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TAA 14A-027 – Admissions - Sales and Use Tax

QUESTION: WHETHER MEALS INCLUDED WITH THE PURCHASE OF AN ADMISSION TICKET MAY BE PURCHASED FOR RESALE TAX-FREE BY TAXPAYER.

ANSWER: NO. TAXPAYER IS THE END CONSUMER OF THE MEALS AND THEREFORE CANNOT MAKE TAX FREE PURCHASES FOR RESALE.

October 23, 2014

Subject: Technical Assistance Advisement (“TAA”) 14A-027 Sales and Use Tax

Admissions
Section(s) 212.04(1), 212.02, 212.05(1), 212.12(12), 212.07, Florida Statutes (“F.S.”) Rule(s) 12A-1.005(3)(j)1., Florida Administrative Code (“F.A.C.”)

XXXX (“Taxpayer”), Petitioner XXXX (“Club”)
FEIN: XXXX
BPN: XXXX

XXXX (“Vendor”) XXXX (“Facility Owner”) XXXX (“Facility”)

Dear XXXX:

This letter is a response to your petition dated XXXX, for the Department’s issuance of a Technical Assistance Advisement (“TAA”) to Petitioner, concerning catered food and beverages used for no additional charge by an admission ticket purchaser. Your petition has been carefully examined, and the Department finds it to be in compliance with the requisite criteria set forth in Rule Chapter 12-11, F.A.C. This response to your request constitutes a TAA and is issued to you under the authority of section 213.22, F.S.

Issue #1

Is Taxpayer, who is an admission provider, required to pay sales tax on purchases of food and drink when the food and drink is provided by Taxpayer at no separate charge to the Taxpayer’s admission ticket purchasers?

Facts

Taxpayer owns and operates Club. Club provides sporting events at Facility, which is owned by Facility Owner. Taxpayer has an agreement with Facility Owner that allows Taxpayer to use Facility and select concessionaires, including Vendor.

Taxpayer’s revenues are generated through multiple sources, such as ticket sales, parking charges, and concession sales. Most tickets sold by Taxpayer provide only admission to games and events. Certain box seats sold by Taxpayer are sold as premium tickets. These tickets typically provide the closest view of the game or event.

The premium tickets are sold for a lump sum price that also includes access to restricted areas of Facility to use the food and drink buffet, bar service, and other areas. The premium tickets also provide invitation to certain special activities. In addition, parking is included. Premium tickets are sold by Taxpayer as a season ticket package. The season ticket package prices vary on the location of the seating. Copies of tickets provided include only one price. Vendor supplies the food and drink to Taxpayer that will be used by the premium ticket holders.

Taxpayer Position

The request provides that Taxpayer resells the items purchased from Vendor in addition to the admission. Taxpayer asserts that there is no legal requirement to separately state the price of each component for the resale provisions to apply. Taxpayer asserts that the ticket purchasers have the option to purchase admission only. No evidence was provided to establish that this was the case for premium ticket seating areas.

Taxpayer asserts that the tax laws should be construed in favor of taxpayers and against the government with all ambiguities or doubts resolved in the taxpayer’s favor, including the resale exemption. Taxpayer cites Lloyd Enter., Inc. v. Dept. of Revenue, 651 So.2nd 735, 739 (Fla. 5th DCA 1995) and Maas Bros., Inc. v. Dickinson, 195 So.2d 193, 198 (Fla. 1967) in support of this argument.

Taxpayer asserts that Vendor’s sales must be considered a tax-free sale for resale, allowed by s. 212.02(14)(a), F.S., to avoid double taxation addressed by s. 212.12(12), F.S. The request cites TAA 99A-033, which allowed the issuance of a resale certificate to a caterer by company that resold the catered items as a taxable sale to a performer at a civic center event. Taxpayer cites Drum Service Co. of Fla. V. Kirk, 234 So.2nd 358, 359 (Fla. 1970); Packaged Ice, Inc. v. Department of Revenue, DOAH Case No. 02-1110, WL 31125160 (Recommended Order, Aug 27, 2002); and Omni International of Miami, LTD v. Department of Banking and Finance, DOAH Case No. 83-65, 1983 WL 208484 (Recommended Order, April 15, 1983), in support of this argument.

The request provides that the definition of admission is limited to entry into a place of amusement and is not inclusive of mixed sales of tangible personal property and admissions.

The request also cites Rule 12A-1.080, F.A.C., allowing absorption of the tax by concessionaires when it is not practical to separately state sales tax for food sold by concessionaires in stadium.

Taxpayer asserts that the decision in Air Jamaica, Ltd. v. Department of Revenue, 374 So.2d 575 (Fla. 3rd DCA 1979), does not apply to Taxpayer’s sales of premium tickets, because the package is not a package of coordinated services from which separation of the meal could not be done.

The request provides that the premium tickets are purchased specifically to include food and beverage in addition to admission.

The request provides that the decision in Florida Hotel and Motel Association, Inc. v. Department of Revenue, 635 So.2nd 1044 (Fla. 1st DCA 1994), does not apply, because only one taxable privilege applies regarding Vendor’s sales of food and beverages. Taxpayer also asserts that the decision in American Video Corp. v. Lewis, 389 So.2nd 1059 (Fla. 1st DCA 1980), does not apply, because the items transferred in that case had no independent value to the person purchasing cable TV services.

Law and Discussion

Section 212.04(1), F.S., provides, in part, the following:

(1)(a) It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who sells or receives anything of value by way of admissions.
(b) For the exercise of such privilege, a tax is levied at the rate of 6 percent of sales price, or the actual value received from such admissions, which 6 percent shall be added to and collected with all such admissions from the purchaser thereof, and such tax shall be paid for the exercise of the privilege as defined in the preceding paragraph. Each ticket must show on its face the actual sales price of the admission, or each dealer selling the admission must prominently display at the box office or other place where the admission charge is made a
notice disclosing the price of the admission, and the tax shall be computed and collected on the basis of the actual price of the admission charged by the dealer.... (Emphasis added)

Section 212.02(1), F.S., defines the term “admissions.” The statute provides that admissions includes the net sum of money after deduction of any federal taxes for admitting a person to or for a person entering or staying at any place of amusement, sport, or recreation. The statute provides that admissions include ticket charges, seat charges, box charges, season pass charges, and seat box accommodations.

Section 212.05, F.S., provides that every person who is engaged in the business of selling tangible personal property is exercising a taxable privilege. Section 212.05(1)(a)1.a., F.S., provides that the sales tax is imposed on the sales price of each retail sale of tangible personal property for the exercise of that privilege. Section 212.02(16), F.S., provides, in part, “The sales price is the amount paid for tangible personal property.”

Section 212.07(2), F.S., provides, in part, “A dealer shall, as far as practicable, add the amount of the tax imposed under this chapter to the sales price, and the tax amount shall be separately stated as Florida sales tax on any charge ticket, sales slip, invoice, or other tangible evidence of sale.” (Emphasis added) The statute also provides, in part, “Where it is impracticable, due to the nature of the business practices within an industry, to separately state Florida tax on any charge ticket, sales slip, invoice, or other tangible evidence of sale, the Department may establish an effective rate for such industry.” The statute provides the Department authority to establish an effective tax rate for certain industries that can only absorb the sales tax in the price, such as certain concessionaires provided for by Rule 12A-1.080, F.A.C. It does not allow for a dealer to not separately state the sales price of the sale of food or drink, as proposed by the request.

Taxpayer asserts that two items are sold by Taxpayer, an admission and food. Taxpayer asserts that that there are no requirements to separately state the sales prices of each component. This assertion is incorrect. As required by s. 212.04(1)(b), F.S., the sales price or actual amount received from an admission is required to be stated on the face of the ticket. Section 212.02(1), F.S., provides that a seat box accommodation is an admission. The definition of admission does not provide that seat box accommodations are part admission and part of another taxing privilege. The sales price for sale of tangible personal property, which includes food and drink, must be separately stated.

Section 212.07(2), F.S., provides that the sales tax must be separately stated on tangible evidence of the sale, including a sales invoice, agreement, ticket, etc. The statute provides that the tax amount must be added to the sales price. Therefore, when food is sold, both the sales price and sales tax are to be separately stated. As provided by s. 212.02(16), F.S., the sales price of food is the amount paid for the food. In this instance, no separate charge is provided on the tickets for the food. No evidence was provided that box seats in an equivalent area may be purchased at a reduced price without the food and drink.

Section 212.02(14)(a), F.S., provides that sales for resale of tangible personal property are not retail sales. Taxpayer cites s. 212.12(12), F.S. That subsection provides, in part, “[W]henever in the construction, administration, or enforcement of this chapter there may be a question respecting a duplication of the tax, the end consumer, or last retail sale, be the sale intended to be taxed and insofar as may be practicable there be no duplication or pyramiding of the tax.”

Taxpayer cites TAA 99A-033 regarding the sale of catered food for which a resale certificate could be provided to the caterer. That TAA involved the sale by a caterer to a party that resold the food to the performers and not to the ticket holders of the event. Therefore, it is inapplicable to the facts presented here. Also, see Rule 12-11.007(1), F.A.C., which provides that a taxpayer may not rely on a TAA issued to another taxpayer.

In regard to meals included with the sale of admissions, Rule 12A-1.005(3)(j)1., F.A.C., provides, in part, the following:

(j) Charges made for the privilege of entering or engaging in any kind of activity for which no admission charge is made to spectators are subject to tax....
The purchase of taxable items used by the sponsoring entity are subject to tax, even though receipts from charges for the participation or entrance fees are used to make such purchases.

1. EXAMPLE: A private golf club hosts a local tournament and charges $100.00 entry fee from all participants with no admission charge made to spectators. The entry fee covers the greens fees, cart rental, and a meal for each participant, with the excess being used to purchase gifts, gift certificates, and trophies to be given to the winners. The entry fee is subject to tax, even if the charge for each item is separately itemized. The purchase of gifts, trophies, and other promotional items by the club is subject to tax.... (Emphasis added)

In regard to Taxpayer’s arguments regarding sales for resale and double taxation, the Florida Supreme Court addressed this issue in Ryder Truck Rental, Inc. v. Bryant, 170 So.2nd 822 (Fla. 1964). The opinion provides, in part, the following:

In support of their contention that the 1963 Act should not be interpreted as subjecting the sale of motor vehicles purchased exclusively for rental purposes to a sales or use tax, the appellants argue that such a sale is not a taxable transaction because the purchaser of such a motor vehicle is not the ultimate consumer thereof; that the ultimate consumer is the lessee or rentee of the vehicle; that the expressed legislative intent is that "the end consumer, or last retail sale shall be the sale intended to be taxed and in so far as may be practicable there [shall] be no duplication or pyramiding of the tax." Section 212.12(11), Fla.Stat., F.S.A.; and that to impose a tax on the sale of such a vehicle, and again on the rental of the same vehicle, and again on the eventual sale of the vehicle at the end of its useful life, would result in a "pyramiding" or duplication of the excise tax on such vehicle contrary to the legislative intent. This contention cannot be sustained.

It is well settled that the sales or use tax is a tax on the privilege of engaging in a particular business on occupation. The tax is not levied against the consumer, but upon the businessman who is engaged in the business or occupation.... Thus, the sales tax is assessed against the businessman-seller of the motor vehicle, not against the appellant-purchasers thereof; the appellants, who are assessed for the tax on the rental, pay the tax for the privilege of engaging in an entirely different business or occupation from that of the person or firm from whom they purchased the vehicle; and, finally, the ultimate sale is still another, and different, transaction. In each case the tax is passed on by the taxpayer to his or its customer: the motor vehicle dealer passes the sales tax on to the appellant purchaser; the appellant-renter of the vehicle passes the tax on the rental to his or its lessee or rentee; and when the vehicle is sold by the appellant at the end of its useful life, the sales tax is again passed on to the purchaser. Clearly, then, there is no "pyramiding" or duplication of the tax since each is on a separate and distinct taxable privilege. Id. at 824-825.

In regard to meals purchased for resale, in Air Jamaica, supra, the taxpayer argued that the cost of meals purchased for flights was included in the price of the ticket, because the meals were sold to airline customers. The taxpayer argued that for that reason the sales of the meals were not sales at retail for sales tax purposes. The court stated, in part,

In our view this argument cannot stand because there is in fact no resale. It is uncontroverted that the price of the meal is included in the price of the ticket. It is estimated that the price of the meal is actually about 1% of the cost of the ticket. To subdivide the cost of the ticket into percentages to cover the various services rendered by the airline in order to reach the artificial conclusion that there is a sale is to strain the meaning of the term “resale.” When a passenger buys a ticket, he buys many services, including baggage handling, the services of flight attendants, and in appropriate cases, meals. In addition, a portion of this ticket goes to purchase gasoline and the services of the flight personnel. It is artificial to attempt to divide this package of services into separate sales and say that one of them is the sale of meals furnished to passengers. Id. at 578.

The taxable privilege exercised by admission providers and taxed by s. 212.04, F.S., is a separate and discrete taxable privilege from that imposed on sellers of tangible personal property by s. 212.05, F.S. In American Video Corp., supra, two separate taxing privileges were involved. The opinion provides, in part, the following:

A separate tax is collected by appellant from its customers for the furnishing of the cable television service under Section 212.05(5). Because of this, appellant contends that the Comptroller's ruling creates double taxation - a tax on the drop- in items when purchased by appellant, and a tax on their use or rental when installed on the premises of a customer. Section 212.12(12) contains a declaration of legislative intent that wherever, in construction, administration or enforcement of the chapter on sales taxes there may be a question respecting the duplication of the tax, that the "end consumer, or last retail sale shall be the sale intended to be taxed and insofar as may be practicable there be no duplication or pyramiding of the tax." We conclude, under the facts of this case, that when appellant purchases these items for its use in providing television service to its customers, a taxable transaction occurs; and when the necessary connections are made and the customer receives his television service furnished by appellant, a separate taxable transaction occurs. Under the legislative scheme, the tax on appellant's initial purchases is passed on to its customers as a part of the regular monthly subscription. When there are two taxpayers and two separate taxable transactions or privileges, double taxation does not occur. See Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla.1964), and Boise Bowling Center v. State, 98 Idaho 367, 461 P.2d 262 (Idaho 1969). Id. at 1061.

In regard to duplicate taxation regarding two separate taxing privileges, the court in Florida Hotel and Motel Association, supra, determined, in part, the following:

We likewise agree with the Department's argument that no duplicate taxation occurs because the taxes at issue are levied on two separate taxable privileges. The tax imposed upon the purchase of tangible personal property used to furnish guest rooms is imposed upon the privilege of selling tangible personal property at retail, pursuant to section 212.05(1)(a)1.a., Florida Statutes (1991); whereas the tax imposed upon the rental of guest rooms is imposed upon the privilege of operating a hotel or motel, pursuant to section 212.03. It is now well settled that a sales or use tax "is a privilege or occupation tax ... levied upon the privilege of engaging in certain businesses or occupations." Gaulden v. Kirk, 47 So.2d 567, 579 (Fla. 1950). It is equally well-settled that no duplicate taxation occurs as long as the sales or use tax is imposed upon separate taxable privileges. Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla. 1964). Id. at 1048.

Based on the facts provided and the decisions in Ryder, Air Jamaica, American Video,
and Florida Hotel and Motel, there is no duplicate taxation or sale for resale, as asserted by Taxpayer, by requiring the tax to be paid on the purchases from Vendor. Taxpayer’s sales of premium tickets are the sale of box seat accommodations that are specifically the sale of admissions. See s. 212.02(1), F.S. As such, Taxpayer sold admissions, as provided by s. 212.04, F.S. In addition, Taxpayer did not identify on the tickets or other documentation the sales price of food sold, as required by s. 212.07(2), F.S.

Conclusion

Taxpayer, who is an admission provider, is required to pay sales tax on purchases of food and drink from Vendor when the food and drink is provided by Taxpayer at no separate charge to the Taxpayer’s admission ticket purchasers.

Issue #2

If the food and beverages are subject to tax, which entity is liable for the tax?

Facts

The parties initially agreed by an email that the price charged by Vendor to Taxpayer for these meals would be “all inclusive” and specifically, would include “all taxes, gratuities, and other charges.” The agreement has been modified, so that Vendor will separately state the sales tax.

Taxpayer Argument

Taxpayer asserts that Vendor is liable to pay the tax.

Law and Discussion

Sections 212.05(1)(a)1.a. and 212.07(1)(a), F.S., require Vendor to collect sales tax on the sales price of the catered items sold to Taxpayer. Vendor is liable for the tax if Vendor fails to collect the sales tax. See s. 212.07(2), F.S. Therefore, Vendor is liable for the tax, even if Vendor fails to collect the sales tax.

Section 212.07(2), F.S., requires that the sales be separately stated on the invoice, charge slip, or other tangible evidence of the sale. Section 212.07(4), F.S., prohibits Vendor from absorbing the sales tax in the sales price in any manner. The statements “all inclusive” and “all taxes, gratuities, and other charges” imply that Vendor absorbed the sales tax in the sales price, which

is prohibited by s. 212.07(4), F.S. The documentation between Taxpayer and Vendor should specifically separately state the sales tax amounts, as required by s. 212.07(2), F.S., on each invoice, charge slip, or other tangible evidence of sale.

Section 212.07(8), F.S., requires the purchaser of tangible personal property to pay the tax to the Department if the purchaser cannot prove that the tax was paid to the seller. Therefore, if Vendor failed to separately state that sales tax was paid, Taxpayer is liable for the tax.

Conclusion

Vendor is liable to collect the sales tax from Taxpayer. Vendor is then responsible for remitting the sales tax to the Department. Taxpayer is liable to remit the tax if Taxpayer cannot prove that the sales tax was paid to Vendor.

This response constitutes a Technical Assistance Advisement under section 213.22, F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice, as specified in section 213.22, F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes, or judicial interpretations of the statutes or rules, upon which this advice is based, may subject similar future transactions to a different treatment than expressed in this response.

You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of section 213.22, F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for Technical Assistance Advisement, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the taxpayer. Your response should be received by the Department within 10 days of the date of this letter.

Respectfully,
Charles Wallace
Senior Attorney
Technical Assistance & Dispute Resolution 850-717-7541

Record ID: 171881

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