How eBook Transactions are Taxed Under the Final Cloud Regulations

On January 14, 2025, the Internal Revenue Service (“IRS”) and the Department of Treasury made significant changes to the digital content and cloud regulations. For this purpose, digital content means a computer program or any other content, such as books, movies, and music, in digital format that is protected by copyright law or no longer so protected solely due to the passage of time or because the creator dedicated the content to the public domain. A cloud transaction is a transaction through which a person obtains on-demand network access to computer hardware, digital content, or other similar resources. For the most part, the 2025 final regulations follow 2019 proposed regulations with a few important revisions. This article discusses the key changes the 2025 regulations made to the 2019 proposed regulations governing digital content. This article also discusses tax considerations for transactions involving the download of electronic books.

Taxation of U.S. Persons in Connection with Income Received from Digital Content or Cloud Transactions

The basic rule of the U.S. income tax system is that U.S. citizens, resident aliens and corporations are subject to tax on worldwide income regardless of the country from which the income derives, the country in which payment is made or the currency in which the income is received. For U.S. persons, the term “source of income” is typically only relevant for foreign tax credit purposes. The foreign tax credit provisions contained in Internal Revenue Code sections 901 through 909 permit a foreign tax credit to reduce U.S. taxation on foreign source income. All income worldwide received by a U.S. person from a digital content or cloud transaction is subject to U.S. taxation.

Taxation Non-Residents by the United States in connection with Digital Content or Cloud Transactions is Limited to U.S. Source Income

A non-resident individual or other non-resident entity of the United States (“U.S.”), including a foreign corporation, is subject to U.S. income tax only with respect to U.S. source income it derives from passive investment as well as income or gain effectively connected, or treated as effectively connected with the carrying on of a U.S. trade or business or through a permanent establishment. In contrast with non-U.S. persons, including a foreign corporation, a fundamental axiom of the U.S. tax system is it requires a U.S. citizen or resident, as well as a U.S. (domestic) corporation or partnership, to pay U.S. income tax on his or its worldwide taxable income subject to applicable treaty provisions.  A U.S. person includes a domestic corporation, domestic partnership, domestic trust, or domestic estate.

A foreign corporation or other non-U.S. resident carrying on a trade or business in the U.S. is taxed on a net basis, i.e., on effectively connected income or (“ECI”) derived by such U.S. trade or business less allowable deductions. The ECI rules apply U.S. trade or business characterization to income derived by indirect owners of the business through a flow-through entity, such as foreign beneficiaries of a trust or foreign partners in a partnership, for each owner’s pro rata share or deemed allocation of ECI. This outcome is sourced as ECI by Sections 875(1) and 875(2) of the Internal Revenue Code, which provide that a foreign corporation (or nonresident alien individual) is engaged in a U.S. trade or business if the partnership, estate, or trust is engaged in a U.S. trade or business.

U.S. ECI “net-income” is subject to U.S. income tax at regular tax rates. The same outcome applies to a foreign corporation that is a resident of a treaty jurisdiction to the extent its business and associated profits are attributable to a permanent establishment situated in the U.S. For a foreign corporation the current tax rate of U.S. federal income tax is 21 percent. For a foreign corporation not engaged in a trade or business in the U.S., it is subject to a 30 percent flat rate (without deduction or credit) on its U.S. source income that is otherwise not ECI. Section 881(a)(1) of the Internal Revenue Code describes this category of U.S. source income, which is generally passive in nature, as “fixed or determinable or periodical income (“FDAP”). FDAP U.S. source income includes dividends, interest, rents, salaries, wages, premiums, annuities, and compensations. See Treas. Reg. Sections 1.1441-2(b)(1)(i); 1.1441-2(b)(1)(ii).  Further, certain species of foreign source income that are attributable to a foreign corporation’s office or fixed place of business in the United States may be deemed to be effectively connected with a U.S. trade or business.

Income received by nonresidents from U.S. source copyrights, patents, trademarks, or similar intangibles may be treated as “royalties” and therefore FDAP under a “license” arrangement, or, gain from the sale of the property in issue if substantially all rights are transferred, or as services income if the income is principally derived in the form of compensation for the owner’s services in developing the property. Where the foreign person or corporation receives payments but does not have ownership in the intangible property, the transaction is treated as compensation. Where less than substantially all of the foreign person’s or corporation’s rights are transferred, the transaction is characterized, in general, as a license. Income from services performed outside the United States (with exceptions discussed below) are not subject to U.S. taxation.

Historical Rules Governing the Source of Income from Leases, Licenses, and Services

Historically, the sourcing rules under Sections 861 and 862 instruct whether income from payments of a particular transaction will be treated as U.S. source or foreign source income or partly both based on an allocation provision. See IRC Sections 861(a)(3) and 862(a)(3). Compensation for personal services performed in the United States is U.S. source income, and compensation for personal services performed abroad is foreign-source income. See IRC Sections 861(a)(3) and 862(a)(3).  As noted, personal services are sourced under the “place of performance” standard. See IRC Section 861(a)(3). In comparison, royalty and licensing income associated with intangible personal property is sourced according to where the intangibles are used, which is where the legal protection sought by the licensee is sought. See IRC Sections 861(a)(4) and 862(a)(4). For example, a licensee remits fees to the manufacturer of copyrighted software for use in the U.S. The manufacturer or developer of the software is a foreign corporation based in Brazil which does not have, at present, a tax treaty with the United States. The payment is U.S. source income, assuming that the Brazilian corporation does not carry on a trade or business within the United States.

In the Deficit Reduction Act of 1984, Congress enacted Section 7701(e) of the Internal Revenue Code in an effort to distinguish between a lease and a service contract. Six factors are set forth in the statute in making this determination; to wit: 1) the service recipient has physical possession of the property “leased;” 2) the service recipient controls the property; 3) the service recipient has a significant economic or possessory interest in the property; 4) the service provider does not bear economic risk of loss by substantially increased expenditures if there is nonperformance under the contract; 5) the service provider does not use the property concurrently to provide significant services to entities unrelated to the service recipient; and 6) the total contract price does not substantially exceed the rental value of the property for the contract period.

Summary of the Software Rules

The “Software Rules” are set forth in Treasury Regulation Section 1.861-18. The Software Rules are limited to transactions involving computer programs. Treasury Regulation Section 1.861-18(a)(3) defines the term “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. A computer program includes any media, user manuals, documents, data base or similar item if the media, user manuals, documentation, data base or similar item is incidental to the operation of the computer program.

The Software Rules provides that a transaction is characterized based on its substance, not solely on the description of the transaction in the agreements. The Software Rules provide that it is necessary to determine the substance of the transaction in order to determine the character of a transaction and the income related to such a transaction. See Treas. Reg. Section 1.861-18(g). The 2019 Proposed Regulations extended the application of Treasury Regulation Section 1.861-18 expanded the definition to include certain “digital content” transactions. For purposes of the Proposed 2019 Regulations, the term “digital content” is defined as “a computer program or other content, such as books, movies, and music, in digital format that is either protected by copyright law solely due to the passage of time or because the creator dedicated the content to the public domain.” See Treas. Reg. Section 1.861-18(a)(2). The Final Digital Content Regulations added the reference to digital content not being protected by copyright law solely because the creator dedicated the content to the public domain.

As a general rule, the Software Rules classify any transaction involving the transfer of a computer program as includable in one of the following four categories:

1. Transfer of All Substantial Rights in a Copyright Right

Under a transfer of a copyright right, a transfer is treated as a transfer of copyright rights if, as a result of a transaction, a person acquires any of the following: 1) the right to make copies of the computer program for purposes of distribution to the public by sale or other transfer of ownership, or by rental, lease, or lending; 2) the right to prepare derivative computer programs based upon the copyrighted computer program; 3) the right to make a public performance of the computer program; or 4) the right to publicly display the computer program. For the transfer of copyright rights to be characterized as a sale, it must be a transfer of “all substantial rights” which essentially requires the transfer to be exclusive and to be the remainder of the left of the copyright.

According to the regulations promulgated at the time, the following was an example of a transfer of all substantial rights in a copyright right: Corp A owns the copyright in a computer program, Program X and Corp A transfers a disk containing Program X to Corp B, a Country Z corporation, and grants Corp B “an exclusive license for the remaining term of the copyright to copy and distribute an unlimited number of copies of Program X in the geographic area of Country X, prepare derivative works based upon Program X, make public performances of Program X and publicly display Program X. Corp B will pay Corp A royalty of $y a year for three years which is the expected period during which Program X will have commercially exploitable value. The example states that the transfer should be treated as a sale by Corp A because Corp A transferred to Corp B copyright rights and Corp B received the right to use it exclusively in Country Z and for the remaining life of the copyright. As a result, there was a transfer of all substantial rights in the copyright right.

2. Transfer of a Copyright Article

Under a transfer of a copyrighted article, a transfer is treated as a transfer of a “copyrighted article” if a person acquires a copy of a computer program but does not acquire any of the copyright rights and the transfer does not involve, or involves a de minimis, provision of services. See Treas. Reg. Section 1.861-18(c)(1)(ii). To be treated as a sale, there must be a transfer of the benefits and burdens of ownership in the copyrighted article. The regulations provided a detailed example of a transfer of a copyrighted article that should be treated as a sale. According to the example, Corp A owns the copyright in a computer program (“Program X”) and copies Program X onto disks. The disks are placed in boxes covered with a wrapper on which is printed what is generally referred to as a “shrink wrap license.” The license is stated to be perpetual. The transferred receives the right to use the program on two of its own computers, the right to make one copy of the program on each machine as an essential step in using the program, and the right to make one copy of the program on each machine as an essential step in using the program, and the right to resell the copy of the program so long as it destroys any other copies it has made. P, a resident of Country X receives a disk. This example concluded that the label “license” is not determinative and that since none of the copyright rights have been transferred to P, P has acquired a copyrighted article. Consequently, under this example, there was a sale of a copyrighted article and Corp A realized sale income. See Treas. Reg. Section 1.861-18(h), Example 1.

3. The Provision of Services for the Development or Modification of Computer Programs

Compensation for personal services performed in the United States is U.S. source income, and compensation for personal services performed outside the United States is foreign-source income. The determination of whether a transaction is treated as either the provision of services of another transaction is based on all the facts and circumstances of the transaction, including appropriate, the intent of the parties (as evidenced by their agreement and conduct) as to which party is to own the copyright rights in the computer program and how the risks of loss are allocated between the parties. See Treas. Reg. Section 1.861-18(d).

The Software Rules provided the following example of a transaction that should be treated as a provision of services: Corp H, a Country Z corporation, enters into a license agreement for a new computer program, Program Q. Program Q is to be written by Corp A and the parties agree that when Program Q is completed, the copyright in Program Q will belong to Corp H. Corp H agrees to pay Corp A a fixed monthly sum during development of the program. All of the payments are labeled royalties. The example concludes that taking into account all of the facts and circumstances, Corp A is treated as providing services to Corp H because Corp H bears all of the risks of loss associated with Program Q and is the owner of all copyright rights in Program Q. See Treas. Reg. Section 1.861-18(h), Example 15.

4. The Provisions of Know-How Relating to Computer Programming Techniques

The provisions of know-how relating to computer programming techniques describe the transfer of specialized, practical knowledge that is not widely known. This can occur through training, demonstration, documentation, or other means. Under Software Rules, a computer program is treated as know-how if it 1) relates to computer programming techniques; 2) is furnished under conditions preventing unauthorized disclosure, specifically contracted for between the parties; and 3) is considered property subject to trade secret protection.

The New “Predominant Character” Rule

Where a transaction consisted of more than one of the four types of transactions discussed above, the prior regulations required that each transaction should be treated as a separate transaction, unless any transaction was de minimis. In such cases, any such de minimis transaction was required to be treated as part of another transaction. Whether a transaction was de minimis was determined by “taking into account the overall transaction and surrounding facts and circumstances.” See Treas. Reg. Section 1.861-18(b)(2). Prior to January 14, 2025, the regulations generally required taxpayers to bifurcate transactions into their component parts, and to separately apply the regulations to each component part, unless any such part was de minimus. The Treasury and the IRS replaced the bifurcation de minimis approach with a new predominant character rule. The new predominant character rule applies for purposes of the final digital content regulations.

The “predominant character” of a transaction that contains multiple elements, one or more of which would be a digital content transaction or a cloud transaction if considered separately, generally is determined by reference to “the primary benefit or value received by the customer in the transaction” under Treasury Regulation Section 1.861-18(b)(3)(i). If the primary benefit or value to the customer cannot be reasonably ascertained under the general rule, the predominant character rule looks to the primary benefit or value by “a typical customer in a substantially similar transaction.” See Treas. Reg. Section 1.861-18(b)(3)(ii). This is typically done by reviewing data as to how a typical user uses or accesses the digital data. See Treas. Reg. Section 1.861-18(b)(3)(ii)(A). If data is unavailable, other facts should be considered such as the primary benefit or value received by a typical customer under Treasury Regulation Section 1.861-18(b)(3)(ii)(B) which includes: 1) how the transaction is marketed; 2) the relative development costs of each element of the transaction; and 3) the relative price paid in an uncontrolled transaction for one or more elements to the total contract price of the transaction in question.

New Source Rule

The final digital content regulations provide a new source rule for sales of copyrighted articles transferred through an electronic medium. Under the new source rule of Treasury Regulation Section 1.861-18(f)(2)(ii), when a copyrighted article is sold and transferred through an electronic medium, the sale is deemed to have occurred at the location of the billing address of the purchaser as a proxy for title passage for purposes of Treasury Regulation Section 1.861-7(c). The new sourcing rules contain an anti-abuse rule. The new anti-abuse rule provides as follows: if a digital content transaction is arranged in a particular manner for ‘a’ principal purpose of tax avoidance, the purchaser’s billing address for -18 purposes is determined by the “facts and circumstances” of the transaction overall. The “facts and circumstances” test considers where copyrighted articles will be used, the place where negotiations and the execution of the agreement occurred, and the terms of the agreement.

Treasury Regulation Example Discussing Tax Considerations of Electronic Books via Download

The final version of Example 19 contained in Treasury Regulation Section 1.861-18 discusses how the download of a copy of a digital book by a customer should be characterized for U.S. taxation purposes. Example 19 also analyzes the multiple elements that should be considered for U.S. tax purposes between the content owner of a digital book and a website operator.

Example 19 provides as follows:

Corp A operates a website that offers electronic books for download onto customers’ computers or other electronic devices. The books offered are protected by copyright law. In a transaction between Corp A and a content owner, Corp A receives from the content owner a digital master copy of a book, which Corp A downloads onto its server. Corp A receives the non-exclusive right to reproduce an unlimited number of copies of the book for purposes of distribution and sale to the public. Corp A pays the content owner a specified amount for each copy sold to a customer. Corp A may not transfer any of the rights it receives from the content owner. The term of the agreement Corp A has with the content owner is shorter than the remaining life of the copyright. The content owner has ascertained that the primary benefit or value Corp A receives in the transaction is the right to reproduce and distribute an unlimited number of copies of the book and not the transfer of a copy of the book. In a separate transaction, Corp A charges a customer a fixed fee for each book purchased. When purchasing a book from Corp A on Corp A’s website, the customer must acknowledge the terms of a license agreement with the content owner that states that the customer may download and view the electronic book in perpetuity but may not reproduce, distribute, or sell copies of it. Once the customer downloads the book from Corp A’s server onto a device, the customer may access and view the book from that device, which does not need to be connected to the internet for the customer to view the book. The customer owes no additional payment to Corp A for the ability to view the book in the future.

Analysis

Notwithstanding the license customer and the content owner granting the customer rights to use the book, the relevant transactions are the transfer of a master copy of the book with the grant from the content owners to Corp A of the right to reproduce and sell to the public copies of the books, and the transfers of copies of the books by Corp A to customers. Although the content owner is identified as a party to the license agreement memorializing the customer’s rights with respect to the book, each customer obtains those rights directly from Corp A, not from the content owner. Under Treasury Regulation Section 1.861-18(b)(1), the download of a copy of a book by a customer is a digital content transaction with one electment, which is the transfer of a digital copy of a book. Therefore, the transaction is treated solely as a transfer of a copyrighted article under Treasury Regulation Section 1.861-18(b)(1)(ii). Under the benefits and burdens test of Treasury Regulation Section 1.861-18(f)(2), the transaction is classified as a sale and not a lease, because the customer receives the right to view the book into perpetuity on its device.

The transaction between the content owner and Corp A has multiple elements. One element is the transfer of a master copy of the book, which would be described under Treasury Regulation Section 1.861-18(b)(1)(ii) as a transfer of a copyrighted article. Another element is the grant of the right to reproduce and sell an unlimited number of copies to customers, which would be described in Treasury Regulation Section 1.861-18(b)(1)(i) and Treasury Regulation Section 1.861-18(c)(2)(i) as the transfer of a copyright right. Because the transaction has multiple elements, one or more of which would be a digital content transaction if considered separately. Pursuant to Treasury Regulation Section 1.861-18(b)(3), the predominant character of the transaction is based on the primary benefit or value of the transaction to the customer, if it is reasonably ascertainable. Since the primary benefit or value Corp A receives in the transaction is the right to reproduce and distribute an unlimited number of copies, the predominant character of this transaction is the transfer of a copyright right. Therefore, this transaction is classified solely as a transfer of copyright rights.

Taking into account all the facts and circumstances, there has been a license of books to Corp A. Under Treasury Regulation Section 1.861-18(f)(1), there has not been a transfer of all substantial rights in the copyright rights to the books because each content owner has the right to enter into other licenses with respect to the copyright of their book. Corp A has acquired no right itself to license the copyrights in the books. Finally, the terms of the licenses are for less than the remaining lives of the copyrights in the books.

Conclusion

The foregoing is intended to provide the reader with a basic understanding how digital content is taxed under the newly released regulations. It should be evident from this article that this is a complex area of tax law and that this area of tax law is subject to constantly new developments and changes. Consequently, it is crucial that U.S. and foreign digital content creators should review their particular circumstances with a qualified U.S. international tax attorney.

Anthony Diosdi is one of several tax attorneys and international tax attorneys at Diosdi & Liu, LLP. Anthony has substantial experience advising foreign and domestic technology companies regarding the U.S. tax consequences of digital content and cloud transactions. Anthony has written numerous articles on international tax planning and frequently provides continuing educational programs to other tax professionals.

He has assisted companies with a number of international tax issues, including Subpart F, GILTI, and FDII planning, foreign tax credit planning, and tax-efficient cash repatriation strategies. Anthony also regularly advises foreign individuals on tax efficient mechanisms for doing business in the United States, investing in U.S. real estate, and pre-immigration planning. Anthony is a member of the California and Florida bars. He can be reached at 415-318-3990 or adiosdi@sftaxcounsel.com.

This article is not legal or tax advice. If you are in need of legal or tax advice, you should immediately consult a licensed attorney.