| Date: | 04/07/2017 |
|---|---|
| Organization: | Massachusetts Department of Revenue |
| Regulatory Authority: | Massachusetts General Laws |
| Official Version: | Published by the Massachusetts Register |
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830 CMR 62C.3.1 is repealed and replaced with the following: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
(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 that 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 types of 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.
(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. Directives and Technical Information Releases
6. Letter Rulings
7. Informational Guideline Releases
8. Local Finance Opinions
9. Materials That are not Public Written Statements
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 that are within the official purview of the Department, the regulations thereunder, and related statutes and regulations that are within the official purview of the Department.
MASSTAX Guide, an official publication produced by the Department and Thompson Reuters or a successor on an annual basis with periodic supplements containing the Department’s public written statements, selected forms and instructions, and other materials.
Public Written Statements, official pronouncements of the Department, specifically: regulations described in 830 CMR 62C.3.1(4), Directives described in 830 CMR 62C.3.1(5), Technical Information Releases described in 830 CMR 62C.3.1(5), Letter Rulings described in 830 CMR 62C.3.1(6), Informational Guideline Releases described in 830 CMR 62C.3.1(7), and Local Finance Opinions described in 830 CMR 62C.3.1(8). All public written statements in effect are included in the latest published version of the official MASSTAX Guide and Supplements or published on the Department’s website at http://www.mass.gov/dor.
The Department may issue regulations and other public written statements relating to the Massachusetts tax laws and other matters within the official purview of the Department. 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 issued by the Commissioner that are not public written statements should be viewed as informational only and are not considered to be official policy statements of the Department. The Department shall use public written statements in its oversight and administration of the Massachusetts tax laws until they are revoked, modified, or superseded, whether by a direct DOR pronouncement or as a result of a change in the Massachusetts tax laws, later court decisions, or subsequent public written statements.
The Department may adopt, amend or repeal regulations, including emergency 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 M.G.L. c. 62C, § 3. The Commissioner shall issue notice for the adoption, amendment, or repeal of regulations in accordance with the requirements set forth in M.G.L. c. 30A. A regulation under this section has the same meaning as a “regulation” defined under M.G.L. c. 30A, § 1.
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. Requests concerning regulations should be sent in writing to the Bureau Chief, Rulings and Regulations Bureau, Massachusetts Department of Revenue, 100 Cambridge St., Boston, MA 02114.
(a) General. In its discretion, the Department may issue Directives and Technical Information Releases (TIRs).
(b) Directives. A Directive is a public written statement, signed by the Commissioner, which clarifies the Department’s application and interpretation of the Massachusetts tax laws or the Department’s current policies and practices in order to assist taxpayers in complying with their Massachusetts tax obligations.
(c) Technical Information Releases. A TIR is a public written statement, signed by the Commissioner, 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. Within four months of a final court decision interpreting Massachusetts tax law, the Department will issue a TIR setting forth the Department’s position relative to that decision where required by M.G.L. c. 62C, § 3.
(d) Effect of Directives and TIRs. Directives and TIRs are precedential and state the official position of the Department. Directives and TIRs may be relied upon by taxpayers until they are revoked, modified, or superseded, whether by a direct DOR pronouncement or as a result of a change in the Massachusetts tax laws, later court decisions, or subsequent public written statements.
(a) General. In its discretion, the Department may issue a Letter Ruling in response to a question from an individual or an organization about the application of the Massachusetts tax laws to a particular transaction or other set of facts.
(b) Definition. A Letter Ruling is an "advisory ruling" as defined in M.G.L. c. 30A, § 8, issued by the Department in writing to a taxpayer or the taxpayer’s authorized representative that interprets and applies the Massachusetts tax laws to a specific transaction or other set of facts.
(c) Letter Rulings Pertaining to Specific Transactions. The Department will generally only issue a Letter Ruling that is requested with respect to a particular transaction when that transaction is prospective. If a transaction has been completed, the Department may, in its discretion, issue a Letter Ruling, but generally only if the taxpayer’s tax return for the taxable period in which the transaction was completed has not yet been filed.
(d) Circumstances Where the Department Will Not Issue a Letter Ruling. The Department may decline to issue a Letter Ruling for any reason. The Department does not generally issue a Letter Ruling where:
1. The request for a Letter Ruling presents the same or a similar issue that the Department knows or has reason to believe is before it in connection with an examination or audit of the liability of the same taxpayer for the same or any other prior period.
2. The request for a Letter Ruling pertains to hypothetical situations.
3. The request for a Letter Ruling does not identify the taxpayer or taxpayers.
4. The request for a Letter Ruling pertains to an issue that is adequately addressed by the Massachusetts tax laws, public written statements, or a decision of the Massachusetts or federal courts.
5. The request for a Letter Ruling raises issues that are inherently factual, including, but not limited to, questions of domicile or nexus.
(e) Requirements for a Request for a Letter Ruling.
1. Each request for a Letter Ruling must contain a complete written statement of all relevant facts relating to the transaction or other subject of the requested Letter Ruling. Such statement must include the name, address, and taxpayer identification number of the taxpayer and any pertinent related parties; a full and precise statement of the business reasons for the transaction or other action that may be contemplated; and a carefully detailed description of the transaction or other subject of the requested ruling. The Department does not issue Letter Rulings upon oral requests.
2. Copies of all documents relevant to the requested Letter Ruling must be submitted as part of the request. The pertinent facts reflected in the documents submitted must be highlighted in the taxpayer's statement of the facts and not merely incorporated by reference, and must be accompanied by an analysis of their relevance to the issue or issues, specifying the applicable provisions of the Massachusetts tax laws. Where the request pertains to only one step of an integrated transaction, the facts and circumstances must be detailed with respect to the entire transaction.
3. The request must contain a statement whether, to the best of the knowledge of the taxpayer or the taxpayer’s representative, a similar or identical issue is being considered by the Department in connection with an active examination or an audit of the liability of the same taxpayer or a related party for the same or any other prior period.
4. If a request for a Letter Ruling on the same transaction or issue has been or is being submitted to the Internal Revenue Service or the taxing authority of another state, the request for a Letter Ruling to the Department must disclose this fact.
5. A request for a Letter Ruling must state the taxpayer’s view as to the correct tax result and furnish a statement of relevant authorities to support such view.
6. A request for a Letter Ruling by or for a taxpayer must be signed by the taxpayer or his authorized representative. If the request for a Letter Ruling is made by a taxpayer’s representative, a duly executed power of attorney (Form M-2848) must be provided to the Department.
7. A request for a Letter Ruling should be addressed to the Commissioner of Revenue, 100 Cambridge Street, Boston, Massachusetts 02114; Attention: Rulings and Regulations Bureau.
8. The Department will acknowledge receipt of all requests for Letter Rulings. If a request for a Letter Ruling does not comply with the provisions of this regulation, the Department will advise the taxpayer of the requirements that have not been met.
(f) Conferences. A taxpayer seeking a Letter Ruling may request a conference with the Department. Such a conference, held either in person or by telephone, would be informal in nature and conducted for the purpose of discussing the issues raised by the request for Letter Ruling. A conference will only be scheduled when the Department concludes that it would be useful in making the determination. The conference shall not be construed as an "adjudicatory proceeding" as defined by M.G.L. c. 30A.
(g) Request for Additional Information. The Department may request that the taxpayer or the taxpayer’s representative submit additional information or documents in connection with a request for a Letter Ruling.
(h) Withdrawal of Requests. The taxpayer's request for a Letter Ruling may be withdrawn at any time prior to the issuance of the Letter Ruling. However, in such a case, the Department may consider the information submitted by the taxpayer in the request for a Letter Ruling in any subsequent audit or examination by the Department of the taxpayer's return. Even though a request is withdrawn, all correspondence and exhibits will be retained by the Department. Notwithstanding a taxpayer’s withdrawal of its request for a Letter Ruling, the Department may decide to issue a generally-applicable public written statement on the same or similar issues that were presented in the request.
(i) Effect of Letter Rulings.
1. A taxpayer may rely on a Letter Ruling issued to that taxpayer unless and until the Letter Ruling is revoked, modified, or superseded, whether by a direct DOR pronouncement or as a result of a change in the Massachusetts tax laws, later court decisions, or subsequent public written statements.
2. A Letter Ruling issued to a taxpayer with respect to a particular transaction represents a determination of the Department on that transaction only.
(j) Confidentiality.
1. Persons requesting a Letter Ruling must do so on the basis that the text of any Letter Ruling will be published in the manner described in 830 CMR 62C.3.1(6)(k), subject to the redactions hereinafter described. Persons requesting a Letter Ruling waive all rights to prevent disclosure of the text of the Letter Ruling, except as such rights are provided in 830 CMR 62C.3.1(6)(j)(2).
2. Before publishing any Letter Ruling under 830 CMR 62C.3.1(6)(k) the Department shall redact:
a. the names, addresses, and other identifying details of the person to whom the Letter Ruling pertains and of any other person identified therein;
b. information specifically exempted from disclosure by any statute that is applicable to the Department;
c. information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
d. any information the Department deems to be exempt from public disclosure under M.G.L. c. 4, § 7, Paragraph 26 or other law.
The Department will treat information redacted pursuant to this paragraph as confidential taxpayer information prohibited from disclosure under M.G.L. c. 62C, § 21.
Before publishing a Letter Ruling, the Department will, at the taxpayer’s request, give the taxpayer an opportunity to indicate whether the Letter Ruling in its proposed redacted form contains information that the taxpayer believes should also be redacted as confidential. The Department shall ultimately make the final determination as to what contents are confidential and subject to redaction.
(k) Publication of Letter Rulings. The Department will publish Letter Rulings in the MASSTAX Guide and on the Department’s website at http://www.mass.gov/dor and may take steps to bring Letter Rulings to the attention of the news media and publishers of tax services.
(a) General. In its discretion, the Department may issue Informational Guideline Releases (IGRs).
(b) Definition. An IGR is a public written statement issued by the Department's Division of Local Services under the authority of M.G.L. c. 44 and 58, on matters pertaining to assessment, classification, and administration of local taxes and municipal finance. An IGR promotes the uniform oversight and administration of Massachusetts local tax laws and finance laws by the Department and assists local officials in complying with the Massachusetts local tax and finance laws. An IGR may include standards of local assessment performance and accounting, studies, cost and price schedules, news and reference bulletins, digests of law on local tax and finance, and any other information that the Department deems appropriate.
(c) Effect. IGRs are precedential and state the official position of the Department. IGRs may be relied upon by local officials until they are revoked, modified, or superseded, whether by a direct DOR pronouncement or as a result of a change in the Massachusetts tax laws, later court decisions, or subsequent public written statements.
(a) General. In its discretion, the Department may issue Local Finance Opinions.
(b) Definition. A Local Finance Opinion is a public written statement issued by the Department's Division of Local Services that clarifies, explains, or elaborates upon Department policy, practice, or interpretation pertaining to specific local tax or finance questions, issues, or matters not addressed in another public written statement. A Local Finance Opinion promotes the uniform oversight and administration of Massachusetts local tax laws and finance laws by the Department and assists local officials in complying with the Massachusetts local tax and finance laws.
(c) Effect. Local Finance Opinions are precedential and state the official position of the Department. Local Finance Opinions may be relied upon by local officials unless and until they are revoked, modified, or superseded, whether by a direct DOR pronouncement or as a result of a change in the Massachusetts tax laws, later court decisions, or subsequent public written statements.
The Department issues other materials of an informational nature 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 timely file tax returns and other statements of information with the Department and to pay timely all taxes due. The Department develops and publishes various tax forms, instructions, certificates, applications, and others documents for taxpayers, which may be in an electronic format, to use in preparing and filing tax returns and other statements of information.
2. Effect.
a. Requirements Stated in Tax Forms and Instructions. Tax forms and instructions state 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 set forth fully, clearly, and accurately the information required to be included.
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, court decisions, public written statements or any other sources of law. If tax forms or instructions contain an error, the Department will attempt to communicate the correction to those affected, in the manner the Department decides is appropriate.
c. Continued Effect of Tax Forms and Instructions. Tax forms specific to a particular tax year or period (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 taxable year or period to which they apply.3. Penalties of Perjury. Returns required by M.G.L. c. 62C shall contain a declaration that they are made under the penalties of perjury. In its discretion, the Department may require that any other tax form or statement of information contain a declaration that it is made under the penalties of perjury.
4. Availability. Tax forms and instructions are available on the Department’s website at http://www.mass.gov/dor.
(b) Publications. The Department issues various publications to explain aspects of the Massachusetts tax laws to the general public. Publications are developed as general information guides to enable taxpayers to become more familiar with their rights and responsibilities under the Massachusetts tax laws.
(c) Information Letters. An "information letter" is a statement issued by the Department in response to an inquiry from an individual or organization that states an interpretation or well-established principle of tax law, without applying it to a specific set of facts. An information letter may be issued when the nature of the request from an individual or an organization suggests that the requester is seeking general information, or where the request does not meet all the requirements for a request for Letter Ruling as outlined in section (6)(e) of this regulation.
An information letter issued by the Department is informational only and cannot be relied upon.
(d) Other Written Materials.
1. General. In its discretion, the Department may publish or issue written materials that are not otherwise described in 830 CMR 62C.3.1 or in other regulations of the Department.
2. Effect. Ordinarily, such written materials of the Department serve an informational and advisory purpose only. They do not supersede, alter or otherwise affect provisions of the Massachusetts General Laws, Department public written statements or any other source of law. If the Department intends that the effect of a particular document is different from the informational effect described herein, the document will state its intended effect.
REGULATORY AUTHORITY
830 CMR: 62C.3.1: M.G.L. c. 14, § 6(1); M.G.L. c. 62C, § 3
Date of Promulgation: 4/7/17
