FACTS: Martin repairs antiques. From time to time, Martin also brokers antiques for customers. Martin merely puts buyer and seller in touch; he does not take possession of the goods and has no authority to pass title to a buyer. Martin is paid a commission if a sale in completed. Martin is not required to be licensed as a vendor and does not make sales at auction as defined in G.L. c. 100, § 1.

ISSUE: Is Martin required to collect and pay over a sales tax on sales of these antiques?

DISCUSSION: Massachusetts imposes an excise upon retail sales of tangible personal property by any vendor. Unless the sale is otherwise exempt, the vendor must collect and pay over the sales tax. G.L. c. 64H, § 2. Under G.L. c. 64H, § 6(c), the owner of goods originally acquired for personal or household use may sell them without incurring sales tax liability. Such sales are considered exempt as "casual and isolated." See 830 CMR 64H.6.1. The use of an agent to facilitate those sales will not render the transaction taxable unless the agent is a retailer and becomes the vendor of the goods. See Sherman v. Commissioner of Revenue, 24 Mass. App. 64, 67 (1987). In any given sales situation, the identity of the vendor is a question of fact. Here, the owner, not Martin, is considered the vendor of the goods since Martin never took possession of them and had no authority to transfer title and possession to a buyer. Since Martin is not the vendor, and the actual vendor - the owner - is making a casual and isolated sale, there is no tax liability and Martin should not collect a sales tax.

DIRECTIVE: Martin is not the vendor of the goods and is not required to collect a sales tax from customers; since the owner/vendor is making a "casual and isolated" sale, no tax is due.

REFERENCE: G.L. c. 64H, §§ 2, 6(c); 830 CMR 64H.6.1.

/s/Stephen W. Kidder
Stephen W. Kidder
Commissioner of Revenue

September 30, 1988

DD 88-12

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.