Were bamboo plants exempt from Florida sales tax when customers intended to grow edible shoots?

Plain-English summary

A grower sold bamboo varieties that could produce edible shoots but were also marketed for hedges, groves, landscaping, and other nonfood uses. Florida treated the exemption as dependent on the buyer's intended use rather than on the plant's biological capability alone.

The sale was exempt when a customer bought bamboo to produce food for human consumption and signed a statement documenting that purpose. Without that use certificate, bamboo sold for ornamental or landscaping purposes was taxable nursery stock.

The seller had to retain the exemption documentation in its records for the applicable assessment period.

What this means for you

Dual-purpose plants do not receive automatic agricultural treatment. The buyer's actual intended use and the seller's exemption records controlled whether the sale was exempt.

Common questions

Was all bamboo exempt because some varieties produce edible shoots? No. The exemption depended on intended food-production use.

What did the buyer need to provide? A signed statement or certificate identifying the exempt purpose.

What if the bamboo was bought for a hedge or landscape planting? It was taxable as ornamental nursery stock.

Could one certificate cover later purchases for the same purpose? The rule quoted in the ruling allowed a dealer to retain one certificate for subsequent sales made for the stated exempt purpose.

Citations and references

• Fla. Stat. § 212.08(5)(a) (plants used to produce food for human consumption)
• Fla. Stat. § 212.07(5)(a) (direct farm sales and ornamental nursery stock)
• Fla. Admin. Code rr. 12A-1.038(5), (6), 12A-1.048(2)(a), 12A-1.087 (use certificates and agricultural plants)
• Fla. Stat. § 213.22 (Technical Assistance Advisements)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 06A-33

Original ruling text

SUMMARY
QUESTION: Taxpayer questions whether bamboo plants that can be used to produce edible shoots are exempt from
sales tax.
ANSWER - Based on Facts Below: Section 212.08(5)(a), F.S., exempts plants and trees used to produce food for
human consumption. If the customer signs an affidavit that he or she is purchasing the bamboo to produce food for
human consumption, the sale is exempt. Otherwise, bamboo is taxable as ornamental nursery stock.

October 31, 2006

Re: Technical Assistance Advisement 06A-33
Sales and Use Tax - Plants Used to Produce Food
xxx
xxx
Sections 212.07(5)(a) and 212.08(5)(a), F.S.
Rules 12A-1.038, 12A-1.048, and 12A-1.087, F.A.C.
Dear
This response is in reply to your letter to the Department, dated July 31, 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. 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.
As stated in your letter, you are growing and selling xxx that you believe are exempt from sales tax since the plants
can be and often are used to produce food (edible shoots) for human consumption. It is your assertion that since xxx
produce edible xxx shoots, they are no different from other food producing plants such as fruit trees that are often
used for purposes other than producing food, such as for ornamental landscaping. You argue that if other food
producing plants that are often used for landscaping purposes are not taxed, then bamboo should not be taxed as
well.
According to our online research, xxx is a woody-stemmed perennial grass that contains over xxx different species
and has three principal uses: domestic use on the farm (e.g., vegetable stakes, trellis poles, shade laths); commercial
production for use in construction, food, and the arts (e.g., concrete reinforcement, fishing poles, furniture, crafts,
edible xxx, musical instruments); and ornamental, landscape and conservation uses (e.g., specimen plants, screens,
hedges, riparian buffer zone). Small-scale growers are successful in creating demand for fresh, locally grown produce
through niche marketing; however, it is not likely that large-scale xxx shoot production will become a common
agricultural enterprise in the U.S., because countries that export this product have decided advantages over American

farmers with respect to climate, labor, and processing costs.(FN 1)
According to your website, xxx, you have been collecting and propagating clumping and running varieties of xxx for 15
years. The website states that in general, "runners have a more upright growth habit than clumpers and are a better
choice for a hedge along a tight walkway or narrow drive. Either type - clumping or running - xxx will provide a quick
impenetrable hedge, graceful grove, or attractive spot planting." There is no indication on the website that the xxx is
being sold to produce food for human consumption.
LAW
Pursuant to Section 212.07(5)(a), F.S., the gross proceeds derived from the sale in this state of livestock, poultry, and
other farm products direct from the farm are exempted from the tax levied by Chapter 212, F.S., provided such sales
are made directly by the producers. This exemption does not apply to ornamental nursery stock offered for retail sale
by the producer. As provided in Rule 12A-1.048(2)(a), F.A.C., the term "ornamental nursery stock" applies to all
plants, shrubs and trees customarily sold by nurseries for landscaping purposes, regardless of the state of growth or
maturity, but does not include plants used to produce food for human consumption. Section 212.08(5)(a), F.S.,
provides an exemption for seeds, seedlings, cuttings, and plants used to produce food for human consumption.
As provided in Rule 12A-1.038(5)(b), F.A.C.:
Any person who is purchasing, renting, leasing, or licensing tangible personal property or services that qualify for an
exemption from tax imposed under Chapter 212, F.S., based on the use of the property or service, must extend an
exemption certificate to the selling dealer in lieu of paying tax. The exemption certificate must contain the purchaser's
name, address, the reason for which the use of the property or service qualifies for exemption based on its use, and
the signature of the purchaser or an authorized representative of the purchaser. The selling dealer is only required to
obtain one certificate for sales made for the purposes indicated on the certificate and is not required to obtain an
exemption certificate for subsequent sales made for the exempt purpose indicated on the exemption certificate. The
selling dealer must maintain the required exemption certificates in its books and records for the time period provided in
subsection (6) of this rule. (E.S.)
Rule 12A-1.038(6), F.A.C., provides that:
Selling dealers must maintain blanket resale and exemption certificates based on the Department's suggested format
provided in Rule 12A-1.039, F.A.C., effective 12-13-94, as well as exemption affidavits, exemption certificates, copies
of Consumer's Certificates of Exemption, Transaction Authorization Numbers, Vendor Authorization Numbers, and
other documentation required under the provisions of this rule, other rule sections of Rule Chapter 12A-1, F.A.C., or
suggested in Taxpayer Information Publications, until tax imposed by Chapter 212, F.S., may no longer be determined
and assessed under s. 95.091(3), F.S. Electronic storage by the selling dealer of the required affidavits, certificates, or
other documentation through use of imaging, microfiche, or other electronic storage media will be sufficient
compliance with the provisions of this subsection.
The exemption for plants used to produce food for human consumption is based on the plant's intended use. If the

plant is not intended to be used to produce food for human consumption, it is taxable. Plants purchased for use in
producing food (edible shoots) are subject to the exemption, provided the purchaser signs a statement to that effect.
Enclosed is a copy of Rule 12A-1.087, F.A.C., which contains a suggested certificate to be issued by any person
purchasing items that qualify for exemption as items for agricultural use or items for agricultural purposes, including
plants used to produce food for human consumption.
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
Enclosure
Ctrl. No. 23077

FOOTNOTE 1. Source: National Center for Appropriate Technology (www.ncat.org).