On April 26, 2021, the Massachusetts Department of Revenue issued Technical Information Release 21-5. This TIR was issued in response to New Cingular Wireless PCS LLC v. Commissioner of Revenue, 98 Mass. App. Ct. 356 (2020), where the court held that the Internet Tax Freedom Act (ITFA) preempts the imposition of sales and use taxes on sales of internet access service. Two of the requirements for ITFA preemption were at issue in the case. ITFA requires vendors of internet access to separately state the charges for internet services from other services on the customer’s invoice, or to reasonably identify the internet access charges in its books and records. ITFA also requires that internet access providers offer customers screening software that is designed to permit the customer to limit access to material on the internet that is harmful to minors. The TIR states that the Department will continue to enforce the statutory imposition of sales and use taxes on the sales of internet access services in instances where ITFA does not apply and that as confirmed in the Cingular decision, both the accounting and screening requirements must be met by internet access providers for the prohibition on taxation to apply.
