Under the 1963 letter, did sales tax apply to ice cream cones eaten without using the seller's tables, chairs, counters, or tableware?

Plain-English summary

The 1963 letter said food was taxable when furnished, prepared, or served for consumption at seller-provided tables, chairs, counters, trays, glasses, dishes, or other tableware.

Applying that rule, an ice cream cone was taxable when the customer ate it on the seller's premises while using those facilities. A cone ordinarily eaten away from the premises and without those facilities was generally not taxable.

The official PDF carries a later handwritten margin note dated September 9, 1987: "Could now be taxable within Sec. 6359(d)(6)." That note warns against treating the 1963 answer as a statement of later or current law, but it does not provide a definitive replacement holding.

Common questions

Did the cone itself determine taxability in the 1963 letter?

No. The source focused on where it was consumed and whether the customer used the seller's facilities.

Did eating a cone on the premises make it taxable?

Yes, when the customer used the seller's counter, chairs, tables, or other named facilities.

Does the source establish the rule after 1987?

No. Its handwritten note says the sale could then be taxable under section 6359(d)(6), without giving a complete later analysis.

Citations and references

• Sales and use tax Ruling 52(d) (enclosed and cited)
• Section 6359(d)(6) (identified in a September 9, 1987 handwritten notation)

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/550-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/550-0120.pdf

Original ruling text

550.0120

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION
August 2, 1963
REDACTED TEXT
Dear Mr. REDACTED TEXT,
This is in reply to your undated letter received here August 1, 1963. Under the Sales and Use Tax Law, sales tax applies to the sale of food which is “furnished, prepared, or served for consumption at tables, chairs, or counters, or from trays, glasses, dishes, or other tableware provided by the retailer.” If such facilities are furnished by the seller and utilized by the customer, the tax applies regardless of whether the food is contained in a cone, a dish, or any other facility. The tax does not apply, however, if the food is consumed without the use of any of these facilities. Ice cream cones are ordinarily consumed off the seller’s premises without the use of any of the named facilities and so, generally, the tax does not apply to the sale of ice cream cones. If, however, they are, in fact, consumed on the seller’s premises, the customer utilizing his counter, chairs, tables, or other facilities, the tax applies. We are enclosing a copy of ruling 52, Food Products, and call your attention specifically to part (d). Very truly yours, E. H. Stetson Tax Counsel EHS:fb Enclosure cc:

REDACTED TEXT
Burbank, California
Santa Ana – Subdistrict Administer

[Handwritten notation in margin with “Ice cream cones” underlined, “Could now be taxable within Sec. 6359(d)(6). 9/9/87 DJH”]