Was an unbaked pizza sold by a restaurant for the customer to bake at home exempt from sales tax?

Plain-English summary

A licensed restaurant sold unbaked pizzas on special trays for customers to take home and bake. It also prepared and served personal pizzas for consumption on the premises.

Florida held that the take-home unbaked pizzas were taxable. Even though food products generally qualified for an exemption, the statute expressly excluded food sold in or by a restaurant.

The pizza's uncooked condition and lack of immediate consumption did not overcome that restaurant exclusion.

What this means for you

For this exemption, the seller's status and the statutory restaurant exclusion controlled. A product does not become exempt merely because the customer must cook it later.

Common questions

Did it matter that the pizza was uncooked? No. The sale was still made in or by a restaurant.

Did take-home consumption make it exempt? No. The restaurant exclusion was not limited to food intended for immediate consumption.

Why did Florida read the exemption narrowly? The ruling stated that tax exemptions must be strictly construed against the claimant.

Citations and references

• Fla. Stat. § 212.08(1)(c)13. (restaurant-food exclusion from the food exemption)
• Fla. Stat. § 213.22 (Technical Assistance Advisements)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 06A-016

Original ruling text

SUMMARY
QUESTION: Taxpayer questions whether uncooked pizza sold in their restaurant is exempt from sales tax since it is
not sold for immediate consumption.
ANSWER - Based on Facts Below: Section 212.08(1)(c)13., F.S., clearly states that the exemption for food products
does not apply to food sold in or by a restaurant. Therefore, under a strict interpretation of the exemption provided for
food products, the unbaked pizzas are not exempt from the tax.

June 15, 2006

Re: Technical Assistance Advisement 06A-016
Sales and Use Tax - Unbaked Pizza Sold in a Restaurant
F.E.I. Number XX
Section 212.08(1), F.S.
Dear :
This response is in reply to your letter to the Department, dated May 9, 2006, 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 unbaked pizzas sold in a restaurant are subject to sales tax. As stated
in your request for advisement, you operate a restaurant licensed by the Department of Business and Professional
Regulation, Division of Hotels and Restaurants. You produce unbaked pizzas on a special baking tray designed for
the customer to take home and bake. You also prepare and serve personal pizzas for on-premises consumption.
As provided in Section 212.08(1), F.S., food products for human consumption are exempt from sales tax. As defined
in Section 212.08(1)(b), F.S., the term "food products" includes edible commodities, whether processed, cooked, raw,
canned, or in any other form, which are generally regarded as food. However, the exemption for food products does
not apply to food cooked, prepared, or sold in or by restaurants, lunch counters, cafeterias, hotels, taverns, or other
like places of business. Section 212.08(1)(c)13., F.S.
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).

Section 212.08(1)(c)13., F.S., clearly states that the exemption for food products does not apply to food sold in or by a
restaurant. Therefore, under a strict interpretation of the exemption provided for food products, the unbaked pizzas
are not exempt from the tax.
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. 21177