WSR 99-06-027

EXPEDITED ADOPTION

DEPARTMENT OF REVENUE


[ Filed February 23, 1999, 3:25 p.m. ]

Title of Rule: Amendatory section WAC 458-20-119 Sales of meals.

Purpose: The purpose of the rule is to explain the application of the B&O and retail sales tax to sales of meals.

Statutory Authority for Adoption: RCW 82.32.300.

Statute Being Implemented: RCW 82.04.050, 82.04.070, 82.04.290, and 82.08.020 as they apply to sales of meals.

Summary: This rule explains the retail sales and B&O taxes for sales of meals. It also explains the tax-reporting requirements of persons providing meals without a specific charge. This rule also explains the application of tax to sales of meals by food service contractors and caterers.

Reasons Supporting Proposal: This rule needs to be amended to reflect the repeal of the selected business services B&O tax rate by chapter 7, Laws of 1997.

Name of Agency Personnel Responsible for Drafting: D. Douglas Titus, 711 Capitol Way South, #303, Olympia, WA, (360) 664-0687; Implementation: Claire Hesselholt, 711 Capitol Way South, #303, Olympia, WA, (360) 753-3446; and Enforcement: Russell W. Brubaker, 711 Capitol Way South, #303, Olympia, WA, (360) 586-0257.

Name of Proponent: Department of Revenue, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule explains how sales of meals are taxed. It provides tax-reporting information to caterers and food service contractors, and to persons who provide meals without a specific charge. The tax consequences of meals furnished to employees are also discussed.

Proposal Changes the Following Existing Rules: This is an amendment of an existing rule, WAC 458-20-119 Sales of meals. This rule is being revised to notify the reader that the selected business services B&O tax rate was repealed effective July 1, 1998, chapter 7, Laws of 1997. Specifically, this rule is being revised to explain that persons performing food management services are taxed at the service and other activities B&O tax rate effective July 1, 1998.

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO D. Douglas Titus, Department of Revenue, P.O. Box 47467, Olympia, WA 98504-7467, fax (360) 664-0693, e-mail dougt@dor.wa.gov , AND RECEIVED BY May 3, 1999.


February 23, 1999

Claire Hesselholt

Rules Manager

Legislation and Policy Division

OTS-2841.1


AMENDATORY SECTION(Amending WSR 93-23-019, filed 11/8/93, effective 12/9/93)

WAC 458-20-119
Sales of meals.

(1) Introduction.  This ((section)) rule explains Washington's B&O and retail sales tax applications to the sales of meals.  This ((section)) rule also gives tax reporting information to persons who provide meals without a specific charge.  It explains how meals furnished to employees are taxed.  Persons in the business of operating restaurants should also refer to WAC 458-20-124 and persons operating hotels, motels, ((boarding houses,)) or similar businesses should refer to WAC 458-20-166.

Retail sellers who are required by law to have a food and beverage service worker's permit under RCW 69.06.010 are subject to the retailing B&O tax and must collect and remit retail sales tax on sales of prepared food products, unless a specific exemption applies. For additional information regarding sales by persons required to have a food and beverage worker's permit, refer to WAC 458-20-244 (Food products).

(2) Business and occupation tax. The sales of meals and the providing of meals as a part of services rendered are subject to tax as follows:

(a) Retailing. The retailing B&O tax applies as follows.

(i) Restaurants, cafeterias and other eating places. Sales of meals to consumers by restaurants, cafeterias, clubs, and other eating places are subject to the retailing tax.  (See WAC 458-20-124-Restaurants, etc.)

(ii) Caterers.  Sales of meals and prepared food by caterers are subject to the retailing tax when sold to consumers.  "Caterer" means a person who provides, prepares and serves meals for immediate consumption at a location selected by the customer.  The tax liability is the same whether the meals are prepared at the customer's site or the caterer's site.  The retailing tax also applies when caterers prepare and serve meals using ingredients provided by the customer.  Persons providing a food service for others should refer to the subsection below entitled "Food service contractors."((.))

(iii) Hotels, motels, bed and breakfast facilities, resort lodges and other establishments offering meals and transient lodging. Sales of meals by hotels, motels, and other persons who provide transient lodging are subject to the retailing tax.

(iv) Boarding houses, American plan hotels, and other establishments offering meals and nontransient lodging. Sales of meals by boarding houses and other such places are subject to retailing tax.

(A) Except for guest ranches and summer camps, when a lump sum is charged to non-transients for providing both lodging and meals, the fair selling price of the meals is subject to the retailing tax.  Unless accounts are kept showing the fair selling price, the tax will be computed upon double the cost of the meals served.  This cost includes the price paid for food and drinks served, the cost of preparing and serving meals, and all other incidental costs, including an appropriate portion of overhead expenses.

(B) It will be presumed that guest ranches and summer camps are not making sales of meals when a lump sum is charged for the furnishing of lodging, and meals are included.

(v) Railroad, Pullman car, ship, airplane, or other transportation company diners. Sales of meals by a railroad, Pullman car, ship, airplane, or other transportation company served at fixed locations in this state, or served upon the carrier itself while within this state, are subject to the retailing tax.

Where no specific charge is made for meals separate and apart from the transportation charge, the entire amount charged is deemed a charge for transportation and the retailing tax does not apply to any part of the charge.

(vi) Hospitals, nursing homes, and other similar institutions. The serving of meals by hospitals, nursing homes, sanitariums and similar institutions to patients as a part of the service rendered in the course of business by such institutions is not a sale at retail.  However, many hospitals and similar institutions have cafeterias or restaurants through which meals are sold for cash or credit to doctors, visitors, nurses, and other employees.  Some of these institutions have agreements where the employees are paid a fixed wage in payment for services rendered and are provided meals at no charge.  Under those circumstances, all sales of meals to such persons are subject to the retailing tax, including the value of meals provided at no charge to employees.  Refer to the subsection below entitled "Meals furnished to employees."

(vii) School, college, or university dining rooms. Public schools, high schools, colleges, universities, or private schools operating lunch rooms, cafeterias, dining rooms, or snack bars for the exclusive purpose of providing students and faculty with meals or prepared foods are not considered to be engaged in the business of making retail sales of meals.  However, if guests are permitted to dine with students or faculty in such areas, the sales of meals to the ((quests)) guests are retail sales.

(A) Unless the eating area is situated so that it is available only to students and faculty, the lunch room, cafeteria, dining room, or snack bar must have a posted sign stating that the area is only open to students and faculty.  In the absence of such a sign, there will be a presumption that the facility is not exclusively for the use of students and faculty.  The actual policy in practice in these areas must be consistent with the posted policy.

(B) If the cafeteria, lunch room, dining room, or snack bar is generally open to the public, all sales of meals, including meals sold to students, are considered retail sales.

(C) For some educational institutions, the meals provided to students is considered to be part of the charge for tuition and may not be subject to the B&O tax.  Public schools, high schools, colleges, universities, and private schools should refer to WAC 458-20-167 to determine whether the retailing B&O tax applies to the sales of meals described above.  (See also WAC 458-20-189 for a discussion of B&O tax for schools operated by the state.)

(viii) Fraternities and sororities. Fraternities, sororities, and other groups of individuals who reside in one place and jointly share the expenses of the household including expense of meals are not considered to be making sales when meals are furnished to members.

(b) Wholesaling-other. Persons making sales of prepared meals to persons who will be reselling the meals are subject to the wholesaling-other tax classification.  Sellers must obtain resale certificates from their customers to support the resale nature of any transaction.  (See WAC 458-20-102.)

(c) Service and other business activities. Private schools, which do not meet the definition of "educational institutions,"((,)) operating lunch rooms, cafeterias, or dining rooms for the exclusive purpose of providing meals to students and faculty are subject to the service and other business activities B&O tax on the charges to students and faculty for meals.  (See WAC 458-20-167 for definitions of the terms "private school" and "educational institution."((.))) Persons managing a food service operation for a private school should refer to the subsection below entitled "Food service contractors."

(3) Retail sales tax. The sales of meals, upon which the retailing tax applies under the provisions ((set forth)) above, are generally subject to tax under the retail sales tax classification.  However, a retail sales tax exemption is available for the following sales of meals:

(a) Prepared meals sold under a state-administered nutrition program for the aged as provided for in the Older Americans Act (Public Law 95-478 Title III) and RCW 74.38.040(6).

(b) Prepared meals sold to or for senior citizens, disabled persons, or low-income persons by a not-for-profit organization organized under chapter 24.03 or 24.12 RCW.  However, this exemption does not apply to purchases of prepared meals by not-for-profit organizations, such as hospitals, which provide the meals to patients as a part of the services they render.

(c) Prepared meals sold to the federal government.  (See WAC 458-20-190.) However, meals sold to federal employees are taxable, even if the federal employee will be reimbursed for the cost of the meals by the federal government.

(4) Deferred sales or use tax. If the seller fails to collect the appropriate retail sales tax, the purchaser is required to pay the deferred sales or use tax directly to the department.

(a) Purchases of dishes, kitchen utensils, linens, and items which do not become an ingredient of the meal, are subject to retail sales tax.

(b) Retail sales tax or use tax applies to purchases of equipment, repairs, appliances, and construction.

(c) The retail sales or use tax does not apply to purchases of food or beverage products which are ingredients of meals being sold at retail or wholesale.

(d) Purchases of food products and prepared meals by persons who are not in the business of selling meals at retail or wholesale are subject to the retail sales tax.  However, certain food products are statutorily exempt of retail sales or use tax.  (See WAC 458-20-244.)

(e) Private schools, educational institutions, nursing homes, and similar institutions who are not making sales of meals at retail or wholesale are required to pay retail sales tax on all purchases of paper plates, paper cups, paper napkins, toothpicks, or any other articles which are furnished to customers, the first actual use of which renders such articles unfit for further use.  However, purchases of such items by restaurants and similar businesses which are making retail or wholesale sales of meals are not subject to the retail sales or use tax.

(f) Transportation companies not segregating their charges for meals, and transporting persons for hire in interstate commerce, generally will be liable to their ((vendors)) sellers for retail sales tax upon the purchase of the food supplies or prepared meals to the extent that the meals will be served to passengers in Washington.  Certain food items are statutorily exempt of retail sales or use tax.  (See WAC 458-20-244.)

(5) ((Sales by persons having a food and beverage worker's permit. Retail vendors who are required by law to have a food and beverage service worker's permit under RCW 69.06.010 are subject to the retailing and retail sales taxes on sales of prepared food products.  (See RCW 82.08.0293.) This includes, but is not limited to, sales of sandwiches prepared or chicken cooked on the premises, deli trays, home delivered pizzas, etc.  However, sales of the following food products are exempt of sales tax even though sold by a person required to have a food and beverage service worker's permit:

(a) Raw meat prepared by persons who slaughter animals, including fish and fowl, or dress or wrap slaughtered raw meat such as fish dealers, butchers, or meat wrappers;

(b) Meat and cheese sliced and/or wrapped, in any quantity determined by the buyer, sold by vendors such as meat markets, delicatessens, and grocery stores;

(c) Baked goods sold by bakeries which sell no food products other than baked goods, including bakeries located in grocery stores; and

(d) Bulk food products sold from bins or barrels, including but not limited to, flour, fruits, vegetables, sugar, salt, candy, chips and cocoa.

(6))) Food service contractors. The term "food service contractor" means a person who operates a food service at a kitchen, cafeteria, dining room, or similar facility owned by an institution or business.  Food service contractors may manage the food service operation on behalf of the institution or business, or may actually make sales of meals or prepared foods.

(a) Sales of meals.  Food service contractors who sell meals or prepared foods to consumers are subject to the retailing B&O and retail sales taxes upon their gross proceeds of sales.  For example, the operation of a cafeteria which provides meals to employees of a manufacturing or financial business is generally a retail activity.  The food service contractor is considered to be making retail sales of meals, whether payment for the meal is made by the employees or the business, unless the business itself is reselling the meals to the employees.

In all cases where the meals are prepared at off-site facilities not owned by the institution or business, the food service contractor is considered to be making sales of meals and the retailing B&O and retail sales taxes apply to the gross proceeds of sale, or gross income for sales to consumers.

(b) Food service management.  ((For periods prior to)) Effective July 1, ((1993)) 1998, the gross proceeds derived from the management of a food service operation are subject to the service and other business activities B&O tax.  ((On and after)) (Chapter 7, Laws of 1997.) For the period of July 1, 1993, through June 30, 1998, these proceeds ((are)) were subject to the selected business services classification of the B&O tax.  (((Chapter 25, Laws of Washington 1993, 1st Special Session.))) These tax reporting provisions apply whether the staff actually preparing the meals or prepared foods are employed by the institution or business hiring the food service contractor, or by the food service contractor itself.  If the food service contractor merely manages the food service operation on behalf of an institution or business, that institution or business is considered to be selling meals or providing the meals as a part of the services the institution or business renders to its customers.  These institutions and businesses should refer to the subsections (2) and (3) above to determine their B&O and retail sales tax liabilities.

Food service management includes, but is not limited to, the following activities:

(i) Food service contractors operating a cafeteria or similar facility which provides meals and prepared food for employees and/or guests of a business, but only where the business owning the facility is the one actually selling the meals to its employees.

(ii) Food service contractors managing and/or operating a cafeteria, lunch room, or similar facility for the exclusive use of students or faculty at an educational institution or private school.  The educational institution or private school provides these meals to the students and faculty as a part of its educational services.  The food service contractor is managing a food service operation on behalf of the institution, and is not making retail sales of meals to the students, faculty, or institution.  Sales of meals or prepared foods to ((quests)) guests in such areas are, however, subject to the retailing B&O and retail sales taxes.  (Refer also to the subsection above entitled "School, college, or university dining rooms.")

(iii) Food service contractors managing and/or operating the dietary facilities of a hospital, nursing home, or similar institution, for the purpose of providing meals or prepared foods to patients or residents thereof.  These meals are provided to the patients or residents by the hospital, nursing home, or similar institution as a part of the services rendered by the institution.  The food service contractor is managing a food service operation on behalf of the institution, and is not considered to be making retail sales of meals to the patients, residents, or institution.  Meals sold to doctors, nurses, visitors, and other employees through a cafeteria or similar facility are, however, subject to the retailing B&O and retail sales taxes.  (Refer also to the subsection above entitled "Hospitals, nursing homes, and other similar institutions.")

(c) The following examples explain the application of the B&O and retail sales taxes to typical situations involving food service contractors managing a food service operation.  These examples should be used only as a general guide.  The tax results of other situations must be determined after a review of all ((of the)) facts and circumstances.

(i) GC Inc. is a food service contractor managing and operating an on-site cafeteria for B College.  This cafeteria is operated for the exclusive use of students and faculty.  ((However,)) Guests of students or faculty members, however, are allowed to use the facilities.  All monies collected in the cafeteria are retained by B College.  College B pays GC's direct costs for managing and operating the cafeteria, including the costs of the unprepared food products, employee salaries, and overhead expenses.  GC also receives a management fee.

GC Inc. is managing a food service operation.  The measure of tax is the gross proceeds received from B College.  GC Inc. may not claim a deduction on account of cost of materials, salaries, or any other expense.  For periods prior to July 1, ((1993)) 1998, the gross proceeds are subject to the ((service and other business activities)) selected business services B&O tax.  On and after July 1, ((1993)) 1998, these proceeds are subject to the ((selected business)) service and other activities B&O tax classification.  B College is considered to be making retail sales of meals to the guests((.  B College)) and must collect and remit retail sales taxes on the gross proceeds of these sales ((derived therefrom)).  B College should refer to WAC 458-20-167 to determine whether the retailing B&O tax applies.

(ii) DF Food Service contracts with Hospital A to manage and operate Hospital A's dietary and cafeteria facilities.  DF is to receive a per meal fee for meals provided to Hospital A's patients.  DF Food Service retains all proceeds for sales of meals to physicians, nurses, and visitors in the cafeteria.

The gross proceeds received from Hospital A in regards to the meals provided to the patients is derived from the management of a food service operation.  For periods prior to July 1, ((1993)) 1998, these proceeds are subject to the ((service and other business activities)) selected business services B&O tax.  On and after July 1, ((1993)) 1998, these proceeds are subject to the ((selected business)) service and other activities B&O tax classification.  ((However,)) DF, however, is making retail sales of meals to physicians, nurses, and visitors in the cafeteria.  DF Food Service must pay retailing B&O, and collect and remit retail sales tax, on the gross proceeds derived from the cafeteria sales.

(((7))) (6) Meals furnished to employees. Sales of meals to employees are sales at retail and subject to the retailing B&O and retail sales taxes.  This is true whether individual meals are sold, whether a flat charge is made, or whether meals are furnished as a part of the compensation for services rendered.

(a) Where a specific and reasonable charge is made to the employee, the measure of the tax is the selling price.

(b) Where no specific charge is made, the measure of the tax will be the average cost per meal served to each employee, based upon the actual cost of the food.

(c) It is often impracticable to collect the retail sales tax from employees on such sales.  The employer may, in lieu of collecting such tax from employees, pay the tax directly to the department of revenue.

(d) Where meals furnished to employees are not recorded as sales, the tax due shall be presumed to apply according to the following formula for determining meal count:

(i) Those employees working shifts up to five hours, one meal; and

(ii) employees working shifts of more than five hours, two meals.

(((8))) (7) Sales of meals, beverages, and food at prices including sales tax. Persons who advertise and/or sell meals, alcoholic or other beverages, or any kind of food products upon which retail sales tax is due should refer to WAC 458-20-244 (Food products), WAC 458-20-124 (Restaurants, etc.), and WAC 458-20-107 (Advertised prices including sales tax).  The taxability of persons operating class H licensed restaurants is specifically addressed in WAC 458-20-124.

(((9))) (8) Gratuities. Tips or gratuities representing donations or gifts by customers under circumstances which are clearly voluntary are not part of the selling price subject to tax.  However, mandatory additions to the price by the seller, whether labeled service charges, tips, gratuities, or otherwise must be included in the selling price and are subject to both the retailing classification of the B&O tax and the retail sales tax.

(((10))) (9) Examples. The following examples identify a number of facts and then state a conclusion.  These examples should be used only as a general guide.  The tax results of other situations must be determined after a review of all ((of the)) facts and circumstances.

(a) ABC Hospital operates a cafeteria and sells meals to physicians and to persons who are visiting patients in the hospital.  Meals are also provided to its employees at no charge.  However, there is no accounting for the number of meals consumed by the employees.  Payroll records do record the number of hours worked.  On average, employees working shifts of up to five hours consume one meal while those working shifts of more than five hours consume two meals.

ABC Hospital is subject to retailing and retail sales taxes on the gross proceeds derived from the sales of meals to physicians and visitors.  The retailing and retail sales taxes also apply to the value of ((the)) meals consumed by ABC's employees.  The value subject to tax is determined by the average cost of meals consumed by the employees, based upon the actual cost of the food items, multiplied by the number of meals as determined through a review of the payroll records.  While the presumption is that employees working shifts of up to five hours consume one meal with those working shifts of five to eight hours consuming two, this presumption may be rebutted under particular circumstances.

(b) X operates a boarding house and provides lodging and meals to ten non-transient residents.  Each resident is charged a lump sum to cover both lodging and meals with no accounting for a fair selling price for the meals.  X is making retail sales of meals to its residents.  Retailing and retail sales taxes are due on the value of the meals served.  This value must be computed as double the cost of the meal, including the cost of the food and drink ingredients, costs of meal preparation, and other costs associated with the meal preparation such as overhead expenses.

(c) Y Motor Inn contracts with Z Company to provide catering services for a function to be held at the motor inn.  During discussions concerning the services to be provided, Z Company is informed that a 15% gratuity is generally recommended.  Z Company negotiates the gratuity percentage to 10% and signs a catering contract stating that the agreed gratuity will be added.  The gratuity charged to Z Company is subject to both the retailing B&O and retail sales taxes.  This is not a voluntary gratuity since it is required to be paid as a condition of the contract.  Gratuities are not part of the selling price only when they are strictly voluntary.

[Statutory Authority: RCW 82.32.300.  93-23-019, 458-20-119, filed 11/8/93, effective 12/9/93; 86-03-016 (Order ET 86-1), 458-20-119, filed 1/7/86; 82-16-061 (Order ET 82-7), 458-20-119, filed 7/30/82.  Statutory Authority: RCW 82.01.060(2) and 82.32.300.  78-07-045 (Order ET 78-4), 458-20-119, filed 6/27/78; Order ET 74-1, 458-20-119, filed 5/7/74; Order ET 70-3, 458-20-119 (Rule 119), filed 5/29/70, effective 7/1/70.]

Washington State Code Reviser's Office