House Bill 0315er

CODING: Words stricken are deletions; words underlined are additions.





    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1

  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 said 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.--


                                  1

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1         (a)  There are exempted from the tax imposed by this

  2  chapter food products for human consumption.

  3         (b)  For the purpose of this chapter, "food products"

  4  means edible commodities, whether processed, cooked, raw,

  5  canned, or in any other form, which are generally regarded as

  6  food. This includes, but is not limited to, all of the

  7  following:

  8         1.  Cereals and cereal products, baked goods,

  9  oleomargarine, meat and meat products, fish and seafood

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

11  products, vegetables and vegetable products, fruit and fruit

12  products, spices, salt, sugar and sugar products, milk and

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

14         2.  Natural fruit or vegetable juices or their

15  concentrates or reconstituted natural concentrated fruit or

16  vegetable juices, whether frozen or unfrozen, dehydrated,

17  powdered, granulated, sweetened or unsweetened, seasoned with

18  salt or spice, or unseasoned; coffee, coffee substitutes, or

19  cocoa; and tea, unless sold in a liquid form.

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

21  like establishments which do not have eating facilities.

22         (c)  None of the exemptions provided in paragraph (b)

23  applies to any of the following:

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

25  consumption on or off the seller's premises.

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 seller or by a person with whom the seller contracts to

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

31


                                  2

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1         3.  When the food products are ordinarily sold for

  2  immediate consumption on the seller's premises or near a

  3  location at which parking facilities are provided primarily

  4  for the use of patrons in consuming the products purchased at

  5  the location, even though such products are sold on a "take

  6  out" or "to go" order and are actually packaged or wrapped and

  7  taken from the seller's premises.

  8         4.  Sandwiches sold ready for immediate consumption on

  9  or off the seller's 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.  Soft drinks, which include, but are not limited to,

14  any nonalcoholic beverage, any preparation or beverage

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

16  drink made from milk derivatives or tea, when sold in a liquid

17  form.

18         7.  Ice cream, frozen yogurt, and similar frozen dairy

19  or nondairy products in cones, small cups, or pints,

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

21  or not sold separately.

22         8.  Food prepared, whether on or off the premises, and

23  sold for immediate consumption. This does not apply to food

24  prepared off the premises and sold in the original sealed

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

26         9.  When the food products are sold through a vending

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

28  vehicle.

29         10.  Candy and any similar product regarded as candy or

30  confection, based on its normal use, as indicated on the label

31  or advertising thereof.


                                  3

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1         11.  Bakery products sold by bakeries, pastry shops, or

  2  like establishments which have eating facilities, except when

  3  sold for consumption off the seller's premises.

  4         12.  When food products are served, prepared, or sold

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

  6  taverns, or other like places of business.

  7         13.  Food products sold as hot prepared food products.

  8         (d)  For purposes of this subsection:

  9         1.  "For consumption off the seller's premises" means

10  that the food or drink is intended by the customer to be

11  consumed at a place away from the seller's premises.

12         2.  "For consumption on the seller's premises" means

13  that the food or drink sold may be immediately consumed on the

14  premises where the seller conducts his or her business. In

15  determining whether an item of food is sold for immediate

16  consumption, there shall be considered the customary

17  consumption practices prevailing at the selling facility.

18         3.  "Premises" shall be construed broadly, and means,

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

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

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

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

23  meals or beverages shall be the place where such meals or

24  beverages are served.

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

26  items, or components which have been prepared for sale in a

27  heated condition and which are sold at any temperature which

28  is higher than the air temperature of the room or place where

29  they are sold.  "Hot prepared food products," for the purposes

30  of this subsection, includes a combination of hot and cold

31  food items or components where a single price has been


                                  4

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1  established for the combination and the food products are sold

  2  in such combination, such as a hot meal, a hot specialty dish

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

  4  components or side items.

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

  6  chapter food and drinks for human consumption except candy.

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

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

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

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

11  drinks sold through vending machines pertains, none of such

12  items of food or drinks means:

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

14  restaurants; drugstores; lunch counters; cafeterias; hotels;

15  amusement parks; racetracks; taverns; concession stands at

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

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

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

19  Restaurants of the Department of Business and Professional

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

21  doughnut shops, or like establishments for consumption off the

22  premises;

23         2.  Foods and drinks sold ready for immediate

24  consumption from vending machines, pushcarts, motor vehicles,

25  or any other form of vehicle;

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

27  any nonalcoholic beverage, any preparation or beverage

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

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

30  similar containers. The term "soft drink" does not include:

31  natural fruit or vegetable juices or their concentrates or


                                  5

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1  reconstituted natural concentrated fruit or vegetable juices,

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

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

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

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

  6  be mixed with milk; or natural fluid milk;

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

  8  premises and sold ready for immediate consumption either on or

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

10  consumption unless such foods are taxed under subparagraph 1.

11  or subparagraph 2.; or

12         5.  Sandwiches sold ready for immediate consumption.

13

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

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

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

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

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

19  caterer with respect to catered meals or beverages shall be

20  the place where such meals or beverages are served.

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

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

23  notwithstanding those paragraphs that paragraph, when

24  purchased with food coupons or Special Supplemental Food

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

26  authority of federal law.

27         2.  This paragraph is effective only while federal law

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

29  program or Special Supplemental Food Program for Women,

30  Infants, and Children if there is an official determination

31


                                  6

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1  that state or local sales taxes are collected within that

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

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

  4  drinks on which federal law shall permit sales taxes without

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

  6         4.  Notwithstanding any other provision of law, the

  7  department shall make refunds or allow credits to a

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

  9  403.7197 on containers purchased by consumers with food

10  coupons or Special Supplemental Food Program for Women,

11  Infants, and Children vouchers issued under authority of

12  federal law.

13         (7)  MISCELLANEOUS EXEMPTIONS.--

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

15  tax imposed by this chapter:

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

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

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

19  sells food products items at retail.

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

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

22  that primarily sells food products at retail.

23

24  The exemptions in this paragraph do not apply to businesses

25  with the primary activity of serving prepared meals or

26  alcoholic beverages for immediate consumption.

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

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

29  food bank or an organization which holds current exemption

30  from federal corporate income tax pursuant to s. 501(c) of the

31


                                  7

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  1  Internal Revenue Code, 1986, as amended, is exempt from the

  2  tax 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


                                  8

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    1998 Legislature                CS/CS/HB 315, Second Engrossed



  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 of the

  9  year in which enacted.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  9