Is a fee for copying and providing a government agency's audio or video tape recording under the Texas Open Records Act subject to sales tax?

Plain-English summary

A taxpayer asked the Comptroller's Tax Administration Division about the tax treatment of charges for information distributed under the Open Records Act on audio or video tape. The information was provided when requested rather than on a recurring basis, and the charge to the requester was the same fee incurred to have the tape duplicated.

The Comptroller responded that these tape sales are considered sales of governmental records, and that the charge for such tapes is exempt under (former) Rule 3.341. The letter notes that its conclusion is rendered based on the facts submitted, and that other facts, though similar, may yield different results.

The file also carries a standing alert from the Comptroller's office: Rule 3.341, concerning Governmental Publications, Records or Documents, was repealed effective February 11, 2008, and its content was incorporated into subsection (h)(5) of Rule 3.322, concerning Exempt Organizations, effective July 19, 2011.

What this means for you

Government agencies charging for Open Records Act copies

If your agency provides audio or video tape copies of records in response to Open Records Act requests, and the fee you charge is simply the cost of duplicating the tape (not a recurring subscription or additional service charge), this letter treats that transaction as a sale of a governmental record rather than a taxable sale of tangible personal property.

Businesses or individuals requesting government records on tape

If you're paying a government agency a duplication fee to receive an audio or video tape record under the Open Records Act, this letter indicates that fee is treated as exempt from sales tax, at least under the facts described (a one-time request, and a charge equal to the actual duplication cost).

Accountants and tax professionals

Be aware that the specific rule this letter relies on, Rule 3.341, no longer exists in that form — it was repealed effective February 11, 2008, with its substance folded into Rule 3.322(h)(5) governing Exempt Organizations, effective July 19, 2011. Anyone relying on this 1995 letter today should check current Rule 3.322(h)(5) rather than citing the now-repealed Rule 3.341 directly.

Common questions

Q: Are all government document or record sales exempt from Texas sales tax?
A: This letter only addresses the specific facts presented: audio/video tape copies of records provided under the Open Records Act, requested on a non-recurring basis, where the charge equals the tape duplication cost. It does not state a rule for all government document or record sales generally.

Q: Is Rule 3.341 still in effect?
A: No. The letter itself carries an alert noting that Rule 3.341 was repealed effective February 11, 2008, and its content was incorporated into subsection (h)(5) of Rule 3.322 concerning Exempt Organizations, effective July 19, 2011.

Q: Can other taxpayers rely on this 1995 letter today?
A: STAR letters can generally be the basis of a detrimental reliance claim only for the taxpayer to whom the letter was directly issued, and this letter is now superseded by rule changes described in its own alert notice, so current guidance should be checked.

Citations and references

• Rule 3.341, concerning Governmental Publications, Records or Documents (referenced in the ruling text; repealed effective 02/11/2008)
• Rule 3.322(h)(5), concerning Exempt Organizations (per the letter's alert, now incorporates the content of former Rule 3.341, effective 07/19/2011)

Source

• STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
• Opinion: https://star.comptroller.texas.gov/view/9502L1345A11

Original ruling text

ALERT: Rule 3.341 concerning Governmental Publications, Records or Documents
has been repealed effective 02/11/2008. The content of Rule 3.341 has been
incorporated into subsection (h)(5) of Rule 3.322 concerning Exempt
Organizations effective 07/19/2011.

February 6, 1995

Dear **:

Thank you for your recent letter regarding the tax treatment of charges
for information distributed under the Open Records Act on audio or video
tape. The information is provided when requested rather than on a
recurring basis, and, the charge to the requester is the same fee
incurred to have the tape duplicated.

The tape sales are considered sales of governmental records. The charge
for such tapes is exempt under Rule 3.341. I am enclosing a copy for
your records.

This opinion is rendered based on the facts you submitted. Other facts,
though similar, may yield different results.

You may call me toll free at 1-800-531-5441, ext. 3-4680. The direct
line is 512/463-4680. You may also write to Tax Administration,
Comptroller of Public Accounts.

Sincerely,

Al Van Allen
Tax Administration Division

NOTE: Previous Accession Number 9502052L