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A domestic or foreign corporation has a nexus in Massachusetts if it is exercising or continuing its charter or it is actually doing business in Massachusetts
Under Massachusetts law, "doing business," includes every act, power, right, privilege, and immunity exercised or enjoyed in the Commonwealth, as an incident or by virtue of the powers and privileges acquired by the nature of such organizations, as well as, the buying, selling or procuring of services or property.
Examples of activities in Massachusetts that subject corporations to the excise include:
Maintenance of a place of business
Employment of labor
Owning or using any part of its capital, plant or other property
Renting, leasing, buying, selling or procuring services or real or tangible property
Execution of contracts or exercise or enforcement of contract rights
Installation, assembly or servicing of products by the corporation's employees.
For additional information on corporate nexus, please refer to Regulation 830 CMR 63.39.1.
Public Law 86-272 excludes from state net income-based taxation those interstate activities constituting mere solicitation of orders for:
The following are activities that ordinarily fall within the scope of "solicitation" under Public Law 86-272:
Activities including advertising related to generating retail demand for manufacturer products or distributor by promoting the products to retailers who order the products from a wholesaler or other middleman
Carrying samples only for display or for distribution without charge or other consideration
Owning or providing automobiles to sales representatives, as long as the vehicles are used only for solicitation purposes
Passing inquiries and complaints on to the home office
Incidental and minor advertising
Checking customers' inventories for reorder only
Maintaining a sample or display area for an total of 14 calendar days or less during the tax year, as long as no sales or other activities inconsistent with solicitation take place;
soliciting of sales by an in-state resident representative who maintains No in-state sales office or Place of business; and Training or holding periodic meetings of sales representatives.
Even though a corporation’s activities may be protected by P.L. 86-272, if it otherwise has nexus in Massachusetts (such as having even a single [one] employee based in Massachusetts), it will be liable for the non-income measure of the corporate excise and therefore required to file a corporate excise return. See G.L. 63, § 39, as amended. See also TIR 08-11, Section V.
The Rulings and Regulations Bureau no longer issues nexus determinations because of the difficulty in evaluating complex facts and circumstances that may create nexus.
You may use the nexus questionnaire to evaluate the activities of your corporation, or if you are requested to complete the questionnaire by the Audit Division, you should return the questionnaire to the requestor.