Alcoa Building Products, Inc. v. Commissioner of Revenue (September 25, 2002)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD



ALCOA BUILDING PRODUCTS, INC.	 v.  COMMISSIONER OF REVENUE

Docket Nos. F257765, F257766		Promulgated: 
		  F257767				September 25, 2002
			 


These are appeals under the formal procedure pursuant to G.L. c. 62C, § 39 from the refusal of the appellee to abate corporate excise taxes assessed against the appellant under G.L. c. 63, § 38 for tax years 1994, 1995, and 1996.  
Commissioner Rose heard these appeals and was joined in the decision for the appellee by Chairman Burns and Commissioners Scharaffa, Gorton, and Egan.  
These findings of fact and report are made at the requests of the appellant and the appellee pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	James F. Ring, Esq., William A. Hazel, Esq., J. Thomas Price, Esq., and Mary C. Mitchell, Esq. for the appellant.
	
John DeLosa, Esq. and Timothy Stille, Esq. for the appellee.


FINDINGS OF FACT AND REPORT
On the basis of a Statement of Agreed Facts and testimony and exhibits offered at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.  The appellant, Alcoa Building Products, Inc. ("Alcoa"), is a corporation organized under the laws of Ohio with its headquarters in that state.  Alcoa is engaged in the business of manufacturing and selling building products, including vinyl siding.  At all times relevant to these appeals, Alcoa maintained manufacturing facilities or offices in Ohio, South Carolina, Texas, Illinois, and Virginia.  Alcoa did not maintain an office, facility, warehouse, or other place of business in Massachusetts.  
For tax years ending December 31, 1994, December 31, 1995, and December 31, 1996 ("the tax years at issue"), Alcoa, pursuant to valid extensions, timely filed with the Commissioner of Revenue ("Commissioner") Forms 355B Foreign Business or Manufacturing Corporation Excise Tax Returns and timely paid the minimum excise of $456 shown as due thereon.  After conducting an audit of the appellant, the Commissioner issued to the appellant a Notice of Intent to Assess ("NIA") dated October 8, 1998.  Following a conference between the parties, subsequent correspondence, and a hearing before the Commissioner's Appeal and Review Bureau, the Commissioner issued to Alcoa a Notice of Assessment ("NOA") dated December 28, 1999 in which the Commissioner assessed additional corporate excises for the tax years at issue.  The additional assessments, exclusive of interest and penalties, were $51,833, $36,931, and $86,992 for tax years 1994, 1995, and 1996, respectively.
Alcoa timely filed applications for abatement for each tax year on January 27, 2000.  By letter dated June 27, 2000, Alcoa through its attorneys withdrew its request for a hearing on the applications for abatement.  The Commissioner subsequently issued a Notice of Abatement Denial dated June 29, 2000.  Thereafter on July 7, 2000, Alcoa timely filed petitions under the formal procedure with the Board for each of the tax years at issue.  The Board accordingly found it had jurisdiction over each of these appeals.
The issue in these appeals is whether Alcoa's activities in the Commonwealth exceeded the protection offered by Pub. L. 86-272, which prohibits state taxation of a corporation whose only physical presence in the taxing jurisdiction is the solicitation of orders.  During the tax years at issue, Alcoa employed in Massachusetts either four or five individuals who were known as "district sales managers."  Some district sales managers lived in Massachusetts, and all were assigned a sales territory within the state.  Alcoa maintained that its only activity in Massachusetts was the solicitation of orders by its sales force, which sent the orders to Stuarts Draft, Virginia or Sidney, Ohio, where they were accepted or rejected.  If accepted, the orders were then filled and items were shipped to the customers directly from these locations.  The Commissioner, however, maintained that the activities of the sales force, namely their involvement in product training seminars and warranty claims activities, exceeded the protection of Pub. L. 86-272 and, accordingly, Alcoa was properly subject to the Massachusetts corporate excise for the tax years at issue. 

Product training seminars.
The Board made the following findings of fact relative to the product training seminars conducted by Alcoa's sales representatives.  In years prior to tax year 1994, Alcoa sales managers conducted training sessions featuring videos that addressed the sale and installation of Alcoa vinyl products.  These videos were shown to a small audience of contractors or distributors from a particular customer location.  Upon completion of a program, the seminar participants would complete a questionnaire on the training session topic.  Alcoa sent the questionnaires to an independent company in Pittsburgh called Data Banque that contracted with the appellant.  Data Banque then sent an "A+" certificate to each participant who had completed the questionnaire and sent a report to Alcoa listing the name and company affiliation of each certificate recipient.  
During the audit of the appellant, the Commissioner's auditor corresponded with Carol Pawlos, an administrator of income and franchise tax for Alcoa, Inc., the parent corporation of the appellant.  Ms. Pawlos worked in the parent corporation's office located in Pittsburgh, Pennsylvania.  In response to the auditor's questions about the appellant's activities during the tax years at issue, 1994 through 1996, Ms. Pawlos reported in her February 2, 1999 letter that an estimated eight "A+" training sessions per year were held in Massachusetts during the tax years at issue.  Because she did not work for the appellant directly, Ms. Pawlos had relied upon information supplied to her by Dan Mittman and Ricardo Gibellino, two of appellant's representatives from its Ohio office, for information about Alcoa's activities in Massachusetts.  
After the Commissioner assessed corporate excise taxes against it, the appellant then engaged Massachusetts counsel to appeal the assessment.  Counsel examined all responses to the Commissioner's auditors and closely questioned Mr. Gibellino, a regional sales manager, about the "A+" training sessions.  Upon his re-examination of this issue, Mr. Gibellino reviewed documentary records, including the list of individuals who had completed "A+" questionnaires compiled by Data Banque.  Based on the information he reviewed, Mr. Gibellino concluded that contrary to the information that had been supplied to Ms. Pawlos, the "A+" training sessions in Massachusetts had ended prior to tax year 1994.  Mr. Gibellino explained that district sales managers participated in a few trade shows in Massachusetts per year for each of the tax years at issue - four shows in 1994, two shows in 1995, and three shows in 1996.  During these trade shows, the district sales managers made product video tapes and related workbooks available to distributors and, on occasion, to building contractors attending the trade shows.  These parties could have reviewed the materials and answered questionnaires on their own and then mailed completed questionnaires to Data Banque, who would have furnished them with the "A+" certificates.  However, this activity would have been performed independently without the conducting of training seminars by Alcoa.  Mr. Gibellino signed sworn interrogatory answers, which were admitted into evidence in these appeals, to this effect.  
Alcoa's counsel alerted the Commissioner's counsel to the difference between the new interrogatory responses and the statements previously submitted by Ms. Pawlos during audit.  Alcoa agreed to allow the Commissioner to conduct depositions of both Ms. Pawlos and Mr. Gibellino.  Ms. Pawlos also testified at the hearing of these appeals.  Ms. Pawlos admitted that she did not have personal knowledge of the facts relative to the training sessions held in Massachusetts by the appellant, and that she had relied upon information from Mr. Mittman and Mr. Gibellino from the appellant's Ohio office in responding to the auditor's questions.  The Board found Ms. Pawlos' testimony to be credible.  
The appellant also submitted into evidence a list of all individuals who had received "A+" certificates generated by Data Banque.  According to this list, only four individuals received certificates in 1994, and only two individuals received certificates in 1995 and 1996.  These participants were affiliated with different companies with the exception of two individuals from the same company who received certificates in 1994.  However, one of these individuals received one certificate and the other individual received four certificates during this year.  The Board found that the very small number of "A+" certificate recipients and the varied customer locations among these recipients indicated that Alcoa did not conduct training seminars before groups of individuals during the tax years at issue. 
The Board found the testimony, answers to interrogatories, and the other documents submitted into evidence by Alcoa to be credible on the issue of whether Alcoa had conducted training seminars in Massachusetts during the tax years at issue.  On the basis of the evidence, the Board found that the appellant had ceased conducting its "A+" training program in Massachusetts prior to the start of the tax years at issue.  Accordingly, the Board did not reach the issue of whether this training program would have created a sufficient nexus with Massachusetts for purposes of corporate excise liability under Pub. L. 86-272.  

Warranty claims activities.
The Board made the following findings of fact relative to warranty claims activities performed in Massachusetts by the Alcoa sales force.  Documents submitted by Alcoa indicated that Alcoa district sales managers assumed responsibility for initiating Massachusetts warranty claims and investigating these claims in Massachusetts during the entire period at issue.  In tax years 1994 and 1995, district sales managers initiated 37% of the total number of warranty claims filed nationally with Alcoa, and in tax year 1996, district sales managers initiated 35% of the company's total warranty claims.  District sales managers initiated more claims than their customers, the distributors, for tax years 1994 and 1995, and they initiated more claims than homeowners for all three tax years.  The Board also found that district sales managers visited warranty claim sites in Massachusetts on a consistent basis during the audit periods.  The district sales managers made an average of 1.73 visits to Massachusetts per month in tax year 1994, 1.60 visits per month in tax year 1995, and 1.31 visits per month in tax year 1996 to investigate the merits of warranty claims.
Moreover, the Board found that as a matter of courtesy to their customers, with whom they had ongoing professional relationships, district sales managers provided assistance with various tasks relative to filing their claims.  According to testimony from Mr. Gibellino, a regional sales manager with Alcoa during the tax years at issue, district sales managers visiting a warranty claim site would retrieve and send a sample of the defective product to Alcoa's warranty claims department when the claim involved fading of the Alcoa product.  When asked whether he had ever filled out claim forms when he visited a warranty claim site, Terrance Costello, a district sales manager during the periods at issue, testified, "I can't say that I never did do that, but that was not the focus of what I was doing."  Then, when asked whether he had ever intervened in a warranty claim that had been rejected by the warranty department, Mr. Costello testified, "[a]gain, in the interest of selling, if this guy I've got to sell tomorrow wanted me to accompany him on a particular problem, I might have gone.  I won't tell you I didn't."  The Board found that Mr. Gibellino's and Mr. Costello's testimonies supported a finding that the sales force performed various warranty claims tasks to foster continuing relationships with their customers.    
The Board further found that visiting certain job sites to investigate warranty claims was actually considered part of an Alcoa sales manager's job.  Mr. Gibellino stated during his deposition, the transcript of which was submitted as an exhibit in these appeals, that the sales force was expected to call on sites involving new construction because the warranty claims there often resulted from the inappropriate use of an Alcoa product rather than from a defect in the product itself.  As indicated by the following deposition excerpt, these visits were considered a form of damage-control for Alcoa's reputation among its customers, and therefore, integral to the district manager's job:     
CROSS-EXAMINATION BY MR. RING:
Q:	Did Alcoa encourage salespeople to go out and  deal with technical issues on the outside or discourage them from doing that?
A:	Well, again, it's differences in new construction.  I think new construction is a little different than a home owner because number one, you're normally talking about a bigger job.  So you don't want to ignore the people. No, we don't - again, on a claim in process, we don't want to have them to begin with, but again, this is all in context to, you know, material coming out of the box.
	You know, in any customer, and again, bigger, would want to get out there and make sure that they just don't say the hell with this and take it out and put somebody else's on it.  And a lot of times our experience is with builders, I would say 95 percent of the time, it's not our problem.
	It's - so it's not the same as - say a builder would call in with a job that's been on there for five years.  Yeah.  And it's a fade.  We don't want them to go out because again, he just has to send it back.  That's not his thing.  But any job where that's happening and we do encounter it a lot more on new construction we probably got there pretty quick because a lot of times it's not our problem.  It's something else or we get a bad [r]ap I guess is the thing.
Q:	When salesmen are asked to go out the tendency is they go out.  Is that what your testimony is?
A:	Well, again, we discourage them to go out on old claims that they can't do anything about that is not a salesman issue.  Again, this builder is a repeat or whatever we're talking about here that the job is going on.  There could be a problem with our product.
	And you do want to take care of them so he continues to buy, finish that job because as you know, there is other builders or buys the other project from us.  And then I refer to experience that a lot of times it's not our problem so you end up going out there even knowing that but you want to get it resolved so everybody is happy and understands it's not the product.
Q:	Is that considered to be part of the sales function?
A:	Oh, yes.

Based on this evidence, the Board found that the Alcoa sales managers and other personnel understood that the sales managers' job included investigating warranty claims at ongoing construction sites to protect Alcoa from losing sales to competitors or gaining a bad reputation with its customers.  
While the sales representatives may have understood their activities to be related to maintaining good client relations with their ongoing customers, the Board found that the activities of initiating warranty claims, investigating on-site claims, remitting samples for review of the claim, and filling out paperwork were not sufficiently related to the solicitation of sales.  Instead, these activities were intended to protect Alcoa's reputation and to increase sales.  As will be explained in the Opinion, the difference between activities intended to facilitate the solicitation of sales and those intended to facilitate sales in general can be subtle, but it is not one without a legal distinction for purposes of the corporate excise and the protection afforded by Pub. L. 86-272.  Moreover, the Board found that because the district sales managers initiated more than one-third of the warranty claims filed with Alcoa and made an average of more than one visit per month to Massachusetts sites to review warranty claims during all three of the tax years at issue, the warranty claims activities performed by the sales personnel could not be classified as de minimis.  The Board thus found that Alcoa was properly subject to Massachusetts corporate excise for the tax years at issue.  Accordingly, the Board issued a decision for the appellee in these appeals.    

OPINION
	G.L. c. 63, § 39, imposes an excise for the privilege of doing business on "every foreign corporation . . . actually doing business in the commonwealth . . . ."  However, this broad taxing authority is limited by Congress' plenary powers granted under the Commerce Clause of the United States Constitution to regulate interstate commerce.  Pursuant to this power, Congress enacted Pub. L. 86-272, which prohibits individual states from taxing the income earned by an out-of-state person or entity, if the person or entity's only business activities within the state consist of the following:
the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and

the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).


15 U.S.C. § 381(a).
After Congress enacted Pub. L. 86-272 in 1959, there was little federal guidance on what activities, beyond the actual proposal of a sale, were to be included in "solicitation" until 1992 when the Supreme Court decided Wisconsin Department of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214 (1992).  The taxpayer in that case, William Wrigley, Jr., Co. ("Wrigley"), a manufacturer of chewing gum, was based in Chicago but conducted business nationwide through the activities of its district managers, regional managers, and sales or "field" representatives.  Id. at 216-17.  At issue in Wrigley were the activities of a district manager who had his office in Illinois and visited Wisconsin only six to nine days each year, a regional manager for the Milwaukee region who resided in Wisconsin but was not provided a company office, and field representatives assigned to the Milwaukee region who resided in Wisconsin and used Wrigley-supplied company cars but were not provided with offices.  Id.  Wrigley also provided field representatives with a stock of gum with an average wholesale price of about $1,000, a supply of display racks, and promotional literature.  Id. at 217-18.  Most field representatives stored these items at home, but one representative whose apartment was small rented storage space for about $25 per month for which Wrigley reimbursed him.  Id. at 218.  
The main tasks of the sales force were distributing promotional materials and free samples and requesting orders of Wrigley's products at retail stores.  Often, the field representatives also replaced their retail customers' stale gum supplies ("stale gum swaps") and supplied gum, at a cost, to their retail customers when the customers' supplies were low and they did not want to wait for their next order ("agency stock checks").  Id.  The regional managers were responsible for recruiting, training and evaluating all regional sales representatives, including presiding at meetings in hotels and homes located in Wisconsin.  Id. at 217.  On occasion, perhaps two or three times a year, a regional sales manager would also contact the Chicago office about "'rather nasty' credit disputes involving important accounts in order to 'get the account and [Wrigley's] credit department communicating.'"  Id. at 217, 235.    
The Supreme Court considered whether the following six activities cited by the Wisconsin Department of Revenue exceeded the "solicitation of orders" protected by Pub. L. 86-272:  the replacement of retail customers' stale gum by sales representatives; the agency stock checks; the storage of gum, racks, and promotional materials by field representatives; the rental of storage space; the regional managers' recruitment, training, and evaluation of employees in Wisconsin; and the regional managers' intervention in some credit disputes.  Id. at 232.  In its analysis, the Court separated the activities "between those activities that are entirely ancillary to requests for purchase -- those that serve no independent business function apart from their connection to the soliciting of orders -- and those activities that the company would have reason to engage in anyway but chooses to allocate to its in-state sales force."  Id. at 228-29 (emphasis in original).  
The Court emphasized that solicitation was not to be extended to any activity simply connected with sales in general, drawing a distinction between sales and solicitation of sales:  "it is not enough that the activity facilitate sales; it must facilitate the requesting of sales . . . ."  Id. (emphasis in original).  In drawing this distinction, the Court noted that a certain activity, such as repair or servicing, "may help to increase purchases; but it is not ancillary to requesting purchases, and cannot be converted into 'solicitation' by merely being assigned to salesmen."  Id. at 229 (emphasis in original).  The Court was careful, however, not to construe the "entirely ancillary to solicitation" standard in a manner that was "hopelessly unworkable."  Id. at 230.  To that end, the Court found that activities that occurred after a sale could still be "entirely ancillary" to solicitation, especially since "manufacturers and distributors ordinarily have ongoing relationships that involve continuous sales, making it often impossible to determine whether a particular incidental activity was related to the sale that preceded it or the sale that followed it."  Id. at 230-31.  The Court also allowed exception for activities that, while not entirely ancillary to solicitation of sales, were nonetheless de minimis.  Id. at 231-32.
Ultimately, the Court found that the replacement of stale gum, the agency stock checks, and the storage of gum in Wisconsin were not activities protected by Pub. L. 86-272.  Id. at 233-34.  The replacement of stale gum was not entirely ancillary to solicitation of sales because, while quality control facilitated sales in general, it did not sufficiently relate to the specific act of requesting sales: "Wrigley would wish to attend to the replacement of spoiled product whether or not it employed a sales force."  Id. at 233.  Accordingly, this quality control "serve[d] an independent business function quite separate from requesting orders . . . ."  Id.  The Court also found that the supplying of gum through "agency stock checks" was not ancillary to solicitation.  While the gum was provided to fill complimentary display racks and promotional materials designed to solicit the retailer's customers, the retailers had to pay for the gum.  Id.  Focusing on this important fact, the Court found that the business purpose for supplying purchased merchandise was "quite independent from the purpose of soliciting consumers."  Id. at 234.  The Court likewise found that the storage activities were not entirely ancillary to the solicitation of sales, because the gum stored in the Wisconsin homes and rental space was used primarily for the unprotected activities of stale gum swaps and "agency stock checks."  Id.  Finally, the Court found that these activities "taken together" occurred too frequently to be considered de minimis.  Id. at 235.
However, the Court found that the in-state recruitment, training, and evaluation of sales employees and the intervention in credit disputes were activities entirely ancillary to solicitation and therefore protected by Pub. L. 86-272.  Id. at 234.  First, the Court succinctly stated that the recruitment, training, and evaluation of the sales force in Wisconsin hotels and homes "served no purpose apart from their role in facilitating solicitation."  Id.  The Court likewise found the credit dispute activity to be entirely ancillary to the solicitation of sales.  The Court found that this occasional activity simply served a "mediating function," the purpose of which was to "ingratiate the salesman with the customer, thereby facilitating requests for purchases."  Id.  Because of this direct link between mediating on behalf of established customers and soliciting sales from those established customers, this activity would hardly have been assigned to another employee, "some company ombudsman, so to speak," apart from the sales force.  Id.  Accordingly, the Court found this activity to be entirely ancillary to the solicitation of sales and thus within the protection of Pub. L. 86-272.  Id.  
	The Massachusetts Supreme Judicial Court has followed these principles from Wrigley and applied them to other scenarios.  First, in Kennametal, Inc. v. Commissioner of Revenue, 426 Mass. 39 (1997), cert. denied, 523 U.S. 1059 (1998), the court addressed a manufacturing company conducting business in Massachusetts through the activity of its sales force, which consisted primarily of tooling systems engineers ("TSEs").  In the course of soliciting orders, these experienced engineers engaged in various technical activities, including using samples to test the performance of Kennametal's products, preparing reports on these tests, preparing inventory analyses for a tool standardization program, and making frequent in-plant presentations of up to six hours in length on the use of Kennametal's products.  Id. at 44-45.  While acknowledging that "[t]here exists no bright line to distinguish those activities that are entirely ancillary to the solicitation of orders from those that also serve an independent business function," the court upheld the Board's finding that the TSEs' activities exceeded the solicitation of orders.  Id. at 45.  The court affirmed the finding that Kennametal had reasons independent of soliciting orders for having its TSEs perform the tests, analyses, and presentations, including improving the performance of Kennametal's products and relieving Kennametal from producing "lengthy and detailed product manuals for customers."  Id.  Moreover, the court emphasized the Wrigley principle that "the activities must facilitate the actual solicitation of orders; they may not merely serve to increase general sales."  Id. (citing Wrigley, 505 U.S. at 233).
Then, in Amgen Inc. v. Commissioner of Revenue, 427 Mass. 357 (1998), the court addressed activities performed on behalf of a drug company by professional sales representatives ("PSRs") and clinical support specialists ("CSSs").  The primary responsibility of the PSRs was to call on doctors and nurses to persuade them to prescribe Amgen's products.  Id. at 358.  The PSRs were not medical professionals, and they did not carry samples.  Id.   However, the activities of the CSSs were far more extensive, including conducting frequent programs on Amgen's products at hospitals and other facilities attended by nurses and patients and occasionally reviewing individual patient charts or answering questions about the use or dosage of Amgen's products in relation to specific patients.  Id. at 358-59.  The court found that the Board had correctly ruled that reviewing patient charts and answering questions about use and dosage for specific patients had an independent business function beyond the solicitation of orders for Amgen's products.  Id. at 361-62.  Even though the Board did not specify what the independent business function might have been, the court nonetheless found that the existence of possible business purposes, including the reduction of calls to Amgen's Professional Services Group or to its "hotline," justified the Board's finding that Amgen had assigned to the CSSs tasks that exceeded the solicitation of orders.  Id. at 362. 
Based on the court's specific applications of Wrigley in the above cases, the Board in these appeals found that the warranty claims activities performed by the field representatives were not entirely ancillary to solicitation but instead had separate business purposes.  Although no "bright line" exists to parcel out those activities which are not entirely ancillary to solicitation, and sales representatives in on-going customer relationships have a particular need to be attentive to the needs of their customers, the Board found and ruled that the activities of Alcoa's field representatives sufficiently exceeded the protected realm of soliciting sales.  Unlike the "mediating function" in credit disputes performed by the on-location sales staff in Wrigley, Alcoa's sales personnel took active steps towards resolving warranty issues.  District sales managers initiated over one-third of the warranty claims during all three tax years and visited Massachusetts sites periodically to review claims in order to protect Alcoa's reputation.  The sales force also provided some assistance with preparing paperwork relative to filing warranty claims, including remitting samples to the warranty claims department for evaluation.  Regardless of whether the sales force could actually resolve claims without approval from the claims department, the Board found and ruled that their active steps exceeded a mere mediating function to "ingratiate the salesman with the customer, thereby facilitating requests for purchases."  Wrigley, 505 U.S. at 235.  Instead, the Board found that these warranty activities had independent business purposes, including the improvement of Alcoa's products and the enhancement of Alcoa's reputation among buyers, which purposes have been found by the court to exceed the solicitation of sales:  
Kennametal had reasons independent of soliciting orders that motivated it to provide the activities in question, even if no sales force operated in the Commonwealth.  For example, the proper use of Kennametal's products improves performance and enhances the company's reputation among buyers.  This can be especially important for companies such as Kennametal that attempt to promote their products as being of higher quality than those of competitors.

Kennametal, 426 Mass. at 45. 
Despite Alcoa's argument that its sales force could not be expected to ignore the concerns of its customers, the Supreme Court has specifically found that industry customs and professional practices should not dictate the results of tax cases.  Wrigley, 505 U.S. at 227 ("If, moreover, the approach were to be applied (as respondent apparently intends) on an industry-by-industry basis, it would render the limitations of § 381(a) toothless, permitting 'solicitation of orders' to be whatever a particular industry wants its salesmen to do.").  The Board's ruling in these appeals should not be influenced by whether these activities were suitable for performance by a sales force.  See Wrigley, 505 U.S. at 227  (specifically rejecting a  "'customarily-performed-by-salesmen' approach").  Instead, based on the evidence, the Board here found and ruled that the activities at issue sufficiently exceeded the solicitation of sales protected by Pub. L. 86-272 to create a solid nexus with Massachusetts and, accordingly, justify Alcoa's liability for corporate excise.  
The Board found and ruled that the warranty claims activities performed by the Alcoa sales force had independent business purposes beyond the solicitation of orders and thus exceeded the protection of Pub. L. 86-272.  Because Alcoa had sufficient nexus with the Commonwealth, the Commissioner properly assessed corporate excise for the tax years at issue.  Accordingly, the Board issued a decision for the appellee in these appeals.

					    APPELLATE TAX BOARD	
							

By:____________________________
					    Abigail A. Burns, Chairman



A true copy:



Attest: _____________________
	    Clerk of the Board

   The appellant did not challenge the computation of the corporate excise assessment but rather the appellant's liability for corporate excise at all. 
   The Court noted that indirect solicitation of its retail customers' customers, so-called "consumer solicitation," would still be shielded by Pub. L. 86-272.  Id. at 233.

ATB 2002-404