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Sales and Use Tax TAA 16A-017 Food and Drink (Non-Alcoholic)

QUESTION: WHETHER SALES OF PRE-ASSEMBLED MEALS (NOT SOLD FOR IMMEDIATE CONSUMPTION) AS PART OF A WEEKLY MEAL PLAN ARE SUBJECT TO SALES TAX.

ANSWER: SINCE THE PRE-ASSEMBLED MEALS ARE NOT SOLD FOR IMMEDIATE CONSUMPTION, AND TAXPAYER IS NOT OPERATING AS A RESTAURANT, THE MEALS ARE EXEMPT FROM SALES TAX AS A FOOD PRODUCT.

November 7, 2016

Re: Technical Assistance Advisement 16A-017

Pre-Assembled Meals for Consumption off the Premises of Seller

Taxpayer Name: XXXX (“Taxpayer”)

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

Dear XXXX:

This response is in reply to your letter to the Department, dated July 22, 2016, 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 pre-assembled meals is exempt from sales tax 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

Whether sales of pre-assembled meals as part of a weekly meal plan are subject to sales tax.


FACTS

Taxpayer sells various individually packaged meals as a part of weekly meal plans to its customers. The meals require refrigeration and are intended for the customer to heat prior to eating and are not sold for immediate consumption. The meals, delivered during non-meal times or picked up directly by the customer at the kitchen processing center in XXXX, do not include napkins, utensils, or other serving materials. The kitchen facility is not licensed as a restaurant by the XXXX and XXXX and does not provide seating or other accommodations to allow customers to eat on the premises.

LAW

Pursuant to Section 212.05(1)(a), F.S., sales tax is imposed at the rate of 6 percent of the sales price of each item or article of tangible personal property when sold at retail in this state. As provided in Section 212.08(1), F.S., there are exempted from sales tax, food products for human consumption. The term "food products" means edible commodities, whether processed, cooked, raw, canned, or in any other form, which are generally regarded as food.

The exemption does not apply to food cooked or prepared on or off the seller’s premises and sold for immediate consumption, to meals for consumption on or off the seller’s premises, or to food products cooked, prepared, or sold in or by restaurants, lunch counters, cafeterias, hotels, taverns, or other like places of business. In determining whether an item is sold for immediate consumption, there shall be considered the customary consumption practices prevailing at the selling facility. Section 212.08(1)(d)2., F.S.

CONCLUSION

Since the pre-assembled meals are not sold for immediate consumption, and Taxpayer is not operating as a restaurant, the meals are exempt from sales tax as a food product.

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

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