Computer Underground Digest--Tue, Sept 25, 1991 (Vol #3.34) Moderators: Jim Thomas and Gor

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Computer Underground Digest--Tue, Sept 25, 1991 (Vol #3.34) Moderators: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) CONTENTS, #3.34 ( September 25, 1991) File 1--Moderators' Corner File 2--WANTED: TARGETS OF OPERATION SUN DEVIL File 3--BBS Services Fight NY "Download" Tax (Newsbytes Reprint) File 4--New York Tax Law and Commentary by Tony Mack File 5--Confusion Reigns on NY Download" Tax (Newsbytes Reprint) File 6--Confusion unfolds on NY "Download" Tax (Newsbytes Reprint) File 7--Clarification of NY BBS Law File 8--Summary of Significance of NY "BBS Download Tax" (reprint) Issues of CuD can be found in the Usenet alt.society.cu-digest news group, on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL0 and DL12 of TELECOM, on Genie, on the PC-EXEC BBS at (414) 789-4210, and by anonymous ftp from ftp.cs.widener.edu (147.31.254.20), chsun1.spc.uchicago.edu, and dagon.acc.stolaf.edu. To use the U. of Chicago email server, send mail with the subject "help" (without the quotes) to archive-server@chsun1.spc.uchicago.edu. COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted as long as the source is cited. Some authors do copyright their material, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to the Computer Underground. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: 25 Sep 91 11:21:19 CDT From: Moderators Subject: File 1--Moderators' Corner New York State recently passed a law that would seem to impose a "download" tax on BBS sysops. Following a spate of initial fear about the implications of such a tax and the impact it would have on hobbyist BBSs, a series of articles and commentary clarified the law's intent and some of its language. Although it appears that it is premature to see it as a threat to the BBS world, the law's murky language seems to require clarification, lest it eventually be invoked "because it's there." We have pulled together a series of comments that we gathered or were sent that address various issues and include those that were most helpful below. NEWSBYTES, as usual, was on top of the story from the beginning, and we recommend it as the most valuable source general netnews around. Also, be sure to check out the next file, which is a request from CPSR for information on victims of Operation Sun Devil. ------------------------------ Date: Tue, 24 Sep 1991 13:37:21 EDT From: Craig Neidorf Subject: File 2--WANTED: TARGETS OF OPERATION SUN DEVIL Contact: Craig Neidorf and David Sobel (Computer Professionals for Social Responsibility) Computer Professionals for Social Responsibility (CPSR) is pursuing a lawsuit against the Secret Service seeking the release of information concerning Operation Sun Devil. In recently filed court papers, the agency claims that the information cannot be disclosed because, among other reasons, disclosure would violate the privacy of those individuals who are the targets of the investigation. This argument can be overcome if CPSR obtains signed releases from those individuals. CPSR is requesting the cooperation of anyone who was the subject of a Sun Devil raid on or about May 7, 1990. We are prepared to enter into an attorney-client relationship with individuals responding to this request, so that confidentiality will be assured. Please respond ASAP to: David Sobel CPSR Legal Counsel (202) 544-9240 dsobel@washofc.cpsr.org ------------------------------ Date: Mon, 9 Sep 91 17:54:53 PDT From: jmcmullen@well.sf.ca.us Subject: File 3--BBS Services Fight NY "Download" Tax (Newsbytes Reprint) BBS SERVICES FIGHT NEW YORK STATE "DOWNLOAD" TAX 09/09/91 ALBANY, NEW YORK, U.S.A., 1991 AUG 09 (NB) -- New York State Bulletin Board System Operators (sysops) have banded together to attempt to roll back legislation that imposes a requirement on sysops to collect New York State Sales Tax on software downloaded by users of their systems. The legislation, enacted as part of the New York state budget agreement (Senate bill #6079, Assembly #8491), went into effect on September 1st and, according to the understanding of an organization of New York sysops (NYBBS), requires sysops to remit to New York State sales tax on any software downloaded. It is the understanding of this group that the tax requirement includes not only commercial software but also "shareware" and public domain software (in the case of public domain software, the sysop is required to estimate the "value" of the software and then remit applicable tax). The tax remission requirement is said by NYBBS to be in effect for the sysop whether or not the downloader ever pays for the software. Tony Mack, a sysop in the Albany area, told Newsbytes that 31 sysops met on Saturday, September 7th with legislatures attempting to reach agreement on modifications. Mack said that the legislators, Assemblyman Paul Tonko (D - 105th Dist) and James Tedisco (R - 107th), told the group that they believed that exemptions could be made for BBSs that did not accept donations of any type and imposed no restrictions on downloading such as "upload/download ratios" or membership requirements. Mack said that the compromise was unacceptable and pointed to the fact that many BBS accept donations simply to pay for Usenet charges and equipment upgrades. Jack Brooks, sysop of New York City's Dorsai Embassy, agreed with Mack, telling Newsbytes "Dorsai charges users of our Usenet interface $25 a year. This charge is an attempt to offset our monthly payments for the Usenet feed and, quite frankly, it doesn't cover it so we still have to make it up from our own pockets. This law is absurd and must be repealed. Brooks said that Dorsai has issued a public statement on the issue and is asking its users to bring appropriate political action to repeal the regulation. The statement says, in part, "It is the policy of The Dorsai Diplomatic Mission to oppose any and all legislation that would diminish and hamper the goals, continued operation and successes of the telecommunications community at large. Such an act is New York State Senate Bill #6078 and Assembly Bill #8491 sections 154, 155, 156, and 157 These statues would destroy the free exchange of information, ideas and public domain software guaranteed by the Constitution." The BBS of the New York Amateur Computer Club (NYACC) also responded to the regulation with a message from sysop Hank Kee, saying, in part, "This is an ill advised law that muzzles the free flow of electronic information. This bill needs to be repealed. If not, I will forced to inhibit all file transfer activity on this BBS." NYACC distributes, through its BBS, the PC Blue Library, a multi-hundred volume library of MS-DOS public domain and shareware software. Mike Godwin, in-house counsel of the Electronic Frontier Foundation, told Newsbytes that Kee's notification that file transfer activities may be terminated is an example of the effect that the tax requirement will have. Godwin said "I think that this kind of ill-conceived law is very likely to impose a chilling effect on the exercise of the rights of BBS users to communicate and share free software." Godwin continued "It's as if you had to charge a sales tax whenever a neighbor brings a cup of sugar to someone's door. We (EFF) strongly recommend that the officials responsible for both this law and its interpretation reconsider this action." Officials at GEnie and CompuServe were unavailable for comment on how the legislation might impact their services within New York State. (Barbara E. McMullen & John F. McMullen//19910909) ------------------------------ Date: Wed, 11 Sep 91 12:21:12 PDT From: 476.SANDMEN%mysys.comp.pt@uunet.uu.net Subject: File 4--New York Tax Law and Commentary by Tony Mack ((This has appeared in a number of places, and we thought you might be interested if you haven't seen it already. Sandmen)). ++++++++++++++++++++++++++++++++++++++++++++++++ Commentary: (from Tony Mack) As an active member of NYBBS, I have sent to this system, a copy of the laws which were passed into law, with the GREAT BUDGET DEBATE of 1991, where we became a national disgrace by passing a budget the latest ever in the history of the nation. In brief summary, the law which stands, says that a SysOp that allows the transfer of software from his BBS, is in violation of the NYS Tax and Finance Law, and is subject to substantial fines, and penalties. NYS has begun taxing software based on the "value" of the software, regardless of the authors asking price, on PD or FW software. As a member of NYBBS, I am adamently opposed to this taxation, as we (sysops) receive no compensation for our efforts, let alone receive "registration fees" for PD software downloaded from our BBS's. This matter was brought to my attention through Martin Winter, NYBBS President, in Albany NY. I immediately contacted several local assemblymen, who claimed to not understand what I was talking about. I explained the theory behind hobby BBS's, and they seem to now see our point. NYS Tax and Finance, has graciously (!) come up with a compromise, which to me is completely unacceptable. They say, that if you accept remuneration for the downloads (via POST per Call Ratios, Upload/DownLoad Ratios, or donations to the BBS), you will be subject to taxation. To further implicate the situation, We have been informed by NYTel, that upon receipt of a Tax Certificate, we will then be considered a BUSINESS in this state, and they MAY institute Commercial rate structures for Hobby BBS's. This situation has got to be curbed prior to it getting completely out of hand. Therefore, I appeal to all of you, Write your local Assemblymen, Senators, that have seats in Albany.... Tell them that you are totally disgusted with the wording of this bill, and their "Compromise", and you wish a COMPLETE Exemption for (at the minimum, ) HOBBY BBS's.... That may accept donations, and have certain ratio's in place. I thank you for your time, and I especially thank you for your cooperation in this matter. Special thanks to your SYSOP for allowing me to post these items that require IMMEDIATE ATTENTION! Anthony Mack +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Senate #6079 Assembly #8491 For the purpose of this transposition, $ will indicate SECTION NUMBER, as referred to in the original documentation. $154. Paragraphs 5 and 6 of subdivision (B) of section 1101 of the tax law, as added by chapter 93 of the laws of 1965, are amended to read as follows: (5) Sale, selling or purchase. Any transfer of title or posession or both, exchange or barter, rental lease or license to use, or consume (including, with respect to computer software, merely the right to reproduce), conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable under this article, for consideration or any agreement therefor. (6) Tangible personal property. Corporeal personal property of any nature. However, except for purposes of the tax imposed by subdivision (b) of section eleven hundred fice, such term shall not include gas, electricity, refrigeration, and steam. Such term shall also include prewritten computer software, software, whether sold as part of a package, as a separate component, or otherwise, and regardless of the medium by means of which such software is conveyed to a purchaser. $155 Subdivison (b) of section 1101 of the tax law is amended by adding a new paragraph (14 to read as follows. (14) Prewritten computer software. Computer software (including prewritten upgrades thereof) which is not software designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two or more pre-written computer software programs or prewritten portions thereof does not cause the combination to be other than prewritten computer software. Prewritten software also includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to a person other than such purchaser. Where a person modifies or enhances computer software of which such person is not the author or creator, such person shall be deemed to be the author or creator only of such persons modifications or enhancements. Prewritten software or a prewritten portion thereof that is modified or enhanced to any degree, where such modification or enhancement is designed and developed to the specifications of a specific purchaser, remains pre-written software; provided, however, that where there is a reasonable, seperately stated charge or an invoice or other statement of the price given to the purchaser for such modification or enhancement, such modification or enhancement shall not constitute prewritten computer software. $156 Subdivision (a) of section 1115 of the tax law is amended by adding a new paragraph (28) to read as follows: (28) Computer software designed and developed by the author or creator to the specifications of a specific purchaser which is transferred directly or indirectly to a corporation which is a member of an affiliated group of corporations within the meaning of subparagraph six of this paragraph (b) of subdivision seventeen of section two hundred eight of this chapter except for clauses (ii) and (iii) of such subparagraph that includes such purchaser or to a partnership in which such purchaser, or to a partnership in which such purchaser and other members of such affiliated group have at least a fifty percent capital or profits interest (but only if the transfer s not in pursuance of a plan having as its principal purpose the acoidance or evasion of tax under this article), but in no case including computer software which is prewritten, as defined in paragraph six of subdivision (b) of section eleven hundred one of this article and available to be sold to customers in the ordinary course of the sellers business. $157. Section 1115 of the tax law is amended by adding a new subdivision (o) to read as follows: (o) Services otherwise taxable under subdivision (c) of section eleven hundred five or under section eleven hundred ten shall be exempt from tax under this article where performed on computer software of any nature;provided, however, that where such services are provided to a customer in conjunction with the sale of tangible personal property any charge for such services with the sale of tangible personal property any charge for such services shall be exempt only when such charge is reasonable and separately stated on an invoice or other statement of the price, given to the purchaser. These are exact translations of the original laws that were passed during the Great Budget debate of 1991, as adopted by all legislators, assemblymen, senators, and our infamous Governor, Mario Coumo. ------------------------------ Date: Fri, 14 Sep 91 19:31: 21 CDT From: jmcmullen@well.sf.ca.us Subject: File 5--Confusion Reigns on NY Download" Tax (Newsbytes Reprint) CONFUSION REIGNS ON NY STATE "DOWNLOAD" TAX 09/12/91 NEW YORK, NEW YORK, U.S.A., 1991 SEPT 12 (NB) -- On the day that the New York State was to begun to enforce a tax law supposedly requiring sysops to remit taxes on the downloading of software from computer bulletin board systems, strong doubt arose that the law was ever intended to have that result and will ever be so interpreted by the NYS Dept. of Tax and Finance. Lance Rose, an attorney with strong interests in BBS communications, reported that he had contacted Paul Rickard, director of the NYS Department of Tax and Finance, and received assurances that there was no intent to require that true hobby boards (those which do not claim tax deductions due to BBS operation) remit sales tax on software downloads. The tax change, according to Rose's understanding from Rickard, was actually aimed at plugging a loophole surrounding those products built around previously existing software. Rose also pointed out that BBSs have been subject to sales taxes as information services for years, under Section 1105(c)(1) of NYS's tax law although most, if not all, did not actually pay the tax. Rose suggested that BBS operators attempt to have the law changed to provide them with the same exemption that newspapers and periodicals enjoy. Meanwhile, other interested parties have told Newsbytes that they have called underlings in the Dept. of Tax and Finance and received conflicting information. Members of the Albany, NY BBS group, NYBBS, that originally took notice of this legislation and raised a public cry over it through calls to the media and postings on CompuServe, have reported meetings with officials in which they were told that their understanding of the BBS liability was correct and would be enforced. Emmanuel Goldstein, editor and publisher of 2600: The Hacker Quarterly, in his weekly New York City radio show. "Off The Hook", exhorted listeners to contact their state legislators and make their feeling known about such a tax. Goldstein later told Newsbytes that, while he hoped that Rose's understanding was correct, "We won't really know until we have a complete copy of the bill available for all and a public statement from the head of the tax bureau specifying the interpretation on which the authority will proceed." Appearing on Goldstein's show, Charles Rawls and Jack Brooks, sysops of New York City's "Dorsai Diplomatic Mission" said that, in the event of a worst case interpretation, that they would continue their operation as is and hope to be a test case. Rawls further said that any BBS which felt that it should suspend its downloading operation was welcome to transfer its libraries to Dorsai who would serve the BBS' users until such time as the BBS was ready to resume normal operation. Dave Burstein and Hank Kee, hosts of WBAI's "The Computer Show" also reported receiving conflicting information and suggested that concerned parties contact their state representatives and request information while informing the representative of their opposition to any form of BBS interference. Kee, sysop of the New York Amateur Computer Club (NYACC)'s BBS, said that under the definition that he had received of an exempt "hobby BBS", NYACC was exempt from any requirements in this matter and, after posting a message identifying it as a completely not-for-profit system, would continue normal operation. Both radio shows received numerous calls concerning this issue with some callers expressing conspirational theories with such persons or groups as New York Telephone Company, commercial systems such as CompuServe and GEnie, anti-BBS government groups and New York Governor Mario Cuomo emerging as the villain behind a crackdown on BBSs. (Barbara E. McMullen & John F. McMullen/Press Contact: Carl Felsen, New York State Dept. of Taxation, 518-457-4242/19910912) ------------------------------ Date: Thu, 19 Sep 91 11:31:18 PDT From: jmcmullen@well.sf.ca.us Subject: File 6--Confusion unfolds on NY "Download" Tax (Newsbytes Reprint) CONFUSION UNFOLDS ABOUT NYS "BBS TAX" 09/17/91 ALBANY, NEW YORK, U.S.A., 1991 SEP 17 (NB) -- Some of the conflicting stories concerning the recently implemented New York Tax modifications were "put to bed" as a result of conversations between Newsbytes and sysops Marty Winter and Tony Mack. Mack, originally quoted by Newsbytes and other publications, concerning a supposed Saturday, Sept. 7th meeting between 31 Albany area sysops and two legislators, Assemblyman Paul Tonko (D - 105th Dist) and James Tedisco (R - 107th), said that there must have been some miscommunication as he actually had not attended the meeting. He did say, however, that he had been told that Tedisco and Tonko had been part of the meeting and had proposed a compromise concerning the way the law will be enforced. Newsbytes was told by Assemblyman Tonko's office that Tonko had neither attended a meeting on Sept. 7 nor offered any compromise. A subsequent call to Tedisco's office received the same response. The assemblymen's offices were also contacted by Newsbytes reader Paul Eng who raised the question as to whether all parties were being truthful about the matter. Sysop Marty Winter, chairman of NYBBS, an amalgamation of Albany BBSs, told Newsbytes that he did attend the Sept. 7th meeting and commented "There were 16 sysops and the meeting and, contrary to what Tony said, there were no legislators. We did have material provided by legislative offices for review and we have been in constant connection with the Dept. of Taxation on this matter." Winter continued "NYBBS is a group of sysops and users, formed initially a few years ago when a bill introduced by State Senator John Dunne threatened the rights of computer users. We were successful in opposing that legislation and, since then, have continued to attempt to educate users and legislators concerning computer matters. We keep a close watch on new legislation and normally would have picked up this tax problem soon but the amendments involved were all over the place in the tax code.." NOTE: the text of the amendments were posted on bulletin boards in the Albany & New York City area by Mack and are available for reading on the Dorsai Diplomatic Mission (212 431-1944, 1948,1950). Winter said that he agrees with others that there is no immediate threat to BBS activities from the new law and feels that the community to direct its attention to obtaining the same exemption from the tax on information services that newspapers and periodicals have. Winter and Mack are also complainants in a case involving the alleged attempts by a 16 year old to "trash" local BBSs. Winter told Newsbytes that someone uploaded a file that, when "unzipped" attempted to erase the CMOS section of a computer, "The only effect on my board since I have an 8088 non-CMOS system was the constant hanging of my Virex program. I have not really had any contact with the case since filing the complaint." Mack had previously told Newsbytes that, upon his filing of a complaint in this action, he has become the source of harassment and that his home has been vandalized and burglarized. Winter told Newsbytes that he had heard of the reported incidents but had not been to Mack's house to witness the reported damage. Another Albany area sysop, speaking to Newsbytes under the promise on anonymity, said "Albany has, for the last few years, been the scene of some pretty nasty BBS stuff with systems being trashed and heavy 'flames' and threats being exchanged in the community. I know the 16 year old and, while I don't think that he has completely clean hands, I don't think that his actions were much worse than other things done in the area. I don't know Winter but I have heard good things about him. I, however, tend not to believe the tales about burglaries and would have to see the evidence of vandalism to be convinced." (Barbara E. McMullen & John F. McMullen/Press Contact: Joel Ford, New York State Dept. of Taxation, 518-438-8581; Marty Winter, NYBBS, 518-436-0581/19910917) ------------------------------ Date: Mon, 16 Sep 91 22:02:09 PDT From: elrose@well.sf.ca.us Subject: File 7--Clarification of NY BBS Law I talked today to Paul Rickard, director of the NYS Dept. of Tax and Finance (and, BTW, personally familiar with BBS's and shareware). Here's what seems to have happened: BBS's have been subject to sales taxes as information services for years, under Section 1105(c)(1) of NYS's tax law, though few if any paid these taxes. Recently, there was a change in the NYS tax laws relating to "prewritten software". The purpose of the change was to enable the state to assess sales taxes on transactions where prewritten sw was slightly customized by the vendor, then claimed to be "custom" and thus not covered at all by the tax. Under the tax law change, where sw is partially custom and partially prewritten, sales tax will apply to the prewritten portion. As is its custom, the NYS tax dep't. mailed out notice of this change to the "prewritten software" definition to all people and businesses that were listed in its recordkeeping system as possibly interested in the law. Among the recipients were BBS's - the tax dep't. files such operations as "computer-related", thus they are mailed all computer-related tax changes. This was notice N-91-34, dated July, 1991. Some sysops, reading the prewritten software provisions, became alarmed at the language stating that all "transfers of possession" of software would be taxable. They inferred that since they received this notice in their capacity as BBS's, the prewritten sw law must apply to all BBS software transfers. When some of these sysops called the state tax department in response to the notice, and asked if their BBS file transfer operations were taxable, they were told these operations were taxable. However, the tax department taxes those operations as a tax on information services under 1105; it does not take the position that file transfer operations (except those that are clearly sw sales or license in the colloquial sense) invoke sales taxes under the prewritten software law. Note that this information services tax covers not only file transfers, but *all* transfers of information of any kind. It's far, far broader than a program file transfer tax. Essentially, it seems there were a number of fortuitous coincidences leading to the current panic: (1) BBS's were specifically selected to receive notice of the prewritten sw law changes based on their general classification as computer-related businesses, (2) the language of the prewritten sw law contained in the notice was broad enough to look like it might apply to all BBS program file transfers, and sysops naturally assumed that being sent such a notice meant it was thought to apply to their BBS operations, and (3) when sysops called the NYS tax people to inquire about the law described in the notice, the tax dep't. confirmed their taxability, but under a different tax section - but the difference in the exact tax sections involved was never made clear! Some further items. First, I'm told an ex parte seizure of BBS's, w/o hearings or proceedings, was not and is not contemplated. Second, this is how the "hobby board" exception will be treated - if a BBS does not charge money or other substantial consideration, and does not claim "business losses" on their tax forms based on BBS costs, it can be considered a hobby board. But the sales tax people look at claiming BBS losses as "profit or loss from a business" as a conclusive admission by the taxpayer that he's running a business, not just pursuing a hobby (BTW, that reasoning doesn't bother me). BUT, this leaves a much bigger question unanswered: the validity of a tax on information services. The tax laws specifically exempt newspapers and periodicals, and certain radio and television-related services, from sales or service taxes, clearly on freedom of speech grounds. BBS's don't get this presumption under the laws - their services are fully taxable. This is not the fault of the tax dep't., but the legislature. It's probably not even the legislature's fault - the growth of information services has been rapid and recent, and not brought to legislators' attention. Nonetheless, the tax laws should be changed to exempt BBS's and othe information services, for the same reasons newspapers, etc., are currently exempt - on the ground of protecting freedom of speech. ------------------------------ Date: Wed, 18 Sep 91: 23:19:29 PDT From: 72187.8118@COMPUSERVE.COM Subject: File 8--Summary of Significance of NY "BBS Download Tax" (reprint) Originally posted on comp.org.eff.talk, where there has been considerable discussion. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ From: halcyon!walter@seattleu.edu Subject: NY Tax on NY BBS Community? Date: 17 Sep 91 19:03:43 GMT I had what will probably be my last contact with the New York state Department of Taxation & Finance yesterday James W. Morris -- a Regulations Specialist in the Instructions and Interpretations unit of the Sales Tax Section of the New York state Department of Taxation and Finance. At the outset, I wish to stress that information, henceforth, is available from T&F by calling T&F at 518-438-8581 and asking for the sales tax section, or by calling 1-800-CALLTAX if you are a resident of New York state. 1-800-CALLTAX is NOT a line where lengthy Q&A is appropriate. You ask short questions and receive similar answers. In most cases, telephone response, of a more detailed nature, is provided via callback from appropriate personnel. My conversation with Morris was quite lengthy --somewhere in the vicinity of an hour or so. It is my intuition that Morris was willing to spend that much time with me in order to provide information that I could disseminate and thereby moderate the plethora of phone calls and mail coming into T&F concerning the alleged "download tax". The following items are what we covered during our conversation. 1. Of paramount importance, from Morris' perspective, is the level and quality of response to the new sales tax codes which were effective on 9-1-91. Morris pointed out that it is quite possible T&F personnel could have asserted a wide range of circumstances, applicable to the new sales tax codes, depending on how well people framed their questions. In other words: if a SysOp did not accurately and completely describe how his system functions, he/she may have been given an inaccurate or incomplete response by T&F personnel. 2. AT THE PRESENT TIME, upload/download ratios do NOT determine whether a BBS operator is engaging in taxable activities. HOWEVER, since this is considered a form of barter -- at least from Morris' point of view -- he could provide no guarantee that the current status of upload/download ratios, as to taxable activity, might not change in the foreseeable future. The new tax codes support an interpretation that would allow taxation of the exchange of ANY software having financial worth, or of an exchange where one must do something of taxable worth in exchange for something of taxable worth. This could especially impact subscription system, but not necessarily exclude free access systems, in respect to value-added information services where you add to the overall value or financial worth of a system by enhancing its collection of software available for download, and are compensated for adding value by gaining access to more files proportionate to the amount of material you upload. This concept, by they way, need not apply to software alone, according to Morris. In order to GUARANTEE that taxation will not occur in scenarios of the future where systems maintain an upload/download ratio, new legislation in New York state will be necessary. 2. Morris has no personal knowledge of anyone calling electronic bulletin board systems to verify compliance with the new tax codes in effect as of 9-1-91. Morris was quick to add that the New York State Department of Taxation & Finance is a large agency with over 6,000 employees and many bureaus that do not necessarily acquaint each other with ALL of their activities. Thus, another bureau might engage in activities Morris wouldn't know about for weeks or months. Morris, however, informed me that T&F's computer facilities are a closed system. Access to the outside world via modem is assigned to a select few who have desktop PCs. Modem use is a tightly controlled privilege as well. 3. Morris is personally unaware of any intent to seize electronic bulletin board systems not in compliance with tax codes in effect as of 9-1-91. The same qualifier as to the activities of other bureaus mentioned in item #2 applies here as well. Morris indicated that it is HIGHLY unlikely any seizures of electronic bulletin board systems could have taken place in the near future, and certainly not within 8 days of the codes taking effect, in that normal due process would prevent such lightning summary action. 4. Morris is personally unaware of any letters of complaint or petitions that might have been filed by the organization NYBBS in order to prevent implementation of new sales tax codes in effect as of 9-1-91, or to request a new interpretation of new sales tax codes in effect as of 9-1-91. Again, Morris indicates that he is not aware of all or much of the correspondences from and to individuals or organizations external to T&F. With this last report, I'm leaving any further activities to others in a better and more appropriate position to deal with relevant issues in New York state. I hope that people in New York will research this further and keep us posted. Thanks. Walter Scott ------------------------------ End of Computer Underground Digest #3.34 ************************************

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