TAA 24A-021 Food

QUESTION: Are the sales of artisan cheese and charcuterie board packages described in the facts below exempt from Florida sales and use tax? 

ANSWER: Sales by Taxpayer of the artisan cheese and charcuterie board packages described in the specific facts below are exempt from Florida sales and use tax under the provisions of s. 212.08(1), F.S. 

January 07, 2025

Via e-mail: ________________ 

Re: Technical Assistance Advisement – TAA #: 24A-021 

________________ (“Taxpayer”) 

Sales and Use Tax – Food 

Sections 212.05, 212.08(1), 212.055, Florida Statutes (F.S.) 

Rule 12A-1.011(2),(4)(b), Florida Administrative Code (F.A.C.) 

BP #: ________________ 

Dear ________________ : 

This is in response to your letter dated ________________ , requesting this Department’s issuance of a Technical Assistance Advisement (“TAA”) pursuant to Section(s.) 213.22, F.S., and Rule Chapter 12-11 F.A.C, Florida Administrative Code, regarding the matter discussed below. Your request has been carefully examined, and the Department finds it to be in compliance with the requisite criteria set forth in Chapter 12-11, F.A.C. This response to your request constitutes a TAA and is issued to you under the authority of s. 213.22, F.S. 

REQUESTED ADVISEMENT 

Are the sales by Taxpayer of the artisan cheese and charcuterie board packages described below, under the specific facts as indicated, exempt from Florida sales and use tax under the provisions of s. 212.08(1), F.S.?

FACTS 

Your letter states: 

Taxpayer arranges artisan cheese and charcuterie boards to be shipped nationwide from Taxpayer’s facility in ________________ . The meats and cheeses that are used in the arrangement of the boards are purchased and arrive at Taxpayer’s facility in bulk, where they are then sliced by Taxpayer’s employees to sizes and shapes appropriate for Taxpayer’s assorted product options. Each day, boards are processed and shipped from Taxpayer’s facility via common carrier to customers nationwide in custom designed and insulated boxes with ice packs, allowing the product to remain at 40 degrees for up to 48 hours. The product is sold as a single charge.

When the customer opens the shipping box, they are presented with a separately sealed box of crackers as well as the chilled charcuterie board ingredients. The board ingredients include individually wrapped trays of meats, cheeses, and fruits, as well as items like a jar of olives, chocolate-covered snacks, and individually wrapped packages of nuts to be placed on the tray when ready for consumption. The boards are intended to feed between 4 and 20 individuals, depending on the size and design of the board. The product also contains a set of serving utensils - a small wooden knife, small wooden tongs, a spoon, and toothpicks used to transfer the cheese, meat, and other items from the board. The cost of these items and the physical board does not exceed 25% of the cost of the complete package. 

Once unpacked from the box, the whole product is sealed. Upon removing the outer packaging, there are three small paper trays that each contain various meats, cheeses, and nuts. There is also a jar of olives and a sealed bag filled with chocolate-covered coffee beans. Upon unwrapping the three small paper trays, the customer may access the meats and cheeses, but all nuts are separately packaged and sealed.

Taxpayer states that before ever serving the product, the following steps must occur: 

• The board must be removed from the shipping box, 
• The crackers must be removed from the shipping box, 
• The ribbon and the external seal must be removed from the board, 
• The three (3) sealed small paper trays must be opened, 
• Multiple sealed bags of nuts must be opened (four in the product pictured) 
• The sealed bag of chocolate covered coffee beans must be opened, and 
• The box of crackers must be opened. 

Also, the customer is directed to refrigerate the product upon receipt. The product stays fresh for up to seven days in the refrigerator if the individual wraps are unopened. The product’s instructions provide that it should be removed from the refrigerator and unwrapped for at least one hour prior to serving.

LAW AND DISCUSSION 

Unless a specific exemption applies¹, s. 212.05, F.S., provides it is the legislative intent that every person is exercising a taxable privilege that engages in the business of selling tangible personal property² in this state. For exercising such a privilege, a tax is levied on each taxable transaction or incident. The tax is due and payable at the rate of 6 percent, plus any applicable surtaxes imposed under s. 212.055, F.S., on the total consideration received for each item or article of tangible personal property when sold at retail. 

For the purposes of Florida sales and use tax, food is considered tangible personal property and is subject to tax, unless a specific exemption applies.

Section 212.08(1), F.S., provides that many food products for human consumption are exempt from sales tax. The term “food products” means edible commodities, whether processed, cooked, raw, canned, or in any other form, which are generally regarded as food. See also Rule 12A-1.011(2), F.A.C. For the purposes of administering this subsection of the Florida statutes, items such as meats, cheeses, nuts, and fruits are considered food products and as such the sale of these types of products are specifically exempt from tax. 

Sales of sealed or packaged meats, cheeses, nuts, fruits, chocolate-covered coffee beans, and crackers are specifically exempt from tax. Based on the facts described above, the Taxpayer is selling and shipping sealed and packaged exempt food products to customers throughout the United States. It is understood that after the package is received by the customer, the board and utensils are used for the presentation/serving of exempt products included in the package sold to the customer. It appears that none of the other exclusions to the food products exemption in s. 212.08(1)(c), F.S., apply.

Section 212.08(1)(f)2., F.S., provides that if the taxable items represent 25 percent or less of the cost of the complete package and a single charge is made, the entire sales price of the package is exempt from tax. The person preparing the package is liable for the tax on the cost of the taxable items going into the complete package. If the taxable items are separately stated, the separate charge is subject to tax.

Under the facts presented, the charcuterie board packages are sold for a single non-itemized charge. Accordingly, since the cost of the board and serving utensils do not exceed 25% of the cost of the complete artisan cheese and charcuterie board package, the entire sales price of the package would be exempt from tax. 

CONCLUSION 

Sales by Taxpayer of the artisan cheese and charcuterie board packages described above under the specific facts indicated are exempt from Florida sales and use tax under the provisions of s. 212.08(1), F.S.

This response constitutes a TAA 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 TAA, 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 ten (10) days of the date of this letter.

Alesia Pride 

Tax Law Specialist 

Office of Technical Assistance

^{1. While taxing statutes are strictly construed against the taxing authority, statutes that grant an exemption are strictly construed against the taxpayer. See Asphalt Pavers v. Dept. of Revenue 584 So.2d 55 (Fla. 1st DCA 1991), at 57 (citing the rule that exemptions from tax are strictly construed against the taxpayer, with any ambiguity resolved in favor of the administrative agency); State ex rel. Szabo Food Services Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973) (“Exemptions to taxing statutes are special favors granted by the Legislature and are to be strictly construed against the taxpayer.”). See also, United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959) (also stating that exemptions from tax are strictly construed against the taxpayer) and Wanda Marine Corp. v. Dep’t of Revenue 305 So.2d 65, 69 (Fla. 1st DCA 1975).} 

^{2. “Tangible personal property” means and includes personal property which may be seen, weighed, measured, or touched or is in any manner perceptible to the senses. See s. 212.02(19), F.S.}