TAA 19A-014 Food and Drink (Non-alcoholic), Grocery Stores, Convenient Stores

TAX: Sales and Use Tax

TAA NUMBER: 19A-014

ISSUE: Dietary supplements

STATUTE CITE(S): Sections 212.08(1)(a) and (b), Fla. Stat.

RULE CITE(S): 12A-1.011(2)(a)(12), Fla. Admin. Code

QUESTION & ANSWER:

• Do xxxxx-ounce bottles of xxxxxx shots, including Regular and Extra Strength varieties, which come in various flavors, and xxxxxx-ounce bottles of xxxxxx shots meet the definition of “dietary supplements” so as to exempt them from sales tax pursuant to Section 212.08, Fla. Stat., and Rule 12A-1.011(2)(a)(12), Fla. Admin. Code?

Yes, the xxxxx and xxxxxxxx shots described are considered “dietary supplements” and therefore meet the definition of “food products,” as set forth in Section 212.08(1)(b), Fla. Stat., and Rule 12A-1.011(2)(a)(12), Fla. Admin. Code. Because xxxxx shots and xxxxxxxx shots are dietary supplements, they constitute food products exempt from taxation.

June 7, 2019

Technical Assistance Advisement (TAA)

TAA #: 19A-014

xxxxxxxxxxxxxx

Sales & Use Tax – Dietary Supplements

Section 212.08, Florida Statutes (Fla. Stat.)

Rule 12A-1.011, Florida Administrative Code (Fla. Admin. Code)

xxxxxxxxx (the Taxpayer)

xxxxxx xxxxxxxxxx

Dear xxxxxxxxxx,

This is in response to your letter dated May 9, 2019, requesting this Department’s issuance of a Technical Assistance Advisement (“TAA”) pursuant to Section 213.22, Florida Statutes (Fla. Stat.), and Chapter 12-11, Florida Administrative Code (Fla. Admin. Code) regarding the taxability of certain liquid energy drinks sold at xxxxx convenience stores throughout Florida. 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, Fla. Admin. Code. This response to your request constitutes a TAA and is issued to you under the authority of Section 213.22, Fla. Stat.

Issue 

Whether xxx-ounce bottles of xxxxxx shots, including Regular and Extra Strength varieties, which come in various flavors, and xxx-ounce bottles of xxxxxxxxxx shots meet the definition of “dietary supplements” so as to exempt them from sales tax pursuant to Section 212.08, Fla. Stat., and Rule 12A-1.011(2)(a)(12), Fla. Admin. Code.

Facts Provided by Taxpayer

xxxxxxxxxx is a wholly-owned subsidiary of xxxxxxxxxx (the “Taxpayer”). xxxxx operates xxxxx convenience stores throughout the state and offers various flavors of xxxxx and xxxxxx shots for retail sale. The energy xxxxx come in Regular and Extra Strength. The Regular Strength xxxxx shots include xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx flavors. The Extra Strength xxxxx shots are available in xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx flavors. The xxxxxxxxxx shots come in xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx flavors. Each of these shots are sold in a xxxxxounce container, each contains vitamins and minerals, and each is labeled as a “dietary supplement.”

Law and Discussion

In accordance with Section 212.08(1)(a), Fla. Stat., general groceries, which include food products for human consumption, are exempt from taxation. Pursuant to Section 212.08(1)(b), Fla. Stat., “…the term ‘food products’ means edible commodities, whether processed cooked, raw, canned, or in any other form, which are generally regarded as food.” Rule 12A-1.011(2)(a)(12), Fla. Admin. Code, states that “dietary supplements (including herbal supplements) and meal replacements, including liquid food supplements,” are tax-exempt food products. Form DR-46NT, incorporated by reference in Rule 12A-1.097, Fla. Admin. Code, includes in its list of tax-exempt general groceries “meal replacement powders and drinks, including liquid food supplements.” The xxxxx and xxxxx shots you describe are considered “dietary supplements” and therefore meet the definition of “food products,” as set forth in Section 212.08(1)(b), Fla. Stat., and Rule 12A-1.011(2)(a)(12), Fla. Admin. Code. Because xxxxxxxxxx shots and xxxxxx shots are dietary supplements, they constitute food products exempt from taxation.

Concluding Statement 

The xxxxx and xxxxx shots described are considered dietary supplements and, as such, they are tax-exempt food products, pursuant to Florida law and rule.

This response constitutes a Technical Assistance Advisement under Section 213.22, Fla. Stat., 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, Fla. Stat. 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, Fla. Stat., and are subject to disclosure to the public under the conditions of Section 213.22, Fla. Stat. 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,

Donna La Plante

Donna La Plante

Senior Attorney

Florida Department of Revenue

Technical Assistance and Dispute Resolution

Record ID: #XXXXXX