Was a take-home package of live food items and soup base requiring cooking a taxable meal under New Hampshire meals and rooms tax?

Plain-English summary

The New Hampshire Department of Revenue Administration ruled that A Corporation did not have to collect or remit meals and rooms tax on its specified take-home package. The published description contains two live food items and a soup base that needed milk and heating before eating; the item names and package name are redacted. The Department concluded the package was uncooked and not prepared for human consumption as a “meal” under RSA 78-A:3, X(a).

The ruling also required A Corporation to maintain separate, distinct records of sales of that package and other nontaxable items, sufficient to demonstrate the nontaxable sales. It expressly limited the conclusion to the named taxpayer and package as defined in the source.

What this means for you

A sale from a business that also sells meals is not automatically a taxable meal. The Department distinguished the described uncooked package from food prepared for immediate consumption, while stressing records that show which sales were nontaxable. Because the exact live items are redacted, the page cannot extend the result to a particular named food product.

Common questions

Q: Why did the Department exclude the package from meals tax? A: It was uncooked, needed further preparation, and was not treated as a prepared “meal” under the definition quoted in the ruling.

Q: Did take-home packaging alone determine the result? A: No. The statute quoted in the PDF includes some take-out meals. The Department focused on this package's uncooked contents.

Q: What records did the seller need?
A: Separate and distinct sales records for this package and other nontaxable sales, providing clear evidence of those sales.

Q: Can another seller rely on the ruling for a similar package? A: No. The ruling itself says applying it to another situation is not binding on the Department, and the official archive limits reliance to the petitioner.

Citations and source limits

The Department quotes RSA 78-A:6 and the “meal” and “taxable meal” definitions in RSA 78-A:3, X(a) and X(c). The product and item names are hidden by ellipses in the official PDF; no food identity is inferred here. The PDF labels “Doc #5025, Eff. December 11, 1990” but gives no separate issue date.

Source

• Official archive: New Hampshire declaratory rulings
• Official PDF: Doc #5025

Original ruling text

IN THE MATTER OF THE PETITION OF

THE "A" CORPORATION

FOR A DECLARATORY RULING

Doc #5025, Eff. December 11, 1990

Pursuant to RSA 541-A:1, I-b; 541-A:2, I(c); and Rev PART 209 of the Code of Administrative Rules, the "A" Corporation, .... ....... Road, ......, New Hampshire has petitioned the Department of Revenue Administration for a Declaratory Ruling with respect to the application of the Meals and Rooms Tax to a "............" package.

The petitioner has included in his request the following items within the "........." package:

1. live (.......),

2. live (.......), and

3. (soup) base (to which milk must be added and then must be heated).

Analysis

Our analysis consisted of comparing the facts, provided by The "A" Corporation, to the incidence of the tax. RSA 78-A:6, Imposition of Tax, clearly places the incidence of tax by stating, in part,

"A tax is imposed on taxable meals based upon the charge therefor ..." (emphasis added).

The law [RSA 78-A:3, X (c)] has further defined "taxable meal" as: "... any meal for which a charge is made that is purchased from a person in the business of operating a restaurant, and which is subject to a tax under RSA 78-A:6". (emphasis added).

Thus, we must conclude that if a tax is to be imposed upon the

"............", it must be deemed to be a meal.

RSA 78-A:3, X(a) has defined meal as:

(a) "Meal" means any food or beverage, or both, prepared for human consumption and served by a restaurant, whether the food or beverage is served for consumption on or off the restaurant premises. The term "meal" includes food or beverages sold on a "take out" or "to go" basis, whether or not they are packaged or wrapped and whether or not they are taken from the premises of the restaurant. The term "meal" excludes any food or beverage wholly packaged off the premises except: (1) sandwiches of all kinds; (2) beverages in unsealed containers; and (3) catered meals or meals which are delivered to the location where the meal is consumed. Beverage includes an alcoholic beverage, served with or without food. (emphasis added)

Page 2

It is clear that the "...........", as described in the request for ruling, is not prepared for human consumption as the package is uncooked and the foods included are not commonly consumed in this fashion. " xx " To Go does not constitute a "meal", therefore, would not be subject to the Meals and Rooms Tax under RSA 78-A.

Our analysis follows the intent of the statute as expressed by the General Court, effective January 1, 1986, which states:

"It is the intent of the legislature to impose a tax upon the sale of meals and not upon the sale of groceries as those expressions are commonly understood."

Ruling

The "A" Corporation shall not be required to collect from the public or remit to the Department a Meals and Rooms Tax on the packages known as the "..........". The ".........." package, for the purpose of this ruling, shall consist of live ........, live
........ and a ...(soup)... base (to which milk must be added and then it must be heated before eating). Furthermore, it is the responsibility of The "A" Corporation to keep separate and distinct records of any ".........." sales, as well as any other non- taxable sales in order to provide a clear and convincing record of all non-taxable sales. This ruling is specific to The "A" Corporation and the " ........." package, as defined above. Application of this ruling to any other situation is not binding upon the Department.

Stanley R. Arnold, Commissioner