately $22.5 billion in tax collections for 2004. It does not reflect a problem that Ohio officials expected from taxpayers bundling services as Internet access services in order to avoid sales tax. Although the officials said the size of the problem was unknown, they assigned a $24 million sales tax loss to it for 2007, assuming it to be similar in size to other annual tax losses that would start in November 2005.

Rhode Island

State officials told us that Rhode Island was grandfathered under the 2004 amendments to tax Internet access through both a gross receipts tax on ISPs and a sales tax on telecommunications services acquired by ISPs. The gross receipts tax, in existence since 1942, was imposed on any company charging a telecommunications access fee, with provisions to prevent the same charges from being taxed twice. This tax was assessed at a rate of 5 percent, and companies submitted an annual return to the state and made estimated payments throughout the year. According to state officials, Rhode Island did not tax companies providing Internet access services via cable modem but did tax those providing access services through dial-up, DSL, or wireless technologies. Not knowing what part of reporting companies’ gross receipts came from providing Internet access, the officials could not determine precisely how much revenue the state collected from Internet access under the gross receipts tax. They did say that since Internet access charges probably totaled less than 10 percent of annual telecommunications gross receipts of $40 million to $45 million, the amount of state revenue collected from taxing Internet access would be less than $4.5 million. This would be about 0.19 percent of 2004 state tax revenues that totaled about $2.4 billion.

The officials also said that Rhode Island would be affected by the new definition of Internet access under the 2004 amendments as it applies to the state sales tax, and thus to the taxation of acquired services. The sales tax was imposed at a 6 percent rate on the purchase of telecommunications services bought by ISPs to provide Internet access. The sale/resale exemption did not apply because ISPs are considered to be the “end users” of the services, as their own products differ from the ones purchased. The officials did not think revenues from taxing acquired services were significant compared to overall state telecommunications tax revenues.

Texas

An official with the Texas Comptroller of Public Accounts maintained that his state had been permitted to tax retail consumer Internet access for years, making Texas another one of the relatively few states that continued to be grandfathered under the 2004 amendments. Because Texas had no state income tax, a sales tax was its primary source of revenue. In 1985, telecommunications were added to the services covered by the sales tax, and in 1988, information services were added as well. According to the official, the 6.25 percent sales tax rate led to state revenue collections of about $50 million for 2004, which was about 0.16 percent of Texas’s approximately $30.8 billion in tax revenues for 2004. Local jurisdictions typically imposed an extra one-quarter to 1 percent additional sales tax on Internet access, but the combined total of state and local taxes could not exceed 8.25 percent. Texas exempted from taxation the first $25 of Internet access charges incurred by a customer when buying Internet access from an ISP. However, according to the official, a corporate customer qualified for one $25 exemption regardless of how many accounts it maintained. The sale-for-resale exemption applied in Texas to services sold by a provider to an ISP for resale purposes, so those acquired services were not taxable. Retail consumers were taxed on intrastate Internet access transactions, whether through dial-up, cable modem, DSL, wireless, or satellite technologies. ISPs collected the taxes and then transferred them to the state.

Virginia

According to Virginia Department of Taxation officials, Virginia had no taxes on Internet access grandfathered under the 2004 amendments. In Virginia, ISPs were subject to taxes of general application, like corporate income and gross receipts taxes imposed by the state or local jurisdictions, but Internet access transactions were not taxable transactions. According to the officials, Virginia’s sales tax statutes exempted ISPs from collecting sales tax, codifying then current state practices. Virginia had exempted Internet access services from its sales and use tax in April 1998. Acquired services were similarly not taxable in Virginia.

Comments from Telecommunications Industry Officials

GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgments

In addition to the contact named above, Michael Springer, Assistant Director; Bert Japikse; Shirley A. Jones; Lawrence M. Korb; Walter K. Vance; and Bethany C. Widick made key contributions to this report.