Were prepackaged meals exempt when inmates customarily heated them in a microwave after purchase and before eating?

Plain-English summary

The Florida Department of Revenue concluded that prepackaged meals sold directly to inmates in correctional institutions were exempt from sales tax.

The meals did not require refrigeration. After purchase, an inmate customarily took the meal to a microwave, heated it, and then consumed it. Because customary consumption practices showed that the meals generally required heating by the purchaser, they were not food sold ready for immediate consumption.

The decision was based on the meal samples and facts presented, including meals containing meat and ravioli.

What this means for you

Sellers of packaged meals

Whether a food is ready for immediate consumption can turn on how purchasers customarily consume it. Keep product and preparation information that shows whether heating normally occurs after the sale.

Correctional-facility vendors

The ruling addressed meals sold directly to inmates who heated them after purchase; it did not classify every food item sold in a correctional institution.

Accountants and tax professionals

Apply the grocery exemption together with the immediate-consumption exception and the customary-consumption-practices rule.

Common questions

Q: Were these prepackaged meals taxable?
A: No.

Q: Why were they exempt?
A: Inmates customarily heated the meals after purchase, so they were not ready for immediate consumption when sold.

Q: Did the meals require refrigeration?
A: No.

Citations and references

• Fla. Stat. §§ 212.02(19), 212.05, 212.08(1), 212.08(1)(c)3., 212.054, 212.055, and 213.22
• Fla. Admin. Code r. 12A-1.011(4)(b)1.

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 15A-012

Original ruling text

Executive
Director
Marshall Stranburg

QUESTION: WHETHER THE SALE OF A MEAL, WHICH IS CUSTOMARILY HEATED
BY THE END USER AFTER PURCHASE, IS SUBJECT TO TAX?
ANSWER: THE SALE OF THE MEAL TO THE END USER IS EXEMPT FROM TAX,
BECAUSE IT IS CUSTOMARY FOR THE END USER TO HEAT THE MEAL AFTER
PURCHASE AND BEFORE CONSUMING.
September 30, 2015
Re:

Technical Assistance Advisement 15A-012
Florida Sales and Use Tax
Heat and Serve Meals
Sections 212.05 and 212.08, Florida Statutes (“F.S.”)
Rule 12A-1.011, Florida Administrative Code (“F.A.C.”)
Petitioner: XXXX (“Taxpayer”)

Dear XXX:
This letter is a response to your petition received on September 8, 2015, for the Department of
Revenue’s (“Department”) issuance of a Technical Assistance Advisement ("TAA") concerning
the above-referenced petitioner and matter. Your petition has been carefully examined, and the
Department finds it to be in compliance with the requisite criteria set forth in Chapter 12-11,
F.A.C. This response to your request constitutes a TAA and is issued to you under the authority
of Section (“s.”) 213.22, F.S.
FACTS PRESENTED
The following facts are based on documents and statements provided by Taxpayer, as well as
Departmental research.
Taxpayer has contracted with the State (via the Department of Corrections (“DOC”)) to sell
various items in correctional institutions (“CI”) around the State directly to inmates. One of the
items sold to the inmates at the CI are prepackaged meals. These meals do not require
refrigeration. After purchase, the inmate takes the meal to a microwave, heats the meal, and then
consumes the meal. Some of the samples provided to the Department involve meals containing
meat and raviolis.

Child Support Enforcement – Ann Coffin, Director  General Tax Administration – Maria Johnson, Director
Property Tax Oversight – Dr. Maurice Gogarty, Director  Information Services – Damu Kuttikrishnan, Director

www.myflorida.com/dor
Tallahassee, Florida 32399-0100

Technical Assistance Advisement
Page 2
REQUESTED ADVISEMENTS
Taxpayer inquires as to whether the sale of the meal to the inmates is subject to tax.
LAW & DISCUSSION
Section 212.05, F.S., provides every person is engaged in a taxable privilege when engaging in
the business of selling, at retail, tangible personal property. In order to exercise such a privilege,
tax is levied at a rate of 6%.1 See s. 212.05(1)(a)1.a., F.S. Tangible personal property is defined
as “personal property which may be seen, weighed, measured, or touched, or is in any manner
perceptible to the senses ….” See s. 212.02(19), F.S. Therefore, the sale of food in Florida is
subject to tax, unless an exemption applies.
Florida sales or use tax is not due if the item is specifically exempt by Chapter 212, F.S. It is
well-settled law exemptions are strictly construed against the taxpayer, causing the burden of
proof for the exemption to be on the taxpayer. See State ex. rel Szabo Food Servs., Inc. of N.C.
v. Dickinson, 286 So. 2d 529, 530-32 (Fla. 1973); Green v. City of Pensacola, 126 So. 2d 566,
569 (Fla. 1961); State v. Thompson, 101 So. 2d 381, 386 (Fla. 1958). Any doubt as to an
exemption is resolved favorably towards the State. See Szabo Food Servs., 286 So. 2d at 531;
United States Gypsum Co. v. Green, 110 So. 2d 409, 413 (Fla. 1959).
One such exemption from the tax imposed in Chapter 212, F.S., is a grocery exemption. See s.
212.08(1), F.S. However, food sold for immediate consumption is subject to tax. See s.
212.08(1)(c)3., F.S.; see also Rule 12A-1.011(4)(b)1., F.A.C. But, the previously cited rule
further states that if the food sold is not ready for immediate consumption, which is determined
by “customary consumption practices[,]” then the food is exempt from tax (i.e., the food is
generally heated by the purchaser).
Based on the samples provided, the Department finds the meals sold to the inmates to
customarily require heating by the inmates. Therefore, the meals sold to the inmates are exempt
from tax.
CONCLUSION
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 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.

1

Counties are authorized to charge a discretionary sales surtax, up to 1.5%, in addition to the State sales tax rate. See
ss. 212.054 and 212.055, F.S.

Technical Assistance Advisement
Page 3
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 10 days of the date of this letter.
Sincerely,

David J. Brennan, Jr., Esq.
Senior Attorney
Technical Assistance & Dispute Resolution
Florida Department of Revenue
Record ID:

203870