The latest news and updates on Massachusetts state and local tax.

November 11, 2022

Massachusetts Imposes a Millionaires Tax

Authored by: Jonathan Weinberg, JD, LLM, Principal

On November 8, Massachusetts voters approved Question 1 imposing an additional 4% individual income tax on incomes exceeding $1 million. The additional tax takes effect January 1, 2023 and Tufts University estimated that the additional 4% millionaire’s tax will affect 21,000 Massachusetts taxpayers.Individual taxpayers with incomes exceeding $1 million will now pay an effective 9% tax rate in Massachusetts (5% “regular” rate + 4% millionaire’s tax).

November 4, 2022

Massachusetts Distribution of Excess Tax Revenue Refunds

Authored by: Breea Boylan, MSA and Katie Szymanski, CPA

Effective November 1, 2022, the Massachusetts Department of Revenue will begin distributing tax refunds. Massachusetts law requires that tax revenue in excess of the State’s annual tax collection cap be refunded to taxpayers – this year the excess is approximately $2.941B. The Department of Revenue estimates roughly 3 million taxpayers will be receiving a refund equal to 14% of their 2021 Massachusetts income tax liability. Taxpayers should expect to receive their refund via direct deposit or mailed as a check.

September 2, 2022

Student Debt Forgiveness Taxable in Many States

Authored by: Brandon Vance and Bonnie Susmano, JD, MBA

On August 24,2022, President Biden announced that the Federal government will enact a wide-scale student loan forgiveness program. The loan forgiveness will be exempt from federal taxation. However, the forgiveness is taxable at the state level in many states.

States are expected to fix this significant tax disparity but must act quickly because many state legislatures have adjourned for the year. Currently, 13 states do not fully comply with the student loan debt provisions of the American Rescue Plan Act. These states include Arkansas, Hawaii, Idaho, Kentucky, Massachusetts, Minnesota, Mississippi, New York, Pennsylvania, South Carolina, Virginia, West Virginia and Wisconsin.

August 4, 2022

Massachusetts Governor Signs Fiscal Year 2023 Budget

Authored by: Zhoudi Tang and Jessie Racioppi

Massachusetts Governor Charlie Baker signed the 2023 Fiscal Year Budget on July 28, 2022. For tax years beginning on or after January 1, 2022, Massachusetts conforms to the Internal Revenue Code in effect as of January 1, 2022 for personal income tax purposes. The budget also allows a state tax deduction for income realized from the discharge of eligible student loans. Finally, the budget bill repeals the State’s controlled substance tax on the illegal sales of marijuana and other controlled substances (which is a separate tax from retail sales tax on legal cannabis sales).

May 20, 2022

Massachusetts Supreme Court Dismisses Capital Gain Tax of Florida Company

On May 16, 2022, Massachusetts’ top court rules that The Commissioner of Revenue (“Commissioner”) does not have the statutory authority to tax capital gain of VAS Holdings & Investments LLC (“VASHI”). In 2011, VASHI, an Illinois and Canada-based S corporation at the time, merged with Thing5, LLC (“Thing5”), a Massachusetts limited liability company; consequently, a Massachusetts limited liability company Cloud5 LLC (“Cloud5”) was formed. Since then, VASHI has remained uninvolved in Cloud5 business activity other than holding its 50% membership interest. In 2013, VASHI sold its interest in Cloud5 which resulted in a capital gain. The Tax Board deemed the gain to be taxable in Massachusetts based on the argument that Cloud5’s growth was partly a result of business activity in Massachusetts. While the Court agreed that there was an element of constitutional nexus within the Commonwealth, the Court concluded VASHI is not subject to state tax on the capital gain. Specifically, since VASHI was not engaged in any unitary business with Cloud5 and did not engage in a trade or business in Massachusetts, and as such, Massachusetts is precluded from taxing VASHI.

May 6, 2022

Massachusetts Imposes Sales Tax on Glucose Monitors

In Letter Ruling 22-1 (4/26/2022), the Massachusetts Department of Revenue (Department) determined that durable medical supplies, namely a glucose monitoring device, do not treat or cure illness or do not qualify as equipment worn as a correction or substitute for any functioning portion of the body. The Department ruled that glucose monitoring devices do not qualify for a medical exemption and are thus subject to sales tax.

March 25, 2022

Massachusetts Issued Regulations on PTE Excise

Chapter 63D of the Massachusetts General Laws, allows partnerships, S corporations, and certain trusts to make an annual election to pay the new PTE Excise at the entity level. The new PTE Excise is imposed at a rate of 5% of the amount of income that is subject to the Massachusetts personal income tax at the individual partner, shareholder, or beneficiary level. Qualified members are allowed a personal income tax credit for 90% of their pro rata share of the PTE Excise paid.Chapter 63D will not apply to any taxable year for which the federal limitation on the state and local tax deduction has expired or is otherwise not in effect. For additional information on the PTE Excise election, computation of the excise, and the filing and payment requirements, please contact a member of the SALT team.

February 18, 2022

On December 7, 2021, Massachusetts Appellate Tax Board (“ATB”) overturned the Commission of Revenue’s previous decision that U.S. Auto Parts Network, Inc. was obligated to collect and remit sales tax for tax periods prior to the Supreme Court’s Wayfair decision. The Commission previously ruled that U.S. Auto Parts placing cookies and apps on Massachusetts customers’ computers and using third-party content delivery networks with servers in Massachusetts created sales tax nexus under Massachusetts’ “cookie nexus” standard. However, the ATB concluded that despite the complexity of defining physical presence, the cookies, apps, and content delivery networks in the state did not constitute physical presence nexus. The board also ruled that the Wayfair decision would not be applied retrospectively to the tax periods at issue. If you have questions about whether your business may be affected by the ATB’s ruling on Massachusetts “cookie nexus,” please contact a Withum SALT practitioner.

January 17, 2022

Massachusetts Issues Guidance on Centralized Federal Partnership Audit Regime

The Massachusetts Department of Revenue has recently issued guidance (Technical Information Release No. 22-1, 01/06/2022) on their new partnership tax audit provisions. This guidance explains how to both report and pay partnership and partner obligations which are subject to a federal audit. Some of the most notable takeaways in the guidance is filing requirements and final determination date, partnership and partner-level filing requirements, and an amendent of witholding and composite returns. Also included in the guidance is information on both the conditions and effects of partnership election to pay Massachusetts taxes that results from the federal audit of a partnership on behalf of their partners. The Department of Revenue has developed a process through their electronic tax system that allows the partnerships to report and pay audit assessments on behalf of their partners.

December 2, 2021

Massachusetts Issues Guidance on New Pass-Through Entity Tax

On September 30, 2021, the Massachusetts Legislature adopted an elective pass-through entity excise tax in response to the federal state and local tax deduction cap of $10,000. For tax years beginning on or after January 1, 2021, certain qualifying pass-through entities may elect to pay a new-entity level excise tax on qualified income that is taxable in Massachusetts at a 5% tax rate. Qualified members of an electing PTE are eligible for a credit equal to 90% of a member’s distributive share of PTE excise paid. Massachusetts issued the following guidance:

  • An eligible pass-through entity is defined as an S corporation under section 1361 of the Internal Revenue Code (IRC), a partnership under section 7701 of the IRC or a limited liability company that is treated as an S corporation under these sections.
  • The PTE Excise tax is not mandatory, and the related provisions only apply to a PTE if they elect to be subject to the excise. This election is made on an annual basis.
  • Once an election is made for that particular tax year, it is irrevocable for that year and is binding on all qualified members of the PTE.
  • Qualifying pass-through entities can make an election annually by filing Form 3, Form 355S or Form 2, and is confirmed by submitting new Form 63D-ELT. The election cannot be made on an amended form. Form 63D-ELT must be filed on or before the due date of the PTE’s tax return, accounting for valid extensions. Qualified members cannot opt out of an election.

Additional FAQ’s can be found by here.

October 14, 2021

Massachusetts Proposes a Digital Advertising Tax

Massachusetts House Bill 4179 would impose a 6.25% sales tax on digital advertising revenue derived from sources within Massachusetts. This tax would apply to the revenue derived from banner advertisements, search engine advertising, interstitial advertising, and other comparable advertising services. Revenue would be sourced to Massachusetts based on IP address of the individual viewing the advertisement.

Massachusetts’ proposed digital advertising tax follows the digital advertising tax enacted by Maryland earlier this year.

October 8, 2021

Massachusetts Enacts Pass-Through Entity (PTE) Tax

On September 30, 2021, the Massachusetts legislature overrode the governor’s veto, enacting House Bill 4002 which adopts an elective pass-through entity (PTE) tax effective for tax years beginning 2021. This pass-through entity tax election is intended to be a workaround to the federal State and Local deduction limitation of $10,000. S corporations and partnerships are eligible to make an irrevocable annual election to pay the tax at the entity level. The tax is due and payable on the entity’s original return and is due at the same time as the partnership information return or corporate excise return. The elective tax is limited to taxable years where the federal SALT deduction limitation is effective. Excise tax on qualified income taxable in Massachusetts at a rate of 5%. Unlike most states which provide a full credit for the PTE, the Massachusetts taxpayers only receive a refundable credit of 90% of the PTE paid. We expect the Department to issue regulations and guidance on the administration of the PTE in the coming weeks.

July 28, 2021

Due to COVID-19, the Massachusetts Department of Revenue is waiving penalties related to self-assessed underpayment of estimated tax penalties on unemployment income. The penalty waiver is through December 31, 2021, and will begin accruing if the 2020 unemployment tax is not paid in full by December 31, 2021. This waiver is for penalties only and is not for interest because interest is statutory. Therefore, interest will start to accrue on the due date of the tax payment, May 17, 2021. Refunds will be issued automatically either by paper check or, if penalties have been paid by the taxpayer already, the waiver will be applied to the taxes owed.

June 25, 2021

Massachusetts COVID-19 Telecommuting Rules to End September 13, 2021

To minimize the disruption for employers and employees during the COVID-19 pandemic, the Massachusetts Department of Revenue had put into place tax rules and guidance for nonresident employees that had been commuting into Massachusetts and working for Massachusetts employers, but that were forced to telecommute and rendering services remotely from their homes. The full scope of those rules can be viewed in the Massachusetts Department of Revenue FAQ. However, these telecommuting tax rules will cease to be in effect as of September 13th, 2021, at which time the Commonwealth revert to its standard taxation of residents and nonresidents. As such, Massachusetts nonresidents will only be subject to Massachusetts personal income tax on actual Massachusetts work-days after the special rules expire.

May 13, 2021

Massachusetts Finalizes Guidance on COVID-19 Relief Provisions

The Massachusetts Department of Revenue has finalized its previously issued draft guidance explaining various provisions of the COVID-19 relief bill (L. 2021, H90 (c. 9), effective 04/01/2021). Please see Massachusetts Technical Information Release No. 21-6, 04/30/2021 for final guidance on taxation of unemployment compensation received in 2020 and 2021; the waiver of specified penalties related to unpaid taxes on 2020 and 2021 unemployment compensation; the taxation of forgiven Paycheck Protection Program (PPP) loans; the taxation of certain other federal COVID-19-related relief payments; and the due date for 2020 individual income tax returns and payments.

May 5, 2021

Massachusetts Issues Sales and Use Tax Guidance on Internet Access Services

Subsequent to a recent court case (New Cingular Wireless PCS LLC v. Commr. of Revenue), the Massachusetts Department of Revenue has issued its position on the application of the Internet Tax Freedom Act (ITFA) to sales and use taxes on internet access services provided by mobile wireless companies. Massachusetts will preempt the imposition of sales and use taxes on internet transactions provided: (1) that the internet provider follows the ITFA’s accounting requirement of separately stating the internet charges or reasonably identifying such charges in its books and records, and (2) that the internet provider offers customers screening software designed to permit the customer to limit access to material on the internet that is harmful to minors. Both the ITFA’s accounting requirement and screening software requirement must be met by internet access providers for the prohibition on taxation to apply. If both requirements are not met, the Department will continue to enforce the statutory imposition of sales and use taxes. Please see Massachusetts Technical Information Release No. 21-5, 04/26/2021 for specific details of the IFTA’s application to mobile data charges in Massachusetts.

April 7, 2021

Massachusetts Issues Guidance on New Rules for State Treatment of Federally Audited Partnerships

In Technical Information Release 21-4, the Massachusetts Department of Revenue recently noted how the IRS is in the process of implementing a new partnership audit regime, which includes a rule that in many cases treats the partnership itself as a taxpayer, and requires the partnership to pay any assessment resulting from a federal audit. A new Massachusetts law (G.L. c. 62C, § 30B, included in the State’s 2021 Fiscal Year Budget) enables the Department of Revenue to receive notice of, and address the state tax consequences of, a partnership-level federal audit. The purpose of the statute is to create a mechanism whereby partnerships and their partners must inform the Department of the federal audit, properly report tax changes or obligations that derive from the audit, and account for any resulting state tax liability. As a result of this new Massachusetts law, effective as of 01/01/2021, federally audited partnerships (1) may be required to amend their Massachusetts nonresident composite returns or withholding reports; (2) will be allowed to make an election to pay state tax on behalf of their partners; and (3) may require partners to directly pay state tax in certain instances. For specifics on these new rules, please consult Massachusetts Technical Information Release 21-4.

March 23, 2021

Massachusetts Update on Extension of Filing Deadline

The Massachusetts Department of Revenue has announced that individual income tax returns and payments for the 2020 tax year otherwise due April 15, 2021 are now due May 17, 2021. Taxpayers that have already filed their 2020 returns without making associated payments have until May 17, 2021 to make such payments. Individual taxpayers will be eligible for an automatic extension of time to file their personal income tax returns if the amount required to be paid for an extension is paid by May 17, 2021. This extended due date does not apply to estimated tax payments. The Department of Revenue intends to issue additional guidance as needed. (Massachusetts Technical Information Release No. 21-2, 03/19/2021.)

The Massachusetts Department of Revenue has issued answers to frequently asked questions (FAQs) on the new May 17, 2021 deadline for individual income tax returns and payments. The deadline has been extended for both filing individual income tax returns and making payments from April 15, 2021 to May 17, 2021. The date change does not affect taxpayers other than individuals filing personal income tax returns and making payments. Form 1, Form 1-NR/PY and Form NRCR for non-resident composite filers are included. The extension date of October 15 for personal income tax filing has not changed. The date for making an extension payment has been changed from April 15, 2021 to May 17, 2021. Estimated payments due April 15, 2021 are not impacted by the date change and remain due on April 15, 2021. Taxpayers who have already filed their personal income tax returns, but have not made the associated payment, will have until May 17, 2021 to make the payment. (FAQs on New May 17, 2021 deadline, Mass. Dept. of Rev., 03/23/2021.)

March 17, 2021

Massachusetts Makes Formality-type Enactment for Remote Employee Wage Sourcing

Massachusetts made permanent its treatment of how employee wages from services rendered should be sourced, effective March 10, 2020 through 90 days after MA declares the COVID-19 state of emergency (the “Pandemic”) is no longer in effect. Generally, all compensation for services performed by a nonresident of MA who, immediately prior to Pandemic was an employee engaged in performing such services in MA, and who is performing services from a location outside MA due the pandemic, will continue to be treated as MA source income subject to personal income tax. A nonresident employee who, prior to the Pandemic determined MA-source income by apportioning based on days spent working in MA must continue to do so (please see MA 830 CMR 62.5A.3 for this specific rule). Where other states have adopted comparable sourcing rules to that of MA, a MA resident who previously rendered services in other states but who are now working from MA as a result of the pandemic will get a credit for taxes paid to those other states.

March 3, 2021

Massachusetts Targeting Digital Advertising Services for Taxation

Massachusetts is considering multiple taxes on digital advertising services. Currently pending is a proposal whereby taxpayers with at least (a) $50 million in annual gross revenues and (b) $100,000 in revenues derived from Massachusetts digital advertising services would be subject to a tax on such services (potential rates ranging from five percent to 15 percent). Further, taxpayers with revenue from digital advertising services greater than $25M would be subject to a five percent excise tax. For purposes of both proposals, digital advertising services would be sourced to Massachusetts if they appear on a user’s device with an IP address located in Massachusetts, or the user is known or reasonably presumed to be using the device in the state. Draft legislation for two new/additional taxes on online or digital advertising is also in existence, but details on both have not yet been released.

December 11, 2020

Remote Employee Guidance

In these uncertain times, we have watched the states issue guidance and relief provisions for companies with employees telecommuting. The good news is that the Massachusetts Department of Revenue issued guidance, which is effective until 90 days after the state of emergency is lifted. While the relief rules remain in effect, the presence of one or more employees working remotely in Massachusetts due to either a government order, an employer’s adopted work policy, a worker’s compliance with quarantine orders will not, by itself, lead to a withholding obligation concerning such employees. Additionally, one or more employees telecommuting in Massachusetts due to the pandemic should not create a sales and use tax collection obligation or corporate apportionment adjustment.

We recommend that businesses claiming a nexus exemption maintain written records sufficient to substantiate the pandemic-related circumstances. If your company needs assistance with any of these provisions, including applying for the Massachusetts Paid Family and Medical Leave for an employee working in another state due to the pandemic, please contact a member of our SALT team. (Massachusetts Technical Information Release No. 20-15, 12/08/2020.)

December 11, 2020

The passing of the FY21 budget requires large businesses to remit sales tax on a much shorter timeframe. While businesses have 50 days to remit taxes to the state after collecting them, businesses that collect and remit more than $150,000 in sales and use tax, local option meal excise, and room occupancy taxes within the first three weeks of each month must remit the tax in the final week of the same month. This modernization of the timeline for sales tax remittance and collection will not impact 95% of the Massachusetts businesses because the provisions are focused on the largest companies, which benefitted from the changes in the economy and new consumer shopping patterns. [H.2, 191st Session, (Mass. 2020).] Link:

December 11, 2020

A Charitable Deduction in Massachusetts is Resurrected

By statute, as enumerated in 2002 state law, if certain inflation-adjusted revenue milestones are met, the income tax rate in the state would be reduced. The charitable deduction has been unavailable to taxpayers since 2002, but is now being restored for tax years on or after January 1, 2021 as part of the income tax rate reduction milestones. Unlike for federal income tax purposes, there is no requirement in Massachusetts for taxpayers to itemize, so all residents or nonresidents may be eligible for the deduction, but such deduction is only available for individuals.

March 21, 2020

Massachusetts DOR Resources

As of March 20, 2020, the MA Department of Revenue (“DOR”) recognizes that taxpayers may need assistance with various tax obligations due to the impact of the coronavirus. The following support tools and measures during this public health emergency:

  • In many instances, taxpayers automatically receive at least six extra months to file their tax returns, as long as they satisfy certain tax payment requirements. See AP 604: Extensions of Time to File Tax Returns.
  • DOR may also waive penalties under certain circumstances if a taxpayer is late in paying their tax obligation and will work with impacted taxpayers to waive such penalties. See AP 633: Guidelines for the Waiver and Abatement of Penalties.
  • In the event mail service is delayed, taxpayers can ensure that returns, payments and refunds are received if submitting them or receiving them by electronic means.

In the event the Internal Revenue Service (IRS) issues tax relief to taxpayers with Federal filing obligations, DOR is prepared to follow the IRS in offering similar relief for taxpayers with Massachusetts tax filing obligations. Learn more here.

March 18, 2020

Massachusetts DOR Resources

Massachusetts DOR recognizes that its taxpayers may need assistance with various tax matters due to the impact of the coronavirus. Taxpayers are provided with these support tools and measures during this public health emergency:

  • Taxpayers automatically receive at least six extra months to file their tax returns, as long as they satisfy certain tax payment requirements. See AP 604: Extensions of Time to File Tax Returns.
  • DOR may also waive penalties under certain circumstances if a taxpayer is late in paying their tax obligation and will work with impacted taxpayers to waive such penalties. See AP 633: Guidelines for the Waiver and Abatement of Penalties.
  • In the event mail service is delayed, taxpayers can ensure that returns, payments and refunds are received if they elect to submit them or receive them by electronic means.

In the event the Internal Revenue Service (IRS) issues tax relief to taxpayers with federal filing obligations, DOR is prepared to follow the IRS in offering similar relief for taxpayers with Massachusetts tax filing obligations and will provide updates accordingly.

Disclaimer: Please note this is the information that is readily available at this time, it is subject to change so please consult your Withum tax advisor.

Massachusetts Finds Subscription Fees to Software Taxable, Which May Have Income Tax Ramifications

Last month, the Massachusetts Supreme Court held that the receipts from sales of subscriptions for online software products were subject to sales tax, pursuant to G. L. c. 64H, §§ 1-2 (statute) and 830 Code Mass. Regs. § 64H.1.3 (2006) (regulation). The regulation provides for a two-part test for when tax does not apply to charges for access or use of software on a remote server: “[W]here there is [(1)] no charge for the use of the software and [(2)] the object of the transaction is acquiring a good or service other than the use of the software, sales or use tax does not apply.” The evidence indicated that the taxpayer’s customers entered into a transaction for access and use of the taxpayer’s online products, which was essentially standardized computer software. As a result, the court rejected the taxpayer’s assertion that the “true object” of what their customers were paying for was their service of providing online access. Rather, the court determined that the taxpayer’s customers were in fact buying software, which should be treated as the sale of tangible personal property, and thus subject to sales tax. Since the underlying transaction was determined to be taxable so was the subscription service. Additionally, the court noted that the legislature broadened what it means to transfer tangible personal by amending the rule and allowing for an apportionment of tax based upon usage in more than one state.
Citrix Systems v. Commissioner of Revenue, Mass. Sup. Ct. No. SJC-12741 (02/05/2020).

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The State and Local Tax (SALT) laws vary from state to state and are constantly changing. Reach out to Withum’s SALT Team for guidance on how to navigate your state’s local tax laws.