It is nearing the end of summer garden season in most of the continental United States, and even recreational gardeners who have been prudent in their plant selections are likely to have a surfeit of rapidly ripening tomatoes. Once you find a tomato variety that likes your climate and its designated spot in the garden, you’ve done just about everything necessary to see a regular supply of juicy fresh vegetables except watering your plants and discouraging the occasional attack of aphids. Note the word “vegetable.”
There are few aspects of life that the tax law doesn’t touch at least tangentially, and a lovely summer caprese salad isn't one of them. If it's prepared and served in a restaurant, all sorts of taxes are involved — most likely some state sales taxes, federal individual and corporate income taxes, and possibly even some excise taxes. Even tomatoes reaped from the backyard were probably grown from a seedling sold by a nursery or a seed sold in a store, where taxes take at least a small bite out of the sales.
The humble tomato was at issue in one of the more diverting Supreme Court cases concerning taxation. In Nix v. Hedden, 149 U.S. 304 (1893), the Court addressed the question whether tomatoes, “considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit’ within the meaning of the Tariff Act of 1883.” (In case you’re wondering, the Court couldn't exercise nearly as much discretion over its docket back in 1893 as it does today, so there wasn’t as much of an opportunity for the justices to dodge the tomato case as there would be today. In any event, the question of what items were subject to the tariff was more important then because there was no federal income tax in 1893, so tariffs were a major federal revenue source.) Fruit was exempt from the tariff, which is why Mr. Nix was anxious to have his tomatoes declared fruit for tax purposes.
In rejecting the botanical classification, the Court looked to the “common language of the people” for its conclusion that a tomato is a vegetable and thus subject to the tariff. Justice Horace Gray, writing the unanimous opinion for the Court, explained that tomatoes are “grown in kitchen gardens” and like many other produce commonly called vegetables, “usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” Interestingly, the etymology of the word “tomato” is traced to the Náhuatl (Aztec) word tomatl, which evidently means “swelling fruit.”
The tariff act that prompted the tomato controversy was also at issue in Robertson v. Salomon, 130 U.S. 412 (1889). The plaintiffs in that case argued that their white beans shouldn’t be taxed because they weren’t “garden seeds” (taxed at 20 percent) or “vegetables” (taxed at 10 percent), and thus fell into the category of seeds not otherwise provided for in the tariff act. The Court disagreed that beans weren't vegetables, observing that “although beans are often planted in gardens as seed, yet, as a product and a commodity in the market, they are not generally denominated as ‘garden seeds’ any more than potatoes, which are also sometimes planted as seed in gardens.” And despite the apparently voluminous testimony the parties piled on the jury at trial, the Court handily explained that “as an article of food on our tables, whether baked or boiled or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put.”
Characterization questions are timeless features of tax law. But one wonders what the Supreme Court of 1893 would have thought about the Kumato , a cultivar that is sweet and makes a fine tomato-and-butter sandwich. If an erstwhile vegetable is almost as sweet as some commonly recognized fruit, is it still a vegetable in the common parlance?