TAA 19A- 017 Sales & Use Tax – Pre-Assembled Meals

QUESTION & ANSWER:

• Whether sales of pre-assembled meals (not sold for immediate consumption) as part of a weekly meal plan are subject to sales tax.

Since the pre-assembled meals are not sold for immediate consumption, and Taxpayer is not operating as a restaurant, the meals are exempt from sales tax as a food product.

July 17, 2019

Technical Assistance Advisement (TAA)

TAA #: 19A- 017

BP Number: XXXXXXX

XXXXXXX: XXXXXXXX

Sales & Use Tax – Pre-Assembled Meals

Section 212.08, Florida Statutes (F.S.)

Dear XXXXXXXX:

This is in response to your letter dated April 9, 2019, requesting this Department’s issuance of a Technical Assistance Advisement (“TAA”) pursuant to s. 213.22, F.S., and Chapter 12-11, Florida Administrative Code (Fla. Admin. Code) regarding the taxability of pre-assembled meals. 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 s. 213.22, F.S.

As provided in s. 213.22(1), F.S., a technical assistance advisement may be issued to a taxpayer who requests an advisement relating to the exemptions in s. 212.08(1) or (2), F.S., at any time. “Technical assistance advisements shall have no precedential value except to the taxpayer who requests the advisement and then only for the specific transaction addressed in the technical assistance advisement, unless specifically stated otherwise in the advisement.”

REQUESTED RULING

Whether sales of pre-assembled meals, packaged in a sealed container and delivered to customers in a refrigerated bag, are subject to sales tax.

FACTS

Taxpayer sells various individually packaged meals as a part of a weekly meal plan. The meals require refrigeration and are intended for the customer to heat prior to eating (not for immediate consumption). The meals, are delivered during non-meal times in a chilled condition (packed in soft coolers with chilled gel packs) to be refrigerated by the customer for future consumption, typically the next day. Taxpayer does not provide customers with eating utensils, napkins or serving ware.

The meals are cooked and prepared at Taxpayer’s commercial kitchen located in an industrial warehouse complex and cannot be consumed on the premises of the Taxpayer. Taxpayer is licensed by the Department of Business and Professional Regulation as a non-seating food service. Taxpayer also sells cold brewed bottled coffee and natural fruit juices.(1)

LAW

Pursuant to Section 212.05(1)(a), F.S., sales tax is imposed at the rate of 6 percent of the sales price of each item or article of tangible personal property when sold at retail in this state. As provided in Section 212.08(1), F.S., there are exempted from sales tax, food products for human consumption. The term "food products" means edible commodities, whether processed, cooked, raw, canned, or in any other form, which are generally regarded as food and include coffee and coffee products and natural fruit and vegetable juices.

The exemption does not apply to food cooked or prepared on or off the seller’s premises and sold for immediate consumption,(2) to meals for consumption on or off the seller’s premises, or to food products cooked, prepared, or sold in or by restaurants, lunch counters, cafeterias, hotels, taverns, or other like places of business. In determining whether an item is sold for immediate consumption, there shall be considered the customary consumption practices prevailing at the selling facility. Section 212.08(1)(d)2., F.S.

1 www.xxxxxxxxxx.com.

2 The exemption for food products does apply to food products prepared off the premises and sold in the original sealed container. See s. 212.08(1)(c)9., F.S.

CONCLUSION

Since the pre-assembled meals are prepared off the seller’s premises, packaged in a sealed container and are not sold for immediate consumption, the meals are exempt from sales tax as a food product.

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.

If you have any further questions with regard to this matter and wish to discuss them, you may contact me directly at (850) 717-7202.

Sincerely,

Richard R. Parsons

Richard R. Parsons Tax Law Specialist

Technical Assistance & Dispute Resolution

(850) 717-7202