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Ezel / Tax Rulings / TX
TX 8504L0642A11 Sales and/or Use Tax (State,Local,MTA) 1985-04-24

Were perennial food-producing plants exempt in the same way as the edible products they produced?

Short answer: No. The 1985 letter distinguished the food product from the plant: apples, strawberries, and perennial herbs sold as food were exempt, but apple trees, strawberry plants, and perennial herb plants were taxable.

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This page answers the general question as of 1985. Ezel answers yours, under current Texas tax law, with citations.

Currency note: this ruling is from 1985
Subsequent statutory amendments, regulation changes, court decisions, or later rulings may have changed the analysis. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, rate, or position mentioned here.
Disclaimer: This is an official Texas Comptroller of Public Accounts letter published on the State Tax Automated Research (STAR) system. Letters on STAR can be the basis of a detrimental reliance claim only for the taxpayer to whom the letter was directly issued (see 34 Tex. Admin. Code Rules 3.1 and 3.10); documents on STAR may no longer represent current policy even if not marked superseded. Taxpayer-identifying details are redacted. This summary is informational only and is not legal or tax advice. Consult a licensed Texas tax professional about your specific situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official state tax ruling. The original ruling (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The 1985 letter drew a direct line between edible products and the plants that produced them. Products of perennial plants that constituted food for human consumption were exempt; it gave apples and strawberries as examples.

The perennial plants themselves were not exempt merely because they produced food. Apple trees and strawberry plants were taxable when sold. The letter applied the same distinction to herbs: perennial herbs sold as food were exempt, while perennial herb plants were taxable.

STAR's broader subject metadata also names fruit and nut trees, blueberries, grapes, spearmint, and peppermint plants, but the reproduced body expressly discusses only apples, strawberries, and perennial herbs. The page does not extend the holding item by item beyond those examples.

Common questions

Was an apple exempt? Yes as an edible product of a perennial plant. Was an apple tree exempt? No; the plant was taxable. Did the same distinction apply to herbs? Yes: the food product was exempt, but the perennial herb plant was taxable.

Citations and references

The reproduced letter cites no numbered statute or rule.

Source

Original ruling text

April 24, 1985

Dear ***:

Thank you for your April 24, 1985, telephone call concerning the
taxability of the sale of perennial herb plants.

The sales tax law exempts the PRODUCTS of perennial plants which
constitute food for human consumption. Apples and strawberries,
PRODUCTS of perennial plants, are exempt.

The sales tax law does not exempt the sale of perennial PLANTS which
produce food for human consumption. Apple trees and strawberry PLANTS
are taxable when they are sold.

The same guidelines apply to sales of herbs (PRODUCTS of perennial
plants) which are exempt and perennial herb PLANTS which are taxable.

If you have any questions or need more information, please call us at
1-800-252-5555 toll free from anywhere in Texas. You may write us at the
Tax Administration Division.

Sincerely,

Tax Policy/Tax Administration Division

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