Opinion Number ( 2011 )

Dear Senator Riser:

Your request for an Attorney General's Opinion as to whether bottled water is exempt from sales and use taxes has been assigned to me for research and reply.

The short answer to your question is no. Under La.Const. art. VII, § 2.2(B)(1), the sales and use tax imposed by the state of Louisiana or by a political subdivision whose boundaries are coterminous with those of the state does not apply to "water sold directly to the consumer for residential use." Additionally, La.Const. art. VII, § 2.2(C) provides the following regarding what constitutes "residential use":

(C) As used in this Section, the term "sold directly to the consumer for residential use" includes the furnishing of natural gas, electricity, or water to single private residences, including the separate private units of apartment houses and other multiple dwellings, actually used for residential purposes, which residences are separately metered or measured, regardless of the fact that a person other than the resident is contractually bound to the supplier for the charges, actually pays the charges, or is billed for the charges. The use of electricity, natural gas, or water in hotel or motel units does not constitute residential use.

Moreover, La.R.S. 47:305(D)(1)(c), provides that sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in the taxing jurisdiction of the following is exempt from sales and use taxes:

Water (not including mineral water or carbonated water or any water put in bottles, jugs, or containers, all of which are not exempted).

Further, even assuming, arguendo, that water is a food and ignoring the fact that water is treated separately from food under La.Const. art. VII, § 2.2, bottled water still would be subject to the sales and use tax. La.Const. art. VII § 2.2(B)(1) exempts "[f]ood for home consumption, as defined in R.S. 47:305(D)(1)(n) through (r) on January 1, 2003." Those subsections of La.R.S. 47:305(D)(1) specifically exempt food sold for preparation and consumption in the home, dairy products, soft drinks, fresh fruits and vegetables, and packaged foods requiring further preparation by the purchaser. Bottled water does not require any preparation whatsoever to be consumed in the home and thus does not fit within any of those exemptions.

Thus, it is the opinion of this office that, under La.Const. art. VII, § 2.2(B), the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in the taxing jurisdiction of bottled water is not exempt from sales and use taxes imposed by taxing authorities.

We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

Yours very truly,

JAMES D. "BUDDY" CALDWELL Attorney General

BY: __________________________ BENJAMIN A. HUXEN II Assistant Attorney General

JDC/BAH II