percentage is materially different from the estimated percentage.
For retailers with more than one es- tablishment in Wisconsin, a single determination that combines the in- formation for all of the retailer’s es- establishments in Wisconsin shall be made annually, and will apply to all of the retailer’s establishments in Wisconsin.
(1) If the percentage determined under Part II.D.4.(a)(2) on page 13 is 75% or less, utensils are only considered to be provided by the retailer if the re- tailer’s customary practice is to physically give or hand the utensils to the purchaser, except that in the case of plates, bowls, glasses, or cups that are necessary to receive the food, such items need only be made availa- ble to the purchaser.
If the percentage determined under Part II.D.4.(a)(2) on page 13 is great- er than 75% and utensils are made available to the purchaser, all of the retailer’s sales of food and food in- gredients will be considered sales of prepared food. Exception: An item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price is only pre- pared food if (1) the retailer physically gives or hands utensils to the purchaser, (2) the retailer makes plates, bowls, glasses, or cups that are necessary for the purchaser to receive the food available to the purchaser,
the item is sold heated, or (4) the package contains a utensil placed in it by a person other than the retailer or manufacturer.
Serving sizes are based on the infor- mation contained on the label of each item sold, except that, if the item sold has
no label, the serving size is based on the retailer’s reasonable determination.
Example: Restaurant operates a restaurant and a small convenience store within the restau- rant. Its sales of prepared food are greater than 75% of its total sales of food and food ingredi- ents. Restaurant makes various eating utensils available in its convenience store. Customer enters the convenience store and purchases a single serving container of chocolate milk and a gallon container of 2% milk. The gallon con- tainer of 2% milk contains 4 or more servings. Restaurant’s customary practice for sales in its convenience store is to not physically give utensils to a customer who purchases contain- ers of milk. Since the milk products purchased are prepackaged, plates, bowls, glasses, or cups are not necessary for the purchaser to re- ceive them. Restaurant’s sale of the chocolate milk is a sale of prepared food, since (a) more than 75% of its total sales of food and food in- gredients are sales of prepared food, (b) eating utensils are made available to customers, and (c) the container of chocolate milk contains fewer than 4 servings. Restaurant’s sale of the gallon of 2% milk is not the sale of prepared food, even though more than 75% of its total sales of food and food ingredients are sales of prepared food and the convenience store makes eating utensils available to customers, because the gallon size container of 2% milk contains 4 or more servings, and plates, bowls, glasses, or cups are not necessary for the pur- chaser to receive the milk.
The flowchart and related notes on pages 56 to 57 of this publication can be used to help determine if the product being sold is “pre- pared food” and subject to Wisconsin sales or use tax.
“Soft drink” is defined in sec. 77.51(17w), Wis. Stats., to mean “…a beverage that contains less than 0.5 percent of alcohol and that contains nat- ural or artificial sweeteners. ‘Soft drink’ does not include a beverage that contains milk or milk products; soy, rice, or similar milk substitutes; or