Business Law Blog

Retroactive changes to the Provincial Sales Tax Act (British Columbia) (the “PSTA”) were announced February 22 by the BC Government in its 2024 budget. Should the enacting legislation^[1] receive royal assent, the changes will be effective as of April 1, 2013.

The most impactful changes would be:

1. A retroactive expansion of the applicability of the PSTA that imposes a requirement on purchasers to pay PST on the purchase price of software acquired for use in BC; and
2. An expanded definition of “software” for purposes of the PSTA.

The BC Government’s stated purpose for the above changes is clarification of what is meant by “software” for PSTA purposes and is meant to be in accordance with the Government views and intentions set out in PST Notice 2023-005 (the “Notice”).^[2] However, the amendments broaden the software definition and, in doing so, upend the 2023 Hootsuite decision.^[3]

In Hootsuite, the Court held that the purchases of AWS direct connect, Amazon Elastic Compute Cloud and Amazon Simple Storage Services were not taxable for the following reasons:

1. The fundamental purpose of the purchases was not to purchase software. For AWS direct connect, the purpose was to obtain technical expertise and for the cloud computing services it was to obtain on-demand infrastructure as a service.^[4]
2. The software involved was not accessible or modifiable by the user and, as such, was not a “software program”.
3. Even if it was a “software program”, there was no direct interaction required with the software program and so it was not “used” in BC.
4. Even if the software program was being “used” in BC, the software program would not be a “sale” under the act as the software program was incidental to the fundamental purchase.

Proposed Changes Expanding Breadth of the PST on Software

The BC Government proposes numerous amendments to the PSTA, under which Hootsuite would likely have been decided differently. Specifically, the definition of “software” would be amended to include:

1. Coded instructions or a right to use coded instructions designed to cause an electronic device to perform a task;
2. Infrastructure as a service^[5] (IaaS);
3. Software as a service^[6] (SaaS); and
4. An application programming interface (an API).

Additionally, the definition of software in the PSTA is modified to be defined inclusively; this adds significant uncertainty in determining what is or is not software.

Further amendments throughout the PSTA broaden the circumstances in which purchasers of software will be required to pay PST, whether or not such PST is charged by the vendor. For example, by circumstantially requiring payment of PST when software is used through an electronic device.

Retroactive Legislation

The Supreme Court of Canada has held that Parliament and legislatures are allowed to retroactively change tax legislation.^[7] That doesn’t mean they should. It upsets the rule of law, creates uncertainty in budgets and can lessen the value of the judicial system. However, retroactive taxation has been an increasing trend at both the national and provincial level.

We expect that the BC government will simply administer the PSTA as if the Hootsuite decision had not occurred in accordance with the Notice and the PST Bulletins referenced therein. Nonetheless, the above described amendments would appear to be broader than is strictly necessary to overturn the Hootsuite decision.

For any inquiries regarding this topic, please contact Max Walker, Chelsea Colwill or any member of Lawson Lundell’s Tax Group.

^{[1] Bill 3, Budget Measures Implementation Act, 2014, 5th Sess, 42 Parl, 2024, (as passed by the House of Commons 13 June 2005).}

^{[2] British Columbia, Ministry of Finance, Notice to Providers and Purchasers of Cloud Software and Services, Notice 2023-005 (Provincial Sales Tax Notice).}

^{[3] 2023 BCSC 358.}

^{[4] The court defined “infrastructure as a service” as “where the cloud provides access to computational resources or data storage but the where a variety of applications can take advantage of this boost in hardware resources”.}

^{[5] Infrastructure as a service would be defined in the PSTA as including “access to computational services or the right to access computational services, including computing or processing capacity and electronic storage”.}

^{[6] Software as a service would be defined in the PSTA as including “software or the right to use software when possession of the software is maintained by the provider of the software or another person other than the person to whom the software is being provided”}

^{[7] British Columbia v Imperial Tobacco Canada Ltd, [2005] 2 SCR 473, at paragraphs 69 and 71.}