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

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