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Food & The Law

An Explanation of California's Sales Tax on Foods + Bonus Flowchart

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Wed, Apr 4, 2012 at 1:56 PM

click to enlarge SF Weekl's sales tax flowchart - SF WEEKLY
  • SF Weekly
  • SF Weekl's sales tax flowchart
While U.K. residents are embroiled in a debate over a potential tax on certain hot foods taken to go, Joe Eskenazi over at our sister publication, SF Weekly, reminds us that in California, we already have an inexplicably arcane tax scheme that imposes a sales tax on some foods taken to go, depending on various subjective factors like how and where the food is intended to be eaten. The upshot: an awful lot of lawyers in front of the state Board of Equalization making arguments that sound like Bill Clinton trying to parse the definition of "is." And, more significantly, a tax policy that effectively benefits the rich at the expense of the poor.

Under California law, foods eaten on the premise of an eatery is taxed while the same item taken to go is not: "Sales of food for human consumption are generally exempt from tax unless sold in a heated condition (except hot bakery items or hot beverages, such as coffee, sold for a separate price), served as meals, consumed at or on the seller's facilities, ordinarily sold for consumption on or near the seller's parking facility, or sold for consumption where there is an admission charge." Exactly which type of foods do and do not fall under the scope of this provision is the frustrating devil in the detail.

Eskenazi notes a few of the ridiculous results of drawing an artificial distinction between hot and cold foods. "A hot sandwich to go would be taxable," for example, "While a prepackaged, cold one would not -- but a cold sandwich becomes taxable if it has hot gravy poured onto it. Cold foods to go are generally not taxable -- but hot foods that have cooled are taxable (meaning a cold sandwich slathered in "hot" gravy that has cooled to room temperature is taxable)."

By exempting certain foods from the sales tax, he continues, "California and its 30 like-minded states forgo 20 to 25 percent of their potential sales tax revenue. ... In the current year, California's Department of Finance estimates revenue losses from exempting food and bottled (non-carbonated) water to be nearly $10 billion -- with much of this money staying in the pockets of people who would be difficult to categorize as requiring 'tax relief.'" A solution, he suggests, may be to widen the tax base and tax all foods in order to bring down the overall tax rate.

Read the entire article -- and more absurd hot/cold debates -- over on SF Weekly. And, as a bonus for those times when you don't know if the tax will apply to your croissant, check out the paper's nifty flowchart that takes you through the sales tax rules and the exceptions that swallow the rules. If it feels like a maze, that's because it is.

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