Did Florida's new exemption for mail-delivered magazine subscriptions eliminate the exemption for promotional materials sent out of state to sell those subscriptions?

Subject

Promotional Materials

Plain-English summary

The Department concluded that Florida's later exemption for mail-delivered publication subscriptions did not eliminate the existing exemption for promotional materials exported from Florida. The materials included direct-mail advertising, written solicitations, renewal notices, billing materials, and other tangible items used to promote subscription sales.

The promotional-materials statute conditioned the exemption on the subscription seller being registered with the Department and remitting taxes imposed under Part I of Chapter 212. The Department initially thought that once mailed subscriptions became exempt and no tax was remitted on them, the promotional materials would become taxable.

It reversed that view under the doctrine of statutory cross-reference. The promotional-materials provision referred generally to taxes imposed by Part I of Chapter 212 rather than freezing a specific statute as it existed in 1992. The later subscription exemption was therefore incorporated into that general reference, and the promotional-materials exemption remained intact.

What this means for you

Under the law applied in this 1997 ruling, exempting the product being promoted did not automatically tax the materials used to promote it. The two exemptions continued to operate together.

The result still depended on the statutory conditions: the promotional materials had to fit the definition and be subsequently exported outside Florida, while the subscription seller had to remain registered and compliant with the sales tax law.

Common questions

Q: What kinds of materials qualified under the cited definition? Items given away to promote subscriptions, printed advertising, direct-mail literature, correspondence, solicitations, renewal notices, billings, and their component parts.

Q: Did export need to be continuous and unbroken? No. The statute applied regardless of whether the export process was continuous and regardless of pre-export control over the materials.

Q: Why did the subscription exemption not destroy the promotional exemption? The reference to Part I of Chapter 212 was general and incorporated later amendments, including the mail-subscription exemption.

Q: What compliance conditions remained? The seller had to be registered with the Department and in compliance with Florida sales tax law.

Citations and references

• Fla. Stat. § 212.06(11)(a)-(c) — promotional-materials definition, export exemption, and seller conditions
• Fla. Stat. § 212.08(7)(w) — exemption for specified mail-delivered publication subscriptions and free circulated publications
• Fla. Stat. § 212.183 — self-accrual procedure referenced in the exemption
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 97A-022

Original ruling text

SUMMARY

The 1996 enactment of an exemption for certain newspaper, magazine, and newsletter subscriptions in which the product is delivered to the customer by mail in Section 212.08(7)(w), F.S., does not impact or negate the 1992 exemption for promotional materials in Section 212.06(11), F.S.

The Department had originally taken the position that since no tax would be remitted on magazine subscriptions after the 1996 law change, the promotional materials sent out of state to promote the sale of subscriptions to publications sold in this state would become taxable. However, based on the application of the Doctrine of Statutory CrossReference, it was determined that the reference in Section 212.06(11), F.S., for the remittance of any applicable taxes imposed by Part I of Chapter 212, F.S., is a general reference. Therefore, since Section 212.06(11), F.S., provides general reference to the sales tax provisions of Part I of Chapter 212 the subsequent exemption of publications delivered by mail is incorporated by reference. The promotional materials exemption shall remain intact, so long as the seller of the subscriptions is registered with the Department and in compliance with the sales tax law.

Apr 02, 1997

Re: Technical Assistance Advisement 97(A)-022 Promotional Materials Sections 212.06(11), and 212.08(7)(w), F.S.

Dear :

Your letter of March 13, 1996, requested a Technical Assistance Advisement 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.

REQUESTED ADVISEMENT

Your letter of March 14, 1996, requests a determination by the Department on the following question:

Does the 1996 enactment of an exemption for magazine subscriptions delivered by mail in section 212.08(7)(w), Florida Statutes, negatively impact or otherwise negate the 1992 exemption for promotional materials in section 212.06(11), Florida Statutes?

RELEVANT AUTHORITY

Section 212.06(11)(a)(b) and (c), F.S., states:

(a) Notwithstanding any other provision of this part, the taxes imposed by this part shall not be imposed on promotional materials, which are imported, purchased, sold, used, manufactured, fabricated, processed, printed, imprinted, assembled, distributed, or stored in this state, if the promotional materials are subsequently exported outside this state, and regardless of whether the exportation process is continuous and unbroken, a separate consideration is charged for the material so exported, or the taxpayer keeps, retains, or exercises any right, power, dominion, or control over the promotional materials before or for the purpose of subsequently transporting them outside this state.

(b) As used in this subsection, the term promotional materials means tangible personal property that is given away or otherwise distributed to promote the sale of a subscription to a publication; written or printed advertising material, direct mail literature, correspondence, written solicitations, renewal notices, and billings for sales connected with or to promote the sale of a subscription to a publication; and the component parts of each of these types of promotional materials.

(c) After July 1, 1992, this exemption inures to the taxpayer only through refund of previously paid taxes or by self-accruing taxes as provided in s. 212.183 and applies only where the seller of subscriptions to publications sold in the state:

1. Is registered with the department pursuant to this
   part; and

2. Remits the taxes imposed by this part on such
   publications.

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

Certain newspaper, magazine, and newsletter subscriptions, shoppers, and community newspapers. Likewise exempt are newspaper, magazine, and newsletter subscriptions in which the product is delivered to the customer by mail. Also exempt are free, circulated publications that are published on a regular basis, the content of which is primarily advertising, and that are distributed through the mail, home delivery, or newsstands. The exemption for newspaper, magazine, and newsletter subscriptions which is provided in this paragraph applies only to subscriptions entered into after March 1, 1997.

The Doctrine of Statutory Cross-Reference, provides that a cross reference to a general body of law, without reference to a specific statute, incorporates the referenced law and any subsequent amendments to or repeal of the referenced law. In contrast, a cross reference to a specific statute incorporates the language of the referenced statute as it existed at the time the reference was enacted, unaffected by any subsequent amendments to or repeal of the incorporated statute.

The Department had originally taken the position that since no tax would be remitted on magazine subscriptions after the 1996 law change, the promotional materials sent out of state to promote the sale of subscriptions to publications sold in this state would become taxable. However, based on the application

of the Doctrine of Statutory Cross-Reference, it was determined that reference in Section 212.06(11), F.S., for the remittance of any applicable taxes imposed by Part I of Chapter 212, F.S., is a general reference. Therefore, since Section 212.06(11), F.S., provides a general reference to the sales tax provisions of Part I of Chapter 212 the subsequent exemption of publications delivered by mail is incorporated by reference. The promotional materials exemption will remain intact, so long as the seller of the subscriptions is registered with the Department and in compliance with the sales tax law.

DETERMINATION

From the information stated above, the Department concludes that the 1996 exemption on magazine subscriptions delivered by mail does not effect the 1992 exemption on promotional materials. Therefore, promotional materials sent out of state to promote the sale of subscriptions to publications will not become taxable as a result of the 1996 legislation.

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 that 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,

Vicki Allen
Tax Law Specialist
Technical Assistance and Dispute Resolution

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