Meals sold in disposable packaging are treated as sale of goods under the Retail Sales Tax Act

The Administrative Court in Warsaw issued a judgment on 30 January 2023 concerning the classification of meals sold in disposable packaging in view of the Retail Sales Tax Act.

Retail sales tax (RST) is levied on revenue from retail sale of goods, that is, goods sold to consumers for a consideration.

The taxable base is the surplus revenue from retail sale over 17 million zloty in a month. The revenue is calculated on the basis of the turnover recorded in cash registers in the meaning of the VAT Act.

The legislative act introducing RST provides for two tax rates:

The court resolved the doubts on whether the company should have included sales of food and beverage (F&B) services in restaurants in the taxable base for the RST purposes. 

The case involved a company which conducted sale in outlets around Poland. As part of its business, it provided also F&B services. As a rule, restaurant meals, which were prepared by the restaurant staff, were served on durable plates to be consumed directly on site. However, the meals were sometimes served in disposable take-away containers at the customer’s request. This meant that customers might consume them outside the restaurant premises. The company treated the sale in restaurants as F&B services for VAT purposes. Consequently, it did not include income from sale of the F&B services in the taxable base for RST purposes. 

The company claimed that the transactions subject to retail sales tax included exclusively sale of tangible moveable goods. As a consequence, its sale of F&B services could not be treated as such even if the services went with the sale of meals in disposable packaging. 

The court did not agree with the company in its judgment. It held that the company’s practice of not including the sales of meals in disposable packaging in the revenue from sale of goods was wrong. 

The court thus shared the view of the Head of the National Revenue Information Service who argued that in the case of meals sold in disposable packaging the buyer declared in advance that he was not interested in the service but in the product being the meal. In such a case, there was no intangible service for the customer that would make the supply a supply of services. 

The court held that the situation of a person who purchased a product in the form of a meal in disposable packaging was more akin to sale of goods than F&B services, and should have been treated as such. 

Following the judgment discussed above, sale of meals in disposable packaging should be classified as a supply of goods, instead of a supply of F&B services, for retail sales tax purposes.

Consequently, revenue from sale of meals in disposable packaging will increase the taxable base for RST purposes. 

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