March 10, 1995

You ask for a ruling on the application of Massachusetts sales tax to the sale of the following publications: *************** ("Publications"). These publications are sold in stores ********** throughout Massachusetts. You ask whether these publications are exempt from sales tax under G.L. c. 64H, § 6(m) as the sale of magazines. For the reasons set forth below, we conclude that these publications are not magazines.

Facts

The listed Publications are published on various schedules: semiannually, quarterly, monthly and seventeen times a year. The Publications are bound in a manner similar to publications considered to be magazines. The outside is softcovered and the Publications-consist of sixty-six to one hundred and ninety-four pages, printed on both sides. The Publications include only crossword and circle word puzzles with their answers.

Advertising is limited to ads for other crossword and circle word publications. The Publications contain no stories, poetry, essays, news articles or other items generally found in magazines.

Discussion

Massachusetts General Laws Chapter 64H imposes a five percent sales tax on all retail sales in Massachusetts of tangible personal property, unless otherwise exempt. See G.L. c. 64H, § 2. Exempt from sales tax are:

[s]ales of newspapers, magazines, books required for instructional purposes in educational institutions, books used for religious worship, publications of any corporation foundation, organization, or institution [which is exempt from taxation under Internal Revenue Code Section 501(c)(3) and which meets the requirements of G.L. c. 64H, § 6(e)], and motion pictures films for commercial exhibition."

G.L. c. 64H, § 6(m)

No claim is made that the Publications are newspapers or exempt books. Therefore the only question is whether they are magazines for purposes of the sales tax.

The term "magazine" is not defined by Massachusetts tax statutes or regulations. In the absence of such a definition, the Massachusetts Supreme Judicial Court, Appellate Tax Board and the Commissioner have considered the format, content and authorship of various publications in determining whether they qualify for the exemption as newspapers or magazines. See e.g., Greenfield Town Crier v. Commissioner of Revenue, 385 Mass. 692, 696 (1982), Robert Welch, Inc. v. State Tax Commission, A.T.B. Docket No. 79965 (1977); Letter Rulings 93-13, 91-5, 90-3, 85-58, 83-14, 81-95.

The Supreme Judicial Court in reviewing the legislative history dealing with magazines stated that [c]ourts generally have defined magazines as a subspecies of periodicals, emphasizing their periodicity, their continuity as to title and nature of contents from issue to issue, and their authorship usually by an editorial staff rather than by a single author. Comm. v. Zone Book, Inc., 372 Mass. 366 (1977), citing Fifield v. American Auto Ass'n, 262 F. Supp. 253, 255-57 (D. Mont. 1967).

The Appellate Board has stated that determining if a publication is a magazine "is really an application of common sense - of common understanding of the terms rather than checking off one by one the various indicia of characteristics." Welch, supra. The Board, has also stated that words such as "magazines" should be construed according to their common and approved usage. Stanley Home Products, Inc. v. Commissioner of Revenue, A.T.B. Docket No. 120 842 (1986), citing G.L. c. 4, § 6. In Stanley, the Board stated the term "magazine" has been defined as "a publication usually with a paperback, and sometimes illustrated, that appears at regular intervals and contains stories, articles, etc. by various writers and usually advertisements." Id. (quoting Webster's New World Dictionary, Second College Edition (1972)).

In the past, the Department has examined the, content, format and authorship of various publications to determine whether they qualify as a newspaper or magazine, for sales and use tax purposes. The Commissioner has ruled that a magazine, like a newspaper, must contain news and matters of interest to a significant segment of the public. See Letter Rulings 85-58; 84-67, 84-8. The Commissioner has also ruled that according to the common approved usage of the language, a publication must contain stories, articles or other features in addition to advertising in order to qualify as a magazine. See DOR Directive 87-6.

The Publications listed do exhibit some characteristics in common with magazines. First, the cover format is consistent with many publication recognized as magazines. Second, the Publications show continuity of subject matter and format from issue to issue. Third, the Publications have national distribution, so they are available and of interest to the public at large.

These similarities notwithstanding, the Publications differ markedly from other publications accepted as magazines in their content. Their content contains no items that can be characterized as news, stories, articles or other features as required by the Appellate Tax Board and previous Department of Revenue public written statements. The Publications in their entirety, with the exception of four to eight advertisements, are made up of puzzles. The Supreme Judicial Court has not stated what minimum percentage of a publication must be devoted to content other than advertising in order to qualify for the exemption under G.L. c. 64H, § 6(m). Greenfield Town Crier v. Commissioner of Revenue 385 Mass. at 696. However, these Publications contain no news stories, features, columns or public service announcements. See id. at 696, DOR Directive 87-6. We view the absence of such contents as critical because the dissemination of news or information appears to be common to all the publications specified as exempt under G.L. c. 64H, § 6(m).

Conclusion

While the Publications have some items of similarity with magazines, they do not meet the criteria of what is commonly accepted as a magazine. In particular, they do not contain a single article, feature or commentary that would be generally expected to be found in a magazine. Therefore, the Publications are not "magazines" within the meaning of G.L. c. 64H, § 6(m). Retail sales of the publications are subject to tax under G.L. c. 64H, 64I.

Very truly yours,

/s/Mitchell Adams

Mitchell Adams
Commissioner of Revenue

MA:HMP:jet

LR 95-2