Answer: Yes. A buyer's fundamental purpose in having photographs taken by a professional photographer is to acquire tangible personal property, the photographs. See Houghton Mifflin Co. v. State Tax Commission, 373 Mass. 772 (1977). Accordingly, the transfer of the photographs for a consideration is a retail sale, rather than a service transaction, and the amounts charged by the photographer are subject to the sales tax, unless otherwise exempt. G.L. c. 64H, §§ 1(13)(c), (2).
Issue: What is the sales price of photographs taken by a professional photographer?
Answer: Any amount paid for any services that are a part of the sale must be included in determining the sales price of photographs, and no deduction may be taken on account of the cost of materials used, labor or service cost, or other expenses. G.L. c. 64H, § 1(14). Accordingly, the sales price of photographs is the entire amount charged for them, including any separately stated amounts for services, such as sitting fees, rendered in producing them. (If, however, a photographer takes photographs for a customer, but the customer does not purchase them, any fees charged solely for the services provided are not subject to the sales tax.)
Issue: Are charges for developing home movies, photographic films and prints subject to the sales tax?
Answer: Yes. The processing of tangible personal property for a consideration for consumers who furnish the materials used in the processing is a sale for purposes of the sales tax. G.L. c. 64H, § 1(12)(b). Accordingly, unless otherwise exempt, the developing of home movies, photographic films and prints are retail sales, and the amounts charged are subject to the sales tax. G.L. c. 64H, §§ 1(13), 2.
Reference: G.L. c. 64H, §§ 1(12)(b), (13)(c), (14), 2.
/s/Ira A. Jackson
Ira A. Jackson
Commissioner of Revenue
12 June 1986
This Directive represents the official position of the Department of Revenue on the application of the law to the facts as stated. The Department and its personnel will follow this Directive, and taxpayers may rely upon it, unless it is revoked or modified pursuant to 830 CMR § 62C.01(5)(e). In applying this Directive, however, the effect of subsequent legislation, regulations, court decisions, Directives, and TIRs must be considered, and Department personnel and taxpayers may rely upon this Directive only if the facts, circumstances and issues presented in other cases are substantially the same as those set forth in this Directive.