Service Fees of Website Offering Meals Not Taxable in New York

A taxpayer that operates a website through which restaurants offer meals for sale is not subject to New York sales tax on the service fees it charges to participating restaurants because the taxpayer is not a vendor and cannot be designated as a co-vendor on the restaurant sales. Customers can order and pay for their meals from restaurant’s through the taxpayer’s website. When a meal is ordered, the payment submitted to the taxpayer by the customer includes sales tax. The taxpayer remits all funds collected from the customer to the restaurant, minus marketing services fees. The selling restaurant is responsible for remitting any sales tax collected. The selling restaurant is also responsible for delivering the meals and maintains possession, control and care of all items being offered for sale on the taxpayer’s website. The taxpayer charges restaurants an activation fee and a menu update fee. It also charges a fixed monthly marketing partnership fee, in exchange for which the taxpayer will use commercially reasonable efforts to compile, write, and display general information about the restaurant. The taxpayer is not operating a restaurant or similar establishment or providing catering services. The taxpayer is providing internet advertising services and fulfillment services to the restaurants. The advertising and fulfillment services do not make the taxpayer the vendor of the restaurant sales for New York sales tax purposes. Since the taxpayer is providing fulfillment services, it cannot be treated as a co-vendor, jointly responsible with the restaurants for collecting sales tax. If the taxpayer fails to remit to a restaurant the full New York sales tax that the taxpayer collected on behalf of the restaurant, the Department of Taxation and Finance reserves the right to collect those funds from the taxpayer under the doctrine of money had and received. Since the services provided by the taxpayer are not subject to sales tax, the taxpayer is not required to collect sales tax on these charges. (TSB-A-14(27)S, New York Commissioner of Taxation and Finance, August 20, 2014)

Posted on November 21, 2014