Tuesday, January 14, 2014

What is a Sandwich

In 2006, Qdoba Mexican Grill and Panera Bread were involved in a heated lawsuit over the definition of "sandwich" in a real estate lease.  The court ultimately concluded that a burrito is not a sandwich, because one tortilla is not the same as two slices of bread.

The Massachusetts Superior Court judge obviously did not consult New York State Department of Taxation and Finance Bulletin ST-835, which helpfully explains that some examples of "taxable sandwiches" include:
1. burritos;
2. bagel sandwiches;
3. gyros;
4. hamburgers on buns, rolls, etc.;
5. heroes, hoagies, torpedoes, grinders, submarines, and other such sandwiches; 
6. hot dogs and sausages on buns, rolls, etc; and
7. wraps and pita sandwiches.



The purpose of the bulletin is to make a distinction between grocery food (not subject to sales tax) and take-out food (subject to sales tax).  Thus, a bag of bagels is considered grocery food not subject to sales tax, but a sliced and filled bagel "sandwich" is obviously take-out food subject to sales tax. 

While the New York state government is justified in applying the sales tax to hot dogs, burritos, and other take-out foods, it is not obvious why it had to expand the definition of "sandwich" in order to do so. Who can forget all the sandwich-eating records set by Takeru Kobayashi and Joey Chestnut at Coney Island. 

The use of a common term to mean something else is a too-frequent phenomenon in tax law.  Internal Revenue Code section 168(h)(1)(E) contains this gem:

Section 168(h)(1)(E).  Nonresidential real property defined. For purposes of this paragraph, the term “nonresidential real property” includes residential rental property.

Could Congress used instead in section 168(h)(1)(E) a more general term like "real property"?  Of course not. 

1 comment:

  1. I wonder if the government will list all grocery products not subject to tax and products that will be subject to sales tax. That will keep it handy for the citizens

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