You inquire whether the Massachusetts sales tax on meals applies to the following sales at a sandwich shop:
(1) sandwiches which are not eaten on the premises;
(2) individual size packages of chips which are eaten with sandwiches on the premises or sold "to go" with or without a sandwich;
(3) soft drinks sold by a vending machine located on the premises of the sandwich shop.
Massachusetts General Laws Chapter 64H, Section 6(h) exempts from sales taxation food products for human consumption other than meals provided by a restaurant. A meal is defined as "any food or beverage...prepared for human consumption and provided by a restaurant, where the food or beverages is intended for consumption on or off the restaurant premises, and includes food or beverages sold on a "take out" or "to go" basis, whether or not they are packaged or wrapped and whether or not they are taken from the premises of the restaurant." A restaurant is any eating establishment where food, food products, or beverages are provided and for which a charge is made, including but not limited to a lunch counter, diner, snack bar and vending machine.
Based on the foregoing:
1. Sales of sandwiches by the sandwich shop are subject to the Massachusetts sales tax on meals, whether intended for consumption on or off the premises.
2. Sales of individual size packages of chips with or without a sandwich by the sandwich shop are subject to the sales tax on meals, whether intended for consumption on or off the premises, or sold on a "to go" basis, whether or not taken from the premises.
3. Sales of soft drinks by a vending machine located on the premises of the sandwich shop are "meals" sold by a "restaurant" within the meaning of Chapter 64H, Section 6(h) and the gross receipts from the vending machine, less the amount of tax included in the price, are subject to the sales tax on meals.
Very truly yours,
/s/L. Joyce Hampers
L. Joyce Hampers
Commissioner of Revenue
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