November 8, 1983
You request a ruling as to the application of the Massachusetts sales tax to the sales of art pieces by ____________ ("Company").
The Company solicits slides and specifications of art pieces to show to its customers: interior designers, architects, and art consultants. From the slides and specifications, the customers select works they would like to show to their clients. The artists ship the requested pieces to the Company which shows the pieces to the customers and their clients. If a piece is purchased, the customer may resell the piece to his client with an added commission or markup. Occasionally, the Company makes a direct sale to a person who intends to keep the art piece. The Company charges the artist a commission based on the sales price to its customer.
Chapter 64H, Section 2 of the Massachusetts General Laws imposes a five per cent sales tax on retail sales of tangible personal property. A retail sale is any sale of tangible personal property for any purpose other than resale in the regular course of business. (G.L. c. 64H, § 1(13)).
Section 8(a), Chapter 64H states
"[i]t shall be 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. The burden of proving that a sale of tangible personal property by any vendor is not a sale at retail shall be upon such vendor unless he takes from the purchaser a certificate to the effect that the property is purchased for resale."
The resale certificate relieves the vendor of the burden of proving that a sale is not a retail sale only if taken in good faith. (G.L. c. 64H, § 8(b)).
Based on the foregoing, it is ruled that sales of art pieces by the Company are subject to the sales tax, unless the art pieces are sold for resale to a customer who gives the Company a resale certificate.
Very truly yours,
/s/Ira A. Jackson
Ira A. Jackson
Commissioner of Revenue