Were a concessionaire's real-property rental payments to a qualifying Florida fair authority taxable?

Subject

Concessionaire Rent Paid to a Fair Authority

Plain-English summary

The concessionaire's real-property rental payments to the qualifying fair authority were exempt from Florida sales tax. Florida generally taxed the business of renting, leasing, or licensing real property, and a fair authority's lease to a concessionaire was not among section 212.031's listed exceptions.

The Department nevertheless found a separate exemption in section 616.260. That statute exempted the properties, revenues, money, and other assets owned and used in projects authorized by Part III of Chapter 616. Because the payments were made to the authority for such an authorized project, no sales tax could be imposed on them.

The Department limited its conclusion to the authority described in section 616.255. It did not state that every fair, venue, concession arrangement, or government-related lease was exempt.

What this means for you

Even where Florida's commercial-rent statute generally applies, a separate and later-enacted project exemption may control. Here, the decisive facts were the landlord's status as the qualifying authority and the project's authorization under Part III of Chapter 616.

This TAA also explained that section 616.260 had not been among the exemptions superseded by section 212.08(13), and the Legislature later reviewed it without repealing it.

Common questions

Q: Are concessionaire leases generally outside Florida's real-property rental tax? No. The Department said this type of lease was not one of section 212.031's enumerated exceptions.

Q: Why were these payments exempt? They were paid to the qualifying authority for an authorized Chapter 616 project covered by section 616.260.

Q: Did the exemption apply to any organization calling itself a fair authority? No. The Department expressly limited its position to the authority described in section 616.255.

Q: Had the Department previously assessed tax on these payments? Yes. The TAA says a prior audit assessed tax, but a later Notice of Decision found the payments exempt.

Citations and references

• Fla. Stat. § 212.031(1)(a) — tax on renting, leasing, letting, or licensing real property
• Fla. Stat. § 212.08(13) — limitation and supersession of exemptions outside Chapter 212
• Fla. Stat. § 616.255 — qualifying authority referenced by the Department
• Fla. Stat. § 616.260 — exemption for authorized fair-authority projects
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 98A-022

Original ruling text

SUMMARY

Section 616,260, F.S., provides an exemption from sales tax
levied by Part I, chapter 212, F.S., but only to the
Florida State Fair Authority as that entity is described in
section 616.255, F.S. Section 616.260, F.S., grants an
exemption, for all projects authorized by Part III, of
Chapter 616, F.S. Thus, the rental payments for the lease
of real property made by a concessionaire to a fair
authority would be exempt from Florida ales tax.

Apr 14, 1998

Re: TAA 98A-022
Concessionaire Rental Payments
Sections 212.08(13), 616.260, F.S.

Dear :

This is in response to your letter of March 5, 1998. In
your letter you requested the issuance of a technical assistance
advisement on behalf of your client XXX [hereinafter
"Concessionaire"] regarding the taxability of rental payments
for the lease of real property that is made to the XXX
[hereinafter "Authority"] under its Concessionaire Catering and
Lease Agreement with the Authority.

In a previous audit of Concessionaire by the Department of
Revenue, Concessionaire was assessed tax on the rental payments
made to the Authority for the lease of real property under
section 212.031, F.S., as a lease or license to use real
property. Subsequently, the Department found in a Notice of
Decision that such payments were exempt from tax. You wish to
verify that the Department considers the rental payments made to
the Authority for the lease of real property to be indeed exempt
from tax.

APPLICABLE AUTHORITY

Section 212.031(1)(a), F.S., imposes sales tax, with
enumerated exceptions, on the privilege of engaging in the
business of renting, leasing, letting, or granting a license for
the use of any real property. The lease of real property to a
concessionaire by the Authority is not one of the enumerated
exceptions. Also, section 212.08(10), F.S. [now subsection 13],
which was created by s. 3, Chapter 70-206, Laws of Florida, must
be considered when addressing this issue. It provides that no
transactions shall be exempt from the tax imposed by Chapter
212, F.S., except those expressly exempted therein. It goes on
to provide that all laws granting tax exemptions, to the extent
they may be inconsistent or in conflict with Chapter 212, F.S.,
including but not limited to the following designated laws,
shall yield to and be superseded by the provisions of this
subsection. Section 616.260, F.S., was not included as one of
the sections that were superseded and made subject to tax by
section 212.08(13), F.S.

Concerning the impact of the phrase "including but not
limited to," to the issue at hand; it is a well settled rule of
statutory construction that the latest expression of the
legislative will is the law in cases of conflicting provisions
in the same statute or in different statutes, and the last in
point of time or order of arrangement prevails.

Section 616.260, F.S., provides that "... [A]ll of the
projects authorized by this part constitute essential government
purposes, and all of the properties, revenues, moneys, and other
assets owned and used in the operation of those projects shall
be exempt from all taxation by the state...." This statute was
created by s. 12, Chapter 74-322, Laws of Florida, and was
reviewed, but not repealed, as provided by s. 44, Chapter 93168, Laws of Florida. It was reviewed by the legislature with
the knowledge that the provisions of section 212.08(13), F.S.,
existed.

DEPARTMENT RESPONSE

The Department takes the position that section 616.260,
F.S., does provide an exemption from sales tax levied by Part I,

Chapter 212, F.S., but only to the Authority, as that entity is
described in section 616.255, F.S. Consequently section
616.260, F.S., grants an exemption, for all projects authorized
by Part III of Chapter 616. No sales tax may be imposed on such
authorized projects. Thus, the rental payments for the lease of
real property made by Concessionaire to the Authority would be
exempt from Florida sales 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 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,

Richard S. Harrod
Senior Tax Specialist
Technical Assistance & Dispute
Resolution

RSH/h
Control No. 33255