June 8, 1983
__________ Inc. ("Company") operates an industrial commissary that sells food and beverages, including sandwiches and snacks, primarily to independent canteen truck operators, snack bars, and vending machine operators. These purchasers resell the items to individual consumers in such form as to be available for immediate consumption. I have recently ruled that the industrial commissary is a "restaurant" within the meaning of General Laws Chapter 64H, Section 6(h). You now inquire whether the Company's sales at the commissary of food products to independent canteen truck operators who resell the products to the general public are exempt from the sales tax on meals.
Sales of meals and other tangible personal property for resale in the regular course of business are not subject to the sales tax (G.L. c. 64H, s. 1(13)). But as I noted in my prior ruling, all gross receipts of a vendor from sales of tangible personal property are presumed to be from taxable sales until the contrary is established, and the burden of proving that a sale is not at retail is on the vendor unless he takes a resale certificate from a purchaser who is a registered Massachusetts vendor (G.L. c. 64H, s. 8).
Accordingly, on the facts you state some of the Company's sales at the commissary would be exempt from the sales tax under General Laws Chapter 64H, Section 1(13). However, the Department of Revenue will regard the Company's sales of meals as subject to taxation except where it satisfies its burden of proof under Section 8 of Chapter 64H. This burden will be satisfied with respect to a sale if the Company takes a resale certificate in good faith from a registered Massachusetts vendor. If the Company does not take a resale certificate with respect to a sale of meals, it must maintain records of each sale sufficient to establish to the satisfaction of the Commissioner that the sale was for resale in the regular course of business.
Very truly yours,
/s/Ira A. Jackson
Ira A. Jackson
Commissioner of Revenue
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