c. 64H, § 6. Exemptions
Section 6. The following sales and the gross receipts therefrom shall be exempt from the tax imposed by this chapter:—
(a) Sales which the commonwealth is prohibited from taxing under the constitution or laws of the United States.
(b) Sales of tangible personal property in transit or stored at points of entry intended for export or import or which the vendor is obligated under the terms of any agreement to deliver (1) to a purchaser outside the commonwealth or to a designee outside the commonwealth of a purchaser outside the commonwealth or (2) to an interstate carrier for delivery to a purchaser outside the commonwealth or to a designee outside the commonwealth of a purchaser outside the commonwealth.
(c) Casual and isolated sales by a vendor who is not regularly engaged in the business of making sales at retail; provided, however, that nothing contained in this paragraph shall be construed to exempt any such sale of a motor vehicle or trailer, as defined in section one of chapter ninety, or any such sale of a boat or airplane from the tax imposed under chapter sixty-four I.
(d) Sales to the United States, the commonwealth or any political subdivision thereof, or their respective agencies.
(e) Sales to any corporation, foundation, organization or institution, which is exempt from taxation under the provisions of section five hundred and one (c)(3) of the Federal Internal Revenue Code, as amended, and in effect for the applicable period; provided, however, that such sales shall not be exempt unless (1) the tangible personal property or services which are the subject of such sales is used in the conduct of such religious, charitable, educational or scientific enterprise, (2) such corporation, foundation, organization or institution shall have first obtained a certification from the commissioner stating that it is entitled to such exemption, and (3) the vendor keeps a record of the sales price of each such separate sale, the name of the purchaser, the date of each such separate sale, and the number of such certificate. The certificate of exemption issued by the commissioner under clause (2) shall be effective for a period of 10 years from the date of its issuance or until January first, nineteen hundred and eighty-four, whichever shall last expire provided that ninety days prior to said date the commissioner shall notify such corporation, foundation, organization or institution of the expiration date of said certificate. Such corporation, foundation, organization or institution must obtain from the commissioner a renewal of such certificate in order to be entitled to a continuance of such exemption beyond the expiration date of any existing certificate.
(f) Sales of building materials and supplies to be used in the construction, reconstruction, alteration, remodeling or repair of (1) any building structure, public highway, bridge or other public works owned by or held in trust for the benefit of any governmental body or agency mentioned in paragraph (d) and used exclusively for public purposes; (2) any building or structure owned by or held in trust for the benefit of any corporation, foundation, organization or institution described in paragraph (e) and used exclusively in the conduct of its religious, scientific, charitable or educational purposes; (3) any building, structure, residence, school or other facility included under any written contract dated on or after January 1, 1985 arising out of or related to the Massachusetts Port Authority residential and school soundproofing programs, notwithstanding whether such building, structure, residence, school or other facility is owned by or held in trust for the benefit of the Massachusetts Port Authority or is used exclusively for public purposes; provided, however, that such governmental body or agency or such corporation, foundation, organization or institution shall have first obtained a certificate from the commissioner stating that it is entitled to such exemption and the vendor keeps a record of the sales price of each such separate sale, the name of the purchaser, the date of each such separate sale and the number of such certificate; and (4) any building or structure located in a Marine Industrial Park, as defined by 310 C.M.R. 9.02; provided, however, that said building or structure is exclusively used for agricultural production or seafood processing or as a seafood storage facility, notwithstanding whether such building or structure is owned by or held in trust for the benefit of any governmental body or agency mentioned in paragraph (d) and used exclusively for public purposes; provided, further, that if the building or structure ceases to be used exclusively for agricultural production or seafood processing or as a seafood storage facility, use tax shall accrue on a portion of the sales price on which the exemption was claimed that is proportionate to the remaining useful life of the property. In this paragraph the words ''building materials and supplies'' shall include all materials and supplies consumed, employed or expended in the construction, reconstruction, alteration, remodeling or repair of any building, structure, public highway, bridge or other such public work, as well as such materials and supplies physically incorporated therein. Said terms shall also include rental charges for construction vehicles, equipment and machinery rented specifically for use on the site of any such tax exempt project or while being used exclusively for the transportation of materials for any such tax exempt project.
(g) Sales of tangible personal property includable in the measure of the excises levied under the provisions of chapters sixty-four A, sixty-four E, 64F and 138.
(h) Sales of food products for human consumption. ''Food products'' includes cereals and cereal products, flour and flour products, milk and milk products, including ice cream, oleomargarine, meat and meat products, fish and fish products, eggs and egg products, vegetables and vegetable products, fruit and fruit products, soft drinks, herbs, spices and salt, sugar and sugar products, candy and confectionery; coffee and coffee substitutes, tea, cocoa and cocoa products; and ice when used for household consumption. ''Food products'' does not include alcoholic beverages as defined in chapter one hundred and thirty-eight except as hereinafter provided, marijuana products intended for consumption as provided in the definition of ''marijuana products'' in section 1 of chapter 94G, medicines, tonics and preparations in liquid, powdered, granular, tablet, capsule, lozenge and pill form sold as dietary supplements or adjuncts. ''Food products'' does not include meals consisting of any of the items defined as food products in this paragraph for consumption on or off the premises where sold.
''Honor snack tray'', any vending arrangement in which only candy or snacks are available in an open tray for the benefit of employees in an establishment that normally does not sell food or food products and for which payment is made on the honor system.
''Meals'' shall mean any food or beverage, or both, prepared for human consumption and provided by a restaurant, where the food or beverages is intended for consumption on or off the restaurant premises, and includes food or beverages sold on a ''take out'' or ''to go'' basis, whether or not they are packaged or wrapped and whether or not they are taken from the premises of the restaurant.
''Restaurant'', shall mean any eating establishment where food, food products, or beverages are provided and for which a charge is made, including but not limited to, a cafe, lunch counter, private or social club, cocktail lounge, hotel dining room, catering business, tavern, diner, snack bar, dining room, vending machine, and any other place or establishment where food or beverages are provided, whether stationary or mobile, temporary or permanent; provided, however, that delicatessen, grocery, market or bakery stores shall not be considered eating establishments within the meaning of this chapter except for any part of such a store which engages, in the sale of dinners, luncheons, barbecued chicken, other than barbecued chicken sold whole and unsliced, sandwiches, snacks, pizzas, and other similar items which are commonly sold at snack bars, coffee shops or luncheon counters; provided, further, that such stores shall not be deemed to be restaurants under this chapter based solely on the preparation and sale of prepared meat, poultry and fish items if such sales constitute less than a major portion of the total sale of such stores; and provided, further, that a vending machine or honor snack tray shall not be considered an eating establishment within the meaning of this chapter in the instance in which it sells only snacks or candy with a sales price of less than $3.50; and, provided further, that a bed and breakfast establishment or bed and breakfast home, as defined in chapter sixty-four G, shall not be considered an eating establishment within the meaning of this chapter where the value of a breakfast served is included in the rent subject to tax under said chapter sixty-four G.
The following food or beverages sold by a restaurant for consumption off the restaurant premises shall not be deemed to be a meal for the purposes of this chapter:— (a) Food sold by weight, liquid or dry measure, count, or in unopened original containers or packages, including, but not limited to, meat, bread, milk, specialty foods, cream and ice cream; provided, that such foods are commonly sold in such manner in a retail food store which is not a restaurant; (b) Beverages in unopened original containers or packages when sold as a unit having a capacity of at least twenty-six fluid ounces; and (c) Bakery products including but not limited to doughnuts, muffins, bagels, and similar items sold in units of six or more. Prepared meals, snacks, sandwiches, food platters, poultry, fish or meat items, or other food combinations, to the extent that such items are sold by a restaurant whose principal business is the preparation or sale of such items in such form as to be available for immediate consumption without further significant preparation, whether for on or off premise consumption, shall not be excluded under clause (a), (b), or (c).
(i) The sales, furnishing or service of (1) water; (2) gas, steam or electricity used for residential purposes; (3) gas, steam or electricity which are consumed and used directly and exclusively in an industrial plant in the actual manufacture of tangible personal property to be sold or in the heating of such industrial plant; provided that the exemption under this subparagraph (3) shall only be allowed with respect to a metered building, location or premises at which not less than seventy-five percent of the gas, steam or electricity consumed at such metered building, location or premises is used for the purposes of such manufacturing or heating; and the term ''industrial plant'' shall mean a factory at a fixed location primarily engaged in the manufacture, conversion or processing of tangible personal property to be sold in the regular course of business; and (4) residential main telephone services billed on a monthly recurring basis or billed as message units, and residential intra local access and transport area service billed on a recurring monthly basis; provided that such exemption under this subparagraph (4) shall not exceed the amount of thirty dollars per month.
(j) Sales of (1) fuel used for residential heating purposes; (2) fuel used for heating purposes in an industrial plant; provided that the exemption under this subparagraph (2) shall only be allowed with respect to a building, location or premises in which not less than seventy-five percent of the building, location or premises is used in the actual manufacture of tangible personal property to be sold; and the term ''industrial plant'' shall mean a factory at a fixed location primarily engaged in the manufacture, conversion or processing of tangible personal property to be sold in the regular course of business; and (3) fuel used in the operation of aircraft or used in the operation of railroads.
(k) Sales of articles of clothing, including footwear, intended to be worn or carried on or about the human body up to one hundred and seventy-five dollars of the sales price on any article of clothing. For the purposes of this section clothing or footwear shall not include special clothing or footwear primarily designed for athletic activity or protective use and which is not normally worn except when so used.
(l) Sales of medicine, insulin needles and insulin syringes on prescriptions of registered physicians and sales of insulin; sales of oxygen, blood or blood plasma; sales of artificial devices individually designed, constructed or altered solely for the use of a particular crippled person so as to become a brace, support, supplement, correction or substitute for the bodily structure including the extremities of the individual; sales of artificial limbs, artificial eyes, hearing aids and other equipment worn as a correction or substitute for any functioning portion of the body; sales of artificial teeth by a dentist and the materials used by a dentist in dental treatment; sales of eyeglasses, when especially designed or prescribed by an ophthalmologist, oculist or optometrist for the personal use of the owner or purchaser; sales of crutches and wheel chairs for the use of invalids and crippled persons; and sales of baby oil; and the rental, sales and repairs of kidney dialysis machines, enteral and parenteral feedings, and feeding devices, suction machines, physician-prescribed, medically necessary breast pumps, oxygen concentrators, oxygen regulators, oxygen humidifiers, oxygen masks, oxygen cannulas, ultrasonic nebulizers, life sustaining resuscitators, incubators, heart pacemakers, canes, all types of hospital beds for home use, tripod quad canes, breast prosthesis, alternating pressure pad units and patient lifts, when prescribed by a physician.
(m) Sales of newspapers, magazines, books required for instructional purposes in educational institutions, books used for religious worship, publications of any corporation, foundation, organization or institution described in paragraph (e) of this section and produced in an accessible format, including, but not limited to, braille, enlarged print, audio or electronic text, for use by individuals unable to read other print due to disability, and motion picture films for commercial exhibition.
(n) Sales of coffins, caskets, burial garments or other materials which are ordinarily sold by a funeral director as part of the business of funeral directing.
(o) Sales of vessels or barges of fifty tons burden or over when constructed in the commonwealth and sold by builders thereof; sales of fuel or substitute therefor, supplies and repairs to vessels engaged in foreign and interstate commerce and sales of vessels used directly and exclusively in commercial fishing, machinery and equipment therefor and replacement parts for such vessels, machinery and equipment.
(p) (1) Sales of livestock and poultry of a kind which ordinarily constitute food for human consumption; (2) sales of feed, including the bags in which the feed is customarily contained, for livestock and poultry of a kind which ordinarily constitute food for human consumption or are to be sold in the regular course of business or for animals produced for research, testing, or other purposes relating to the promotion or maintenance of the health, safety or well being of human beings or animals or for fur-bearing animals, the pelts of which are sold in the regular course of business; (3) sales of fertilizer, including ground limestone, hydrated lime, seed inoculants and plant hormones, as well as other substances commonly regarded in the same category and for the same use, but not including any sales of pesticides, including insecticides, herbicides, fungicides, miticides and all materials registered with the Environmental Protection Agency as pesticides under the Federal Insecticide, Fungicide and Rodenticide Act and other pesticides commonly regarded in the same category and for the same purpose, except when purchased by a person licensed under chapter 132B or otherwise exempt under paragraph (r); and (4) sales of plants, including parts of plants, suitable for planting to produce food for human consumption or when such plants, including parts thereof or the produce thereof, are to be sold in the regular course of business, including such items as seed potatoes, onion sets, asparagus roots, berry plants or bushes, and fruit trees.
(q) (1) Sales of both returnable and nonreturnable containers when sold without the contents to persons who place the contents in the container and sell the contents together with the container; (2) containers when sold with the contents if the sale price of the contents is not required to be included in the measure of the taxes imposed by this chapter; (3) returnable containers when sold with the contents or resold for refilling. As used in this paragraph the term ''returnable containers'' means containers of a kind customarily returned by the buyer of the contents for reuse. All other containers are ''nonreturnable'' containers. Nothing in this paragraph shall be construed so as to tax the sale of bags in which feed for livestock and poultry is contained.
(r) Sales of materials, tools and fuel, or any substitute therefor, which become an ingredient or component part of tangible personal property to be sold or which are consumed and used directly and exclusively in agricultural production; in commercial fishing; in an industrial plant in the actual manufacture of tangible personal property to be sold, including the publishing of a newspaper; in the operation of commercial radio broadcasting or television transmission; in the furnishing of power to an industrial manufacturing plant; in the furnishing of gas, water, steam or electricity when delivered to consumers through mains, lines or pipes; in the production of animals for research, testing, or other purposes relating to the promotion or maintenance of the health, safety or well being of human beings or animals or in research and development by a manufacturing corporation or a research and development corporation within the meaning of section forty-two B of chapter sixty-three. However, the exemption in this paragraph so far as it applies to sales of electricity, gas and steam consumed and used directly and exclusively in an industrial plant in the actual manufacture of tangible personal property to be sold shall be limited to the extent allowed in paragraph (i). For the purpose of this paragraph, the raising of poultry and livestock shall be construed to be included in the term ''agricultural production''; any material, tool or fuel shall be construed to be consumed and used only if its normal useful life is less than one year or if its cost is allowable as an ordinary and necessary business expense for federal income tax purposes or if it is nuclear fuel or a nuclear fuel assembly; and the term ''industrial plant'' shall mean a factory at a fixed location primarily engaged in the manufacture, conversion or processing of tangible personal property to be sold in the regular course of business.
(s) Sales of machinery, or replacement parts thereof, used directly and exclusively in agricultural production; in commercial fishing; in an industrial plant in the actual manufacture of tangible personal property to be sold, including the publishing of a newspaper; in the operation of commercial radio broadcasting or television transmission; in the furnishing of power to an industrial manufacturing plant; in the furnishing of gas, water, steam or electricity when delivered to consumers through mains, lines or pipes; in the production of animals for research, testing, or other purposes relating to the promotion or maintenance of the health, safety or well being of human beings or animals or in research and development by a manufacturing corporation or a research and development corporation within the meaning of section forty-two B of chapter sixty-three. For the purpose of this paragraph, the raising of poultry and livestock shall be construed to be included in the term ''agricultural production''; the term ''industrial plant'' shall mean a factory at a fixed location primarily engaged in the manufacture, conversion or processing of tangible personal property to be sold in the regular course of business; and machinery shall be deemed to be used directly and exclusively in the actual manufacture, conversion or processing of tangible personal property to be sold only where such machinery is used solely during a manufacturing, conversion or processing operation to effect a direct and immediate physical change upon the tangible personal property to be sold; to guide or measure a direct and immediate physical change upon such property where such function is an integral and essential part of tuning, verifying or aligning the component parts of such property; or to test or measure such property where such function is an integral part of the production flow or function; used solely to store, transport, convey or handle such property during the manufacturing, converting, or processing operations heretofore specified; or used solely to place such property in the container, package or wrapping in which such property is normally sold to the ultimate consumer thereof. Machinery used directly and exclusively in the actual manufacture, conversion or processing of any tangible personal property which is not to be sold and which would be exempt under paragraph (r) or this paragraph if purchased from a vendor thereof or machinery used during any manufacturing, converting or processing, conveying or packaging operation or function or for any other purpose, except as heretofore specified, shall not be exempt under this paragraph even though such operation, function or purpose is an integral or essential part of a continuous production flow or manufacturing process. Where a portion of a group of portable or mobile machinery is used directly and exclusively in the actual manufacture, conversion or processing of tangible personal property to be sold, as heretofore defined, the number represented by such portion, if otherwise qualifying, shall be exempt under this paragraph even though the machinery in said group is used interchangeably and not otherwise identifiable as to use.
(t) Sales of tangible personal property through coin operated vending machines at ten cents or less, provided the retailer is primarily engaged in making such sales and keeps records satisfactory to the commissioner.
(u) Sale of a motor vehicle purchased by and for the use of a person who has suffered loss, or permanent loss of use, of both legs or both arms or 1 leg and 1 arm or by and for the use of a veteran who has been determined to be permanently disabled by the medical advisory board established under section 8C of chapter 90 and has been issued a plate displaying the words ''Disabled Veteran'' or a Purple Heart distinctive registration plate pursuant to section 2J of said chapter 90; provided, however, that this exemption shall apply to 1 motor vehicle owned and registered only for the personal, noncommercial use of such person. A person who is otherwise eligible for this exemption and who was previously issued a Purple Heart distinctive registration plate shall not be required to forfeit such plate to remain eligible for this exemption.
(v) Sales of wearing materials or any cloth made up of natural or synthetic fibers and used for clothing purposes.
(w) Sales of the flag of the United States.
(x) Sales of fire trucks to any volunteer, nonprofit fire company or similar organization furnishing public fire protection, and sales of ambulances to any volunteer, nonprofit organization furnishing a public ambulance service, provided that such company or organization has first obtained a certification from the commissioner stating that it is entitled to this exemption.
(y) Sales of concrete mixing units or replacement parts thereof, to be mounted on truck chassis; provided, however, that sales of truck chassis shall not be exempt under this paragraph.
(z) All medical implements, pads, pouches and solutions purchased by a person who has undergone a colostomy or an ileostomy and which are used entirely as the result of such operation.
(aa) Sales of new and used motor buses used to provide scheduled, intracity local service (as defined by the department of telecommunications and energy), and repair or replacement parts therefor, and materials and tools used in and for the maintenance and repair thereof to, and for the use of common carriers of passengers by motor vehicle for hire, which hold at least one certificate, issued by the department of telecommunications and energy pursuant to the provisions of section seven of chapter one hundred and fifty-nine A. Upon receipt of appropriate evidence of the possession of such a certificate, the commissioner shall prepare and issue to any such duly certificated common carrier a statement that it is entitled to the exemption granted by this paragraph.
The presentation of a copy of the statement which the commissioner is required to prepare and furnish hereunder to the registrar of motor vehicles shall be deemed to constitute compliance with the provisions of the second paragraph of section twenty-five in respect to furnishing evidence of the payment of the tax which would otherwise be due under this chapter.
If any common carrier which qualifies for the exemption granted by this subsection (aa) should ever lose its exempt status hereunder and thereafter purchase any of the items of personal property enumerated hereinabove without paying in full the tax due, it shall be liable to pay interest on the entire unpaid portion of any tax due from it at the rate of six per cent per annum until paid.
Any vendor to whom a copy of the statement, which the commissioner is required to prepare and furnish hereunder, is furnished shall be entitled to rely thereon and he shall not be liable for the collection or payment of the tax which would otherwise be imposed by this chapter.
[There is no paragraph (bb).]
(cc) meals prepared by employees thereof and served in any hospital, sanatorium, convalescent or nursing home, or boarding home for the aged licensed under section seventy-one of chapter one hundred and eleven or in any institution or private house licensed under section twenty-nine of chapter nineteen; meals prepared by the members thereof and served on its premises by any church or synagogue or by any church or synagogue organization to any organization of such church or synagogue the proceeds of which are to be used for religious or charitable purposes; meals served to a resident in a facility providing continuing care to an individual which facility must provide a disclosure statement to a prospective resident as required by section seventy-six of chapter ninety-three; meals served on the premises of an organization which is located within the boundaries of a Massachusetts army or air national guard base that serves as social club for members of the Massachusetts army or air national guard; meals served in an assisted living residence certified pursuant to the provisions of chapter nineteen D; meals furnished by any person while transporting passengers for hire by air to or from any place within the commonwealth, meals furnished to any organization in which membership is limited to persons sixty years of age or over or to elderly or handicapped persons residing in a housing project qualifying under section thirty-eight to forty, inclusive, of chapter one hundred and twenty-one B and said organization has previously filed with the commissioner, on a form approved by the commissioner, satisfactory proof of its eligibility hereunder; and meals furnished to students by an educational institution which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on; and meals served by summer camps for children eighteen years of age or under or developmentally disabled individuals; provided, however, that such summer camp which offers its facilities off-season to individuals sixty years of age or over for a period not to exceed thirty days in any calendar year shall not lose its exemption hereunder; and meals furnished through programs established under section one L of chapter fifteen.
For the purposes of this section a developmentally disabled individual shall mean an individual who has a severe chronic disability which:
(A) is attributable to a mental or physical impairment or combination of mental and physical impairments;
(B) is likely to continue indefinitely;
(C) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) receptive and expressive language; (iii) learning; (iv) mobility; (v) self-direction; (vi) capacity for independent living; and (vii) economic self-sufficiency; and
(D) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated.
(dd) Sales of equipment directly relating to any solar, windpowered; or heat pump system, which is being utilized as a primary or auxiliary power system for the purpose of heating or otherwise supplying the energy needs of an individual's principal residence in the commonwealth.
(ee) Sales of patterns, molds, dies, tools, sand-handling equipment and machinery, and replacement parts thereof, used exclusively in the manufacture of cast metal products to be sold in the regular course of business.
(ff) Sales of printed material which is manufactured in the commonwealth to the special order of a purchaser, to the extent the material is delivered to an interstate carrier, a mailing house or a United States Post Office for delivery or mailing to a purchaser located outside the commonwealth or a purchasers designee located outside the commonwealth, including sales of direct and cooperative direct mail promotional advertising materials which are manufactured both inside and outside the commonwealth and which are distributed to residents of the commonwealth from locations both inside and outside the commonwealth. For the purpose of this paragraph, ''direct and cooperative direct mail promotional advertising materials'' shall mean individual discount coupons, or advertising leaflets incorporating the coupons within the promotional advertising materials no greater than 6 pages in length, and including any accompanying envelopes and labels. In order to be exempt hereunder, the promotional advertising materials shall be distributed as a part of a package of materials promoting 1 or more than 1 business, each operated at separate and distinct locations, and directed in a single package to potential customers, at no charge to the potential customer, of the businesses paying for the delivery of such material. For the purpose of this paragraph, ''direct and cooperative direct mail promotional advertising materials'' shall not include mail order catalogs, department store catalogs, telephone directories, or similar printed advertising books, booklets or circulars greater than 6 pages in total length.
(gg) Sales by a typographer, compositor or color separator of composed type, film positives, film negatives, or reproduction proofs thereof, for use in the preparation of printed matter or folding boxes to be sold, or the fabrication or transfer of such film positives, film negatives, reproduction proofs or impressed matters where the fabrication is for and the transfer is to a printer, publisher, or manufacturer of folding boxes, for use in printing.
[There is no paragraph (hh).]
(ii) Rental receipts or charges in connection with service contracts by and between waste service firms and customers for the use, maintenance and repair of refuse containers or bins placed on customers premises by waste service firms.
(jj) sales of ''scientific equipment or apparatus'' within the meaning of section 170 (e) (4) (B) (v) of the Internal Revenue Code of the United States as amended on January first, nineteen hundred and eighty-three, by the manufacturer when such scientific equipment or apparatus is donated by said manufacturer at no charge to a public or private nonprofit educational institution located in the commonwealth or to the Massachusetts Technology Park Corporation for the purposes of clause (4) of paragraph (b) of section six of chapter forty J, or to the Bay State Skills Corporation.
(kk) Sales of tangible personal property purchased with federal food stamps and not otherwise exempt under this chapter.
(ll) Sales of one thousand dollars or more of (i) rare coins of numismatic value; (ii) gold or silver bullion or coins; or (iii) gold or silver tender of any nation traded and sold according to its value as precious metal. The word ''bullion'' shall not include fabricated precious metal which has been processed or manufactured for industrial, professional or artistic uses.
[There are no paragraphs (mm), (nn) and (oo).]
(pp) Sales of vessels used exclusively to provide scheduled commuter passenger service, repair or replacement parts therefor, and materials and tools used in and for the maintenance and repair thereof.
(qq) Sales of gas, steam, electricity or heating fuel for use by any business that has 5 or fewer employees that had gross income of less than $1,000,000 for the preceding calendar year, and that reasonably expects gross income of less than $1,000,000 for the current calendar year. For purposes of this paragraph, employees shall include partners, owners, officers and any other individuals who work for the business but shall not include any employee who normally works for fewer than thirty hours per week or who is hired for a period of less than five months. For purposes of this paragraph, a business shall include all members of an affiliated group, as defined by section 1504 of the Internal Revenue Code, and any other combination of related parties as the commissioner may define by regulation; provided, however, that the commissioner may by regulation require that such business shall have first obtained a certification from the commissioner stating that it is entitled to such exemption and shall maintain such employment and other records indicating its continuing eligibility for such exemption; that the vendor keep a record of the sales price of each such separate sale, and the number of such certificate; and any other conditions and requirements under which a business may qualify for this exemption; provided, further, that the burden of proving that such business qualifies shall be upon the vendor unless he takes in good faith from the purchaser such certificate to the effect that the business qualifies for this exemption and such certificate is received and made available to the commissioner not later than sixty days from the date of the notice from the commissioner to produce such certificate.
(rr) Sales of commercial gun safes and trigger lock devices.
(ss) Sales of machinery and equipment, if its operation, function or purpose is an integral or essential part of a continuous production flow or process of manufacturing printed material to be sold and such machinery and equipment is used exclusively for that purpose; and sales of prepress items which are used exclusively as part of a continuous production flow or process of manufacturing printed material to be sold.
(tt) Sales of tangible personal property purchased by a consultant contractor or subcontractor, or operating contractor or subcontractor, of any governmental body or agency, described in paragraph (d), for use in fulfilling a consulting or operating contract to provide qualified services in a public project, provided that the consultant contractor or subcontractor or operating contractor or subcontractor is required both to acquire such property and to be reimbursed for the cost of such property pursuant to such contract.
For purposes of this paragraph:
(A) A consultant contractor or operating contractor of any governmental body or agency described in paragraph (d) is a person who enters into a consulting or operating contract to provide qualified services, and agrees to act as the agent for, such governmental body or agency with respect to purchases of tangible personal property on behalf of such governmental body or agency.
(B) A consultant or operating subcontractor is any person who enters into a contract with a consultant or operating contractor to provide qualified services and agrees to act as the agent for a governmental body or agency with respect to purchases of tangible personal property on behalf of such governmental body in fulfilling a consulting contract. A consultant subcontractor or operating subcontractor shall be considered to be reimbursed for the cost of tangible personal property whether it receives such funds directly from any governmental body or agency described in paragraph (d) or indirectly through a consultant contractor or subcontractor or operating contractor or subcontractor, as the case may be.
(C) A consultant subcontractor or operating subcontractor who enters into a contract to provide qualified services with any higher-tiered consultant subcontractor or higher-tiered operating subcontractor is deemed to be a consultant subcontractor or operating subcontractor.
(D) A consulting or operating contract is a contract to provide qualified services under which any governmental body or agency described in paragraph (d) authorizes purchases of tangible personal property to be made on its behalf by a person who agrees to provide qualified services to such governmental body or agency. A governmental body or agency described in paragraph (d) shall be considered to have authorized such purchases to be made on its behalf by a person when it enters into such a contract that expressly authorizes the person to act as an agent or sub-agent of such governmental body or agency for purposes of making such purchases.
(E) Tangible personal property shall be considered to be used in fulfilling a consulting or operating contract if its acquisition has been authorized by the terms of such contract and any one or more of the following has occurred: (i) it is completely expended in the performance of a contract to provide qualified services; (ii) title to and possession of such property is turned over to a governmental body or agency described in paragraph (d) pursuant to the consulting or operating contract; or (iii) it becomes an ingredient and component part of tangible personal property that is turned over to said governmental body or agency pursuant to the consulting or operating contract; provided, however, that tangible personal property shall not be considered to be used in fulfilling a consulting or operating contract if it is used to administer, oversee, supply, maintain, or control any of the consultant contractor's or operating contractor's or consultant subcontractors or operating subcontractor's own offices, facilities, workshops, vehicles, equipment or business operations.
(F) Qualified services shall include:
(i) studying the feasibility or environmental impact of a public project;
(ii) providing engineering, architectural or other design services necessary to complete a public project;
(iii) managing the planning, design, or construction of a public project; or
(iv) managing the operation or maintenance of any publicly owned mass transportation equipment or facilities.
(G) A public project is any project for the construction, alteration, remodeling, repair, remediation or operation of any public highway, tunnel, bridge, building, real property structure, public mass transportation equipment or facility, or other public work which is owned by or held in trust for the benefit of any governmental body or agency mentioned in paragraph (d) and the cost of which is funded, in whole or in part, by funds appropriated to or authorized for expenditure by any governmental body or agency described in paragraph (d).
(uu) Sales of repair or replacement parts exclusively for use in aircraft or in the significant overhauling or rebuilding of aircraft or aircraft parts or components on a factory basis.
(vv) Sales of aircraft.
[Paragraph (ww) applicable as provided by 2005, 158, Sec. 9 as amended by 2007, 63, Sec. 15 and 2021, 24, Sec. 68.]
(ww) Sales of tangible personal property to a qualifying motion picture production company or to an accredited film school student for the production expenses related to a school film project.
For the purposes of this paragraph a qualifying motion picture production company must expend in the aggregate not less than $50,000 within the commonwealth in connection with the filming or production of one or more motion pictures in the commonwealth within any consecutive 12 month period and have the approval of the secretary of economic development and the commissioner.
Any motion picture production company that intends to film all, or parts of, a motion picture or television program in the commonwealth and qualify for the exemption provided by this paragraph shall provide an estimate of total expenditures to be made in the commonwealth in connection with the filming or production of such motion picture or television program and shall designate a member or representative of the motion picture production company as a primary liaison with the commissioner for the purpose of facilitating the proper reporting of expenditures and other information as required by the commissioner. Said estimate of expenditures shall be filed prior to the commencement of filming in the commonwealth. Any qualifying motion picture production company that has been approved which fails to expend $50,000 within a consecutive 12 month period shall be liable for the sales taxes that would have been paid had the approval not been granted. The sales taxes shall be considered due as of the date that taxable expenditures were made.
The commissioner shall promulgate rules for the implementation of this paragraph.
[Paragraph (xx) effective until December 31, 2028 applicable as provided by 2008, 130, Sec. 50. Deleted by 2008, 130, Sec. 35. See 2008, 130, Sec. 54 as amended by 2011, 9, Sec. 25; 2013, 46, Sec. 57; and 2018, 112, Sec. 10. See also 2011, 9, Sec. 56; 2013, 46, Sec. 87; and 2018, 273, Sec. 26.]
(xx)(1) Sales of tangible personal property purchased for a certified life sciences company, to the extent authorized pursuant to the life sciences tax incentive program established by section 5 of chapter 23I, for use in connection with the construction, alteration, remodeling, repair or remediation of research, development or manufacturing facilities and utility support systems. Only purchases made on or after the effective date of this section shall be eligible for this exemption.
(2) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:—
''Life sciences'', advanced and applied sciences that expand the understanding of human physiology and have the potential to lead to medical advances or therapeutic applications including, but not limited to, agricultural biotechnology, biogenerics, bioinformatics, biomedical engineering, biopharmaceuticals, biotechnology, chemical synthesis, chemistry technology, diagnostics, genomics, image analysis, marine biology, marine technology, medical devices, nanotechnology, natural product pharmaceuticals, proteomics, regenerative medicine, RNA interference, stem cell research and veterinary science.
''Life sciences company'', a business corporation, partnership, firm, unincorporated association or other entity engaged in life sciences research, development, manufacturing or commercialization in the commonwealth, and any affiliate thereof, which is, or the members of which are, subject to taxation under this chapter.
''Utility support systems'', all areas of utility support systems including, but not limited to, site, civil, mechanical, electrical and plumbing systems.
(yy)(1) Sales of tangible personal property purchased for a certified climatetech company, to the extent authorized pursuant to the climatetech tax incentive program established in section 16 of chapter 23J for use in connection with the construction, alteration, remodeling, repair or remediation of research, development or manufacturing or other commercial facilities used for the provisions of goods or services in the climatetech sector and utility support systems.
(2) As used in this paragraph, the following words shall have the following meanings, unless the context clearly requires otherwise:
''Climatetech'', as defined in section 1 of chapter 23J.
''Climatetech company'', as defined in section 1 of chapter 23J.
''Utility support systems'', all areas of utility support systems including, but not limited to, site, civil, mechanical, electrical and plumbing systems.
[Subsection (zz) effective for costs incurred after November 20, 2024. See 2024, 238, Sec. 326.]
(zz)(1) Sales of: (A) eligible data center equipment for use in a qualified data center; (B) computer software for use in a qualified data center; (C) electricity for use or consumption in the operation of a qualified data center; or (D) construction costs incurred for the construction, renovation or refurbishment of a qualified data center.
(2) If the secretary revokes the certification of a qualified data center the commissioner shall, as of the effective date of the revocation, disallow any credits, exemptions or other tax benefits allowed by the original certification of tax benefits under this paragraph.
(3) If the qualified data center is sold to a new owner prior to the expiration of the exemption, tax benefits under this paragraph shall remain in effect and apply to a subsequent owner for the remaining duration of the 20–year qualification period.
(4) As used in this paragraph, the following words shall, unless the context clearly otherwise requires, have the following meanings:
''Colocation tenant'', a person, partnership, company, corporation or other entity that contracts with or leases from the owner or operator of a qualified data center to use or occupy all or part of a qualified data center.
''Computer software'', software purchased, leased, utilized or loaded at a qualified data center, including, but not limited to, maintenance, licensing and software customization.
''Construction costs'', costs of materials, labor, services and equipment purchased or leased to construct a qualified data center facility, including, but not limited to, the cost of data center building, accessory building, building improvement, land development, site improvement, site utility infrastructure, building materials, steel, concrete, gravel, engineering services, heavy equipment, cranes, transportation equipment, excavation, storm water system and management, access roads, bridges, fencing, lighting, landscaping and other costs to construct the facility.
''Eligible data center equipment'', computers and equipment supporting computing, networking, data processing or data storage, including, but not limited to: (i) servers and routers, computer servers and routers, connections, chassis, networking equipment, switches, racks, fiber optic and copper cables, trays, conduits and other enabling machinery, equipment and hardware; (ii) component parts, replacement parts and upgrades; (iii) cooling systems, cooling towers, chillers, mechanical equipment, HVAC equipment, refrigerant piping, fuel piping and storage, adiabatic and free cooling systems, water softeners, air handling units, indoor direct exchange units, fans, ducting, filters and other temperature control infrastructure; (iv) power infrastructure for transformation, generation, distribution or management of electricity used for the operations and maintenance of a qualified data center, including, but not limited to, substations, switchyards, transformers, generators, uninterruptible power supplies, backup power generation systems, battery systems, energy efficiency measures, supplies, fuel piping and storage, duct banks, switches, switchboards, testing equipment and related utility infrastructure; (v) monitoring and security equipment; (vi) water conservation systems, including, but not limited to, equipment designed to collect, conserve and reuse water; (vii) modular data center equipment and preassembled components of any item described in this paragraph, including, but not limited to, components used in the manufacturing of modular data centers; and (viii) any other personal property or equipment that is used or consumed in the operation and maintenance of the qualified data center.
''Qualification period'', a 20–year period of time beginning on the effective date of the certification by the secretary of the qualified data center for the first data center building, and expiring at the end of the twentieth full calendar year following the calendar year in which the certification became effective; provided, that if the qualified data center is comprised of more than 1 data center building, the qualification period for each subsequent data center building that is constructed at the qualified data center facility shall start when each data center building begins commercial operations, as evidenced by receipt of a certificate of occupancy, and shall continue for a period of 20 full calendar years, expiring at the end of the twentieth full calendar year following the calendar year each respective data center building began commercial operations.
''Qualified data center'', a facility in the commonwealth that:
(A) is owned or leased by: (i) the operator of the data center facility; or (ii) a person, partnership, company, corporation or other entity under common ownership of the operator of the data center facility;
(B) is comprised of 1 or more data center buildings that consist in the aggregate of not less than 100,000 square feet and that are located on a single parcel, or on contiguous parcels, where the total eligible qualified data center costs of the data center facility are at least $50,000,000 within a 10–year period from the effective date of the certification by the secretary as a qualified data center facility;
(C) is constructed or substantially refurbished;
(D) maintains a minimum of 100 jobs in the commonwealth; and
(E) is used to house computer information technology equipment, networking, data processing or data storage, including, but not limited to, servers and routers for the storage, management and dissemination of data and information where the facility has the following characteristics: (i) uninterruptible power supplies, generator backup power, or both; (ii) sophisticated fire suppression and prevention systems; and (iii) enhanced security; provided, that a qualified data center shall be considered to have enhanced security if it has restricted access to the facility to selected personnel, permanent security guards, video camera surveillance, an electronic system requiring pass codes, keycards or biometric scans or similar security features.
''Qualified data center costs'', expenditures made for the construction, refurbishment, renovation or improvement of a facility to be used as a qualified data center, including, but not limited to, the cost of land, land development, site improvement, site utility infrastructure, construction, data center building, accessory building, building improvement and eligible data center equipment.
''Secretary'', the secretary of economic development.
''Substantially refurbished'', a rebuild, modification or construction of not less than 100,000 square feet of an existing facility that is a qualified data center where the total eligible qualified data center costs are not less than $50,000,000 within a 10–year period from the effective date of the certification by the secretary as a qualified data center facility, including, but not limited to: (i) installation of computer information technology equipment, networking, data processing or data storage, including servers and routers, environmental control, computer software and energy efficiency improvements; and (ii) building improvements.
(3) The commissioner shall promulgate regulations necessary for the administration of this paragraph.
