Did a hot Cornish pasty qualify for California's single-item bakery exclusion?

Plain-English summary

The Board did not treat a Cornish pasty as a bakery good for the single-item hot-bakery exclusion. The published 1995 letter says the Board had previously concluded that a pasty was more properly a meal wrapped in pastry, rather than the kind of baked good contemplated by the statute.

That classification meant a pasty sold hot was taxable as hot prepared food. The same reasoning in the letter led counsel to treat a hot meat-and-cheese-filled croissant as more like a sandwich than a bakery good.

The source is unusual: it is a letter answering a filled-croissant question, not one of the earlier pasty letters themselves. It says copies of two opinions dated April 5 and May 9, 1972 were attached, but those attachments do not appear in the official PDF published for this annotation.

Common questions

Why did the Board distinguish a pasty from an ordinary pastry?

Because it viewed the pasty as an entire meal compacted inside pastry, not as the kind of bakery item covered by the exclusion.

Were cold pasties decided by this source?

No. The operative conclusion presented here concerns pasties sold in a heated condition.

Does the official PDF include the earlier 1972 pasty letters?

No. The 1995 letter says they were attached, but the published PDF contains only the 1995 letter.

Citations and references

• California Revenue and Taxation Code section 6359(e) (as cited)
• California Sales and Use Tax Regulation 1603(e)(1) (as cited)

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/550-1775.pdf

Original ruling text

550.1775

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION

JOHAN KLEHS
First District, Hayward

LEGAL DIVISION - MIC 82
450 N STREET, SACRAMENTO, CALIFORNIA
(P.O. BOX 942879, SACRAMENTO, CALIFORNIA 94279-0001)

DEAN ANDAL
Second District, Stockton
ERNEST J. DRONENBURG, JR.
Third District, San Diego

Telephone No.: (916) 324-3828
Fax No: (916) 323-3387

BRAD SHERMAN
Fourth District, Los Angeles
KATHLEEN CONNELL
Controller, Sacramento

November 15, 1995

────────
BURTON W. OLIVER
Executive Director

Mr. B--- W--W---, K--- & B--XXXX --- Road
---, California XXXXX
RE:

SR -- XX-XXXXXX
Filled Croissants

Dear Mr. W---:
I am writing this to follow-up our recent telephone conversations regarding whether or not sales of filled croissants qualify for the exclusion from tax for single-item sales of “bakedgoods” under Regulation 1603(e)(1). As you know, under that regulation, while sales of hot prepared foods are subject to sales tax, when a hot baked good is sold for a separate price, its sale is not subject to tax. You asked if a croissant filled with fruit filling or with meat and cheese qualifies as a “baked good” under the regulation. In determining if a filled item is a food product, we look to the nature of the filling. For example, liqueur-filled candy is a non-food product because it is filled with a measurable amount of an alcoholic beverage which is excluded from the definition of “food products.” (Reg. 1602(a)(2).) Therefore, we treat the sales of croissants as the sale of any other filled baked good. If the croissant has a fruit or cream filling, it would be a “bakery good” within the meaning of Regulation 1603(e)(1), just as is a jelly- or cream-filled doughnut. Sales of such items for a single price would be considered sales of bakery products and either taxable or exempt according to the conditions of sale. (Reg. 1603(e)(1).) Soon after the statute providing for the exclusion of hot bakery items sold for a single price from the definition of hot prepared food products was enacted, we considered whether

Mr. B--- W---

-2-

November 15, 1995
550.1775

Cornish pasties would qualify. We determined at that time that such items were more properly “meals” sold wrapped in pastry and not the kind of item the law contemplated. (See Rev. & Tax. Code § 6359(e).) In the same vein, we conclude that a croissant filled with meat and cheese would be more like a meat and cheese sandwich than a bakery good, and therefore not within the meaning of the statute. As a result, the sale for a single price of a hot meat- and cheese-filled croissant would be the sale of a hot prepared food product under Regulation 1602(e)(1) and so subject to tax. As you requested, I have attached copies of two letters dated April 5 and May 9, 1972 (taxpayer identifying information excised) explaining the Board’s position on pasties. I hope the above discussion has answered your question. If you need anything further, please do not hesitate to write again. Sincerely,

John L. Waid
Senior Staff Counsel
JLW:sr

Encs.
cc:

--- District Administrator - -(The retailer is undergoing audit. This question was submitted with the auditor’s concurrence.) Ms. Kelly Ching