October 20, 1980

********** ("Corporation") is an out-of-state corporation registered as a Massachusetts vendor. It will sell equipment to a wholesale dealer ("Dealer") based outside Massachusetts. The Dealer is registered as a vendor in his home state but not in Massachusetts. The equipment will be located in Massachusetts at the time of sale, and will be delivered to the Dealer in Massachusetts. The Dealer will purchase the equipment for resale in the regular course of business to a customer located outside Massachusetts. In your letter of September 23, 1980, you inquire whether the Corporation may take from the Dealer a resale certificate from the Dealer's home state, in lieu of collecting the Massachusetts sales tax on the transaction.

Massachusetts General Laws Chapter 64H, Section 2 imposes an excise upon sales at retail of tangible personal property in Massachusetts by any vendor. "Sale at retail" is defined in Chapter 64H, Section 1(13) as a sale of tangible personal property for any purpose other than resale in the regular course of business.

Section 7 of Chapter 64H provides that no person shall do business in Massachusetts as a vendor unless a registration shall have been issued to him for each place of business in accordance with Chapter 62C, Section 67, which requires each vendor to file an application for a registration certificate with the Massachusetts Commissioner of Revenue.

Under Chapter 64H, Section 8, the burden of proving that a sale of tangible personal property by any vendor is not a sale at retail is upon the vendor unless he takes a resale certificate from the purchaser; the certificate relieves the vendor from the burden of proof only if taken in good faith from a vendor who holds a registration certificate issued under Section 7.

Based on the foregoing, it is ruled that the Corporation's sale will be presumed to be subject to tax unless the Dealer registers as a Massachusetts vendor and presents a Massachusetts resale certificate pursuant to the sale. The Corporation may overcome this presumption by accepting in good faith from the Dealer

(1) a notarized statement on its letterhead that it is not engaged in business in Massachusetts within the meaning of Chapter 64H, Section 1(5), and that it is purchasing the equipment solely for resale outside Massachusetts; and

(2) a copy of the Dealer's out-of-state registration or permit.

Very truly yours,

/s/L. Joyce Hampers

L. Joyce Hampers
Commissioner of Revenue

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LR 80-70