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Sales and Use Tax TAA 17A-021 - Admissions

November 3, 2017

TAX: Sales and Use Tax

TAA NUMBER: 17A-021

ISSUE: Admissions

STATUTE CITE(S): Section(s) 212.04, and 212.02(1), F.S.

RULE CITE(S): Rule 12A-1.005(4)(d)2., F.A.C.

QUESTION: Are dues and fees paid by members exempt from sales tax as dues and fees paid
for instructional classes?

ANSWER: No, members have access to the gym facilities during normal business hours in
addition to instructional class periods.

XXXXXX
XXXXXX
XXXXXX
XXXXXX

Subject: Technical Assistance Advisement (“TAA”)
TAA 17A-021
Sales and Use Tax-Admissions

Section(s) 212.02(1), and 212.04, Florida Statutes (“F.S.”)
Rule(s) 12A-1.005(4)(d)2., Florida Administrative Code (“F.A.C.”)

XXXXXX (“Taxpayer”)(“Owner”)(“Petitioner”)
Business Partner Number: XXXXX
FEIN: XXXXXXX
XXXXXXXXXXX

Dear XXXXX:

This letter is a response to your petition received September 18, 2017, for the Department’s issuance of a Technical Assistance Advisement (“TAA”) to Petitioner, regarding memberships. Your petition has been carefully examined, and the Department finds it to be in compliance with the requisite criteria set forth in Rule Chapter 12-11, F.A.C. This response to your request constitutes a TAA and is issued to you under the authority of section 213.22, F.S.

Facts

Taxpayer operates as XXXXXXXX. Taxpayer sells memberships, drinks, and clothing. The memberships sold provide clients access to the XXXXX classes. Taxpayer’s website provides that the classes last one hour. The members are required to book the classes in advance. Your previous request provided that the gym facility is only available to members during class time.

Taxpayer’s website provides a video of Taxpayer’s facility. The video reflects that Taxpayer has several XXXXXXX in its gym facility that are used by members. Taxpayer’s website provides a schedule of classes that last for one hour each. The class times are scheduled every three hours. Based on the schedule of classes, the hours of access for certain days provided on the website
schedule was from 8:00 a.m. until 9:00 p.m.

The request included copies of the prepaid membership agreement and the recurring dues membership agreement. Both agreements provide an agreement provision for access and use of facilities. It provides the following:

DESCRIPTION OF SERVICES; HOURS OF ACCESS. This Agreement entitles you to access the XXXXX facilities and services during normal business hours, which will be posted at each XXXXXX location. A XXXX XXXXXX class is a full-body workout that begins with warm-up stretching, followed by intervals of XXXXXXX, calisthenics, aerobics, and culminates with cool-down stretching. (Emphasis added)

Both agreements have a provision regarding personal training memberships. It provides the following:

If you have a personal training membership, you may cancel a personal training session by giving at least a 24-hour notice of cancellation. If a 24-hour notice of cancellation is not given, you will be charged for the session. If you are late for a personal training session, the time will be subtracted from that session; session times will not be extended.

Applicable Law and Response

Section 212.04(1), F.S., requires sales tax to be collected on the sales price or amounts received from the sale of admissions. Section 212.02(1), F.S., defines the term “Admissions.” It provides, in part, the following:

(1) The term “admissions” means and includes the net sum of money after deduction of any federal taxes for admitting a person or vehicle or persons to any place of amusement, sport, or recreation or for the privilege of entering or staying in any place of amusement, sport, or recreation, including, but not limited to, … any place where charge is made by way of cover charges … or other fees or receipts of anything of value measured on an admission or entrance or length of stay … in any place where there is any … sport, or recreation, and all dues and fees paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to … athletic, exercise, and fitness facilities …. (Emphasis added)

As provided by s. 212.02(1), F.S., the term “admissions” includes all dues and fees collected by private or membership clubs providing recreational facilities. Your request maintains that the dues and fees payments are for instructional classes.

Rule 12A-1.005(4)(d)2., F.A.C., provides, the following:

(d) Fees paid to private clubs or membership clubs that do not entitle the payor to the use of the club’s recreational or physical fitness facilities are not subject to tax. Examples of such fees are:
****

2. Charges for professional instructions in any sport conducted at the club, so long as such charges are exclusively for the instructions and include the use of the facility only during the period of time the instructions are taking place. It is not the intention of this rule to allow a club to exempt what is in effect a dues or membership fee by labeling such charges as instruction fees. (Emphasis added)

Rule 12A-1.005(4)(d), F.A.C., provides that certain charges are not considered taxable dues and fees. Rule 12A-1.005(4)(d)2., F.A.C., provides that charges for professional instructions in any sport conducted at a club are not dues and fees, so long as such charges are exclusively for the instructions and include the use of the facility only during the period that the instructions are taking place. The Rule provides that it is not the intention of the Rule to allow a club to exempt what are in effect dues or membership fees by labeling such charges as instruction fees. As with most instruction, once the member learns the sport for which instruction is provided, then it is presumed that the instruction will be completed. In other words, classes must be designed with a goal of completion by the member.

As required by the Rule, access to a club’s facilities must only be allowed during the class times. The agreement language does not provide for such a limitation, because access is allowed during normal business hours. Based on this agreement language, members may use Taxpayer’s facilities at times when classes are not being conducted. In addition, based on the agreement provisions, separate memberships for personal instruction are purchased separately. Therefore, Rule 12A-1.005(4)(d)2., F.A.C., is not applicable regarding the dues and fees paid pursuant to the prepaid membership agreement and the recurring dues membership agreement. As such, the tax imposed by s. 212.04, F.S., applies to the dues and fees paid pursuant to the prepaid membership agreement and the recurring dues membership agreement.

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 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 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.

Respectfully,
Chuck Wallace
Technical Assistance & Dispute Resolution
(850) 717-7541
AMS ID: 7000022886

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