Section 31 Sales Tax Treatment of Marketplace Vendors 1
Chapter 64H of the General Laws is hereby amended by striking out section 1 and inserting in place thereof the following section:-
Section 1. As used in this chapter the following words shall have the following meanings:
"Business", any activity engaged in by any person or caused to be engaged in by a person with the object of gain, benefit or advantage, either direct or indirect.
"Commissioner", the commissioner of revenue.
"Engaged in business", commencing, conducting or continuing in business, as well as liquidating a business when the liquidator thereof holds itself out to the public as conducting such a business.
"Engaged in business in the commonwealth", (i) having a business location within the commonwealth; (ii) regularly or systematically soliciting orders for the sale of services to be performed within the commonwealth or for the sale of tangible personal property for delivery to destinations in the commonwealth; (iii) otherwise exploiting the retail sales market within the commonwealth through any means whatsoever, including, but not limited to, (a) salespeople, solicitors or representatives within the commonwealth, (b) catalogs or other solicitation materials sent through the mails or otherwise, (c) billboards, advertising or solicitations in newspapers, magazines, radio or television broadcasts, (d) computer networks or in any other communications medium, including through the means of an Internet website, software or cookies distributed or otherwise placed on customers' computers or other communications devices, or a downloaded application; (iv) regularly engaged in the delivery of property or the performance of services within the commonwealth; or (v) otherwise availing oneself of the substantial privilege of carrying on business within the commonwealth, including through virtual or economic contacts. A person shall be considered to have a business location within the commonwealth only if such person: (i) owns or leases real property within the commonwealth; (ii) has 1 or more employees located within the commonwealth; (iii) regularly maintains a stock of tangible personal property within the commonwealth for sale in the ordinary course of business; or (iv) regularly leases out tangible personal property for use within the commonwealth. For the purposes of this paragraph, property on consignment in the hands of a consignee and offered for sale by the consignee on the consignee's own account shall not be considered as stock maintained by the consignor; a person having a business location within the commonwealth solely by reason of regularly leasing out tangible personal property shall be considered to have a business location within the commonwealth only with respect to such leased property; and an employee shall be considered to be located within the commonwealth if: (a) the employee's service is performed entirely within the commonwealth, or (b) the employee's service is performed both within and without the commonwealth but in the performance of the employee's services the employee regularly commences the employee's activities at, and returns to, a place within the commonwealth. "Within the commonwealth" means within the exterior limits of the commonwealth of Massachusetts, and includes all territory within said limits owned by, or leased or ceded to, the United States of America. This provision shall be construed to the fullest extent of the U.S. Constitution unless otherwise limited by state law.
"Gross receipts", the total sales price received by a vendor as a consideration for retail sales.
"Home service provider", the facilities-based carrier or reseller with which the retail customer contracts for the provision of mobile telecommunications service.
"Marketplace", a physical or electronic forum, including a shop, a store, a booth, a television or radio broadcast, an Internet web site, a catalogue or a dedicated sales software application, where the tangible personal property or services of a marketplace seller is offered for sale, regardless of whether, in the case of tangible personal property, such property is physically located in the commonwealth.
"Marketplace facilitator", a person that contracts with 1 or more marketplace sellers to facilitate for a consideration, regardless of whether deducted as fees from the transaction, the sale of the seller's tangible personal property or services through a marketplace operated by the person, and engages: (a) directly or indirectly, through 1 or more related persons, in any of the following: (i) transmitting or otherwise communicating the offer or acceptance between the buyer and the seller; (ii) owning or operating the infrastructure, electronic or physical, or technology that brings buyers and sellers together; (iii) providing a virtual currency that buyers are allowed or required to use to purchase tangible personal property or services from the seller; or (iv) software development or research and development activities related to any of the activities described in subsection (b), if such activities are directly related to a physical or electronic marketplace operated by the person or a related person; and (b) in any of the following activities with respect to the seller's tangible personal property or services: (i) payment processing services; (ii) fulfillment or storage services; (iii) listing tangible personal property or services for sale; (iv) setting prices; (v) branding sales as those of the marketplace facilitator; (vi) order taking; (vii) advertising or promotion; or (viii) providing customer service or accepting or assisting with returns or exchanges; provided, however, that a marketplace facilitator may also be a marketplace seller; and provided further, that a marketplace facilitator shall not include a person who merely provides payment processing services. The commissioner may issue regulations or other guidance to further explain the definition of a marketplace facilitator, which guidance may in some circumstances limit the application of the term as it might otherwise apply.
"Marketplace seller", a person that makes retail sales through a marketplace operated by a marketplace facilitator; provided, however, that a marketplace seller may also be a marketplace facilitator.
"Mobile telecommunications service", commercial mobile radio service, as defined in section 20.3 of title 47 of the Code of Federal Regulations as in effect on June 1, 1999.
"Motion picture", a feature-length film, a video, a digital media project, a television series defined as a season not to exceed 27 episodes, or a commercial made in the commonwealth, in whole or in part, for theatrical or television viewing or as a television pilot. The term "motion picture" shall not include a production featuring news, current events, weather and financial market reports, talk show, game show, sporting events, awards show or other gala event, a production whose sole purpose is fundraising, a long-form production that primarily markets a product or service, or a production containing obscene material or performances.
"Motion picture production company", a company including any subsidiaries engaged in the business of producing motion pictures, videos, television series, or commercials intended for a theatrical release or for television viewing. The term "motion picture production company" shall not mean or include any company which is more than 25 per cent owned, affiliated, or controlled, by any company or person which is in default on a loan made by the commonwealth or a loan guaranteed by the commonwealth.
"Person", an individual, partnership, trust or association, with or without transferable shares, joint-stock company, corporation, society, club, organization, institution, estate, receiver, trustee, assignee, or referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals acting as a unit.
"Place of primary use", the street address representative of where the customer's use of the mobile telecommunications service primarily occurs, which shall be the residential street address or the primary business address of the customer and which shall be within the licensed service area of the home service provider. The place shall be determined in accordance with 4 U.S.C. sections 121 and 122.
"Prepaid calling arrangement", the right to exclusively purchase telecommunications services, that shall be paid for in advance and enables the origination of the calls using an access number or authorization code, whether manually or electronically dialed.
"Purchaser", a person who purchases tangible personal property or services the receipts from the retail sale of which are taxable under this chapter and includes a buyer, vendee, lessee, licensee, or grantee.
"Remote marketplace facilitator", a marketplace facilitator that is engaged in business in the commonwealth only pursuant to: (i) subclause (b), (c) or (d) of clause (iii) of the first sentence of the definition of engaged in business in the commonwealth; or (ii) clause (v) of the first sentence of the definition of engaged in business in the commonwealth.
"Remote marketplace seller", a remote retailer that is a marketplace seller.
"Remote retailer", a retailer, including a marketplace seller or marketplace facilitator, that is engaged in business in the commonwealth only pursuant to: (i) subclauses (b), (c), or (d) of clause (iii) of the definition of engaged in business in the commonwealth; or (ii) clause (v) of the first sentence of the definition of engaged in business in the commonwealth.
"Retailer", includes (i) every person, including a marketplace seller, engaged in the business of making sales at retail; (ii) every person engaged in the making of retail sales at auction of tangible personal property whether owned by such person or others; (iii) every marketplace facilitator engaged in facilitating retail sales of tangible personal property or services, irrespective of whether such tangible personal property is owned by the facilitator or a marketplace seller and irrespective of whether such services are performed by the facilitator or a marketplace seller; (iv) every person, including a marketplace seller or marketplace facilitator, engaged in the business of making sales for storage, use or other consumption, or in the business of making sales at auction of tangible personal property whether owned by such person or others for storage, use or other consumption; (v) every salesperson, representative, peddler or canvasser who, in the opinion of the commissioner, it is necessary to regard for the efficient administration of this chapter as the agent of the dealer, distributor, supervisor or employer under whom the agent operates or from whom the agent obtains the tangible personal property sold by the agent, in which case the commissioner may treat and regard such agent as the retailer jointly responsible with the agent's principal, employer or supervisor for the collection and payment of the tax imposed by this chapter; and (vi) the commonwealth, or any political subdivision thereof, or their respective agencies when such entity is engaged in making sales at retail of a kind ordinarily made by private persons.
"Retail establishment", any premises in which the business of selling services or tangible personal property is conducted, or, in or from which any retail sales are made.
"Sale" and "selling", include (i) any transfer of title or possession, or both, exchange, barter, lease, rental, conditional or otherwise, of tangible personal property or the performance of services for a consideration, in any manner or by any means whatsoever; (ii) the producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting; (iii) the furnishing and distributing of tangible personal property or services for a consideration by social clubs and fraternal organizations to their members or others; (iv) a transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price; (v) a transfer for a consideration of the title or possession of tangible personal property which has been produced, fabricated or printed to the special order of the customer, or of any publication; (vi) the furnishing of information by printed, mimeographed or multigraphed matter, or by duplicating written or printed matter in any other manner, including the services of collecting, compiling or analyzing information of any kind or nature and furnishing reports thereof to other persons, but excluding the furnishing of information, which is personal or individual in nature and which is not or may not be substantially incorporated in reports furnished to other persons, and excluding the services of advertising or other agents, or other persons acting in a representative capacity, and information services used by newspapers, radio broadcasters and television broadcasters in the collection and dissemination of news and excluding the furnishing of information by photocopy or other similar means by not for profit libraries which are recognized as exempt from taxation under section 501(C)(3) of the Federal Internal Revenue Code; (vii) the performance of services for a consideration, excluding (a) services performed by an employee for his employer whether compensated by salary, commission, or otherwise, (b) services performed by a general partner for his partnership and compensated by the receipt of distributive shares of income or loss from the partnership; and (c) the performance of services for which the provider is compensated by means of an honorarium, or fee paid to any person or entity registered under 15 USC 80b-3 or 15 USC 78q-1 for services the performance of which require such registration, for services related thereto or for trust, custody, and related cash management and securities services of a trust company as defined in chapter 172; and (viii) a sale within the meaning of subsections (i) to (vii) facilitated by a marketplace facilitator.
"Sale at retail" or "retail sale", a sale of services or tangible personal property or both for any purpose other than resale in the regular course of business. When tangible personal property is physically delivered by an owner, a former owner thereof, a factor, or an agent or representative of the owner, former owner or factor, to the ultimate purchaser residing in or doing business in the commonwealth, or to any person for redelivery to the purchaser, pursuant to a retail sale made by a vendor not engaged in business in the commonwealth, the person making or effectuating the delivery shall be considered the vendor of that property, the transaction shall be a retail sale in the commonwealth by the person and that person, if engaged in business in the commonwealth, shall include the retail selling price in its gross receipts, regardless of any contrary statutory or contractual terms concerning the passage of title or risk of loss which may be expressly or impliedly applicable to any contract or other agreement or arrangement for the sale, transportation, shipment or delivery of that property. That vendor shall include the retail selling price of the property in the vendor's gross receipts. The term "sale at retail" or "retail sale" shall not include: (a) sales of tickets for admissions to places of amusement and sports; (b) sales of transportation services; (c) professional, insurance, or personal service transactions which involve no sale or which involve sales as inconsequential elements for which no separate charges are made; or (d) any sale in which the only transaction in the commonwealth is the mere execution of the contract of sale and in which the tangible personal property sold is not in the commonwealth at the time of such execution; provided, however, that nothing contained in this definition shall be construed to be an exemption from the tax imposed under chapter 64I. In the case of interstate telecommunication services other than mobile telecommunications services, the sale of such services shall be deemed a sale within the commonwealth if the telecommunication is either originated or received at a location in the commonwealth and the services are either paid for in the commonwealth or charged to a service address located in the commonwealth. In the case of interstate and intrastate mobile telecommunications services, the sale of such services shall be deemed to be provided by the customer's home service provider and shall be considered a sale within the commonwealth if the customer's place of primary use is located in the commonwealth. To prevent actual multi-state taxation of any sale of interstate telecommunication service subject to taxation under this chapter, any taxpayer, upon proof that the taxpayer has paid a tax in another state on such sale, shall be allowed a credit against the tax imposed by this chapter to the extent of the amount of such tax properly due and paid in such other state. However, such credit shall not exceed the tax imposed by this chapter. In the case of the sale or recharge of prepaid calling arrangements, the sale or recharge of such arrangements shall be deemed to be within the commonwealth if the transfer for consideration physically takes place at a retail establishment in the commonwealth. In the absence of such physical transfer for consideration at a retail establishment, the sale or recharge shall be deemed a retail sale within the commonwealth if the customer's shipping address is in the commonwealth or, if there is no item shipped, if the customer's billing address or the location associated with the customer's mobile telephone number, as applicable, is in the commonwealth. For purposes of collection of the tax imposed by this chapter on such sales, such sale shall be deemed to occur on the date that the bill is first issued by the vendor in the regular course of its business; provided, however, in the case of prepaid calling arrangements, the sale shall be deemed to occur on the date of the transfer for consideration. For purposes of reporting the sale or recharge of prepaid calling arrangements, the sale or recharge of the arrangements shall be considered a taxable sale of tangible personal property unless the vendor is otherwise required to report sales of telecommunications services.
"Sales price", the total amount paid by a purchaser to a vendor as consideration for a retail sale, valued in money or otherwise. In determining the sales price, the following shall apply: (a) no deduction shall be taken on account of (i) the cost of property sold; (ii) the cost of materials used, labor or service cost, interest charges, losses or other expenses; (iii) the cost of transportation of the property prior to its sale at retail; (b) there shall be included (i) any amount paid for any services that are a part of the sale; and (ii) any amount for which credit is given to the purchaser by the vendor; and (c) there shall be excluded (i) cash discounts allowed and taken on sales; (ii) the amount charged for property returned by purchasers to vendors upon rescission of contracts of sale when the entire amounts charged therefor, less the vendors' established handling fees, if any, for such return of property, are refunded either in cash or credit, and when the property is returned within 90 days from the date of sale, and the entire sales tax paid is returned to the purchaser; provided, however, that where a motor vehicle is returned pursuant to a rescission of contract such motor vehicle must be returned within 180 days of the date of sale; (iii) the amount charged for labor or services rendered in installing or applying the property sold; (iv) the amount of reimbursement of tax paid by the purchaser to the vendor under this chapter; (v) transportation charges separately stated, if the transportation occurs after the sale of the property is made; (vi) the amount of the manufacturers' excise tax levied upon motor vehicles under section 4061(a) of the Internal Revenue Code of 1954 of the United States, as amended; and (vii) a "service charge" or "tip" that is distributed by a vendor to service employees, wait staff employees or service bartenders as provided in section 152A of chapter 149.
"Services", a commodity consisting of activities engaged in by a person for another person for a consideration; provided, however, that the term "services" shall not include activities performed by a person who is not in a regular trade or business offering such person's services to the public, and shall not include services rendered to a member of an affiliated group, as defined by section 1504 of the Internal Revenue Code, by another member of the same affiliated group that does not sell to the public the type of service provided to its affiliate; and provided further, that the term services shall be limited to telecommunications services; and provided further, that nothing herein shall exempt from tax sales of tangible personal property subject to tax under this chapter.
"Tangible personal property", personal property of any nature consisting of any produce, goods, wares, merchandise and commodities whatsoever, brought into, produced, manufactured or being within the commonwealth, but shall not include rights and credits, insurance policies, bills of exchange, stocks and bonds and similar evidences of indebtedness or ownership. For purposes of this chapter, "tangible personal property" shall include gas, electricity and steam. A transfer of standardized computer software, including but not limited to electronic, telephonic or similar transfer, shall also be considered a transfer of tangible personal property. The commissioner may, by regulation, provide rules for apportioning tax in those instances in which software is transferred for use in more than one state.
"Tax", the excise tax imposed by this chapter.
"Taxpayer", any person required to make returns or pay the tax imposed by this chapter.
"Telecommunications services", any transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiberoptics, laser, microwave, radio, satellite or similar facilities but not including cable television. Telecommunications services shall be deemed to be services for purposes of this chapter and chapter 64I.
"Use of a service", enjoyment of the benefit of a service.
"Vendor", a retailer or other person selling tangible personal property or services of a kind the gross receipts from the retail sale of which are required to be included in the measure of the tax imposed by this chapter.