12AER11-14: Sales of Clothing and School Supplies during the Period August 12 through August 14, 2011
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: Section 36, Chapter 2011-76, Laws of Florida, authorizes the Department of Revenue to promulgate emergency rules to implement the provisions of the law specifying a period during which the sale of certain clothing, and school supplies are exempt from sales and use tax. The law provides that conditions necessary for an emergency rule have been met. The promulgation of this emergency rule ensures that the public is notified in the most expedient and appropriate means regarding the exemption during the period from 12:01 a.m., August 12, 2011 through 11:59 p.m., August 14, 2011, for sales of clothing, wallets, or bags having a selling price of $75 or less per item and for sales of school supplies having a selling price of $15 per item or less. The exemption does not apply to sales within a theme park or entertainment complex as defined in Section 509.013(9), F.S., or within a public lodging establishment as defined in Section 509.013(4), F.S., or within an airport as defined in Section 330.27(2), F.S. The rule defines “clothing,” “school supplies,” “theme park or entertainment complex,” “public lodging establishment,” “airport” and “mail order sales.” The rule describes the items that are included in the exemption and explains how various transactions are to be handled for purposes of the exemption, including sales of sets of both exempt and taxable items, items normally sold as a unit, mail order sales, shipping and handling charges, layaway sales, rain checks, exchanges, refunds, coupons, rebates, and discounts, repairs and alterations, gift certificates, rentals of clothing, reporting requirements, documentation to be maintained, and merchant’s license fees. The rule provides a list of items and their taxable status during the exemption period for clothing and school supplies.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The Legislature expressly authorized the promulgation of an emergency rule to administer the provisions of Section 36, Chapter 2011-76, Laws of Florida, which specify a period during which the sale of certain clothing and school supplies are exempt from sales and use tax. Additionally, an emergency rule is the most expedient and appropriate means of notifying dealers and taxpayers of the provisions of Section 36, Chapter 2011-76, Laws of Florida.
SUMMARY: Emergency Rule 12AER11-14 notifies the general public and retailers of the exemption during the period from 12:01 a.m., August 12, 2011 through 11:59 p.m., August 14, 2011, for sales of clothing, wallets, or bags having a selling price of $75 or less per item and for sales of school supplies having a selling price of $15 per item or less.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Gary Gray, Revenue Program Administrator I, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone (850)717-6777
THE FULL TEXT OF THE EMERGENCY RULE IS:
12AER11-14 Sales of Clothing and School Supplies During the Period August 12 through
(1) Clothing Sales.
(a) Beginning at 12:01 a.m. on August 12, 2011, and ending at 11:59 p.m. on August 14, 2011 (the exemption period), no tax is due on the sale or purchase of any article of clothing, wallet, or bag, including handbags, backpacks, fanny packs, and diaper bags, but excluding briefcases, suitcases, and other garment bags, with a selling price of $75.00 or less. This exemption does not apply to sales of clothing, wallets, or bags within a theme park, entertainment complex, public lodging establishment, or airport.
(b)1. The sales tax exemption applies to each eligible item of clothing, wallet, or bag, selling for $75.00 or less. The exemption applies regardless of how many items are sold on the same invoice to a customer.
2. Example: A customer purchases two shirts for $40.00 each. Both items will qualify for the exemption, even though the customer’s total purchase price ($80.00) exceeds $75.00.
(c)1. The exemption does not apply to the first $75.00 of price of an eligible item of clothing, wallet, or bag, selling for more than $75.00.
2. Example: A customer purchases a pair of pants costing $79.95. Tax is due on the entire $79.95.
(2) Exempt Sales of School Supplies.
(a) Beginning at
(b)1. The sales tax exemption applies to each eligible item of school supplies selling for $15.00 or less. The exemption applies regardless of how many items are sold on the same invoice to a customer.
2. Example: A customer purchases ten composition books for $2.50 each. All ten items will qualify for the exemption, even though the customer’s total purchase price ($25.00) exceeds $15.00.
(c)1. The exemption does not apply to the first $15.00 of price of an eligible item of school supplies selling for more than $15.00.
2. Example: A customer purchases a calculator costing $18.00. Tax is due on the entire $18.00.
(3) Definitions.
(a) “Clothing” means any article of wearing apparel, including all footwear, except skis, swim fins, in-line skates, and other skates, intended to be worn on or about the human body. “Clothing” does not include watches, watchbands, jewelry, umbrellas, or handkerchiefs.
(b) “School supplies” means pens, pencils, erasers, crayons, notebooks, notebook filler paper, legal pads, binders, lunch boxes, construction paper, markers, folders, poster board, composition books, poster paper, scissors, cellophane tape, glue, paste, rulers, computer disks, protractors, compasses, and calculators.
(c) “Theme park or entertainment complex” means a complex comprised of at least 25 contiguous acres owned and controlled by the same business entity and which contains permanent exhibitions and a variety of recreational activities and has a minimum of 1 million visitors annually.
(d)1. “Public lodging establishment” means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings, which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests. License classifications of public lodging establishments, and the definitions therefor, are set out in Section 509.242, F.S. For the purpose of licensure, the term does not include condominium common elements as defined in Section 718.103, F.S.
2. The following are excluded from the definition in subparagraph 1.:
a. Any dormitory or other living or sleeping facility maintained by a public or private school, college, or university for the use of students, faculty, or visitors;
b. Any facility certified or licensed and regulated by the Agency for Health Care Administration or the Department of Children and Family Services or other similar place regulated under Section 381.0072, F.S.;
c. Any place renting four rental units or less, unless the rental units are advertised or held out to the public to be places that are regularly rented to transients;
d. Any unit or group of units in a condominium, cooperative, or timeshare plan and any individually or collectively owned one-family, two-family, three-family, or four-family dwelling house or dwelling unit that is rented for periods of at least 30 days or 1 calendar month, whichever is less, and that is not advertised or held out to the public as a place regularly rented for periods of less than 1 calendar month, provided that no more than four rental units within a single complex of buildings are available for rent;
e. Any migrant labor camp or residential migrant housing permitted by the Department of Health, under Sections 381.008-381.00895, F.S.; and
f. Any establishment inspected by the Department of Health and regulated by Chapter 513, F.S.
(e) “Airport” means an area of land or water used for, or intended to be used for, landing and takeoff of aircraft, accessory or relative areas, buildings, facilities, or rights-of-way necessary to facilitate such use or intended use.
(f) “Mail order sale” is a sale of tangible personal property, ordered by mail or other means of communication, from a dealer who receives the order in another state of the United States, or in a commonwealth, territory, or other area under the jurisdiction of the United States, and transports the property or causes the property to be transported, whether or not by mail, from any jurisdiction of the United States, including this state, to a person in this state, including the person who ordered the property.
(4) Sales of Sets Containing Both Exempt and Taxable Items.
(a) When exempt items are normally sold together with taxable merchandise as a set or single unit, the full price is subject to sales tax.
(b) Example: A gift set consisting of a wallet and key chain is sold for a single price of $35.00. Although the wallet would otherwise be exempt during the exemption period, the full price of the gift set is taxable because the key chain is taxable.
(c) Example: A desk set consisting of a stapler and a pair of scissors is sold for a single price of $9.95. Although the scissors would otherwise be exempt during the exemption period, the full price of the desk set is taxable because the stapler is taxable.
(5) Articles Normally Sold as a Unit.
(a) Articles that are normally sold as a unit must continue to be sold in that manner; they cannot be separately stated and sold as individual items in order to obtain the exemption.
(b) Example: A pair of shoes normally sells for $80.00. The pair cannot be split in order to sell each shoe for $40.00 to qualify for the exemption.
(c) Example: A suit is normally priced at $125.00 on a single price tag. The suit cannot be split into separate articles so that any of the components may be sold for $75.00 or less in order to qualify for the exemption. However, components that are normally priced as separate articles may continue to be sold as separate articles and qualify for the exemption if the price of an article is $75.00 or less.
(d) Example: A pen and pencil set is normally priced at $18.00 on a single price tag. The set cannot be split into separate articles so that either of the components may be sold for $15.00 or less in order to qualify for the exemption.
(6) Buy One, Get One Free or for a Reduced Price.
(a) The total price of items advertised as “buy one, get one free,” or “buy one, get one for a reduced price,” cannot be averaged in order for both items to qualify for the exemption.
(b) Example: A retailer advertises pants as “buy one, get one free.” The first pair of pants is priced at $80.00; the second pair of pants is free. Tax is due on $80.00. The store cannot sell each pair of pants for $40.00 in order for the items to qualify for the exemption. However, the retailer may advertise and sell the items for 50% off, selling each pair of $80.00 pants for $40.00, making each pair eligible for the exemption.
(c) Example: A retailer advertises shoes as “buy one pair at the regular price, get a second pair for half price.” The first pair of shoes is sold for $80.00; the second pair is sold for $40.00 (half price). Tax is due on the $80.00 shoes, but not on the $40.00 shoes. The store cannot sell each pair of shoes for $60.00 in order for the items to qualify for the exemption. However, a retailer may advertise the pairs for 25% off, thereby selling each pair of $80.00 shoes for $60.00, making each pair eligible for the exemption.
(7) Mail Order Sales.
(a) For purposes of this exemption, eligible items purchased by mail order, including sales transactions over the Internet, will receive the exemption if the order is accepted by the mail order company during the exemption period for immediate shipment. When the acceptance of the order by the mail order company occurs during the exemption period, the exemption will apply even if delivery is made after the exemption period.
(b) An order is accepted by the mail order company when it has taken an action to fill the order for immediate shipment. Actions to fill an order include, but are not limited to, placing an “in date” stamp on a mail order, assigning an “order number” to a telephone order, or confirming an Internet order by e-mail message.
(c) An order is for immediate shipment when delayed shipment is not requested by the customer. An order is for immediate shipment notwithstanding that the shipment may be delayed because of a backlog of orders or because stock is currently unavailable to, or on back order by, the company.
(8) Shipping and Handling Charges.
(a) Shipping and handling charges are included as part of the sales price of the eligible item, whether or not separately stated. If multiple items are shipped on a single invoice, to determine if any items qualify for the exemption, the shipping and handling charge must be proportionately allocated to each item ordered, and separately identified on the invoice.
(b) Example 1: A customer orders a jacket for $75.00. The shipping charge to deliver the jacket to the customer is $5.00. The selling price of the jacket is $80.00. Tax is due on the full selling price.
(c) Example 2. A customer orders a suit for $300.00 and a shirt for $40.00. The transportation charge to deliver the items is $15.00. The $15.00 transportation charge must be proportionately and separately allocated between the items: $300 / $340 = 88%; therefore, 88% of the $15.00 shipping charge, or $13.20, must be allocated to the suit, and separately identified on the invoice as such. The remaining 12% of the $15.00 shipping charge, or $1.80, must be allocated to the shirt, and separately identified on the invoice as such. The selling price of the shirt is $40.00 plus $1.80, totaling $41.80, and therefore qualifying for the exemption.
Suite $300.00
Shipping for suit 13.20
Shirt 40.00
Shipping For shirt 1.80
(d) Example 3. A customer orders a suit for $300.00 and a shirt for $70.00. The transportation charge to deliver the items is $50.00. The $50.00 transportation charge must be proportionately and separately allocated between the items: $300 / $370 = 81%. Therefore, 81% of the $50.00 shipping charge, or $40.50, must be allocated to the suit, and separately identified on the invoice as such. The remaining 19% of the $50.00 shipping charge, or $9.50, must be allocated to the shirt, and separately identified on the invoice as such. The selling price of the shirt is $70.00 plus $9.50, totaling $79.95. Since the selling price of the shirt exceeds $75.00, the purchase of the shirt is taxable.
Suit $300.00
Shipping for suit 40.50
Shirt 70.00
Shipping For shirt 9.50
(9) Layaway sales. A layaway sale is a transaction in which merchandise is set aside for future delivery to a customer who makes a deposit, agrees to pay the balance of the purchase price over a period of time, and receives the merchandise at the end of the payment period.
(a) For purposes of this exemption, eligible items will qualify for the exemption if:
1. A retailer and a customer enter into a contract for a layaway sale for an exempt item during the exemption period;
2. The customer makes the usual deposit in accordance with the retailer’s layaway policy;
3. The merchandise [exempt item(s)] is segregated from the retailer’s inventory; and
4. The final payment is made during or after the exemption period.
(b) If final payment on a layaway order is made by and the merchandise is given to the customer during the exemption period, that sale of eligible items will qualify for the exemption, even when the qualified items were placed on layaway before the exemption period.
(10) Rain checks. Eligible items purchased during the exemption period using a rain check will qualify for the exemption regardless of when the rain check was issued. However, issuance of a rain check during the exemption period will not qualify eligible items for the exemption if the item is actually purchased after the exemption period.
(11) Exchanges.
(a) If a customer purchases an eligible item during the exemption period, then later exchanges the item for the same item (different size, different color, etc.), no additional tax will be due even if the exchange is made after the exemption period.
(b) If a customer purchases an eligible item during the exemption period, then later returns the item and receives credit on the purchase of a different item, the appropriate sales tax will apply to the sale of the newly purchased item.
(c) Examples:
1. During the exemption period, a customer purchases a $75.00 dress that qualifies for the exemption. Later, during the exemption period, the customer exchanges the $75.00 dress for a $100.00 dress. Tax is due on the $100.00 dress. The $75.00 credit from the returned item cannot be used to reduce the sales price of the $100.00 item to $25.00 for exemption purposes.
2. A customer purchases a $35.00 shirt during the exemption period. After the exemption period, the customer exchanges the shirt for a $35.00 jacket. Since the jacket was not purchased during the exemption period, tax is due on the $35.00 price of the jacket.
3. A customer purchases notebook filler paper for $3.95 during the exemption period. Later during the exemption period, the customer exchanges the notebook filler paper for note pads costing the same amount. Tax is due on the note pads, because they are not eligible for the exemption.
(12) Refunds.
(a) A customer who pays tax to a dealer on an eligible item when no tax is due must secure a refund of the tax from the dealer and not from the Department of Revenue.
(b) For the period August 12, 2011, through October 31, 2011, when a customer returns an item that would qualify for the exemption, no refund of tax shall be given unless the customer provides a receipt or invoice showing tax was paid, or the retailer has sufficient documentation to show that tax was paid on the specific item.
(13) Coupons, Rebates, and Discounts.
(a)1. Manufacturer’s coupons. Manufacturer’s coupons do not reduce the sales price of an item. Therefore, a manufacturer’s coupon cannot be used to reduce the selling price of an item of clothing to $75.00 or less, or a school supply item to $15.00 or less, in order to qualify for the exemption.
2. Example: A jacket sells for $85.00. The customer has a $10.00 manufacturer’s coupon good for the purchase of the jacket. The manufacturer’s coupon does not reduce the sales price of the jacket. Tax is due on $85.00, even though the customer only pays the retailer $75.00 for the jacket.
(b)1. Store coupons and discounts. Store coupons and discounts reduce the sales price of an item. Therefore, a store coupon or discount can be used to reduce the sales price of an item to $75.00 or less, or of a school supply item to $15.00 or less, in order to qualify for the exemption.
2. Example: A customer buys a $400.00 suit and a $80.00 shirt. The retailer is offering a 10 percent discount. After applying the 10 percent discount, the final sales price of the suit is $360.00, and the sales price of the shirt is $72.00. The suit is taxable (its price is over $75.00), and the shirt is exempt (its price is less than $75.00).
(c)1. Rebates. Rebates occur after the sale and do not affect the sales price of an item purchased.
2. Example: A jacket sells for $85.00. The customer receives a $10.00 rebate from the manufacturer. The rebate occurs after the sale, so it does not reduce the sales price of the jacket. Tax is due on $85.00.
(14) Repairs and Alterations to Eligible Items.
(a) Repairs to eligible items do not qualify for the exemption.
(b)1. Alterations to clothing or footwear do not qualify for the exemption, even though alterations may be sold, invoiced, and paid for at the same time as the item to be altered.
2. Example: A customer purchases a pair of pants for $75.00 and pays $5.00 to the retailer to have the pants cuffed. The $75.00 charge for the pants is exempt; however, tax is due on the $5.00 alterations charge.
(15) Gift Certificates.
(a) Eligible items purchased during the exemption period using a gift certificate will qualify for the exemption, regardless of when the gift certificate was purchased. Eligible items purchased after the exemption period using a gift certificate are taxable, even if the gift certificate was purchased during the exemption period. A gift certificate cannot be used to reduce the selling price of an item of clothing to $75.00 or less, or of a school supply item to $15.00 or less, in order for the item to qualify for the exemption.
(b) Example: A customer purchases a dress priced at $90.00 and uses a $50.00 gift certificate. Tax is due on $90.00. The gift certificate does not reduce the selling price to $40.00 for purposes of the exemption.
(16) Rentals. Rentals of clothing, or footwear do not qualify for the exemption.
(17) Reporting. No special reporting procedures are necessary to report exempt sales made during the exemption period. Sales should be reported as currently required by law.
(18) Record Retention and Documentation. No special record keeping requirements are necessary. Records should be maintained as currently required by law.
(19) License Fees or Other Fees imposed by
(a) The cities of Panama City and Panama City Beach impose upon retailers a Merchant’s License Tax or similar gross receipts tax or fee, which may be passed on to the customer. The Merchant’s License Tax is included in the sales price of each item, whether or not the tax is separately stated on the invoice.
(b) Example: A jacket sells for $74.95. The separately stated 1% gross receipts fee for this item is $0.75. Since the gross receipts fee is part of the sales price of the item ($75.70), the jacket will not qualify for the exemption.
(20) List of Items of Clothing and Their Taxable Status During the Exemption Period. The following is a list of items of clothing and their taxable status during the exemption period, if they are sold for $75.00 or less. This is not an inclusive list. T = Taxable, E = Exempt.
A
T Accessories (generally)
E Barrettes and bobby pins
E Belt buckles
E Bow ties
E Hair nets, bows, clips, and bands
E Handbags
T Handkerchiefs
T Jewelry
T Key cases
E Neckwear
E Ponytail holders
E Scarves
E Ties
E Wallets
T Watch bands
T Watches
E Aerobic/Fitness clothing
E Aprons/Clothing shields
T Athletic gloves
T Athletic pads
E Athletic supporters
B
E Baby clothes
E Backpacks
E Bandanas
E Baseball cleats
E Bathing suits, caps, and cover-ups
E Belt buckles
E Belts
T Belts for weightlifting
E Bibs
E Blouses
E Book bags
E Boots (except ski boots)
E Bowling shoes (purchased)
T Bowling shoes (rented)
E Bow ties
E *Braces and supports worn to correct or alleviate a physical incapacity or injury
E Bras
T Briefcases
C
E Caps and hats
T Checkbook covers (separate from wallets)
T Chest protectors
E *Choir and altar clothing
E Cleated and spiked shoes
E *Clerical vestments
T Cloth and lace, knitting yarns, and other fabrics
T Clothing repair items, such as thread, buttons, tapes, iron-on patches, zippers
E Coats and wraps
E Coin purses
T Corsages and boutonnieres
T Cosmetic bags
E Costumes
E Coveralls
T Crib blankets
D
E Diaper bags
E Diapers, diaper inserts (adult and baby, cloth or disposable)
T Diving suits (wet and dry)
E Dresses
T Duffel bags
E
T Elbow pads
E Employee uniforms
F
E Fanny packs
T Fins
T Fishing boots (waders)
E Fishing vests (nonflotation)
T Football pads
E Formal clothing (purchased)
T Formal clothing (rented)
G
T Garment bags
E Garters and garter belts
E Girdles and bras
E Gloves (generally)
T Baseball
T Batting
T Bicycle
E Dress (purchased)
E Garden
T Golf
T Hockey
E Leather
T Rubber
T Surgical
T Tennis
E Work
T Goggles (except *prescription)
E Graduation caps and gowns
E Gym suits and uniforms
H
E Hair nets, bows, clips, and bands
E Handbags and purses
T Handkerchiefs
T Hard hats
E Hats
T Helmets (bike, baseball, football, hockey, motorcycle, sports)
E Hosiery, including support hosiery
E Hunting vests
I-J
T Ice skates
T In-line skates
E Insoles
E Jackets
E Jeans
T Jewelry
K
T Key chains
T Knee pads
L
E Lab coats
E Leg warmers
E Leotards and tights
T Life jackets and vests
E Lingerie
T Luggage
M-N
T Make-up bags
E Martial arts attire
E Neckwear and ties
O-P
E Overshoes and rubber shoes
T Pads (football, hockey, soccer, elbow, knee, shoulder)
T Paint or dust masks
E Pants
E Panty hose
T Patterns
T Protective masks (athletic)
E Purses
R
E Raincoats, rain hats, and ponchos
E Receiving blankets
E *Religious clothing
T Rented clothing (including uniforms, formal wear, and costumes)
T Repair of wearing apparel
E Robes
T Roller blades
T Roller skates
S
E Safety clothing
T Safety glasses (except *prescription)
E Safety shoes
E Scarves
E Scout uniforms
T Shaving kits/bags
E Shawls and wraps
T Shin guards and padding
E Shirts
E Shoe inserts
E Shoes (including athletic)
E Shoulder pads (for dresses, jackets, etc.)
T Shoulder pads (football, hockey, sports)
E Shorts
T Skates (ice, in-line, roller)
T Ski boots (snow)
T Ski vests (water)
E Ski suits (snow)
T Skin diving suits
E Skirts
E Sleepwear, nightgowns, pajamas
E Slippers
E Slips
E Socks
T Sports helmets
T Sports pads (football, hockey, soccer, knee, elbow, shoulder)
E Sports uniforms (except pads, helmets)
T Suitcases
E Suits, slacks, and jackets
T Sunglasses (except *prescription)
E Suspenders
E Sweatbands
E Sweaters
T Swimming masks
E Swim suits and trunks
T
E Ties (neckties – all)
E Tights
E Tuxedos, excluding cufflinks and rentals
U
T Umbrellas
E Underclothes
E Uniforms (work, school, and athletic – excluding pads)
V-W
E Vests
E Vintage clothing
E Wallets
T Watchbands
T Water ski vests
T Weight lifting belts
T Wet and dry diving suits
T Wigs, toupees, and chignons
E Work clothes and uniforms
* These items are always exempt as religious, prescription, prosthetic, or orthopedic items.
(21) List of School Supplies and Their Taxable Status During the Exemption Period. The following is a list of school supplies and their taxable status during the exemption period if they are sold for $15.00 or less. This is not an inclusive list. T = Taxable, E = Exempt.
E Binders
E Calculators
E Cellophane (transparent) tape
E Colored pencils
E Compasses
E Composition books
E Computer disks (floppies and blank CDs)
T Computer paper
E Construction paper
T Correction tape, fluid, or pens
E Crayons
E Erasers
E Folders
E Glue (stick & liquid)
E Highlighters
E Legal pads
E Lunch boxes
E Markers
T Masking tape
E Notebook filler paper
E Notebooks
E Paste
E Pencils, including mechanical and refills
E Pens, including felt, ballpoint, fountain, highlighters, and refills
E Poster board
E Poster paper
T Printer paper
E Protractors
E Rulers
E Scissors
T Staplers
T Staples
This rule shall take effect on August 3, 2011.
Rulemaking Authority 212.17(6), 212.18(2), 213.06(1), (2) FS., Section 36, Chapter 2011-76, L.O.F. Law Implemented 95.091, 212.02(16), 212.05, 212.0596, 212.06, 212.13, 213.35, 215.26(1), 330.27(2), 509.013(4), (9) FS., Chapter 2011-76, L.O.F. History–New ________.