May 7, 1982

The ********** Company ("Company") manufactures and sells heating, ventilating and air conditioning equipment ("HVAC equipment"). Some of its customers are engaged in business both as over-the-counter retailers of HVAC equipment and as construction contractors who install the equipment in commercial and industrial buildings. When such a customer will resell equipment at retail, it ordinarily requires the Company to deliver the equipment at its place of business. When it will use the equipment in building construction, it ordinarily requires deliver at the job site. You inquire whether the Company is relieved of all liability for collection of sales or use taxes if it accepts a resale certificate on delivery of equipment to a construction contractor at a construction site in Massachusetts.

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

Section 8(a) of Chapter 64H provides that all gross receipts of a vendor from Massachusetts sales of tangible personal property are presumed to be from sales subject to tax until the contrary is established.

A contractor who purchases materials from a retailer for use in building construction is generally considered the consumer of the materials and not a purchaser for resale for sales and use tax purposes. Seltzer and Co., Inc. v. State Tax Commission, ATB Docket Nos. 63886, 66887 (1975), aff'd sub. nom. Ace Heating Service, Inc. v. State Tax Commission, 371 Mass. 254 (1976); Salem Glass Co. v. State Tax Commission, ATB Docket No. 60903 (1974); State v. J. Watts Kearny & Sons, 131 La. 554 (1935); see Town of Saugus v. B. Perini & Son, Inc., 305 Mass. 403 (1940).

Based on the foregoing, it is ruled that the Company's sales of HVAC equipment to a contractor who requires that the equipment be delivered at a Massachusetts construction site are retail sales subject to tax. The Company may not accept a resale certificate in lieu of collecting and paying over the tax on such sales.

Very truly yours,

/s/L. Joyce Hampers

L. Joyce Hampers
Commissioner of Revenue

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LR 82-45