Are sales of pumpkins by a supermarket or other business subject to NY sales tax?

Plain-English summary

A retail food store asked whether its pumpkin sales are taxable. The Office of Counsel split the answer by type of pumpkin:

• Pie / cooking pumpkins = exempt food. Pumpkins like sugar, deep red, and golden cushaw -- and similar gourds generally used to make pies, cakes, breads, and cookies -- are food sold for human consumption and are exempt under Tax Law 1115(a)(1) (20 NYCRR 528.2(a)(3)).
• Decorative / carving pumpkins = taxable. Pumpkins like Connecticut field pumpkins, and other decorative gourds, are not marketed or sold, in their normal or intended use, for human consumption. They are taxable tangible personal property under Tax Law 1105(a) -- and that's true whether they're sold at a supermarket, farm stand, nursery, or other business.

The deciding factor is the item's normal or intended use ("sold for human consumption" means the items, in their normal use, are regarded as being for human consumption), not what a particular buyer happens to do with it.

What this means for you

Food retailers, farm stands, and nurseries

Sort your pumpkin inventory by what the variety is normally used for, not by the buyer. Cooking varieties (sugar/pie pumpkins) ring up exempt; decorative/carving varieties (field pumpkins, ornamental gourds) are taxable. The same logic extends to other items that straddle the food/decoration line -- look to the product's ordinary, intended use.

Common questions

Q: A customer buys a sugar pumpkin to use as a decoration -- is it taxable?
A: No. Taxability turns on the variety's normal/intended use, not the individual buyer's plan. A pie/cooking pumpkin is exempt food.

Q: Are ornamental gourds taxable?
A: Yes -- like decorative/carving pumpkins, they aren't sold in their normal use for human consumption, so they're taxable tangible personal property.

Citations and references

• Tax Law section 1115(a)(1) (food sold for human consumption exemption)
• Tax Law section 1105(a) (sales of tangible personal property)
• 20 NYCRR 528.2(a)(3) (food sold for human consumption)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2010.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a10_30s.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-10(30)S
Sales Tax
July 13, 2010

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S091103A

Petitioner name and address redacted, asks whether sales of pumpkins by supermarkets are subject
to New York State sales taxes. We conclude that, while pie pumpkins are an exempt food, pumpkins sold for
decorative or carving purposes are not food sold for human consumption and thus are not exempt under
section 1115(a)(1) of the Tax Law.
Facts
Petitioner is a retail food store engaged in sales of food and food products sold for human
consumption (both taxable and exempt) and various other taxable and exempt tangible personal property.
Petitioner asks whether its sales of pumpkins are subject to sales and use tax.
Analysis
Section 1115(a)(1) of the Tax Law provides an exemption from the tax imposed on sales of tangible
personal property for food sold for human consumption. The sales and use tax regulations provide that “[t]he
phrase sold for human consumption means that the items sold are, in their normal use, regarded as being for
human consumption.” Pie pumpkins (i.e., sugar, deep red, golden cushaw, etc.) and similar gourds generally
used by a purchaser in cooking pies, cakes, breads, cookies, etc. constitute food sold for human consumption
and are not subject to sales tax. (See section 1115(a)(1) of the Tax Law) (Regulations section 528.2(a)(3))
Decorative and carving pumpkins (e.g., Connecticut field, etc.), like other decorative gourds, are not being
marketed or sold, in their normal or intended use, for human consumption. Thus, decorative and carving
pumpkins and other decorative gourds whether sold at supermarkets, farm stands, nurseries, or other
businesses, are not sold as food, and constitute tangible personal property subject to sales tax under section
1105(a) of the Tax Law.

DATED: July 13, 2010

NOTE:

/S/
Jonathan Pessen
Director of Advisory Opinions
Office of Counsel
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.