Suffolk. Appeal from a decision of the Appellate Tax Board.
Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.
Taxation, Sales tax. Constitutional Law, Taxation, Interstate commerce.
The opinion of the court was delivered by: Hennessey
There was no constitutional impediment to imposition of the Massachusetts sales tax on sales of packets of fund raising materials which were manufactured and prepared for mailing by a Massachusetts company and delivered by it to a post office for mailing to prospective donors, ninety-five per cent of whom lived outside Massachusetts, and the exemption defined by G. L. c. 64H, § 6 (a), was not available to the transactions. [551-554]
Sales of packets of fund raising materials manufactured and prepared for mailing by a Massachusetts company, according to the specifications of various religious charities located outside Massachusetts, and delivered by it to the post office for mailing to prospective donors, ninety-five per cent of whom lived outside Massachusetts, were not exempt from taxation under G. L. c. 64H, § 6 (b). 
Sales to certain charitable organizations were not exempt from taxation under G. L. c. 64H, § 6 (e), where the charities had not requested certification entitling them to an exemption as required by § 6 (e) (2). [554-555]
This action was commenced by a petition under formal procedure filed with the Appellate Tax Board (board) protesting the refusal of the State Tax Commission (commission) to abate sales taxes totaling $50,401.04, plus interest. The board ruled that the sales in question were not exempt from taxation, and we affirm that decision.
Appellant George S. Carrington Company (Carrington) manufactures greeting cards. *fn1 The transactions in question occurred between January, 1970, and October, 1972. Carrington manufactured spiritual bouquet cards according to the specifications of various religious charities, all of which were located outside Massachusetts. After the cards were printed, Carrington assembled packets of fund raising materials, which in addition to the cards, contained literature intended to encourage donations and remittance envelopes bearing the name of the charity soliciting the donation. Carrington addressed the packets to individual prospective donors, about ninety-five per cent of whom live outside Massachusetts. Carrington then sorted the packets by zip code and delivered them to a United States post office for mailing. Postal charges were computed based on rates applicable to mailings by nonprofit organizations, and in each case Carrington used the mailing permit of the particular charity that had requested the order. The board found that Carrington's performance of its obligations terminated within Massachusetts when the packets were delivered for mailing, and also that the sales in question were not exempt on any of the three grounds urged by Carrington. Carrington advances these same three arguments on appeal.
1. Carrington first argues that the transactions in question were exempt from taxation as "ales which the commonwealth is prohibited from taxing under the constitution . . . of the United States." G. L. c. 64H, § 6 (a), inserted by St. 1967, c. 757, § 1. This contention is without merit. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, rehearing denied, 430 U.S. 976 (1977).
Carrington maintains that it is unconstitutional for the Commonwealth to impose a sales tax under the circumstances, because the taxable event -- namely, delivery to the post office, see G. L. c. 64H, § 1 (12) (a), (e) -- is not local activity of a sort that may be readily separated from interstate commerce. See Dunbar-Stanley Studios, Inc. v. Alabama, 393 U.S. 537, 540 (1969); Michigan-Wis. Pipe Line Co. v. Calvert, 347 U.S. 157, 166 (1954); Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938). Carrington argues that these sales are so inextricably linked with interstate commerce that to subject them to the sales tax would offend the commerce clause of the United States Constitution. U.S. Const. art. 1, § 8, cl. 3. According to Carrington, we need only determine whether the tax was imposed while the goods were "in" or "out" of the stream of interstate commerce. Clearly, these goods were "in" interstate commerce once they were delivered to the post office.
Carrington's argument assumes that interstate commerce enjoys a sort of "free trade" immunity from State taxation, but this view has been abandoned by the United States Supreme Court in favor of an approach that considers instead the practical effect of the tax on interstate commerce. See Complete Auto Transit, Inc. v. Brady, supra at 279. *fn2 In Complete Auto Transit, the Court might have held that the Mississippi tax on the privilege of doing business in the State had been levied on wholly intrastate activity readily separable from interstate commerce. Compare id. at 276 with McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940). Instead the Court assumed that the taxable activity was a part of interstate commerce. The Court held nevertheless that a State tax is valid under the commerce clause if the tax "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Complete Auto Transit, Inc. v. Brady, supra at 279, overruling Spector Motor Serv., Inc. v. O'Connor, 340 U.S. 602 (1951). That is the test by which we measure the tax imposed here. *fn3
Clearly a sales tax may be fairly imposed by Massachusetts in this case without creating an undue burden on the ability of business to deal in interstate channels. The manufacturing, printing, and packaging of the fund raising packets all occurred within Massachusetts, and Carrington's entire performance of the contract occurred within the State. Thus, the requirement of a nexus between the sale and the taxing State is amply satisfied here. See Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); American Mfg. Co. v. St. Louis, 250 U.S. 459 (1919).
Nor can Carrington show any real "danger of interstate commerce being smothered by cumulative taxes of several states." Complete Auto Transit, Inc. v. Brady, 330 So. 2d 268, 272 (Miss. 1976), aff'd, 430 U.S. 274 (1977). Carrington concedes that no multiple taxation has occurred, and its argument makes it clear that even a theoretical possibility of multiple taxation is remote at best. Carrington mailed the packets directly to prospective donors, not to an out-of-State agent, as was the case in McGoldrick v. Felt & Tarrant Mfg. Co., 309 U.S. 70 (1940), in which the Supreme Court upheld the imposition of a sales tax by the State in which the goods reached their destination. Carrington had neither an out-of-State agent nor any activity elsewhere which would support the ...