How did Florida tax a condominium resort's room charges, amenity and promotional fees, housekeeping, repairs, reserves, and telephone services?

Plain-English summary

Florida required the resort management company to register and collect transient-rental tax as the condominium owners' agent. The company collected rent for owners and therefore needed a sales-tax registration number in each county where managed units were located. Owners remained responsible if the agent failed to collect or remit the tax.

The taxable guest rental was the total amount actually charged: the stated room fee after discounts plus the mandatory amenity fee. The company also had to collect applicable local discretionary surtax and the listed tourist or convention taxes on gross rental revenue. Deducting the amenity fee before paying the owner did not create a second tax on the owner or use tax for the company.

Promotional occupancy compensation was also taxable rent. When the company used an owner's unit to attract group business and credited the owner with normal rent, the payment remained rental consideration even if the company netted promotional costs from the owner's statement. The sales tax had to be separately stated.

Housekeeping and maintenance depended on the transaction. The company owed no use tax merely because it allocated part of its management percentage to employee housekeeping or light maintenance provided without an owner charge. But housekeeping embedded in the guest's room price remained part of taxable rent, and separately charged cleaning for an owner temporarily occupying a unit held out to transients was taxable as cleaning a nonresidential facility.

For nonroutine work, repairs to tangible personal property were taxable on the full labor-and-material charge, while real-property repairs were not taxed to the owner; instead, the company paid tax on the materials it consumed. Replacement-reserve assessments were not taxable sales, but the company paid tax when buying replacement items. Separate sales of vacuums or similar items to owners were taxable retail sales.

Telephone charges had separate rates. The owner-paid installation charge was taxed at 6%; monthly telephone service and guest long-distance calls were taxed at 7%; and the company owed 2.5% gross receipts tax on monthly and long-distance receipts. The ruling said local surtax did not apply to long-distance charges.

What this means for you

Resort and vacation-rental managers

Agency status brings registration and collection duties. Register by county, keep owner authorizations, and do not assume that netting charges on an owner statement changes the underlying taxable transaction.

Condominium owners in rental programs

The management company may collect and remit tax on your behalf, but the ruling states that the owner remains responsible if the agent fails to do so.

Accountants and property managers

Use separate ledger categories for room rent, mandatory amenities, promotional occupancy, owner cleaning, personal-property repairs, real-property repairs, reserves, retail items, and telephone services. Their tax bases and rates differ.

Common questions

Q: Who had to register for transient-rental tax? A: The management company was the owners' collection agent and had to register in each county where rental units were located. The ruling also described owner registration alternatives.

Q: Was the mandatory amenity fee taxable? A: Yes. It was part of gross rental revenue charged as a condition of occupying the unit.

Q: Were discounts taxable?
A: Tax applied to the set rental fee less the applicable discount, plus the amenity fee.

Q: Was compensation for promotional use of an owner's unit taxable? A: Yes. It substituted for normal rent and remained taxable rental consideration.

Q: Were housekeeping charges taxable? A: Housekeeping included in a guest's room charge was part of taxable rent. A separate charge to an owner temporarily occupying a unit held out to transients was also taxable. Internal employee-cost allocations with no owner charge were not separately taxed.

Q: How were nonroutine repairs taxed? A: Tangible-personal-property repairs were taxed on labor and materials. For real-property repairs, the owner charge was not taxed, but the company paid tax on its materials.

Q: Was the replacement-reserve assessment taxable? A: No, but the company paid tax on replacement items it consumed. Items separately resold to owners were taxable.

Q: What telephone taxes applied?
A: The ruling applied 6% sales tax to installation, 7% to monthly service and long-distance calls, and 2.5% gross receipts tax to monthly and long-distance receipts.

Q: Can another resort rely on this TAA? A: Not automatically. The advisement states that it binds the Department only under the facts and circumstances described in the request, and later legal changes or judicial interpretations may produce a different result.

Citations and references

• Fla. Stat. § 212.03(1) — transient-rental tax
• Fla. Admin. Code rr. 12A-1.060(1) and 12A-1.061(16) — rental-agent registration and owner responsibility
• Fla. Stat. § 212.07(2) — separately stated tax
• Fla. Admin. Code r. 12A-1.0091(1)(b)1. — cleaning residential and nonresidential facilities
• Fla. Admin. Code rr. 12A-1.006(1) and 12A-1.051 — tangible-personal-property and real-property repairs
• Fla. Stat. §§ 212.05(1)(e)1., 212.08(7)(j), and 203.01(1)(a), (b) — telephone sales and gross receipts taxes
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 96A-054

Original ruling text

Nov 25, 1996

Re: Technical Assistance Advisement 96A-054 Sales and Use Tax - Transient Rentals and Related Transactions Sections 203.01(1)(a), (b), 212.03(1), 212.05(1)(e)1., 212.07(2), and 212.08(7)(j), Florida Statutes. Rules 12A-1.0091(1)(b)1., 12A-1.051(2), 12A-1.060(1) and 12A-1.061(16), Florida Administrative Code.

Dear :

Your letter of April 23, 1996, requested a Technical Assistance Advisement on the application of Sales and Use Tax to several transactions related to a beach resort and residential development. This response to your request constitutes a Technical Assistance Advisement under Chapter 12-11, Florida Administrative Code, and is issued to you under the authority of Section 213.22, Florida Statutes.

Your client, XXXX (hereinafter "Company"), operates a resort community of beachfront condominiums and various resort amenities including a golf course, tennis courts, health club, restaurants, shopping facilities, and a conference center. Most of the condominium units are third-party owned and may be provided as hotel accommodations by their owners under a rental agreement with the Company.

Attached to your letter is a sample agreement, titled "[Company] Rental Agreement," between a condominium unit owner and the Company. This agreement, in general, provides that the Company arranges for the condominiums to be rented to guests and for the operation of the resort in return for a fee. Section VI., "GUEST/OWNER SERVICES" of the "[Company] Rental Agreement," provides the following pertinent information:

COMPANY owns and operates recreational, restaurant, and conference facilities in the [Company] Resort. COMPANY

agrees that, subject to the payment of Amenity Fees, Guests using the Unit may use such facilities on the same terms and conditions as are made available to Guests occupying other rental Units leased or managed by COMPANY.

For the purpose of maintaining its Rental Program, COMPANY will provide the following:

a. On-site housekeeping (as expressed in Exhibit "C") and routine maintenance services (as expressed in Exhibit "D").

b. Twenty-four hour front desk service for check in and guest information.

c. An on-site property management department to provide inspection and Unit supervisory services.

d. A reservations office with incoming WATS line.

e. A full-time traveling conference sales staff.

f. Marketing services appropriate for the promotion of rentals.

g. Centralized charge account service for Guests.

h. On-site telephone system.

COMPANY is solely responsible for all costs associated with the provision of these services, unless specifically allocated to the OWNER'S [sic] and/or Guests under the terms of this Agreement or the Agreement with Guests.

Filing Requirements

In your letter you ask if it is the Company's responsibility to register to collect and remit sales tax since it is acting as the owner's agent, or if the owner is required to register to collect and remit sales tax. Statutory and administrative authority regarding registration of agents who

lease any transient rental accommodation can be found in Section 212.03(1), Florida Statutes, and Rule 12A-1.061(16)(b), Florida Administrative Code. In addition, Rule 12A-1.060(1), F.A.C., provides in part:

(b)1. Owners of living quarters or sleeping or housekeeping accommodations, including owners of time-shares whose timeshares are not registered under the provisions of subparagraph 2., must file an Application for Sales and Use Tax Registration (Form DR-1) with the Department of Revenue for a separate dealer's certificate of registration for each property or time-share period rented, leased, let, or in which a license to use has been granted to others, except as provided in paragraph (c).

2. The licensed agent or management company for a timeshare resort which rents, leases, lets, or grants licenses
   to others to use time-share periods under written agreement(s) with time-share period owners is presumed to be the dealer required to register under the provisions of subparagraph 1., above. The licensed agent or management company may collectively register all such time-share units under the provisions of paragraph (c), even if the licensed agent or management company may not rent, lease, let, or grant licenses to use to the transient public for each and every time-share period at such resort.... (c)1.b. For the purposes of this part, "agent" means any person who has the authority to collect any payment for the renting, leasing, or letting of living quarters or sleeping or housekeeping accommodations in any hotel, motel,... condominium parcel, or mobile home subject to the provisions of Chapter 212, F.S., on behalf of the property owner.

The agreements in this case clearly provide that Company will be collecting rent on behalf of the unit owners and, as such, Company is an agent as defined in the cited Rule. The Company is required to register with the Department as a dealer to collect and remit sales tax due on behalf of the owner for the rental of transient rental accommodations. Company must obtain a sales tax registration number in each county in which

rental units are located. Company may register the condominium units on behalf of each unit owner by filing an Application for Sales and Use Tax Registration (Form DR-1C). The Application must contain the unit owner's signature.

As an alternative, the unit owner may file Form DR-1 with the Department. Since Company will be collecting and remitting sales tax due on behalf of the unit owner, the unit owner should indicate Company's "mailing address" on the form. This will allow the Sales and Use Tax Coupon Book (Form DR-15), used to remit taxes due, to be mailed to Company.

Company may also request that the Department place each unit owner's sales tax account, for which it acts as agent for the owner, on an inactive status. Company will then remit tax due to the Department using Company's sales tax registration number for the county in which the units are located. It should be noted that "[e]ven though a written agreement exists, the property owner remains responsible for the tax obligation in the event the licensed agent of management company fails to collect or remit the tax due to the Department." Rule 12A1.061(16)(c)1., F.A.C.

Rental Fee Subject to Tax

Your letter states that a guest renting a condominium unit is required to pay a set rental fee for the unit, less any applicable discount, plus an "amenity fee." The discounts are granted due to customer dissatisfaction, promotions to increase occupancy rates, or because the requested unit size is unavailable when the guest requested the use of that size unit. The amenity fee allows the guest to use the tennis courts, golf course, health club, and restaurants. The guest is required to pay this amenity fee in order to occupy the unit. You ask if "the total charge actually paid by the guest (the printed fee, which includes the amenity fee, less any discount) is subject to sales tax."

Section 212.03(1), F.S., states, in pertinent part:

(1) ... For the exercise of such taxable privilege, a tax

is hereby levied in an amount equal to 6 percent of and on the total rental charged for such living quarters or sleeping or housekeeping accommodations by the person charging or collecting the rental....

Under the provisions of s. 212.03(1), F.S., tax is due on the total rental amount charged. The amount of "gross rental revenues," as stated in Exhibit A, is subject to tax. This amount includes the set rental fee for the unit, less any applicable discount, plus the stated amenity fee. Company is required to collect and remit to the Department sales tax, plus any applicable local discretionary sales surtax, tourist development tax, tourist impact tax, and convention development taxes on the "gross rental revenues."

Amenity Fee

Your letter states that Company deducts the amenity fee paid by the guest from the owner's gross rental revenue in calculation of the net amount paid to the unit owner. Since the fee is not directly related to the condominium rental, Company does not include the amenity fee received from guests in the net amount paid to the unit owner. You ask if sales tax will be due on the amenity fee charged to the guests or owners under this accounting system.

As previously stated, sales tax on the amenity fee is to be collected from the guest renting the unit. Sales tax is not due from the unit owner, and use tax is not due from the Company, on the amenity fee, even under Company's present accounting system.

Promotional Fees

Your letter also asks if sales tax is due on the promotional fees paid to owners. Paragraph (e) of Section IV., "Other Expenses", of "[Company] Rental Agreement" describes the promotional fee stating, in pertinent part:

(e) Promotional Use. For the purpose of attracting group occupancy and promoting the rental of the Unit and other units in the Rental Program, COMPANY has the right to use

the unit for promotional purposes....

The OWNER will be compensated for promotional use of the unit in an amount equal to the rent normally received from a revenue producing occupancy. The cost of this payment, along with appropriate taxes will be pooled each month along with all other similar compensation for promotional occupancy, and the total cost of promotional occupancy will be charged to each OWNER based on a factor calculated by dividing the total amount of revenue generated by the OWNER'S Unit during the month by the total amount of rental revenue generated by all units on the Rental Program (see Exhibit "F" for example of promotional occupancy calculation). This charge will appear as Other Rental Expense deduction on the OWNER'S monthly statement....

Sales tax is due on each owner's total monthly gross rentals without any deduction of the promotional fee. The compensation paid to the unit owner for the promotional occupancy is made to the owner in lieu of the "rent normally received from a revenue producing occupancy." It is, in effect, a rental payment from the Company to the individual unit owner and, under the provisions of s. 212.03(1), F.S., it is subject to tax as rental consideration received.

The promotional activity undertaken by the Company is a separate and distinct transaction from the rental of the transient rental facility by the Company. The deduction of the promotional fee from the rental consideration paid to the unit owners is merely a convenience for the Company. Rather than remitting the total rental consideration to the unit owner and then sending the unit owner a separate bill for the promotional fees, Company is saving some paperwork by simply reducing, by the amount of the promotional fee, the amount it pays to the unit owners. The promotional fee must be included in determining the amount of consideration the unit owners receive from the Company for the rental of their units.

Section 212.07(2), F.S., requires that the amount of tax must be separately stated as Florida tax on any charge ticket, sales slip, invoice, or other tangible evidence of sale.

Company must separately state the taxes due on the rent deemed for promotional purposes due from Company to the unit owner.

As previously discussed, Company is collecting and remitting to the Department sales taxes due as agent for the individual unit owner. Company must separately state Florida sales taxes due on the rent paid on the occupancy for promotional purposes. The sales tax paid on the promotional rent may be deducted from the total amount paid to the owner. Company will then retain that amount of taxes due to the Department by the owner and include that amount in Company's remittance to the Department on behalf of the unit owner.

For the purposes of clarification, the following example is provided. The example assumes that Owner's unit was leased to paying guests for 25 days at $250.00 per day (which includes
$10.00 for housekeeping and routine maintenance and $11.25 in amenity fees) and was used for promotional purposes on three days of the month covered by this statement. It is also assumed that the unit is located in a county imposing a 1% local option surtax but no convention center or tourist development surtax.

Under these circumstances, Company would have collected
$6,687.50 from the guest occupying the property. This would included $6,250.00 in rent (which includes $281.25 in amenity fees and $250.00 allocated to housekeeping services) and $437.50 in sales tax. Company's statement to the unit owner might the appear as follows:

Total Consideration Received for 25 Days Rental (Including Sales Tax)

$6,687.50

Sales Tax collected and remitted to Department of Revenue on above Rentals

Amenity Fees

(-$437.50)

-$281.25

Housekeeping Services

-$250.00

Replacement Reserve

-$93.75

Management Percentage

-$2,287.50

Deemed Rent for 3 Days Promotional Use (Includes $411.75 in room rental and
$28.82 in sales tax)

$440.57

Sales Tax Collected and remitted to D.O.R. on Fee for Promotional Use

(-$28.82)

Other Rental Expenses

-$4.40

(1/100 of the rent of promotional purposes, including appropriate sales tax)

Total Due to Owner

$3,705.20

Total Tax Collected and remitted to D.O.R. on Owner's behalf

$466.32

Housekeeping

You also inquire if use tax is due on the amount company pays to its employees for providing housekeeping services. Exhibit C, "[Company] Housekeeping Services," provides the following pertinent information:

With the exception of cleaning services requested during or required upon departure for OWNER usage of his Unit (Section VIII), the following services are provided by the COMPANY at no cost to OWNER:...

Your letter states that the Company uses its own employees to perform any housekeeping service. You also state that Company does not charge the unit owner for housekeeping services while the unit is being rented. For cost accounting purposes, Company allocates a portion of its "management percentage," as stated on Exhibit A, to "housekeeping services revenue". Since consideration for housekeeping services does not flow from the unit owner to Company, Company is not required to pay use tax on the amount paid to employees to perform the housekeeping service nor on the amount allocated to "housekeeping services revenue."

However, as was stated earlier, sales tax is due on the total consideration paid by the guest to Company for the rental unit. The cost of the housekeeping services is built into the rental charge imposed by the Company. Thus, the cost of the housekeeping services will be a part of the taxable base upon which sales tax must be collected from the guests and remitted. These charges for housekeeping services would remain taxable even if Company were to separately state the charges for housekeeping services on the bills presented to the guests.

Housekeeping Services to Owners

You ask if sales tax is due on the charge paid by the owner for housekeeping services while the owner is occupying the unit. Rule 12A-1.0091(1)(b)1., F.A.C., states, in pertinent part:

(b)1. Cleaning services rendered to residential buildings are not taxable. For the purpose of this rule, residential buildings are buildings that are used as homes or regular places of abode for persons (such as detached or single family dwellings, apartments, duplexes, triplexes, condominiums, cooperatives, nursing homes, and common areas of those residential apartments, duplexes, triplexes, condominiums, or cooperatives, or other similar facilities) which do not regularly cater to the traveling public. Public lodging establishments, as defined in s. 509.013, F.S., or portions thereof, and any other facilities or portions of facilities, which are advertised or generally held out to the public as places regularly rented to transients are presumed to be nonresidential buildings. Cleaning services rendered to such nonresidential facilities are taxable....

Your letter states that Company may provide housekeeping services to a unit owner while the owner occupies his own unit. The unit owner does not use the condominium as a place of permanent residence, but primarily holds the unit out to the public as regularly rented to transient guests, as evidenced by "[Company] Rental Agreement."

Housekeeping services provided to the unit owner while he

temporarily occupies his own unit are considered by the Department to be provided to nonresidential facilities. Under the provisions of Rule 12A-1.0091(1)(b)1., F.A.C., Company is required to collect sales tax, plus any applicable discretionary sales surtax, from the unit owner on the charge for the housekeeping services.

Light Maintenance

Exhibit D, "[Company] Maintenance Service Plan," provides the following pertinent information on light maintenance:

COMPANY will provide on-site maintenance service to keep the Unit in acceptable rental condition. Service will be provided to respond quickly and efficiently to rental guests and owners to solve minor maintenance problems. Routine maintenance items... are provided at no cost to OWNER.

Your letter states that the Company uses its own employees to perform light maintenance as described in Exhibit D. You also state that Company does not charge the unit owner for light maintenance. For cost accounting purposes, Company allocates a portion of its "management percentage," as stated on Exhibit A, to "light maintenance revenue." You ask if tax is due on the portion of the fee so allocated. Since consideration for light maintenance does not flow from the unit owner to Company, Company is not required to pay use tax on the amount paid to employees to perform the light maintenance nor on the amount allocated to "light housekeeping revenue."

Nonroutine Maintenance

Your letter also asks the Department to "[p]lease clarify the sales tax treatment of the fees charged for nonroutine maintenance and the purchase of items to effect the nonroutine maintenance."

According to the information you submitted, Company provides non-routine maintenance service "based upon the cost of parts plus $25.00 per hour for labor based on actual time required."

It appears that this non-routine maintenance could involve either the repair of tangible personal property or a repair to real property.

If the non-routine maintenance is a repair of tangible personal property, such as re-wiring a lamp, sales tax will need to be remitted on the total cost of the maintenance as provided in Rule 12A-1.006(1). F.A.C. Company will be able to issue a resale certificate when purchasing items which will be incorporated in these repairs. However, Company will need to collect and remit sales tax on the entire charge for both labor and materials which is billed to the owner. Unless Company is making sales of specifically described and itemized tangible personal property to unit owners under Rule 12A-1.051(2)(d), F.A.C.

On the other hand, if the non-routine maintenance constitutes a repair to real property, such as the repair of a ceiling fan, Company will not need to collect sales tax on the charges billed to the unit owners, Instead, Company will be considered the final consumer of all tangible personal property consumed in the repair of real property, and Company will need to pay sales tax on its purchase of this materials. See Rule 12A-1.051, F.A.C.

Replacement Reserve

Your letter states that Company maintains a "replacement reserve" which is funded by a deduction from each owner's rent and is based on a percentage of the gross rental revenue. The replacement reserve is used to replace damaged or missing china, glassware, utensils, and small appliances within all units. You ask about the sales tax treatment of the fee assessed for the replacement reserve and the purchase of the replacement items.

The "replacement reserve" allocation charged to each unit owner is not for the sale of specific tangible personal property and is not subject to sales tax. Replacement items purchased by Company are not resold to the owner, but are consumed by Company. Company is required to pay tax to its suppliers when it

purchases replacement items, as listed in "Exhibit `E',
[Company] Replacement Reserve Items."

However, the "Appliances" section of "Exhibit `E',
[Company] Replacement Reserve Items" indicates that Company purchases commercial vacuums through a distributor and sells them to owners. The sales of the vacuums by Company to the unit owners are sales of tangible personal property. Company is required to collect sales tax, plus any applicable discretionary sales surtax, from the unit owner and remit the taxes to the Department. If Company issues a resale certificate to the distributor, it may purchase the vacuums for resale exempt from tax. Any other replacement items purchased and sold to the unit owner in the same manner as the vacuum should be taxed in the same manner.

Telephone Service

Finally, you asked about the Company's sales tax obligations on the charges it makes for telephone services. Your letter and Section XI., "Telephone and Cable Service," of "[Company] Rental Agreement," provide the following information on these telephone service:

COMPANY will install and maintain in the Unit at OWNER'S expense two (2) telephones which will be connected to the resort switchboard and which provide on-premises call capability. OWNER will pay an installation fee and a monthly telephone charge which will be comparable to charges for all other telephone users. All long distance calls will be charged to the Guest and collected upon check-out. COMPANY will not be responsible for any private telephone installed by the OWNER.

Although your letter requests information regarding Company's obligation on telephones charges for sales tax purposes, a discussion of Company's obligations for telephone charges for the purposes of both sales tax and gross receipts tax is provided.

Section 203.01(1)(a) and (b), F.S., provides, in part:

(1)(a) Every person that receives payment for any utility service [or telecommunication services] shall report by the last day of each month to the Department of Revenue,... the total amount of gross receipts derived from business done within this state, or between points within this state....

(b) For the period... beginning July 1, 1992, and thereafter, the rate shall be 2.5 percent....

Section 212.05(1)(e)1., Florida Statutes, provides, in part:

(1) For the exercise of such privilege, a tax is levied on each taxable transaction or incident, which tax is due and payable as follows:...

(e)1. At the rate of 6 percent on charges for: a. All telegraph messages and long distance telephone calls beginning and terminating in this state, telecommunication service as defined in s. 203.012, and those services described in s. 203.012(2)(a), except that the tax rate for charges for telecommunication service is 7 percent.... c. The installation of telecommunication and telegraphic equipment.... (Emphasis Supplied)

The agreement indicates that the unit owner will pay an installation fee for the two telephones. Under the provisions of s. 212.05(1)(e)1., F.S., Company is required to collect from the unit owner sales tax at the rate of 6 percent, plus any applicable discretionary sales surtax, on the total amount charged for the installation of the telephones. Company may purchase the telephones for resale to the unit owners exempt from tax, only if Company provides its supplier of telephones a resale certificate at the time of purchase.

The "[Company] Rental Agreement" provides that these telephones will be installed and maintained by the Company. In addition, the agreement indicated that the Company is responsible for these phones. Consequently, the monthly telephone charge is clearly not charged to a residential

household and is not exempt from sales tax under the provisions of s. 212.08(7)(j), F.S. Company is required to collect, from the unit owner, sales tax at the rate of 7 percent, plus any discretionary sales surtax, of the "monthly telephone charge."

The agreement states that all long distance calls will be charged to the Guest and collected upon check-out. Company is required to collect sales tax at the rate of 7 percent on the long distance charges from the guest. This sales tax must be separately stated on the guest's bill. However, you should note that Long distance telephone charges are not subject to local surtaxes.

Company, as a provider of utility services, is required to remit to the Department, 2.5 percent of the total gross receipts received from the unit owners for "monthly telephone charges" and on all long distance charges billed to guests. Company is permitted to separately itemize the gross receipts tax to the unit owners and the guests, but must include this amount in the total gross receipts subject to the gross receipts tax.

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,

Kama Schultz
Senior Tax Specialist
Tax Policy and Dispute Resolution

KDS
Control No. 25438