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Sales and Use Tax TAA 14A-016 Exhibition Halls/ Food and Drink Concessionaires

QUESTION: IS A REAL PROPERTY LEASE QUALIFIED FOR THE EXEMPTION FOUND IN SECTION 212.031(1)(A)10., F.S.?

ANSWER: YES.

July 18, 2014

Re: Technical Assistance Advisement – TAA 14A-016
Sales and Use Tax – Exhibition Halls/Food and Drink Concessionaires Section: 212.031, Florida Statutes (F.S.)
Petitioner: XXX [hereinafter “XXX”]

Dear Mr. XXX:

This letter is a response to your letter dated December 5, 2013, requesting that the Department issue a Technical Assistance Advisement ("TAA") concerning the above referenced party and matter. Your letter has been carefully examined and the Department finds it to be in compliance with the requisite criteria set forth in Chapter 12-11, Florida Administrative Code. This response to your request constitutes a TAA and is issued to you under the authority of s. 213.22, F.S.

Issue

Whether the XXX qualifies as one of the premises listed in s. 212.031(1)(a)10., F.S., in order to render the XXX Agreement between the XXX and XXX (“Restaurant”) exempt from sales tax.

Presented Facts

Your letter sets forth the following information:

The XXX is a public-private partnership between the XXX, a 501(c)(3) non-profit organization, XXX County, which owns the building in which the museum is housed and the City of XXX, which owns the land upon which the XXX is built. The XXX operates the facility which features approximately 20,000 square feet of exhibit space, a meeting space and education center, and serves 75,000 visitors annually.

The XXX is a premier cultural attraction in the City of XXX, featuring cultural attractions and recreational educational experiences for all visitors through its cutting-edge interactive exhibits. The XXX also features permanent exhibits, and rotating and visiting exhibits, as well as a research center.

The XXX entered into a “XXX Agreement” with the XXX (“Restaurant”) for the operation of a restaurant on the premises of the XXX. The XXX Agreement grants Restaurant the “sole and exclusive right” to “operate the restaurant and food service points of sale in the XXX Areas.” See XXX Agreement 3a) and 2w). The “XXX areas” mean the restaurant, banquet rooms, kitchen and other areas where Restaurant provides food service. See XXX Agreement 2l). The XXX Agreement includes as Exhibits C-1, C-2, and C-3, floor plans of The XXX that specifically identify the XXX areas.

Law and Discussion

Section 212.031, F.S., generally imposes tax on the lease, rental, or license to use real property, however, it also provides specific exemptions from the tax, specifically property that is:

10. Leased, subleased, licensed, or rented to a person providing food and drink concessionaire services within the premises of a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, publicly owned recreational facility, or any business operated under a permit issued pursuant to chapter 550... For purposes of this subparagraph, the term “sale” shall not include the leasing of tangible personal property.

None of the venue types listed in the statute are defined in Chapter 212, F.S. As a general provision relevant to constructing the intended meaning of statutory terminology, the matter of Holly v. Auld, 450 So.2d 217 (Fla. 1984), must be considered. In this case, the Florida Supreme Court held that it is a fundamental principle of statutory construction that legislative intent and policy concerns must control our construction of statutes and that the determination as to the intent of the legislature is based upon the plain and ordinary meaning of the language in the statute itself. This tells us that we must deduce the meaning of the terms used in s. 212.031(1)(a)10., F.S., to be the plain and ordinary meaning normally associated with such terms.

The XXX believes the most likely venue listed in the relevant statute that fits its description and mission is “exhibition hall.” Using common language, an exhibition hall is a building or room in a building in which exhibits are displayed. The exemption is granted for leases, rentals, and licenses to use premises at specified venue-types, such as exhibition halls, to persons providing food and drink concessionaire services. Rule 12A-1.070(1)(b)(3), F.A.C., states that for purposes of this rule, the term “retail concessionaire,” which may be either a lessee or licensee, shall mean any person who makes sales of food or drink directly to the general public within the premises of any... convention hall, exhibition hall, auditorium or recreational facility... . Restaurant is a lessee who sells food or drink to the general public within the XXX. Restaurant meets the definition of a retail concessionaire.

Conclusion

Under the specific facts presented, the XXX is an “exhibition hall” for purposes of s. 212.031(1)(a)10., F.S., and the XXX Agreement with Restaurant qualifies for the sales tax exemption set forth therein.

Closing Statementpage3image1592

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 upon 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 from that which is 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.

Sincerely,

Clay Brower for Sara D. Faulkenberry Senior Tax Specialist
Technical Assistance and Dispute Resolution

Control # 157679

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