• New Yorkers, Order Away - Restaurant Website Operator Not Subject to Sales Tax on Fees
  • September 25, 2014 | Authors: Timothy A. Gustafson; Jessica L. Kerner
  • Law Firms: Sutherland Asbill & Brennan LLP - Sacramento Office ; Sutherland Asbill & Brennan LLP - New York Office
  • The New York Department of Taxation and Finance advised a website operator, through which restaurants offer meals for sale, that it was not subject to sales tax on the fees it charged to the restaurants for services provided. The website allows approximately 5,000 restaurants in more than 27 cities to offer food for sale and customers to pay for the food online. When a customer places an order through the website, the customer remits payments for the meal and sales tax to the website operator. The website operator, in turn, remits the funds collected from the customer to the restaurant, retaining a marketing service fee. The restaurant is responsible for remitting sales tax to the appropriate taxing authority. The website operator also charges restaurants a one-time activation fee, a menu update fee and a fixed monthly marketing partnership fee. In return, the website operator compiles, drafts and displays information about the restaurant on the website. The Department determined the website operator provides Internet advertising services and fulfillment services to the restaurants and, as such, is not a vendor of restaurant sales. Further, the Department concluded that as a provider of fulfillment services, the website operator cannot be treated as a co-vendor that is jointly responsible for the sales tax because New York statutes prohibit an unaffiliated provider of fulfillment services from being treated as a vendor. TSB-A-14(27)S, 8/20/14 (released 8/29/14).