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A small taco | AccountingWEB | Is a taco a sandwich?
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Is a taco a sandwich?

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While the UK tax tribunals are concerned with whether a flapjack is a cake, across the pond in the United States there has been an argument on tacos. David Tipping spills the beans.

28th May 2024
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Regular readers of AccountingWEB will be familiar with the complex question of classifying food for the purposes of the UK’s esoteric VAT legislation, in which courts have wrangled with cakes, flapjacks, poppadoms and Pringles.

A recent decision from Allen County, Indiana, has proved that these issues are universal. In a judicial review of a local planning decision, Judge Bobay of the Allen superior court held that a taco is a “Mexican-style sandwich”.

Nothing goes according to flan

The applicant, Mr. Quintana, sought zoning approvals (the American equivalent of planning permission) for a commercial development from the Fort Wayne Plan Commission.

In 2019, approval was given, subject to certain restrictions, including a prohibition on “restaurants, including fast food style restaurants”. However, this was subject to a limited exemption for a “sandwich bar-style restaurant”, such as Subway or Jimmy John’s. The exemption expressly did not include “traditional fast food restaurants, such as ‘McDonalds’, ‘Arbys’ and ‘Wendys’”. Any such sandwich-style restaurant could not have outdoor seating or a drive through service and “for the avoidance of doubt” was expressly prohibited from selling alcohol.

In 2022, Mr. Quintana wanted to introduce a Famous Taco restaurant to the site, but believed that the chain’s operation would be a fast-food restaurant and so prohibited. Therefore, he applied to the Plan Commission for an amendment permitting the site to be used for a Famous Taco restaurant.

Something to taco’ bout

In November 2022, the Plan Commission met to discuss the issue. In scenes that will be familiar to anyone who has dealt with local government bureaucracy, Mr. Quintana’s limited proposal appeared to incite strong opposition from some members of the Plan Commission. They criticised the amendment for not being carefully planned and the lack of engagement with the Plan Commission. The Plan Commission ultimately voted to reject the proposed amendment and disallow the Famous Taco restaurant in a two-sentence decision.

Following a successful judicial review of this so-called reasoning, the Plan Commission issued a more detailed basis for the refusal in November 2023, against which Mr. Quintana appealed.

Judge Bobay held that the Plan Commission had been entitled to reject Mr. Quintana’s amendment. The Plan Commission had not abused its discretion and Mr. Quintana had failed to produce any evidence in support of his application. Instead, he appeared to assume that the Plan Commission would agree to the amendment and had told them that he just needed their “stamp of approval”. More importantly, the Plan Commission’s role was to approve general uses rather than specific business plans. However, Mr. Quintana’s amendment would have only permitted Famous Taco-branded restaurants to operate on the premises and the Plan Commission was correct to deny the amendment for this reason.

Nacho average sandwich

Despite upholding the Plan Commission’s decision, Judge Bobay concluded that the original conditions of the zoning approval would permit the premises to be used by a Famous Taco restaurant. He reasoned that tacos and burritos are Mexican-style sandwiches.

Similarly, the original wording of the exemption would permit a restaurant to sell “Greek gyros, Indian naan wraps and Vietnamese banh mi”, so long as it satisfied the other conditions attached to the zoning approval. Judge Bobay does not provide any specific explanation of why these items are sandwiches – presumably, he assumed the meaning of the term was so obvious as to be self-explanatory.

This conclusion rendered Mr. Quintana’s amendment unnecessary, although it was “certainly courteous” to have made it.

That’s a Wrap

To the English-legal eye, accustomed to extensive analysis of banal food items and protracted multi-factorial assessments, Judge Bobay’s decision is refreshing. It is a pleasant change for a judge to adopt an apparently common-sense approach to a simple question.

It is almost a certainty that the first-tier tribunal in the UK would have insisted on scrutinising every aspect of the proposed tacos and comparing it to a hypothetical, archetypal sandwich.

However, Judge Bobay’s approach does leave one asking the not-so simple question: what exactly is a sandwich?

Replies (11)

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By JustAnotherUser
28th May 2024 13:14

peel back the layers...

Covington Creek Association contacted him to say that The Famous Taco proposal “somehow ran afoul” to that commitment.... this is a HOA, awful things.

Latest update... the judge also found that his request was not needed and he found that the original commitment allows restaurants like the proposed...

“The Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches,”

I think they call these people 'Karens' in Amercia. never any issue with a taco being a sandwich.

Thanks (0)
Replying to JustAnotherUser:
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By JustAnotherUser
28th May 2024 13:52

To avoid remonstrators from residents in the Covington Creek Condominium Association, Quintana agreed to written commitments — including one about restaurants — with the neighbors to get the plan commission’s approval. It worked.

The commitment that caused contention had been designed to keep out traditional fast-food restaurants.

Yup, local do-gooders tried to get in writing that only a sandwich bar would open there...

Here it is on the map
https://www.google.com/maps/@41.0545952,-85.2273872,3a,51.7y,96.2h,89.9t/data=!3m6!1e1!3m4!1sYBksa5gsQditNKvlhqnM_g!2e0!7i16384!8i8192?coh=205409&entry=ttu

I mean, look around at every other fast-food / restaurant and more.

Here is Covington creek, private land HOA https://www.google.com/maps/@41.0555164,-85.2301886,3a,90y,17.3h,76.89t/data=!3m6!1e1!3m4!1sHMAvtuxHat09HzMw0KTPxA!2e0!7i16384!8i8192?coh=205409&entry=ttu

they wanted a sandwich shop on the doorstep and tried to tie him up with words and lost.

Thanks (0)
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By Roland195
28th May 2024 13:48

Interesting that the judge in this case did not need to sample to plate of tacos in order to reach his conclusion, find it necessary to comment on if you would prefer to eat such an item sitting down or try to imply that the "mouthfeel" differs from a BLT therefore is clearly not a sandwich.

Thanks (1)
Replying to Roland195:
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By FactChecker
28th May 2024 17:20

Indeed ... but my eye was taken by the casual reference to "the English-legal eye, accustomed to extensive analysis of banal food items".
From whence do these food items obtain?
Is banal a type of cuisine or a geographic area?
Are there any cases to cite that involved them?

If we're going to have articles outside our jurisdiction, we need to know more!

Thanks (4)
Tornado
By Tornado
28th May 2024 16:11

"What exactly is a sandwich?"

I do not have the technology but perhaps those with an appropriate program handy might like to try this question on AI.

Thanks (1)
Replying to Tornado:
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By Paul Crowley
28th May 2024 16:59

A real sandwich has butter on the inside.

Thanks (0)
Replying to Paul Crowley:
By SteveHa
29th May 2024 08:59

Paul Crowley wrote:

A real sandwich has butter on the inside.


And bacon, and possibly egg, but nothing more.
Thanks (2)
Replying to Tornado:
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By FactChecker
28th May 2024 17:07

Without even bothering to find a youngster to fire up any AI ...

- "The Sandwich tern is a tern in the family Laridae"; or
- "Sandwich is a town and civil parish in the Dover District of Kent"; or
- "The 4th Earl of Sandwich did not want to leave the card-table to eat, so asked for a serving of roast beef to be placed between two slices of bread"
... are we getting there?

[I avoided the slang recesses at the back of my brain ... knuckle sandwich, tongue sandwich and then it's downhill all the way.]

Thanks (5)
Replying to FactChecker:
Tornado
By Tornado
28th May 2024 17:28

Ah yes, the Lord Sandwich Story.

Perhaps we are making some progress, but what about the definition of 'Bread'. It comes in many forms from soft and squidgy to hard and chewy and presumably any 'Filling' can be used and not just Roast Beef.

And then there are a Open Sandwiches .........................................

Thanks (1)
Stepurhan
By stepurhan
29th May 2024 12:23

For a detailed dissertation on the subject, may I recommend the video "Food Theory: What makes a Sandwich a Sandwich" on Youtube.

https://www.youtube.com/watch?v=TxhrZBO4jY0

Thanks (0)
Rob Swan
By Rob Swan
29th May 2024 13:41

Not a UK matter.
Put a bit of orange 'goo' & chocolate on top and call it a 'biscuit' - just for fun, of course ;)

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