Commissioner, the Commissioner of Revenue or the Commissioner's duly authorized representative.
Vendor, as defined in M.G.L. c. 64H, § 1.
Cereals and cereal products;
Flour and flour products;
Milk and milk products, including ice cream;
Oleomargarine;
Meat and meat products;
Fish and fish products;
Eggs and egg products;
Vegetables and vegetable products;
Fruit and fruit products;
Soft drinks;
Herbs and spices;
Salt;
Sugar and sugar products;
Candy and confectionery;
Coffee and coffee substitutes;
Tea;
Cocoa and cocoa products;
Food substitutes;
Ice when used for household consumption; and
Water.
The term "food products" does not include: Alcoholic beverages which contain 1/2 of 1% or more of alcohol by volume at 60° F; Dietary supplements and adjuncts; and Medicines, tonics, and preparations in liquid, powder, granular, tablet, capsule, lozenge, and pill form sold as dietary supplements or adjuncts. Medicines prescribed by a registered physician are exempt from sales tax. M.G.L. c. 64H, § 6(1).
The following examples illustrate the provisions of the foregoing 830 CMR 64H.6.5(4):
Example 1: A powdered preparation containing eggs, sugar, cocoa and various minerals is to be mixed with water and eaten in lieu of meals. This preparation is exempt from sales tax as a food substitute, unless it is sold by a restaurant.
Example 2: A health food store sells a protein energy bar which contains vitamins and minerals. The bar is carob-coated, cocoa-flavored and consists primarily of sugar and other sweeteners. Other ingredients include vegetable oils and peanut butter. The energy bar is candy exempt from sales tax unless it is sold by a restaurant.
Prepared meals, snacks, sandwiches, food platters, poultry, fish or meat items, or other food combinations, to the extent that such items are sold by a restaurant whose principal business is the preparation or sale of such items in such form as to be available for immediate consumption without further significant preparation, whether for on or off premise consumption, are not to be excluded under 830 CMR 64H.6.5(5)(e)1. through 3.
Example 1: Restaurant A sells all types of meals including desserts. Many of its desserts are kept in a cooler, available for take-out. Items in the cooler include: gallons, half gallons, quarts, and pints of ice cream; individual sundaes, ice cream sandwiches, and ice cream cake rolls. Nontaxable sales include: a pint, quart, half gallon, etc. of ice cream and the ice cream cake roll. Taxable sales include: an individual sundae and an ice cream sandwich. The sale of ice cream hand packed for the customer is taxable regardless of container size.
Example 2: Restaurant B sells all types of meals including pasta dishes. B sells quart jars of spaghetti sauce to customers for off-premises consumption. The sale of jars of sauce is not taxable unless sold heated.
Example 3: Restaurant C sells sandwiches, pizza, snack and family bags of chips, cans, and 1 liter and 2 liter containers of soda. The sale of sandwiches, pizza, snack bags of chips or cans of soda is taxable. The sale of a family bag of chips or 1 or 2 liters of soda for off premises consumption is not taxable.
Example 4: Restaurant D sells all types of meals including sandwiches. This restaurant sells meals for customers to consume on premises and also sells these meals for take-out from a counter. Specifically, customers may purchase from the counter the following items for take out: sandwich meats or cheeses; shrimp salad; pizza; soup; sandwiches; snack size bags of chips; cold soda cans; and whole cooked meat poultry or fish with or without the fixings.
Because the establishment is primarily in the business of selling meals it is a restaurant and most of its sales are taxable except those sales a restaurant may make tax free. A restaurant may not claim a store part. The counter is considered a convenience for take out meals and is not considered a delicatessen. Therefore, the rules for restaurant sales apply. See 830 CMR 64H.6.5(5)(e). In this example, the sale of sandwich meats or cheeses for off premises consumptions is not taxable. The sale of the other items mentioned are taxable.
The rules are different for a delicatessen counter in a grocery store or a delicatessen store that is not primarily in the business of selling meals. For these businesses the rules in 830 CMR 64H.6.5(6)(b)3. apply.
Example 5: Restaurant E sells all types of meals. At the register is a display of candy and mints. The sale of individual snack size candy or mints by a restaurant is taxable. The sale of a multipack of candy bars or mints for off premises consumption is not taxable.
Example 6: Restaurant F sells all types of meals including pastries. Many of the pastries are kept in a cooler available for take-out. The sale of pastries by a restaurant in units of five or fewer are taxable. Its sales of pastries in units of six or more are not taxable.
Example 1: The Whimsy Company provides low cost meals to its employees. Whimsy pays Quick Caterers to purchase the food and prepare and serve the meals to Whimsy's employees. Only the amount charged the employee for the meals is subject to tax. The additional operating expense paid by Whimsy to Quick is not subject to tax.
Example 2: The Whimsy Company provides free meals to its employees. Whimsy pays Quick Caterers to purchase the food and prepare and serve the meals. The food is owned by Quick. Quick is selling meals to Whimsy and these sales are subject to tax.
Example 3: The Whimsy Company provides free meals to its employees. Whimsy pays Quick Caterers to prepare and serve food owned by Whimsy. Since no sale of meals takes place, no taxable event occurs.
Taxable Store Sales
Nontaxable Store Sales
Example 1: Establishment A is engaged in the sale of baked goods but also sells coffee and juice for its customers' convenience. All of A's sales are made from the same counter. Establishment A is a restaurant because it sells meals (beverages and baked goods) and has made no effort to establish a restaurant part. Its sales of beverages and baked goods in units of five or fewer are taxable even when the sale is made without a beverage.
Example 2: Establishment B is engaged in the sale of baked goods but also sells coffee and juice for its customers' convenience. B has a "Breakfast Express" line from which it sells baked goods in combination with beverages. Beverages may be purchased only from this line. B has effectively created a restaurant part within its bakery. The sales from the restaurant part are taxable except baked goods in units of six or more. The sales of baked goods from the bakery are exempt regardless of the number sold since the rest of the bakery maintains its status as a store.
- Beverages, poured or fountain type;
- Combination plates sold as a unit reasonably and commonly considered a meal whether or not heated;
- Entrees (single portion) such as lasagna, eggplant parmesan, or quiche, heated, but also if refrigerated if the store provides a heating unit (entrees sold frozen are not taxable), and whether or not prepackaged;
- Heated, prepared foods;
- Quick meals, such as hot dogs, hamburgers, pizza, or soup, heated, but also taxble if refrigerated if the store provides a heating unit (quick meals sold frozen are not taxable) and whether or not prepackaged;
- Sandwiches whether or not prepackaged and whether or not heated; and
- Snacks unpackaged including, for example, unpackaged baked goods in units of less than six, or fresh popped popcorn.
- Beverages in unopened, original containers;
- Food products, such as a can of coffee or loaf of bread;
- Party packs and party platters; and
- Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened, original containers intended and manufacturer marked for individual sale.
- Beverages, poured or fountain type;
- Combination plates sold as a unit reasonably and commonly considered a meal whether or not heated;
- Entrees (single portion) such as lasagna, eggplant parmesan or quiche prepared for immediate human consumption, heated, but also if refrigerated if the store provides a heating unit (entrees sold frozen are not taxable), and whether or not prepackaged;
- Heated prepared foods;
- Quick meals, such as hot dogs, hamburgers, pizza, or soup, heated, but also if refrigerated if the store provides a heating unit (quick meals sold frozen are not taxable), and whether or not prepackaged;
- Salads sold as a unit in a manner reasonably and commonly considered a meal such as on a plate or otherwise packaged as a meal;
- Salads from a salad bar;
- Sandwiches, whether or not packaged, and whether or not heated; and
- Snacks unpackaged including, for example, baked goods in units of less than six.
- Beverages in unopened, original containers;
- Condiments and spreads;
- Meat, poultry, or fish items, for example, fried chicken or barbecued spare ribs, if sold unheated;
- Party packs and party platters;
- Salads except salads from a salad bar and salads sold in a manner reasonably and commonly considered a meal;
- Sandwich meats or cheeses, sliced or whole;
- Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened original containers intended and manufacturer marked for individual sale; and
- Whole, cooked meat, poultry, or fish sold unheated.
Example 1: Establishment A is a section within a supermarket that sells only baked goods and no beverages or other meals. The section is a bakery and its sales of baked goods are not taxable regardless of the number sold.
Example 2: Establishment B is a section within a supermarket that sells baked goods. Taxable beverages may be purchased from the same counter. The bakery section is a restaurant for sales tax purposes and its sales of baked goods are taxable except those sold in units of six or more. The sales of poured or fountain beverages are subject to tax.
"Prepared meat, poultry, and fish items," include meat, poultry, or fish parts or pieces, such as fried chicken wings or barbecued spare ribs. This definition does not include whole cooked, sliced, or unsliced meat, poultry, or fish such as a whole turkey or ham. This definition also does not include sliced meat, poultry, or fish sold by weight such as bologna, cold boiled ham, turkey loaf, etc.
Example 1: A fish market has a counter from which it sells heated fried fish, french fries, and cole slaw. The counter is a restaurant part and these sales are taxable.
Example 2: A poultry farm sells barbecued chicken pieces but no other prepared foods. Its sales of chicken pieces constitute less than 15% of its total gross sales from all its activities. The farm's sale of chicken pieces is not taxable.
- Beverages, poured or fountain type; and
- Snacks unpackaged, for example, fresh popped popcorn.
- Beverages in unopened, original containers; and
- Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened, original containers intended and manufacturer marked for individual sale.
The provisions of 830 CMR 64H.6.5(7)(b) are illustrated by the following examples:
Example 1: A business holds a lunch meeting in a function room at a hotel. The charge includes the cost of the lunch served and a separately stated room rental fee. The sales tax on meals is imposed upon the entire charge because the room was rented for the purpose of serving a meal.
Example 2: A corporation holds an all-day conference in a function room at a hotel. The hotel serves coffee and pastries in the morning but not lunch. The hotel charges a room rental fee and an additional charge for the coffee and pastries served. The separate charge is reflected both on the bill to the customer and on the books and records of the hotel. The sales tax is imposed only upon the sales price of the coffee and pastries because the room was rented for purposes other than serving a meal.
The provisions of 830 CMR 64H.6.5(7)(c) are illustrated by the following example:
Example: Company X is engaged in the business of providing wedding receptions and private parties. The customer pays a fee for a package plan under which Company X provides a function room in which to hold the reception or party, a meal, and an orchestra. The charge for the room and the meal is subject to tax. The charge for the orchestra is not mandatory and is separately stated. The sales tax is imposed only upon the sales price of the meals and the room, and not on the price of the orchestra.
For purposes of 830 CMR 64H.6.5(9)(a)5., a "housing project" means a separate housing project or a definite portion of a housing project provided by the housing authority of a Massachusetts city or town under M.G.L. c. 121B, §§ 25 through 44 for "elderly persons of low income" and "handicapped persons of low income" as defined by M.G.L. c. 121B, § 1. A housing project includes but is not limited to the following types of housing: cooperative apartments, community residences or such other forms of congregate housing, or housing in separate dwelling units; units or apartments in remodeled or reconstructed existing buildings; condominium units purchased by the housing authority of a city or town; or units or apartments occupied under the rental assistance program pursuant to M.G.L. c. 121B, §§ 42 through 44.
The provisions of 830 CMR 64H.6.5(12)(b) and (d) are illustrated by the following example:
Every year, the parent teacher organizations (PTO) at two different high schools conduct a "Spring Fling" for fundraising purposes to benefit their school. Each PTO hires a band, purchases flowers, and contracts with a local hotel for a banquet hall and the provision of 100 meals. Additionally, the PTO reserves a block of 30 rooms at the hotel for parents.
One high school in this example is a public school in Boston (Public High). The PTO for Public High holds no exemption itself, but would like to avail itself of the exemption which would be available to Public High under M.G.L. c. 64H, § 6(d) had Public High purchased the property directly. In order to substantiate a claim of exemption under M.G.L. c. 64H, § 6(d), Public High PTO must submit to the vendor a properly executed Form ST-5 and must attach a copy of Public High's Form ST-2 if the Form ST-2 is available. If Public High does not present these forms to PTO, the PTO may itself fill out the appropriate sections of Form ST-5 and submit the form to vendors when making purchases through or on behalf of Public High.
The other high school is a local non-governmental high school (Private High) that has § 501(c)(3) status. The PTO for Private High does not itself have § 501(c)(3) status but would like to avail itself of the exemption which would be available to Private High under M.G.L. c. 64H, § 6(e) had Private High purchased the property directly. In order to substantiate a claim of exemption under M.G.L. c. 64H, § 6(e), Private High PTO must submit to the vendor a properly executed Form ST-5 and must attach a copy of Private High's Form ST-2 or temporary Form ST-2. If the PTO itself has applied for and received § 501(c)(3) status, the substantiation requirements in 830 CMR 64H.6.5(12)(c) apply.
Generally, if a customer rents a room for the purpose of serving a meal and the meal is provided by the operator of the room, the charge for the room is subject to sales tax whether or not the charge for the room is separately stated from the charge for the meal. See 830 CMR 64H.6.5(7)(b)2. Here, however, the rental of the banquet hall is exempt as a sale to an entity purchasing through or on behalf of an organization exempt under I.R.C. § 501(c)(3) or an entity purchasing through or on behalf of a government organization.
The rental of the 30 rooms in this example for sleeping and living purposes is subject to the Room Occupancy Excise under M.G.L. c. 64G, § 1. There is no exemption for room rentals under M.G.L. c. 64G corresponding to the exemption under the sales tax statute for purchases by governmental and § 501(c)(3) organizations and entities purchasing through or on their behalf.
The provisions of 830 CMR 64H.6.5(13)(a) are illustrated by the following examples:
Example 1: A state-funded organization located on the grounds of a licensed state hospital provides training to handicapped persons. The training includes preparing and serving meals at the organization's coffee shop. The organization is not a hospital, and the sale of meals prepared and served by the trainees is subject to the sales tax.
Example 2: Employees of a hospital prepare and serve meals in the hospital's cafeteria. The cafeteria provides meals for paid staff, students, patients, and visitors. All these sales are exempt from the sales tax.
The provisions of 830 CMR 64H.6.5(13)(b) are illustrated by the following example:
Example: The school committee of Town X, with the approval of the Commissioner of Education, has extended the school lunch period to serve lunches to persons 60 years of age and over and their spouses. The lunch program meets the conditions and restrictions of M.G.L. c. 15, § 1L. The sale of meals through the program is exempt from the sales tax.
The provisions of 830 CMR 64H.6.5(13)(c) are illustrated by the following examples:
Example 1: A synagogue contracts with a caterer to prepare and serve a meal on synagogue premises to benefit its building fund. Since the meals are not prepared and served by synagogue members, the sales of the meals by the synagogue are not exempt under M.G.L. c. 64H, § 6(cc); they may, however, be exempt as casual and isolated sales under M.G.L. c. 64H, § 6(c). See 830 CMR 64H.6.1.
Example 2: A church holds a dinner meeting at a retreat camp owned by the church. The meals are prepared and served by church members to church members. Meals served at the retreat camp are served on church premises. The proceeds help to maintain the camp. The sales of the meals are not taxable.
The provisions of 830 CMR 64H.6.5(13)(d) are illustrated by the following examples:
Example 1: A university operates a snack shop in its student union to sell sandwiches, soft drinks, and snack items to students, faculty, and staff. The sales of meals to university students are exempt from the sales tax on meals. The sales of meals to the faculty and staff are subject to the sales tax on meals.
Example 2: A public school system operates a nonprofit culinary arts training program. As part of the program, students operate a restaurant which serves low-cost meals to students and the public. The sale of meals to students is exempt from the sales tax; the sale of meals to the public is subject to the sales tax.
Example 3: A vending machine is located in a high school in an area designated primarily for students. The sale of sandwiches, soft drinks, and snack items such as potato chips from the machine is exempt from the sales tax on meals.
The provisions of 830 CMR 64H.6.5(14)(a) are illustrated by the following example.
Example 1: A food stamp recipient purchases $50.00 worth of groceries. Payment is made with $10.00 in food stamps and $40.00 in cash. The purchase included $38.00 worth of tax exempt items and $12.00 worth of food that may be purchased with food stamps but is subject to Massachusetts sales tax unless purchased with food stamps (eligible taxable items). The dollar value of the food stamps ($10.00) is first applied against the purchase of the eligible taxable items ($12.00). The balance ($2.00) is taxable.
830 CMR, § 64H.6.5