July 22, 1985

Your company sells bees, beekeeping equipment, aupplies and services to hobbyists and commercially, oriented beekeepers. You request a ruling regarding the taxability of various business transactions.

Live Bees

You inquire as to the taxability of the sale of live honey bees.
The sale of livestock and poultry of a kind which ordinarily constitute food for human consumption is exempt from the sales tax. (G.L. c. 64H, § 6(p)(1)). Honey bees are not livestock or poultry. The sale of honey bees is subject to the Massachusetts sales tax.

Pollination Services

You ask whether the rental of bees for pollination services is subject to the Massachusetts sales tax.

The sales tax is imposed on sales at retail of tangible personal property by a vendor (G.L. c. 64H, § 2). For purposes of the Massachusetts sales and use taxes, "sale" includes any lease or rental of tangible personal property for a consideration. (G.L. c. 64H, § 1(12)(2)). As the sale of bees is subject to the Massachusetts tax (see above), the rental or lease of bees for pollination services is subject to the Massachusetts sales tax.

Protective Clothing

You ask whether the sale of protective clothing to beekeepers for use when working with bees is subject to the Massachusetts sales tax.

The sales tax is imposed on sales at retail of tangible personal property by a vendor. (G.L. c. 64H, § 2). Section 6(k) of Chapter 64H of the General Laws exempts from the sales tax, the first one hundred and seventy-five dollars of the sales price on any article of clothing or footwear. This exemption does not apply to "...special clothing or footwear primarily designed for ... protective use and which is not normally worn except when so used." (G.L. c. 64H, § 6(k).

Accordingly, the sale of protective clothing to beekeepers for use when working with bees is subject to the Massachusetts sales tax.

Beekeeping Supplies / Honey Extracting and Processing Machinery

You ask whether the sale of bee hives, hive parts and other materials, tools and equipment used in working with and maintaining bee hives is subject to the Massachusetts sales tax. You also ask whether the sale of equipment and machinery used in removing honey from the hive and hive parts, and used in the various processes of heating, separating, straining, and bottling or otherwise packaging honey is subject to the Massachusetts sales tax.

Massachusetts General Laws Chapter 64H, Section 6(s) exempts from the Massachusetts sales tax sales of machinery or replacement parts thereof, used directly and exclusively in agricultural production. Sales and Use Tax Regulation 830 CMR 16.03 ("Machinery Exemption") defines machinery to mean a mechanical, electrical or electronic device including any adjunct or necessary attachment and all devices used or required to control, regulate or operate a piece of machinery, provided such devices are directly connected with or are an integral part of the machinery. Massachusetts General Laws, Section 6(r) exempts from Massachusetts sales tax sales of materials, tools and fuel or any substitute therefor which are consumed and used directly and exclusively in agricultural production. Any material or tool is "consumed and used" if its normal useful life is less than one year or if its cost is allowable as an ordinary and necessary business expense for federal income tax purposes.

The term "agricultural production" is not explicitly defined in Chapter 64H. Section 6(r) provides that for purposes of 6(r) the raising of poultry and livestock shall be construed to be included in the term "agricultural production." Section 1A of Chapter 128 of the Massachusetts General Laws defines the term "agriculture" to include "...the production, cultivation, growing and harvesting of any agricultural ... commodities .... and ... the keeping and raising of ... bees." Therefore, the raising and keeping of bees is agricultural production.

The sales of beekeeping materials (including bee hives and hive parts) and tools which are consumed and used directly and exclusively in the raising and keeping of bees and the sales of materials and tools which are consumed and used directly and exclusively in the production of honey are exempt from the Massachusetts sales tax if the normal useful life of such materials and tools is less than one year or if the cost of such materials is allowable as an ordinary and necessary business expense for federal income tax purposes. The sales of materials or tools not consumed and used directly and exclusively in the raising and keeping of bees or production of honey are subject to the Massachusetts sales tax.

The sale of machinery or replacement parts thereof used in removing honey from the hive and hive parts, and used in heating, separating, straining honey is exempt from the Massachusetts sales tax if used directly and exclusively in the production of honey. The sale of such equipment not used directly and exclusively in the production of honey is subject to the Massachusetts sales tax.

The sale of machinery or replacement parts thereof used in bottling or otherwise packing honey to be sold is exempt from the sales tax only to the extent it places the honey in a primary package or container from which the ultimate consumer uses the honey. Machinery used in packaging for the purpose of transporting, displaying or merchandising the honey is not used directly in agricultural production and is therefore not exempt from the Massachusetts sales tax. See Sales and Use Tax Regulation 830 CMR 16.03 ("Machinery Exemption").

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. G.L. c. 64H, § 8(a). If tangible personal property is purchased by a person who will use it in an exempt manner such purchaser may give an exempt use certificate (Form ST-12) certifying that the property being purchased will be so used. The certificate will relieve the vendor from further liability for the tax. G.L. c. 64H, § 8(f).

Honey Containers

You inquire as to the taxability of the sale of containers such as bottles, pails, jugs and cans to beekeepers for the packaging of honey.

The sale of both returnable and non-returnable containers when sold without the contents to persons who place contents in the container and sell the contents with the container is exempt from Massachusetts sale taxation. (G.L. c. 64H, § 6(g)(1)). The sale of containers to commercially oriented beekeepers or hobbyists who place the honey in the containers and sell the honey with the container is exempt from the Massachusetts sales tax. Sale of containers to commercially oriented beekeepers or hobbyists, who do not sell the honey with the container is subject to the Massachusetts sales tax.

It is the responsibility of the purchaser to present an exempt use certificate, if appropriate, upon the sale, otherwise the sale is taxable.

Very truly yours,
Commissioner of Revenue
IAJ/SFR/afbp
LR 85-64