Colo. Code Regs. 39-26-707
Current through Register Vol. 47, No. 11, June 10, 2024
Rule 39-26-707 - Articles and Containers Re: Food Products(1)Nonessential Articles or Containers Furnished in Connection with Sale of Taxable Food. On or after March 1, 2010, a retailer of food, meals, or beverages (referred to as "retailer") who purchases nonessential tangible personal property ("article") or nonessential containers or bags ("container") and furnishes the article or container to a consumer or user (collectively referred to as the "consumer") in connection with the taxable retail sale of food, meals, or beverages ("food"), must pay sales or use tax on the purchase of the nonessential article or container. (a)Nonessential Articles and Containers. An article or container is nonessential if it is primarily used for the convenience of the consumer and is not necessary to transfer the food to the consumer. (i) Examples of nonessential articles or containers include, but are not limited to, non-reusable: * utensils
* skewers
* napkins and towelettes
* bibs
* serving trays, platters, and dome lid covers to plates or platters
* placemats, tray liners, and tablecloths
* sacks
* grocery bags
* bags and bag ties for bulk grocery produce or bread
* carryout containers for leftover food sold for immediate consumption
* straws
* toothpicks
* stirring sticks
* cup sleeves
* portion dividers
* single-use baking dishes
* condiments, including ketchup, mustard, relish, and spices that are not incorporated into a prepared meal at the time it is transferred to the consumer but are provided separately, such as at a convenience counter. Condiments sold as food for domestic home consumption (e.g., condiment sales in grocery stores) are exempt from state sales and use tax. § 39-26-707(1)(d), C.R.S.
(ii) Examples of essential articles or containers include, but are not limited to, non-reusable: * plates, cups, or bowls (and lids for such items) on, or in which, unwrapped or unpackaged hot or prepared food and beverages are served to the consumer;
* Cups used in vending machines dispensing beverages;
* Disposable containers or packaging material on, or in which, food is transferred to the consumer, including pizza delivery box, baskets, boxes, sleeves for French fries, buckets, clamshells or other containers if the retailer cannot transfer the food to the consumer without such article or container. However, carryout containers used to by a consumer to carry leftover meals from the restaurant are not essential.
(2)Articles or Containers Not Furnished to Consumer. A retailer is liable for sales or use tax for its purchase, use, storage, or consumption of an article or container, regardless of whether it is essential to the consumer, if the article or container is not transferred to the consumer. An article or container is treated as transferred to the consumer if the retailer makes the article or container available to consumers on the retailer's premises. (a) Examples of non-transferred articles include, but are not limited to:(i) Reusable articles such as glassware, ceramic plates, cloth napkins, and silverware;(ii) Non-reusable articles the retailer uses to cook or store food, such as plastic storage wrap for storage, aluminum foil used primarily for cooking, food labels, and cooking tray liners.37 CR 18, September 25, 2014, effective 10/15/201438 CR 02, January 25, 2015, effective 2/14/201539 CR 10, May 25, 2016, effective 6/14/201640 CR 12, June 25, 2017, effective 7/15/201740 CR 23, December 10, 2017, effective 1/1/201841 CR 13, July 10, 2018, effective 7/30/201841 CR 14, July 25, 2018, effective 8/14/201842 CR 02, January 25, 2019, effective 12/18/2018, expires 4/17/2019.42 CR 02, January 25, 2019, effective 12/18/201842 CR 06, March 25, 2019, effective 4/14/201943 CR 04, February 25, 2020, effective 3/16/202043 CR 17, September 10, 2020, effective 9/30/202044 CR 01, January 10, 2021, effective 1/30/202144 CR 07, April 10, 2021, effective 4/30/202144 CR 08, April 25, 2021, effective 5/15/202145 CR 04, February 25, 2022, effective 3/17/202245 CR 23, December 10, 2022, effective 12/30/202246 CR 08, April 25, 2023, effective 5/15/2023