LR 8316
Taxability of Marketplace Facilitator Sales of Food and Beverage to Missouri Customers
August 30, 2024
Dear Applicant:
This is a letter ruling issued by the Director of Revenue under Section 536.021.10, RSMo, and Missouri Code of State Regulations 12 CSR 10-1.020, in response to your letter dated July 17, 2024.
The facts as presented in your letter ruling request and from your website are summarized as follows:
Applicant is an online ordering company that allows customers to order meals and beverages from restaurants through Applicant's website or mobile app. The restaurant then prepares the food for the customer.
ISSUE 1:
Is Applicant required to collect and remit Missouri sales tax as a Marketplace Facilitator on sales to Missouri diners, from in-state (Missouri) restaurants?
RESPONSE 1:
No. Applicant is not required to collect and remit Missouri sales tax as a Marketplace Facilitator for a Missouri restaurant with sales to Missouri diners. Applicant may transfer sales taxes collected on behalf of Missouri restaurants to those restaurants, but those Missouri restaurants are the sellers with primary reporting and remittance obligations under Missouri sales tax law.
Section 144.020.1(6), RSMo, imposes a tax upon "... sales or charges for all rooms, meals and drinks furnished at any hotel, motel, tavern, inn, restaurant, eating house, drugstore, dining car, tourist cabin, tourist camp or other place in which rooms, meals or drinks are regularly served to the public."
Section 144.018.3, RSMo, provides:
For purposes of subdivision (6) of subsection 1 of section 144.020, a hotel, motel, tavern, inn, restaurant, eating house, drugstore, dining car, tourist cabin, tourist camp, or other place in which rooms, meals, or drinks are regularly served to the public shall remit tax on the amount of sales or charges for all rooms, meals, and drinks furnished at such hotel, motel, tavern, inn, restaurant, eating house, drugstore, dining car, tourist cabin, tourist camp, or other place in which rooms, meals, or drinks are regularly served to the public. (Emphasis Added).
As stated above, the responsibility of the restaurant to remit the tax is a mandatory requirement. Applicant is not responsible as a Marketplace Facilitator under Section 144.752, RSMo, because that is specific to the collection of use tax for goods delivered into this state. An order from a Missouri restaurant to a Missouri customer does not involve the delivery of goods 'into this state,' and is subject to sales tax.
ISSUE 2:
Is Applicant required to collect and remit Missouri use tax as a Marketplace Facilitator on sales to Missouri diners, delivered from out-of-state restaurants?
RESPONSE 2:
Yes. Applicant is required to collect and remit Missouri use tax as a Marketplace Facilitator for out-of-state restaurant orders that are being delivered into Missouri.
Section 144.752, RSMo, provides:
(1) Beginning January 1, 2023, marketplace facilitators that engage in business activities within this state shall register with the department to collect and remit use tax, as applicable, on sales made through the marketplace facilitator's marketplace by or on behalf of a marketplace seller that are delivered into the state[.]
According to Applicant, they are a Marketplace Facilitator. As a Marketplace Facilitator for orders from out-of-state being delivered into the state, they would be responsible for collecting and remitting use tax. If the customer picks up the food from the out of state restaurant, no Missouri tax would be due.
This letter ruling is binding upon the Department of Revenue with respect to the Applicant for three (3) years from the date of this letter and is subject only to statutory changes by the General Assembly and to changes in the interpretation of law by the courts or administrative tribunals. If a change occurs, the taxpayer who relies upon an outdated interpretation may be subject to additional taxes, interest and penalties, which may be imposed prospectively from the date of the change. For this reason, the interpretation set forth above should be reviewed on a regular basis. Please note that any change in or deviation from the facts as presented will render this ruling inapplicable.
Should additional information be needed, please contact Associate Counsel J. Ross Shelton General Counsel's Office, Post Office Box 475, Jefferson City, Missouri 65105-0475, phone (573) 751-0961.
Sincerely,
Wayne Wallingford