CONTRACT MANUFACTURING AND MASSACHUSETTS: OUT-OF-STATE BUSINESSES BEWARE -

In Massachusetts, the concept of manufacturing has evolved. Smoke stacks and assembly lines, once common in the Commonwealth, continue to disappear as businesses increasingly rely on multi-national, contract manufacturing processes. However, Massachusetts’ definition of manufacturing has not changed dramatically over the years. In 1928, the Massachusetts Supreme Judicial Court defined manufacturing as “change wrought through the application of forces directed by the human mind, which results in the transformation of some preexisting substance or element into something different.” Compare that with the current statutory definition of manufacturing: “transforming raw or finished physical materials by hand or machinery, and through human skill and knowledge, into a new product possessing a new name, nature and adapted to a new use.” While the definitions could reasonably be read as requiring direct involvement by the taxpayer throughout the process, the Supreme Judicial Court has interpreted the term “manufacturing” expansively to include those companies that design and sell products manufactured by third-parties. The Massachusetts Department of Revenue (the “Department”) was initially unsuccessful in arguing against this expansive interpretation when Massachusetts businesses claimed sales and use tax exemptions as manufacturers. Undaunted, the Department embraced this expansive view in order to increase the corporate excise tax burden on businesses located outside the Commonwealth.