Taxable sandwiches and other foods that are taxed, unless they're not


These roasted chickens aren't taxed because they're cold. But if you tried to buy one as it came out of the roaster -- taxed.

Sometimes things are just hilariously (and also frustratingly) complicated.

We were thinking about that today after Jon Campbell said on Twitter of the state Department and Taxation and Finance's web page explaining that sandwiches are taxable: "Is this the best page on an NYS website? Yes. Yes it is."

One of the subheads from that page: "What is considered a sandwich."

And thus we fell into the rabbit hole of what sorts of foods are -- and are not -- taxed by New York State.

A few somewhat mind-warping examples...

Exempt and not exempt

Generally speaking, food is exempt from sales tax. But there are a bunch of exceptions -- mostly for things like candy, soda, alcohol, and prepared foods. The complications come in drawing that line.


Already mentioned, so let's start here. The tax department explains:

Sandwiches include cold and hot sandwiches of every kind that are prepared and ready to be eaten, whether made on bread, on bagels, on rolls, in pitas, in wraps, or otherwise, and regardless of the filling or number of layers. A sandwich can be as simple as a buttered bagel or roll, or as elaborate as a six-foot, toasted submarine sandwich.

(You might recall the bagel-is-a-sandwich-for-tax-purposes rule from a few years ago when the whole sliced/unsliced/smeared issue came up in the news after the state told a chain of bagel shops to start charging tax.)

It then goes on to provide multiple examples, including, but not limited to: BLTs, peanut butter and jelly, burritos, hot dogs, and open faced sandwiches. Yes, in the eyes of New York tax law, a burrito is a sandwich.

By the way: A bagel is not necessarily taxable if it's sliced. If it's sliced and sold by quantity, it's not taxable.


As the candy page explains:

Candy and confectionery includes candy of all types, and similar products that are regarded as candy or confectionery based on their normal use or marketing. Candy and confectionery also generally includes preparations of fruits, nuts, popcorn, or other products in combination with chocolate, sugar, honey, candy, etc.


+ Chocolate, such as chocolate chips, is not taxable if sold as a baking ingredient.

+ Marshmallows are not taxable, except if they're covered in chocolate or sugar and molded in a decorative shape. (Peeps are used as an example. Important question: What are the implications for Peeps-flavored milk?)

+ Maple sugar products are not taxable unless they're marketed as a candy or confection. "For example, pure maple sugar products are exempt as food unless displayed, labeled, or advertised as candy or confectionery. They are not candy merely because they are molded in the shape of a maple leaf or sold in individual quantities."

Also: Candy or confections are not taxable if sold from vending machine for .75 or less.

And noted: Fruit Roll-ups are specifically mentioned as not being candy, and are thus untaxed.

Following from the candy rules -- nuts are untaxed. But if they're covered in some sort of candy coating or chocolate -- even honey-roasted nuts -- they're taxed.

Prepared foods

This loops back around to sandwiches. Generally speaking, foods that have been prepared and sold to be eaten at that moment or shortly after are taxable. But the line for that distinction zigs and zags. A few examples:

+ Cookies, untaxed. Cookies placed on platter, taxed.

+ A roasted chicken sold hot, taxed. A roasted chicken that's allowed to cool and then it sold from a refrigerated case -- not taxed.

+ Ice cream sold in a hand-packed pint, untaxed. A scoop of ice cream on an ice cream cone, taxed.


When they were open Nosh charged tax for meat sold by the pound & cold salads. When i questioned this they said their NYC accountant told them to charge the tax.
Saatti's does the same thing!
Bread & Honey charges tax for their bread of all things!

"C'mon Sandra, you know this stuff. I need more definitions. I can't allow a loophole here!"

"But Andy, if I add any more we will be accused of crossing the unwritten rule of sandwich borders."

"Heck with that, we need more tax revenue. Start thinking ethnic, honey. There's got to be a lot of foreign food that has a bread component. Think!"

"OK Andy, I'll do my best. New York is so lucky to have you as Governor!"

"Darn straight kiddo."

OMG: "they're" vs. "their" issue in the photo's caption. Must... fix... !

Editors: We are ashamed and saddened. And it's been fixed. Thank you.

When i called the sales tax department they said that as long as the store paid them for taxes charged there was nothing they could do about it!
The only thing they could do is send me a form to fill out, with the reciept,and stores name to them ,and i would be reimbursed! So, i would have to pay for my own postage, and go thru form filling out hassle. FURRGET ABOUT IT!

Ugh. Oh New York state, please stop making me defend my choice to live here. It's just getting harder and harder to do so. Times like these I just wait for some ridiculous incident to happen in Florida so I can point and laugh and distract myself.

... What about ice cream sandwiches?

Presumably if made fresh in front of you with 2 cookies and a scoop of ice cream: taxed. If it's packaged and then put in the freezer: untaxed -- Unless the sandwichiness of the ice cream sandwich supersedes the ice creaminess of the ice cream sandwich, in which case it is a sandwich and taxable. After all, the stipulation is regardless of filling.

If you apply labor to food, it becomes taxable.

Muffin - not taxed. But if I warm up the muffin - taxed.

That is how I learned it.

To mg: The store is liable for the tax even if they do not collect it. With such complicated laws many stores collect the tax on everything, remit it and say they are done. They are not liable for anything as they collected tax on the correct items. As for overcollecting tax and remitting it, it is on you to file a refund. Keep those receipts!

I stopped going to the stores because they charged tax on items that are NOT TAXABLE, told my relatives,and friends. Gershon's, Ben & Bill's, J.C's, Bella Napoli, the wonderful bakery , cafe in Latham DO NOT CHARGE TAX ON meat salad by the lb, or bread !

Wow, I didn't think so many people actually cared about this. I never even think about it. If I like an establishment and they charge me an extra 10-20cents on something yummy that's not alot to pay to support a local business.
I knew some of these rules from working in retail, mainly to explain to those with a SNAP card why they can't pay for their milkshake or hot dog with it.

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