On October 18, 2019, the Massachusetts Department of Revenue promulgated a revised regulation (830 CMR 63.39.1) addressing the circumstances under which corporations will be subject to Massachusetts corporate excise tax. The regulation notes at the outset that the Commissioner will construe the state’s tax jurisdiction to the fullest extent permitted by the U.S. Constitution and federal law. Examples of contacts and other incidents that will typically subject a corporation to Massachusetts’ taxing jurisdiction are set forth in the regulation, including, but not limited to, owning or using property in the state, having employees or representatives in the state, or owning or using intangible property in the state. A new “catch-all” provision, which includes a cite to the Wayfair decision, applies to companies that lack any of the specifically enumerated contacts but that have considerable in-state sales derived through either economic or virtual contacts. It is presumed that a general business corporation’s virtual and economic contacts subject it to Massachusetts tax when the volume of the corporation’s Massachusetts sales for the taxable year exceeds $500,000. In addition to providing certain exceptions to the general rule, the regulation also addresses when financial institutions, insurance companies, and corporate partners will be subject to tax in Massachusetts. Please stay tuned to TWIST for future nexus updates.
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