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Why Is a Burrito a Sandwich in New York? – Wacky Tax Wednesdays

I am not a sandwich connoisseur. Still, I've eaten enough sandwiches during the last 45 +/- years to feel certain I know what a sandwich is. It has two pieces of bread (unless it’s an open face sandwich, when it has only one piece of bread) and it has yummy stuff inside (or on top).

Merriam-Webster backs me up: “two pieces of bread with something (such as meat, peanut butter, etc) between them” or “one slice of bread covered with food.” The Oxford Dictionary agrees but the Urban Dictionary takes a broader approach, calling a sandwich “a food commonly used by men to oppress women.” But I digress.

The sandwich is named after the Earl of Sandwich, an 18th century nobleman with a weakness for the gaming tables. He took his food sandwich style so as not to have to stop his play (or look away from his fellow players). And I’ll bet you a sandwich that the Earl did not eat burritos.

Why, then, is a burrito a sandwich in New York State?

Planet Money tackled this question with its typical verve, trying to stump a sales tax expert and getting gleeful over the fact that “a burrito is legally a sandwich” in New YorkEpisode 554: How the Burrito Became a Sandwich explores the “but wait” moment, the moment when an exception to the rule (or exemption to the tax) is born.

The birth of an exemption

Sales tax was born during the Great Depression, when states were in especially dire need of revenue. Initially, the tax applied to all sales of food. Soon after came the Planet Money “But wait moment.” Many states started exempting from sales tax food purchased for home consumption (groceries) under the assumption that people who dine out have more disposable income and are better able to afford the tax than people who stay home and cook. And so it began.

Fast forward to contemporary New York State, where “sandwiches are generally subject to sales tax.” According to the New York State Department of Finance and Taxation:

“Sandwiches include cold and hot sandwiches of every kind that are prepared and ready to be eaten, whether made on bread, bagels, on rolls, in pitas, in wraps, or otherwise, and regardless of the filling or number of layers. A sandwich can be as simple as a buttered bagel or roll, or as elaborate as a six-foot, toasted submarine sandwich.”

The department provides a lengthy list of “common sandwiches.” In addition to the usual suspects, the list includes:

  • Bagel sandwiches (served buttered or with spreads, or otherwise…)
  • Burritos
  • Wraps

There is undoubtedly a long and interesting story about how the burrito became a sandwich in New York. The Planet Money podcast explores how a New York pizzeria added “Baking Company” to its name after noticing that bakeries could sell pizza slices without charging tax. The result? Pizza slices that are not reheated or kept warm are tax exempt. Planet Money also shared the tale of a home food delivery service that served unassembled wraps in order to avoid charging sales tax. When the wraps were assembled, sales tax applied.

The history behind exemptions can be fun to uncover but taxability is not just about fun. When the auditor comes knocking, retailers need to know what is taxable under current law and what is exempt. At issue is not so much how the burrito became a sandwich in New York, but the fact that New York retailers must collect tax when selling them.

Burritos are not sandwiches in Massachusetts

Now consider the fact that in Massachusetts, the burrito is not a sandwich. We know this because Panera Restaurant took its Massachusetts landlord to court when the landlord allowed Qdoba — a seller of tacos, burritos and quesadillas — to rent space in the same shopping center as Panera. Panera had signed a contract with the landlord whereby:

“Landlord agrees not to enter into a lease… affecting space in the Shopping Center or consent to an amendment to an existing lease permitting use… for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales…” (Emphasis added).

Perhaps because the definition of a sandwich seems self-evident, the lease did not define sandwiches. However, when Panera learned Qdoba would become a neighbor, it argued that “tacos, burritos and quesadillas fell within meaning of ‘sandwiches’ and therefore [the landlord] was prohibited from leasing…” to Qdoba under the terms of the lease. It took its landlord to court.

The court ruled the following:

“Given that the term ‘sandwiches’ is not ambiguous and that the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. The New Webster Third International Dictionary describes a ‘sandwich’ as ‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.”… Under this definition and as dictated by common sense, this court finds that the term ‘sandwich’ is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.”

But wait

Ah, but had the court referred to the Oxford Encyclopedia of Food and Drink in America, it would perhaps have ruled differently. According to the above:

“During the 1990s, wraps became a popular new form of sandwich in the United States.”

As a sandwich-obsessed Harvard student noted, Oxford cross-referenced sandwiches to wraps and wraps to sandwiches. It should also be noted, I think, that Oxford Encyclopedia of Food and Drink in America Editor in Chief, Andrew F. Smith, teaches culinary history at The New School in Manhattan. Which is in New York. Where the burrito is a sandwich. Aha!

It all boils down to where the sandwich is cut (or the burrito is served)

One of the beautiful, if frustrating, aspects of the United States is that states have the power to let their personalities shine. In New York, a burrito is a sandwich and subject to tax. In Massachusetts, a burrito is not a sandwich. Is it subject to sales tax?

Well, wouldn’t you like to know?

photo credit: jeffreyw via photopin cc[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Corrected 12.18.17. An earlier version of this post referred to Qbera instead of Qdoba.

Sales tax rates, rules, and regulations change frequently. Although we hope you'll find this information helpful, this blog is for informational purposes only and does not provide legal or tax advice.
Avalara Author
Gail Cole
Avalara Author Gail Cole
Gail Cole began researching and writing about sales tax for Avalara in 2012 and has been fascinated with it ever since. She has a penchant for uncovering unusual tax facts, and endeavors to make complex sales tax laws more digestible for both experts and laypeople.