Nev. Admin. Code § 372.607 — 372.607

NAC 372.607    Food: Determination whether food sold at retail by seller is sold
with eating utensils provided by seller; method for calculating percentage of
prepared food sold by seller. ( NRS
360.090 , 360B.110 , 372.284 ,
372.725 )    For the
purpose of determining whether food sold at retail by a seller is a food sold
with eating utensils provided by the seller pursuant to subsection 3 of NRS 360B.460 and NAC 372.605 :
1.  Except as otherwise provided in
subsection 2, a seller who made retail sales of prepared food during a tax year
or business fiscal year, whichever is selected by the seller, as soon as
practicable after accounting records for that tax year or business fiscal year,
as applicable, are available to the seller but not later than 90 days after the
beginning of the seller’s next tax year or business fiscal year, as applicable,
shall calculate a percentage by:
(a) Calculating the sum of:
(1) The total dollar value of all retail sales
of food which is described in subsection 1 of NRS 360B.460 and which was sold at
retail by the seller during the immediately preceding tax year or business fiscal
year, as applicable;
(2) The total dollar value of all retail sales
of food which is described in subsection 2 of NRS 360B.460 and which was sold at
retail by the seller during the immediately preceding tax year or business
fiscal year, as applicable; and
(3) The total dollar value of all retail sales
of food which is incapable of being transferred to the purchaser without the
use of a plate, bowl, glass or cup, including, without limitation, soft drinks
dispensed from a fountain and food dispensed at a salad bar, and which was sold
at retail by the seller during the immediately preceding tax year or business
fiscal year, as applicable; and
(b) Dividing the amount calculated pursuant to
paragraph (a) by the total dollar value of all retail sales of food by the
seller, including, without limitation, prepared food, candy, soft drinks and
dietary supplements.
Ê If, during a
tax year or business fiscal year, as applicable, a seller made retail sales of
any type of food described in paragraph (a) at more than one establishment, the
seller must perform the calculation required by this subsection for each
establishment and, for the purposes of this section, use the average of those
calculations as the percentage of the seller’s sales of food that were sales of
prepared food.
2.  If a seller did not make any retail sales
of prepared food during the immediately preceding tax year or business fiscal
year, whichever is selected by the seller, or is a new business and the seller
intends to make retail sales of prepared food during the seller’s current tax
year or business fiscal year, the seller must calculate a percentage by:
(a) Calculating the sum of:
(1) An estimate of the total dollar value of
all retail sales of food which is described in subsection 1 of NRS 360B.460 and which the seller
expects to sell at retail during the current tax year or business fiscal year,
as applicable;
(2) An estimate of the total dollar value of
all retail sales of food which is described in subsection 2 of NRS 360B.460 and which the seller
expects to sell at retail during the current tax year or business fiscal year,
as applicable; and
(3) An estimate of the total dollar value of
all retail sales of food which is incapable of being transferred to the
purchaser without the use of a plate, bowl, glass or cup, including, without
limitation, soft drinks dispensed from a fountain and food dispensed at a salad
bar, and which the seller expects to sell during the current tax year or
business fiscal year, as applicable; and
(b) Dividing the amount calculated pursuant to
paragraph (a) by an estimate of the total dollar value of all retail sales of
food, including, without limitation, prepared food, candy, soft drinks and
dietary supplements, which the seller expects to make during the current tax
year or business fiscal year, as applicable.
Ê If a seller
described in this subsection intends to make retail sales of any type of food
described in paragraph (a) at more than one establishment, the seller must
perform the calculation required by this subsection for each such establishment
and, for the purposes of this section, use the average of those calculations as
the percentage of the seller’s sales of food that will be sales of prepared
food. If the actual retail sales of prepared food by a seller described in this
subsection during the first three months of such sales materially affect the
calculation required by this subsection, the seller must perform the
calculation required by this subsection using reasonable revised estimates and,
for the purposes of this section, use that calculation as the percentage of the
seller’s sales of food that will be sales of prepared food.
3.  If the percentage calculated by a seller
pursuant to subsection 1 or 2, as applicable, is 75 percent or less, food sold
at retail by the seller is deemed to be food sold with eating utensils provided
by the seller:
(a) If the practice of the seller for sales of that
food, as represented by the seller, is to directly give or hand a utensil to
the purchaser to use to consume the food being sold; or
(b) If the food being sold is incapable of being
transferred without the use of a plate, bowl, glass or cup and the practice of
the seller, as represented by the seller, is to make plates, bowls, glasses or
cups available to the purchaser of such food, including, without limitation, by
permitting a purchaser to obtain such plates, bowls, glasses or cups at a kiosk
or common area.
4.  If the percentage calculated by a seller
pursuant to subsection 1 or 2, as applicable, is more than 75 percent, food
sold at retail by the seller is deemed to be food sold with eating utensils
provided by the seller if the seller:
(a) Directly gives or hands a utensil to the
purchaser to use to consume the food being sold; or
(b) Makes utensils available to the purchaser,
including, without limitation, by permitting the purchaser to obtain utensils
at a kiosk or common area.
5.  A seller who makes retail sales of
prepared food shall maintain records in accordance with NRS 372.735 which are adequate to
substantiate the calculations made by the seller pursuant to this section.
(Added to NAC by Tax Comm’n by R056-18, eff. 6-8-2020)
REVISER’S NOTE.
The regulation of the Nevada Tax Commission filed with
the Secretary of State on June 8, 2020 (LCB File No. R056-18), the source of
this section, contains the following provision not included in NAC:
“Sec. 3.  This regulation, LCB File
No. R056-18, is hereby amended by adding thereto the following transitory
language which has the force and effect of law but which will not be codified
in the Nevada Administrative Code:
1.  Notwithstanding the provisions of
section 1 of this regulation [ NAC 372.607 ],
a seller who made retail sales of prepared food during the tax year or business
fiscal year, whichever is selected by the seller, immediately preceding the tax
year or business fiscal year, as applicable, in which this regulation becomes
effective shall, not later than 90 days after the date on which this regulation
becomes effective [June 8, 2020], perform the calculation required by subsection
1 of section 1 of this regulation [ NAC
372.607 ].
2.  The Department of Taxation will
enforce the provisions of subsections 3 and 4 of section 1 of this regulation [ NAC 372.607 ] beginning 90 days after the
date on which this regulation becomes effective [June 8, 2020]. The Department
will not enforce the provisions of subsections 3 and 4 of section 1 of this
regulation [ NAC 372.607 ] prior to that
date.
3.  The Department shall post notice of:
(a) The date by which a seller who made retail
sales of prepared food during the tax year or business fiscal year, whichever
is selected by the seller, is required to make the initial calculation required
by subsection 1 of section 1 of this regulation [ NAC 372.607 ]; and
(b) The date on which the Department is required
to begin enforcing the provisions of subsections 3 and 4 of section 1 of this
regulation [ NAC 372.607 ] pursuant to
subsection 2,
Ê on the
Internet website of the Department and make such other efforts to notify
sellers of those dates as the Executive Director of the Department deems
appropriate. The failure of a seller to receive notice of the dates pursuant to
this subsection does not exclude the seller from compliance with any
requirement relating to the imposition, collection and remittance of sales and
use taxes.”