Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2014
 

Sales and Use Tax Annotations


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420.0000 PHOTOGRAPHERS, PHOTOSTAT PRODUCERS, PHOTO FINISHERS AND X-RAY LABORATORIES—Regulation 1528

Annotation 420.0310

(a) IN GENERAL

420.0310 Still Photography. A company, whose seller's permit indicates that it is a commercial artist selling photographic images and videos, requested information regarding the application of law to the following questions regarding still photography.

(1) Can one photographer purchase another photographer's photographs using a resale certificate?

If the actual photograph purchased by the photographer will be resold to the client prior to any use by the photographer or if it will be physically incorporated into the property produced by the agency that will be resold, the photographer may purchase the photograph ex-tax by issuing a resale certificate. (2) Can one photographer purchase another photographer's labor using a resale certificate?

If the photographer provides all materials used by the other photographer to produce tangible personal property that will be sold to the client prior to any use, there is no "sale" since only fabrication for a consumer is a "sale." Since the second photographer is not making a "sale" to the photographer, he/she is not really making a sale for resale. Nevertheless, the best way to prove that the labor was not for a consumer is to take resale certificate.

(3) Photographer A who has an out-of-state client, hires Photographer B to shoot photos for his/her client. Does Photographer B charge Photographer A sales tax?

If the photos will be resold or will be incorporated into the property to be resold prior to any use, Photographer A may purchase the photos ex-tax by providing a resale certificate.

(4) Can a photographer use his/her resale certificate to purchase photographic materials that are to be sold exclusively out of state?

Yes, provided the photographer makes no use of the materials prior to the resale.

(5) If a client leases the rights to reproduce photographic images but the photographer maintains possession of the original images, does the photographer charge sales tax to the client?

If the photographer retains the negatives and transfers to the lessee a photograph, some tangible personal property is being transferred. If the client is not obligated to return the same photograph provided to the lessor, the transfer of the photograph would be a sale and subject to tax. If the client was required to return the photograph, it would be a lease and tax applies as explained in Regulation 1660.

(6) If a client supplies all the photographic materials to the photographer, does the photographer charge sales tax for his/her labor?

Under the definition of a sale, section 6006 (b), the photographer is making a "sale" of the photographs and that sale would be taxable even though all of the materials may have been provided by the client.

(7) Does a photographer's assistant have to charge the photographer sales tax for his/ her labor?

Assuming the assistant is not an employee of the photographer, the application of tax depends upon whether the assistant is making a retail sale of tangible personal property to the photographer. If the sale is at retail, the sales tax applies. If the photographer resells property purchased from an assistant prior to any use by the photographer, the photographer may purchase the property ex-tax for resale. The photographer's full charge for the sale to his client is subject to tax, with no deductions on account of the amount paid for the services provided by the assistant in the production of the property. (8) Does the photographer have to collect sales tax on a photographer's assistant's labor?

As stated in Number 7, a photographer cannot deduct his labor costs from the selling price before computing sales tax. Sales tax is due on the entire selling price of retail sales of tangible personal property.

(9) On a large photography shoot involving labor of several positions hired by the photographer (i.e., make up, models, stylists, etc.) does the photographer have to collect sales tax on the labor of all these positions?

As stated above, the measure of tax is based upon the gross receipts of a retail sale. Tax applies to charges for services rendered that represent services that are a part of a sale of the property, or a labor or service cost in the production of the property. These positions are an expense in the creation of the property to be sold to the client and thus the costs are included in the measure of tax.

(10) Should sales tax be collected on postage and handling which includes the cost of postage and a markup on envelopes and labor?

If a separately stated charge is made designated "postage and handling", only that portion of the charge which represents actual postage may be excluded from the measure of tax. 10/20/93.