Question: Whether ice cream and other frozen novelty items are taxable when sold in packages consisting of multiple individually wrapped items having a combined weight over sixteen ounces.
Answer: Ice cream and other frozen novelty items and similar frozen dairy products are taxable when sold in packages that contain multiple items with a combined weight greater than sixteen ounces.
March 20, 2020
Technical Assistance Advisement (TAA)
TAA #: 20A-007
XXXXXXXXXX
BPN: XXXXX
FEIN Number: XXXXXXXXX
Sales & Use Tax – Novelty Ice Cream
Section 212.02, 212.05, and 212.08, Florida Statutes (F.S.)
Rule 12A-1.011, Florida Administrative Code (F.A.C.)
Dear XX. XXXXXX:
This is in response to your letter dated January 23, 2020, 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 ice cream and other frozen novelty items are taxable when sold in packages consisting of multiple individually wrapped items having a combined weight over sixteen ounces.
FACTS
Taxpayer operates retail stores throughout Florida. Taxpayer is seeking guidance regarding the taxability of a single package containing a designated number of individually wrapped ice cream and novelty items having a combined net weight of more than sixteen ounces. Specifically, Taxpayer seeks confirmation from the Department of Revenue that the since the packages have a combined weight of more than one pint (sixteen ounces), the products qualify for the exemption granted to food products under s. 212.08(1), F.S.
Taxpayer states that ice cream and novelty items excluded from the exemption for food products applies only to cones, small cups, or pints when sold separately or in multiple units. Taxpayer contends that the products in question, i.e., a twelve pack of individually wrapped ice cream, are neither sold either “separately” or in “multiple units”. Taxpayer states that each package is sold as a single unit weighing more than sixteen ounces and; therefore, should not be excluded from the exemption.
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. Section 212.08(1), F.S., provides an exemption for food products for human consumption. The term “food products” as defined in s. 212.08(1)(b), F.S., include edible commodities, whether processed, cooked, raw, canned, or in any form, which are generally regarded as food. The term includes frozen foods, fruit and fruit products, and dairy products. The exemption does not extend to ice cream, frozen yogurt, and similar frozen dairy or nondairy products in cones, small cups, or pints, popsicles, frozen fruit bars, or other novelty items, whether or not sold separately. See s. 212.08(1)(c)8., F.S. The law distinguishes between ice cream and similar frozen dairy products and frozen novelty items for taxability purposes. As provided in Rule 12A-1.011(2)21., F.A.C., the exemption for food products applies to ice cream, frozen yogurt, sherbet, and similar frozen dairy or nondairy products sold in units larger than one pint.
Rule 12A-1.011(4)(f), F.A.C., states that:
Ice cream, frozen yogurt, and similar frozen dairy or nondairy products in cones, small cups, or pints, and popsicles, frozen fruit bars, or other novelty items, whether sold separately or in multiple units, are subject to tax.
Because no definition of "multiple units" is provided in the rule, it is necessary to look to principles of statutory construction. Words of common usage, when used in a statute, should be construed in their plain and ordinary sense. Pederson v. Green, 105 So.2d 1 (Fla. 1958). The word "multiple" is defined in the Merriam-Webster online dictionary as, “consisting of, including, or involving more than one.” The word “unit” is defined in the Merriam-Webster online dictionary as, “a single quantity regarded as a whole in calculation.” In this instance, each package contains a specified number of single item “units,” forming a “multiple unit” package which are excluded from the exemption.
Furthermore, s. 212.08(13), F.S.., provides that no transactions shall be exempt from the tax imposed by Chapter 212, F.S., except those expressly exempt. In this regard, Florida courts have consistently held that exemptions must not be expanded beyond their express terms and must be strictly and narrowly construed against the taxpayer. See Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); State ex rel. Szabo Food Services. Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973). See also 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).
Narrowly and strictly construed, the exemption granted in s. 212.08(1), F.S., does not apply to a carton or package containing multiple items of individually wrapped ice cream or novelty items, regardless of whether the net weight of the package is greater than sixteen ounces. The fact that the exemption excludes ice cream, frozen yogurt, and similar frozen dairy or nondairy products in cones, small cups, or pints, popsicles, frozen fruit bars, or other novelty items, whether or not sold separately, gives greater weight to the conclusion that the items are taxable.
CONCLUSION
Ice cream and other frozen novelty items and similar frozen dairy products are taxable when sold in packages that contain multiple items with a combined weight greater than sixteen ounces.
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.
Richard R. Parsons
Tax Law Specialist
Technical Assistance & Dispute Resolution
