Do Personal Chefs Qualify for Sales Tax? A Comparative Analysis Between States:

Posted on Nov 4, 2020

Will Richardson

 

Sales and use taxes are usually able to be applied in a fairly straightforward manner. If one sells tangible personal property (unless specifically exempt) to another individual, that property is subject to the tax.[1] There has been some debate, however, over whether or not sales tax should apply to one particular profession: personal chefs. Personal chefs mostly operate as independent contractors, working for a multitude of different customers and cooking meals based on their requested orders.[2] Families who may be too busy to shop for groceries or cook on their own can hire a personal chef to cook meals for them, often times at their own home. This food can then be eaten immediately after preparation or saved for later, depending on the customers’ request.[3]

While this may seem like a fairly straightforward business model, the nature of the personal chef industry has recently posed some interesting questions for various states’ Departments of Revenue when it comes to the question of how sales tax should be applied to them. In most, sales tax is applied whenever tangible personal property is sold. Food typically qualifies under “tangible property”, and as a result, restaurants and catering businesses are typically subject to sales tax.[4] One might expect personal chefs to fall under the same set of rules.

At first glance, it should seem like an obvious conclusion that sales tax should apply to these personal chef businesses. After all, they are providing food, a tangible product, to the families that are hiring them. However, there are some important differences between a restaurant and a personal chef which have impacted how states have chosen to tax them. One could argue that personal chefs primarily provide a service by simply preparing food for customers rather than furnishing the food themselves.[5] As a result, they do not provide their customers with any “tangible personal property”.

There is a major roadblock to this type of argument to this argument, however, which is that many personal chefs do go out and purchase the food they use to cook. Furthermore, these chefs also include the cost of the food they buy in the final price of the service.[6] This could be an indication that personal chefs are, in fact, selling tangible personal property subject to sales tax.

Personal chefs have made an interesting argument in response that may differentiate themselves from caterers and restaurants. Whereas caterers and restaurants have pre-planned menus and prices that limit customer choice as to what they can personal, personal chefs often provide meals based directly on customer requests.[7] As independent contractors, even though they may be been the ones who purchased the food, they were only doing so on the requests of the families that hired them for other services. They were simply acting as an agent of their customers and never truly possessed the food themselves. In this way, the cost of groceries would simply be considered a reimbursement not subject to sales tax.[8]

The question of whether or not personal chefs are actually re-selling the groceries they purchase, or simply acting as an agent of their customers in purchasing the food is very difficult to answer, and different states have come down in different ways on the issue. The New Jersey and Missouri Departments of Revenue have ruled that personal chefs are not subject to a sales tax, even when buying groceries ahead of time, so long as they prepare their food in a client’s home in order to differentiate themselves from a take-out service.[9] Ohio exempts meals from any sales tax so long as the food is eaten “off the premises” which are provided the chef. [10]

Most states, however, have taken a much stricter stance with respect to personal chefs. States as wide ranging as Georgia[11], New York[12], Illinois[13], Maine[14], and California[15] have adopted much harsher rules, which would qualify personal chefs as “caterers” and subject them to sales tax so long as they personally purchased the groceries. Interestingly enough, personal chefs even in these states can avoid being taxed so long as a customer purchases their groceries directly. While the most obvious way to satisfy this requirement is having the customer go to the store and purchase the food themselves, personal chefs can get around it by simply using their customers’ credit or debit card to purchase food when shopping themselves, which may appear to some to be a distinction without a difference.

A number of states also make an interesting distinction regarding taxability when it comes to heated or frozen meals. Washington[16], Kentucky[17], and Nevada[18] all have agency rulings which distinguish the sale of heated food, which is ready for consumption, from frozen meals or pre-cooked meals which are intended to be re-heated and eaten at a later date. These states have not articulated exactly why they have made this distinction, but I suspect that it serves as a way to differentiate personal chefs from other catering services. Still, this distinction seems unrelated to the question at the heart of the matter: whether or not tangible personal property was actually sold.

All in all, the question of whether personal chefs should qualify for sales tax poses an interesting question of how far one is willing to push the definition of “agent”, and how far they would be willing to separate service from product. It will be interesting to see how different tax departments rule on the issue in future years.

 

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[1] See General Sales and Use Tax, NC Department of Revenue (Apr 17, 2020), https://www.ncdor.gov/taxes-forms/sales-and-use-tax/general-sales-and-use-tax; Products, services, and transactions subject to sales tax, New York Department of Taxation and Finance (June 17, 2015), https://www.tax.ny.gov/bus/st/subject.htm.

[2] Tsuyoshi Inagaki, Differences Between a Private and Personal Chef, Kamikoto (April 25, 2018), https://kamikoto.com/blogs/fundamentals/differences-private-and-personal-chef

[3] Id.

[4] See Tax Bulletin ST-110 (TB-ST-110), New York Department of Taxation and Finance (April 8, 2019), https://www.tax.ny.gov/pubs_and_bulls/tg_bulletins/st/caterers_and_catering_services.htm#:~:text=The%20entire%20bill%20from%20the,those%20charges%20are%20separately%20stated.; Tax Guide for Caterers: Industry Topics, California Department of Tax and Feed Administration, https://www.cdtfa.ca.gov/industry/caterers.htm#Topics (Last Visited: 10/8/2020)

[5] See Tax Briefs, 33 N.J. State Tax News 1, 12 (Summer 2004) LEXIS 34 (Stating that personal chefs provide a service and are not subject to sales tax)

[6] See New York Department of Taxation and Finance, TSB-A-01(12)S (2001) (Arguing that resale of food purchased at a grocery store by a personal chef is subject to a sales tax)

[7] See Inagaki, supra at note 2; Special Notice: Personal Chefs, Washington State Department of Revenue (Jan. 2013), https://dor.wa.gov/sites/default/files/legacy/Docs/Pubs/SpecialNotices/2013/sn_13_PersonalChefs.pdf (stating that personal chefs are independent contractors).

[8] See 2005 Mo. Tax Ltr. Rul. LEXIS 34 (Ruling stating that groceries bought by a personal chef not subject to sales tax, cost was a simply a reimbursement).

[9] Tax Briefs, 33 N.J. State Tax News 1, 12 (Summer 2004) (Stating that personal chefs not subject to sales tax); 2005 Mo. Tax Ltr. Rul. LEXIS 34

[10] Food Service Industry, Ohio Department of Taxation, https://tax.ohio.gov/wps/portal/gov/tax/help-center/resources/tax-education/foodserviceindustry (Last Accessed: Oct. 10, 2020)

[11] Georgia Department of Revenue, LR SUT-2015-08 (2015)

[12] New York Department of Taxation and Finance, TSB-A-01(12)S (2001)

[13] Illinois Department of Revenue, 2000 Ill. PLR (2000)

[14] Instructional Bulletin No. 27: Sales of Prepared Food, Maine Revenue Services, Sales Fuel and Tax Division (Nov.  1, 2017), https://www.maine.gov/revenue/sites/maine.gov.revenue/files/inline-files/IB27SalesPreparedFood20171101.pdf

[15] 550.0000 TAXABLE SALES OF FOOD PRODUCTS-REGULATION 1603, 2004 WL 5155129, at *19

[16] See Special Notice: Personal Chefs, supra note 7.

[17] Kentucky Sales Tax Facts, Kentucky Department of Revenue (Sept. 2008), https://revenue.ky.gov/News/Publications/Sales%20Tax%20Newsletters/Sales%20Tax%20Facts%202008%20-%20Sep.pdf

[18] Nevada Department of Taxation, Personal Chefs, 177 Nev. Tax Notes 3 (2012)