3906595, 12A-1.0011 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 3906595

Notice of Development of Rulemaking

Department:

DEPARTMENT OF REVENUE

Division:

Sales and Use Tax, Surtax, Surcharge, and Fees; Communications Services Tax

Chapter:

SALES AND USE TAX

Overview

RULE:

12A-1.0011	Schools Offering Grades K through 12; Parent-Teacher Associations; and Parent-Teacher Organizations
12A-1.005	Admissions
12A-1.011	Sales of Food Products for Human Consumption by Grocery Stores, Convenience Stores, and Supermarkets; Sales of Bakery Products by Bakeries, Pastry Shops, or Like Establishments; Drinking Water; Ice
12A-1.0115	Sales of Food Products Served, Prepared, or Sold in or by Restaurants, Lunch Counters, Cafeterias, Hotels, Taverns, or Other Like Places of Business and by Transportation Companies.
12A-1.040	Containers and Other Packaging Materials; Gift Wrapping
12A-1.071	Rentals, Leases, or License to Use Tangible Personal Property
12A-1.097	Public Use Forms

PURPOSE:

The Department has assembled a working draft of proposed amendments to Rule Chapter 12A-1, F.A.C. (Sales and Use Tax), for the purpose of gathering input and comment from the public regarding sales of grocery items, meals, snacks, and drinks. The Department will propose the final changes to Rule Chapter 12A-1, F.A.C., only after we receive input at this rule development workshop and input from interested parties who are unable to attend the workshop. We welcome your involvement in the development of these proposed rule amendments. If you are unable to attend, you may send comments and input to: Richard Parsons, Tax Law Specialist, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone (850)922-4838.
The purpose of the proposed amendments to Rule 12A-1.0011, F.A.C. (Schools Offering Grades K through 12; Parent-Teacher Associations; and Parent-Teacher Organizations), is to include meals or other prepared food products as examples of items sold for fund raising purposes.
The purpose of the proposed amendments to Rule 12A-1.005, F.A.C., is to provide that fees charged for entrance to a restaurant, tavern, night club, or similar place of business are subject to tax.
The purpose of the proposed substantial rewording of Rule 12A-1.011, F.A.C. (Sales of Food Products for Human Consumption by Grocery Stores, Convenience Stores, and Supermarkets; Drinking Water, Ice), is to clarify the application of tax on the sale of food products generally sold by grocery stores, convenience stores, supermarkets, bakeries, fish markets, produce markets, and other like places of business and on the sale of bakery products by bakeries, pastry shops, or like establishments. The provisions regarding the application of tax on food products generally served, prepared, or sold in or by restaurants, lunch counters, cafeterias, caterers, hotels, taverns, or other like places of business will be removed from the current rule and will be provided in Rule 12A-1.0115, F.A.C., as created. The current provisions of Rule 12A-1.011, F.A.C., are included in the substantial rewording of Rule 12A-1.011, F.A.C., or the creation of Rule 12A-1.0115, F.A.C., and, when necessary, are updated to be consistent with the provisions of Section 212.08(1), F.S., as amended by Chapter 98-408, L.O.F., regarding the taxability of food products.
The substantial rewording of Rule 12A-1.011, F.A.C., is intended to provide the application of sales or use tax for the following: (1) examples of exempt food products for human consumption; (2) the exemption provided for food products prepared off the seller’s premises when sold in the original sealed container or sliced into smaller portions; (3) bakery products when sold by bakeries, pastry shops, or like establishments that do not have eating facilities and bakery products when sold by such establishments that have eating facilities; (4) candy, gum, mints, and similar products; (5) food prepared on the seller’s premises and sold for immediate consumption; (6) hot prepared food products; (7) sandwiches sold ready for immediate consumption; (8) novelty items and frozen dairy or nondairy products; (9) soft drinks, including nonalcoholic beverages, noncarbonated beverage made from milk derivatives, and beverages containing fruit or vegetable juices labeled under federal standards as containing less than 100% juice; (10) tea sold in liquid form; (11) drinking water, ice, and additives; (12) the exemption provided for samples or donated food products; (13) food stamps or vouchers issued under authority of federal law; (14) packages containing both exempt food products and taxable food products or other items; and (15) the exclusion from tax for items and materials used one time only for packaging food products.
The purpose of the proposed creation of Rule 12A-1.0115, F.A.C. (Sales of Food or Drinks Served, Prepared, or Sold in or by Restaurants, Lunch Counters, Cafeterias, Caterers, Hotels, Taverns, or Other Like Places of Business and by Transportation Companies), is to provide the application of sales or use tax for the following: (1) food products generally served, prepared, or sold in or by restaurants, lunch counters, cafeterias, caterers, hotels, taverns, or other like places of business; (2) food products when sold by such establishments that also maintain a separate department that includes groceries; (3) when tax is due on the purchase of, or the cost of furnishing, food products consumed in places where an admission is charged for entrance; (4) when sales tax is to be collected on food products separately itemized and priced from the admission charge to a patron; (5) sales of meal tickets or coupon books and coupons or discounts for food products; (6) the exemption provided for donated food products; (7) when tax is due on complimentary food products; (8) food products sold or furnished by employers to employees; (9) food products sold by airlines, railroads (except Amtrak), vessels, or other transportation companies to their passengers while in Florida; (10) food products served, prepared, or sold by caterers and event planners; (11) purchases, leases, and rentals by caterers or event planners; (12) gratuities consistent with the guidelines established by the court in Green v. Surf Club, Inc., 136 So.2d 354 (Fla. 3rd DCA 1961), cert. den., 139 So.2d 694 (Fla. 1962); (13) fees for preparing or serving food products; (14) food products when furnished with living or sleeping accommodations at colleges or other institutions of higher learning; (15) the exemption provided for certain complimentary food and drinks provided by public lodging establishments; (16) food products when furnished with housing at labor camps or public housing quarters; (17) food products furnished at day care facilities, day camps, or other custodial camps; (18) the exemption provided to hospital patients and inmates or to residents of homes for the aged; (19) food products sold to or prepared and served by social clubs, civic clubs, or fraternal organizations; (20) food products sold to or by nonprofit organizations, religious institutions, and organizations sponsoring a fundraising event; and (21) the exclusion from tax for items and materials used one time only for packaging or serving food products.
The purpose of the proposed amendments to Rule 12A-1.040, F.A.C. (Sales of Containers, Wrapping and Packing Materials and Related Products), is to remove provisions regarding the packaging of food products that will be provided in Rule 12A-1.011, F.A.C., as substantially reworded, and Rule 12A-1.0115, F.A.C., as created.
The purpose of the proposed amendments to Rule 12A-1.071, F.A.C. (Rentals, Leases, or License to Use Tangible Personal Property), is to: (1) remove provisions regarding sales by caterers that will be provided in Rule 12A-1.0115, F.A.C., as created; and (2) remove provisions regarding water softening services that will be provided in Rule 12A-1.011, F.A.C., as substantially reworded.
The purpose of the proposed amendments to Rule 12A-1.097, F.A.C. (Public Use Forms), is to remove obsolete Form DR-46B (Examples of Nonalcoholic Preparations, Beverages and Drinks when Sold in Grocery Stores and Similar Establishments) which is no longer used by the Department.

SUBJECT:

This rule development workshop is being held to solicit and receive public comment and input regarding the working draft of changes to Rule Chapter 12A-1, F.A.C. (Sales and Use Tax), for: (1) the application of tax on the sale of food products generally sold by grocery stores, convenience stores, supermarkets, bakeries, fish markets, produce markets, and other like places of business; (2) the application of tax on bakery products sold by bakeries, pastry shops, and like establishments; (3) the application of tax on the sale of water or ice; and (4) the application of tax on the sale of food products generally served, prepared, or sold in or by restaurants, lunch counters, cafeterias, caterers, hotels, taverns, or other like places of business.
The following issues relevant to grocery stores, supermarkets, convenience stores, and others that sell grocery items will be addressed:
• Sales of grocery items, both taxable and exempt
• Sales of bakery products for consumption on the premises and those sold for consumption off the premises
• Sales of taxable soft drinks and other beverages and tax-exempt 100% juice
• Sales of hot prepared food items sold by grocery stores
• Sales of packages containing both tax-exempt food items and other taxable items
• Tax-exempt items used for packaging food for sale
Issues related to restaurants, lunch counters, cafeterias, hotels, taverns, caterers, transportation companies, tax-exempt organizations, or other places that sell prepared food items will also be addressed:
• Meals, drinks, and food items that are taxable when prepared, served, or sold in such places of business
• The taxability of food and drinks served or sold in places where an admission is charged
• How to tax meals and food items purchased with coupons or other discounts
• When gratuities are subject to tax
• The exemption for food donated to a food bank or to organizations exempt from federal tax
• The exemption from use tax on food or drinks furnished as part of a room package by hotels and other public lodging establishments
• Tax-exempt items used for packaging food or drink for sale

RULEMAKING AUTHORITY:

LAW:

92.525(1)(b), (3), 95.091, 125.0104, 125.0108, 201.08(1)(a), 201.01, 201.08(1)(a), 201.133, 201.17(1)-(5), 202.11(2), (3), (6), (16), (24), 202.17, 202.22(3)-(6), 202.28(1), 203.01, 212.02, 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0515, 212.054, 212.055, 212.06, 212.0606, 212.07(1), (2), (8), (9), 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.11(1)-(5), 212.12(1), (2), (9), (13), 212.13, 212.14(5), 212.17, 212.18(2), (3), 213.235, 213.29, 213.37, 219.07, 288.1258, 376.70, 376.75, 402.61, 403.717, 403.718, 403.7185, 443.036, 443.121(1), (3), 443.131, 443.1315, 443.1316, 443.171(2), (7), 616.260 FS.

PRINT PUBLISH DATE:

3/23/2007 Vol. 33/12

RELATED STATUTES
AND LAWS:

201.11, 202.17(3)(a), 202.22(6), 202.26(3), 212.0515(7), 212.07(1)(b), 212.08(5)(b)4., (7), 212.11(5)(b), 212.12(1)(b)2., 212.17(6), 212.18(2), (3), 213.06(1), 376.70(6)(b), 376.75(9)(b), 403.718(3)(b), 403.7185(3)(b), 443.171(2), (7) FS., 92.525(1)(b), (3), 95.091, 125.0104, 125.0108, 201.08(1)(a), 201.01, 201.08(1)(a), 201.133, 201.17(1)-(5), 202.11(2), (3), (6), (16), (24), 202.17, 202.22(3)-(6), 202.28(1), 203.01, 212.02, 212.03, 212.0305, 212.031, 212.04, 212.05, 212.0501, 212.0515, 212.054, 212.055, 212.06, 212.0606, 212.07(1), (2), (8), (9), 212.08, 212.084(3), 212.085, 212.09, 212.096, 212.11(1)-(5), 212.12(1), (2), (9), (13), 212.13, 212.14(5), 212.17, 212.18(2), (3), 213.235, 213.29, 213.37, 219.07, 288.1258, 376.70, 376.75, 402.61, 403.717, 403.718, 403.7185, 443.036, 443.121(1), (3), 443.131, 443.1315, 443.1316, 443.171(2), (7), 616.260 FS.

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=12A-1.0011&PDate=3/23/2007&Section=1

REFERENCE MATERIALS:

No reference(s).

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