830 CMR: DEPARTMENT OF REVENUE
830 CMR 64H.00: SALES AND USE TAX
830 CMR 64H.00 is hereby repealed and replaced with the following:
830 CMR 64H.6.5: Sales Tax on Meals

(1) General, Outline.

(a) General. The Massachusetts sales tax is imposed on sales of meals by a restaurant. The tax is levied on the sales price of the meal. The sale of food products for human consumption is exempt from the sales tax.

(b) Outline. 830 CMR 64H.6.5(1)(b) lists the sections contained in 830 CMR 64H.6.5.

1. General, Outline.
2. Definitions.
3. Nontaxable Sales.
4. Food Products.
5. Restaurant Meals.
6. Store Sales.
7. Sales Price.
8. Nonreturnable Containers, Purchases by Vendors.
9. Sales of Meals Exempt when Sold to Certain Organizations.
10. Special Rules for Fundraising Activities.
11. Exempt Organizations - Sales of Meals in the Regular Course
of Business.
12. Special Substantiation Requirements.
13. Sales of Meals Exempt when Sold by Certain Other Institutions
and Organizations.
14. Food Stamps.
15. Liquor License Holder.
16. Recordkeeping.

(2) Definitions. The definitions included in various sections, subsections, divisions, or subdivisions of 830 CMR 64H.6.5, apply where appropriate throughout the regulation.

Commissioner, the Commissioner of Revenue or the Commissioner's duly authorized representative.

Vendor, as defined in M.G.L. c. 64H, § 1.

(3) Nontaxable Sales. If an establishment has taxable and nontaxable sales, it must comply with the recordkeeping requirements in 830 CMR 64H.6.5(16 ). If a vendor's records do not substantiate nontaxable sales, all sales will be considered taxable.

(4) Food Products. The sale of food products for human consumption is exempt from the sales tax unless the food products are prepared for human consumption and provided by a restaurant. The term "food products" includes but is not limited to:

Cereals and cereal products;
Flour and flour products;
Milk and milk products, including ice cream;
Oleomargarine;
Meat and meat products;
Fish and fish products;
Eggs and egg products;
Vegetables and vegetable products;
Fruit and fruit products;
Soft drinks;
Herbs and spices;
Salt;
Sugar and sugar products;
Candy and confectionery;
Coffee and coffee substitutes;
Tea;
Cocoa and cocoa products;
Food substitutes;
Ice when used for household consumption; and
Water.

The term "food products" does not include:

Alcoholic beverages which contain one half of one percent or more of alcohol by volume at sixty degrees Fahrenheit; Dietary supplements and adjuncts; and Medicines, tonics, and preparations in liquid, powder, granular, tablet, capsule, lozenge, and pill form sold as dietary supplements or adjuncts. Medicines prescribed by a registered physician are exempt from sales tax. M.G.L. c. 64H, § 6(l).

(a) Definitions.

1. Candy. Food products with a sugar or confection base, including breath fresheners, gum, mints, and health foods which consist primarily of sugars, but excluding dietary supplements and adjuncts.

2. Dietary supplements or adjuncts. Sales of dietary supplements or adjuncts are subject to sales tax. Dietary supplements or adjuncts include items such as alfalfa tablets, vitamins and minerals, herb laxative tablets, lecithin capsules, chewable lecithin tablets, powdered proteins, fiber wafers, aloe vera juice, baking enricher, and brewer's yeast.

3. Ice. Ice sold for uses other than household consumption is subject to tax. The sale of ice to restaurants and bars for use exclusively as crushed ice in drinks is a sale for resale and is not subject to sales tax if the restaurant presents a resale certificate to the vendor of the ice as required by M.G.L. c. 64H, § 8. If ice is sold both for refrigeration and for sale in iced drinks, the charges may be segregated. If the charge is segregated both on the bill to the customer and in the vendor's books and records, only the sale of ice for refrigeration is subject to tax. If the charges are not segregated, the entire sale is subject to tax. Ice sold from a vending machine is presumed to be ice used for household consumption and is therefore not taxable.

The following examples illustrate the provisions of the foregoing 830 CMR 64H.6.5(4):

Example 1: A powdered preparation containing eggs, sugar, cocoa and various minerals is to be mixed with water and eaten in lieu of meals. This preparation is exempt from sales tax as a food substitute, unless it is sold by a restaurant.

Example 2: A health food store sells a protein energy bar which contains vitamins and minerals. The bar is carob-coated, cocoa-flavored and consists primarily of sugar and other sweeteners. Other ingredients include vegetable oils and peanut butter. The energy bar is candy exempt from sales tax unless it is sold by a restaurant.

(5) Restaurant Meals.

(a) General. The sales tax is imposed on all meals sold by a restaurant or a restaurant part of a store.

(b) Restaurant.

1. A restaurant is any eating or drinking establishment that is primarily engaged in the business of selling meals for which a charge is made, including but not limited to: a cafe; lunch counter; private or social club; cocktail lounge and bar; hotel and motel dining room; catering business; tavern; diner; snack bar including theatre snack bar; dining room; coffee shop; vending machine which sells food items with a sales price of $3.50 or more; ice cream or other food product stand; canteen truck or wagon; street wagon or cart; salad bar; and any other establishment primarily engaged in the business of selling meals, whether stationary or mobile, temporary or permanent.

2. The following are not ordinarily considered restaurants: industrial commissaries which make no retail sales; vending machines which sell only food items with a sales price of less than $3.50; fraternities, sororities, and other student societies, with members residing at a common location and jointly sharing household expenses, including costs of preparing meals, and that prepare and serve meals to members; and bed and breakfast establishments or homes, as defined in M.G.L. c. 64G when the value of the breakfast is included in the rent.

(c) Store. A "store" is any establishment that is not primarily engaged in the business of selling meals. A "restaurant part" is an area, section, or counter, etc., within a store from which meals are sold. Examples of establishments that may be stores with a "restaurant part" include but are not limited to: bakeries, delicatessens, grocery stores, markets, or supermarkets.

(d) Meals. A meal is any food or beverage, or both, served or presented by a restaurant or restaurant part in a manner that is reasonably and commonly considered a meal. A meal 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.

(e) Tax free restaurant sales. Certain food and beverages are not considered meals when sold by a restaurant for off-premises consumption, and their sales are not subject to the sales tax. These include:

1. Food sold by weight, liquid or dry measure, count, or in unopened original containers or packages, including, but not limited to, meat products sold by the pound, a loaf of bread, a quart of milk, and a pint, quart, half gallon, etc. of ice cream, provided that such foods are commonly sold in the same manner in a retail food store which is not a restaurant.

2. Beverages in unopened, original containers or packages when sold as a unit with a capacity of at least twenty-six fluid ounces.

3. Bakery products when sold in units of six or more. Baked goods in units of six or more includes any variety of items totaling six or more servings, for example: two bagels, three muffins and one danish; or one whole pie, cake, loaf of bread, etc.

Prepared meals, snacks, sandwiches, food platters, poultry, fish or meat items, or other food combinations, to the extent that such items are sold by a restaurant whose principal business is the preparation or sale of such items in such form as to be available for immediate consumption without further significant preparation, whether for on or off premise consumption, are not to be excluded under clause 1., 2., or 3.

Example 1: Restaurant A sells all types of meals including desserts. Many of its desserts are kept in a cooler, available for take-out. Items in the cooler include: gallons, half gallons, quarts, and pints of ice cream; individual sundaes, ice cream sandwiches, and ice cream cake rolls. Nontaxable sales include: a pint, quart, half gallon, etc. of ice cream and the ice cream cake roll. Taxable sales include: an individual sundae and an ice cream sandwich. The sale of ice cream hand packed for the customer is taxable regardless of container size.

Example 2: Restaurant B sells all types of meals including pasta dishes. B sells quart jars of spaghetti sauce to customers for off-premises consumption. The sale of jars of sauce is not taxable unless sold heated.

Example 3: Restaurant C sells sandwiches, pizza, snack and family bags of chips, cans, and 1 liter and 2 liter containers of soda. The sale of sandwiches, pizza, snack bags of chips or cans of soda is taxable. The sale of a family bag of chips or 1 or 2 liters of soda for off premises consumption is not taxable.

Example 4: Restaurant D sells all types of meals including sandwiches. This restaurant sells meals for customers to consume on premises and also sells these meals for take-out from a counter. Specifically, customers may purchase from the counter the following items for take out: sandwich meats or cheeses; shrimp salad; pizza; soup; sandwiches; snack size bags of chips; cold soda cans; and whole cooked meat poultry or fish with or without the fixings.

Because the establishment is primarily in the business of selling meals it is a restaurant and most of its sales are taxable except those sales a restaurant may make tax free. A restaurant may not claim a store part. The counter is considered a convenience for take out meals and is not considered a delicatessen. Therefore, the rules for restaurant sales apply. See 830 CMR 64H.6.5(5)(e). In this example, the sale of sandwich meats or cheeses for off premises consumption is not taxable. The sale of the other items mentioned are taxable.

The rules are different for a delicatessen counter in a grocery store or a delicatessen store that is not primarily in the business of selling meals. For these businesses the rules in 830 CMR 64H.6.5(6)(b)3. apply.

Example 5: Restaurant E sells all types of meals. At the register is a display of candy and mints. The sale of individual snack size candy or mints by a restaurant is taxable. The sale of a multipack of candy bars or mints for off premises consumption is not taxable.

Example 6: Restaurant F sells all types of meals including pastries. Many of the pastries are kept in a cooler available for take-out. The sale of pastries by a restaurant in units of five or fewer are taxable. Its sales of pastries in units of six or more are not taxable.

(f) Caterers.

1. Definition. Caterer, a person engaged in the business of preparing or serving meals, whether on the premises of the caterer, premises of the caterer's customers, or premises designated by the customers. A caterer is a restaurant.

2. Caterer does not own food. When a caterer prepares or serves food owned by a client, the caterer's charges for its service are not taxable. If the meals are sold to the client's customers or employees the amount charged to the customer or employee is subject to tax. Food may be purchased by the caterer and still owned by the client if the caterer acts as the client's agent and purchases food on the client's behalf.

3. Caterer owns food. When a caterer prepares or serves food it owns to a client's employees or customers, the amount charged the employees or customers is subject to tax. Any additional management fee or operating expense paid by the client to the caterer is not subject to tax. When a caterer prepares or serves food it owns to the client's employees for a charge paid by the client, rather than selling meals directly to the employees, the charge for the meals paid by the client is subject to tax. For rules regarding caterers acting through or on behalf of exempt organizations see 830 CMR 64H.6.5.(9)(a)4.

Example 1: The Whimsy Company provides low cost meals to its employees. Whimsy pays Quick Caterers to purchase the food and prepare and serve the meals to Whimsy's employees. Only the amount charged the employee for the meals is subject to tax. The additional operating expense paid by Whimsy to Quick is not subject to tax.

Example 2: The Whimsy Company provides free meals to its employees. Whimsy pays Quick Caterers to purchase the food and prepare and serve the meals. The food is owned by Quick. Quick is selling meals to Whimsy and these sales are subject to tax.

Example 3: The Whimsy Company provides free meals to its employees. Whimsy pays Quick Caterers to prepare and serve food owned by Whimsy. Since no sale of meals takes place, no taxable event occurs.

(g) Vending machines. A vending machine which sells food such as candy, snacks or sandwiches is generally not considered a restaurant and the sales are not taxable, providing that the vending machine only sells items with a sales price of less than $3.50 per item. If any single food item sold from a vending machine has a sales price of $3.50 or more, all sales from the vending machine are taxable.

h) Industrial commissaries. An industrial commissary is not a restaurant if it prepares items only for sale to other vendors. However, if an industrial commissary prepares meals for retail sale, the industrial commissary is a restaurant with respect to its retail sales. The commissary must collect and pay over the sales tax on those sales.

(6) Store Sales.

(a) General rules. A "store" is any establishment that is not primarily in the business of selling meals. A "restaurant part" is an area, section, or counter, etc., within a store from which meals are sold. An establishment may use the term store, bakery, delicatessen, convenience store, market, etc. in its name, but if it is primarily engaged in the business of selling meals it is a restaurant for purposes of the sales tax. The following general rules apply to sales by a store.

Taxable Store Sales

1. Beverages. The sale of a poured beverage, such as a cup of coffee or a fountain soda, is taxable.

2. Snacks/unpackaged. The sales of unpackaged baked goods or other snacks by a store are taxable unless specifically exempt under the bakery rules. See 830 CMR 64H.6.5(6)(b)1. for bakery rules.

3. Hot foods. The sale by a store of any prepared food item heated is taxable.

4. Entrees. The sale by a store of single portion size entrees such as lasagna, eggplant parmesan, or quiche prepared for human consumption is taxable if heated (see 830 CMR 64H.6.5(6)(a)3. above) but also taxable if refrigerated if the store provides heating units (typically microwave) in which customers may heat the entrees. Entrees sold frozen are not taxable. Such entrees are taxable whether or not prepackaged.

5. Combination plates. The sale by a store of prepared foods sold as a unit in a manner reasonably and commonly considered a meal is taxable whether or not heated. The sale by a store of prepared foods that are otherwise not taxable do not become taxable simply because they are purchased together. The sale of a 1/2 pint of potato salad and a 1/2 pint of tuna salad by a store for off-premises consumption is not taxable unless they are presented or served as a unit in a manner that is reasonably and commonly considered a meal, such as sold as a plate or packaged as a dinner for a single price.

6. Quick Meals. The sale by a store of quick meals prepared for immediate human consumption such as hot dogs, hamburgers, pizza slices, or soup, is taxable if heated (see 830 CMR 64H.6.5(6)(a)3. above) but also taxable if refrigerated if the store provides heating units (typically microwave) in which customers may heat the quick meal. Such quick meals are taxable as described above, whether or not prepackaged. Quick meals sold frozen are not taxable. The sale of sandwiches is taxable whether or not prepackaged and whether or not heated.

Nontaxable Store Sales

7. Beverages. Beverages sold by a store in unopened original containers for off-premises consumption are not taxable, whether purchased separately or in combination with other foods.

8. Snacks/prepackaged. The sales by a store of prepackaged baked goods or other snacks such as a prepackaged pastry, popcorn, chips, candy, ice cream novelties, etc., for off-premises consumption are not taxable. Prepackaged connotes packed in a sealed, unopened original container intended and manufacturer marked for individual sale.

9. Party Packs and Party Platters. "Party pack, party platter" is an assortment of meats, poultry, or cheeses sold by weight or count, cut and arranged on platter(s), sold with other foods, and designed to serve a number of people. The sale of party packs or party platters by a store is not taxable. Nonfood items sold as part of a party pack or party platter, such as paper plates and plastic cutlery, are subject to the sales tax. If the vendor does not separately state the charge for these items, and collect and pay over the tax, the vendor must pay the use tax on the cost to the vendor of the nonfood items.

(b) Store sales by type. If an establishment is not a restaurant, that is, it is not primarily engaged in the business of selling meals, the basic rules announced above, under store sales, apply. The following provisions focus on rules as they affect a particular type of store since the activity and concerns of these stores vary.

1. Bakery.

a. Baked goods in units of six or more. Bakery products (baked goods) sold in units of six or more for off premises consumption are not subject to tax wherever sold. Baked goods in units of six or more includes any variety of items totaling six or more servings, for example: two bagels, three muffins, and one danish; or a whole pie, cake, loaf of bread, etc.

b. Bakery without restaurant sales. When a bakery sells only baked goods, its sales of baked goods for off-premises consumption are not subject to tax regardless of the number of baked goods sold.

c. Bakery as restaurant. When a bakery sells food items commonly sold at snack bars, coffee shops, or luncheon counters, such as taxable beverages or sandwiches, the entire bakery is considered a restaurant. Its sales of all baked goods for consumption on the premises are subject to tax, and its sales of baked goods sold for consumption off-premises are subject to tax, except when sold in units of six or more.

d. Bakery with restaurant part. When the bakery in some way segregates the restaurant part of the store, the bakery part remains a store and only the restaurant part is considered a restaurant for tax purposes. A separate restaurant part cannot be established if taxable beverages or other meals must or may be purchased from the area, section, counter, etc. from which baked goods are sold. Some separation of space and function is necessary.

Example 1: Establishment A is engaged in the sale of baked goods but also sells coffee and juice for its customers' convenience. All of A's sales are made from the same counter. Establishment A is a restaurant because it sells meals (beverages and baked goods) and has made no effort to establish a restaurant part. Its sales of beverages and baked goods in units of five or fewer are taxable even when the sale is made without a beverage.

Example 2: Establishment B is engaged in the sale of baked goods but also sells coffee and juice for its customers' convenience. B has a "Breakfast Express" line from which it sells baked goods in combination with beverages. Beverages may be purchased only from this line. B has effectively created a restaurant part within its bakery. The sales from the restaurant part are taxable except baked goods in units of six or more. The sales of baked goods from the bakery are exempt regardless of the number sold since the rest of the bakery maintains its status as a store.

2. Convenience store.

a. A convenience, or other store's, sales of the following items are taxable. Beverages, poured or fountain type;

Combination plates sold as a unit reasonably and commonly considered a meal whether or not heated;

Entrees (single portion) such as lasagna, eggplant parmesan, or quiche, heated, but also if refrigerated if the store provides a heating unit (entrees sold frozen are not taxable), and whether or not prepackaged;

Heated, prepared foods;

Quick meals, such as hot dogs, hamburgers, pizza, or soup, heated, but also taxable if refrigerated if the store provides a heating unit (quick meals sold frozen are not taxable) and whether or not prepackaged;

Sandwiches whether or not prepackaged and whether or not heated; and

Snacks unpackaged including, for example, unpackaged baked goods in units of less than six, or fresh popped popcorn.

b. A convenience or other store's sales of the following items for off-premises consumption are not taxable:

Beverages in unopened, original containers;

Food products, such as a can of coffee or loaf of bread;

Party packs and party platters; and

Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened, original containers intended and manufacturer marked for individual sale.

3. Delicatessen.

a. A delicatessen or other store's sales of the following items are taxable:

Beverages, poured or fountain type;

Combination plates sold as a unit reasonably and commonly considered a meal whether or not heated;

Entrees (single portion) such as lasagna, eggplant parmesan or quiche prepared for immediate human consumption, heated, but also if refrigerated if the store provides a heating unit (entrees sold frozen are not taxable), and whether or not prepackaged;

Heated prepared foods;

Quick meals, such as hot dogs, hamburgers, pizza, or soup, heated, but also if refrigerated if the store provides a heating unit (quick meals sold frozen are not taxable), and whether or not prepackaged;

Salads sold as a unit in a manner reasonably and commonly considered a meal such as on a plate or otherwise packaged as a meal;

Salads from a salad bar;

Sandwiches, whether or not packaged, and whether or not heated; and

Snacks unpackaged including, for example, baked goods in units of less than six.

b. A delicatessen or other store's sales of the following items for off-premises consumption are not taxable:

Beverages in unopened, original containers;

Condiments and spreads;

Meat, poultry, or fish items, for example, fried chicken or barbecued spare ribs, if sold unheated;

Party packs and party platters;

Salads except salads from a salad bar and salads sold in a manner reasonably and commonly considered a meal;

Sandwich meats or cheeses, sliced or whole;

Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened original containers intended and manufacturer marked for individual sale; and

Whole, cooked meat, poultry, or fish sold unheated.

4. Grocery store, supermarket. A grocery store or supermarket's sales from its bakery or delicatessen are taxed as described above in 830 CMR 64H.6.5(6)(b)1. and 3.. The sales of salads from a salad bar within a store are taxable.

Example 1: Establishment A is a section within a supermarket that sells only baked goods and no beverages or other meals. The section is a bakery and its sales of baked goods are not taxable regardless of the number sold.

Example 2: Establishment B is a section within a supermarket that sells baked goods. Taxable beverages may be purchased from the same counter. The bakery section is a restaurant for sales tax purposes and its sales of baked goods are taxable except those sold in units of six or more. The sales of poured or fountain beverages are subject to tax.

5. Market. A "market" is an establishment that specializes in the sale of raw meat, poultry, or fish. These establishments are commonly referred to as meat markets, farm stores, or fish markets. Generally, the sale of prepared meat, poultry, or fish items heated or in a combination plate is taxable. When the sales of heated prepared meat, poultry or fish items constitute less than 15% of a single store's total gross receipts from sales from all of its activities and the store does not sell other meals, the store is not a restaurant and the sale of prepared meat, poultry or fish items is not taxable. See Commissioner of Revenue v. Jones, 28 Mass. App. Ct. 332 (1989). A vendor exempting the sales of items from tax on the basis of this rule must be able to predict accurately the percentage of these sales to the store's total gross receipts for the year, since the vendor is responsible for the tax due even if no tax was collected.

" Prepared meat, poultry, and fish items," include meat, poultry, or fish parts or pieces, such as fried chicken wings or barbecued spare ribs. This definition does not include whole cooked, sliced, or unsliced meat, poultry, or fish such as a whole turkey or ham. This definition also does not include sliced meat, poultry, or fish sold by weight such as bologna, cold boiled ham, turkey loaf, etc.

Example 1: A fish market has a counter from which it sells heated fried fish, french fries, and cole slaw. The counter is a restaurant part and these sales are taxable.

Example 2: A poultry farm sells barbecued chicken pieces but no other prepared foods. Its sales of chicken pieced constitute less than 15% of its total gross sales from all its activities. The farm's sale of chicken pieces is not taxable.

6. Video store. If a video store sells refreshments for off premises consumption the rules as to store sales apply.

a. A video or other store's sales of the following items are taxable.

Beverages, poured or fountain type; and

Snacks unpackaged, for example, fresh popped popcorn.

b. A video or other store's sales of the following items for off premises consumption are not taxable.

Beverages in unopened, original containers; and

Snacks prepackaged including, for example, baked goods, candy, ice cream novelties, or chips in sealed, unopened, original containers intended and manufacturer marked for individual sale.

(7) Sales Price. The sales tax imposed on a meal is based on the sales price of that meal. The sales price is the total amount paid by a purchaser to a vendor as consideration for the sale of the meal, valued in money or otherwise. The sales price on which the sales tax is based includes any amount paid for services that are a part of the sale and any amount for which credit is given to the purchaser. The sales price includes the cost of the property sold, the cost of materials used, labor or service cost, interest charges, losses, or other expenses.

(a) Service charges included in the sales price of meals. Generally, separately stated amounts designated as service charges added to the price of a meal are included in the sales price, when such amounts are in fact part of the consideration for food and beverages. However, separately stated amounts designated as gratuities, service charges or tips are not included in the sales price of the meal if they are distributed by the vendor to the service employees, wait staff employees or service bartenders as provided in M.G.L. c. 149, § 152A. If the service charges are paid only in part to the waiters or other service personnel, the charges are included in the sales price of the meal and subject to the sales tax.

(b) Room rentals included in the sales price of meals.

1. Definition: Operator, as defined in M.G.L. c. 64G, § 1(f).

2. Room rented for serving a meal. If a customer rents a room for the purpose of serving a meal and the meal is provided by the operator of the room, the charge for the room, whether or not separately stated, is included in the sales price of the meal.

3. Room rented for the purpose other than serving a meal. When a customer rents a room for purposes other than the serving of meals and there is an incidental serving of light refreshments by the operator of the room for an additional charge, the sales tax applies only to the sales price of the refreshments, if the charge for the refreshments is separately stated on both the records of the vendor and the bill to the customer. If the charges are not separately stated, the entire amount charged is subject to the sales tax.

The provisions of 830 CMR 64H.6.5(7)(b) are illustrated by the following examples:

Example 1: A business holds a lunch meeting in a function room at a hotel. The charge includes the cost of the lunch served and a separately stated room rental fee. The sales tax on meals is imposed upon the entire charge because the room was rented for the purpose of serving a meal.

Example 2: A corporation holds an all-day conference in a function room at a hotel. The hotel serves coffee and pastries in the morning but not lunch. The hotel charges a room rental fee and an additional charge for the coffee and pastries served. The separate charge is reflected both on the bill to the customer and on the books and records of the hotel. The sales tax is imposed only upon the sales price of the coffee and pastries because the room was rented for purposes other than serving a meal.

(c) Package plan, mandatory charges included in sales price of meals.

1. Definition: Package plan, for the purposes of this regulation, 830 CMR 64H.6.5, a package plan is an arrangement for a private function, sold for a single price which includes a meal or meals, other activities such as entertainment, or other items such as place settings, flowers, or prizes, and may or may not include the rental of a function room.

2. Package plans. The charge for a room rented for the purpose of serving a meal is part of the total cost of providing meals and is included in the sales price of the meal subject to tax whether or not the charge is separately stated. If other various charges included in a package plan are mandatory, the sales tax on meals is imposed upon the total amount charged for the package plan, whether or not the charges are separately stated. However, if the various charges (other than room rental) are not mandatory and the vendor of the package plan separately states and reasonably allocates the sales price of the meals and the other items or activities on both the bill to the customer and on the vendor's books and records, the sales tax is imposed only on the sales price of the meals, including the charge for the room rented.

The provisions of 830 CMR 64H.6.5(7)(c) are illustrated by the following example:

Example: Company X is engaged in the business of providing wedding receptions and private parties. The customer pays a fee for a package plan under which Company X provides a function room in which to hold the reception or party, a meal, and an orchestra. The charge for the room and the meal is subject to tax. The charge for the orchestra is not mandatory and is separately stated. The sales tax is imposed only upon the sales price of the meals and the room, and not on the price of the orchestra.

3. Bed and Breakfast. Meals served in owner-occupied one, two, and three room bed and breakfast homes as defined in G.L. c. 64G, § 1, are exempt from the sales tax. G.L. c. 64H, § 6(h). Any tax collected on meals served in breakfast homes before August 10, 1988 must be paid over to the Commonwealth. The value of meals served in bed and breakfast establishments as defined in G.L. c. 64G, § 1 generally is included in the rent subject to the room occupancy tax under G.L. c. 64G. St. 1988, c. 31. However, the operator of a bed and breakfast establishment may apply the room occupancy excise to the room rent only and the sales tax to the sales price of the meals if the operator separately states and reasonably allocates the room rent and the sales price of the meals on both the bill to the guest and on the operator's books and records.

(d) Admission charges for entertainment or recreation. The sales tax is imposed upon admission charges collected by a place of entertainment where food, alcoholic beverages, or both are sold, unless all the following requirements are met:

1. a ticket is sold and collected as evidence of the admission charge;

2. the patron is not required to purchase any food or beverages;

3. the charge is for admission only and does not include any payment for food or beverages; and

4. the admission charges are segregated from other receipts in the books and records of the place of entertainment.

(e) Discounts, Coupons and Rebates. See regulation 830 CMR 64H.1.4.

(8) Nonreturnable Containers, Purchases by Vendors.

(a) General Rule. Sales of containers to vendors are not taxable, subject to the proper use of Exempt Container Certificates. Packaging is considered an exempt container when it will be used by the vendor's customers to transport food or drink off the premises. A seller may sell packaging to a vendor tax free if the seller accepts a properly completed Exempt Container Certificate. The sale of packaging to a vendor is taxable when the packaging is used on the premises by the vendor's customers. M.G.L. c. 64H, § 6(q). Jan Co. Central, Inc. v. Commissioner of Revenue, 405 Mass 686 (1989).

(b) Definition. The term container is limited to items used in transporting food or drink off the premises. The meaning of the term is found by determining the use to which a particular item is put. For example, when a paper product is used on the premises as a plate, it is not a container. When a paper product is used to transport food off the premises, it is a container. The term container may include, for example, paper or plastic wrappers, cups, cup lids, or multicup holders used to carry more than one drink, if these items are used to transport food or drink off premises. The same items used on premises are not considered to be containers for purposes of the M.G.L. c. 64H, § 6(q) exemption. Coffee stirrers, utensils, napkins, straws are examples of items not considered containers whether used on or off premises.

(c) Exempt Container Certificates. If upon the purchase of packaging, the vendor is unable to determine the packaging that will qualify under M.G.L. c. 64H, § 6(q) as exempt containers, the vendor may give the seller of the containers an Exempt Container Certificate. The certificate may be given and accepted only for those items that may be exempt containers depending on later use. The certificate must be signed by and bear the name and address of the purchaser, give a description of the property being purchased and be otherwise properly completed as provided on the form. Acceptance of a fully and properly completed certificate will relieve the seller of the containers from further liability for the tax. The vendor (container purchaser) must keep an accurate record of the containers used to transport food or drink off premises. Packaging not so used is subject to tax. The vendor (container purchaser) must report these purchases on its ST-9, Sales and Use Tax Return, or its ST-10, Business Use Tax Return as applicable. See M.G.L. c. 62C, § 16(i).

(9) Sales of Meals Exempt when Sold to Certain Organizations.

(a) General Rules.

1. Sales of meals to government organizations are exempt under M.G.L. c. 64H, § 6(d). For purposes of 830 CMR 64H.6.5(9) through (12), government organizations include the United States and its agencies, the Commonwealth of Massachusetts, and any of its political subdivisions and their respective agencies and any organization that Massachusetts is prohibited from taxing under the Constitution or laws of the United States.

2. Sales of meals to nonprofit organizations which are exempt from taxation under § 501(c)(3) of the Internal Revenue Code, or sales to nonprofit organizations that are in the process of obtaining exemption under § 501(c)(3) but have not yet received certification from the Internal Revenue Service (hereinafter "§ 501(c)(3) organizations") are exempt from tax if the following rules are met.

a. The meals sold to the § 501(c)(3) organization will be used to further its exempt purpose;

b. The § 501(c)(3) organization has obtained a certification from the Commissioner (i.e. Form ST-2) stating that it is entitled to the exemption. Organizations subject to the mandatory exceptions of § 508(c) of the Internal Revenue Code are exempt from this requirement. Nonprofit organizations that have applied for, but not yet received, a certification from the Internal Revenue Service establishing their status as a § 501(c)(3) organization may be eligible for exemption on their purchases if they have obtained temporary certification from the Commissioner in accordance with the requirements of Technical Information Release 96-9;

c. The § 501(c)(3) organization gives the vendor a properly completed Exempt Purchaser Certificate (Form ST-5) certifying that the meals purchased are for an exempt use. A copy of the organization's Form ST- 2 must accompany the Form ST-5 given to the vendor;

d. The vendor keeps a record of the sales price of each separate sale, the name of the purchaser, the date of the sale, and the number of the Certificate of Exemption; and

e. The § 501(c)(3) organization in all other respects complies with the provisions of regulation, 830 CMR 64H.8.1, Resale and Exempt Use Certificates.

3. Sales of meals to persons, groups, or organizations not described in 830 CMR 64H.6.5(9)(a)1. or (9)(a)2., are generally taxable regardless of whether the property is to be used for fundraising, unless exempt under some other provision of law.

4. Sales of meals to persons, groups, or organizations, including caterers, acting through or on behalf of entities described in CMR 64H.6.5(9)(a)1. or (9)(a)2., are also exempt from taxation when the purchases are made through or on behalf of the exempt entity, provided that the substantiation requirements of 830 CMR 64H.6.5(12)(b) or (d) as appropriate are met.

(10) Special Rules For Sales of Meals in Fundraising Activities.

(a) Sales of meals for fundraising purposes by a government organization are exempt from the sales tax on meals as casual and isolated sales if the organization does not make sales of meals in the regular course of business. Sales of meals by a nonprofit organization for fundraising purposes are exempt from sales tax as casual and isolated sales if (i) the organization does not make sales of meals in the regular course of business and if (ii) amounts derived from sales of meals are used to further the organization's exempt purpose. If these tests are met, the number of casual and isolated sales in a calendar year is immaterial.

(b) The Commissioner will generally presume that amounts derived from the sale of meals purchased for fundraising activities are used to further the organization's exempt purpose.

(11) Exempt Organizations -- Sales of Meals in the Regular Course of Business. In general, whether a nonprofit or governmental organization sells meals in the regular course of business is a question of fact, to be determined from an examination of the facts and circumstances surrounding the transactions and overall operations of the organization. The Commissioner will consider the following factors in deciding whether meals are sold in the regular course of an organization's business:

(a) whether the organization conducts sales from a retail establishment that it operates. For purposes of 830 CMR 64H.6.5 (11) (a) a retail establishment is a restaurant or other premises from which sales of meals are regularly conducted.

(b) whether the organization is required to hold a vendor's registration certificate pursuant to M.G.L. c. 64H, § 7, and is ordinarily engaged in making sales of meals.

(c) whether the proceeds from sales of meals constitute unrelated business income, within the meaning of applicable Internal Revenue Code provisions and the regulations promulgated thereunder.

(12) Special Substantiation Requirements. For purposes of 830 CMR 64H.6.5 (9) through (11), the following substantiation requirements apply:

(a) Sales Directly to Government Organizations.

Government organizations are encouraged to obtain a Certificate of Exemption (Form ST-2) and submit to the vendor a properly executed Exempt Purchaser Certificate (Form ST-5) and a copy of its Form ST-2, if available, when making exempt purchases. Vendors must retain forms in the same manner as other sales tax records. See Record Retention regulation, 830 CMR 62C.25.1, for further recordkeeping requirements. If the government organization does not present Form ST-5, the vendor must maintain other adequate documentation verifying that the purchaser is exempt, e.g., a copy of the organization's check or credit card.

(b) Sales to Entities Purchasing Through or on Behalf of Government Organizations.

Entities purchasing through or on behalf of government organizations must certify that they are doing so by presenting a properly executed Form ST-5 when making such purchases. Form ST-5 may be made out by the exempt organization or the purchaser, but must contain the name, address, and, if available, the exemption number of the government organization on whose behalf purchases are made, as well as a description of the property purchased. At the time of purchase, the purchaser must attach to the Form ST-5 submitted to the vendor, a copy of the government organization's Form ST-2 if it is available. Vendors must retain forms in the same manner as other sales tax records. See Record Retention regulation, 830 CMR 62C.25.1, for further recordkeeping requirements.

(c) Sales Directly to Organizations Exempt Under I.R.C. § 501(c)(3).

A § 501(c)(3) organization must first obtain a Form ST-2 (or temporary certificate: see TIR 96-9) from the Commissioner certifying that it is entitled to exemption under M.G.L. c. 64H, § 6(e). When making purchases these organizations must submit to the vendor a copy of their Form ST-2 attached to a properly executed Form ST-5. Vendors must retain both forms in the same manner as other sales tax records. See Record Retention regulation, 830 CMR 62C.25.1, for further recordkeeping requirements.

(d) Sales to Entities Purchasing Through or on Behalf of Organizations Exempt Under I.R.C. § 501(c)(3).

Entities purchasing property through or on behalf of organizations exempt under I.R.C. § 501(c)(3) must submit to the vendor a copy of the organization's Form ST-2 attached to a properly executed Form ST-5 from the organization on whose behalf it is making purchases. Vendors must retain both forms in the same manner as other sales tax records. See Record Retention regulation, 830 CMR 62C.25.1, for further recordkeeping requirements.

The provisions of 830 CMR 64H.6.5(12)(b) and (d) are illustrated by the following example:

Every year, the parent teacher organizations (PTO) at two different high schools conduct a "Spring Fling" for fundraising purposes to benefit their school. Each PTO hires a band, purchases flowers, and contracts with a local hotel for a banquet hall and the provision of 100 meals. Additionally, the PTO reserves a block of 30 rooms at the hotel for parents.

One high school in this example is a public school in Boston (Public High). The PTO for Public High holds no exemption itself, but would like to avail itself of the exemption which would be available to Public High under M.G.L. c. 64H, § 6(d) had Public High purchased the property directly . In order to substantiate a claim of exemption under M.G.L. c. 64H, § 6(d), Public High PTO must submit to the vendor a properly executed Form ST-5 and must attach a copy of Public High's Form ST-2 if the Form ST-2 is available. If Public High does not present these forms to PTO, the PTO may itself fill out the appropriate sections of Form ST-5 and submit the form to vendors when making purchases through or on behalf of Public High.

The other high school is a local non-governmental high school (Private High) that has 501(c)(3) status. The PTO for Private High does not itself have 501(c)(3) status but would like to avail itself of the exemption which would be available to Private High under M.G.L. c. 64H, § 6(e) had Private High purchased the property directly . In order to substantiate a claim of exemption under M.G.L. c. 64H, § 6(e), Private High PTO must submit to the vendor a properly executed Form ST-5 and must attach a copy of Private High's Form ST-2 or temporary Form ST-2. If the PTO itself has applied for and received 501(c)(3) status, the substantiation requirements in section 830 CMR 64H.6.5 (12)(c) apply.

Generally, if a customer rents a room for the purpose of serving a meal and the meal is provided by the operator of the room, the charge for the room is subject to sales tax whether or not the charge for the room is separately stated from the charge for the meal. See 830 CMR 64H.6.5(7)(b)2. Here, however, the rental of the banquet hall is exempt as a sale to an entity purchasing through or on behalf of an organization exempt under I.R.C. § 501(c)(3) or an entity purchasing through or on behalf of a government organization.

The rental of the 30 rooms in this example for sleeping and living purposes is subject to the Room Occupancy Excise under M.G.L. c. 64G, § 1. There is no exemption for room rentals under M.G.L. c. 64G corresponding to the exemption under the sales tax statute for purchases by governmental and § 501(c)(3) organizations and entities purchasing through or on their behalf.

(e) The substantiation requirements of CMR 64H.6.5(12) are in addition to any other recordkeeping requirements imposed by law.

(13) Sales of Meals Exempt When Sold by Certain Other Institutions and Organizations.

(a) Health and day care facilities. All sales of meals by hospitals, sanatoria, convalescent or nursing homes, boarding homes for the aged licensed under M.G.L. c. 111, § 71, and institutions and private houses licensed as residential or day care facilities under M.G.L. c. 19, § 29, are exempt when the meals are both prepared and served by employees of the institution, or by persons doing uncompensated volunteer work for it, and the meals are served there. For the purposes of 830 CMR 64H.6.5(13)(a).6.5.HH, "employee," in addition to its usual meaning, includes independent contractors and their staff where the independent contractors constitute no more than 50% of the "employees" engaged to prepare and serve meals.

The provisions of 830 CMR 64H.6.5(13)(a) are illustrated by the following examples:

Example 1: A state-funded organization located on the grounds of a licensed state hospital provides training to handicapped persons. The training includes preparing and serving meals at the organization's coffee shop. The organization is not a hospital, and the sale of meals prepared and served by the trainees is subject to the sales tax.

Example 2: Employees of a hospital prepare and serve meals in the hospital's cafeteria. The cafeteria provides meals for paid staff, students, patients, and visitors. All these sales are exempt from the sales tax.

(b) Hot lunch programs for elderly persons. The sale of meals to authorized elderly persons, as defined by M.G.L. c. 15, § 1, through school lunch programs qualifying under M.G.L. c. 15, § 1L is exempt from the sales tax.

The provisions of 830 CMR 64H.6.5(13)(b) are illustrated by the following example:

Example: The school committee of Town X, with the approval of the Commissioner of Education, has extended the school lunch period to serve lunches to persons sixty years of age and over and their spouses. The lunch program meets the conditions and restrictions of M.G.L. c. 15, § 1L. The sale of meals through the program is exempt from the sales tax.

(c) Churches, Synagogues, and other Religious Organizations. The sale of meals by churches, synagogues, and other religious organizations, is exempt from the sales tax if all the following conditions are met:

1. the meals sold are prepared and served by members of the church, synagogue, or other religious organization;

2. the meals sold are served only to members of the church, synagogue, or other religious organization and their invited guests. Whether an individual is an "invited guest" depends on all the facts and circumstances, but the term "invited guest" does not include the general public; and the proceeds from the sales of meals, net of expenses, must be used exclusively to further the religious and charitable purpose for which the church, synagogue or other religious organization was formed;

3. the meals are served on the premises of a church , synagogue , or other religious organization; and

4. Sales by a vendor regularly engaged in the business of selling meals are generally not exempt from tax under M.G.L. c. 64H, § 6(cc). In some circumstances, however, a vendor who is a member of the religious organization may prepare meals served to the other members and guests of the organization. Such sales of meals are exempt under section 6(cc) if the vendor receives no profit from the sales (any receipts in excess of necessary expenses being donated to the organization) and all other conditions of 830 CMR 64H.6.5(13)(c) are met.

The provisions of 830 CMR 64H.6.5(13)(c) are illustrated by the following examples:

Example 1: A synagogue contracts with a caterer to prepare and serve a meal on synagogue premises to benefit its building fund. Since the meals are not prepared and served by synagogue members, the sales of the meals by the synagogue are not exempt under M.G.L. c. 64H, § 6(cc) ; they may, however, be exempt as casual and isolated sales under M.G.L. c. 64H, § 6(c). See 830 CMR 64H.6.1.

Example 2: A church holds a dinner meeting at a retreat camp owned by the church. The meals are prepared and served by church members to church members. Meals served at the retreat camp are served on church premises. The proceeds help to maintain the camp. The sales of the meals are not taxable.

(d) Educational institutions.

1. Sales to students. The sale of meals to students by educational institutions, or their agents, with a regular faculty and curriculum and a regularly enrolled body of students is exempt from the sales tax on meals. To substantiate the exempt sales, the books and records of the educational institution must separate the gross receipts between sales to students and sales to non-students.

2. Sales to non-students. The sale of meals by educational institutions to people who are not students, for example, to faculty and staff, is subject to the sales tax on meals.

The provisions of 830 CMR 64H.6.5(13)(d) are illustrated by the following examples:

Example 1: A university operates a snack shop in its student union to sell sandwiches, soft drinks, and snack items to students, faculty, and staff. The sales of meals to university students are exempt from the sales tax on meals. The sales of meals to the faculty and staff are subject to the sales tax on meals.

Example 2: A public school system operates a nonprofit culinary arts training program. As part of the program, students operate a restaurant which serves low-cost meals to students and the public. The sale of meals to students is exempt from the sales tax; the sale of meals to the public is subject to the sales tax.

Example 3: A vending machine is located in a high school in an area designated primarily for students. The sale of sandwiches, soft drinks, and snack items such as potato chips from the machine is exempt from the sales tax on meals.

(e) Summer Camps. The sales of meals served by summer camps for children eighteen years of age or under or for developmentally disabled individuals as defined in M.G.L. c. 64H, § 6(cc) are exempt from the sales tax, regardless of the status of the consumer of the meals. A summer camp as described above will not lose its exemption from tax on its sale of meals if the summer camp offers its facilities for no more than thirty days during the off-season to individuals sixty years of age or older. The sales of meals served by summer camps to individuals sixty years of age or older during the off-season period as described above are also exempt from tax. The exemption from tax for the sale of meals served by summer camps is effective on June 1, 1988.

(f) Commercial Airlines.

1. Sales to passengers. The furnishing of meals to commercial airline passengers in commercial aircraft, whether the aircraft is in flight or on the ground, is exempt from the sales tax.

2. Sales to airline. The sale of meals to a commercial airline for consumption by its passengers in the aircraft is exempt from the sales tax.

(14) Sales of Meals Exempt When Purchased With Food Stamps.

(a) General. M.G.L. c. 64H, § 6(kk) exempts from tax sales of tangible personal property purchased with federal food stamps and not otherwise exempt under M.G.L. c. 64H. Vendors and meal providers as defined in 7 U.S.C. § 2012(g) that participate in the federal food stamp program should not collect sales tax on otherwise taxable sales of any item purchased with food stamps. When a food stamp recipient uses a combination of cash (credit card, check, etc.) and food stamps in making a food purchase the vendor or meal provider must allocate the food stamps first to food stamp eligible items that otherwise would be taxed. Thus, items currently taxable but eligible to be purchased with food stamps (such as cold sandwiches) would be exempt to the extent of the dollar value of the food stamps received.

(b) Meals for the homeless. Homeless food stamp recipients (including newly eligible residents of temporary shelters for the homeless) may use their food stamps to purchase prepared meals served by an authorized public or private nonprofit establishment, approved by an appropriate State or local agency. Providers should not collect sales tax on meals purchased with food stamps. When a homeless food stamp recipient uses cash (credit card, check, etc.) or a combination of cash and food stamps when purchasing a meal the amount paid for with cash is subject to tax unless the sale by the provider is otherwise exempt. If the meals are free or "payment" is an optional donation, the sales tax does not apply.

The provisions of 830 CMR 64H.6.5(14)(a) are illustrated by the following example.

Example 1: A food stamp recipient purchases $50.00 worth of groceries. Payment is made with $10.00 in food stamps and $40.00 in cash. The purchase included $38.00 worth of tax exempt items and $12.00 worth of food that may be purchased with food stamps but is subject to Massachusetts sales tax unless purchased with food stamps (eligible taxable items). The dollar value of the food stamps ($10.00) is first applied against the purchase of the eligible taxable items ($12.00). The balance ($2.00) is taxable.

(15) Liquor License Holders. Innkeepers and Common Victuallers

(a) Liquor License Holders.

1. Definition. Liquor license holder, a person who has been licensed to sell alcoholic beverages under M.G.L. c. 138.

2. Sale of Alcoholic Beverages. The liquor license holder is a vendor of all alcoholic beverages sold at the licensed premises, and is jointly and severally responsible with any other person selling such beverages on the premises for the collection and payment of the tax imposed by M.G.L. c. 64H.

3. Sale of Meals without Alcoholic Beverages. The liquor license holder is presumed to be a vendor of all meals sold without alcoholic beverages at the licensed premises. As a presumed vendor of such meals, the liquor license holder is responsible for the collection and payment of the tax imposed by M.G.L. c. 64H. The liquor license holder may rebut this presumption by showing 1) that a person other than the liquor license holder sold the meals without alcoholic beverages; 2) that this person was not the agent or otherwise acting on behalf of the liquor license holder; and 3) that the two parties agreed previously in writing that the person other than the liquor license holder was responsible for the collection and payment of the tax imposed on such meals by M.G.L. c. 64H.

(b) Innkeepers and Common Victuallers.

1. Definition. Innkeeper of common victualler, a holder of an innkeeper's or common victualler's license to sell meals without alcoholic beverages under M.G.L. c. 140.

2. Meals sold on Licensed Premises. The innkeeper or common victualler is a vendor of all meals sold without alcoholic beverages at the licensed premises, and is jointly and severally responsible with any other person selling such meals on the premises for the collection and payment of the tax imposed by M.G.L. c. 64H.

(16) Recordkeeping.

(a) General. Refer to 830 CMR 62C.25.1 "Record Retention" for recordkeeping and record retention rules applicable to vendors. In addition to other applicable provisions of 830 CMR 62C.25.1, section (8)(g) requires a vendor of meals to maintain complete and accurate records of all sales of meals and alcoholic beverages, and all sales of non-taxable food and beverages. The records must include cash register tapes showing each individual transaction, alcoholic beverages bar checks, dining room meals checks, and a daily receipts book or record. Vendors must retain copies of sales tax on meals returns filed.

(b) Dining room meals checks. Dining room meals checks must be serially numbered and used in sequence for all meals served with no number being repeated for a one year period. Dining room meals checks must contain the name and address of the vendor and the wording: " 5% Mass. Meals Tax" with a space opposite for insertion of the amount of the tax. All dining room meals checks must be securely tied and preserved in dated, daily bundles, and the daily tax recordings must be entered in the vendor's records to substantiate the tax return.

(c) Caterers' records. Caterers must record all catering business in a reservation ledger or book which should state all dates of jobs, names of purchasers, numbers of persons served, price totals, and the proper amount of tax for all meals served. Caterers not using dining room meals checks must serially number bills or contracts and preserve them with the reservation book or ledger.

REGULATORY HISTORY

Date of Promulgation: 6/9/89
Amended: 7/20/90
Amended: 12/27/96
Amended: 7/7/00
Amended: 4/21/06