September 23, 1983

You request a ruling as to whether the sales of several items sold through vending machines are subject to the Massachusetts sales tax. The items in question are: coffee, soda in cans and cups, snacks such as chips and pastries, candy, mints, gum, hot food such as sandwiches, luncheon platters, soups, and cold foods such as sandwiches, salads, desserts, milk, juice.

"Sales of food products for human consumption" are exempt from the sales tax. (G.L. c. 64H, § 6(h)). "Food products" do not include "meals," which are defined as:

"Any food or beverage, or both, 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." (G.L. c. 64H, § 6(h)).

"[A]ny eating establishment where food, food products, or beverages are provided and for which a charge is made" is considered a restaurant. Vending machines are specifically included in the definition of a restaurant. However, a vending machine is not an eating establishment in the instance in which it sells candy only. (G.L. c. 64H, § 6(h)).

Meal and Beverage Excise - Information Letter No. 1 (Q. 13) defines "candy" as "items having a sugar or confection base. It does not include peanuts or crackers."

Sales of tangible personal property through coin operated vending machines at ten cents or less, provided the retailer is primarily engaged in making such sales and keeps records satisfactory to the Commissioner, are exempt from the sales tax. (G.L. c. 64H, § 6(t)).

Based on the foregoing, it is ruled that:

1. Vending machines which only sell candy, gum, and mints are not "restaurants," and the sales from such vending machines are not subject to the sales tax.

2. Vending machine sales of coffee, soda in cans and cups, snacks such as chips and pastries, hot foods such as sandwiches, luncheon platters, soups, and cold foods such as sandwiches, salads, desserts, milk, juice are subject to the sales tax.

Very truly yours,

/s/Ira A. Jackson

Ira A. Jackson
Commissioner of Revenue

IAJ:JES:mf

LR 83-79