W. Va. Code R. § 110-15H-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 110-15H-5 - Prepared Food

5.1. Prepared food, as defined in Section 3 of this rule, is food that is prepared by the seller for sale to the consumer. Generally, this does not include food prepared by the manufacturer and sold to the retailer or vendor. Prepared Food Items are subject to the Sales Tax at the regular rate of 6%; a representative listing of Prepared Food Items is found in Appendix B of this rule.

5.2. All food sold with eating utensils provided by the seller including plates, knives, forks, spoons, glasses, cups, napkins or straws falls within the classification of Prepared Food Items. Food is considered to be sold with eating utensils provided by the seller when the food is intended for consumption with the utensils provided.

5.2.1. Prepared Food Items therefore includes all food sold by an eating establishment that sells meals, sandwiches, or other food for consumption on or off the premises.

5.2.2. Prepared Food Items also includes self-service food such as salad bars or drink islands.

5.2.3. The presence of self-service utensils in a facility does not change Food Items (taxable at 5%) into Prepared Food Items (taxable at 6%) unless it is intended that the food be consumed with those utensils. Further, items provided solely pursuant to sanitary statutes or regulations and not for purposes of consumption do not qualify as utensils.

5.3. Prepared Food Items remain taxable at 6% if they are previously heated by the seller and are ready to eat without further cooking by the purchaser.

5.4. Two or more food ingredients that are mixed or combined by the seller and then sold as a single food item are included in Prepared Food Items.

5.5. Heated food sold in combination with unheated food is included in Prepared Food Items and taxable at 6%. For example, hot chicken prepared by the seller with a pint of potato salad that was not prepared by the seller is sold for a single price.

5.6. Prepared Food Items includes food sold by a seller whose proper primary NAICS classification is 311, food manufacturing (except subsector 3118, bakeries), if:

5.6.1. The food is sold with eating utensils provided by the seller; or

5.6.2. The food is sold in a heated state

5.6.3. If the manufacturer, rather than the seller, provides an eating utensil with the food, the food is not considered to be provided with eating utensils. For example, a box of crackers and cheese that includes a spreader is subject to the 5% rate because the spreader is not provided by the seller.

W. Va. Code R. § 110-15H-5