October 29, 1981

********** ("Store") is a vendor located in Massachusetts. You inquire whether the Massachusetts sales tax applies to sales at the Store of items that the Store mails out of state. In some instances, the items are sold to customers who are nonresidents of Massachusetts, and the Store mails the items to the out-of-state addresses of the customers. In other instances, customers purchase the items as gifts for nonresidents of Massachusetts, and the Store mails them to the out-of-state addresses of the persons for whom they are purchased.

Massachusetts General Laws Chapter 64H, Section 2 imposes an excise on sales at retail of tangible personal property in Massachusetts by any vendor. A sale takes place in Massachusetts if title to or possession of the property is transferred in Massachusetts (G.L. c. 64H, s. 1(12)(a)).

Section 6(b) of Chapter 64H provides that the sales tax does not apply to

"[s]ales of tangible personal property... which the vendor is obligated under the terms of any agreement to deliver to a purchaser outside the commonwealth or to an interstate carrier for delivery to a purchaser outside the commonwealth."

Also exempt from the tax are

"[s]ales of printed material which is manufactured in the Commonwealth to the special order of a purchaser, to the extent such material in delivered to an interstate carrier, a mailing house or a United States Post Office for delivery or mailing to a purchaser located outside the commonwealth or to a purchaser's designee located outside the Commonwealth." (G.L. c. 64H, s. 6(ff).)

Based on the foregoing, it is ruled that:

(1) Sales at the Store to customers who are nonresidents of Massachusetts are not subject to tax where the Store is obligated under a bill of sale or other agreement to mail the item purchased to the customer's out-of-state address.

(2) Except with respect to sales of printed material manufactured in Massachusetts to the special order of a purchaser, the sales tax applies to sales at the Store of the gift items that are mailed by the Store to the out-of-state address of a person designated by the customer.

Very truly yours,

/s/L. Joyce Hampers

L. Joyce Hampers
Commissioner of Revenue

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LR 81-97