Were customer-assembled raw meal kits taken home for further cooking exempt from Florida sales tax?

Plain-English summary

Customers assembled raw grocery ingredients such as meats, sauces, spices, and pasta into meal kits at the seller's stores. They sealed the kits in bags or trays and took them home for further cooking.

Florida found that the kits were not meals or food sold for immediate consumption. Although the businesses were licensed by the hotels-and-restaurants regulator, they did not operate as restaurants or similar places because they did not serve prepared food.

The raw food kits therefore qualified for the sales-tax exemption for food products for human consumption.

What this means for you

Regulatory licensing alone did not determine sales-tax treatment. The kits' raw state, required home cooking, lack of immediate consumption, and the seller's actual business model controlled.

Common questions

Did customer assembly make the kits taxable prepared food? No. The kits remained raw and required further cooking away from the seller's premises.

Did restaurant licensing make the seller a restaurant for this rule? No. Florida focused on the fact that the locations did not serve prepared food.

Were the kits treated as meals? No. The ruling classified them as exempt food products rather than meals.

Citations and references

• Fla. Stat. § 212.08(1)(b)-(c) (food products and exclusions)
• Fla. Stat. § 213.22 (Technical Assistance Advisements)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 06A-009

Original ruling text

SUMMARY
QUESTION:
Whether raw food kits that contain a mix of ingredients such as meats, sauces, spices, and pasta are subject to sales
tax. The kits are assembled by the customer and packaged in re-sealable plastic bags or aluminum trays for further
cooking by the customer. The raw food kits are not ready for immediate consumption.
ANSWER - Based on Facts Below:
Section 212.08(1), F.S., exempts the sale of food products for human consumption. The exemption does not apply to
food products cooked or prepared on the seller's premises and sold for immediate consumption. Since the raw food
kits are not sold for immediate consumption, but for further cooking by the customer away from the seller's premises,
they are exempt from sales tax.

April 27, 2006

Re: Technical Assistance Advisement 06A-009
Sales and Use Tax - Raw Food Kits
Florida Business Partner Number XX
F.E.I. Number XX
Florida Business Partner Number XX
F.E.I. Number XX
F.E.I. Number XX
Section 212.08(1), F.S.
Dear:
This response is in reply to your letter to the Department, dated April 5, 2004, in which you are 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.
You are seeking guidance concerning whether raw food kits sold at the above named retail stores (referred to
collectively as "Taxpayer") are subject to sales tax. As stated in your letter, the above named entities request a
determination that there is no duty to collect sales tax, as the businesses are engaged in the sale of tax exempt
grocery items. The customers assemble raw grocery ingredients for "ready to cook" meals. The assembled grocery
items are then taken home to be cooked by the customer.
You state the following in your request for advisement:

[Taxpayer] locations are not restaurants under any commonly used definition of that term. Customers do not eat what
they purchase immediately on or off site; it must be cooked at home. [Taxpayer] locations are not "required by law" to
be licensed by the DHR [Division of Hotels and Restaurants].(FOOTNOTE #1) Section 509.[0]13, Florida Statutes,
defines a "public food service establishment" (our voluntary licensing designation) as a place where food is prepared,
served, or sold for immediate consumption on or in the vicinity of the premises, called for or taken out by customers
or prepared prior to being delivered to another location for consumption. None of these conditions fit the [Taxpayer]
business model and nothing is sold for immediate consumption on or off premises.
As provided in Section 212.08(1), F.S., food products for human consumption are exempt from sales tax. The term
"food products" includes edible commodities, whether processed, cooked, raw, canned, or in any other form, which
are generally regarded as food. Section 212.08(1)(b), F.S.
The exemption for food products does not apply to meals sold for consumption on or off the seller's premises, to food
cooked or prepared on or off the seller's premises and sold for immediate consumption, or to food cooked, prepared,
or sold in or by restaurants, lunch counters, cafeterias, hotels, taverns, or other like places of business. See
Subparagraphs 212.08(1)(c)1., 9., and 13., F.S. It is our determination that these exclusions from the exemption do
not apply to the raw food kits. The food kits are not meals, and they are not sold for immediate consumption. Although
the businesses are licensed and regulated by the Department of Business and Professional Regulation, Division of
Hotels and Restaurants, they do not operate as a restaurant, lunch counter, cafeteria, or other like place of business,
since they are not serving prepared food.
It is our determination that the raw food kits are exempt from sales tax as a food product, as defined in Section
212.08(1)(b), F.S.
This response constitutes a Technical Assistance Advisement under s. 213.22, F.S. which is binding on the
department only under 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 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, 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. 20644

1 Footnote - Based on our discussions with representatives of the Department of Business and Professional

Regulation, meal assembly businesses are required to be licensed as caterers by DPBR under the Tri-Agency Matrix
(Department of Agriculture and Consumer Services, Department of Business and Professional Regulation, and
Department of Health).