Nebraska Administrative Code › Topic - REVENUE, DEPARTMENT OF › Title 316 - NEBRASKA DEPARTMENT OF REVENUE › Chapter 1 - SALES AND USE TAX REGULATIONS › Section 316-1-083 - PREPARED FOOD AND BEVERAGE SERVICE

Current through June 17, 2024
083.01 Retail sales of prepared food,
				including sales by caterers and concessionaires, and all sales of prepared
				food, food, and food ingredients through vending machines are taxable. Retail
				sales of alcoholic beverages are taxable, whether sold packaged or sold by the
				drink. (
				Reg-1-031,
				Coin-Operated Machines;
				Reg-1-040,
				Alcoholic Liquors Consumed on the Premises; and
				Reg-1-087,
				Food for Human Consumption.)
083.02
				Prepared food is food generally intended for immediate consumption, and is
				prepared to a point generally accepted as ready to be eaten without further
				preparation. Prepared food means:
083.02A
				Food sold in a heated state or heated by the retailer, including, but not
				limited to hamburgers, hot dogs, pizza, egg rolls, baked beans, and nachos with
				heated cheese sauce;
083.02B Two or
				more foods or food ingredients mixed or combined by the retailer for sale as a
				single item and not sold by weight or volume, including, but not limited to,
				fountain drinks, ice cream cones, sandwiches, and salad bars; or
083.02C Food sold with eating utensils
				provided by the retailer. Eating utensils include, but are not limited to,
				plates, knives, forks, spoons, glasses, cups, napkins, or straws. Plates do not
				include a container or packaging used to transport the food.
083.02C(1) If 75% or less of the sales of
				food by the retailer are sales of prepared food described by
				083.02A and
				083.02B, eating
				utensils are considered provided by the retailer only if they are given to the
				purchaser by the retailer.
083.02C(2) If more than 75% of the sales of
				food by the retailer are sales of prepared food described by
				083.02A and
				083.02B, eating
				utensils are considered provided by the retailer if they are available on the
				premises where the food is sold, regardless of whether or not the purchasers
				are given the utensils or take them.
083.02C(3) The 75% test is determined in the
				following manner:
083.02C(3)(a) The numerator
				is the total sales of prepared food described by
				083.02A and
				083.02B.
083.02C(3)(b) The denominator is the total
				sales of food, food ingredients, prepared food, candy, dietary supplements, and
				soft drinks.
083.02C(3)(c) Exclude
				sales of alcoholic beverages, tobacco, motor vehicle fuels, and all other
				non-food sales from both the numerator and the denominator.
083.02C(3)(d) The percentage is calculated
				using the retailer's most recently completed tax year, or if the retailer has
				been in operation less than a year, the retailer must make a good faith
				estimate of the percentage for the first year. The good faith estimate must be
				reviewed after three months of operation and adjusted, if appropriate. A single
				percentage should be calculated for all of the retailer's locations in the
				state.
083.02C(4) Even
				if more than 75% of the sales of food by the retailer are sales of prepared
				food, sales of food or food ingredients are not taxable if the transaction is
				for four or more servings as described in the "Nutrition Facts" box on the
				labels as required by
				21 C.F.R. §
												101.9, and the retailer maintains adequate
				records of each sale. If the transaction is for less than four servings, or the
				retailer does not maintain adequate records of these sales, sales tax must be
				collected on these food sales.
083.02C(5) Examples of food sold with eating
				utensils include, but are not limited to, pieces of cake or pie served with a
				fork, bagels served with a knife, and cookies or donuts served on a
				napkin.