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Last Updated: 10/23/2013

Prepared Food- Eating Utensils

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​Eating Utensils "Made Available" or "Provided by the Seller"

We have updated our information on how prepared food is taxed when a business operates both a restaurant and a to-go counter in the same establishment. Generally, prepared food is taxable if eating utensils are "made available" or "provided by the seller."

When a business has both a restaurant and a to-go counter, food sold at the counter is taxable only if one of the following occurs:

  • Customers at the counter have access to utensils when they purchase food ("made available").
  • The seller typically includes utensils with food purchased at the counter ("provided by the seller").

Providing utensils to restaurant customers does not make prepared food taxable when it's purchased at the to-go counter. For these purchases to be taxable, utensils must be available or provided at the counter. (See example below.) 

Note: For a definition of "utensils" and other information, see Fact Sheet 102D, Prepared Food. We updated this fact sheet in September 2013 to include this clarification and new examples (see pages 2 and 3).

Example

business operates a restaurant and bakery in the same establishment. It sells single-serving bakery items at the to-go counter. The items are typically sold in plain paper bags. There are no utensils (such as knives, forks, plates, or napkins) on the counter for customers to take with them. The business does not typically include utensils in the bag with bakery items.

Purchases at this counter are not taxable as prepared food, even if restaurant customers receive utensils and more than 75 percent of the establishment's sales are prepared food. (However, they would be taxable if the business has plates and napkins on the counter, or includes a knife or fork in the bag with its bakery items.)