Sec. 03.06.01.05. Food for Human Consumption

A. In this regulation, the following terms have the meanings indicated:

(1) "Premises" means any building, grounds, parking lot, or other area that a food vendor owns or controls or another person makes available primarily for the use of the patrons of one or more food vendors.

(2) "Facilities for food consumption" means items such as tables, chairs, booths, benches, counters, and stands set aside or made available for the consumption of food sold. The term does not include parking spaces for vehicles as the sole accommodation. If, however, any of the above-described equipment is located on a parking lot, this equipment constitutes "facilities for food consumption".

(3) "Substantial grocery or market business" means a business at which at least 10 percent of all sales of food are sales of grocery or market food items. Among other things, the sale of food that is of a type normally consumed on the premises of a restaurant, but which is packaged to carry out, does not constitute the sale of "grocery or market food items".

(4) "Food concessionaire under contract with the school or college or its designated contract agent" means a person who has been granted the right by a school or college to use school or college premises for the purpose of selling food.

(5) "Educationally related" means those events where the net proceeds are used for the benefit of the school or college or which provide educational benefit to the participants.

(6) "Crabs" means hard and soft shell crabs, but does not include crab dishes, such as crab cakes and crab soup, which are, instead, "seafood".

(7) "Food for immediate consumption" means:

(a) Food obtained from a salad, soup, or dessert bar;

(b) Party platters;

(c) Heated food;

(d) Sandwiches suitable for immediate consumption; or

(e) Ice cream, frozen yogurt, and other frozen desserts, sold in containers of less than 1 pint.

(8) "Snack food" means:

(a) Potato chips and sticks;

(b) Corn chips;

(c) Pretzels;

(d) Cheese puffs and curls;

(e) Pork rinds;

(f) Extruded pretzels and chips;

(g) Popped popcorn;

(h) Nuts and edible seeds; or

(i) Snack mixtures that contain one or more of the foods listed in §A(8)(a)-(h) of this regulation.

B. Sales of food for human consumption are not subject to the tax in the following circumstances:

(1) Sales for consumption off the premises by a food vendor who operates a substantial grocery or market business at the same location where the food is sold, except that this exemption does not apply to food:

(a) That the vendor serves for consumption on the premises of the buyer or of a third party, and

(b) For immediate consumption;

(2) Sales by a church or religious organization;

(3) Sales by a school, other than an institution of postsecondary education, including sales at a school by a food concessionaire that is under contract with the school or its designated contract agent, but not including sales at events that are not sponsored by the school or are not educationally related;

(4) Sales to students at an institution of postsecondary education if the food charge is for a meal plan or is included in the regular charge for room and board;

(5) Sales to patients in a hospital, including a nursing home, when the food charge is included in the regular room rate;

(6) Sales including sales of any beverage, made in a vehicle that is being operated in the State while in the course of interstate commerce;

(7) If the proceeds of the sale are used to support a volunteer fire company or department or its auxiliary, or a volunteer ambulance company or rescue squad or its auxiliary, a sale of food served by the company, department, squad, or auxiliary;

(8) If the proceeds of the sale are used to support a bona fide nationally organized and recognized organization of veterans of the armed forces of the United States or auxiliary of the organization or one of its units, a sale of food or meals for consumption only on the premises, served by the organization or auxiliary;

(9) Sales for consumption off the premises of:

(a) Crabs, or

(b) Seafood that is not prepared for immediate consumption;

(10) Sales of food stamp eligible food bought with a federal food stamp coupon;

(11) Sales of food by a nonprofit food vendor if there are no facilities for food consumption on the premises, unless the food is sold within an enclosure for which a charge is made for admission;

(12) Sales of snack food through a vending machine; or

(13) Sales of milk, fresh fruit, fresh vegetables, or yogurt through a vending machine.

C. The payment of a separately stated cover charge, which does not entitle the buyer to obtain tangible personal property is not subject to tax. A minimum charge which does entitle the buyer to receive tangible personal property is subject to tax, even if the buyer does not take full advantage of it.

D. The payment by a buyer of food or beverages for human consumption on the premises of the vendor of a separately stated and identified mandatory gratuity or service charge which is in the nature of a tip is not subject to tax if the food or beverages are served to a group of not more than 10 persons. Mandatory gratuities or service charges on sales of food or beverages to a group of more than 10 persons are subject to the tax whether or not separately stated.