Establishments that incorrectly charge sales tax on cold food to go.

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SMS

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Jun 28, 2011, 7:06:25 PM6/28/11
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I decided that from now on I will no longer pay sales tax on non-taxable
items that a take-out restaurant tries to collect sales tax on.

Tried to go to Subway #29838 at 956A W El Camino Real
Sunnyvale, today. Got my usual cold sandwich, to go, but unlike most
Subways, this one tried to charge sales tax. I left without the food.

I wonder of some restaurants simply don't understand the sales tax
regulations, or if they are collecting sales tax on non-taxable items
and pocketing the money.

Todd Michel McComb

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Jun 28, 2011, 7:16:48 PM6/28/11
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In article <4e0a5e71$0$2179$742e...@news.sonic.net>,

SMS <scharf...@geemail.com> wrote:
>I wonder of some restaurants simply don't understand the sales tax
>regulations, or if they are collecting sales tax on non-taxable
>items and pocketing the money.

Have you tried reporting this to the Board of Equalization?

Peter Lawrence

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Jun 28, 2011, 7:39:34 PM6/28/11
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On 6/28/11 4:06 PM, SMS wrote:
>
> I decided that from now on I will no longer pay sales tax on non-taxable
> items that a take-out restaurant tries to collect sales tax on.
>
> Tried to go to Subway #29838 at 956A W El Camino Real
> Sunnyvale, today. Got my usual cold sandwich, to go, but unlike most
> Subways, this one tried to charge sales tax. I left without the food.

Make sure that you report this to the corporate office of Subway:

Franchise World Headquarters
325 Bic Drive
Milford, CT 06461-3059 USA

Ph: 203.877.4281 -or-
Ph: 800.888.4848

Or send in your complaint via their website:

http://goo.gl/ceigb


- Peter

SMS

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Jun 28, 2011, 8:17:11 PM6/28/11
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Many years ago I tried to report this, but they never responded. I don't
think they're interested. It may be that they believe that the
incorrectly collected tax is sent in to them, so it is not in their
interest to look into it. However it also is possible that the retailer
just pockets the money collected on non-taxable items.

Most stores and restaurants get it right these days, but there are some
that don't.

Golden California Girls

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Jun 28, 2011, 8:23:45 PM6/28/11
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You may have to find out if the 80/80 rule applies .....
http://www.boe.ca.gov/lawguides/business/current/btlg/vol1/sutr/1603.html


Peter Lawrence

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Jun 28, 2011, 8:25:24 PM6/28/11
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On 6/28/11 5:17 PM, SMS wrote:
>
> Most stores and restaurants get it right these days, but there are some that
> don't.

One would think that any store using a computerized POS system ought to have
the system programmed correctly that for any item entered on the bill the
correct amount of sales tax (if any) would be calculated.


- Peter


SMS

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Jun 28, 2011, 8:35:24 PM6/28/11
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It's possible, but unlikely, unless the clientele at this particular
Subway are very different from that at other units.

SMS

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Jun 28, 2011, 8:39:03 PM6/28/11
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You would think that. However, in the case of Subway, if they toast a
cold sandwich, then it's taxable, but if they don't it's not taxable.
Their POS system doesn't account for this. Also, if it's a cold sandwich
they need to know if you're eating the food there or taking it out. I
suspect that this particular store simply decided to collect tax on
everything, just to be safe.

Yogurtland stores always ask if it's to go since it's taxable if you eat
it there.

Steve Pope

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Jun 28, 2011, 8:47:48 PM6/28/11
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SMS <scharf...@geemail.com> wrote:

>On 6/28/2011 5:25 PM, Peter Lawrence wrote:

>> One would think that any store using a computerized POS system ought to
>> have the system programmed correctly that for any item entered on the
>> bill the correct amount of sales tax (if any) would be calculated.

>You would think that. However, in the case of Subway, if they toast a
>cold sandwich, then it's taxable, but if they don't it's not taxable.

Not if you're eating it there.

The Petaluma Whole Foods formerly asked whether you were eating a
cold item on site; but now they charge sales tax regardless. I did
not ask why, but am guessing it's either some sort of threshold rule,
or they were being too noncompliant.

Steve

Pico Rico

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Jun 28, 2011, 9:11:56 PM6/28/11
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"Peter Lawrence" <humm...@aol.com> wrote in message
news:iudonn$kff$1...@dont-email.me...


why don't you pay the tax, then sue them. You might end up foreclosing on
their corporate office.


Todd Michel McComb

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Jun 28, 2011, 9:12:50 PM6/28/11
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In article <iudsnk$d4s$1...@blue-new.rahul.net>,

Steve Pope <spo...@speedymail.org> wrote:
>The Petaluma Whole Foods formerly asked whether you were eating a
>cold item on site; but now they charge sales tax regardless. I did
>not ask why, but am guessing it's either some sort of threshold rule,
>or they were being too noncompliant.

Or they see it as a profit opportunity.

That's why I'd inquire with the BOE.

(I don't mind paying sales tax to the state, but I do mind adding
unnecessarily to the bottom line at Whole Foods or Subway.)

SMS

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Jun 28, 2011, 9:29:40 PM6/28/11
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> The Petaluma Whole Foods formerly asked whether you were eating a
> cold item on site; but now they charge sales tax regardless. I did
> not ask why, but am guessing it's either some sort of threshold rule,
> or they were being too noncompliant.

The Cupertino Whole Foods used to ask, and apologize for asking, in the
same breath. You could be buying Five large containers of yogurt and
they would ask if it was to eat there. They said they had gotten into
trouble for non-compliance and were now asking everyone, even if it was
clear that the food was not going to be consumed on site.

There is just no way that Whole Foods could meet the threshold necessary
to charge tax on all cold items. If the Petaluma store is doing that
then they are doing so incorrectly.

sf

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Jun 29, 2011, 2:26:35 AM6/29/11
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On Tue, 28 Jun 2011 16:06:25 -0700, SMS <scharf...@geemail.com>
wrote:

Report them and let the IRS take care of it.

--

Today's mighty oak is just yesterday's nut that held its ground.

sf

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Jun 29, 2011, 2:29:03 AM6/29/11
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On Tue, 28 Jun 2011 17:17:11 -0700, SMS <scharf...@geemail.com>
wrote:

> However it also is possible that the retailer
> just pockets the money collected on non-taxable items.

Did they record it in a computerized cash register or was it voice and
cash handed over with no receipt?

Golden California Girls

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Jun 29, 2011, 9:55:07 AM6/29/11
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Please read like a lawyer the 80/80 rule. If it applies then the
establishment must charge tax, unless it *elects* to keep special records
of its to-go cold food sales. Ergo what they did is supported by BOE
regulations. Subway likely fell under 80/80 as soon as they put the
toasters in.

If you want another pisser, consider if you ask for a lemonade which
shouldn't be taxed, you will pay tax because they are required to do so
because there is soda at the self serve fountain!


Pico Rico

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Jun 29, 2011, 10:03:17 AM6/29/11
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"Golden California Girls" <gldnc...@aol.com.mil> wrote in message
news:iufart$37d$1...@dont-email.me...

> On 6/28/11 5:35 PM, SMS wrote:
>> On 6/28/2011 5:23 PM, Golden California Girls wrote:
>>> On 6/28/11 4:16 PM, Todd Michel McComb wrote:
>>>> In article<4e0a5e71$0$2179$742e...@news.sonic.net>,
>>>> SMS<scharf...@geemail.com> wrote:
>>>>> I wonder of some restaurants simply don't understand the sales tax
>>>>> regulations, or if they are collecting sales tax on non-taxable
>>>>> items and pocketing the money.
>>>>
>>>> Have you tried reporting this to the Board of Equalization?
>>>>
>>> You may have to find out if the 80/80 rule applies .....
>>> http://www.boe.ca.gov/lawguides/business/current/btlg/vol1/sutr/1603.html
>>
>> It's possible, but unlikely, unless the clientele at this particular
>> Subway
>> are very different from that at other units.
>
> Please read like a lawyer the 80/80 rule. If it applies then the
> establishment must charge tax, unless it *elects* to keep special records
> of its to-go cold food sales. Ergo what they did is supported by BOE
> regulations. Subway likely fell under 80/80 as soon as they put the
> toasters in.


They obviously do not make that election due to bookkeeping and staffing
hassles. The pool of job applicants would shrink dramatically if "only
those who understand and can comply with all the nuances of California Sales
Tax Statutes and Regulations need apply".


SMS

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Jun 29, 2011, 10:35:50 AM6/29/11
to
On 6/29/2011 6:55 AM, Golden California Girls wrote:

> Please read like a lawyer the 80/80 rule. If it applies then the
> establishment must charge tax, unless it *elects* to keep special records
> of its to-go cold food sales. Ergo what they did is supported by BOE
> regulations. Subway likely fell under 80/80 as soon as they put the
> toasters in.

Only if at least 80% of the sandwiches are served toasted or served hot.
I'm pretty sure this is not the case, since nearly every other Subway
does not charge tax on cold sandwiches.

Tim May

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Jun 29, 2011, 1:53:07 PM6/29/11
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On 2011-06-29 07:03:17 -0700, Pico Rico said:
>
> They obviously do not make that election due to bookkeeping and
> staffing hassles. The pool of job applicants would shrink dramatically
> if "only those who understand and can comply with all the nuances of
> California Sales Tax Statutes and Regulations need apply".

Yes, such a requirement would be "Diskimatory!"

It's been years since any cashier actually made change for me. They
usually just dump a bunch of change in my hand.

I doubt most people under 30 have even been exposed to the very idea of
"making change."


--
Tim May

jcdill

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Jun 29, 2011, 4:00:27 PM6/29/11
to

Most businesses run software that interfaces with their registers, and
takes all the tax they collect and then generates reports and pays it to
the state. It would be much harder to try to figure out how much tax
they owe any other way, AND it's a crime to collect the tax but not pay
it. So when they collect tax in error, they don't profit from this,
they just pay it to the state.

Many places that sell sandwiches have mis-programmed their registers to
consider cold sandwiches (un-taxed) as hot sandwiches (taxed). I ran
into this with Subway not too long ago. Now I double check to see if
they are charging me tax before I tender payment, and if they try to
charge tax I tell them that they rang up the item wrong and make them
pick a different key to ring up the item at the right price, not taxed,
before I give my payment.

Note: Some places that sell mostly hot food (e.g. McDonalds) are
allowed to program their registers to charge and collect tax for
everything they sell, even if they sell items that would otherwise be
tax-exempt (e.g. cookies or apple slices).

jc


Steve Pope

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Jun 29, 2011, 4:06:12 PM6/29/11
to
jcdill <jcd...@jcdill.com> wrote:

>On 28/06/11 4:06 PM, SMS wrote:

>> I decided that from now on I will no longer pay sales tax on non-taxable
>> items that a take-out restaurant tries to collect sales tax on.
>>
>> Tried to go to Subway #29838 at 956A W El Camino Real
>> Sunnyvale, today. Got my usual cold sandwich, to go, but unlike most
>> Subways, this one tried to charge sales tax. I left without the food.
>>
>> I wonder of some restaurants simply don't understand the sales tax
>> regulations, or if they are collecting sales tax on non-taxable items
>> and pocketing the money.
>
>Most businesses run software that interfaces with their registers, and
>takes all the tax they collect and then generates reports and pays it to
>the state. It would be much harder to try to figure out how much tax
>they owe any other way, AND it's a crime to collect the tax but not pay
>it. So when they collect tax in error, they don't profit from this,
>they just pay it to the state.

That's right.

Another thing to note is although their may be rules (like an 80-80 rule)
under which it appears a business (such as Subway) should not be
collecting unnecessary taxes, the business might easily be required
to do so anyway as the result of the outcome of an audit, where various
issues had been bargained and settled. It is not possible for the
customer to look at the situation and declare that tax is being collected
unnecessarily. It may in fact be necessary, for that business and
its audit compliance.

I suspect that if a business can solve a tax problem by agreeing to
do this, they jump on that in many cases.

Steve

Golden California Girls

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Jun 29, 2011, 9:13:11 PM6/29/11
to

Subway also serves soup which last time I checked was hot. And they are
doing breakfasts now, which are hot. Also if there is one hot ingredient
in a sandwich, e.g. bacon, the sandwich is hot. In any case it is up to
the franchise management if they want to attempt the 80/80 rule and the
bookkeeping required. As long as any tax collected is paid to California
it is legal.

You might ask corporate why this franchise is different than others you
have encountered. That might get an answer.


spamtrap1888

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Jun 30, 2011, 4:53:12 PM6/30/11
to

This puzzled me the other day. We went to Joanne's Cafe in South City
for breakfast, then decided to buy a couple of muffins for the next
day. We paid our check, then ordered the muffins, which were taxed.

Do bakeries charge sales tax, and I just never noticed it?

jcdill

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Jul 1, 2011, 11:17:21 AM7/1/11
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On 30/06/11 1:53 PM, spamtrap1888 wrote:
\

> This puzzled me the other day. We went to Joanne's Cafe in South City
> for breakfast, then decided to buy a couple of muffins for the next
> day. We paid our check, then ordered the muffins, which were taxed.
>
> Do bakeries charge sales tax, and I just never noticed it?

A restaurant is not a bakery. If 80% of what a restaurant sells is to
eat in the establishment (which is the case for most restaurants with
waiters and table service), they may be under the 80/80 rule and thus
tax everything they sell.

jc

dbto...@gmail.com

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Oct 2, 2017, 3:33:37 PM10/2/17
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From SaleSupportTAX-dot Com: "... there’s a concept called the 80-80 rule which would subject all the sales of a food seller to sales tax. This rule states that if 80% or more of the seller’s gross receipts are from food products and if 80% or more of the sales of food products are considered taxable then a business must charge sales tax on all food sales.

Tim May

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Nov 1, 2017, 5:52:35 PM11/1/17
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This happened to me recently.

I said "This is cold food. And it's to go. No sales tax."

The cashier just looked at me dumbly. I left.

Best to do this AFTER the sandwich has already been prepared.

(No point in conversing in advance, anyway.)


--
Tim May

eajl...@gmail.com

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Apr 28, 2018, 1:59:54 AM4/28/18
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Just happened to me at a Subway at San Jose mall. I said I wasn’t paying the sales tax. She took the to go bag away. She as me if I wanted it toasted and I said no.

I work to hard to get cheated like this.

Ciccio

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Apr 29, 2018, 1:43:06 PM4/29/18
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On 4/27/2018 10:59 PM, eajl...@gmail.com wrote:
> Just happened to me at a Subway at San Jose mall. I said I wasn’t paying the sales tax. She took the to go bag away. She as me if I wanted it toasted and I said no.
>
> I work to hard to get cheated like this.

Sometimes it is legal to charge sales tax for cold sandwiches sold on a
take-out/to-go basis, sometimes it is not. You fail to provide
sufficient facts to support your accusation that the business cheated
you, it's just your speculation.

Though sales tax is less unfair than income tax, it has an element of
capriciousness, e.g., a few feet in my area and there is a 1% difference.

Ciccio
--
"If your mother cooks Italian food,
why should you go to a restaurant?"
- Martin Scorsese.
- My dad saying to me.

Tim May

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May 1, 2018, 3:21:11 PM5/1/18
to
This is, of course, an old, old, old topic.

My hunch is that outfits like Subway, Jimmie John's, etc charge sales
tax for cold food taken to go and then "pocket the difference" when
they report sales tax to the Franchise Tax Board (and similar
kleptocracies in other states).

My hunch is that they assume no individual person exposed to this theft
will spend a hundred thousand dollars in legal fees to fight this theft.

And the State is happy about this additional reveneu. And Subway-type
chains don't care.

Maybe the best revenge is what have some have alluded to: Order the "To
Go" cold food sandwich, be told to pay an illegal sales tax, and then
say "Fuck you, this order is not subject to a sales tax," and then walk
out the door.

(But the Subway or Jimmie John's or whatever, just doesn't record it as
a sale. And one of the employees gets to eat the sandwich. Everyone is
joyful.)

The basic problem is discriminating between cold food/hot food and
eat-in/carry-out foods. Sales tax, which is an abomination, should be
applied equally. That it is not was some kind of sop given to colored
people.

It, ironically, now mostly hurts the coloreds.

Some comfort in that, I suppose.



--
Tim May

G. Paul Ziemba

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May 3, 2018, 12:56:19 PM5/3/18
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Tim May <tc...@att.net> writes:

>This is, of course, an old, old, old topic.

Indeed.

>Maybe the best revenge is what have some have alluded to: Order the "To
>Go" cold food sandwich, be told to pay an illegal sales tax, and then
>say "Fuck you, this order is not subject to a sales tax," and then walk
>out the door.

Of course, in order to determine the legal sales-taxability of a food
item, the temperature and here/to-go attributes are not sufficient. As
dbtown mentioned upthread many moons ago, there is also the 80/80 rule,
which requires knowledge of the store location's gross receipts makeup.

(Unless you meant "illegal" in the gold-fringe-on-flag sense, in which
case I say "no comment" with prejudice).
--
G. Paul Ziemba
FreeBSD unix:
9:36AM up 49 days, 1:16, 26 users, load averages: 0.31, 0.32, 0.31

Todd Michel McComb

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May 3, 2018, 1:17:54 PM5/3/18
to
In article <pcfdv5$21al$1...@usenet.ziemba.us>,
G. Paul Ziemba <u...@ziemba.us> wrote:
>Unless you meant "illegal" in the gold-fringe-on-flag sense, in which
>case I say "no comment" with prejudice.

He meant it in the "I've been told this at least a dozen times, but
I didn't pay attention, because I have *hunches*" sense.

Ciccio

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May 4, 2018, 1:59:58 PM5/4/18
to
On 5/1/2018 12:21 PM, Tim May wrote:
> This is, of course, an old, old, old topic.

And yet the OP exhibits that he is woeful ignorant of California sales
tax law and wildly speculates in a public forum that the small business
owner is dishonest.

> My hunch is that they assume no individual person exposed to this theft
> will spend a hundred thousand dollars in legal fees to fight this theft.

In California a winning party in say, a "consumer legal remedies act"
lawsuit is awarded lawyer fees. Thus, there are many lawyers who will
take a winning case, albeit small damages to a consumer. Hence there are
many instances of a consumer winning only a few dollars, but his lawyer
getting six figures. Then, there are the class action suits, which can
sting a business and handsomely reward the consumer lawyers.

> Maybe the best revenge is what have some have alluded to: Order the "To
> Go" cold food sandwich, be told to pay an illegal sales tax, and then
> say "Fuck you, this order is not subject to a sales tax," and then walk
> out the door.

Sure, America has a long distinguished history of tax protesting.
Though, wildly accusing a small business owner of fraud is not protected
protesting speech.

Someone, like you, with apparent sizeable holdings would make a good
target for a struggling small business owner and his lawyer. Thus,
perhaps in your vocal protest you make it *very* clear you are not
accusing the business of doing anything illegal, but protesting sales
taxes generally, etc.

> It, ironically, now mostly hurts the coloreds.

Yep, that is what the lefties say.

lumpy...@gmail.com

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Jul 6, 2020, 9:11:40 PM7/6/20
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I got charged 9.1% on subway subs! 2 for 10 is online only unlike the tv ad and 3 footlongs costs 29.75. 2 turkeys and a spicy italian!
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