May 27, 1983
You inquire about the application of the sales tax to the sale of sandwiches sold in convenience stores.
__________ ("Company") manufactures various sandwiches and wraps them in individual packages. These are then sold to convenience stores which sell the sandwiches to the public. No further preparation is necessary prior to eating such a sandwich, which may be eaten directly from the package. The Company provides the convenience stores with an oven for warming the sandwiches. No tables, chairs or similar facilities are provided in the convenience stores; the sandwiches are consumed off the premises.
Massachusetts General Laws Chapter 64H, Section 6, provides that the sale of certain goods are exempt from taxation. Subsection (h) of that Section includes the sale of food products for human consumption within the group of tax exempt sales. Section 6(h) further provides that "food products" does not include meals. "Meals" are defined as any food or beverage provided by a restaurant where such food or beverage is intended for consumption on or off the premises, including food or beverages sold on a "take out" or "to go" basis. A "restaurant" is any eating establishment where food, food products, or beverages are sold. Delicatessen, grocery, market or bakery stores are not considered eating establishments except to the extent that they sell food, including sandwiches, which is commonly sold at snack bars, coffee shops and luncheon counters.
Based on the foregoing it is ruled that sales by a convenience store of sandwiches made by the Company are subject to the sales tax on meals.
Very truly yours,
/s/Ira A. Jackson
Ira A. Jackson
Commissioner of Revenue