12A-1.005: Admissions
12A-1.009: Receipts from Services Rendered by Insect or Pest Exterminators
12A-1.0091: Cleaning Services
12A-1.0092: Detective, Burglar Protection, and Other Protection Services
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-1.0161: Sales and Use Tax on Services; Sale for Resale
12A-1.044: Vending Machines
12A-1.096: Industrial Machinery and Equipment for Use in a New or Expanding Business
PURPOSE AND EFFECT: Section 6, Chapter 2010-147, L.O.F., reinstates the exemption Section 212.04(2)(a)2., F.S., for admission charges to an event held in a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility when sponsored by a governmental entity, sports authority, or sports commission, and expands the exemption provided in Section 212.04(2)(a)4., F.S., for admissions to certain professional sporting events.
Section 3, 2009-51, L.O.F., and Section 5, Chapter 2010-138, L.O.F., amended Section 212.05(1)(j), F.S., to replace the Standard Industry Codes for detective, burglar protection, and other protection services and for nonresidential cleaning and nonresidential building pest control services with North American Industry Classification System National Industry Codes (NAICS Codes).
Section 9, Chapter 2010-147, L.O.F., amends Section 212.08(5)(b)6.b., F.S., to provide that productive output may be measured by the output for 12 continuous months selected by an expanding business following the completion of the installation of qualified machinery and equipment, and to strike the requirement to obtain approval of the alternative measurement period from the Department.
The purpose of the proposed rule amendments to Chapter 12A-1, F.A.C., is to: (1) include the reinstated exemption for admissions to events sponsored by a governmental entity, sports authority, or sports commission at publicly owned facilities and the expansion of the exemption to certain professional sporting events provided in Section 212.04(2)(a)2. and 4., F.S., as amended by Section 6, Chapter 2010-147, L.O.F.; (2) replace the Standard Industry Codes for detective, burglar protection, and other protection services and for nonresidential cleaning and nonresidential building pest control services with North American Industry Classification System National Industry Codes (NAICS Codes) as provided in Section 3, Chapter 2009-51, L.O.F., and Section 5, Chapter 2010-138, L.O.F.; (3) include the taxability of packages of both exempt food products and taxable tangible personal property, as provided in Section 7, Chapter 2010-138, L.O.F.; (4) remove obsolete provisions regarding the taxability of services before September 1, 1992; (5) change the contents of the notice required to be placed on vending machines by operators provided in Section 212.0515(3), as amend by Section 6, Chapter 2010-138, L.O.F.; and (6) change the definition of “productive output,” as revised by Section 9, Chapter 2010-147, L.O.F.
SUMMARY: The proposed amendments to Rule 12A-1.005, F.A.C. (Admissions), include the reinstatement of the exemption for admission charges to an event held in a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility when sponsored by a governmental entity, sports authority, or sports commission, and the expansion of the exemption for admissions to certain professional sporting events, as provided in Section 212.04(2)(a)2. and 4., F.S., as amended by Section 6, Chapter 2010-147, L.O.F.
The proposed amendments to Rule 12A-1.009, F.A.C. (amended title “Receipts from Services for Exterminating and Pest Control”), Rule 12A-1.0091, F.A.C. (Cleaning Services), and Rule 12A-1.0092, F.A.C. (Detective, Burglar Protection, and Other Protection Services), include the NAICS Codes and update the illustrative examples of services included under the specified NAICS National Codes designated in Section 212.05(1)(i), F.S.
The proposed amendments to Rule 12A-1.011, F.A.C. (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), add provisions for the taxability of packages of both exempt food products and taxable tangible personal property, as provided in Section 7, Chapter 2010-138, L.O.F., which were previously provided in this rule prior to the substantial rewording effective November 3, 2009.
The proposed amendments to Rule 12A-1.0161, F.A.C. (Sales and Use Tax on Services; Sales for Resale), remove obsolete provisions which applied to the taxability of services before September 1, 1992.
The proposed amendments to Rule 12A-1.044, F.A.C. (Vending Machines), update the notice to customers that must be affixed to a vending machine by the operator of the machine, as provided in Section 212.0515(3), as amend by Section 6, Chapter 2010-138, L.O.F.
The proposed amendments to Rule 12A-1.096, F.A.C. (Industrial Machinery and Equipment for Use in a New or Expanding Business), include the amendments to Section 212.08(5)(b)6.b., F.S., provided in Section 9, Chapter 2010-147, L.O.F. This law change: (1) provides that productive output may be measured by the output for 12 continuous months selected by an expanding business following the completion of the installation of qualified machinery and equipment; (2) continues to provide that the measurement period must begin within 24 months of the installation of the equipment; and (3) strikes the requirement to obtain approval of the alternative measurement period from the Department.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 212.0515, 212.08(5)(b)4., 212.17(6), 212.18(2), 213.06(1) FS.
LAW IMPLEMENTED: 212.02(1), (4), (10)(g), (14), (15), (16), (19), (20), (21), (22), (24), 212.031, 212.04, 212.05(1)(a)1.a., (1)(b), (1)(h), (i), 212.0515, 212.054(1), (2), (3)(l), 212.055, 212.06(1)(a), (2)(k), 212.07(1)(b), (2), 212.08(1), (4)(a)1., (5)(b), (6), (7), (8), 212.085, 212.11(1), 212.12(2), (3), (4), (9), 212.13(2), 212.18(2), (3), 213.255(2), (3), 215.26(2), 616.260 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: November 2, 2010, 9:30 a.m.
PLACE: Room 1220, 2450 Shumard Oak Blvd., Tallahassee, Florida
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Sarah Wachman at (850)410-2651. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Janet Young, Tax Law Specialist, and Jeffery Soff, Tax Law Specialist, Technical Assistance and Dispute Resolution, Department of Revenue, P. O. Box 7443, Tallahassee, Florida 32314-7443, telephone (850)922-9407 and (850)922-4719
THE FULL TEXT OF THE PROPOSED RULE IS:
12A-1.005 Admissions.
(1) No change.
(2) EXEMPT ADMISSIONS. The following admissions are exempt from the tax imposed under Section 212.04, F.S.:
(a) through (c) No change.
(d) Admissions to the following professional or collegiate sporting events are exempt, as provided in Sections 212.04(2)(a)4. and 9., F.S.:
1. National Football League championship game or Pro Bowl;
2., a Major League Baseball, National Basketball Association, or National Hockey League all-star game and Major League Baseball Home Run Derby held before the Major League Baseball all-star games;
3. National Basketball Association Rookie Challenge, Celebrity Game, 3-Point Shooting Contest, or Slam Dunk Challenge;,
4. Any any semifinal or championship game of a national collegiate tournament, or any postseason collegiate football game sanctioned by the National Collegiate Athletic Association, as provided in Sections 212.04(2)(a)4. and 9., F.S., are exempt.
(e) through (f) No change.
(g) Admission charges to an event held in a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility are exempt when:
1. The event is sponsored by a sports authority or commission, exempt from federal income tax under the provisions of s. 501(c)(3) of the Internal Revenue Code, as amended, that is contracted with a county or municipal government for the purpose of promoting and attracting sports-tourism events to the community or is sponsored by a governmental entity;
2. 100 percent of the funds at risk belong to the sponsoring entity;
3. 100 percent of the risk of success or failure lies with the sponsoring entity; and
4. The talent for the event is not derived exclusively from students or faculty.
(g) through (j) renumbered (h) through (k) No change.
(3) through (6) No change.
Rulemaking Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(1), 212.04, 212.08(6), (7), 616.260 FS. History– Revised 10-7-68, 1-7-70, 6-16-72, Amended 7-19-72, 12-11-74, 9-28-78, 7-3-79, 12-3-81, 7-20-82, Formerly 12A-1.05, Amended 1-2-89, 12-16-91, 10-17-94, 3-20-96, 3-4-01, 10-2-01, 4-17-03, 6-28-05, 4-26-10,________.
12A-1.009 Receipts from Services Rendered for Exterminating and Pest Control by Insect or Pest Exterminators.
(1)(a) Nonresidential pest control services enumerated in NAICS National Number 561710 of the North American Industry Classification System, published 2007, are subject to tax. Nonresidential pest control services are those services (not involving repair) rendered to minimize or eliminate any infestation of nonresidential buildings by vermin, insects, and other pests that do not include services provided for tangible personal property., and include such services as: Illustrative examples of taxable services are:
1. Bird control or bird proofing;
2. Exterminating services;
3. Fumigating services;
4. Pest control services in structures; and
5. Termite control.
(b) and (c) No change.
(2) through (6) No change.
(7) Pest control services provided to farmers for agricultural purposes or for forestry production are not taxable.
(8) Aircraft, boats, motor vehicles and other transportation vehicles are not considered to be nonresidential buildings. Therefore, the charge for pest control services provided to such vehicles is not taxable.
(9) No change.
Rulemaking Specific Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.05(1)(b), (i), (j), 212.07(2) FS. History– Revised 10-7-68, 6-16-72, Formerly 12A-1.09, Amended 5-13-93, 3-20-96, 4-2-00, 6-19-01,________.
12A-1.0091 Cleaning Services.
(1)(a) Nonresidential cleaning services as enumerated in NAICS National Number 561720 of the North American Industry Classification System, published 2007, are subject to tax. Nonresidential cleaning services are those services (not involving repair) rendered to maintain the clean and sanitary appearance and operating condition of a nonresidential building interiors, but they do not include cleaning services provided for tangible personal property. Illustrative examples of taxable services are: Examples of such nonresidential cleaning services subject to tax are:
1. Acoustical tile cleaning services;
2. Building cleaning services, interior;
3. Custodial services;
3. Chimney cleaning services;
4. Custodians of schools on a contract or fee basis;
4.5. Deodorant servicing of restrooms;
5.6. Disinfecting services;
6.7. Floor waxing services;
7.8. Housekeeping (cleaning services) on a contract or fee basis;
8.9. Janitorial services on a contract or fee basis;
10. Lighting maintenance services (bulb replacement and cleaning);
9.11. Maid services on a contract or fee basis;
10.12. Maintenance of buildings (except repairs);
11.13. Office cleaning services;
12.14. Restroom cleaning services;
13.15. Service station cleaning and degreasing services;
14.16. Venetian blind cleaning;
15.17. Washroom sanitation service; and
16.18. Window cleaning (interior or exterior).
(b) No change.
(c) The cleaning of tangible personal property is subject to the provisions of Rule 12A-1.006, F.A.C.
(d)(c) No change.
(2) No change.
(3) Aircraft, boats, motor vehicles, and other transportation vehicles are not considered to be nonresidential buildings. For the taxability of cleaning aircraft, boats, motor vehicles, and other vehicles, see Rule 12A-1.006, F.A.C.
(4) Pressure cleaning (power washing) of the exterior of a building, or of parking lots or parking structures, is not taxable as a cleaning service.
(5) No change.
Rulemaking Specific Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.05(1)(b), (i), 212.07(2) FS. History–New 5-13-93, Amended 3-20-96, 7-1-99, 4-2-00, 3-4-01, 6-19-01,_________.
12A-1.0092 Detective, Burglar Protection, and Other Protection Services.
(1) Persons who provide any of the services enumerated in NAICS National Numbers 561611, 561612, 561613, and 561621 of the North American Industry Classification System, published 2007 Industry Numbers 7381 and 7382 of the Standard Industrial Classification Manual, 1987, are dealers in a taxable service and are required to charge sales tax on the total taxable sales price of the service.
(2)(a) Detective, burglar protection, and other protection services are those services which are rendered to minimize or prevent loss or damage to life, limb, or property and are of a kind typically performed by security or alarm system companies, or are those investigative services which are rendered to obtain evidence or other information for legal, business, employment, or personal purposes of a kind typically performed by detective or investigative agencies. Illustrative examples of These taxable services are include:
1. Armored car service;
2. Bodyguard (personal protection) services;
3.2. Burglar or fire alarm or other security system devices monitoring and maintenance;
a. The installation of alarm or security systems that remain tangible personal property is governed by the provisions of Rule 12A-1.016, F.A.C.
b. The installation of alarm or security systems that become a part of real property is governed by the provisions of Rule 12A-1.051, F.A.C.
c. The monitoring or maintenance of alarm or security systems is a taxable service whether such for systems that are considered to be either tangible personal property or a part of real property. The term maintenance includes any inspection of an alarm or security system to confirm its proper working order. The term maintenance does not include the expansion or upgrade of an existing system, but it does include the replacement of defective components.
4.3. Detective agency services;
4. Dogs, rental of for protective services;
5. Fingerprint service;
6. Guard dogs, detection dogs, and other dogs for protection or investigative services (not including training), with or without a handler;
7.6. Guard, patrol, and parking or other facility security services service;
8.7. Investigation services (except credit) Investigators, private;
9.8. Lie detector or polygraph services;
10. Missing person tracing services;
11.9. Passenger screening services; and
10. Protective service, guard; and
11. Security guard service.
12. Skip tracing services.
(b) The services in paragraph (a) above are taxable for all persons, businesses, residences, or nonresidential properties.
(c) The following services, when performed by detectives, private investigators, or others are not subject to tax when freestanding, or when separately stated on an invoice given to a purchaser which includes taxable services:
1. through 2. No change.
3. Insurance services as classified enumerated under NAICS National Industry Number 524298 6411, such as insurance inspection and investigation services, insurance loss prevention services, or insurance reporting services, or insurance research services. The name of the insurance carrier must be included in the billing for the investigative services.
4. through 5. No change.
6. Repossession services. Charges for repossession services do not become taxable when “locate” or “skip-trace” activities must be performed by the repossessor in connection with the repossession.
(d) through (f) No change.
(3)(a) If a transaction involves both the sale or use of a service which is taxable and the sale or use of a service which is not taxable, the charges for the taxable portion of the transaction must be separately stated from the charges for the nontaxable non-taxable portion or the entire transaction will be presumed taxable.
1. No change.
2. Example: Company A is a defense industry contractor. Company A hires an investigative firm to perform a full background check, including psychological and drug testing, on employment applicants. The investigative firm engages the services of a psychologist and a medical lab to perform the necessary testing procedures. The professional services of the psychologist and the medical lab do not fall within the taxable services enumerated in subsection (1) Industry Numbers 7381 or 7382. However, the charge that the investigative firm makes to Company A for the psychological and drug testing must be separately stated or the entire transaction will be subject to tax.
3. No change.
(b) through (f) No change.
(4) through (6) No change.
Rulemaking Specific Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.05(1)(b), (i), 212.06(1)(a), (2)(k), 212.085 FS. History–New 5-13-93, Amended 10-17-94, 3-20-96, 7-29-98, _________.
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.
(1) through (9) No change.
(10) MULTIPLE ITEMS PACKAGES.
(a) When a package contains both exempt food products and taxable tangible personal property (e.g., a basket of food and candy, a basket of nuts, or decorated cans or glasses filled with food items) and the tax-exempt food products are separately itemized and priced from the taxable tangible personal property, no tax is due on the tax-exempt food products.
(b) When the total charge for a package containing both exempt food products and taxable tangible personal property is a single charge, the application of tax depends upon the essential character of the complete package, as follows:
1. When the taxable tangible personal property represents more than twenty-five (25) percent of the value of the package, the total charge is subject to tax.
2. When the taxable tangible personal property represents twenty-five (25) percent or less of the value of the package, the total sale is exempt. The seller is required to pay tax on any taxable items included in the package that were purchased tax-exempt for the purposes of resale. The cost price of any promotional items included in the package is subject to tax.
Rulemaking Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(14)(c), (20), 212.05(1)(a)1.a., 212.06(1)(a), 212.07(2), 212.08(1), (4)(a)1., (7)(oo), (pp) FS. History–Revised 10-7-68, 6-16-72, 9-28-78, 10-29-81, Formerly 12A-1.11, Amended 12-8-87, 1-2-89, 8-10-92, 6-19-01, 4-17-03, 11-3-09,_________.
12A-1.0161 Sales and Use Tax on Services; Sale for Resale.
(1) through (5) No change.
(6)(a) If a transaction involves both the sale of a taxable service, as provided in subsection (1) above, and the sale of a service that is not taxable, or if it involves both the sale of a taxable service and the sale or use of property that is not subject to sales or use tax, the charges shall be separately identified and stated with respect to the taxable and nontaxable portions of the transaction. The tax shall apply to the transaction to the extent that the consideration paid in connection with the transaction is payment for the sale of taxable services. Failure to separately state the charges shall create a presumption that the entire transaction is a taxable service. The burden shall be on the seller of the service or the purchaser of the service, whichever is applicable, to overcome this presumption by providing documentary evidence (i.e., time sheets, schedules, receipts, or other documents which support activities) as to the amount of the transaction that is exempt from tax. If the Department determines that the taxable and exempt portions of a transaction are inaccurately stated, the Department is authorized to adjust such portions with support by substantial competent evidence.
(b)1. If a transaction enumerated in subsection (1) above was taxable before September 1, 1992, on some other basis, it continues to be taxable on and after that date on that other basis, and is not taxable as a service enumerated in subsection (1) above.
2. Example: Rental of dogs for protective services was taxable before September 1, 1992, as rental of tangible personal property. On and after that date it continues to be taxable as the rental of tangible personal property.
(7) through (8) No change.
Rulemaking Specific Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.05(1)(b), (i), 212.06(1)(a), (2)(k), 212.07(1)(b), 212.08(7)(v) FS. History–New 5-13-93, Amended 1-4-94, 10-17-94, 3-20-96, 4-2-00, 10-2-01, 4-17-03, _________.
12A-1.044 Vending Machines.
(1) through (3) No change.
(4) Notice to be displayed on each vending machine; penalty and interest for failing to display notice.
(a) Before an operator may operate a food or beverage vending machine in this state, the operator must post affix a notice on each vending machine. Token machines are not considered to be vending machines which require a notice.
(b) The notice must state the operator’s name, address, and Federal Employer Identification (FEI) number, or if the federal government does not require the operator to have an FEI number, the Sales Tax Registration number is required.
(b)(c) You may use the example provided below or have your own notice printed. The However, if printed, the notice must contain the exact wording of the following statements in as in the examples, type that is must not be smaller than 14 point bold face, and the words “cash reward” must not be smaller than 30 point:.
NOTICE TO CUSTOMER:
FLORIDA LAW REQUIRES THIS NOTICE TO BE POSTED ON ALL FOOD AND BEVERAGE VENDING MACHINES. Report any machine without a notice to 1(800)352-9273. You may be eligible for a CASH REWARD.
DO NOT USE THIS NUMBER TO REPORT PROBLEMS WITH THE VENDING MACHINE SUCH AS LOST MONEY OR OUT-OF-DATE PRODUCTS.
FOR FOOD OR BEVERAGE VENDING MACHINES
__________________________________________________
Name of Operator
__________________________________________________
Address
__________________________________________________
City State Zip Code
__________________________________________________
FEI or ST#
Notice of Customers:
Florida Law requires this Notice to be posted on all food and beverage vending machines. Report any machine without a notice to 1-800-FL-AWARD. You may be eligible for a CASH REWARD.
(c)(d) The notice must be displayed on the upper front of a vending machine, unless such placement impairs the use of the machine. If the notice cannot be placed on the upper front of the vending machine, then the notice must be displayed on another place on the machine where it is easily readable by the public. The notice must be affixed to the machine so it is not easily removed.
(d)(e) Any vending machine operator who fails to properly obtain and display the required notice on any vending machine is subject to the penalties and interest as provided in Section 212.0515(4), F.S.
(5) through (8) No change.
Rulemaking Specific Authority 212.0515, 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(10)(g), (14), (15), (16), (19), (24), 212.031, 212.05(1)(h), 212.0515, 212.054(1), (2), (3)(l), 212.055, 212.07(1), (2), 212.08(1), (7), (8), 212.11(1), 212.12(2), (3), (4), (9), 212.18(2), (3) FS. History–Revised 10-7-68, 6-16-72, 1-10-78, Amended 7-20-82, Formerly 12A-1.44, Amended 12-13-88, 5-11-92, 3-17-93, 9-14-93, 12-13-94, 3-20-96, 7-1-99, 6-19-01, 11-1-05,_________.
12A-1.096 Industrial Machinery and Equipment for Use in a New or Expanding Business.
(1) Definitions – The following terms and phrases when used in this rule have the meaning ascribed to them except where the context clearly indicates a different meaning:
(a) through (f) No change.
(g) “Productive output” ordinarily means the number of units actually produced by a single plant or operation in a single continuous 12-month period. The increase in productive output shall be is measured by the output for 12 continuous months, as selected by the expanding business, immediately following the completion of the installation of machinery and equipment for the expansion project as compared to the productive output of 12 continuous months immediately preceding the beginning of the installation of machinery and equipment for the expansion project. However, the 12 continuous months post installation measurement period, as selected by the expanding business, if a different 12-month continuous period would more accurately reflect the increase in productive output as a result of a business expansion, the increase in productive output will be measured during that alternate 12-month continuous period provided that prior to the start of production by the expanded business the Executive Director or the Executive Director’s designee agrees to such alternate measuring period. Such alternate continuous 12-month measuring period approved by the Executive Director or the Executive Director’s designee must begin within 24 months following the completion of installation of qualifying machinery and equipment. If an alternate 12-month measuring period is requested by the business entity and is agreed to by the Executive Director or the Executive Director’s designee, only the selected alternate 12-month period will be used to measure the increased productive output for the business expansion, even though some 12-month period other than the selected and approved 12-month period may show a production increase of 10 percent or more as a result of the expansion project. Productive output may not be measured by sales dollars or by production labor hours for the purposes of this exemption.
(h) through (j) No change.
(2) through (9) No change.
Rulemaking Specific Authority 212.08(5)(b)4., 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(4), (10)(g), (14), (19), (21), (22), 212.05, 212.06, 212.08(5)(b), (7)(xx), 212.13(2), 213.255(2), (3), 215.26(2) FS. History–New 5-11-92, Amended 7-1-99, 6-28-00, 6-19-01, 3-6-02, 4-1-08,_________.