N.Y. Comp. Codes R. & Regs. tit. 20 § 528.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 528.2 - Food and beverages

Tax Law, § 1115(a)(1)

(a)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. See section 528.27 of this Part for exempt purchases of candy and confectionery when purchased with food stamps.

(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:

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)

A list of taxable and exempt food and food products is available upon request at any district tax office or directly from the bureau's main office in Albany.

(3) The phrase sold for human consumption means that the items sold are, in their normal use, regarded as being for human consumption. Pet foods, which are packaged, labeled or advertised as such, are not deemed sold for human consumption.

(4) Candy and confectionery include, without limitation, candy of all types; chocolate (plain or mixed with other products); glazed or sugar-coated fruits, nuts, peanuts, popcorn or other products; chewing gum; mints; lollypops; fruit flavored sticks; fruit drops; licorice; pastilles; cotton candy; marzipan; halvah and any similar product regarded as candy or confectionery based on its normal use or as indicated on the label or in the advertising thereof.

(5) Items advertised and sold for use in cooking and baking, such as chocolate morsels and glazed fruit, are exempt from tax.

(b)Beverages, other than water.

(1) Beverages sold for human consumption are exempt from sales and compensating use tax, except for:

(i) fruit drinks which contain less than 70 percent of natural fruit juices;

(ii) soft drinks, sodas and beverages, such as are ordinarily dispensed at soda fountains (other than coffee, tea or cocoa);

(iii) beer, wine and other alcoholic beverages.

(2) A beverage is a drink, whether sold in liquid form or otherwise.

Cross-reference:

See section 528.27 of this Part for exempt purchases with food stamps of otherwise taxable fruit drinks, soft drinks, sodas and beverages.

(3) Fruit juices are exempt beverages. Fruit drinks, aides, nectars and cocktails which contain less than 70 percent natural fruit juices, are taxable.

(4) Soft drinks and sodas include carbonated and noncarbonated beverages, carbonated water, dietetic beverages and cocktail and other alcoholic drink mixes.

(5) Vegetable juices, whether made of a single vegetable, or a combination of vegetables, or a combination of a vegetable and other food product are exempt beverages.

Example:

A juice composed of tomato juice and clam extract is exempt.

(c)Dietary foods and health supplements.

(1) A dietary food is a food for a special dietary use for humans and which bears on the label a statement of the dietary properties upon which its use is based in whole or in part.

(2) Products which are intended to substitute for the ordinary diet, or supplement the ordinary diet, or substitute for natural foods are exempt, when sold for human consumption. Among these are liquid diet products, artificial sweeteners and vitamins.

(d) Nothing contained within section 1115 (a)(1) of the Tax Law or this section shall be construed as exempting food or drink from the tax imposed under subdivision (d) of section 1105 of the Tax Law. (See section 527.8 of this Title.) However, see section 528.27 of this Part for exempt purchases of eligible food and drink when purchased with food stamps.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 528.2