Senate Bill 1504c1

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    Florida Senate - 1998                           CS for SB 1504

    By the Committee on Ways and Means; and Senator Ostalkiewicz





    301-2244-98

  1                      A bill to be entitled

  2         An act relating to tax on sales, use, and other

  3         transactions; amending s. 212.08, F.S.;

  4         revising the exemption for food and drinks;

  5         providing definitions; providing an exemption

  6         for certain foods, drinks, and other items

  7         provided to customers on a complimentary basis

  8         by a dealer who sells food products at retail;

  9         providing an exemption for foods and beverages

10         donated by such dealers to certain

11         organizations; revising provisions relating to

12         the technical assistance advisory committee

13         established to provide advice in determining

14         taxability of foods and medicines; providing

15         membership requirements; amending s. 213.22,

16         F.S.; providing for the issuance of technical

17         assistance advisements; providing an effective

18         date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Subsections (1) and (14) of section 212.08,

23  Florida Statutes, are amended, and paragraphs (qq) and (rr)

24  are added to subsection (7) of that section, to read:

25         212.08  Sales, rental, use, consumption, distribution,

26  and storage tax; specified exemptions.--The sale at retail,

27  the rental, the use, the consumption, the distribution, and

28  the storage to be used or consumed in this state of the

29  following are hereby specifically exempt from the tax imposed

30  by this chapter.

31         (1)  EXEMPTIONS; GENERAL GROCERIES.--

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    Florida Senate - 1998                           CS for SB 1504
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  1         (a)  Food products for human consumption are exempt

  2  from the tax imposed by this chapter.

  3         (b)  As used in this subsection, the term "food

  4  products" means edible commodities, whether processed, cooked,

  5  raw, canned, or in any other form, which are generally

  6  regarded as food.  The term includes, but is not limited to:

  7         1.  Cereals and cereal products, baked goods,

  8  oleomargarine, meat and meat products, fish and seafood

  9  products, frozen foods and dinners, poultry, eggs and egg

10  products, vegetables and vegetable products, fruit and fruit

11  products, spices, salt, sugar and sugar products, milk and

12  dairy products, and products intended to be mixed with milk.

13         2.  Natural fruit or vegetable juices or their

14  concentrates or reconstituted natural concentrated fruit or

15  vegetable juices, whether frozen or unfrozen, dehydrated,

16  powdered, granulated, sweetened or unsweetened, seasoned with

17  salt or spice, or unseasoned; and coffee, coffee substitutes,

18  tea, or cocoa, unless these products are sold in a liquid

19  form.

20         3.  Bakery products sold by bakeries, pastry shops, or

21  like establishments which do not have eating facilities.

22         (c)  The exemption provided by this subsection does not

23  apply:

24         1.  When the food products are sold as meals for

25  consumption on or off the premises of the dealer.

26         2.  When the food products are furnished, prepared, or

27  served for consumption at tables, chairs, or counters or from

28  trays, glasses, dishes, or other tableware, whether provided

29  by the dealer or by a person with whom the dealer contracts to

30  furnish, prepare, or serve food products to others.

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    Florida Senate - 1998                           CS for SB 1504
    301-2244-98




  1         3.  When the food products are ordinarily sold for

  2  immediate consumption on the premises or near a location at

  3  which parking facilities are provided primarily for the use of

  4  patrons in consuming the products purchased at the location,

  5  even though such products are sold on a "take out" or "to go"

  6  order and are actually packaged or wrapped and taken from the

  7  premises of the dealer.

  8         4.  To sandwiches sold ready for immediate consumption

  9  on or off the premises.

10         5.  When the food products are sold ready for immediate

11  consumption within a place, the entrance to which is subject

12  to an admission charge.

13         6.  When the food products are sold as hot prepared

14  food products.

15         7.  To soft drinks, which include, but are not limited

16  to, any nonalcoholic beverage, any preparation or beverage

17  commonly referred to as a "soft drink," or any noncarbonated

18  drink made from milk derivatives or tea, when sold in cans or

19  similar containers.

20         8.  To ice cream, frozen yogurt, and similar frozen

21  dairy or nondairy products in cones, small cups, or pints,

22  popsicles, frozen fruit bars, or other novelty items, whether

23  or not sold separately.

24         9.  To food prepared, whether on or off the premises,

25  and sold for immediate consumption.  This does not apply to

26  food prepared off the premises and sold in the original sealed

27  container, or the slicing of products into smaller portions.

28         10.  When the food products are sold through a vending

29  machine, pushcart, motor vehicle, or any other form of

30  vehicle.

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    Florida Senate - 1998                           CS for SB 1504
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  1         11.  To candy and any similar product regarded as candy

  2  or confection, based on its normal use, as indicated on the

  3  label or advertising thereof.

  4         12.  To bakery products sold by bakeries, pastry shops,

  5  or like establishments which have eating facilities, except

  6  when sold for consumption off the premises.

  7         13.  When food products are served, prepared, or sold

  8  in or by restaurants, lunch counters, cafeterias, hotels,

  9  taverns, or other like places of business.

10         (d)  As used in this subsection, the term:

11         1.  "For consumption off the premises" means that the

12  food or drink is intended by the customer to be consumed at a

13  place away from the dealer's premises.

14         2.  "For consumption on the premises" means that the

15  food or drink sold may be immediately consumed on the premises

16  where the dealer conducts his or her business.  In determining

17  whether an item of food is sold for immediate consumption,

18  there must be considered the customary consumption practices

19  prevailing at the selling facility.

20         3.  "Premises" must be construed broadly, and means,

21  but is not limited to, the lobby, aisle, or auditorium of a

22  theater; the seating, aisle, or parking area of an arena,

23  rink, or stadium; or the parking area of a drive-in or outdoor

24  theater.  The premises of a caterer with respect to catered

25  meals or beverages is the place where such meals or beverages

26  are served.

27         4.  "Hot prepared food products" means those products,

28  items, or components that have been prepared for sale in a

29  heated condition and that are sold at any temperature that is

30  higher than the air temperature of the room or place where

31  they are sold. The term "hot prepared food products" includes

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    Florida Senate - 1998                           CS for SB 1504
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  1  a combination of hot and cold food items or components with

  2  respect to which a single price has been established for the

  3  combination and the food products are sold in such

  4  combination, such as a hot meal, a hot specialty dish or

  5  serving, or a hot sandwich or hot pizza, including cold

  6  components or side items.

  7         (a)  There are exempt from the tax imposed by this

  8  chapter food and drinks for human consumption except candy.

  9  Unless the exemption provided by paragraph (7)(q) for school

10  lunches, paragraph (7)(i) for meals to certain patients or

11  inmates, paragraph (7)(k) for meals provided by certain

12  nonprofit organizations, or paragraph (7)(z) for food or

13  drinks sold through vending machines pertains, none of such

14  items of food or drinks means:

15         1.  Food or drinks served, prepared, or sold in or by

16  restaurants; drugstores; lunch counters; cafeterias; hotels;

17  amusement parks; racetracks; taverns; concession stands at

18  arenas, auditoriums, carnivals, fairs, stadiums, theaters, or

19  other like places of business; or by any business or place

20  required by law to be licensed by the Division of Hotels and

21  Restaurants of the Department of Business and Professional

22  Regulation, except bakery products sold in or by pastry shops,

23  doughnut shops, or like establishments for consumption off the

24  premises;

25         2.  Foods and drinks sold ready for immediate

26  consumption from vending machines, pushcarts, motor vehicles,

27  or any other form of vehicle;

28         3.  Soft drinks, which include, but are not limited to,

29  any nonalcoholic beverage, any preparation or beverage

30  commonly referred to as a "soft drink," or any noncarbonated

31  drink made from milk derivatives or tea, when sold in cans or

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    Florida Senate - 1998                           CS for SB 1504
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  1  similar containers. The term "soft drink" does not include:

  2  natural fruit or vegetable juices or their concentrates or

  3  reconstituted natural concentrated fruit or vegetable juices,

  4  whether frozen or unfrozen, dehydrated, powdered, granulated,

  5  sweetened or unsweetened, seasoned with salt or spice, or

  6  unseasoned; coffee or coffee substitutes; tea except when sold

  7  in containers as provided herein; cocoa; products intended to

  8  be mixed with milk; or natural fluid milk;

  9         4.  Foods or drinks cooked or prepared on the seller's

10  premises and sold ready for immediate consumption either on or

11  off the premises, excluding bakery products for off-premises

12  consumption unless such foods are taxed under subparagraph 1.

13  or subparagraph 2.; or

14         5.  Sandwiches sold ready for immediate consumption.

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16  For the purposes of this paragraph, "seller's premises" shall

17  be construed broadly, and means, but is not limited to, the

18  lobby, aisle, or auditorium of a theater; the seating, aisle,

19  or parking area of an arena, rink, or stadium; or the parking

20  area of a drive-in or outdoor theater. The premises of a

21  caterer with respect to catered meals or beverages shall be

22  the place where such meals or beverages are served.

23         (e)(b)1.  Food or drinks not exempt under paragraphs

24  (a), (b), (c), and (d) are paragraph (a) shall be exempt,

25  notwithstanding those paragraphs that paragraph, when

26  purchased with food coupons or Special Supplemental Food

27  Program for Women, Infants, and Children vouchers issued under

28  authority of federal law.

29         2.  This paragraph is effective only while federal law

30  prohibits a state's participation in the federal food coupon

31  program or Special Supplemental Food Program for Women,

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    Florida Senate - 1998                           CS for SB 1504
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  1  Infants, and Children if there is an official determination

  2  that state or local sales taxes are collected within that

  3  state on purchases of food or drinks with such coupons.

  4         3.  This paragraph shall not apply to any food or

  5  drinks on which federal law shall permit sales taxes without

  6  penalty, such as termination of the state's participation.

  7         4.  Notwithstanding any other provision of law, the

  8  department shall make refunds or allow credits to a

  9  distributor equal to the fee imposed and paid under s.

10  403.7197 on containers purchased by consumers with food

11  coupons or Special Supplemental Food Program for Women,

12  Infants, and Children vouchers issued under authority of

13  federal law.

14         (7)  MISCELLANEOUS EXEMPTIONS.--

15         (qq)  Complimentary items.--There is exempt from the

16  tax imposed by this chapter:

17         1.  Any food or drink, whether or not cooked or

18  prepared on the premises, provided without charge as a sample

19  or for the convenience of customers by a dealer that primarily

20  sells food product items at retail.

21         2.  Any item given to a customer as part of a price

22  guarantee plan related to point-of-sale errors by a dealer

23  that primarily sells food products at retail.

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25  The exemptions in this paragraph do not apply to businesses

26  the primary activity of which is serving prepared meals or

27  alcoholic beverages for immediate consumption.

28         (rr)  Donated foods or beverages.--Any food or beverage

29  donated by a dealer that sells food products at retail to a

30  food bank or an organization that holds current exemption from

31  federal corporate income tax under s. 501(c) of the Internal

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    Florida Senate - 1998                           CS for SB 1504
    301-2244-98




  1  Revenue Code of 1986, as amended, is exempt from the tax

  2  imposed by this chapter.

  3         (14)  TECHNICAL ASSISTANCE ADVISORY COMMITTEE.--The

  4  department shall establish a technical assistance advisory

  5  committee with public and private sector members, including

  6  representatives of both manufacturers and retailers, to advise

  7  the Department of Revenue and the Department of Health and

  8  Rehabilitative Services in determining the taxability of

  9  specific products and product lines pursuant to subsection (1)

10  and paragraph (2)(a).  In determining taxability and in

11  preparing a list of specific products and product lines that

12  which are or are not taxable, the committee shall not be

13  subject to the provisions of chapter 120. Private sector

14  members shall not be compensated for serving on the committee.

15         Section 2.  Subsection (1) of section 213.22, Florida

16  Statutes, is amended to read:

17         213.22  Technical assistance advisements.--

18         (1)  The department may issue informal technical

19  assistance advisements to persons, upon written request, as to

20  the position of the department on the tax consequences of a

21  stated transaction or event, under existing statutes, rules,

22  or policies. After the issuance of an assessment, a technical

23  assistance advisement may not be issued to a taxpayer who

24  requests an advisement relating to the tax or liability for

25  tax in respect to which the assessment has been made, except

26  that a technical assistance advisement may be issued to a

27  taxpayer who requests an advisement relating to the exemptions

28  in s. 212.08(1) or (2) at any time. Technical assistance

29  advisements shall have no precedential value except to the

30  taxpayer who requests the advisement and then only for the

31  specific transaction addressed in the technical assistance

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    Florida Senate - 1998                           CS for SB 1504
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  1  advisement, unless specifically stated otherwise in the

  2  advisement.  Any modification of an advisement shall be

  3  prospective only.  A technical assistance advisement is not an

  4  order issued pursuant to s. 120.565 or s. 120.569 or a rule or

  5  policy of general applicability under s. 120.54.  The

  6  provisions of s. 120.53(1) are not applicable to technical

  7  assistance advisements.

  8         Section 3.  This act shall take effect July 1, 1998.

  9

10          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
11                             SB 1504

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13  For purposes of determination of the taxability of new items
    sold in grocery stores, instead of applying recommendations of
14  a technical assistance advisory council, the committee
    substitute provides for the Department of Revenue to issue
15  Technical Assistance Advisements at any time to a taxpayer who
    requests an advisement relating to grocery or medical
16  exemptions.

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