Why is a burrito a sandwich in New York? – Wacky Tax Wednesday

I am not a sandwich connoisseur. Still, I've eaten enough sandwiches during the last 45 +/- years to feel certain I know what a sandwich is. It has two pieces of bread (unless it’s an open face sandwich, when it has only one piece of bread) and yummy stuff inside (or on top).

Merriam-Webster backs me up: “two or more slices of bread or a split roll having a filling in between" or “one slice of bread covered with food.” The Oxford Dictionary agrees. The Urban Dictionary takes a broader approach, calling a sandwich “a food commonly used by men to oppress women.” But I digress.

The sandwich is named after the Earl of Sandwich, an 18^th century nobleman with a weakness for the gaming tables. He took his food sandwich style so as not to have to stop his play (or look away from his fellow players). And I’ll bet you a sandwich the Earl didn't eat burritos.

Why, then, is a burrito a sandwich in New York?

Planet Money tackled this question with its typical verve, trying to stump a sales tax expert and getting gleeful over the fact that “a burrito is legally a sandwich” in New York. Episode 554: How the Burrito Became a Sandwich explores the “but wait” moment, the moment when an exception to the rule (or exemption to the tax) is born.

Sales tax was born during the Great Depression, when states were in especially dire need of revenue. Initially, it applied to all sales of food. Soon after came the Planet Money “But wait moment”: Many states started exempting food purchased for home consumption (groceries), assuming people who dine out have more disposable income and are better able to afford the tax than people who stay home and cook. And so it began.

Fast forward to contemporary New York, where “sandwiches are generally subject to sales tax.” According to the New York State Department of Finance and Taxation: “Sandwiches include cold and hot sandwiches of every kind that are prepared and ready to be eaten, whether made on bread, bagels, on rolls, in pitas, in wraps, or otherwise, and regardless of the filling or number of layers. A sandwich can be as simple as a buttered bagel or roll, or as elaborate as a six-foot, toasted submarine sandwich.”

The department provides a lengthy list of “common sandwiches.” In addition to the usual suspects, the list includes:

• Bagel sandwiches (served buttered or with spreads, or otherwise)
• Burritos
• Wraps

There is undoubtedly a long and interesting story about how the burrito became a sandwich in New York. There usually is. For example, Planet Money explores how a New York pizzeria added “Baking Company” to its name after learning bakeries didn't have to tax sales of pizza slices. The podcast also shared the tale of a home food delivery service that served unassembled wraps in order to avoid charging sales tax. 

The history behind exemptions can be fun to uncover, but taxability isn't just about fun. When the auditor comes knocking, retailers need to know what's taxable under current law and what's exempt. At issue is not so much how the burrito became a sandwich in New York, but the fact that New York retailers must collect tax when selling them.

Curiously, the burrito is not a sandwich in Massachusetts. We know this because Panera Restaurant took its Massachusetts landlord to court when the landlord allowed Qdoba — a seller of tacos, burritos and quesadillas — to rent space in the same shopping center as Panera.

Panera had signed a contract with the landlord whereby: “Landlord agrees not to enter into a lease… affecting space in the Shopping Center or consent to an amendment to an existing lease permitting use… for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sale.”

Perhaps because the definition of a sandwich seems self-evident, the lease didn't define sandwiches. However, when Panera learned Qdoba would become a neighbor, it argued “tacos, burritos and quesadillas fell within meaning of ‘sandwiches’ and therefore [the landlord] was prohibited from leasing” to Qdoba under the terms of the lease. It took its landlord to court.

The court determined “the term ‘sandwiches’ is not ambiguous." Since "the Lease does not provide a definition of it, this court applies the ordinary meaning of the word." Using the definition provided by Webster's Third New International Dictionary, "and as dictated by common sense, this court finds that the term ‘sandwich’ is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.”

Had the court referred to the Oxford Encyclopedia of Food and Drink in America, it would perhaps have ruled differently. It states that “wraps became a popular new form of sandwich in the United States” during the 1990s (emphasis mine).

As one sandwich-obsessed Harvard student noted, Oxford cross-referenced sandwiches to wraps and wraps to sandwiches. It should also be noted, I think, that Oxford Encyclopedia of Food and Drink in America Editor in Chief, Andrew F. Smith, teaches culinary history at The New School in Manhattan. Which is in New York. Where the burrito is a sandwich.

Aha!

One of the beautiful, if frustrating, aspects of the United States is that states have the power to let their personalities shine. In New York, a burrito is a sandwich and subject to tax. In Massachusetts, a burrito is not a sandwich. Is it subject to sales tax? It depends.

This post was updated in February 2020.