Was leased airport apron space taxed as commercial real property or as paid aircraft parking and tiedown space?

Plain-English summary

Florida divided an airport fixed-base operator's leased apron space according to how each area was used.

Most of the apron was used for free parking of military aircraft between training flights. Because the operator received no parking or tiedown rent from aircraft owners for that area, the paid-aircraft-parking tax did not apply. The landlord's lease of that area to the operator remained subject to commercial real-property rental tax under Fla. Stat. Sec. 212.031.

A smaller apron area was used for paid civilian aircraft parking, tiedown, or storage. That activity was taxed under Sec. 212.03(6). The parcel subject to paid parking tax was excluded from commercial-rent tax under the statutory anti-pyramiding rule described in the TAA.

What this means for you

Fixed-base operators

Free aircraft parking and paid parking were not treated the same. The relevant question was whether the operator charged rent for parking, tiedown, or storage on the particular area.

Airport landlords

Lease charges for areas used only for free parking remained commercial real-property rent on the stated facts.

Common questions

How was free military-aircraft parking treated? As part of the commercial real-property lease.

How was paid civilian parking or tiedown treated? Under the aircraft parking and storage tax provision.

Did both taxes apply to the paid-parking parcel? No. The TAA treated the paid-parking parcel as excluded from commercial-rent tax.

Citations and references

• Fla. Stat. Sec. 212.03(6)
• Fla. Stat. Sec. 212.031
• Fla. Admin. Code R. 12A-1.073

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 21A-016

Original ruling text

QUESTION: Whether certain areas of the Airport leased by Landlord to Taxpayer are subject to
the tax rate imposed by s. 212.031, F.S., for real property commercial rentals or s. 212.03, F.S.,
for aircraft parking.
ANSWER: The tax imposed by s. 212.031, F.S., applies to the area used for free parking of
military aircraft. The tax imposed by s. 212.03(6), F.S., applies to the area used for paid parking
or tiedown of aircraft.

December 1, 2021

XXXX
XXXX
XXXX
XXXX
XXXX
Technical Assistance Advisement (TAA)
TAA #: 21A-016
TAXPAYER NAME: XXXX (“Taxpayer”)
Business Partner Number: XXXX
FEIN Number: XXXX
XXXX (Landlord)
XXXX (“Airport”)
Sales & Use Tax – Real Property Rental
Sections: 212.03 and 212.031, Florida Statutes (F.S.)
Rules: 12A-1.070 and 12A-1.073, Florida Administrative Code (F.A.C.)
Dear XXXX:
This is in response to the letter dated April 26, 2021, requesting this Department’s
issuance of a Technical Assistance Advisement (“TAA”) pursuant to s. 213.22, F.S., and
Chapter 12-11, Florida Administrative Code (Fla. Admin. Code) regarding the lease of
real property. Your request has been carefully examined, and the Department finds it to
be in compliance with the requisite criteria set forth in Chapter 12-11, Fla. Admin. Code.
This response to your request constitutes a TAA and is issued to you under the authority
of s. 213.22, F.S.

Technical Assistance Advisement
Florida Department of Revenue
Page 2

REQUESTED ADVISEMENT
Whether certain areas of the Airport leased by Landlord to Taxpayer are subject to the
tax rate imposed by s. 212.031, F.S., for real property commercial rentals, or s. 212.03,
F.S., for aircraft parking.

FACTS

Taxpayer is a privately held corporation, which is a Fixed Base Operator (“FBO”) located
at Airport. Taxpayer provides the following services: (i) aircraft refueling, (ii) greeting
passengers, (iii) luggage assistance, (iv) transportation services, (v) special delivery pickup, and (vi) fulfilling special requests. Taxpayer operates under a FBO lease agreement
with Landlord, including buildings, a hangar, land, and parking lot, including 783,800
square feet of aircraft apron space. Taxpayer does not charge for parking automobiles
in the parking lot, or on any other portion of the leased premises.
Military aircraft is used at Airport for training purposes. Of the 783,800 square feet of
aircraft apron space, 749,800 square feet are used for free parking of military aircraft
when the aircraft is not in use for training. Taxpayer charges parking or tiedown (“tiedown”
as used herein includes storage) and ramp fees for civilian aircraft utilizing the Airport.
Taxpayer’s website provides that in some instances ramp fees are waived when fuel is
purchased. The portion of aircraft apron space not used for military aircraft parking –
34,000 square feet – is used for paid parking for transient civilian aircraft. Unless a
parking fee is waived as indicated above, Taxpayer charges customers the six percent
(6%) tax imposed for aircraft parking under s. 212.03(6), F.S.
Landlord is currently collecting six (6) percent state sales tax pursuant to s. 212.03(6),
F.S., on any parcel upon which an aircraft or automobile could be parked. Landlord
collects the five and a half (5.5) percent tax due under s. 212.031, F.S., on leased parcels
consisting of building spaces (buildings and hangars).
TAXPAYER POSITION
Taxpayer takes the position that the tax imposed by s. 212.03(6), F.S., only applies to
areas actually utilized for paid parking or tiedown of aircraft or automobiles, and any
other leased space is subject to tax under 212.031, F.S. Areas utilized only for free
parking or tiedown (i.e., military aircraft parking) should be subject to tax on the prime
lease under Rule 12A-1.073(3), F.A.C. Taxpayer further takes the position that the
areas utilized for paid parking or tiedown are not also subject to tax on the prime lease
pursuant to Rule 12A-1.073(2), F.A.C.
Finally, Taxpayer states that since the number of paying aircraft owners on their apron
is small and their current agreement does not designate a specific parcel of parking

Technical Assistance Advisement
Florida Department of Revenue
Page 3

apron for paid parking, they do not think an exemption from sales tax in the prime lease
for that parcel would be warranted. Taxpayer notes that this may result in the
pyramiding of taxes but that the amount would be negligible.

LAW
Section 212.03(6), F.S., provides in pertinent part:
The Legislature finds that every person . . . who leases or rents tie-down or storage
space for aircraft at airports is engaging in a taxable privilege.
(a) For the exercise of this privilege, a tax is hereby levied at the rate of 6
percent on the total rental charged.

Section 212.031, F.S., provides on pertinent part:
(1)(a) It is declared to be the legislative intent that every person is exercising a
taxable privilege who engages in the business of renting, leasing, letting, or
granting a license for the use of any real property unless such property is:

3. Property subject to tax on parking, docking, or storage spaces under s.
   212.03(6).

(c) For the exercise of such privilege, a tax is levied at the rate of 5.5 percent
of and on the total rent or license fee charged for such real property by the person
charging or collecting the rental or license fee. The total rent or license fee charged
for such real property shall include payments for the granting of a privilege to use
or occupy real property for any purpose and shall include base rent, percentage
rents, or similar charges. . . .

(2)(a) The tenant or person actually occupying, using, or entitled to the use of
any property from which the rental or license fee is subject to taxation under this
section shall pay the tax to his or her immediate landlord or other person granting
the right to such tenant or person to occupy or use such real property.
(b) It is the further intent of this Legislature that only one tax be collected on the
rental or license fee payable for the occupancy or use of any such property, that
the tax so collected shall not be pyramided by a progression of transactions, and

Technical Assistance Advisement
Florida Department of Revenue
Page 4

that the amount of the tax due the state shall not be decreased by any such
progression of transactions.
(3) The tax imposed by this section shall be in addition to the total amount of the
rental or license fee, shall be charged by the lessor or person receiving the rent or
payment in and by a rental or license fee arrangement with the lessee or person
paying the rental or license fee, and shall be due and payable at the time of the
receipt of such rental or license fee payment by the lessor or other person who
receives the rental or payment. . . .

Rule 12A-1.073, F.A.C. [Motor Vehicle Parking Lots and Garages, Boat Docks and
Marinas, and Aircraft Tie-down or Storage], provides in pertinent part:
(1)(a) The lease or rental of parking or storage spaces for motor vehicles in parking
lots or garages is taxable.

(c) The lease or rental of tie-down or storage space for aircraft at airports is taxable.

(3) When the lease of real property includes areas which are used for free parking
the entire consideration paid by the lessee to the lessor is taxable.
DISCUSSION
Section 212.03(6), F.S., indicates that “ . . . every person . . . who leases or rents tie-down
or storage space for aircraft at airports is engaging in a taxable privilege.” The tax is
imposed on the total rental charged.
Section 212.031, F.S., imposes sales tax on the rental income received from leasing real
property. Section 212.031(1)(a)3., F.S., provides an exemption for property subject to
tax on parking, docking, or storage spaces under s. 212.03(6), F.S.

The facts presented are that Taxpayer only charges for aircraft tiedown or parking with
respect to one area of the property. With respect to this area, Taxpayer is exercising
the privilege subject to tax under s. 212.03(6)(a), F.S. Accordingly, this parcel is not
subject to tax pursuant to s. 212.031(a)3., F.S.
No rental income is received by Taxpayer for the area used for free parking of military
aircraft. Because there is no “rental charged” by taxpayer regarding this area, the tax
imposed by s. 212.03(6), F.S., does not apply this area. See ss. 212.031(1)(a)3. and

Technical Assistance Advisement
Florida Department of Revenue
Page 5

212.03(6); Rule 12A-1.073(3), F.A.C. The tax imposed by s. 212.031, F.S., applies to the
prime lease for the area in which the military aircraft are parked for no charge.
CONCLUSION
The tax imposed by s. 212.031, F.S., applies to the area used for free parking of military
aircraft. The tax imposed by s. 212.03(6), F.S., applies to the area used for paid parking
or tiedown of aircraft.
Taxpayer anticipates that it will continue paying the tax imposed by s. 212.031, F.S.,
regarding the area used for paid civilian aircraft parking or tiedown and that it will also
collect and remit tax for parking or tiedown from civilian customers pursuant to s.
212.03(6), F.S.1 It is noted that s. 213.756(1), F.S., provides that “[f]unds collected from
a purchaser under the representation that they are taxes provided for under the state
revenue laws are state funds from the moment of collection . . . .” Accordingly, the
amounts collected as tax by both Taxpayer and Landlord are state funds and must be
properly remitted to the Department of Revenue.
This response constitutes a Technical Assistance Advisement under Section 213.22, Fla.
Stat., which is binding on the Department only under the facts and circumstances
described in the request for this advice, as specified in Section 213.22, Fla. Stat. 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, Fla. Stat., and are subject to disclosure to the
public under the conditions of Section 213.22, Fla. Stat. 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.

1

It is noted that the taxes imposed by ss. 212,03(6) and 212.031, F.S., constitute separate and distinct taxable
privileges and apply, respectively, to Taxpayer (for the rental of aircraft parking or tiedown) and Landlord (for the
lease of real property). Accordingly, there is no duplication or pyramiding of tax in this instance. See, e.g. Florida
Hotel & Motel Ass’n v. Department of Revenue, 635 So. 2d 1044, 1048 (Fla. 1st DCA 1994).

Technical Assistance Advisement
Florida Department of Revenue
Page 6

Sincerely,

Leigh L. Ceci
Leigh L. Ceci
Tax Law Specialist
Technical Assistance & Dispute Resolution
NOTICE UNDER THE AMERICANS WITH DISABILITIES ACT
Persons needing an accommodation to participate in any proceeding before the Technical Assistance and
Dispute Resolution Office should contact that office at 850-617-8346, or you may also call via the Florida
Relay System at 800-955-8770, at least five working days before such proceeding.
Control #: 583687