SUBJECT: Original Manufacturer Warranties, Optional Maintenance Contracts, and Optional Warranty Contracts

REFERENCE: IC 6-2.5-1-11.5; IC 6-2.5-1-14.5; IC 6-2.5-2-1; IC 6-2.5-3-2; IC 6-2.5-4-1; IC 6-2.5-4-15; IC 6-2.5-4-17; 45 IAC 2.2-4-2

DISCLAIMER: Information bulletins are intended to provide nontechnical assistance to the general public. Every attempt is made to provide information that is consistent with the appropriate statutes, rules, and court decisions. Any information that is not consistent with the law, regulations, or court decisions is not binding on either the department or the taxpayer. Therefore, the information provided herein should serve only as a foundation for further investigation and study of the current law and procedures related to the subject matter covered herein.

SUMMARY OF CHANGES

This bulletin has been changed from the previous version to reflect that the sales of optional maintenance contracts which meet the definition of bundled transactions are subject to sales tax at the time of sale. Conversely, the sales of optional warranty contracts where delivery of tangible personal property is uncertain are not subject to sales tax. However, any parts or products transferred under an optional warranty contract are subject to use tax at the time of delivery. The sales of computer software maintenance contracts shall be treated separately and distinctly from the contracts addressed in this bulletin and are subject to sales tax pursuant to IC 6-2.5-4-17.

I. ORIGINAL MANUFACTURER WARRANTIES OR DEALER WARRANTIES

Original manufacturer warranties or dealer warranties guaranteeing the condition of a product and providing that maintenance or replacement parts will be provided at either no charge or a flat charge are subject to sales tax. The amount subject to tax includes any subsequent payments made by the purchaser, such as deductibles or other fees. Original manufacturer warranties and dealer warranties not offered as an option when the product is sold are considered part of the selling price of the product. Any parts transferred to a buyer under the terms of an original manufacturer warranty or dealer warranty are not subject to sales tax because the parts and or property are considered to have been sold with the product as a part of the retail transaction on which sales tax was collected.

Providing the warranty explicitly states that a replacement vehicle will be provided while warranty work is being performed, the rental transaction is considered to be part of the original warranty and is exempt from the sales or use tax. However, if the warranty does NOT explicitly provide for a replacement vehicle, then the furnishing of the vehicle is not considered to be part of the repair or the replacement parts and the charge for the provided vehicle is subject to the sales or use tax. The exemption must be supported by written documentation of payment from the warranty provider.

NOTE: The fee charged for a rental vehicle provided for warranty work is NOT exempt from the auto rental excise tax under IC 6-6-9, but it is exempt from the Marion County supplemental auto rental excise tax under IC 6-6-9.7-8.

II. OPTIONAL MAINTENANCE CONTRACTS

Maintenance contracts generally meet the definition of bundled transactions under IC 6-2.5-1-11.5 and are subject to sales tax on that basis. The determination as to whether a contract is a maintenance contract is not based on the particular title of or language used in the contract. Instead, the determination is based on the substantive provisions contained in the contract. Whether there is an explicit guarantee that tangible personal property will be provided under the contract is irrelevant. What is important is that both the customer and the service provider are aware at the time the contract is executed that consumable items will be provided under the contract. However, the amount of tangible personal property supplied under the contract must be more than a de minimis amount. As a rule, the seller's purchase price or the sales price of the taxable items provided under the contracts must exceed 10% of the total purchase price or the total sales price of the bundled products.

For purposes of this bulletin, these contracts include the retail sales of two or more distinct and identifiable products for one non-itemized price and include repair labor as well as replacement parts, consumable items, and general services such as cleaning and inspecting that are provided on a periodic basis. These contracts include scenarios in which the specific repair and replacement parts and consumable items needed to maintain the equipment are provided at no additional cost or with a small deductible. For purposes of this bulletin, the term "consumable items" includes items that are depletable, are disposable, are consumable, or need to be replaced after they have been used for a period of time. An example of consumable items can be found where a service provider sells a maintenance contract for a copy machine. Under the contract, parts and consumable items that require regular replacement for the copier to perform its function (such as drums, toner, fuser, developer, etc.) are replaced at no additional cost along with incidental repair parts that may need to be replaced due to unforeseen circumstances.

III. OPTIONAL WARRANTY CONTRACTS

For purposes of this bulletin, a "warranty contract" means a contract that acts like insurance against future potential repair costs. As with maintenance contracts discussed previously, the determination as to whether a contract is a warranty contract is not based on the particular title of the contract or language used therein. Instead, the determination is based on the substantive provisions contained in the contract. Under a warranty contract, neither the seller nor the purchaser is certain at the time the contract is signed whether any tangible personal property will be provided under the terms of the contract. Unlike a maintenance contract, the replacement of consumable items is not included under a warranty contract.

Optional warranty contracts are not implicated by the bundled transaction provisions in IC 6-2.5-1-11.5 because the warranty contracts do not meet the definition of a bundled transaction. The sale does not include the sale of two or more products because, under the warranty contract, there may never be any parts or services provided to the customer. Accordingly, the sales of optional warranty contracts are exempt from sales tax. However, the provider of the service must pay sales or use tax on the cost of all taxable items used under the contract. If the service provider charges a separate amount for parts or other taxable items, the provider should purchase the items exempt for resale and charge sales tax to the customer. If the service provider charges one non-itemized amount for the service and any tangible personal property transferred under the contract, the provider must self-assess and remit use tax on its purchase price of the property.

IV. APPLICATION TO SALES OF OPTIONAL MAINTENANCE CONTRACTS MADE PRIOR TO JANUARY 1, 2013

For transactions where sales tax was collected and remitted on the sale of optional maintenance contracts prior to the publishing of this bulletin, a retail merchant will not be required to self-assess use tax on any parts used to fulfill the terms of the contracts. Correspondingly, a claim for refund based on this bulletin for a transaction subjected to tax prior to Jan. 1, 2013, will be denied.

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Michael J. Alley

Commissioner