When were supermarket seafood, deli foods, meats, and cut produce taxable as food prepared for immediate consumption?

Plain-English summary

Food cooked or prepared by the store and sold ready for immediate consumption was generally taxable; ordinary groceries not prepared for immediate consumption remained exempt.

Steamed seafood was taxable when the sale included steaming, even if the steaming was free or occurred after checkout by prior intent. Store-prepared beans and smoked ribs were taxable, as were heated foods and complete dinners. Uncooked ribs, frozen shrimp not ready to eat, and commissary-prepared food sold without further store preparation could remain exempt. Plain cut fruit and extracted juice were exempt, but cut produce sold with an enclosed fork was taxable.

What this means for you

The ruling focused on where preparation occurred, whether the food was ready for immediate consumption, whether heating or a dinner arrangement was involved, and whether utensils were provided with the sale.

Common questions

Q: Was seafood steamed by the store taxable?
A: Yes, when steaming was part of the intended sale.

Q: Were uncooked seasoned ribs taxable?
A: No, because they were not ready for immediate consumption.

Q: Were off-premises-prepared deli beans exempt?
A: Yes, if the store sold them without further preparation; heating, seasoning, or mixing them with taxable store-prepared beans changed the result.

Q: Did an enclosed fork affect cut fruit?
A: Yes. Cut fruit sold with the fork was taxable; a fork merely available in the store did not make the fruit taxable, though use tax was due on free forks.

Citations and references

• Fla. Stat. § 212.08(1) — general-grocery exemption
• Fla. Admin. Code r. 12A-1.011 — food and drink sales
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 95A-002

Original ruling text

Jan 09, 1995

Re: TAA 95A-002
Steamed Seafood; Deli Items; Meat Items; Produce Items
Section 212.08(1), F.S.
Rule 12A-1.011, F.A.C.

Taxpayer:

Dear :

Your letters of July 14, 1994, July 15, 1994, and August 23,
1994, requested a Technical Assistance Advisement, on behalf of
all members of XXXXX, concerning the above referenced matter.
This response constitutes a Technical Assistance Advisement
(TAA) under Chapter 12-11, Florida Administrative Code, and is
issued to you under the authority of s. 213.22, Florida
Statutes.

You have enclosed a copy of your association's membership list,
dated August 11, 1994, and denoted that certain named members
were under audit by this Department. It is the policy of our
Division, in conformity with Rule 12-11.003(3), F.A.C., that we
will refrain from responding to an issue involving a taxpayer
that is under audit by the Department. Therefore, please be
advised that this TAA will not be binding for those XXXXX
members who are under audit. After the audits are resolved,
these members may request an additional technical assistance
advisement, if desired.

RELEVANT AUTHORITY

The following passages quoted from the Florida Statutes and the
Florida Administrative Code are pertinent to the sales of food
and drinks by supermarkets and other food stores:

Section 212.08(1), Florida Statutes (F.S.), provides in part:

"(1) EXEMPTIONS; GENERAL GROCERIES. "(a) There are exempt from the tax imposed by this chapter
food and drinks for human consumption except candy. Unless
the exemption provided by paragraph (7)(q) for school
lunches, paragraph (7)(i) for meals to certain patients or
inmates, paragraph (7)(k) for meals provided by certain
nonprofit organizations, or paragraph (7)(z) for food or
drinks sold through vending machines pertains, none of such
items of food or drinks means:
...
"4. Foods or drinks cooked or prepared on the seller's
premises and sold ready for immediate consumption either on
or off the premises, excluding bakery products for
off-premises consumption unless such foods are taxed under
subparagraph 1. or subparagraph 2.; or
"5. Sandwiches sold ready for immediate consumption."

Rule 12A-1.011(5), Florida Administrative Code (F.A.C.),
provides in part:

"(5)(a) Foods or drinks cooked or prepared on the seller's
premises and sold ready for immediate consumption either on
or off the premises are subject to tax, except bakery
products for consumption off the premises. Food or drinks
ready for immediate consumption means the type of food,
drinks, or meals normally cooked, prepared, served, or sold
by caterers, restaurants, cafes, lunch counters,
cafeterias, or other like places of business, which, when
sold, result in no further preparation prior to
consumption....
...
"(c) When food or drinks are sold by a person who does not
provide eating facilities, food cooked or prepared for
immediate consumption includes:
"1. all food in a heated state when the dealer provides the
food-heating facilities for customer use or when the food
is heated by the dealer rather than the customer; and
"2. all food or drinks sold with eating utensils provided,
including plates, knives, forks, spoons, glasses, cups, or
straws.
"(d) When a person attempts to maintain the food at a

temperature which is warmer than the surrounding air
temperature by using heating lamps, warming trays, ovens,
or similar units, or cooks to order, such person is selling
taxable cooked or prepared food ready for immediate
consumption. (Example: A supermarket sells barbecued
chicken hot from a rotisserie to be taken home and eaten.
This is the taxable sale of a cooked food.)
"(e) The sale of heated and unheated food or a combination
thereof on platters or as dinners are subject to tax on the
total charge. Example: A supermarket sells and arranges
cold cuts on platters for customers. The customer is
charged a lump sum or by the pound for the cold cuts.
Sales of this type are taxable. A supermarket sells cold
cuts which it has not cooked or prepared on its premises,
and charges its customer by the pound without arranging the
cold cuts on plates, platters, or in portions in a
decorative fashion. Sales of this type are not taxable.
When a supermarket slices meats or cheeses and without any
other preparation sells the sliced meat or cheese, the
supermarket is deemed not to have prepared the meat or
cheese."

DISCUSSION/RESPONSE

An exemption from sales and use tax for general groceries is
provided by Section 212.08(1), F.S., and is described in Rule
12A-1.011, F.A.C. Pursuant to that section and rule, the
exemption for general groceries does not include food or drinks
cooked or prepared on the seller's premises and sold ready for
immediate consumption (except bakery products sold for
consumption off the seller's premises), or sandwiches sold ready
for immediate consumption. Rule 12A-1.011(5)(a), F.A.C.,
describes food or drinks ready for immediate consumption as the
type of food, drinks, or meals which are normally cooked,
prepared, served, or sold by caterers, restaurants, cafes, lunch
counters, cafeterias, or other like facilities and sold ready
for consumption without further preparation. Rule 12A1.011(5)(c), F.A.C., further provides that when food or drinks
are sold by a person who does not provide eating facilities,
food cooked or prepared for immediate consumption includes: (1)
all food in a heated state, if the seller heats the food or

provides food-heating facilities for the customers' use; or (2)
all food or drinks sold with eating utensils provided. Rule
12A-1.011(5)(d), F.A.C., also provides that when a person
attempts to maintain food at a temperature which is warmer than
the surrounding air temperature, that person is selling food
cooked or prepared ready for immediate consumption. Rule 12A1.011(5)(e), F.A.C., further provides that heated or unheated
food or a combination of food sold arranged on platters or as
dinners is the taxable sale of cooked or prepared food ready for
immediate consumption.

Your request presented various scenarios in the categories of
steamed seafood, deli items, meat items, and produce items.
These will be restated in the order presented, with our
determination following. Our response will assume that these
items are being sold by food stores which do not provide either
eating facilities or food-heating facilities available for the
customers' use.

STEAMED SEAFOOD:

"1. Scenario #1. - The customer orders a fresh seafood product.
The store has a policy of free steaming. The customer then asks
to have the purchase steamed. When the customer goes through
the register and pays for the product, should it be taxable?"

Department's Response:

Pursuant to Section 212.08(1)(a)4., F.S., and Rule 12A-1.011(5),
F.A.C., the sale of the seafood is taxable, since the store has
cooked or prepared it on the premises and the seafood is sold
ready for immediate consumption.

"2. Scenario #2 - The customer orders a fresh seafood product.
The customer takes the product to the register and pays for it.
They then return to the Seafood Department and ask that it be
steamed. The company has a policy of free steaming. Is this
product taxable?"

Department's Response:

In this instance, the customer has purchased a fresh seafood
product which has not been cooked or prepared and is not sold
ready for immediate consumption. Therefore, the sale is exempt.
However, if the sale is made with the intent to steam it for the
customer subsequent to the customer's going through the
register, then the transaction is for the sale of a prepared
food and it is subject to tax.

"3. Scenario #3. - The customer orders a fresh seafood product.
The clerk weighs and labels the package. The customer then asks
the clerk to steam the product. The customer takes the empty
package to the register and pays for it. The customer then
returns to the Seafood Department and retrieves the product. Is
this product taxable?"

Department's Response:

As described in the response to Scenario #3, since the seafood
was sold with the intent to steam it for the customer, the
transaction is for the sale of a prepared food and it is subject
to tax.

"4. Scenario #4. - The store steams shrimp and places it on an
ice table un-peeled. The customer comes in and purchases some
of the product. It is now cooked and chilled. Is the product
taxable?"

Department's Response:

The shrimp has been cooked or prepared on the store's premises
and it is considered to be ready for immediate consumption. It
is immaterial that the seafood must be peeled before consuming
it. Therefore, the sale is taxable.

"5. Scenario #5. - The store steams shrimp, peels it and places
it in an ice table as fully cooked. The customer comes in and
purchases some of the product. It is now cooked, peeled and
chilled. Is this product taxable?"

Department's Response:

The sale of the shrimp would be taxable since it was prepared on
the store's premises and is sold ready for immediate
consumption.

"6. Scenario #6. - The store steams some shrimp, peels the
product, packages it on a tray with cocktail sauce and puts it
on an ice table. Is the product taxable?"

Department's Response:

Please refer to our response in Scenario #5.

"7. Scenario #7. - The customer enters the store and purchases,
in the Frozen Food Department, a bag of shrimp that is cooked,
peeled and de-veined. Is this product taxable?"

Department's Response:

In this instance, the frozen shrimp is not sold ready for
immediate consumption. Therefore, the sale is not subject to
tax.

"8. Scenario #8. - The store takes some de-veined shrimp out of
the Frozen Food Department. It is thawed and placed on an ice
table for sale. Is the product taxable?"

Department's Response:

Your request does not indicate whether the shrimp is cooked or
uncooked. If the shrimp is cooked, and the store cooked it on
the store's premises prior to its being frozen, then the sale is
taxable. However, if the shrimp is sold uncooked, the sale is
exempt since the shrimp is not sold ready for immediate
consumption.

"9. Scenario #9. - The store takes frozen, de-veined shrimp and
thaws it. They then take the product and package it on a tray
with cocktail sauce. Is this item taxable?"

Department's Response:

Please refer to our response in Scenario #8.

DELI ITEMS:

"1. Scenario #1. - The store prepares baked beans for sale.
This means mixing the pre-cooked beans with flavoring and
heating to enhance the flavors. They are then cooled and sold
cold across the counter. Is this product taxable?"

Department's Response:

Pursuant to Section 212.08(1)(a)4., F.S., and Rule 12A-1.011(5),
F.A.C., the sale is taxable, since the store has cooked or
prepared the beans on its premises and they are considered to be
sold ready for immediate consumption.

"2. Scenario #2. - Same conditions, except store packages beans
in cups and puts them in case for self service. Is this product
taxable?"

Department's Response:

Please refer to our response in Scenario #1.

"3. Scenario #3. - The store receives baked beans from the
commissary. They are already fully prepared. They are served
from the counter and also in pre-packaged cups. Is this product
taxable?"

If the baked beans are sold from the counter without any further
cooking or preparation, the sale would be exempt since they were
not prepared on the seller's premises. The sale of the baked
beans in pre-packaged cups would also be exempt, if the store
has only repackaged the beans and added no further preparation.

"4. Scenario #4. - The store received the same baked beans from
the commissary. The Deli Manager likes to flavor the beans
more, so they add 1 lb. of brown sugar and 8 oz. of dehydrated
onions.

"A. Is this product taxable?

"B. They heat the beans to mix the sugar & onion flavor.
They are then sold cold. Is this product taxable?"

Department's Response:

In both A. and B., the store has prepared the baked beans on the
premises and they are sold ready for immediate consumption.
Therefore, the sale of the baked beans would be taxable in each
instance.

"5. Scenario #5. - The store receives beans from the commissary
the day before new stock is to arrive. The Deli Manager
realizes they will run out before they are re-stocked. They
secure the ingredients needed to make baked beans. They prepare
them, and when the existing product sells out, they sell the
freshly prepared beans.

"A. Is this product taxable?

"B. They mix it with the remaining beans. Is this product
taxable?"

Department's Response:

A. The beans prepared in the commissary off premises are
exempt if they are sold from the deli without additional
preparation. The beans prepared in the deli are taxable, since
they were prepared on the seller's premises and are sold ready
for immediate consumption.

B. If the beans which were prepared in the commissary, and
would be tax exempt if sold with no further preparation, are
mixed with the taxable beans prepared on the store premises, the
sale of the combined exempt and taxable beans is taxable.

"6. Scenario #6. - The store receives the beans from the
commissary. They heat them and put then on the hot table. They
sell them to people in hot cups. Is this product taxable?"

Department's Response:

When the store heats the beans, it is considered to be cooking
or preparing them on the premises. Therefore, the sale is
taxable.

"7. Scenario #7. - The beans are sold as a vegetable in a fried
chicken dinner. Is this product taxable?"

Department's Response:

As described in Rule 12A-1.011(5)(e), F.A.C., the total charge
made for the sale of the dinner is subject to tax.

MEAT ITEMS:

"1. Scenario #1. - The Meat Department receives slabs of spare
ribs. These ribs are wrapped and placed in the meat case. Is
this product taxable?"

Department's Response:

If the spare ribs are uncooked and are sold from the meat case
with no further preparation, the sale would be exempt since they
are not ready for immediate consumption.

"2. Scenario #2. - Meat is seasoned with a B.B.Q. seasoning and
placed in the meat case. They are still not cooked, but are
ready for the grill. Is this product taxable?"

Department's Response:

The spare ribs would still be exempt. Although adding the
B.B.Q. seasoning is considered additional preparation, they are
still not ready for immediate consumption if they are sold
uncooked.

"3. Scenario #3. - The ribs are smoked on the premise, cooled,
wrapped and then placed in the case. Is this product taxable?"

Department's Response:

The sale would be subject to tax, since the ribs are cooked or
prepared on the seller's premises and are sold ready for
immediate consumption.

"4. Scenario #4. - The ribs are smoked and sold hot in the hot
case. Is this product taxable?"

Department's Response:

Please refer to our response in Scenario #3.

"5. Scenario #5. - The ribs are sold as part of a dinner. Is
this product taxable?"

Department's Response:

The total charge made for the dinner is subject to tax, pursuant
to Rule 12A-1.011(5)(e), F.A.C.

"6. Scenario #6. - The ribs are given free as a part of a sale
in a picnic order promotion. Is this product taxable?"

Department's Response:

The total amount charged to the customer for the picnic order is
subject to sales tax. The ribs, or any other items given to the
customer free of charge as promotional, complimentary, or
courtesy items, are subject to use tax on the total cost of the
items given.

PRODUCE:

"I. If an item is prepared and sold in food store as described
below, is it taxable or exempt?

"A. A whole cantaloupe?"

Department's Response:

A whole cantaloupe would be considered an exempt general grocery
item, pursuant to Section 212.08(1)(a), F.S., and Rule 12A-

1.011(1)(a), F.A.C.

"B. A cantaloupe, cut in half and wrapped in plastic and:

"1. A plastic fork is Enclosed?
"2. Plastic fork is available in store?
"3. Plastic fork not available in store?"

Department's Response:

It is the Department's position that when a food store peels,
cuts, or cores fresh produce and sells it without further
preparation, the food store has not cooked or prepared the food
on the premises, and the sale of the produce is not taxable
pursuant to Section 212.08(1), F.S., and Rule 12A-1.011(5)(a),
F.A.C. However, Rule 12A-1.011(5)(c), F.A.C., provides that
when food is sold by a person who does not provide eating
facilities, food cooked or prepared for immediate consumption
includes all food sold with eating utensils provided.
Therefore, the cantaloupe in #1, which is sold with a plastic
fork enclosed, would be taxable. The cantaloupe in #2 and #3
would be exempt. However, the food store would owe use tax on
the plastic forks given to the customer free of charge.

"C. A cantaloupe, cut in half, seeds removed and a
strawberry put in the cavity.

"1. Plastic fork enclosed?
"2. Plastic fork available?
"3. No fork available?

"D. A cantaloupe, cut into chunks and packaged in a
plastic container.

"1. Plastic fork enclosed?
"2. Plastic fork available?
"3. No fork available?

"E. A cantaloupe, cut into chunks and chunks of honeydew
melon added, and packaged in plastic container.

"1. Plastic fork enclosed?
"2. Plastic fork available?
"3. No fork available?

"F. A cantaloupe put into a juice extractor and the pure
cantaloupe juice packaged in a plastic or glass sealed
container."

Department's Response:

Please refer to our answer in I.B above. The first example in
C, D, and E would be taxable, since an eating utensil is
provided. The other examples would be exempt, because the
plastic fork is not part of the sale of that item. Use tax
would be due on the forks given to the customers. The
cantaloupe juice in F is exempt, since it is the Department's
position that merely extracting juice from fruit or vegetables
is not considered to be preparing the fruit or juice for
immediate consumption.

"II. If the product is sold in a food store, exactly as
described above, except it was prepared `off-premises' (whether
by a related or unrelated company) and brought into the store,
is it taxable or exempt?"

Department's Response

Section 212.08(1), F.S., and Rule 12A-1.011, F.A.C., provide
that the sale of food or drinks cooked or prepared on the
seller's premises and sold ready for immediate consumption are
taxable. Please refer to our response in each scenario described
above. The food product would only be taxable if the food store
is considered to be preparing the food product on its premises.

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 confidential
information, we request you notify the undersigned in writing
within 15 days of any deletions you wish made to the request or
this response.

Sincerely,

Delores Overcash
Technical Assistant

/do
Ctrl #16620