
    WAL-MART STORES, INC. v. CITY OF MOBILE and County of Mobile.
    1941890.
    Supreme Court of Alabama.
    Nov. 27, 1996.
    Rehearing Denied April 18, 1997.
    John R. Bradwell and Laura L. Crum of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for Appellant.
    Wanda J. Cochran, Mobile, for City of Mobile.
    Florence A. Kessler, Mobile, for Mobile County.
   On Application for Rehearing

KENNEDY, Justice.

The opinion of September 13,1996, is withdrawn and the following opinion is substituted therefor:

The plaintiff, Wal-Mart Stores, Inc. (‘Wal-Mart”), appeals from a summary judgment entered in favor of the defendants, the City of Mobile, Mobile County, and others (collectively “Mobile”). At issue is whether computer software is intangible personal property. If it is, then Mobile is forbidden from collecting gross receipts taxes on computer software. The parties agree that Mobile has the authority to collect gross receipts taxes on sales of tangible personal property and that if computer software is tangible personal property, then it is properly included in the gross receipts calculations on which Wal-Mart is taxed.

Wal-Mart sued Mobile, seeking to enjoin it from collecting gross receipts taxes on sales of computer software by Wal-Mart. The trial court held that computer software was tangible personal property and entered a summary judgment in favor of Mobile. On appeal, Wal-Mart relies on State v. Central Computer Servs., Inc., 349 So.2d 1160 (Ala.1977), arguing that it stands for the general proposition that computer software is intangible personal property, and, thus, cannot be included in a gross receipts tax formulation.

In many jurisdictions, early cases held that computer software was intangible property. See, e.g., South Cent. Bell Tel. Co. v. Barthelemy, 643 So.2d 1240, 1244-45 (La.1994). Often, courts based their reasoning in part on “the idea that the information contained on the software[] is the product being sold” and that the choice of a tangible medium for conveying it was incidental to this fact — “that this information can be transmitted in many forms, including over the telephone.” Matter of Protest of Strayer, 239 Kan. 136, 716 P.2d 588, 591 (1986).

This reasoning appears to underlie this Court’s 1977 decision in Central Computer Servs., Inc., where the Court held that computer software was intangible property for purposes of a use tax on tangible personal property. The Court suggested that the buyer seeks the information, rather than the medium by which it is conveyed, and emphasized that the information is not dependent on a software-type medium to be conveyed— that it can be conveyed by several means, for example, by telephone. Also, the Court discussed then common software mediums and concluded that there was only an “incidental physical commingling of the intangible information sought ... and the tangible magnetic tapes and punched cards themselves.” Id. at 1162. Finally, the Court quoted District of Columbia v. Universal Computer Assocs., Inc. 151 U.S.App.D.C. 30, 465 F.2d 615 (D.C.Cir.1972): “ What rests in the machine [from the software] is an intangible — “knowledge” — which can hardly be thought to be subject to a personal property tax.’” Central Computer Servs., Inc., 349 So.2d at 1163.

Since the time of the Central Computer Servs. case, there has been a shift in the mew of many courts:

“[A]s computer software became more prevalent in society, and as courts’ knowledge and understanding of computer software grew, later cases saw a shift in courts’ attitudes towards the taxability of computer software, and courts began holding computer software to be tangible for sales, use and property tax purposes.”

Barthelemy, 643 So.2d at 1245.

One of the changes that has occurred in this state and elsewhere, which was perhaps not reasonably to be anticipated in 1977, is the proliferation of “canned” computer software, such as is sold by stores like Wal-Mart. As a practical matter, the marketing of such “canned” software presumes that the information sought will be conveyed by way of a tangible medium. In this sense, the merchandiser is making a sale of tangible property, like the sale of a book.

Similarly, we observe:

“The software itself, i.e, the physical copy, is not merely a right or an idea to be comprehended by the understanding. The purchaser of the computer software neither desires nor receives mere knowledge, but rather receives a certain arrangement of matter that will make his or her computer perform a desired function. This arrangement of matter, physically recorded on some tangible medium, constitutes a corporeal body.”

Barthelemy, 643 So.2d at 1246.

Based on the foregoing, we hold that the trial court properly entered the summary judgment in favor of the defendants. To the extent that Central Computer Servs. would dictate a different holding, it is overruled. However, we note that the Mobile ordinance taxing sales of computer software was adopted in 1993 and that until we issued our original opinion in this case on September 13, 1996, the ordinance conflicted with the law as it had been set out in Central Computer Servs. For this reason, we hold that our ruling in this case should have prospective application only, i.e., that Mobile cannot collect gross receipts taxes on sales of computer software that occurred before September 13, 1996.

OPINION OF SEPTEMBER 13, 1996, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

ALMON, SHORES, COOK, and BUTTS, JJ., concur.

MADDOX, J., concurs specially.

HOOPER, C.J., dissents.

MADDOX, Justice

(concurring specially).

I simply would note that I wrote a lengthy dissent in State v. Central Computer Services, Inc., 349 So.2d 1160 (Ala.1977), advocating that computer software be defined as tangible personal property for tax purposes. The holding here is consistent with that position.

HOOPER, Chief Justice

(dissenting).

Computer software is intangible personal property. This Court has previously so held. State v. Central Computer Servs., Inc., 349 So.2d 1160 (Ala.1977). The majority today states that the marketing of “canned” computer software “presumes that the information sought mil be conveyed by way of a tangible medium.” However, whether the software is “canned” or not, the purchaser is primarily buying the intangible knowledge on the software, and the software is incidental to the purchase. The fact that it is presumed that the information will be “conveyed by way of a tangible medium” does not make the purchase primarily one of tangible personal property. Alabama easelaw precedent has been based on whether the personal property is primarily tangible or is primarily intangible. Under Alabama case precedent, personal property does not have to be entirely intangible in order to be considered intangible. State Department of Revenue v. Kennington, 679 So.2d 1059 (Ala.Civ.App.1995).

The majority cites South Central Bell Tel. Co. v. Barthelemy, 643 So.2d 1240 (La.1994). However, the holding of the Louisiana Supreme Court in Barthelemy was based on the civil law viewpoint of that State regarding property. The basis of the holding was § 461 of the Louisiana Civil Code, which stated:

“Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
“Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property.”

Quoted at 643 So.2d at 1244. The Barthele-my court said:

“The term ‘tangible personal property’ set forth in the City Code, and its synonymous Civil Code concept ‘corporeal movable,’ must be given their properly intended meaning. Physical recordings of computer software are not incorporeal rights to be comprehended by the understanding. Rather, they are part of the physical world. For the reasons set out below, we hold the computer software at issue in this case constitutes corporeal property under our civilian concept of that term, and thus, is tangible personal property....”

643 So.2d at 1244.

The civil law does not determine whether a thing purchased is primarily tangible or primarily intangible. The civil law considers anything “tangible” that has any property. Adopting the logic of the Civil Code of Louisiana could potentially cause serious problems with the easelaw of Alabama on the question whether particular property is tangible or intangible.

I would reaffirm the Alabama easelaw and hold that computer software is intangible property. However, if the majority of the Court wishes to hold that computer software is “tangible,” it should do so through the application of common law concepts of what is tangible property and what is intangible property. Alabama is a common law state. I am concerned that the majority today changes Alabama easelaw as to what is tangible property and what is intangible property and in doing so relies on the civil law precedent of Louisiana. The civil law precedent of Louisiana is inapplicable to the common law precedent of Alabama. Therefore, I must dissent. 
      
      . In a narrow sense, “software” is synonymous with "program." "Program” has been "defined as 'a complete set of instructions that tells a computer how to do something.' ” South Cent. Bell Tel. Co., 643 So.2d at 1246.
     