Did three free weekly publications qualify for Florida's community-newspaper sales-tax exemption, and how could prior printing tax be recovered?

Subject

Free Circulated Publication

Plain-English summary

All three free weekly publications qualified for the historical community-newspaper exemption. The Department relied on their free general-public circulation, short publication intervals, broad advertising, general-interest and current-events content, qualifying distribution, and certification that advertising exceeded 50% in more than half the editions while general news remained at least 25%.

The publisher could give the printer a blanket exemption certificate for qualifying printing. For tax previously paid on printing from July 1, 1991 forward, the publisher had to seek a refund from the printer; the printer could then claim a Department refund or credit within 36 months of remittance with adequate records.

What this means for you

The exemption depended on documented publication content and distribution, not merely free circulation. Refund recovery also ran through the selling printer rather than directly from the Department.

Common questions

How much advertising did the ruling require? More than 50% in more than half the editions during a 12-month period, but no more than 75% because at least 25% had to be general news.

What did the publisher give the printer? A completed blanket shopper/community-newspaper exemption certificate.

Could the publisher apply directly to Florida for the old tax? No. The ruling directed the publisher to obtain the refund from the printer.

Citations and references

• Fla. Stat. §§ 212.08(7)(w) and 213.22
• Fla. Admin. Code rr. 12A-1.008(10) and 12A-1.014

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 94A-003

Original ruling text

Jan 12, 1994

Re: TAA 94A-003
Free Circulated Publication
Section 212.08(7)(w), F.S.
Rule 12A-1.014, F.A.C.

Dear :

This is in response to your letter of October 20, 1993, in
which you requested the issuance of a technical assistance
advisement on behalf of XXX, (hereinafter "Company") as to
whether the copies of the three publications submitted with your
letter for examination by the Department qualify for the
exemption from sales and use tax provided by section
212.08(7)(w), F.S., for "community newspapers".

You also asked what evidence is Company required to present
to XXX (hereinafter "Printer") in order to exempt Printer's
charge for printing the publications. Additionally you asked
for guidance regarding the proper method to recover sales tax
previously paid by Company to Printer for printing charges
related to publishing "community newspapers" which are exempt
under section 212.08(7)(w), F.S.

Your letter provides in part:

"[Company] publishes and distributes three publications,
XXX. The publications are distributed free of charge.
Recent copies of all three publications are included for
your examination, Please note that these copies fairly
represent the content of each weekly publication. The
publications are printed at the Printer plant in XXX and
are mailed to customers every Friday. [Company] has been
paying sales tax to [Printer] for printing charges.

"As stated at the beginning of this letter, all three
publications are published weekly. Thus the short interval
of publication standard is met. Furthermore, by its

content it is intended to be circulated among the general
public. The content does not address a specific audience.
It cannot be construed to be a book or magazine. Upon
examining the publication you will note that each contains
matters of general interest and reports of current events
and not more than 75 percent of the copy of each is devoted
to advertising. It is my opinion that all three
publications meet the requirements for exemption...."

Discussion of Law and Policy

Statute Law
Section 212.08(7)(w), F.S., provides:

"(w) Newspapers, Shoppers, and Community Newspapers.
Likewise exempt are newspapers. Also exempt are free,
circulated publications which are published on a regular
basis, the content of which is primarily advertising and
which are distributed through the mail, home delivery, or
newsstands."

Case Law

Section 212.08(7)(w), F.S., constitutes a statutory
exemption and the Department in construing its provisions must
adhere to and be guided by the long-standing and fundamental
precept of statutory construction, established by the Florida
Supreme Court, which mandates that exemptions from or exceptions
to taxing statutes must be strictly construed against the
taxpayer. See Asphalt Pavers v. Dept. of Revenue, 584 So. 2d 57
(Fla. 1st DCA 1991); Dade Cty. Taxing Auth. v. Cedars of
Lebanon, 355 So. 2d 1205 (Fla. 1978), reh. den. April 5, 1978;
Williams v. Jones, 326 So. 2d 425 (Fla. 1975), reh. den. March
4, 1976; Straughn v. Camp, 293 So. 2d 689 (Fla. 1974); United
States Gypsum Company v. Green, 110 So. 2d 409 (Fla. 1959).

Focusing back on the exemption for certain free
publications granted by s. 212.08(7)(w), F.S., the Florida
Supreme Court's doctrine of strict construction of exemptions
would operate to confine said exemption to a publication which
can demonstrate under a strict construction that it naturally,

logically, and by clear connection falls into the category of a
"community newspaper". The statute does not define the term
"community newspaper"; therefore, the legislative intent of the
scope of the term must be ascertained by enlisting the following
fundamentals of statutory construction while at the same time
keeping in mind the Florida Supreme Court doctrine of strict
construction of exemptions noted earlier.

It is a fundamental principle of statutory construction
that legislative intent and policy concerns must control our
construction of statutes and that the determination as to the
intent of the legislature is based upon the plain and ordinary
meaning of the language in the statute itself. See Holly v.
Auld, 450 So. 2d 217 (Fla. 1984).

In the matter of St. Petersburg Bank & Trust Co. v. Hamm,
414 So. 2d 1071 (Fla. 1982), the Florida Supreme Court held that
while legislative intent controls construction of statutes, that
intent is determined primarily from language of the statute;
plain meaning of statutory language is first consideration.

With the aim of conforming to the above fundamentals of
statutory construction established by the Florida Supreme Court
as well as the Florida Supreme Court doctrine on strict
construction of statutory exemptions, the Department takes the
position that the plain and ordinary meaning of the term
"community newspaper", as used in s. 212.08(7)(w), F.S., when
narrowly construed refers to a community publication possessing
the following attributes: (i) its circulation must be free; (ii)
it must be published at stated short intervals (usually daily or
weekly); (iii) it must not, when successive issues are put
together, constitute a book; (iv) it must be intended for
circulation among the general public; (v) it must consist
primarily of advertising of a broad range of products and
services offered by several unrelated types of businesses or
individuals; (vi) it must routinely devote a minimum of 25
percent of its copy to reports of currents events and matters of
general interest which appeal to a wide spectrum of the general
public; and (vii) it must be distributed through the mail, home
delivery, or newsstands.

In the case of "community newspapers", it is the
Department's position with respect to satisfying the "primarily
advertising" requirement specified in s. 212.08(7)(w), F.S.,
that if more than 50 percent of the publication's copy was
devoted to advertising in more than one-half of the published
editions during any 12-month period, said publication's primary
purpose will be presumed to have been advertising and not the
dissemination of news (see Rule 12A-1.008, F.A.C., enclosed).
However, since as a community newspaper it must contain a
minimum of 25 percent general news, it cannot contain more than
75 percent advertising.

Conclusion

Applying the foregoing statutory law, case law, and policy
in evaluation of each of the three publications under advisement
brings us to the conclusion that all three publications fulfill
the requirements for the "community newspaper" exemption under
s. 212.08(7)(w), F.S., in light of the fact that the certified
statement the Company furnished us states that more than 50
percent of all three publications' copy is devoted to
advertising in more than one-half of the published editions
during any 12-month period.

Concerning the evidence necessary to exempt the purchase of
printing by "community newspapers" under section 212.08(7)(w),
F.S.; a completed blanket exemption certificate in the following
suggested format should be provided by Company to Printer at the
time of purchase.

SHOPPER/COMMUNITY NEWSPAPER EXEMPTION CERTIFICATE
SELLER'S NAME:____
SELLER'S ADDRESS:__
The undersigned hereby swears and affirms that the purchases on
or after___(date) from the above named vendor are for the
following purposes as checked in the space provided:
( ) The purchase of printing of a "shopper" or "community
newspaper" as defined in Rule 12A-1.008(10), F.A.C.
( ) The purchase of items such as paper and ink for the
sole and exclusive purpose of incorporation into a "shopper" or
"community newspaper" as defined in Rule 12A-1.008(10), F.A.C.,

as a part thereof, and no part of which will be diverted to any
other use.
PURCHASER:______
PURCHASER'S ADDRESS:____
PURCHASER'S CERTIFICATE OF REGISTRATION NO. (Sales Tax No.) IF
REGISTERED:______
BY:____TITLE:_
(signature)
DATE:__

As to a refund of taxes previously paid by Company to
Printer on charges for printing, section 93, of Chapter 90-132,
L.O.F., effective July 1, 1991, amended paragraph (w), of
subsection (7), of section 212.08, F.S., to exempt "community
newspapers" from tax under certain circumstances. Therefore,
Company is entitled to a refund of sales tax paid to Printer for
printing purchased from July 1, 1991, to the present provided
that it met the requirements as outlined above.

The proper handling of a refund or credit is found in Rule
12A-1.014, F.A.C., which provides in part:

"(2) When any sale, upon which the tax has been paid to the
dealer by the purchaser, is cancelled or the property sold
is returned to the dealer, and the sale price is refunded
to the purchaser, the dealer shall also refund to the
purchaser the tax paid by the purchaser. If, in lieu of a
refund of the sale price, the dealer credits such amount on
the purchaser's account, a corresponding credit for sales
tax previously paid by the customer shall be made.
"(3) Any dealer who makes taxable sales to nontaxable
persons, or refunds taxes paid to any purchaser, or pays
any tax in error for which he later claims a refund or
credit shall keep internal records to support such sales.
"(4)(a) When any dealer refunds the tax paid by a
purchaser, the Department of Revenue will refund such tax
if application therefor is made in writing within 36 months
from the date of payment of the tax to the state.
"(b) Any dealer who is entitled to a refund of taxes paid
to the Department of Revenue may, in lieu of applying to
the Department for a refund, take a credit for such amount

on any subsequent report filed within 36 months of the date
on which the dealer remitted the tax to the state. Such
credits must be supported by schedules attached to the tax
report and if, in the discretion of the Department, said
credit is improperly taken, it may be disallowed by the
Department within thirty-six (36) months of the date on
which such credit is taken by the dealer. (See
subparagraphs (2) and (3) of Rule 12A-1.012 for tax credits
or refunds on repossessions and tax credits on bad debts
written off.)
"(5) Adequate records showing the amounts of returned
merchandise, cancelled sales and merchandise for use or
consumption and subsequently resold which form the basis
for a credit or refund, must be maintained by the dealer.
"(6) Whenever a dealer credits a customer with tax on
returned merchandise or for tax erroneously collected, he
must refund such tax to his customer before his claim to
the State for credit or refund will be approved.
"(7) A taxpayer who has overpaid tax to a dealer, or has
paid tax to a dealer when no tax is due, must secure a
refund from the dealer and not from the Department of
Revenue..."

As indicated in the above rule, Company should seek a
refund of previously paid taxes from Printer. Printer may take
a credit for such amounts on any subsequent report filed within
36 months of the date on which Printer remitted the tax to the
state.

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.

You are further advised that this response and your request

are public records under Chapter 119, F.S., which are subject to
disclosure to the public under the conditions of s. 213.22, F.S.
Your name, address, and any other details which might lead to
identification of the taxpayer must be deleted by the Department
before disclosure. In an effort to protect the confidentiality
of such information, we request you notify the undersigned in
writing within 15 days of any deletions you wish made to the
request or the response.

Sincerely,

Richard S. Harrod
Technical Assistant

RSH/h
Control No. 11776