§ 60.17. Sale of food and beverages by nonprofit associations which
support sports programs.

 (a)  Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

   Fixed location—A permanent structure or building.

   Nonprofit association——

     (i)   An entity which is organized as a nonprofit corporation or nonprofit unincorporated association under the laws of the Commonwealth or the United States.

     (ii)   An entity which is authorized to do business in this Commonwealth as a nonprofit corporation or unincorporated association under the laws of the Commonwealth, and which is organized and operated on a nonprofit basis, including the following associations or separately chartered auxiliaries thereof:

       (A)   Youth or athletic.

       (B)   Volunteer fire.

       (C)   Ambulance.

       (D)   Religious.

       (E)   Charitable.

       (F)   Fraternal.

       (G)   Veterans.

       (H)   Civic.

   Public property—Real property which is owned or leased by one of the following:

     (i)   A county, municipality or school district.

     (ii)   An authority of a county or municipality.

   Sports program—Subject to the limitations set forth in subparagraph (ii), a sports program shall include:

     (i)   Baseball, softball, football, basketball, soccer and other competitive sports formally recognized as a sport by one or more of the following:

       (A)   The United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978 (36 U.S.C.A. § §  371—396).

       (B)   The Amateur Athletic Union.

       (C)   The National Collegiate Athletic Association.

     (ii)   The term is limited to a program or that portion of a program which meets the following criteria:

       (A)   Organized for recreational purposes and conducts activities substantially for these purposes.

       (B)   Organized primarily for participants who are 18 years of age or younger or whose 19th birthday occurs during the year of participation or the competitive season, whichever is longer. There is no age limitation for programs operated for persons with physical handicaps or persons with mental retardation.

   Support—The term means the following:

     (i)   The nonprofit association sells food and beverages and uses the funds raised solely to pay the expenses of a sports program.

     (ii)   The nonprofit association sells food and beverages at a fixed location on public property where a sports program is being conducted.

 (b)  Scope.

   (1)  The sale of food and beverages by nonprofit associations which support sports programs is not subject to tax.

   (2)  The following are examples of taxable sales by nonprofit associations which support sports programs:

     (i)   ‘‘C’’ charitable association operates a food stand at soccer games on public property where food and beverages are sold to fans. The food stand is not a permanent structure or building but consists of a folding table and chairs as well as other movable objects and pieces of equipment. Sales of food and beverages by ‘‘C’’ to fans are taxable since these sales are made from a temporary structure rather than a fixed location.

     (ii)   ‘‘Y’’ youth association sells food and beverages to fans from a fixed location on private property where league baseball games are played. Sales of food and beverages by ‘‘Y’’ to fans are taxable since the food stand is not located on public property.

   (3)  The following are examples of taxable and nontaxable sales by nonprofit associations from fixed locations on public property:

     (i)   ‘‘F’’ fraternal association sells food and beverages to fans from a food stand located on university property where basketball games are played by members of the various fraternities, most of whom are 20 years of age or older. Sales of food and beverages by ‘‘F’’ to fans are taxable since the sports program is primarily for participants who are older than 18 years of age.

     (ii)   ‘‘A’’ charitable association operates a food stand four times a year at a public park where food and beverages are sold to raise funds solely to pay the expenses of a sports program. Since the funds raised from the sales of food and beverages by ‘‘A’’ are used solely to support sports programs, these sales are not subject to tax even though they are made from a location other than where the sports program is being conducted.

 (c)  Equipment and supplies.

   (1)  A vendor of food or beverages (which is not otherwise an exempt organization under §  32.21 (relating to charitable, volunteer firemen’s and religious organizations, and nonprofit educational institutions)) is required to pay tax upon the purchase of utilities, equipment, fixtures, utensils—such as glasses, knives and forks, and nondisposable plates and cups—table cloths, napkins, straws, returnable containers and related supplies.

   (2)  The purchase of the following items in connection with the sale of food or beverages is exempt from tax regardless of whether the purchaser is an exempt entity under §  32.21:

     (i)   Prepared or nonprepared food and beverages for resale.

     (ii)   Wrapping supplies as defined by §  32.1 (relating to definitions).

   (3)  The following examples illustrate what items are and are not subject to tax:

     (i)   In connection with the sale of food and beverages at a food stand on public property where a sports program is being conducted, ‘‘N’’ nonprofit association provides tables and chairs for its customers to use. ‘‘N’’ is not an exempt organization under §  32.21. ‘‘N’’ shall pay tax on these items at the time of purchase and may not claim the resale exemption even though the invoices separately state the charges for these items.

     (ii)   In connection with the sale of food and beverages at a food stand on public property where a sports program is being conducted, ‘‘X’’ nonprofit association provides to its customers paper plates, styrofoam cups, straws, paper napkins, and plastic knives, forks and spoons. ‘‘X’’ is not an exempt organization under §  32.21. ‘‘X’’ can purchase paper plates and styrofoam cups exempt from tax on the basis that these items qualify as wrapping supplies. ‘‘X’’ shall pay tax upon the purchase of straws, paper napkins, and plastic knives, forks and spoons.

   The provisions of this §  60.17 adopted August 25, 1995, effective August 26, 1995, 25 Pa.B. 3493.