Are frozen, pre-made dinners sold by a dietician from a retail freezer case -- with no seating or on-site heating -- subject to New York sales tax?

Plain-English summary

A certified dietician prepares frozen dinners in a rented commercial kitchen and sells them, single, double, or family-size, through a retail-style freezer case in the common area of the dietician's place of business. The dinners are pre-made (not made to order), sold frozen rather than heated or ready-to-eat, and there's no seating or any equipment on site to thaw, cook, or heat them.

New York's rules impose tax on restaurant-style prepared food ("food and drink" sold by restaurants, taverns, or similar establishments) but carve out an exception: food sold unheated, of a type commonly sold for off-premises consumption in the same form by ordinary food stores (as opposed to establishments principally selling ready-to-eat food), escapes that restaurant tax entirely. Frozen dinners are also expressly listed in the Department's own regulations as a covered example of exempt "food and food products."

Because the dietician's frozen dinners are cold, pre-packaged, sold in the same form/condition/packaging as frozen dinners commonly found in any grocery store, and there's no way to eat them on premises, the Department concluded the sale doesn't look like a restaurant sale at all — it looks like an ordinary food-store sale of a frozen dinner, which is squarely within New York's general food exemption. The sales are exempt from sales tax.

What this means for you

Dieticians, meal-prep businesses, and small-scale frozen-food sellers

Selling frozen, pre-made meals with no seating and no on-site heating/cooking facilities keeps you outside the restaurant-tax category, even if you're not a traditional grocery store. What matters is the form the food is sold in (cold, pre-packaged) and the absence of on-premises consumption infrastructure, not your professional credentials or business type.

Health, wellness, and nutrition businesses adding a retail food component

If you're a dietician, trainer, or wellness coach considering selling meal-prep products directly to clients, this ruling shows a straightforward path to keeping those sales tax-exempt: sell them frozen/unheated, in standard takeaway packaging, with no seating or heating options for customers.

Accountants advising food-adjacent service businesses

Watch this exemption boundary carefully: adding seating, a microwave for customer use, or selling the food hot/ready-to-eat could tip these same sales into taxable "restaurant" territory. The key factors are the food's temperature/state at sale and whether the seller functions more like a food store or a prepared-food establishment.

Common questions

Q: Are frozen dinners always exempt from New York sales tax?
A: Frozen dinners sold cold, in the same form/packaging commonly found in food stores, by a seller without on-site heating or seating, are exempt as food products. Selling the same product heated, ready-to-eat, or with dine-in accommodations would likely make it taxable restaurant food instead.

Q: Does the seller's professional background (e.g., being a dietician) matter to the tax analysis?
A: No — the Department focused entirely on the physical form of the product and the absence of restaurant-style features (seating, on-site heating), not on who's selling it.

Q: Would providing a microwave for customers to heat the dinners on-site change the answer?
A: The opinion doesn't test that scenario, but it's exactly the kind of restaurant-like feature (on-site consumption/heating facilities) that would move the sale toward taxable prepared food rather than exempt food-store-style packaged food.

Q: Does this ruling apply to any seller of frozen prepared meals?
A: This is a fact-specific Advisory Opinion binding only on this petitioner and its exact described sales setup. A seller with different facilities (seating, heating equipment, different packaging) would need independent analysis.

Citations and references

• Tax Law § 1105(d)(i) (restaurant/prepared-food tax; unheated off-premises food store exception)
• Tax Law § 1115(a)(1) (food and food products exemption)
• 20 NYCRR § 528.2(a) (definition of food and food products; frozen dinners listed as an included category)
• Jo Ann Narducci, d/b/a D & V Foods, Adv Op Comm T&F, May 24, 2001, TSB-A-01(18)S

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2008.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a08_13s.pdf

Original ruling text

New York State Department of Taxation and Finance
TSB-A-08(13)S
Sales Tax
March 18, 2008

Office of Tax Policy Analysis
Taxpayer Guidance Division

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S070612A

On June 12, 2007, the Department of Taxation and Finance received a Petition for
Advisory Opinion from Sales Tax Solutions and Consulting, 786 Lee Avenue, North
Tonawanda, New York 14120.
The issue raised by Petitioner, Sales Tax Solutions and Consulting, is whether sales of
frozen dinners to clients and the public by a dietician are subject to sales tax.
Petitioner submitted the following facts as the basis for this Advisory Opinion.
A certified dietician prepares and sells frozen dinners to clients and the general public
through a retail style freezer case located in a common area at the dietician’s place of business.
The dinners are pre-made (not made to order) and are sold in a frozen state (not heated or ready
to eat). Dinners are sold in single, double, and family size portions. The frozen dinners are
displayed for sale in the dietician’s common area. No seating or other accommodations are
provided, and there are no facilities in which the frozen dinners can be thawed, cooked, or heated
on premises. Only a limited variety of frozen dinners are offered for sale.
The frozen dinners are prepared in a commercial kitchen rented by the dietician and
packaged according to appropriate standards. Once prepared, the dinners are packaged and
placed in the freezer in the common area. A small inventory of frozen dinners is maintained in a
second freezer not located in the common area. This inventory is maintained and additional
dinners are prepared according to supply and demand as well as spoilage. The dietician
maintains all health code certificates and permits regarding the kitchen and food preparation.
Applicable law and regulations
Section 1105(d) of the Tax Law imposes the tax, in part, on the following:
(i) The receipts from every sale . . . of food and drink of any nature or of
food alone, when sold in or by restaurants, taverns or other establishments in this
state, or by caterers, including in the amount of such receipts any cover,
minimum, entertainment or other charge made to patrons or customers (except
those receipts taxed pursuant to subdivision (f) of this section):
(1) in all instances where the sale is for consumption on the premises
where sold;

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*

*

*

(3) in those instances where the sale . . . is for consumption off the
premises of the vendor, except where food (other than sandwiches) or drink or
both are (A) sold in an unheated state and, (B) are of a type commonly sold for
consumption off the premises and in the same form and condition, quantities and
packaging, in establishments which are food stores other than those principally
engaged in selling foods prepared and ready to be eaten.
Section 1115 of the Tax Law provides, in part:
(a) Receipts from the following shall be exempt from the tax on retail sales
imposed under subdivision (a) of section eleven hundred five and the compensating use
tax imposed under section eleven hundred ten:
(1) Food, food products, beverages, dietary foods and health supplements, sold for
human consumption but not including (i) candy and confectionery, (ii) fruit drinks which
contain less than seventy percent of natural fruit juice, (iii) soft drinks, sodas and
beverages such as are ordinarily dispensed at soda fountains or in connection therewith
(other than coffee, tea and cocoa) and (iv) beer, wine or other alcoholic beverages, all of
which shall be subject to the retail sales and compensating use taxes, whether or not the
item is sold in liquid form. The food and drink excluded from the exemption provided by
this paragraph under subparagraphs (i), (ii) and (iii) of this paragraph shall be exempt
under this paragraph when sold for seventy-five cents or less through any vending
machine activated by the use of coin, currency, credit card or debit card. With the
exception of the provision in this paragraph providing for an exemption for certain food
or drink sold for seventy-five cents or less through vending machines, nothing herein
shall be construed as exempting food or drink from the tax imposed under subdivision (d)
of section eleven hundred five.
Section 528.2(a) of the Sales and Use Tax Regulations provides, in part:
Food and food products. (1) Food and food products, except candy and
confectionery, when sold for human consumption, are exempt from sales and
compensating use tax. . . .
(2) The terms food and food products as used in this section mean edible
commodities whether prepared, processed, cooked, raw, canned or in any other form,
which are generally regarded as food. This category includes, but is not limited to:

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March 18, 2008

meat and meat products
milk products
cereals and grain products
baked goods
vegetables and vegetable products
fruits and fruit products
poultry
fish and seafood
frozen entrees and desserts
jellying agents

fats, oils and shortenings
condiments
spices
sweetening agents
food preservatives
food coloring
frozen dinners
snacks(except candy and confections)

Opinion
A dietician prepares and sells frozen dinners to clients and the general public through a
retail style freezer case. The dinners are not made to order and are sold in a frozen state.
Customers may view and purchase the frozen dinners in the dietician’s common area. There is
no seating or accommodations where customers can eat the frozen dinner and there are no
facilities in which the frozen dinners can be thawed, cooked, or heated on premises.
The description provided of the packaging and sale of the frozen dinners indicates that
the dietician’s sales practices are similar to those of food stores other than restaurants or other
establishments principally engaged in selling foods prepared and ready to be eaten. Pursuant to
section 1105(d)(i) of the Tax Law, food sold in an unheated state and of a type commonly sold
for consumption off the premises and in the same form and condition, quantities, and packaging
by food stores other than those principally engaged in selling foods prepared and ready to be
eaten, is not subject to sales tax under section 1105(d) of the Tax Law. Frozen dinners in the
same form and condition, quantities and packaging as sold by the dietician in the present case are
commonly sold in food stores other than those principally engaged in selling foods prepared and
ready to be eaten. The frozen dinners in this case are sold for consumption off the dietician’s
premises. Accordingly, the dietician's sales of frozen dinners in this case are not subject to sales
tax under section 1105(d). Section 528.2(a)(2) of the Sales and Use Tax Regulations includes
frozen dinners in the category of food and food products exempted by section 1115(a)(1) of the
Tax Law from the sales tax imposed by section 1105(a) of the Tax Law. Therefore, the sale by
the dietician of frozen dinners as described in this Advisory Opinion are not subject to sales tax.

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March 18, 2008

See Jo Ann Narducci, d/b/a D & V Foods, Adv Op Comm T & F, May 24, 2001,
TSB-A-01(18)S.

DATED: March 18, 2008

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Taxpayer Guidance Division

An Advisory Opinion is issued at the request of a person or entity. It is
limited to the facts set forth therein and is binding on the Department only
with respect to the person or entity to whom it is issued and only if the
person or entity fully and accurately describes all relevant facts. An
Advisory Opinion is based on the law, regulations, and Department
policies in effect as of the date the Opinion is issued or for the specific
time period at issue in the Opinion.