The New York Department of Taxation and Finance has issued a sales and use tax advisory opinion concerning a certain chocolate-covered marshmallow twist (product). The taxpayer, a customer that occasionally purchases the product asked whether the product is subject to New York State and local sales tax if the product does not resemble any object or character, is sold year-round, and the packaging does not describe the product as either candy or confectionery. The sales tax regulations provide that “candy and confectionery include, without limitation, candy of all types; chocolate (plain or mixed with other products); glazed or sugar-coated fruits, nuts, peanuts, popcorn or other products; chewing gum; mints; lollypops; fruit flavored sticks; fruit drops; licorice; pastilles; cotton candy; marzipan; halvah and any similar product regarded as candy or confectionery based on its normal use or as indicated on the label or in the advertising thereof.” While marshmallows by themselves are not considered candy or confectionery, a product that is not candy or confectionery by itself becomes candy or confectionery when it is dipped or coated in chocolate. Additionally, it is clear from the product itself and the normal use of the product that it is candy and/or confectionery. Therefore, the product is candy and/or confectionery subject to New York State and local sales tax. TSB-A-24(15)S, New York Commissioner of Taxation and Finance, July 30, 2024