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Sales and Use Tax TAA 13A-014 - Custom Signs

QUESTION:

1- Are the charges to the Taxpayer’s customers for the sale and installation of the various categories of signs and awnings taxable as sales of tangible personal property?

2- Does the Department consider the Taxpayer, an out-of-state dealer, to be making improvements to realty when the Taxpayer through a third party local contractor installs signs and awnings in Florida?

3- Should the Taxpayer charge sales or use tax on charges for the installation and/or repair of signs and awnings?

ANSWER:

1- When the Taxpayer makes a sale of a sign or awning that is permanently attached to and becomes a part of realty, the Taxpayer is not selling tangible personal property. Rather, the Taxpayer is performing a real property improvement and should accrue and remit use tax on the cost, including fabricated cost, to the Department. Signs that do not become permanently attached and do not become a part of realty are sales of tangible personal property. The Taxpayer should charge its customer sales tax on the entire charge, including any installation cost.

2- The Taxpayer is acting as a real property improvement contractor, subject to Rules 12A-1.043 and 12A-1.051, F.A.C., when it sells and installs an awning or a sign that is installed through a local contractor when the Taxpayer is billed for the installation, which bill it in turn passes on as a part of its lump sum billing to the Florida customer.

3- When the Taxpayer sells and installs, or repairs, an awning or a sign that becomes a part of realty, the Taxpayer should not charge the customer sales tax. Rather, the Taxpayer should accrue and remit use tax on the costs of the awning or sign, including fabricated costs for the items used in the performance of the contract. When the sale/repair is for a sign that does not become permanently attached to realty, the sale/repair is for the sale/repair of tangible personal property, and the Taxpayer should charge sales tax on the entire charge, including any installation costs.

July 19, 2013

Re: Technical Assistance Advisement – TAA 13A-014 Sales and Use Tax – Custom Signs
Sections 212.05 and 212.06(14), Florida Statutes (F.S.) Rules 12A-1.043 and 12A-1.051, Florida Administrative Code (F.A.C)

XXX (“Taxpayer”)

FEIN: XXX

Dear XXX:

This response is in reply to your letter dated XXX, requesting the Department’s issuance of a Technical Assistance Advisement (“TAA”) pursuant to Section 213.22, F.S., and Rule Chapter 12-11, F.A.C., regarding the Department’s position on the Taxpayer’s sales of signs in this state. An examination of your letter 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.

PRESENTED FACTS

Taxpayer’s letter dated XXX, provides the following facts:

[Taxpayer] is a manufacturer of signs that it sells to customers in Florida as well as other states. [Taxpayer’s] customers are primarily well-known retailers that lease space in shopping malls across the country. A majority of the larger signs it produces have the retailer’s names on them, are electrically illuminated, and are installed prominently over the entryways of the respective retailers’ stores. The signs are all manufactured at [Taxpayer’s] facility in XXX. Signs are typically ordered by a customer who is planning for the opening of a new store. After the customer’s signs have been manufactured and are ready for shipment, [Taxpayer] will arrange for the signs to be picked up at its XXX facility and shipped by a common carrier and have them transported to the customer’s designated location in Florida. [Taxpayer] does not use its employees to install signs. Instead, [Taxpayer] contracts with a [third] party installer in Florida to do to the [installation]. Once the installation is complete, the [third] party installer will invoice [Taxpayer] for its services. [Taxpayer] in turn invoices its customer for the selling price negotiated for the signs, along with separately stated charges for [third] party installation fees, permit fees, site survey fees and charges for shipment of the property to the customer. [Taxpayer] charges a lump-sum amount for each sign that includes the manufactured cost of the sign plus a profit markup amount for each sign listed on a customer’s invoice.

[Taxpayer] also sells XXX to its customers. The XXX are manufactured by unrelated companies that sell the XXX to [Taxpayer] who in turn sells the specifically made XXX to its customers, installed. [Taxpayer] also hires thirdparty contractors to install the XXX. The contractors invoice [Taxpayer] for their work, and [Taxpayer] includes the installation charge as a separate line item on its invoice to its customers.

When repairs to signs are needed by its customers in Florida, [Taxpayer] subcontracts the repair work out to instate sign companies who perform the needed repairs and bill [Taxpayer] for their work. [Taxpayer] in turn bills its customer for the repairs. The subcontractor is responsible for providing all the necessary tools, parts, and any other items needed to repair the sign.

Taxpayer manufactures and sells five (5) major types of signs. Taxpayer’s correspondence provides descriptions of the signs as follows:

Cabinet Signs: This type sign is usually positioned prominently just outside a retailer’s store, and will generally have the store’s name on it. Cabinet signs can be made of different types of materials including, aluminum sheet metal, plastic, etc. They are either screwed or bolted into sheetrock on the outside of the store or, if too heavy, they are screwed or bolted into the metal or wood studs on which the sheetrock is hung. These signs are easily removable. To do so, one would take out the screws or bolts that fasten them to the sheetrock or studs. Therefore, there would be virtually no damage to the realty upon the removal of this type of sign.

Channel Letters: These signs also appear over the doorways of retail stores or on walls inside the stores. They consist of individually fabricated letters made from sheet metal or plastic. A number of pins are mounted on each of the letters that make up the sign. An equal number of individual receptor brackets are strategically implanted in the wall on which the letters will be placed. These receptors are placed so that they line up with the pins on each of the letters. The letters are then pushed into the receptors and then secured with nuts. Once installed, the back of the letters protrude from the wall by an inch or more. These letters can either be face lit or back lit, according to the customer’s requirements. The letters can easily be removed from the brackets on which they sit by unscrewing the nuts and pulling the letters and pin out of their brackets.

Digital Imaging: These are digital images that are reproduced by our client on varying types of media. They are printed at [Taxpayer’s] Kentucky facility using very large digital printers. The images are poster like and can be quite large. Some of these signs can be up to 82 inches wide. Barricade graphics are an example of a digital image. They typically appear on the outside of a store that is under construction and advertise its future opening. Digital imaging is also used to produce murals that are placed in store windows or sometime applied to walls using adhesives. They can also be free standing as well. Digital images can be easily removed from the various surfaces on which they are attached or mounted.

Vinyl Graphics: This category is produced from large sheets of vinyl materials that are cut using a computer-controlled cutting machine that generates the individual letters. The letters are usually applied to windows, but can also be applied to walls using adhesives. Vinyl letters are easily removable using a scraping device.

Non-Illuminated Signs: This category would encompass signs that are made from flat, cut out letters typically made of acrylic or foam-type materials. These signs are usually attached to surfaces through the use of silicone or tape and are easily removable.

REQUESTED RULINGS

Taxpayer requests information regarding how to tax each specific transaction going forward. Specifically, the Taxpayer lists as issues the following:

1. Under Florida sales/use tax laws, are the charges to [Taxpayer’s] customers for the sale and installation of each of the aforementioned categories of signs or XXX taxable as sales of tangible personal property?

2. Does the Department of Revenue consider [Taxpayer] to be making improvements to realty when it [sells] and installs any of the categories of signs or XXX and therefore treat [Taxpayer] as a manufacturer/contractor subject to the provisions of [Rule 12A-1.051, F.A.C]?

3. Should [Taxpayer] charge sales/use tax on the charges it bills its customers for installation of signs and XXX?

4. Should [Taxpayer] charge sales/use tax on the charges it bills to its customers for the repairs made to signs and XXX?

APPLICABLE STATUTES AND RULES

The appropriate taxation of the sale and installation of Taxpayer’s signs and/or XXX is dependent upon whether Taxpayer is, through a subcontractor, performing a real property improvement contract, or whether Taxpayer is selling and installing tangible personal property. Section 212.05, F.S., generally imposes tax on the sale of tangible personal property, including any services that are a part of the sale, when the sale occurs in Florida. The sale is deemed to have occurred in Florida when the purchaser takes possession of the item in Florida.

Section 212.06(14), F.S., provides the following regarding improving real property:

(14) For the purpose of determining whether a person is improving real property, the term:

(a) “Real property” means the land and improvements thereto and fixtures and is synonymous with the terms “realty” and “real estate.”

(b) “Fixtures” means items that are an accessory to a building, other structure, or land and that do not lose their identity as accessories when installed but that do become permanently attached to realty. However, the term does not include the following items, whether or not such items are attached to real property in a permanent manner: property of a type that is required to be registered, licensed, titled, or documented by this state or by the United States Government, including, but not limited to, mobile homes, except mobile homes assessed as real property, or industrial machinery or equipment. For purposes of this paragraph, industrial machinery or equipment is not limited to machinery and equipment used to manufacture, process, compound, or produce tangible personal property. For an item to be considered a fixture, it is not necessary that the owner of the item also own the real property to which it is attached.

(c) “Improvements to real property” includes the activities of building, erecting, constructing, altering, improving, repairing, or maintaining real property.

Rule 12A-1.051, F.A.C., provides in pertinent part:

(2) Definitions. For purposes of this rule, the following terms have the following meanings:

* * *

(c)1. "Fixture" means an item that is an accessory to a building, other structure, or to land, that retains its separate identity upon installation, but that is permanently attached to the realty. Fixtures include such items as wired lighting, kitchen or bathroom sinks, furnaces, central air conditioning units, elevators or escalators, or built-in cabinets, counters, or lockers.

2. In order for an item to be considered a fixture, it is not necessary that the owner of the item also own the real property to which the item is attached. A retained title provision in a sales contract or in an agreement that is designated as a lease but is in substance a conditional sales contract is not determinative of whether the item involved is or is not a fixture. Similarly, the fact that a lessee or licensee of real property rather than the lessor/owner enters into a contract for an item to be permanently attached to the real property does not prevent that item from being classified as a fixture.

* * *

(h)1. "Real property contract" means an agreement, oral or written, whether on a lump sum, time and materials, cost plus, guaranteed price, or any other basis, to:

* * *

c. Furnish and install tangible personal property that becomes a part of or is directly wired or plumbed into the central heating system, central air conditioning system, electrical system, plumbing system, or other structural system that requires installation of wires, ducts, conduits, pipes, vents, or similar components that are embedded in or securely affixed to the land or a structure thereon.

* * *

Rule 12A-1.043(1), F.A.C., sets forth the procedure for calculating tax on the fabricated cost of taxable items.

Paragraph (4) of Rule 12A-1.051, F.A.C., provides that contractors are the ultimate consumers of the materials and supplies they use to perform real property contracts and must pay tax on the costs of those materials and supplies. Further, subsection (17) of the rule provides that contractors engaged in the activity of installing XXX and signs that are permanently attached to realty are considered real property contractors.

From s. 212.06(14), F.S., “real property” is land, improvements to land, and fixtures. “Fixtures” are “items that are an accessory to a building, other structure, or land and that do not lose their identity as accessories when installed but that do become permanently attached to realty.” Although the determination whether an item is a fixture requires review of all the facts and circumstances, a prerequisite is that it must be attached to the real property in some manner indicating that it has become part of the real property and will remain in place indefinitely. Custom designed signs made for a specific customer that are screwed or bolted to the customer’s facility, such as the Taxpayer’s “cabinet” and “channel letter” signs, would be considered as permanently attached and becomes real property when installed.

Thus, when Taxpayer is responsible for the manufacture and installation of an awning or sign that becomes an improvement to real property, using a Florida subcontractor for the installation, Taxpayer is the ultimate consumer of the materials incorporated into the awning or sign, and Taxpayer owes use tax on the fabricated costs of the awning or sign.

Based on the above provided descriptions, it appears that XXX, “cabinet” signs and “channel letters” signs become a part of real property when installed. The “digital imaging,” “vinyl graphics,” and “non-illuminated,” signs may or may not become a part of realty when installed depending upon the circumstances and the intended purpose of the specific sign. For example, digital imaging vinyl panels or other similar material sign attached to storefront windows noting the store is under construction or advertising a future opening are not classified as a “fixture,” and are tangible personal property. Thus, sales tax is due on the full sales price, including any installation labor charged. Vinyl panels that are permanently attached to a building or other such structure are fixtures and classified as real property are improvements to realty. As such, use tax is due on the total cost of materials and supplies, including any fabrication costs. Vinyl graphics and vinyl letters attached to storefront windows are not classified as a fixture and are tangible personal property. Non-illuminated signs attached to structures like the brick entrance to a subdivision which is intended to remain in place indefinitely and would be considered a fixture of real property.

Therefore, when Taxpayer contracts with a Florida customer either for the sale and installation or the repair of XXX, “cabinet” signs, and “channel letter” signs, Taxpayer is deemed the ultimate consumer of the materials and supplies used in the real property contract or repair and must accrue and remit use tax on the total costs, including fabricated costs. When acting as a real property contractor, Taxpayer’s purchase and use of tangible personal property, for use in the performance of the real property contract, are subject to the provisions of Rules 12A-1.043, and 12A-1.051, F.A.C. Taxpayer should not charge its customers sales tax on such contracts, as Taxpayer does not resell the tangible personal property to the customer. Rather, Taxpayer should accrue and remit use tax on the costs, including fabricated costs, used in the performance of the real property contract.

When Taxpayer sells and installs a sign or vinyl graphic that is not attached to realty in a manner indicating that it has become a part of realty and will remain in place indefinitely, Taxpayer is installing tangible personal property and should charge the customer tax on the entire sales price, including any services that are a part of the sale.

In response to your specific questions:

Question 1: Under Florida sales/use tax laws, are the charges to Taxpayer’s customers for the sale and installation of each of the aforementioned categories of signs or XXX taxable as sales of tangible personal property?

Response: The sale and installation of XXX and signs that are permanently attached to and become a part of real property are not sales of tangible personal property. Taxpayer should not charge its customer sales tax on real property improvement contracts because Taxpayer is not reselling tangible personal property. Rather Taxpayer should accrue and remit use tax on the costs of materials and supplies, including any fabrication costs, used in the performance of the real property contract. Signs that are not permanently attached to and that do not become a part of the real property are sales of tangible personal property. Taxpayer should charge its customer sales on the sales price of the sign including labor.

Question 2: Does the Department of Revenue consider Taxpayer to be making improvements to realty when it sells and installs any of the categories of signs or XXX and therefore treat Taxpayer as a manufacturer/contractor subject to the provisions of Florida Rule 12A-1.051, F.A.C.?

Response: Yes, Taxpayer is acting as a real property contractor when it sales and installs an awning or sign that becomes a part of real property, and is subject to Rules 12A-1.043 and 12A-1.051, F.A.C., under those circumstances.

Question 3: Should Taxpayer charge sales/use tax on the charges it bills to its customers for installation of signs and XXX?

Response: When Taxpayer sells and installs an awning or sign that becomes a part of real property, Taxpayer should not charge its customer sales tax. Rather, Taxpayer should accrue and remit use tax on the costs of the XXX and signs, including fabricated costs, for the items and supplies used in the performance of the contract. When Taxpayer sells and installs a sign that does not become permanently attached to realty, Taxpayer is making a sale of tangible personal property and should charge the customer sales tax on the entire sales price.

Question 4: Should Taxpayer charge sales/use tax on the charges it bills to its customers for repairs made to signs and XXX?

Response: When Taxpayer makes a repair of an awning or sign that is a part of realty, Taxpayer is responsible for use tax on the costs of the supplies and materials used in the performance of the real property repair. If the repair is made to an item of tangible personal property, Taxpayer should charge the customer sales tax on the entire sales price.

CONCLUDING STATEMENT

This response constitutes a Technical Assistance Advisement under s. 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 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.

Sincerely,


Horace Royals

Tax Law Specialist

Technical Assistance and Dispute Resolution

(850) 717-7289


Record ID: 139450

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