May 7, 1981
You inquire whether the sale by ********** ("Oil Company") of used service station equipment, sold to the purchaser of the service station itself, is exempt from Massachusetts sales tax as a casual and isolated sale. During 1980 the Oil Company made ten such sales in Massachusetts of service stations and their accompanying equipment.
Massachusetts General Laws Chapter 64H, Section 2 imposes an excise upon sales at retail of tangible personal property in Massachusetts. It is presumed that all gross receipts of a vendor from the sale of tangible personal property are from sales subject to tax until the contrary is established (Chapter 64H, Section 8(a)).
Chapter 64H, Section 6(c) exempts from taxation casual and isolated sales by vendors not regularly engaged in the business of making sales at retail. Sales and Use Tax Regulation 830 CMR 16.01 provides that:
"[c]asual and isolated sales are those of an infrequent, non-recurring nature made by a person not engaged in the business of selling tangible personal property. They also include sales of items of tangible personal property which were acquired for use or consumption by a seller and not sold in the regular course of business engaged in by such seller."
The regulation lists examples of exempt casual and isolated sales, including
"[s]ales of used machinery, fixtures, equipment and like items by an owner who is engaged in a business or occupation such as manufacturing or farming, but who is not engaged in the selling of such items as a business."
It further provides that the following sales are not exempt:
"[r]etail sales by manufacturers, wholesalers, processors and jobbers even though such sales are infrequent and only comprise an insignificant fraction of their total business;
[and]
[s]ales which constitute an integral part of a business, such as the sale of repossessed fixtures or other property by a finance company, even though the sale of tangible personal property is not the primary function of such business."
Based on the foregoing facts, it is ruled that the Oil Company's sale of the used service station equipment is subject to tax.
Very truly yours,
/s/L. Joyce Hampers
L. Joyce Hampers
Commissioner of Revenue
LJH:JXD:mf
LR 81-39