This post helps explain how Minnesota sales and use tax applies to sales of photography, and to purchases made by photographers. These guidelines also apply to video production. This post is intended to help you become more familiar with Minnesota tax laws and your rights and responsibilities under the laws. This is based on Minnesota tax law, administrative rules, court decisions, and revenue notices. You should meet with an experienced Minnesota tax lawyer before attempting to handle any issues related to tax law.
Table of Contents
Taxable products include:
Examples of taxable photography:
- aerial photography
- architectural photography
- model portfolios
- passport photos
- photos at amusement parks
- sports events,dances, with Santa, etc.
- photo booth sales photography sold for use
- in non-taxable services such as web page design
- school pictures
- videotaping an event
Taxable components of sales price
All costs in the production of photography are taxable. Below are examples of things that become part of the final price of the photo and are taxable, even when separately stated on the customer’s invoice:
- delivery charges
- equipment rental
- prop fees
- travel expenses (including taxes paid)
Sales or use tax applies to charges for the following types of transactions:
- license to use
- photo bank charges
- retake charges
- stock photography charges
Beginning July 1, 2013, Minnesota sales and use taxes apply to sales and the granting of a right to use for a consideration of “specified digital products” and “other digital products” transferred electronically on a temporary or permanent basis.
Sitting fees, either in studio or on location, are taxable if the customer buys the photographs. If the customer rejects the photos or never takes possession of them, the sitting fee is not taxable because there is no taxable sale of photography.
A manufacturer hires a commercial photographer to take photos of their facilities located throughout the United States. The photos will be hung in the lobby of corporate headquarters in Minnesota. The photographer must charge tax on the total selling price of the photos, including all expenses such as airfare, meals, hotel rooms, film, processing, etc.
A company needs product photos to display at their annual dealers meeting. A photographer is hired, takes pictures, and sends several proofs to the company for selection and approval. Some proofs are transferred electronically, some are sent by messenger. The photos are finished and delivered to the company in Minnesota. The entire selling price of the final photos is taxable, including all charges for proofs, regardless of how they are transferred to the customer.
A wedding photographer rents lighting equipment to get a special effect at a photo shoot. This rental fee is passed on to the customer as a separate item. The rental fee is part of the total selling price of the photos and is taxable (unless a particular exemption applies).
Photography used in advertising is generally taxable. See Sales to advertising agencies on page two for guidelines.
If you sell or lease equipment or other items that were used in your business, the sale may be taxable. For additional information, see Occasional Sales of Business Equipment and Goods.
Customers claiming exemption from sales tax must give the photographer a properly completed Form ST3, Certificate of Exemption, indicating the correct exemption code.
Photography used in industrial production is exempt if the customer gives the photographer an exemption certificate. Examples include photos used in package or product design and product instructions.
Photographic products purchased for resale are exempt if the customer gives the photographer an exemption certificate.
Photography is exempt if it is used in publications that are regularly issued to the general public at least four times a year. Examples of exempt publications include newspapers, newspaper inserts, magazines, newsletters, annual reports (if quarterly reports are issued), catalogs, bulletins, circulars and flyers. The customer must give the photographer an exemption certificate to claim exemption.
Photography used in the production of TV commercials has been exempt since July 1, 1999. The exemption includes rentals of cameras and other equipment used in preproduction or production. Purchases of equipment are taxable. A producer must give an exemption certificate to purchase photography or rent equipment exempt from tax. For more information, see Fact Sheet 163, TV Commercials.
Delivered outside Minnesota
Photography sent or delivered to a customer outside Minnesota is exempt. No exemption certificate is required; however, records must indicate that the items were shipped to a customer outside Minnesota. Tax may be due in the state of destination depending on the other state’s tax laws.
Direct pay numbers
Some companies have permission to make purchases of goods exempt from sales tax. They are required to remit use tax directly to the state. These customers must give the photographer an exemption certificate that includes the direct pay number issued to them by the Department of Revenue. They may not buy services using this number. Qualifying nonprofit organizations must give the seller an exemption certificate to claim exemption.
Sales to governments
The federal government and its agencies can buy goods and services exempt from sales tax. For more information about sales to the federal government, and sales to state and local governments, see Fact Sheet 142, Sales to Governments.
Sales to advertising agencies
Photography sold to an advertising agency in tangible form is taxable unless the agency provides a properly completed exemption certificate. If the photo is transferred to the customer electronically, no tax is due. See Electronic delivery in the previous column. If an agency uses a photo in nontaxable advertising services such as brochures or posters, or to develop a web page, the photo is taxable. Photos are exempt when purchased by an agency for use in:
- an exempt publication, such as a newspaper or magazine ad
- the design of packaging material or instructions for a product that will ultimately be sold at retail
- specialty advertising such as mugs or calendars that will be sold to clients
- developing training manuals or videos to be resold to clients
Sometimes photography has both taxable and exempt uses. An ad agency may give a photographer an exemption certificate to show that they will be using photography for multiple purposes. This puts the responsibility on the agency to self assess use tax on the photography that is put to a taxable use, and the photographer should not charge any sales tax.
Percentage exemption not allowed for photography. An advertising agency may not issue an exemption certificate to claim exemption on a percentage of their purchase of photography used to produce nontaxable advertising sent out of state. Since the photo itself does not leave the state, but rather reproductions of the photo, it is one hundred percent taxable in Minnesota.
When an ad agency contracts to use stock photography, each contract is considered separately. For example, if an agency contracts to use stock photography for use in a newspaper ad, it is exempt since the newspaper is an exempt publication. If some time later, the agency contracts to use the same photo in an advertising brochure, the charge is taxable. The sale of photography to an ad agency for its own use is taxable. A photographer may act as an ad agency if he/she works directly with the advertiser and bills the advertiser directly. The sales invoice given to the client must indicate that it is for creative advertising/promotional services. For instance, a photographer may be hired by the advertiser to produce a promotional poster—the photographer does the original concept through the entire production process. In this case, the photographer is acting as an advertising agency and is selling a nontaxable advertising service. The photographer does not charge the advertiser sales tax on the service but must pay tax on all inputs used to produce the poster. Use tax is owed on the cost of materials used to produce the poster if the items were originally purchased exempt.
Items used or consumed in producing photography that will ultimately be sold at retail in a tangible form can be purchased exempt. Items such as film, chemicals, paper and ink cartridges for printing photos, props used once (perishable), fuel used in production, flash bulbs, and other consumables used in the production process may be purchased exempt from tax by giving the supplier an exemption certificate. (Note: If the photos are transferred electronically to the customer, the above exemption does not apply.) If a photographer also does film processing, the “store envelopes” used by the customer to provide instructions for film processing and the tearaway claim check are also exempt.
All purchases used for administrative, record keeping, inventory control or tracking purposes are taxable. Equipment. Sales or use tax must be paid on the purchase or rental of all equipment, tools, and furniture. However, a capital equipment refund may apply to production equipment. See the next section entitled Capital equipment refund. Props. Props and sets used to produce photography sold at retail are taxed as follows.
- Props and sets purchased but only used once and disposed of are consumed in industrial production and are exempt. The photographer gives the vendor an exemption certificate.
- Props and sets purchased and kept for future use are taxable. However, a capital equipment refund may apply (see Capital equipment refund).
- Props and sets that are rented or leased are taxable. However, a capital equipment refund may apply (see Capital equipment refund).
- Props and sets purchased or rented for photography that is transferred electronically to a customer are taxable, since photos transferred electronically are not sales of tangible goods. No exemptions apply.
Exception for TV commercials
Equipment and props rented for use in preproduction or production of TV commercials are exempt. A purchaser must give the rental company an exemption certificate.
Photographers must pay tax on purchases of transportation, meals and lodging. These items may not be purchased exempt for resale, even when invoiced to a customer as part of the charge for taxable photography.
Capital equipment refund
Photographers may claim a refund of sales or use tax paid on purchases or leases of capital equipment and its repair or replacement parts. To qualify, the equipment must be primarily used in Minnesota to manufacture or fabricate tangible personal property to be sold ultimately at retail. Examples of equipment that may qualify include:
- posing equipment backdrops
- processing equipment lighting equipment printing equipment
- production computers
- and software
- accessories and attachments to production equipment
The capital equipment refund is not allowed for equipment used primarily to produce photography that is electronically delivered to a customer, or to provide advertising services. Furniture, lighting, computers, printers and other equipment used for administration, tracking, or any use other than production, do not qualify for the capital equipment refund. To claim a refund on capital equipment purchases, complete a Capital Equipment Refund Claim, Form ST-11, and provide the documentation requested on the form. For more information, see Fact Sheet 103, Capital Equipment.
The use tax (state and local) complements and is similar to the sales tax and the rates are identical. Use tax applies when you buy taxable items or services, either in or outside of Minnesota, for use in your business without paying sales tax to the vendor. For example, if you buy a camera from a mail order company or over the Internet and the seller does not charge sales tax, you must pay use tax. Other items commonly purchased that are subject to use tax if sales tax was not paid at the time of purchase include computer hardware and software, office supplies, and business furniture, fixtures, and decorations. For more information, see Fact Sheet 146, Use Tax for Businesses. Report state and local use tax electronically at the same time you file your sales tax.
Local sales and use taxes
The Minnesota Department of Revenue administers and collects local taxes on behalf of several local governments. All local taxes are in addition to the state sales and use tax. Local taxes are listed and explained in more detail in Fact Sheet 164, Local Sales and Use Taxes.
Minnesota Statutes section 297A.61, Subd. 7, Sales price Minnesota Statutes section 297A.68, Subd. 2, Materials consumed in industrial production Minnesota Statutes section 297A.68, Subd. 10, Publications; publication materials Minnesota Statutes section 297A.68, Subd. 11, Advertising materials Minnesota Statutes section 297A.68, Subd. 30, Television commercials Minnesota Rule 8130. 0700, Producing, fabricating, printing, or processing of property furnished by consumer Minnesota Rule 8130.8800, Commercial artists and photographers Minnesota Rule 8130.9250, Advertising Other fact sheets that may be of interest Advertising-Creative Promotional Services, #133 Capital Equipment, #103 Industrial Production, #145 Local Sales and Use Taxes, #164 Occasional Sales of Business Equipment and Goods, #132 TV Commercials, #163 Use Tax for Businesses, #146