Don’t tax my yogurt

New Roche Bros. store taxes items by where they're bought, not what they are

FOR MANY, the new Roche Bros. supermarket in the old Filene’s building at Boston’s Downtown Crossing is manna from heaven. There is a large full-service grocery store in the old Filene’s Basement, and at street level, Roche Bros. has opened a ready-to-eat section for breakfast, lunch, and dinner featuring a salad bar, a hot food bar, and cases full of beverages, yogurt, snacks, and cut fruit.

But there’s an odd upstairs/downstairs disconnect on taxes at Roche Bros. A 5.3-ounce single-serve container of Chobani yogurt purchased downstairs costs $1.99. Upstairs, a short escalator ride away, the same Chobani yogurt costs $1.99 plus 14 cents in added meals tax.

Similarly, a bag of Farmer’s Crate Baked Coconut Thins costs $3.99 downstairs, while upstairs the same bag goes for $3.99 plus 27 cents tax.

Overall, the price tag for five items purchased downstairs came to $10.33. Upstairs, the five items cost exactly the same, but an extra 72 cents was assessed in taxes. Even the nickel deposit on a bottle of Poland Spring Sparkling Water was added into the taxable total upstairs, despite state regulations that exempt sealed beverages and bottle deposits from taxation.

Roche Bros. charges the same price for these items upstairs and downstairs at the Downtown Crossing store but adds tax to everything purchased upstairs.

Roche Bros. charges the same price for these items upstairs and downstairs at the Downtown Crossing store but adds tax to everything purchased upstairs.

Another Roche Bros. customer says she stopped by the store on the way home one evening and was in line downstairs when an employee helpfully suggested people could bring their items upstairs where there was no line at that time. She brought her items upstairs, where the cashier told customers that everything, including staples such as bread and milk, would be charged tax because that’s how the registers upstairs were set up.

Roche Bros. officials say most items sold upstairs at their ready-to-eat section are taxed to comply with state regulations requiring the collection of meals taxes on any prepared foods to be consumed as part of a meal. The state meals tax is 6.125 percent and Boston adds a .75 percent local option tax.

“The meals tax regulations are fairly complex and a little ambiguous at the same time,” says Paul McGillivray, the Roche Bros. vice president of sales and marketing. “It is the responsibility of the retailer to apply them.”

According to state tax regulations, grocery stores, convenience stores, and supermarkets have to charge meals tax “if the items are sold in a manner that constitutes a meal.” Among those items deemed taxable are hot meals, prepared foods, and entrees, even if refrigerated, if the store has a microwave or oven for reheating. Also taxable are beverages such as coffee or soda that are poured, and unpackaged snacks or baked goods.

Among some of the items deemed nontaxable are unopened beverages in a container if consumed off-premises; unopened, manufacturer-sealed snacks; or six or more of a baked good item.

Roche Bros. at Downtown Crossing appears to be taxing items based more on where they are sold rather than what they are. The reasoning behind that approach appears to be that people using the upstairs Roche Bros. are there to purchase ready-to-eat items.

Fashioning a supermarket tax policy isn’t easy. Many stores, for example, have salad bars. Customers who scoop up cut fruit at the salad bar will pay tax on the purchase because it’s considered a meal. But purchasing cut fruit in a container in the produce aisle won’t result in added tax. Supermarket delis sell sliced meats that are not taxed, but they also can use sliced meats to make a sandwich, which is taxable.

McGillivray acknowledged the tax on the bottle deposit was an error and said that while the employee downstairs engaged in “well-intentioned customer service” in shepherding people to where there were no lines, the store will begin posting signs to inform people that meals taxes will be charged on all items rung up at the street level.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is a veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

About Jack Sullivan

Jack Sullivan is a veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

McGillivray, who has worked at Roche Bros. for 40 years, says tax laws have evolved over the years. Initially, he says, there were no taxes on food sold at supermarkets but then the rules were changed so taxes were levied on items that resembled meals. He says supermarkets have also shifted more to items that can be consumed on the spot, making the line between what is and what is not taxable somewhat blurry.

“I think it’s more that the supermarket has changed over the years,” he says. “There is a larger element of stores offering prepared foods than there were 20, 25 years ago.”