The last post answered some questions in regard to sales tax issues in general.  This post will discuss tax issues related to the food and beverage industry.  Please note that these rules are from the CA State Board of Equalization and apply only to CA locations (although most states have similar rules.)  Because most of my restaurant clients are CA businesses, I’m focusing on the rules CA has established.

When it comes to the taxability of food sales, the first question to ask is if the food is to be consumed on site or taken to go.  All food eaten in the restaurant is subject to tax.  If taken to go, there are a few factors which determine the taxability.  If the item is cold, it is generally not subject to tax (unless it is a carbonated or alcoholic beverage).  If hot food, it is taxable.  However, it starts to get more complicated with the 80/80 rule.

The 80/80 rule applies to your business if:

  • More than 80 percent of your business’s gross receipts come from the sale of food products (note: alcoholic and carbonated beverages, while taxable, are not considered food products); and
  • More than 80 percent of your retail food product sales are taxable because they constitute:
  • Sales of food products that you furnish, prepare, or serve for consumption at your place of business; or
  • Sales of meals or hot prepared food products; or
  • Sales of food products by a “drive-in.” “Drive-ins” generally offer food products ordinarily sold for immediate consumption at or near a location at which parking facilities are provided primarily for the use of patrons in consuming the products, even though they may be sold to go.

It is especially important to test for the 80/80 rule if you have just acquired a food service business or started a new food service business. It is important to also test for the 80/80 rule if you have recently changed the product mix in an ongoing business or if there has been a change in how you serve food.

Evaluation for the 80/80 rule is done on a location-by-location basis. Thus, if you own multiple locations, one location may fall under the 80/80 rule and another location may not. Each location must be considered separately.

To-go sales that come under the 80/80 rule

Although both criteria of the 80/80 rule may be met, you may elect to separately account for the sale of to-go orders of cold food products. You must report and pay tax on all food and beverages sold to go unless:

  • The sale is nontaxable, or.
  • You make a special election not to report tax on to-go sales even though your sales may meet both criteria of the 80-80 rule. Such sales include:
    • Cold food products, and
    • Hot bakery goods and hot beverages that are sold for a separate priceSales of those products must be separately accounted for and substantiated by supporting documents, such as guest checks and cash register tapes. The cash register should have a separate key for cold food sold to go or some other way of denoting such sales. Without adequate documentation, you are liable for tax on such sales. If your sales meet both criteria under the 80/80 rule and you make this special election, you will report to-go sales in the same manner as those who do not meet both criteria under the 80/80 rule

The next post will discuss the taxability of to-go orders if you are not subject to the 80/80 Rule.

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