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Sales and Use Tax – 15A-016 – Baked Good for Consumption off the Premises of Seller

QUESTION: WHETHER THE SALE OF BAKED GOODS SOLD FROM A HOME-BASED BAKERY ARE EXEMPT FROM SALES TAX AS A FOOD PRODUCT UNDER S. 212.08(1), F.S.

ANSWER: BAKED GOODS PREPARED FROM A HOME-BASED BAKERY QUALIFY AS AN EXEMPT FOOD PRODUCT UNDER S. 212.08(1), F.S., AND ARE NOT SUBJECT TO SALES TAX.

November 9, 2015

Re: Technical Assistance Advisement – TAA 15A-016

Baked Goods for Consumption off the Premises of Seller

Taxpayer Name: XXXXX (“Taxpayer”)

Sales and Use Tax

Section 212.08(1), Florida Statutes (F.S.)

Dear XXXXX:

This response is in reply to your letter to the Department, dated XXXXX, 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 sales of baked goods for off-premises consumption are exempt from sales tax as a food product under section 212.08(1), 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 s. 213.22(1), F.S., a technical assistance advisement may be issued to a taxpayer who requests an advisement relating to the exemptions in s. 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.”

REQUESTED RULING

You are requesting advisement regarding whether the sales of baked goods from your home-based bakery are exempt from sales tax as a food product and whether the sales of your baked goods at “vendor events” are subject to sales tax under s. 212.08(1), F.S.

FACTS

As stated in your letter, you operate a home-based bakery operating under the Cottage Food Laws, which do not require your operation to be licensed as a bakery by the Department of Agriculture and Consumer Services under Chapter 500, F.S. Customers order the bakery products from you and pick them up for consumption elsewhere. You also sell bakery products at “vendor events” where there are no seating areas available. You have not specified if there is an admission charge to attend the vendor events where your products are sold.

LAW

As provided in s. 500.80(1)(a), F.S a “cottage food operation” does not have to obtain a permit or register as a bakery or pastry shop with the Department of Agriculture and Consumer Services if the operation complies with specific requirements of s. 500.12, F.S., and has annual gross sales of cottage food products that do not exceed $15,000.

For sales tax purposes, s. 212.08(1), F.S., exempts the sale of food products. The term “food products” includes bakery products sold by bakeries, pastry shops, or like establishments that do not have eating facilities. However, if a bakery or pastry shop has eating facilities, this exemption does not apply and sales tax should be collected unless the bakery products are specifically packaged and sold for consumption off the premises. The exemption for food products also does not apply to food products sold ready for immediate consumption within a place, or at an event, the entrance to which is subject to an admission charge. The exemption for food products also does not apply to the sale of candy and any similar product regarded as candy or confection, based on its normal use, as indicated on the label or advertising thereof. See s. 212.08(1)(c)11., F.S.

CONCLUSION

Regardless of whether you are not required to be licensed as a bakery or pastry shop with the Department of Agriculture and Consumer Services under Chapter 500, F.S., since you only sell bakery products for consumption off premises, sales made from your home-based bakery business are exempt from sales tax. The sales made at vendor events are also exempt from sales tax unless they are sold at an event where the entrance has an admission charge. Lastly, any of your products that would be regarded as candy are subject to tax.

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: 202713

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