34 TAC §3.293
The Comptroller of Public Accounts proposes a new §3.293,
concerning food, food products, meals, and food service. The new section replaces
the existing §3.293, which is being repealed so that the content is updated
to reflect the changes made to Tax Code, §151.314 by House Bill 2425,
78th Legislature, Regular Session, 2003, including when tax is due on sales
of prepared food, an exemption for sales of bakery products that are sold
without utensils, and an exemption for sales of juice that contains more than
50% vegetable or fruit juice by volume sold by grocery or convenience stores.
Prepared food is defined in subsection (a)(13) of the new section to include
food ready for immediate consumption sold by caterers, mobile vendors, or
by restaurants, fast food outlets, lunch counters, cafeterias, hotels, and
other similar types of places; food sold in a heated state or heated by the
seller; food sold with eating utensils provided by the seller; or two or more
food ingredients mixed or combined by the seller for sale as a single item,
including items that are sold in an unheated state by weight or volume as
a single item, but does not include food that is prepared at an off-site location
or food that is only cut, repackaged, or pasteurized by the seller. Sales
of sandwiches and individual ice cream sundries continue to be taxable regardless
of whether the seller has eating facilities. Sellers with eating facilities
should continue to collect sales tax on individual-sized packages or portions
of food such as chips and crackers, but not on bakery items, such as cookies,
that are sold without eating utensils. Pre-packaged ice cream sundries are
not taxable if the package includes multiple ice cream sundries.
Wedding and bridal consultants, party planners, event planners, or destination
management companies will be addressed in a new section.
In addition to these legislative changes, the new section has other changes
in form, style, and wording to help taxpayers understand when to collect tax
on sales of food. These changes are for the purpose of clarity.
John Heleman, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. Heleman also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing additional information concerning taxpayer responsibilities.
This rule is adopted under Tax Code, Title 2, and does not require a statement
of fiscal implications for small businesses. There is no significant anticipated
economic cost to individuals who are required to comply with the proposed
rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas 78711.
This new section is proposed under Tax Code, §111.002, which
provides the comptroller with the authority to prescribe, adopt, and enforce
rules relating to the administration and enforcement of the provisions of
Tax Code, Title 2.
The new section implements Tax Code, §151.314.
§3.293.Food; Food Products; Meals; Food Service.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Bakery items--Baked goods typically made by bakeries including
bread, rolls, buns, biscuits, bagels, croissants, pastries, doughnuts, Danishes,
cakes, tortes, pies, tarts, muffins, bars such as lemon bars, cookies, large
pretzels, and tortillas. The term does not include candy; snack items including
chips, small pretzels, or crackers; sandwiches; tacos; or pizzas.
(2)
Bulk vending machine--A device that contains unsorted items
and randomly dispenses goods in approximately equal amounts without selection
of a particular item or type of item by the customer.
(3)
Candy--A confection made of natural or artificial sweeteners
and includes bars, gum, drops, taffy, and chocolate, yogurt or caramel coated
nuts, popcorn, raisins, and other fruits. The term does not include products
used exclusively for cooking, such as chocolate bits and cake sprinkles.
(4)
Combine--To combine two or more food products until the
products do not separate (e.g. salsa, pesto, dip, and hummus).
(5)
Eating facilities--Tables, benches, booths, chairs, or
other facilities that allow customers to eat either on or adjacent to the
seller's premises. For example, a food seller located adjacent to the food
court in a shopping mall is considered to have eating facilities.
(6)
Eating utensils--Eating utensils include trays, plates,
knives, forks, spoons, glasses, cups, or straws.
(7)
Food and food ingredients--Substances, whether in liquid,
concentrated, solid, frozen, dried, or dehydrated form, that are sold for
ingestion or chewing by humans and are consumed for taste, aroma, or nutritional
value.
(A)
Food and food ingredients include food products intended
for human consumption, such as the following: cereal and cereal products,
milk and milk products, including ice cream, butter, and yogurt, meat and
meat products, poultry products, fish and fish products, eggs and egg products,
vegetables and vegetable products, fruit and fruit products, spices, condiments,
and salt, sugar products, coffee and coffee substitutes, tea, juice (if more
than 50% fruit or vegetable juice by volume), cocoa and cocoa products, canned
foods, or any combination of these.
(B)
Food products do not include:
(i)
alcoholic beverages;
(ii)
cigarettes, tobacco, or tobacco products;
(iii)
candy;
(iv)
ice;
(v)
water; or
(vi)
drugs, medicines, tonics, vitamins, dietary supplements,
and medicinal preparations in any form. For further information about drugs,
medicines, and dietary supplements, see §3.284 of this title (relating
to Drugs, Medicines, Medical Equipment and Devices).
(8)
Food ready for immediate consumption--Food, drinks, or
meals prepared, served, or sold by restaurants, lunch counters, hotels, cafeterias,
or other like places of business, and when sold, the food, drinks, or meals
require no further preparation by the purchaser prior to consumption. And
food sold through vending machines.
(9)
Food sold through vending machines--Food dispensed from
a machine or other mechanical device that accepts payment.
(10)
Individual-sized packages--Bottles or cartons of milk,
juice, and tea of a half-pint or less (8 ounces or less) are individual-sized.
Packages or bags of snacks such as chips, pretzels and crackers, are individual-sized
if less than 5 ounces.
(11)
Mix--To blend two or more food items together into a single
item that is more or less a uniform whole, but each ingredient may or may
not retain its identity (e.g. potato salad, coleslaw or seafood salad).
(12)
Mobile vendor--A person who sells food from a motor vehicle,
push cart, or any other form of vehicle.
(13)
Prepared food--Prepared food means:
(A)
food ready for immediate consumption;
(B)
food sold in a heated state or heated by the seller;
(C)
food sold with eating utensils provided by the seller;
or
(D)
two or more food ingredients mixed or combined by the seller
for sale as a single item, including items that are sold by weight or volume
as a single item, but does not include food that is prepared at an off-site
location, refrigerated food that is typically reheated prior to eating, or
food that is only cut, repackaged, or pasteurized by the seller.
(14)
Retirement facility--A facility that provides permanent
housing and residence to individuals, a majority of whom are 60 years of age
or older.
(15)
Soft drinks--Carbonated and non-carbonated non-alcoholic
beverages that contain natural or artificial sweeteners. The term does not
include beverages that contain milk or milk products, soy, rice, or similar
milk substitutes, or juices that contain more than 50% vegetable or fruit
juice by volume.
(b)
Sales of exempt food products or water. Food and food ingredients
are exempt from sales tax unless otherwise taxable under subsection (c) of
this section. Water is exempt as explained in §3.318 of this title (relating
to Water-Related Exemptions). Heated and unheated bakery items are exempt
regardless of size or quantity unless sold with plates or other eating utensils
provided by the seller. Separately stated charges for bakery items sold by
caterers, mobile vendors, or by restaurants, fast food outlets, lunch counters,
cafeterias, hotels, and other similar places of business, are taxable if sold
in conjunction with taxable meals in which plates or other eating utensils
are provided. For example, a roll served in a restaurant with a meal is taxable
even if the roll is served rolled up in a napkin rather than directly on the
plate. However, the restaurant is not required to collect sales tax on bakery
items purchased without utensils from its bakery.
(c)
Taxable sales. The following are subject to sales tax:
(1)
sales of soft drinks;
(2)
sales of candy;
(3)
sales of ice;
(4)
sales of beer, wine, and other alcoholic beverages unless
subject to mixed beverage gross receipts tax under Tax Code, Chapter 183;
(5)
sales of cigarettes and other tobacco products;
(6)
vending machines sales of food, soft drinks, and candy
as explained in subsection (e) of this section;
(7)
sales of prepared food as defined in subsection (a)(13)
of this section, including:
(A)
all food ready for immediate consumption, except bakery
items, sold by caterers, mobile vendors, or by restaurants, fast food outlets,
lunch counters, cafeterias, hotels, and other similar types of places;
(B)
all sandwiches ready for immediate consumption including
refrigerated triangle-type sandwiches such as ham, cheese, tuna, egg salad,
or chicken salad, but not sales of sandwiches that are frozen or partially
frozen and that require thawing or heating by the customer prior to consumption;
(C)
all individual ice cream sundries including ice cream served
on cones, in cups or in dishes, ice cream sandwiches, bars, sticks, specialties,
or similar ice cream sundries. It does not include ice cream sundries sold
in prepackaged units containing multiple sundries or in cartons of ice cream
greater than a half-pint. Popsicles are taxable regardless of the quantity
in a package unless the popsicles are more than 50% juice;
(D)
all individual-sized packages of food sold by a business
that has eating facilities (e.g., deli section of a grocery store with seating,
a convenience store, bakery, or doughnut shop with seating). For example,
a half-pint carton of milk is taxable when sold in a convenience store with
eating facilities but is exempt if sold in a convenience store without eating
facilities; or
(8)
sales of a bakery items sold with plates or other eating
utensils provided by the seller.
(d)
Vending machine sales. Food, candy, and soft drinks sold
through vending machines are taxable. The sales tax is determined as follows:
(1)
Soft drink and candy vending machine sales. The vending
machine operator must remit sales tax on the total gross receipts from sales
of soft drinks and candy without any deduction for spoilage, waste, or other
losses.
(2)
Food product vending machine sales. The vending machine
operator must remit sales tax on 50% of the total gross receipts from sales
of food products without any deduction for spoilage, waste, or other losses.
Examples of food products include chips, crackers, pretzels, milk, tea, coffee,
and juice if more than 50% vegetable or fruit juice by volume.
(3)
Water, including bottled water, spring water, sparkling
water, or mineral water, is exempt from sales tax. A vending machine operator
is not required to remit sales tax on the receipts from sales of water. Flavored
water (carbonated or non-carbonated) is a soft drink and a vending machine
operator must remit tax on the total gross receipts for vending machines sales
of flavored water.
(4)
A vending machine operator must place a sign on the vending
machine stating that the vended price includes sales tax. If sales tax is
included in the price of the taxable item, the vending machine operator may
back out the amount of the tax before reporting the taxable sales on his sales
tax return. See §3.328 of this title (relating to Optional Reporting
Methods for Grocers and Other Vendors).
(e)
Bulk vending machine sales. Food, gum, candy, and toys
for children sold for $0.50 or less from a bulk vending machine, as defined
in subsection (a)(2) of this section, are exempt from sales tax. A bulk vending
machine operator that has only exempt bulk vending machine sales may choose
to obtain a sales tax permit and file sales tax returns so that the operator
is able to purchase the gum, candy, or toys tax free for resale by giving
the supplier a properly completed resale certificate. If a vending machine
operator has both taxable vending machine receipts as explained in subsection
(d) of this section, and exempt bulk vending machine sales as explained in
this subsection, the operator must keep detailed records showing which items
are dispensed from the bulk vending machines and which items are dispensed
from the other vending machines.
(f)
Food stamp purchases. Food, candy, and soft drinks are
exempt if purchased with food stamps (including a Texas Lone Star debit card)
under the food stamp program (7 U.S.C. Chapter 51) if the item can legally
be purchased with food stamps. A seller should apply the amount of food stamps
against the purchase of qualifying taxable items first so that the individual
receives the best possible benefit from the food stamp exemption.
(g)
Food sale exemptions. Certain organizations may sell prepared
food, candy, and soft drinks tax-free. These tax-free sales are not counted
against the two one-day, tax-free sales allowed to certain exempt nonprofit
organizations under §3.322 of this title (relating to Exempt Organizations).
Tax is due on sales of alcoholic beverages.
(1)
Sales of food, prepared food, soft drinks, or candy by
a church or at a function of the church are exempt.
(2)
Sales of food, prepared food, soft drinks, or candy sold
or served by public or private elementary or secondary schools, school districts,
bona fide student organizations, or parent-teacher organizations and associations
are exempt if the items are sold or served during a regular school day pursuant
to an agreement with the proper school authorities. This exemption includes
food, soft drinks, and candy sold through vending machines.
(3)
Sales of food, prepared food, soft drinks, or candy by
a parent-teacher organization or association during a fund-raising sale are
exempt, if the proceeds do not go to the benefit of an individual.
(4)
Sales of food, prepared food, soft drinks, or candy by
a group associated with a private or public elementary or secondary school,
if the sale is part of a fund-raising drive sponsored by the organization
for its exclusive use.
(5)
Sales of food, prepared food, soft drinks, or candy by
a member or volunteer for a nonprofit organization devoted to the exclusive
purpose of education or religious or physical training of persons under 19
years of age, if the sale is part of a fund-raising drive sponsored by the
organization for its exclusive use.
(6)
Sales of food, prepared food, soft drinks, or candy served
by hospitals, day care centers, summer camps, or other institutions licensed
by the state for the care of humans are exempt if sold or served to the patients,
children, students, or residents of the facility. Sales of prepared food,
soft drinks and candy to visitors or employees of the facility are taxable.
Persons confined in correctional facilities operated under the authority,
jurisdiction, or under a contract with the State of Texas or its political
subdivisions are not exempt and must pay sales tax when they purchase taxable
items such as prepared food, candy, soft drinks, and taxable items sold from
vending machines. Meals and beverages served without charge to inmates confined
in correctional facilities are not taxable.
(7)
Food, prepared food, soft drinks, or candy sold or served
by a retirement facility to its permanent residents are exempt. Sales of taxable
items to visitors or employees of the facility are taxable.
(h)
Responsibilities of sellers of taxable food and beverages.
(1)
A seller must collect sales tax on all taxable sales. The
seller is required to obtain a sales tax permit, file sales tax returns and
remit the tax to the comptroller. See §3.286 of this title (relating
to Seller's and Purchaser's Responsibilities).
(2)
A seller must collect sales tax on the total sales price
of taxable items, including separately stated charges for preparing, serving,
or delivering taxable items, charges for the room or facility in which the
meals and beverages are served, and charges for the cost or expense of items
such as tables, chairs, tableware, and tablecloths used by the seller in providing
the food service. These reusable items are used by the food service provider
(not rented to the customer) and may not be purchased tax free for resale.
(A)
A cash discount (including a discount coupon) allowed by
a seller reduces the sales price of a taxable item, and the seller should
collect sales tax on the actual amount paid by the customer for the discounted
meals or beverages. For example, a seller should charge sales tax on the price
of the single meal when accepting a discount coupon that allows the customer
to purchase two meals for the price of one.
(B)
Separately stated charges for mandatory tips or gratuities
may be excluded from the sales price if the charges meet the criteria for
exclusion as explained in §3.337 of this title (relating to Gratuities).
Voluntary tips or gratuities left by customers for food service employees
are not subject to sales tax.
(3)
A seller of taxable items must keep accurate records that
clearly identify sales of exempt items and sales of taxable items. The records
must separately stated charges for the exempt items from the charges for taxable
items. Examples of records include sales invoices, receipts, and cash register
coding records. If a seller's records do not clearly identity exempt sales
from taxable sales, all sales are presumed taxable.
(4)
A seller must pay sales or use tax on the purchase, lease,
or rental of all taxable items unless otherwise exempt under the law. Examples
of equipment and supply items taxable to a food service business include,
but are not limited to, tables, chairs, reusable place mats, tablecloths,
cloth napkins, silverware, dishes, dispensers such as salt and pepper shakers
and glass creamers, garbage cans and garbage can liners, janitorial items
such as mops and mop holders, grill bricks, aprons, menus and menu inserts,
and hand tools such as cooking utensils, cutting knives, and lime squeezers.
(5)
A seller may give a resale certificate to a supplier for
the tax-free purchase of items that are transferred to the customer with the
food or beverages. Such items must not be reusable by the seller to qualify
for the sale for resale exemption. See §3.285 of this title (relating
to Resale Certificates; Sales for Resale). Persons who process food for sale
qualify for an exemption on the wrapping and packaging used to package the
food for sale. See §3.314 of this title (relating to Wrapping, Packing,
Packaging Supplies, Containers, Labels, Tags, Export Packers, and Stevedoring
Materials and Supplies). Examples of items qualifying for exemption include
disposable paper products, wooden, plastic, and aluminum products that are
transferred to the customer. Other examples include cake boxes, lunch boxes,
disposable cups, paper and plastic containers, bottle wraps, butter chip trays,
disposable paper or plastic plates, plastic knives, forks, and spoons, paper
napkins, soda straws, toothpicks, french fry boxes, stir sticks, ice cream
sticks, disposable souffle cups, hot dog trays, and other types of disposable
trays.
(6)
A person processing food for sale is a manufacturer and
may claim a sales or use tax exemption on purchases of equipment and other
taxable items that qualify for exemption under Tax Code, §151.318. For
example, a restaurant may claim an exemption on the purchase of an oven or
a mixer, directly used in baking or mixing. See §3.300 of this title
(relating to Manufacturing; Custom Manufacturing; Fabricating; Processing)
for further information regarding these exemptions. The exemption in Tax Code, §151.317
for natural gas and electricity used in manufacturing is not applicable when
the gas or electricity is used to prepare or store prepared food.
(7)
As a matter of convenience, a food service business, such
as a restaurant selling prepared food, may sell prepared food tax free to
a food service employee immediately before, during, or immediately after the
employee's shift. This provision applies to employees involved in preparing
or serving food at the food service location.
(i)
Universities, colleges, junior colleges, or other institutions
of higher learning. Universities and colleges are required to collect sales
tax on taxable sales as explained in subsection (c) of this section. If a
charge for meals is not separately stated and is included in a lump-sum price
to a student for room, the university or college is required to remit sales
tax to the comptroller on the portion of the lump-sum charge attributable
to the taxable meals.
(j)
Hotels and other places that provide sleeping accommodations.
Places that provide sleeping accommodations to the public, including motels,
tourist houses, lodging houses, inns, rooming houses, bed and breakfast places,
must collect hotel occupancy tax under Tax Code, Chapter 156.
(1)
A hotel must collect sales tax on prepared food.
(2)
If the charges for prepared food are not separately stated
and are billed with the lodging as a lump-sum price, then hotel occupancy
tax, not sales tax, is due on the lump-sum charge. See §3.162 of this
title (relating to Hotel Occupancy Tax Base and Collection of the Tax).
(3)
A hotel is not required to collect sales tax on a separately
stated charge for use of a hotel meeting room if the charge is unrelated to
the sale, provision, or service of prepared food or the sale of other taxable
items such as an admission charge for a taxable amusement service. See §3.298
of this title (relating to Amusement Services). The charge for the meeting
room is subject to hotel occupancy tax if the meeting room is located in the
hotel building where sleeping accommodations are provided.
(4)
A hotel is required to pay sales tax on its purchase of
taxable items (prepared food purchased from a caterer, soft drinks, candy,
ice) provided to guests free of charge as complimentary items. However, a
hotel is not required to accrue and pay sales tax on its purchase of exempt
food products (loaves of bread, milk, cereal, fruit) even if provided to guests
as free complimentary items.
(k)
Caterers.
(1)
Caterers are persons engaged in the business of preparing
and serving meals, drinks, or other food products at locations designated
by customers. A caterer is a seller of prepared food and beverages and must
collect sales tax on all charges billed in connection with the sale of taxable
meals.
(2)
A caterer owes tax on the purchase, lease, or rental of
tables, chairs, tablecloths, steam tables, and table decorations, used in
providing the catered meals. A caterer may claim a resale exemption on the
purchase of nonreusable items transferred to customers and on qualifying equipment
such as mixers, used to prepare the food. See §3.300 of this title (relating
to Manufacturing; Custom Manufacturing; Fabricating; Processing) for information
on qualifying equipment.
(3)
If a caterer uses a room or facility in a hotel that is
subject to hotel occupancy tax, the caterer is required to pay the occupancy
tax to the hotel. There is no resale exemption for hotel occupancy tax. In
addition, a caterer must collect sales tax on a separately stated charge passed
on to the customer for the cost or expense of the room (including the occupancy
tax) when billed to a customer as part of the taxable sale of catered meals.
(l)
For information on the responsibilities of persons who
sell and serve mixed alcoholic beverages, see §3.289 of this title (relating
to Alcoholic Beverage Exemptions).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 7, 2006.
TRD-200603067
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: July 23, 2006
For further information, please call: (512) 475-0387
Subchapter JJ. CIGARETTE AND TOBACCO PRODUCTS REGULATION
34 TAC §3.1204
The Comptroller of Public Accounts proposes an amendment
to §3.1204, concerning administrative remedies for violations of Health
and Safety Code, Chapter 161, Subchapter H or K. The amendment removes as
a partner organization that may notify the comptroller of violations, the
organization named Drug Abuse Resource Education (DARE), and replaces it with
the current organization named Texas Statewide Tobacco Education and Prevention
(STEP) in view of the organizations name change.
John Heleman, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. Heleman also has determined that for each year of the first five years
the rule is in effect, the amendment will benefit the public by improving
the comptroller’s enforcement of tobacco distribution and advertising
provisions of the Health and Safety Code as they relate to minors. This rule
is adopted under Tax Code, Title 2, and does not require a statement of fiscal
implications for small businesses. There is no significant anticipated economic
cost to individuals who are required to comply with the proposed rule.
Comments on the proposal may be submitted to Bryant K. Lomax, Manager,
Tax Policy Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under Tax Code, §111.002, and §111.0022,
which provides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of the provisions
of Tax Code, Title 2, and taxes, fees, or other charges which the comptroller
administers under other law.
The amendment implements the Health and Safety Code, §161.090.
§3.1204.Administrative Remedies for Violations of Health and Safety Code, Chapter 161, Subchapter H or K.
(a)
(No change.)
(b)
Notice of violations. The comptroller receives notice of
a violation of Health and Safety Code, Chapter 161, Subchapter H or K from:
(1)
(No change.)
(2)
local law enforcement or
Texas Statewide Tobacco Education
and Prevention (STEP)
[
Drug Abuse Resource Education (DARE)
];
(3) - (4)
(No change.)
(c) - (g)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 7, 2006.
TRD-200603080
Martin Cherry
Chief Deputy, General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: July 23, 2006
For further information, please call: (512) 475-0387