IRS Looking for Opinions, Any Opinions

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Listen up people. Since many of you regularly get either your breakfast, mid-morning snack, lunch, pre-midafternoon snack, afternoon snack, pre-leaving work snack or – during busy season – your dinner out of a vending machine this could be cause for concern.

States are strapped for cash so t��������������������ve you joy is a logical and effective conclusion. Accordingly, sweets, sodas, booze, cigarettes, strippers are all fair game. Some of these are old hat (e.g. booze, cigs) and some are becoming more popular (e.g. candy, soda). Washington state is rolling out its candy tax on June 1, 2010 and as you might have guessed, it’s not nearly as simple as you would think. There are many questions.

First off, candy needs a definition, so Department of Revenue de Washington presents its version:

“Candy” means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy does not include any preparation containing flour. Candy does not require refrigeration.

OFTLOG. Couldn’t it just boil down to: “Anything handed out on Halloween”? But wait, the questions get better:

Are bags of trail mix containing small amounts of candy subject to sales tax?
No, trail mix is not considered to be candy if it contains only small amounts of chocolate chips or other candy.

Are sweetened breakfast cereals considered candy if they do not list flour as an ingredient?
No. Breakfast cereals are non-taxable food, even if they are sweetened and do not list flour as an ingredient.

What about prepackaged combination packs of candy? I sell bags of mixed candy bars for one, non-itemized price. Some of the bars contain flour, while others meet the definition of candy. Do I collect sales tax on the bags of candy?
The sale of the bags of candy represents a bundled transaction. See RCW 82.08.190 for more information on bundled transactions. Because one of the items in this bundled transaction is subject to sales tax, the entire bundle of products is subject to sales tax. See RCW 82.08.195 for more information.

However, you can exempt the bundled transaction from sales tax if you demonstrate that the purchase price or sales price for the taxable candy is 50% percent or less of the total purchase price or sales price of the bundled food products. See RCW 82.08.190(4) for information about how this 50% exception works.

Are nicotine gum and analgesic gum candy?
They are not candy, but they are subject to sales tax because they are over-the-counter drugs. Over-the-counter drugs refer to any drug sold with a label that identifies the product as a drug and includes either of the following:

A “drug facts” panel; or
A statement of the “active ingredient(s)” with a list of those ingredients contained in the compound, substance, or preparation.

Nicotine gum and analgesic gum (gums containing aspirin) meet the description above and should be treated as taxable over-the-counter drugs unless purchased with a prescription. See RCW 82.08.0281 for more information regarding over-the-counter drugs.

How are products in the baking aisle treated?
Below is information on selected baking aisle products [we’re skipping the table but fact that there is a table to explain the candy/non-candieness of the baking aisle is ridiculous]

Are fruit snacks such as fruit roll-ups and fruit leathers subject to sales tax as candy?
Fruit roll-ups and fruit leathers are subject to sales tax if they contain any sugar, honey, or other natural or artificial sweeteners and do not contain flour or require refrigeration. The fruit added to such item is not considered a sweetener (fruit is not intended to refer to concentrated fruit juices).

Are sweetened dried fruits candy?
Yes, dried fruits are candy when they are sweetened with natural or artificial sweeteners. This is true whether the product is sold prepackaged or in a bulk bin, by weight. Unsweetened fruits are not candy.

Is halvah candy?
Halvah is a confection usually made from crushed sesame seeds and honey, but in some instances may be made with grain based ingredients. It has been a traditional dessert in India, the Mediterranean, and the Balkans. Halvah that is based on nut butters (or seeds) and contains no flour is candy. Halvah that is flour-based is not candy. You should read the ingredient label if you are unsure.

Are energy bars and protein bars candy?
Energy bars and protein bars that contain no flour and require no refrigeration are taxable as candy. Bars that contain flour or require refrigeration are not candy.

Are cough drops subject to sales tax as candy?
Cough drops are not taxable as candy if they have either:

A “drug facts” panel; or
A statement of the “active ingredient(s)” with a list of those ingredients contained in the compound, substance, or preparation.

In such situation, the cough drops represent over-the-counter drugs. These cough drops are subject to sales tax unless purchased with a prescription. See RCW 82.08.0281 for more information regarding over-the-counter drugs.

Cough drops that do not have either of the above are candy.

Some takeaways: 1) Careful with the trail mix that has lots of M&Ms, it could possibly be taxable 2) Lucky Charms, et al. are safe 3) If anything has the word “gum” in it, it’s up for debate (e.g. Nicotine gum). Strangely enough, condom gum, edible undies, etc. is not mentioned 4) Fruit Roll-ups, energy bars, halvah and cough drops are all in the gray area.

And in case that doesn’t clear it up, there’s an entire spreadsheet that you can refer to (file below) but no, a Kit-Kat bar is not considered candy. Neither is a Milky Way. Got it?

Quick Tax Quiz: When Is a Candy Bar Not a Candy Bar? [Tax Policy Blog]
Washington State Candy List