830 CMR: DEPARTMENT OF REVENUE
830 CMR 62C.00: STATE TAX ADMINISTRATION
830 CMR 62C.3.1 is repealed and replaced with the following:
830 CMR 62C.3.1: Department of Revenue Public Written Statements

(1) Statement of Purpose; Effective Date; Outline of Topics.

(a) Statement of Purpose. Clearly articulated and widely communicated rules, standards and instructions are an important tool in achieving voluntary compliance with Massachusetts tax laws. The Department of Revenue publishes public written statements as well as other documents and forms to explain and communicate the rules which taxpayers and others must follow in order to comply with their obligations, established by law, to file returns and pay all taxes due. The purpose of this regulation is to describe the various public written statements and other documents published or issued by the Department of Revenue and the general procedures followed by the Department in issuing public written statements. This regulation also revokes certain outdated materials as described in 830 CMR 62C.3.1(11).

(b) Effective Date. 830 CMR 62C.3.1 is effective upon promulgation.

(c) Outline of Topics. This regulation is organized as follows:

1. Statement of Purpose; Effective Date; Outline of Topics
2. Definitions
3. General
4. Regulations
5. DOR Directives
6. Technical Information Releases
7. Letter Rulings
8. Informational Guideline Releases
9. Letters of Opinion on Local Taxation
10. Materials that are not Public Written Statements
11. Revocation of Outdated Materials

(2) Definitions. The following words used in 830 CMR 62C.3.1, have the following meanings unless the context otherwise requires:

Commissioner, the Commissioner of Revenue.

Department, the Massachusetts Department of Revenue.

Massachusetts tax laws, the tax statutes of the Massachusetts General Laws which are within the official purview of the Department, the regulations thereunder, and related statutes and regulations which are within the official purview of the Department.

MASSTAX Guide, an official publication of the Department of Revenue containing the Department's Public Written Statements, Administrative Procedures, and selected forms and instructions, published by Thompson West or a successor published on an annual basis with periodic supplements.

Public written statements, official pronouncements of the Department which are limited to the following: regulations described in 830 CMR 62C.3.1(4), DOR Directives described in 830 CMR 62C.3.1(5), Technical Information Releases described in 830 CMR 62C.3.1(6), letter rulings described in 830 CMR 62C.3.1(7), Informational Guideline Releases described in 830 CMR 62C.3.1(8), and Letters of Opinion on Local Taxation described in 830 CMR 62C.3.1(9).

Regulatory proceedings, proceedings relating to the adoption, amendment or repeal of a regulation.

(3) General. The Commissioner may, in the interests of sound tax administration, publish or issue regulations and other public written statements relating to the Massachusetts tax laws and other matters within the official purview of the Department of Revenue. Only public written statements, as defined in 830 CMR 62C.3.1(2), convey the official position of the Department with respect to the interpretation of the Massachusetts tax laws. Other documents which are not public written statements should be viewed as informational only. The effect of other documents which are not public written statements, such as forms and other publications are as stated in this regulation. Any person relying on a public written statement must consider the effect of later legislation, court decisions, or later public written statements even if such later legal authorities or documents do not specifically revoke or modify an earlier public written statement. To the extent that this regulation is inconsistent with any public written statements or other documents or materials issued by the Commissioner prior to the effective date of this regulation, those public written statements, documents, or materials are superseded to the extent of any such inconsistency.

(4) Regulations.

(a) General. The Department may adopt, amend or repeal regulations under the authority granted by M.G.L. c. 14, § 6, and in compliance with the provisions of M.G.L. c. 30A and 830 CMR 62C.3.1.

(b) Definition. A regulation is a public written statement which is a regulation within the meaning of M.G.L. c. 30A.

(c) Procedure for Adopting Amending or Repealing a Regulation.

1. Notice. The Commissioner shall issue notice of the proposed adoption, amendment, or repeal of a regulation at least twenty-one (21) days before such action.

2. Manner of Issuing Notice. The Commissioner shall issue notice in the following manner:

a. publish notice of the proposed action in the manner specified by any law, or if no manner is specified, then in such newspapers, and, where appropriate, in such trade, industry or professional publications as the Commissioner deems appropriate;

b. notify any person to whom specific notice must be given by delivering or mailing a copy of the notice to the last known address of the person required to be notified;

c. notify any person filing a written request for notice of the Commissioner's regulatory proceedings by delivering or mailing a copy of the notice to the last known address of the person; and

d. file a copy of the notice with the state Secretary.

3. Content of Notice. The notice shall:

a. refer to the statutory authority under which the action is proposed;

b. give the time and place of any public hearing or state the anticipated time of the Department's action;

c. state the manner in which data, views or arguments may be submitted to the Department by any interested person;

d. state the express terms or describe the substance of the proposed action; and

e. include any additional matter required by law.

4. Public Hearing. The Commissioner shall hold a public hearing to solicit data, views and arguments regarding the proposed adoption, amendment or repeal of a regulation. Nothing in 830 CMR 62C.3.1(3)(c)4. shall be construed to prohibit, before or after the publication of the notice of proposed action, the holding of public discussion to solicit data, views and arguments regarding the proposed action.

(d) Emergency Regulations. If the Commissioner finds that the immediate adoption, amendment or repeal of a regulation is necessary for the preservation of the public health, safety or general welfare, and that observance of the requirements of notice and hearing would be contrary to the public interest, the Commissioner may issue, adopt, amend or repeal the regulation as an emergency regulation pursuant to M.G.L. c. 30A, § 5.

(e) Retroactive application. A regulation is retroactive in effect, except to the extent that it expressly provides otherwise.

(f) Request for Adoption, Amendment or Repeal of a Regulation. Any interested person may request that the Commissioner adopt, amend or repeal any regulation, and may accompany the request with relevant data, views and arguments. The Rulings and Regulations Bureau will consider all requests. Requests concerning regulations, either proposed or promulgated, and any accompanying data, views and arguments, should be sent to the Bureau Chief, Rulings and Regulations Bureau, Massachusetts Department of Revenue, 100 Cambridge St., Boston, MA 02114.

(5) DOR Directives.

(a) General. The Department may, as the Commissioner deems appropriate, issue DOR Directives in compliance with 830 CMR 62C.3.1.

(b) Definition. A DOR Directive is a public written statement, signed by the Commissioner and entitled "DOR Directive," which provides details or supplementary information; clarifies ambiguities; resolves inconsistencies; or explains or elaborates upon issues, concerning current Department policy, practice or interpretation.

(c) Purpose. The purposes of a DOR Directive are to inform Department personnel and the public of Department policy and practice, thereby promoting the uniform application of the Massachusetts tax laws by the Department and assisting taxpayers in complying with the Massachusetts tax laws.

(d) Effect. A DOR Directive states the official position of the Department. The Department will use a DOR Directive as precedent in the disposition of cases unless and until it is revoked or modified under 830 CMR 62C.3.1(5)(e)2. or otherwise. A taxpayer may rely upon a DOR Directive unless and until it is revoked or modified. A taxpayer may rely upon a DOR Directive, however, only if the facts, circumstances and issues presented by the taxpayer's situation are substantially similar to those set forth in the DOR Directive. Any person relying on a DOR Directive must consider the effect of later legislation, regulations, court decisions, rulings, DOR Directives, and Technical Information Releases.

(e) Procedure For Issuing, Revoking or Modifying a DOR Directive.

1. Issuance. The Commissioner may issue a DOR Directive without notice or public hearing. Ordinarily the Department itself identifies the need for or subject matter of a DOR Directive.

2. Revocation or Modification. The Commissioner may revoke or modify a DOR Directive by issuing a revocation or modification in the same manner as a DOR Directive is issued. Wherever possible, a revocation or modification shall identify the DOR Directive and any other public written statements affected, and the extent of the revocation and modification. However, a Directive that does not expressly identify an inconsistent prior public written statement, document or other material nonetheless supersedes the earlier item to the extent of any inconsistency.

(f) Prospective Application. A DOR Directive is prospective in effect, except to the extent that it expressly provides otherwise.

(6) Technical Information Releases.

(a) General. The Department may, as the Commissioner deems appropriate, issue Technical Information Releases in compliance with 830 CMR 62C.3.1. Generally, within four months of a final court decision interpreting Massachusetts tax law, a TIR will be issued setting forth the Commissioner's position relative to that decision. See M.G.L. c. 62C, § 3.

(b) Definition. A Technical Information Release (TIR) is a public written statement, signed by the Commissioner and entitled "Technical Information Release," which informs the public of the Department's response to changes in federal or Massachusetts tax laws, or to court decisions interpreting federal or Massachusetts tax laws.

(c) Purpose. The purposes of a TIR are to inform Department personnel and the public of Department policy and practice, thereby promoting the uniform application of the Massachusetts tax laws by the Department and assisting taxpayers in complying with the Massachusetts tax laws.

(d) Effect. A TIR states the official position of the Department. The Department will use a TIR as precedent in the disposition of cases unless and until it is revoked or modified under 830 CMR 62C.3.1(6)(e)2. or otherwise. A taxpayer may rely upon a TIR unless and until it is revoked or modified. A taxpayer may rely upon a TIR, however, only if the facts, circumstances and issues presented by the taxpayer's situation are substantially similar to those set forth in the TIR. Any person relying on a TIR must consider the effect of later legislation, regulations, court decisions, rulings, DOR Directives, and TIRs.

(e) Procedure For Issuing, Revoking or Modifying a TIR.

1. Issuance. The Commissioner may issue a TIR without notice or public hearing.

2. Revocation or Modification. The Commissioner may revoke or modify a TIR by issuing a revocation or modification in the same manner as a TIR is issued. Wherever possible, a revocation or modification shall identify the TIR and any other public written statements affected, and the extent of the revocation or modification. However, a TIR that does not expressly identify an inconsistent prior public written statement, document or other material nonetheless supersedes the earlier item to the extent of any inconsistency.

(f) Prospective Application. A TIR is prospective in effect, except to the extent that it expressly provides otherwise.

(7) Letter Rulings. The Commissioner issues letter rulings in response to questions of individuals and organizations about tax aspects or tax treatment of particular facts. For a detailed explanation of letter rulings see 830 CMR 62C.3.2: Letter Rulings.

(8) Informational Guideline Releases.

(a) General. The Department may, as the Commissioner deems appropriate, issue Informational Guideline Releases in compliance with 830 CMR 62C.3.1.

(b) Definition. An Informational Guideline Release (IGR) is a public written statement entitled "Informational Guideline Release," issued by the Department's Division of Local Services under the authority of M.G.L. c. 58, on matters pertaining to assessment, classification, and administration of local taxes and municipal finance. It may include studies, cost and price schedules, news and reference bulletins, digests of law on local taxation, and any other information which the Commissioner deems appropriate.

(c) Purpose. The purposes of an Informational Guideline Release are to inform Department personnel, city, town, county and district officers, and the public of Department policy and practice, thereby promoting the uniform application of the Massachusetts tax laws by the Department and assisting local officials and taxpayers in complying with the Massachusetts tax laws.

(d) Effect. An Informational Guideline Release states the official position of the Department on certain matters pertaining to assessment, classification, and administration of local taxes and municipal finance. The Department and city, town, county, and district officers will follow an Informational Guideline Release unless and until it is revoked or modified under 830 CMR 62C.3.1(8)(e)2. or otherwise. A taxpayer should rely on an Informational Guideline Release as the official position of the Department unless and until it is revoked or modified, as long as the facts, circumstances and issues presented in the taxpayer's situation are substantially similar to those set forth in the Informational Guideline Release. Any person relying on an Informational Guideline Release must consider the effect of later legislation, regulations, court decisions, rulings, and Informational Guideline Releases.

(e) Procedure for Issuing, Revoking or Modifying an Informational Guideline Release.

1. Issuance. The Commissioner may issue an Informational Guideline Release without notice or public hearing.

2. Revocation or Modification. The Commissioner may revoke or modify an Informational Guideline Release by issuing a revocation or modification in the same manner as an Informational Guideline Release is issued. A revocation or modification shall identify the Informational Guideline Release and any other public written statements affected, and the extent of the revocation or modification. However, an Information Guideline Release that does not expressly identify an inconsistent prior public written statement, document or other material nonetheless supersedes the earlier item to the extent of any inconsistency.

(f) Prospective Application. An Informational Guideline Release is prospective in effect, except to the extent that it expressly provides otherwise.

(9) Letters of Opinion on Local Taxation.

(a) General. The Department may, as the Commissioner deems appropriate, issue Letters of Opinion on Local Taxation in compliance with 830 CMR 62C.3.1.

(b) Definition. A Letter of Opinion on Local Taxation is a public written statement entitled "Letter of Opinion on Local Taxation," issued by the Department's Division of Local Services in response to questions of individuals, organizations and municipal, county and district officials, on matters pertaining to assessment, classification and administration of local taxes and municipal finance.

(c) Purpose. The purposes of a Letter of Opinion on Local Taxation are to inform Department personnel, city, town, county and district officers, and the public of Department policy and practice, thereby promoting the uniform application of the Massachusetts tax laws and the administration of municipal finance by the Department and assisting local officials and taxpayers in complying with the Massachusetts tax laws.

(d) Effect. A Letter of Opinion on Local Taxation states the official position of the Department on certain matters pertaining to assessment, classification and administration of local taxes and municipal finance. The Department will use a Letter of Opinion on Local Taxation as precedent in the disposition of cases unless and until it is revoked or modified under 830 CMR 62C.3.1(9)(e)2. or otherwise. A person may rely upon a Letter of Opinion on Local Taxation unless and until it is revoked or modified. A person may rely upon a Letter of Opinion on Local Taxation, however, only if the facts, circumstances and issues presented by the person's situation are substantially similar to those set forth in the Letter of Opinion on Local Taxation. Any person relying on a Letter of Opinion on Local Taxation must consider the effect of later legislation, regulations, court decisions, rulings, Informational Guideline Releases and Letters of Opinion on Local Taxation.

(e) Procedure for Issuing, Revoking or Modifying a Letter of Opinion on Local Taxation.

1. Issuance. The Commissioner may issue a Letter of Opinion on Local Taxation without notice or public hearing.

2. Revocation or Modification. The Commissioner may revoke or modify a Letter of Opinion on Local Taxation by issuing a revocation or modification in the same manner as a Letter of Opinion of Local Taxation is issued. A revocation or modification shall identify the Letter of Opinion on Local Taxation and any other public written statements affected, and the extent of the revocation or modification. However, a Letter of Opinion on Local Taxation that does not expressly identify an inconsistent prior public written statement, document or other material nonetheless supersedes the earlier item to the extent of any inconsistency.

(f) Prospective Application. A Letter of Opinion on Local Taxation is prospective in effect, except to the extent that it expressly provides otherwise.

(10) Materials that are not Public Written Statements. The Commissioner issues other materials that are not public written statements within the meaning of 830 CMR 62C.3.1(2). These include, but are not limited to the following:

(a) Tax Forms and Instructions.

1. General. The Massachusetts General Laws require taxpayers and others to file tax returns and other statements of information with the Department and to pay timely all taxes due. The Department develops and publishes tax forms and instructions for taxpayers to use in preparing and filing tax returns and other statements of information.

2. Definition. Tax forms and instructions are the various forms, instructions, certificates, applications and other documents prescribed and furnished by the Commissioner for the filing of returns and any other statements of information with the Department.

3. Effect.

a. Requirements stated in tax forms and instructions. Tax forms and instructions state the requirements of what information must be provided to the Department and the manner in which information must be provided. Every person filing a return or other statement of information with the Department shall carefully prepare the return or other statement of information, setting forth fully, clearly and accurately the information required to be included. Returns and statements of information which have not been so prepared will not meet the requirements of law.

b. Errors in tax forms and instructions. Nothing contained in tax forms and instructions supersedes, alters or otherwise affects provisions of the Massachusetts General Laws, Massachusetts regulations, court decisions, rulings or any other sources of the law. If tax forms or instructions contain an error, the Commissioner will attempt to communicate the correction to those affected, in the manner the Commissioner decides is appropriate.

c. Continued effect of tax forms and instructions. Tax forms bearing a date (such as personal income tax returns) and their associated instructions apply only to the taxable year or period for which they are issued. Other tax forms and their associated instructions are effective only until such time as they are revised or updated. Revised tax forms and instructions supersede all prior tax forms and instructions for the year to which they apply.

4. Penalties of Perjury. Returns required by M.G.L. c. 62C shall contain a declaration that they are made under the penalties of perjury. The Commissioner may, in his discretion, require that any other tax form or statement of information contain a declaration that it is made under the penalties of perjury.

5. Availability. The public may obtain tax forms and instructions from the Customer Service Bureau, Massachusetts Department of Revenue and many forms and instructions can be printed from the Department's website.

(b) Taxpayer Publications. The Department issues various taxpayer publications to explain various aspects of the Massachusetts tax laws to the general public. Taxpayer publications are developed as general information guides to enable taxpayers to become more familiar with their rights and responsibilities under the Massachusetts tax laws. Each taxpayer publication will ordinarily contain the following or a similar notice:

The purpose of those publications is to provide general information about Massachusetts tax laws and Department of Revenue policies and procedures. They are not designed to address all questions which may arise nor to address complex issues in detail. Nothing contained in these publications supersedes, alters or otherwise changes any provision of the Massachusetts General Laws, Massachusetts Department of Revenue Regulations, Department rulings or any other sources of the law.

(c) Other Written Materials.

1. General. From time to time the Department may, as the Commissioner deems appropriate, publish or issue written materials that are not otherwise described in this regulation, 830 CMR 62C.3.1, or in other regulations of the Department.

2. Effect. Ordinarily, such written materials of the Department provide information. They do not supersede, alter or otherwise affect provisions of the Massachusetts General Laws, Massachusetts regulations, Department rulings or any other sources of the law. They may not be relied upon, used or cited as precedent in the disposition of cases. If the Department intends that the effect of a particular document is different from the informational effect described in 830 CMR 62C.3.1(10)(c), the document will state its intended effect.

(11) Revocation of Outdated Documents or Materials.

(a) Documents Revoked. With exceptions noted in 830 CMR 62C.3.1(11)(c), any document, letter, instruction, ruling or other public written statement that is not in the latest published version of the official MASSTAX Guide and Supplements or Code of Massachusetts regulations is obsolete and revoked. To the extent that any such document or other item had any effect prior to the promulgation of 830 CMR 62C.3.1, the revocation of such document or other item is effective prospectively from the date of promulgation of 830 CMR 62C.3.1. In addition, any outstanding classified permits issued under M.G.L. c. 64H, § 9 or M.G.L. 64I, § 11, are revoked.

(b) Current Series of Public Written Statements in the Latest Published Version of the Official MASSTAX Guide and Supplements or Code of Massachusetts Regulations Not Revoked. For purposes of this section, the "current series of public written statements published in the latest version of the official MASSTAX Guide and Supplements or Code of Massachusetts Regulations" includes any regulations promulgated under the commissioner's authority to administer the tax, child support, or other laws of Massachusetts pursuant to M.G.L. c. 62C, §§ 2 and 3, or M.G.L. c. 119A, or other authorizing provision; Technical Information Releases 74-1 to the present, Department of Revenue Directives 86-1 to the present; and Department of Revenue Letter Rulings 77-1 to the present.

(c) Exceptions; Other Materials Not Revoked. The following are not revoked under 830 CMR 62C.3.1(10)(a): Informational Guideline Releases described in 830 CMR 62C.3.1(4) and Letters of Opinion on Local Taxation described in 830 CMR 62C.3.1(5) issued by the Department's Division of Local Services. Additionally, certain other materials that are not public written statements remain effective notwithstanding 830 CMR 62C.3.1(11), to the extent that they have not been revoked, modified, or superceded by other legal authorities or documents or otherwise. These include Administrative Procedures 101 through 635, inclusive; most recently published Guides, such as A Guide to Sales and Use Tax, A Guide to the Department of Revenue, Your Taxpayer Bill of Rights, and similar Guides, published electronically or in hard copy; any document issued by the Child Support Enforcement unit of the Department of Revenue; any letter establishing security corporation or manufacturing corporation classification pursuant to M.G.L. c. 63; nexus determinations issued under 830 CMR 63.39.1(9); and any Form ST-2, Certificate of Exemption. Tax forms and instructions remain in effect to the extent provided in 830 CMR 62C.3.1(10)(a)3.

(d) Reapplication. Any taxpayer or other person wishing to rely prospectively on any written materials revoked under this section must apply to the Rulings and Regulations Bureau of the Department of Revenue for a determination or ruling regarding the validity of the document in question.

(e) Effect of this section on existing current series of public written statements. Nothing in this section, 830 CMR 62C.3.1(11), shall be construed to alter any existing revocation or modification of documents comprising the current series of public written statements as defined in 830 CMR 62C.3.1(11)(b). For example, if a 1994 Technical Information Release indicates that it partially or wholly revokes a 1993 Directive, the 1993 Directive's partially or wholly revoked status remains revoked and is not affected by this section. Furthermore, excluding the current series of public written statements in the latest published version of the Official MASSTAX Guide and Supplements from the revocation provisions of 830 CMR 62C.3.1(11) is not intended to sanction or reaffirm the validity of any of those documents. The validity of all such documents must be evaluated in light of later legislation, court decisions, regulations and public written statements.

REGULATORY AUTHORITY
830 CMR: 62C.3.1: M.G.L. c. 14, § 6(1); M.G.L. c. 62C, § 3
Date of Promulgation: 7/13/07