WorldWide TechServices, LLC v. Commissioner of Revenue, et al. (and three consolidated cases) (Lawyers Weekly No. 10-032-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12328   WORLDWIDE TECHSERVICES, LLC  vs.  COMMISSIONER OF REVENUE & another[1] (and three consolidated cases[2]).       Suffolk.     November 7, 2017. – February 22, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Taxation, Abatement, Sales and use tax.  Practice, Civil, Abatement, Intervention.  Administrative Law, Intervention.  Due Process of Law, Intervention in civil action.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Edward D. Rapacki for the intervener. John A. Shope (Michael Hoven also present) for the taxpayers. Daniel J. Hammond, Assistant Attorney General (Daniel A. Shapiro also present) for Commissioner of Revenue. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.     KAFKER, J.  Fifteen years and three Supreme Judicial Court decisions ago, this protracted case commenced regarding taxes imposed on computer service contracts.  The litigation began when purchasers of the service contracts filed a putative class action against the sellers,[3] claiming under G. L. c. 93A that the imposition of these taxes was unlawful and an unfair and deceptive practice.  The sellers successfully moved to compel arbitration pursuant to the terms of the computer service contracts, and a judge in the Superior Court eventually confirmed the award.  The next chapter in this tax saga, and the one we are required to decide today, then ensued. For the sole and express purpose of hedging their bets in response to the class action, the sellers had applied for tax abatements from the Commissioner of Revenue (commissioner) beginning in 2004.  The commissioner denied the applications, and the sellers petitioned the Appellate Tax Board (board).  The appellant, Econo-Tennis Management Corp., doing business as Dedham Health and Athletic Complex (Dedham Health), one of the consumers who purchased these service contracts, moved to intervene in the proceedings, which the board allowed.  Thereafter, the board, with certain exceptions, reversed the decision of the commissioner and allowed the abatements, ordering the parties to compute the amounts to be abated.  Taxes totaling $ 215.55 were imposed on the service contracts purchased by Dedham Health.[4]  After the class action litigation on the claims under G. L. c. 93A ended in the sellers’ favor, the sellers withdrew their tax abatement petitions with prejudice.  Dedham Health moved to strike the withdrawals.  The […]

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