Did two free Florida advertising publications and the advertising inserts mailed with them qualify for the shopper-publication sales-tax exemption?

Plain-English summary

The two free publications could qualify for the shopper exemption, but their separate advertising inserts did not.

Each publication was mailed free of charge, appeared regularly, and carried advertising for a broad range of unrelated businesses. The Department said each would qualify only if more than half of its editions during a 12-month period contained more than 50% advertising.

The inserts failed. They were unrelated to the publications' front-page banners and lacked continuity in title and general content from issue to issue. The Department also said the cited rule treating certain inserts as components of newspapers or magazines did not extend that treatment to shoppers.

The official ruling begins with a status notice that Rule 12A-1.008 was amended effective June 19, 2001.

What this means for you

The exemption depended on a full 12-month advertising-content test, not a few samples. Separate inserts also had to be analyzed independently under the rule that applied to this 1995 ruling.

Common questions

Q: Were the publications automatically exempt because they were free and mostly advertising?
A: No. More than half of each publication's editions in a 12-month period had to exceed 50% advertising.

Q: Did the submitted samples otherwise meet the shopper requirements?
A: Yes, according to the ruling, apart from proving the 12-month advertising percentage.

Q: Were the advertising inserts exempt as part of the shoppers?
A: No. They lacked the required continuity and the newspaper-or-magazine insert provision did not extend to shoppers.

Q: Can this 1995 rule analysis be used without checking later law?
A: No. The official source says Rule 12A-1.008 was amended effective June 19, 2001.

Citations and references

• Fla. Stat. § 212.08(7)(w) — newspaper, shopper, and community-newspaper exemption
• Fla. Admin. Code r. 12A-1.008(2)(d)1.b. and (10) — publication and insert rules
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 95A-028

Original ruling text

Status: Rule 12A-1.008 F.A.C., amended effective June 19, 2001.

Jul 18, 1995

RE: TAA 95A-028
Sales Tax
Advertising Publications and Inserts
Section 212.08(7)(w), Florida Statutes
Rule 12A-1.008(10), Florida Administrative Code

Dear :

This response is in reply to your letter dated January 30,
1995, in which you request, on behalf of your client, XXXX
(hereinafter "Company"), the issuance of a Technical Assistance
Advisement pursuant to s. 213.22, F.S., concerning the
taxability of advertising publications and inserts. On August 3,
1993, a Letter of Technical Advice was issued regarding the same
issue. 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. Therefore, the
Department is herewith granting your request for the issuance of
a TAA and the ensuing discourse shall embody said ruling.

DISCUSSION OF FACTS

The salient facts pertaining to the matter under advisement
as derived from your petition and supporting documents are as
follows:

Taxpayer publishes two publications, XXXXX (hereinafter
"Publication #1") and XXXX (hereinafter "Publication #2").

"Publication #1" is a publication identified by its name,
which is a registered mark printed on the front banner of every
issue. The publication consists of four pages. The publication
is distributed throughout the XXXX areas forty-five times each
year. It is distributed through the U.S. Mail, free of charge to

the residents. The content of "Publication #1" is 100%
advertising in every issue, for a broad range of products and/or
services offered by unrelated types of businesses.

"Publication #2" is a "magazine-like" publication
consisting of approximately sixteen (16) pages. The publication
is distributed five (5) times annually over a similar
distribution area as "Publication #1." Its content includes
local and national advertising for a broad range of products
and/or services offered by unrelated businesses. "Publication

2" is distributed free of charge to the recipient through the

U.S. Mail. Every issue of the publication is nearly 100%
advertising.

In addition, each publication will be distributed with
advertising inserts. Every insert will be identified with a
supplement line stating that it is distributed as part of either
"Publication #1" or "Publication #2." The inserts will consist
of single and/or multiple advertisements for a single advertiser
or in some cases multiple advertisers. The taxpayer concludes
that the inserts are exempt based on Rule 12A-1.008(2)(d)1.b.,
F.A.C., which states that inserts are a component part of a
newspaper or magazine when such inserts are labeled with a
masthead, logo, or supplement line as part of the designated
newspaper or magazine publication into which they are to be
inserted.

Sample copies of publications have been submitted for our
review.

Taxpayer seeks advisement as to whether the two
publications including the inserts qualify for the exemption
provided under s. 212.08(7)(w), F.S.

RELEVANT AUTHORITY

Section 212.08(7)(w), F.S., states:

"(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."

Rule 12A-1.008(10)(a),(c), F.A.C., provides:

"(10) Effective July 1, 1991, Shoppers' andcommunity
newspapers' which satisfy the criteria provided in this
subsection are exempt from tax.
"(a) The term shopper' means a community publication made available to its coverage area by way of distribution through the mail, home delivery, or newsstands free of charge, which is published on a regular basis (usually daily or weekly) and which consists primarily of advertising of a broad range of products and services offered by several unrelated types of businesses or individuals, and which has a conformity as to title and general nature of content from issue to issue, and may contain in each issue at least some news of general or community interest, community notices, and could also contain editorial comment or articles by different authors.... "(c) In order to satisfy theprimarily advertising'
requirement of a shopper' orcommunity newspaper,' more
than 50 percent of the publication's copy must be devoted
to advertising in more than one-half of the published
editions during any 12-month period. However, in order to
be considered a newspaper, a community newspaper must carry
a minimum of 25 percent news consisting of current events
and matters of general interest which appeal to a wide
spectrum of the general public."

CASE LAW

First, as s. 212.08(7)(w), F.S., constitutes a statutory
exemption, the Department in construing said provision 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).

Additionally, when a statute is ambiguous, the title may be
examined in order to determine the legislative intent. 49 Fla.
Jur. 2d Statutes section 156. The title of s. 212.08(7)(w),
F.S., refers to "newspapers, shoppers, and community
newspapers." Therefore, in construing s. 212.08(7)(w), F.S., the
Department must refer to the title in interpreting an ambiguous
statute, which effectively bars the body of the statute from
being construed more broadly than its title. Further support is
lent to this interpretation by construing the title and the body
of the statute under the rule of ejusdem generis, since the
title of s. 212.08(7)(w), F.S., refers to "newspapers, shoppers,
and community newspapers." 49 Fla. Jur. 2d Statutes section
128.

Further, the Florida Supreme Court overturned the newspaper
exemption provided in Section 212.08(7)(w), F.S. See Department
of Revenue v. Magazine Publishers of America, 604 So.2d 459
(Fla. 1992). However, the part of the exemption regarding free
circulated publications remained intact. Further, in a
predecessor decision, Campus Communications v. Dept. of Rev.,
473 So.2d 1290 (Fla. 1985), the Florida Supreme Court had
already held that a free-distribution publication which had its
origin as a student newspaper was a "newspaper" within the
meaning of the statutory exemption from sales tax for newspapers
considering that the publication included a broad range of news
stories including staff-written and wire service material with a
relatively low percentage of space devoted to advertisements.

In creating the exemption for shoppers and community
newspapers, effective July 1, 1991, by the amendments to s.
212.08(7)(w), F.S., enacted by s. 93, Ch. 90-132, L.O.F., the
Legislature acted with full knowledge of the Florida Supreme
Court's decision in Campus Communications. Additionally, it is
pointed out that a statute may contain constitutional and
unconstitutional provisions even within the same section. See

State ex rel. Landis v. Green, 144 So. 681 (Fla. 1932). When
part of a statute is declared unconstitutional but the remaining
provisions can be given effect independent of the void
provision, such other provisions are not affected by the
determination of unconstitutionality. 10 Fla. Jur. 2d 312,
Constitutional Law s. 98.
CONCLUSIONS OF LAW

Applying the foregoing statutory law, rule, case law, and
policy in evaluating the publications under advisement the
department holds to its previous conclusion issued in the August
3, 1993, Letter of Technical Advice that "Publication #1" and
"Publication #2" do satisfy all of the above discussed
requirements of a shopper except that of consisting of primarily
advertising in more than one-half of the published editions
during any 12-month period. Therefore, determination of whether
the "primarily advertising" requirement has been satisfied would
necessarily require the examination of a full complement of the
editions of both publications for a twelve month period to
determine if more than one-half of each of the publications for
such period contained in excess of 50% advertising.

Accordingly, it would appear that the publications would
qualify for exemption from sales and use tax specified in s.
212.08(7)(w), F.S., as a shopper, provided that, like the
samples examined, more than one-half of the editions published
in a 12-month period contained in excess of 50% advertising.

The advertising inserts, however, do not satisfy all facets
of the above criteria for a "shopper", as they are unrelated to
the front page banner, lacking in conformity as to title and
general nature of content from issue to issue.

The department does not concur with the taxpayer's position
that the advertising inserts would fall under the umbrella of
Rule 12A-1.008(2)(d)1.b., F.A.C., as being a component part of
"Publication #1" and "Publication #2" as shoppers. The rule
cited limits the exception to inserts as a component part of
newspapers and magazines and does not extend to shoppers.
Further, there is no intent expressed in Rule 12A-1.008(10)(a),
F.A.C., to include advertising inserts as a component part of

shoppers. Therefore, the Department holds to its previous
conclusion issued in the August 3, 1993, Letter of Technical
Advice that the advertising inserts do not qualify for the
exemption from sales and use tax provided in s. 212.08(7)(w),
F.S., as constituting a "shopper".

Rule 12A-1.008(10)(d), F.A.C., provides that in order for
the producer of a shopper or community newspaper to exempt the
purchase of printing of the shopper or community newspaper or to
exempt the purchase of taxable items such as paper and ink which
go into and become a part of a shopper or community newspaper, a
blanket exemption certificate of the following suggested format
should be provided to vendors:

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:___

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,

Bonnie Everton
Technical Assistant

/e
Cont. #19392