Were chicken, potato, and pasta salads taxable when prepared elsewhere, delivered to grocery stores in bulk, and repackaged for deli sale by weight?

Subject

Salad Prepared Off Premises

Plain-English summary

The grocery deli's repackaged chicken, potato, and pasta salads were taxable prepared food. They arrived from an outside preparer in bulk, and the stores transferred them into smaller containers for sale by weight.

Food prepared off premises could remain exempt when sold in the original sealed container. That exception did not apply after the grocery stores repackaged the salads. The absence of eating utensils and customary take-home use did not change the immediate-consumption classification.

What this means for you

Off-site preparation alone did not protect prepared food. Keeping the original sealed container was a specific condition of the exception applied here.

Common questions

Q: Were the salads taxable? Yes.

Q: Did selling them without utensils matter? No.

Q: What exception failed? The original-sealed-container exception.

Citations and references

• Fla. Stat. §§ 212.06(1)(a) and 212.08(1)(b), (c)9., (d)2. — food and immediate consumption
• State v. Dickinson, 286 So. 2d 259 (Fla. 1974)
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 01A-031

Original ruling text

SUMMARY

QUESTION: Is salad subject to sales tax when prepared off
the premises and delivered to a grocery store in bulk,
repackaged into smaller containers, and sold by weight?

ANSWER - Based on Facts Below: The sale of salad prepared
off the premises, delivered to the stores in bulk and
repackaged into smaller containers, is taxable. Since the
salad is a prepared food product available for immediate
consumption and is not sold in the original sealed container,
the exemption granted by section 212.08(1), F.S., does not
apply.

Jun 11, 2001

Re: Technical Assistance Advisement 01A-031
Sales and Use Tax -- Salad Prepared Off Premises
XXX ("Taxpayer")
Florida Sales Tax Number: XX
Sections 212.05 and 212.08, F.S.

Dear :

This response is in reply to your letter dated April 10, 2001,
requesting the Department's issuance of a Technical Assistance
Advisement ("TAA") pursuant to s. 213.22, F.S., and Chapter
12-11, F.A.C., regarding the referenced matter and parties. An
examination of your petition has established that you have
complied with the statutory and regulatory requirements for
issuance of a TAA. Therefore, the Department is hereby granting
your request for issuance of a TAA.

ISSUE

Whether salad is subject to sales tax when prepared off the
premises and delivered to a grocery store in bulk, repackaged
into smaller containers, and sold by weight.

FACTS

The Taxpayer operates a chain of grocery stores in Florida. The
stores receive various pre-made salads (i.e., chicken, potato,
and pasta) in bulk containers. The salad is placed into smaller
containers, sealed, and sold by weight from the delicatessen.
The salad is not sold as part of a meal or with eating utensils.
Some of the stores have chairs and tables available for their
customers to dine inside the store. You state in your letter
that it is the customary practice of the grocery stores for the
salads to be consumed off the premises.

LAW

As provided in Section 212.06(1)(a), F.S., sales tax, at the
rate of 6 percent, shall be collectible from all dealers on the
sale at retail, the use, the consumption, the distribution, and
the storage for use or consumption in this state of tangible
personal property or services taxable under this chapter.
Pursuant to Section 212.08(1), F.S., there are exempted from tax
imposed by this chapter, food products for human consumption.
The term "food products" as defined in Section 212.08(1)(b),
F.S., means edible commodities, whether processed, cooked, raw,
canned, or in any other form, which are generally regarded as
food. Food products include meat and meat products, fish and
seafood products, vegetables and vegetable products, and fruit
and fruit products.

As provided in Section 212.08(1)(c)9., F.S., the exemption for
food products does not apply to food products cooked or
prepared, whether on or off the seller's premises, and sold for
immediate consumption. This does not apply to food prepared off
the premises and sold in the original sealed container, or the
slicing of products into smaller portions. As provided in
Section 212.08(1)(d)2., F.S., in determining whether an item is
sold for immediate consumption, there shall be considered the
customary consumption practices prevailing at the selling
facility.

In construing statutory exemptions from tax, the Department must

follow the fundamental rule of statutory construction
established by the Florida Supreme Court which mandates that
exemptions from, or exceptions to, taxing statutes are special
privileges granted by the legislature and must be strictly
construed, "with any doubt being resolved in favor of the
state." State v. Dickinson, 286 So.2d 259 (Fla. 1974). See
also United States Gypsum v. Green, 110 So.2d 409 (Fla. 1959);
Green v. Pederson, 99 So.2d 292 (Fla. 1957).

CONCLUSION

The sale of salad prepared off the premises, delivered to the
stores in bulk and repackaged into smaller containers, is
taxable. With two exceptions (food prepared off the premises and
sold in the original sealed container or the slicing of products
into smaller portions), Section 212.08(1)(c)9., F.S., excludes
prepared food sold for immediate consumption from the exemption.
Since the salad is a prepared food product available for
immediate consumption and is not sold in the original sealed
container, the exemption granted by Section 212.08(1), F.S.,
does not apply.

This response constitutes a Technical Assistance Advisement
under s. 213.22, F.S., which is binding on the Department only
under the facts and circumstances described in the request for
this advice as specified in s. 213.22, F.S. Our response is
predicated on those facts and the specific situation summarized
above. You are advised that subsequent statutory and
administrative rule changes or that 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,
F.S., and are subject to disclosure to the public under the
conditions of s. 213.22, F.S. 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 15 days of the date of this letter.

Sincerely,

Richard R. Parsons
Tax Law Specialist
Technical Assistance & Dispute Resolution
(850) 922-4838

Ctrl. No. 44897