Was the waste-removal broker renting dumpsters to Florida customers or selling a nontaxable garbage-disposal service?

Plain-English summary

The broker's Florida charges were for nontaxable garbage and waste-disposal services, not taxable dumpster rentals.

The broker had no Florida locations, employees, or property and did not own or lease dumpsters. It contracted with local third-party haulers that owned or had access to the containers, marked up the haulers' service costs, and billed customers for waste removal.

The Department found that the dumpster had no value to the customer by itself. The customer paid for collection and disposal and did not receive custody, possession, or the right to control the dumpster—the attributes that would indicate an operating lease.

What this means for you

Equipment used to perform a service does not automatically turn the transaction into a rental. The key question is whether the customer receives possession or control of the property or is simply buying the completed service.

Common questions

Were the broker's charges subject to Florida sales tax? No, under the described facts.

Why was the dumpster not treated as rented property? The customer did not receive custody, possession, or control; the container was incidental to the waste-removal service.

Did the broker own the dumpsters? No. Local third-party contractors owned or had access to them.

Citations and references

• Fla. Stat. §§ 212.02, 212.05, and 212.06.
• Fla. Admin. Code rr. 12A-1.071(1) and 12A-1.039.
• Warning Safety Lights, Inc. v. Department of Revenue and American Video Corp. v. Lewis, as discussed in the advisement.

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 23A-012

Original ruling text

Question: Are Taxpayer’s services described in this request considered to be nontaxable
garbage/waste disposal services in Florida?
Response: Taxpayer is not renting or leasing tangible personal property but is providing a service
which is not subject to Sales and Use Tax.
June 9, 2023

Re:

Dear

Technical Assistance Advisement – TAA #: 23A-012
Sales and Use Tax – Taxability of Services vs. Rental of Tangible Personal Property
Sections 212.02, 212.05, 212.06, 212.07, 212.18, and 212.21, Florida Statutes (“F.S.”)
Rules 12A-1.039 and 12A-1.071, Florida Administrative Code (“F.A.C.”)
(“Taxpayer”)
BP#:
FEIN:
,

This is in response to your letter dated
, requesting this Department’s issuance of a
TAA pursuant to Section 213.22, F.S., and Chapter 12-11, Florida Administrative Code, regarding the
taxability of services. 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, F.A.C. This response to your request
constitutes a TAA and is issued to you under the authority of s. 213.22, F.S.
Stated Facts
The request dated

, provides in pertinent part:

Taxpayer is not registered in the state of Florida for sales/use tax and has applied to the voluntary
disclosure program.

Technical Assistance Advisement
June 8, 2023
Page 2

Taxpayer is a broker of waste removal services in Florida and does not own or lease dumpsters.
Taxpayer does not have any physical locations, employees or property in Florida. Taxpayer contracts
with local businesses (hereinafter “third-party contractors”) who operate in Florida and either own
dumpsters or have access to them.
Taxpayer has a division in the company—called “Vendor Relations”—that deals with all Third-Party

Technical Assistance Advisement
June 8, 2023
Page 3

Requested Advisement
Taxpayer asks the following questions:

1. Are the services outlined above considered to be nontaxable garbage/waste disposal
   services in Florida?
2. If the answer to question 1 is no, will Taxpayer be penalized for the current description on
   its sales invoices?
   Taxpayer provides copies of the following:
   •
   •
   •
   •
   •

Invoices, including terms of service, issued to four customers
Four redacted voice recordings of customer calls
Emails and Attachments
Emails and Attachments
Hauler term agreements with
,

•
•

Daily Operations Guide
Payment Terms

,

and

Technical Assistance Advisement
June 8, 2023
Page 4

Taxpayer Position
Taxpayer states it does not perform the services or own or lease any of the dumpsters used in Florida.
Rather, it is the third-party contractors that provide the services and own the dumpsters used to
provide the services to Florida customers. The third-party contractors are not charging sales/use tax
to Taxpayer for the nontaxable services they are providing. Taxpayer is billed by the third-party
contractors, marks up the cost of the service and bills the customer. Taxpayer states further it does
not believe the services provided constitute taxable services in the state of Florida or the taxable rental
of tangible personal property. These services should be held to be nontaxable garbage/waste disposal
services. Based upon its research and discussions with other companies in Florida providing the same
type of services, sales/use is not being charged on this service by any of the providers it has spoken
with. The companies are consuming their trucks, dumpsters, etc., in the performance of their service
and paying sales/use tax on the equipment when acquired.
Law and Discussion
Florida law provides that all sales of tangible personal property are subject to sales tax unless an
exemption or exclusion from the tax applies. See ss. 212.05, 212.06 and 212.18, F.S. Tax is imposed
on the sales price of each item or article of tangible personal property when sold at retail, unless
specifically exempt. See ss. 212.05(1)(a)1.a. and 212.21(2), F.S. The term “sales price” means the
total amount paid for tangible personal property, “including any services that are a part of the sale.”
Any transfer of title or possession, or both, lease, or rental, conditional or otherwise, of tangible
personal property for a consideration, is a sale. See ss. 212.02(15)(a) and (16), F.S.
All leases of tangible personal property other than conditional-sale type leases are operating leases.
It is not essential for a transfer of possession of tangible personal property to include the right to
move the tangible personal property. See Rule 12A-1.071(1)(a), F.A.C. Transfer of possession with
respect to an operating lease means that one of the following attributes of tangible personal property
ownership has been transferred: (1) Custody or possession of the property, actual or constructive;
(2) The right to custody or possession of the property; or, (3) The right to use and control or direct
the use of the property.... See Rule 12A-1.071(1)(b), F.A.C.
In Warning Safety Lights Inc. v. Department of Revenue, 678 So.2d 1377, (Fla. 4th DCA 1996), the court
held that the furnishing of traffic barricades and warning lights was incidental to the overall service
of setting up and maintaining temporary traffic control patterns to facilitate completion of a road
construction project. As a result, these factors constitute a service transaction, not the lease or rental
of tangible personal property, and no tax is due on the transaction.
In American Video Corporation v. Lewis, 389 So.2d 1059 (Fla. 1st DCA 1980), the Court held that the
hooks, wires and “gadgets” used by American Video to install cable television systems are of no value
in and of themselves. Id. at 1061. The Court held that the customer is paying a consideration in the
form of the monthly service charge for the provision of cable television, not the provision of hooks,
wires and “gadgets.”

Technical Assistance Advisement
June 8, 2023
Page 5

Applying the law to the facts presented here leads to the conclusion that the provision of the
dumpsters (under these specific facts) is of no value in and of itself. The customer is paying
consideration for the nontaxable garbage/waste disposal service, not for the rental or possession of
a dumpster.
Conclusion
Based on the facts provided, the questions presented are answered as follows:
1.
Are the services outlined above considered to be nontaxable garbage/waste disposal services
in Florida?
Response:
Taxpayer is not renting or leasing tangible personal property but is providing a service
which is not subject to Sales and Use Tax.
2.
If the answer to question 1 is no, will Taxpayer be penalized for the current description on its
sales invoices?
Response:

n/a

This response constitutes a Technical Assistance Advisement under Section 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 Section 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
Section 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 ten (10) days of the date of this letter.
If you have any further questions with regard to this matter and wish to discuss them, you may
contact me directly at 850-717-6735.
Best Regards,

Alan R. Fulton

Alan R. Fulton
Revenue Program Administrator I
Technical Assistance & Dispute Resolution

Technical Assistance Advisement
June 8, 2023
Page 6

CC:

Technical Assistance Advisement
June 8, 2023
Page 7

TADR Satisfaction Survey
The Florida Department of Revenue invites you to complete the online TADR Satisfaction Survey to
help us identify ways to improve our service to taxpayers. The survey is an opportunity to provide
feedback on your recent experience with the Department’s office of Technical Assistance and
Dispute Resolution (TADR). To access the survey, place the following address in your browser’s
access bar:
https://tadr.questionpro.com
When you open the survey, you’ll be asked to enter the following information. This information will
enable you to complete and submit the survey.
Notification number:

7000721613

Respondent code:

44

Tax type:

Sales and Use Tax

Correspondence type: Technical Assistance
If you need technical assistance accessing the survey, please email Douglas Charity at
[email protected].
Thank you.