State of Wyoming



May 27, 2009

Maggie Palmer

Pinedale Farmers Market

pinedalefarmersmarket@

Dear Maggie:

This letter is in response to your inquiry dated May 5, 2009. In your email, you question the taxability of items at a farmers market. We will present the information as presented by you, a discussion of the specific issue(s) and the supporting authority for our determination(s).

Issues –

“I am trying to put together a Vendor Packet for our Pinedale Farmers Market.  I would like to have a definitive answer on which vendors, if any, need a Sales Tax License and what the filing requirements are.

We have Vendors that are Farmers, only selling produce, Vendors that will be selling packaged foods that need to be prepared at home (i.e. bake mixes, pack food), Vendors that will be selling baked goods that can be eaten at market or taken home, Vendors that sell their Crafts.

I have heard conflicting information regarding who needs to have a license and what kind of returns, if any, need to be filed.  I am hoping you can clarify this, in writing via email, for us, so that I can disseminate the information to our Vendors.”

Discussion –

Each vendor, defined in W.S. 39-15-101(a)(xv) in pertinent as “any person engaged in the business of selling at retail or wholesale tangible personal property, admissions or services which are subject to taxation under this article…. is required to report gross sales regardless if the items are/are not exempt. All gross sales and deductions must be reported. We offer the option of collecting and remitting Wyoming sales tax on occasional sales, defined by Wyoming Department of Revenue Rules, Chapter 2, Section 3 (hh) as “a single event occurring four or fewer times in a calendar year,” utilizing the “Wyoming Occasional Sales Tax Return for Occasional Sales” ETS Form 13. This form is located at the following link: This form is also available on our website, . In the red horizontal banner, click on “Forms.” Under the heading “Excise (Sales, Use, Cigarette and Estate Tax),” click on the link for “Sales/Use Tax Returns (Forms, Worksheets and Examples).” In the menu that appears, click on “Wyoming Occasional Sales Tax Return for Occasional Sales Form 13a.”  Vendors that sell goods at four or fewer events a year would be allowed to report utilizing the above form.  In order to report occasional sales the vendor would need to complete a temporary business permit located at the following link: This form is also available on our website, . In the red horizontal banner, click on “Forms.” Under the heading “Excise (Sales, Use, Cigarette and Estate Tax),” click on the link for “Sales/Use Tax License Application Forms. In the menu that appears, click on “Application for Temporary Business Operations (ETS Form 001.1). ”  

Prepared food, beverages, clothing, crafts, etc. would all be subject to sales tax. Unless an exemption exists, Wyoming imposes sales tax on and on all items of tangible personal property sold in this state. [W.S. 39-15-103(a)(i)(A); W.S. 39-15-103(a)(i)(F); ); ] Tangible personal property is “…all personal property that can be seen, weighed, measured, felt or touched, or that is in any other manner perceptible to the senses. “Tangible personal property" includes electricity, water, gas, steam and prewritten computer software…” [W.S. 39-15-101(a)(ix)] 

Please note, Wyoming does administer an exemption for “…food for domestic home consumption…” [W. S. 39-15-105(a)(vi)(E)] Wyoming Department of Revenue Rules, Chapter 2, Section 3(v) provides the following definition, in pertinent part:   

“Food for domestic home consumption” means substances, whether liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. Food for domestic home consumption includes dietary supplements and does not include alcoholic beverages, tobacco, prepared foods or food sold through vending machines.  

[W.S. 39-15-105(a)(vi)(E); WY Dept of Rev Rules, Chap 2, Sec 3(v)] However, while produce is an exempt item, it specifically excludes food intended for immediate consumption, prepared foods and foods sold through vending machines. Typically food sold by concessioners is for immediate consumption.  In addition, prepared foods means those items which are sold in a heated state or are heated by the seller; two or more ingredients mixed or combined by the seller for sale as a single item and/or those food sold with eating utensils provided by the seller

Please visit the “What’s New” section of our website for information regarding any upcoming free sales/use tax seminars that may be of interest to you.

We trust we have answered your questions. If you need any further assistance, please contact our office by phone at 307-777-2459 or email at DOR_Taxability@state.wy.us

Supporting Authority –

W.S. 39-15-105(a)(vi)(E) exempts:

     Sales of food for domestic home consumption.  

W.S. 39-15-101(a)(ix) states:

Tangible personal property means all personal property that can be seen, weighed, measured, felt or touched, or that is in any other manner perceptible to the senses. “Tangible personal property” includes electricity, water, gas, steam and prewritten computer software; and includes any controlled substances as defined by W.S. 35-7-1002(a)(iv) which are not sold pursuant to a written prescription of or through a licensed practitioner as defined by W.S. 35-7-1002(a)(xx). 

W.S. 39-15-103(a)(i)(A) states, there is levied an excise tax upon:

The sales price of every retail sale of tangible personal property within the state. 

W.S. 39-15-103(a)(i)(F) states, there is levied an excise tax upon: 

The sales price paid for meals and cover charges at any place where meals are regularly served to the public;

W.S. 39-15-101(a)(xv) states:

“Vendor” means any person engaged in the business of selling at retail or wholesale tangible personal property, admissions or services which are subject to taxation under this article. “Vendor” includes a vehicle dealer as defined by W.S. 31-16-101(a)(xviii). 

Wyoming Department of Revenue Rules, Chapter 2, Section 3(p) states:

“Dietary Supplement” means any product, other than “tobacco” intended to supplement the diet that:

      (i.) Contains one or more of the following dietary ingredients:

      (A.) A vitamin;

      (B.) A mineral;

      (C.) An herb or other botanical;

      (D.) An amino acid;

(E.) A dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or

(F.) A concentrate, metabolite, constituent, extract, or combination of any ingredient described in above; and is intended for ingestion in tablet, capsule, powder, softgel, gelcap or liquid form, or if not intended for ingestion in such a form, is not represented as conventional food and is not represented for use as a sole item of a meal or of the diet; and is required to be labeled as a dietary supplement, identifiable by the ASupplemental Facts@ box found on the label and as required pursuant to 21 C.F.R. ' 101.36. 

Wyoming Department of Revenue Rules, Chapter 2, Section 3(v) states:

“Food for domestic home consumption” means substances, whether liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. Food for domestic home consumption includes dietary supplements and does not include alcoholic beverages, tobacco, prepared foods or food sold through vending machines.

(i.) Prepared foods are foods generally intended for, and which are ready for immediate consumption.

(A.) Prepared food means food sold in a heated state or heated by the seller; two or more food ingredients mixed or combined by the seller for sale as a single item; or food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport the food.

      (B.) Prepared food does not include:

(1.) Food that is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the Food and Drug Administration in chapter 3, part 401.11 of its Food Code so as to prevent food borne illnesses.

(2.) Food sold in an unheated state by weight or volume as a single item;

(3.) Food sold by a seller whose proper primary NAICS classification is food manufacturing; or

(4.) Bakery items, including bread, rolls, buns, biscuits, bagels, croissants, pastries, donuts, Danish, cakes, tortes, pies, tarts, muffins, bars, cookies or tortillas which are sold for other than immediate consumption.

(5.) Dietary Supplements including vitamins, minerals, botanicals, amino acids and other substances used to enhance dietary health. 

Wyoming Department of Revenue Rules, Chapter 2, Section 3 (hh) defines:

“Occasional Sale” as used in Section 9 means a single event occurring four or fewer times

The Wyoming Taxpayer Bill of Rights limits liability to tax when a taxpayer has relied upon erroneous written information or answers from the state. Penalty and interest are not assessed if the pertinent facts disclosed by the taxpayer were substantially correct and complete. [W.S. 39-11-102(a)(i)(D)]

Sincerely,

Kristen Tafoya Terri Lucero, Manager

Program Coordinator Education & Taxability

Excise Tax Division Excise Tax Division

ORIGINAL CORRESPONDENCE

Hi Terri,

I am resending this.  Our first market is May 31st and I would like to get this info to the Vendors prior to the Market.

Could you please respond.

Thanks.

Maggie Palmer

[pic]

From: Pinedale Farmers Market [mailto:pinedalefarmersmarket@]

Sent: Tuesday, May 05, 2009 8:26 AM

To: 'dor_taxability@state.wy.us'

Subject: Regulations for Farmers Market Vendors

Terri Lucero,

I am trying to put together a Vendor Packet for our Pinedale Farmers Market.  I would like to have a definitive answer on which vendors, if any, need a Sales Tax License and what the filing requirements are.

We have Vendors that are Farmers, only selling produce, Vendors that will be selling packaged foods that need to be prepared at home (i.e. bake mixes, pack food), Vendors that will be selling baked goods that can be eaten at market or taken home, Vendors that sell their Crafts.

I have heard conflicting information regarding who needs to have a license and what kind of returns, if any, need to be filed.  I am hoping you can clarify this, in writing via email, for us, so that I can disseminate the information to our Vendors.

Thanking you in advance for your time.

Maggie Palmer

Market Manager

Pinedale Farmers Market

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