701—220.5(423) Sales of prepared food are subject to tax
701—220.5(1) Prepared food
a. “Prepared food” means any of the following:
- Food sold in a heated state or heated by the seller, including food sold by a caterer or
- Two or more food ingredients mixed or combined by the seller for sale as a single item or
- Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport food.
The types of retailers who are generally considered to be offering prepared food for sale include restaurants, coffee shops, cafeterias, convenience stores, snack shops, and concession stands, including those at recreation and entertainment facilities. Other retailers that often offer prepared food include vending machine retailers, mobile vendors, and concessionaires operating facilities for such activities as education, office work, or manufacturing.
If food is sold for consumption on the premises of a retailer, the food is rebuttably presumed to be prepared food. “Premises of a retailer” means the total space and facilities under control of the retailer or available to the retailer, including buildings, grounds, and parking lots that are made available or that are available for use by the retailer, for the purpose of sale of prepared food and drink or for the purpose of consumption of prepared food and drink sold by the retailer. Availability of self-service heating or other preparation facilities or eating facilities such as tables and chairs, and knives, forks, and spoons, indicates that food, food products, and drinks are sold for consumption on the premises of the retailer and are subject to tax as sales of prepared food.
The following examples are intended to show some of the situations in which sales are taxable as sales of prepared food and drink.
Example A. A movie theater owner operates a movie theater and a concession stand in the lobby of the theater. There is not a separate area set aside for eating facilities. Sales of prepared food and drink through the concession stand are taxable.
Example B. As a convenience to employees, a manufacturer owns and operates several food and drink vending machines located on the premises of the plant. No separate seating or other facilities for eating are provided. Sales of prepared food and drink through the vending machines are taxable.
Example C. Mobile vendor units located throughout an office are operated by the owner of the business and are stocked with snack food priced to cover the cost of the items to the employer. No separate eating facilities are provided. Sales of prepared food through the mobile vendors are taxable.
Example D. An insurance company hires a caterer to run a cafeteria that provides food, at a low cost, to its employees. The insurance company also pays the caterer an amount, per month, that varies with the number of meals the caterer serves to provide this food service. The caterer does not lease the cafeteria premises; therefore, the premises remains under the control of the insurance company. In this case, the caterer sells the food in a space made “available to the retailer [caterer],” and the amount which the insurance company pays, on a monthly basis, to the caterer is presumed to be the taxable sales price from the sale of prepared food, as well as the amount paid by the employees to the caterer.
b. “Prepared food” does not include food that is any of the following:
- Only cut, repackaged, or pasteurized by the seller.
- Eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the United States Food and Drug Administration in Chapter 3, Part 401.11 of its Food Code, so as to prevent food-borne illnesses.
- Bakery items sold by the seller that baked them. The term “bakery items” includes but is not limited to breads, rolls, buns, biscuits, bagels, croissants, pastries, donuts, Danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas. Baked goods sold for consumption on the premises by the seller that baked them are sold exempt from tax.
- Food sold in an unheated state as a single item without eating utensils provided by the seller which is priced by weight or volume.
- Food sold that ordinarily requires additional cooking by the consumer prior to consumption, such as take and bake pizzas.
701—220.5(2) Examples. The following are additional examples of foods that are or are not “prepared foods,” the sales price of which is taxable.
Example A: A supermarket retailer cuts Bibb and romaine lettuce, mixes them together, and places them in a bag for sale. This is food that is only cut and repackaged. Its sale is not the sale of prepared food; therefore, its sale is exempt from tax.
Example B: The same factual situation as Example A above applies, except that the lettuce is mixed with a salad dressing, placed in a container, and sold as a salad which is ready to eat. Sale of the salad is a taxable sale of “prepared food.”
Example C: A supermarket retailer slices a roll of cotto salami and a roll of regular salami. The retailer places 10 slices of each in the same container and sells the combination as an Italian luncheon meat variety pack. This is, again, the sale of food which is only cut and repackaged. The sale of the salami is exempt from tax.
Example D: The same factual circumstances as in Example C apply, except that the retailer takes the sliced salami, places it between two slices of bread, adds some condiments, surrounds the meat, bread, and condiments with plastic, and sells the result as a ready-to-eat sandwich. This is prepared food, “two or more food ingredients...combined by the seller for sale as a single item,” and more is done to the ingredients than cutting and repackaging. Sales of the sandwiches are taxable.
Bakery items sold by the seller that baked them are exempt from sales tax. Furthermore, baked goods sold by the seller that baked them are exempt from sales tax when sold for consumption on the premises of the seller.
All sales of food, food products, and drinks on a catered basis are subject to tax.
Catering is, at the very least, delivering food that is ready to eat. This includes hot, delivered pizza. Catering can involve additional services beyond food delivery, including setup, serving, and cleanup.
If a retailer is advertised as a caterer and delivers food that is prepared to be eaten immediately, that service – including the charge for the food – is taxable. It does not matter if the caterer actually serves the food or not.
A person who makes pies and cakes and delivers them is not considered a caterer, and those sales are not taxable.
Personal or Private Chefs
A personal chef sells taxable prepared food. This is true regardless of who purchases the groceries used by the personal chef or whether the personal chef itemizes the cost of groceries and the chef’s cooking service for the customer.
Delicatessens and Grocery Stores
Food sales from a delicatessen of prepared foods by a grocery store are generally subject to sales tax.
If several items are sold together as part of a meal and they are not separately itemized, the total amount charged for the meal is subject to sales tax. A meal might include a loose-meat sandwich, a bag of potato chips, and a soft drink for a single, combined price. The full amount of the sale is taxable.
Many delis take surplus food and package it and place it in a cooler separate from the deli counter. Generally, sales of this food are exempt from sales tax. Cole slaw, baked beans, and potato salad sold in various size containers are exempt from sales tax because they are not sold with eating utensils and are priced by weight or volume. However, meals prepared by the retailer and stored in a cooler are subject to sales tax because they are not priced by weight or volume. Typical examples include a meatloaf sandwich or a Chinese meal.