The Massachusetts Appellate Tax Board (ATB) issued a decision in favor of the taxpayer in Bloomingdale's, Inc. v. Commissioner of Revenue, A.T.B. Docket No. C258696 (2003). In that decision, the ATB concluded that various direct mail advertising materials sent to Bloomingdale's customers and prospective customers were exempt under G.L. c. 64H, § 6(ff). On April 12, 2005, Massachusetts Appeals Court affirmed the decision of the ATB. Bloomingdale's, Inc. v. Commissioner of Revenue, 63 Mass. App. Ct. 1110 (2005). [1]

Effective August 9, 2004, the legislature clarified G.L. c. 64H, § 6(ff) specifically to exclude "mail order catalogs, department store catalogs, telephone directories, or similar printed advertising books, booklets or circulars greater than 6 pages in total length" from the exemption. See TIR 04-26. The purpose of this TIR is solely to clarify the Department's position on the taxability of direct and cooperative direct mail promotional advertising materials for open tax periods prior to August 9, 2004, whether or not they are currently under audit by the Department or on appeal or within the statute of limitations for filing an abatement under G.L. c. 62C, § 37.

For open tax periods prior to August 9, 2004, the Department will treat the exemption for "direct and cooperative direct mail promotional advertising materials" in G.L. c. 64H, § 6(ff) as including discount coupons, advertising leaflets and similar printed advertising such as mail order and department store catalogs that are mailed to a customer list using either the United States Post Office or other common carrier, without regard to the 6 page limitation applicable to periods after August 9, 2004. In order to be exempt, the materials must also meet all other requirements of the statute in effect for those periods. Telephone and other directories containing advertisements will not be treated as exempt for any periods, either before or after the amendment to G.L. c. 64H, § 6(ff). See Verizon Yellow Pages v. Commissioner of Revenue, A.T.B. Docket No. C262642 (2004).

The policy announced in this TIR applies to all open tax periods within the meaning of G.L. c. 62C, § 26 and G.L. c. 62C, § 37. Taxpayers, including retailers or printers, who have remitted tax on materials that are exempt for the periods covered by this TIR may file an application for abatement, Form CA-6, within the limitations period for filing such claims.

 

/s/Alan LeBovidge
Alan LeBovidge
Commissioner of Revenue

 

AL:LEM:ecl

June 6, 2005

TIR 05-6
 


[1] An unpublished order rendered under Rule 1:28 of the Rules of the Appeals Court was issued April 12, 2005. A formal opinion from the Appeals Court has been requested by the Department.