Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

J&J Snack Foods Hit with Bill Regarding Sales & Use Tax

Author: Scarinci Hollenbeck, LLC

Date: November 25, 2015

Key Contacts

Back

J&J Snack Foods and Sales & Use Tax

In a recent decision, the New Jersey Appellate Division affirmed a Tax Court decision that since a company had assembling operations in the state, this qualified as taxable use. According to a Bloomberg BNA report, the Superior Court of New Jersey upheld the tax court’s decision that J&J Snack Foods, the largest manufacturer of soft pretzels in the country as well as the famous maker of Slush Puppies, was subject to a use tax assessment that totaled $250,000.

The decision held that J&J Snack Foods received machine parts in New Jersey and assembled the parts into pretzel-warming machines for use by customers located in and out-of-state. This was classified as a taxable use of the parts in New Jersey, a provision broadly written to define use as the exercise of the right or power over tangible personal property by the purchaser.

The background of the J&J Snack Foods case

The case originally involved a use tax audit by the state of New Jersey on J&J Snack Foods in 1992, which resulted in the company being told that it was required to pay the tax assessment – regardless of whether or not it sold or loaned any machines to customers within New Jersey borders. However, the company argued that it paid the necessary amount of taxes, and that sales and use taxes were not applicable.

Although in J&J Snack Foods Sales Corp. v. Director, Div. of Taxation, N.J., the Tax Court agreed with the state by asserting that the company was required to pay the use tax on all the machine parts used to assemble warmers, even if the machines themselves were used out of state.

In opposition, the company challenged the application of the tax code by asserting that the Tax Court was mistaken in that the purchase of machine parts for the warmers were retail sales. J&J Snack Foods then alleged that these warmer parts were bought for re-sale, and not as a part of the product to be sold by the company. The company’s argument then was that it was not subject to use taxes because the warmers were not loaned or sold for profit. The company also argued that the State acquiesced in its treatment in the audit from the 1990s and was stopped from raising the issue many years later.

The Appellate Division upholds the Tax Court’s decision

The Tax Court initially ruled that the company’s purchase of the parts and subsequent re-sale, along with the assembling and distribution of the warmers, qualified within the sales and use tax act’s ambit. Therefore, according to a report by the Altus Group, the company owed the use tax, regardless of whether customers used the machine within the state or outside of its borders. In turn, in upholding the Tax Court’s decision, the Superior Court of New Jersey found that J&J Snack Foods owed $258,226.99 in use taxes.

What the decisions means for taxpayers

Sales and use tax imposition can be difficult as it varies state by state. Therefore, as states do not often clarify their positions on the use tax laws, and often oppose each other, it is difficult for taxpayers to understand their tax burdens. For instance, had J&J Snack Foods been incorporated in Wyoming, the company would have not been subject to the sales and use tax because the items produced were prepared for use in a different state.

The significance of the decision from a broader perspective

One of the issues presented by the Superior Court’s upholding of the Tax Court’s decision is that it gives J&J Snack Foods, which has been headquartered in New Jersey for its entire existence, incentive to relocate its operations outside of the state, or outsource the assembling of the warmer machines rather than have them built in New Jersey.

Further, this decision is significant because from a broader perspective, taxpayers should be aware that any operations, regardless of whether these are essential operations of the company, may be subject to the use tax depending on the state law and regulation. Taxpayers can be certain that the absence of symmetry between state statutes can produce unexpected results between states. Taxpayers can also be certain that, as long as state budget deficits persist, they will face aggressive readings of law and regulation by tax collectors.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Can You Change an Irrevocable Trust in New Jersey? post image

Can You Change an Irrevocable Trust in New Jersey?

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]

Author: Marc J. Comer

Link to post with title - "Can You Change an Irrevocable Trust in New Jersey?"
How Intellectual Property Valuation Will Impact Business Transactions post image

How Intellectual Property Valuation Will Impact Business Transactions

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]

Author: Jay McDaniel

Link to post with title - "How Intellectual Property Valuation Will Impact Business Transactions"
Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls post image

Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls

For New Jersey data center owners and operators, a service agreement may look routine when it is signed. The network is functioning, the vendor is meeting its installation schedule, and the parties have agreed on pricing and performance specifications. The provisions that seem most important at that stage are often the technical ones. That changes […]

Author: George McGowan

Link to post with title - "Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls"
Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate post image

Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate

The Fort Monmouth redevelopment has entered its execution phase, and it is repositioning the broader Monmouth County real estate market. When Netflix and the Fort Monmouth Economic Revitalization Authority closed on the 292-acre Mega Parcel in December 2025, the transaction did more than hand over a deed. It marked the moment Fort Monmouth stopped being […]

Author: Donald M. Pepe

Link to post with title - "Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate"
Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand post image

Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand

Owning a residential rental property in New Jersey involves more than finding tenants and collecting rent. Property owners must comply with a combination of state laws, municipal ordinances, building and housing codes, and zoning and land use regulations. These requirements can affect everything from the number of dwelling units permitted at a property to whether […]

Author: Donald M. Pepe

Link to post with title - "Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand"
Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them post image

Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them

The five most common real estate disputes are breach of contract claims, landlord-tenant conflicts, zoning and land use disagreements, construction claims, and boundary disputes. Understanding why each arises, and taking preventive steps early, can help property owners, tenants, developers, and investors avoid costly litigation. Key Takeaways: Real estate transactions are complex endeavors involving numerous parties […]

Author: Paul Grossman

Link to post with title - "Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!