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Sales and Use Tax TAA 12A-028 Sale of Bakery Products

QUESTION: Whether the sale of bakery products in retail bakery outlets for consumption off the seller’s premises are subject to sales tax imposed under Chapter 212, F.S.

ANSWER: Regardless of quantity, sales of the bakery products for consumption off the premises are exempt when packaged in a manner consistent with an intention by the customer to consume the products off the seller’s premises and the sale is recorded through the POS using a special key to record the exempt sale. Taxpayer’s sales of coffee beans, ground coffee, and “kcup portion packs” are exempt as food products.

December 14, 2012

Re: Technical Assistance Advisement – TAA 12A-028

Sale of Bakery Products

Taxpayer Name: XXX

Taxpayer ID Number: XXX

Sales and Use Tax Section 212.08(1), Florida Statutes (F.S.)

Rule 12A-1.011, Florida Administrative Code (F.A.C.)

Dear XXX:

This response is in reply to your letter to the Department, dated XXX, in which you are requesting the Department's issuance of a Technical Assistance Advisement ("TAA") pursuant to s. 213.22, F.S., and Chapter 12-11, F.A.C., regarding whether the sale of bakery products in retail bakery outlets for consumption off the seller’s premises are subject to sales tax imposed under Chapter 212, F.S. An examination of your petition has established that you have complied with the statutory and regulatory requirements for issuance of a TAA. Therefore, the Department is hereby granting your request for issuance of a TAA.

As provided in Section 213.22(1), F.S., a technical assistance advisement may be issued to a taxpayer who requests an advisement relating to the exemptions in Section 212.08(1) or (2), F.S., at any time. Technical assistance advisements shall have no precedential value except to the taxpayer who requests the advisement and then only for the specific transaction addressed in the technical assistance advisement, unless specifically stated otherwise in the advisement.

PRELIMINARY FACTS

Taxpayer is a Florida limited liability company and owns and operates 14 retail bakery outlets in southwest Florida. Each outlet is a “XXX” franchisee and operates a “XXX” outlet. In addition to the retail outlets, Taxpayer owns XXX, a Florida limited liability company that operates a central manufacturing location (bakery). The bakery manufactures fresh bakery products for, and delivers them to, its affiliated retail outlets. The bakery also provides products to other affiliated retail outlets as well as to the franchise operations of other XXX franchisees.

As stated in your request, more than XXX percent of the retail business is made up of baked goods and coffee and all of the retail outlets have seating. The seating is sparse in all of the shops and almost half of the business at the retail outlets is derived from drive-thru service.

XXX of the XXX retail outlets are licensed by the Department of Agriculture as a “Retail Bakery with Food Service or Specialty Food Shops” and XXX are licensed by the Department of Business and Professional Regulation as “Seating Food Service.” You assert that these XXX locations had ice cream service which has been extracted, and Taxpayer expects that in 2013 these locations will be licensed by the Department of Agriculture as a Retail Bakery with Food Service or Specialty Food Shop. The bakery is licensed by the Department of Agriculture as a Wholesale Bakery.

As stated in your request for technical assistance:

. . . the vast majority of the food products sold by these outlets are bakery products, such as doughnuts, muffins, bagels and croissants, and related beverages, such as coffee or tea. Although some sandwiches may be sold, sales tax is charged and collected for sandwiches, even though sandwiches are made with bakery products. Wait service and full meals are not offered, and the Division of Hotels and Restaurants does not license these entities. Therefore, the retail outlets are not restaurants but are bakeries or pastry shops.

The retail outlets sell bakery products for human consumption on and off their premises. When customers purchase bakery products in quantities of five or less, sales tax is charged and collected. When bakery products are sold in quantities of six or more, the customer is given the product in special packaging that is secured with tape or a seal/sticker, and the sale is recorded through the POS using a special key or keys for these transactions. This procedure permits [Taxpayer] to establish that bakery products are sold in a manner consistent with the intent by its customers to consume the product off the premises, and the retail outlets are able to separately account for non-taxable from taxable sales.

REQUESTED RULING

You are requesting a ruling concerning whether the retail bakery outlets are required to collect sales tax on bakery items sold in quantities of six or more as follows: half dozen bagels; dozen bagels; half dozen donuts; dozen donuts; two dozen donuts; 25 XXX; 50 XXX when the customer is given the product in special packaging that is secured with tape or a seal/sticker, and the sale is recorded through the POS using a special key to establish the products are sold for consumption off the premises. You also seek guidance concerning whether Taxpayer is required to collect sales tax on the sale of coffee beans, ground coffee and “k-cup portion packs,” which are not sold for immediate consumption.

LAW

Pursuant to Section 212.08(1), F.S., there are exempted from tax imposed by this Chapter, 212, F.S., food products for human consumption. The term "food products," as defined in Section 212.08(1)(b), F.S., means edible commodities, whether processed, cooked, raw, canned, or in any other form, which are generally regarded as food. Food products include coffee and coffee substitutes, meat and meat products, baked goods, fish and seafood products, vegetables and vegetable products, fruit and fruit products.

Section 212.08(1), F.S., exempts the sale of bakery products when they are sold by bakeries, pastry shops, or like establishments for consumption off the seller’s premises. As provided in Rule 12A-1.011(3)(c)2., F.A.C.:

For the purpose of this paragraph, there shall be a rebuttable presumption that the sale of bakery products by bakeries, pastry shops, or like establishments that have eating facilities are taxable when:

a. Such bakery products are sold in quantities of five (5) or fewer items; or

b. The bakery products sold, regardless of the quantity, are not packaged in a manner consistent with an intention by the customer to consume the products off the seller’s premises.

As stated in Rule 12A-1.011(3)(c)3., F.A.C., bakery products that are sold, regardless of the quantity, in packaging that is glued, stapled, wrapped, or sealed are examples of packaging consistent with an intention by the customer to consume products off the seller’s premises. As provided in Rule 12A-1.011(3)(c)4., F.A.C.:

4. Bakeries, pastry shops, or like establishments that have eating facilities and make tax-exempt sales of bakery products that are for consumption off the premises are required to separately account for the tax-exempt sales of bakery products for consumption off the premises.

a. Examples of methods to separately account for tax-exempt sales of bakery products for consumption off the premises are: using sales invoices which contain documentation that the sale of the bakery product is for consumption off the premises; using a separate key on a cash register to record tax-exempt sales of bakery products; or using a separate cash register to record taxexempt sales of bakery products.

b. Example. A bakery operates an establishment with eating facilities. The bakery sells donuts, toasted bagels, and other pastries, as well as coffee and other drinks. The bakery sells bakery products to patrons who take the products home for consumption in sealed containers. Products sold for consumption on the premises are served to the customers on trays. The bakery uses separate keys on its cash registers to account for the sales of tax-exempt bakery products to patrons who purchase the products for consumption off the premises in sealed containers separately from the accounting for taxable sales of toasted bagels, coffee, other drinks, and bakery products for consumption on the premises. The bakery products sold for consumption off the premises are exempt, because the bakery’s packaging and accounting methods overcome the rebuttable presumption that the products are sold for consumption on the premises.

DETERMINATION

Regardless of quantity, sales of the bakery products for consumption off the premises are exempt when packaged in a manner consistent with an intention by the customer to consume the products off the seller’s premises and the sale is recorded through the POS using a special key to record the exempt sale. Taxpayer’s sales of coffee beans, ground coffee, and “k-cup portion packs” are exempt as food products.

This response constitutes a Technical Assistance Advisement under s. 213.22, F.S. which is binding on the department only under facts and circumstances described in the request for this advice, as specified in s. 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 s. 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 15 days of the date of this letter.

If you have any further questions with regard to this matter and wish to discuss them, you may contact me directly at (850) 717-7202.

Sincerely,



Richard R. Parsons

Tax Law Specialist

Technical Assistance & Dispute Resolution

(850) 717-7202

Record ID: 132445

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