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Serving
Massachusetts Agencies

Sale of All or Substantially All Assets

Corporations

If a corporation sells all or substantially all of its assets located within Massachusetts a lien automatically arises under G.L.c. 62C, §51 to secure the payment of any corporate excise taxes. Note that the lien arises not simply because the corporation is selling all or substantially all of its assets, but rather because the sale includes such assets located in Massachusetts. A large, national corporation, known to have many assets world-wide, may have just a few assets in Massachusetts, the sale of which will trigger the lien.

Generally speaking, recitations that the sale does not include all or substantially all of the assets located in Massachusetts is enough to address the issue of the lien, but further investigation may be needed.

Even if the sale is of all or substantially all of the assets of the corporation in Massachusetts, a lien may not exist if the sale is in the "ordinary course of business" of the corporation. This exception is grafted into the language of the statute. For example, if a corporation is in the business of buying and selling house lots and it buys one parcel, Lot 1, builds a house on it and sells it, the sale would not be subject to the lien. Although this is the only property it owns in Massachusetts, the sale is nonetheless in the ordinary course of business, because the lot and the house on it constitute "inventory" to the corporation. That is, its business is buying and selling the very kind of property at issue.

Remember, however, that a deed of all or substantially all of the corporation's property, even if not triggering a lien under the aforementioned statute, may nonetheless require the approval of the stockholders. See G.L.c. 156B, §75.