Were hot soft-baked pretzels taxable even when a bakery sold them for off-premises consumption?

Subject

Pretzels Baked and Sold for Off-Premises Consumption

Plain-English summary

The shop's hot soft-baked pretzels were subject to Florida sales tax. The bakery-products exemption did not cover hot prepared food—food prepared for sale heated and sold above the surrounding room temperature.

The result applied even though the shop was licensed as a bakery, provided no dine-in accommodations, and sold its hand-baked pretzels for consumption away from the premises. This revised TAA replaced the Department's earlier response in TAA 99A-056.

What this means for you

Off-premises sale and bakery licensing did not overcome the statutory exclusion for hot prepared food. Product condition at sale controlled this ruling.

Common questions

Q: Were the hot pretzels exempt bakery products? No.

Q: Did the lack of seating make them exempt? No.

Q: Was this the Department's original ruling? No. It was a revised advisement replacing TAA 99A-056.

Citations and references

• Fla. Stat. § 212.06(1)(a) — tax on retail sales
• Fla. Stat. § 212.08(1) — food-products exemption and exclusions
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 99A-056R

Original ruling text

SUMMARY

QUESTION: Are hot soft baked pretzels subject to sales tax.

ANSWER - Based on Facts Below: The exemption granted for
bakery products in Section 212.08(1), F.S., does not apply
to hot prepared food products or to food products served
for consumption at tables, chairs, or counters, whether
provided by the dealer or by a person with whom the dealer
contracts to furnish, prepare, or serve the products to
others.

Nov 03, 2000

Re: Technical Assistance Advisement (TAA) Revised 99A-056R
Pretzels Baked and Sold for Off-Premises Consumption
Sections: 212.06, and 212.08(1), F.S
XXX (Taxpayer)
Sales Tax Number XXX
FEI Number XX

Dear :

In response to your letter dated August 13, 1999, the Department
issued to you Technical Assistance Advisement No. 99A-056, dated
October 15, 1999, pursuant to Section 213.22, F.S., and Chapter
12-11, F.A.C., regarding the referenced Taxpayer and matters.
After further consideration of the issues at hand, the
Department has revised its response to the questions contained
in your petition. This response constitutes Revised Technical
Assistance Advisement No. 99A-056R.

REQUESTED ADVISEMENT

Whether hot hand-rolled soft baked pretzels, sold for
consumption off the seller's premises, should be classified as
bakery products for purposes of exempting the transaction from
sales tax.

FACTS

The Taxpayer operates a pretzel shop which sells hot soft baked
pretzels, soft drinks, prepackaged dips and cheeses. All
pretzel products produced are "hand baked" and sold for offpremises consumption, as the store does not provide any dine-in
accommodations for its customers. The store is located in a
mall and consists of XXX square feet of space. The store is
licensed and regulated under Chapter 500, F.S., as a bakery by
the Department of Agriculture and Consumer Services, as opposed
to being licensed and regulated under Chapter 509, F.S., as a
restaurant by the Department of Business and Professional
Regulation.

LAW

As provided in Section 212.06(1)(a), F.S., sales tax, at the
rate of 6 percent, shall be collectible from all dealers on the
sale at retail, the use, the consumption, the distribution, and
the storage for use or consumption in this state of tangible
personal property or services taxable under this chapter.
Pursuant to Section 212.08(1), F.S., there are exempted from tax
imposed by Chapter 212, F.S., food products for human
consumption. The exemption includes bakery products sold by
bakeries, pastry shops, or like establishments that do not have
eating facilities, and bakery products sold by such
establishments that do have eating facilities, but when such
products are sold for consumption off the seller's premises.
The exemption does not apply to; bakery products sold as meals
(Section 212.08(1)(c)1., F.S.); hot prepared food products
(Section 212.08(1)(c)6., F.S.); or, to bakery products sold
through a vending machine, pushcart, motor vehicle, or any other
form of vehicle (Section 212.08(1)(c)10., F.S.) Also excluded
from the exemption are food products furnished, prepared, or
served for consumption at tables, chairs, or counters or from
trays, glasses, dishes, or other tableware, whether provided by
the dealer or by a person with whom the dealer contracts to
furnish, prepare, or serve food products to others. Section
212.08(1)(c)2., F.S.

The term "hot prepared food products" means those products,
items, or components which have been prepared for sale in a
heated condition and which are sold at any temperature that is
higher than the air temperature of the room or place where they
are sold.

DEPARTMENT RESPONSE

As provided in Subparagraphs 212.08(1)(c)6., and 212.08(1)(c)2.,
F.S., the exemption for food products does not apply when such
products are sold as hot prepared food products, or when served
for consumption at tables, chairs, or counters, whether provided
by the dealer or by a person with whom the dealer contracts to
furnish, prepare, or serve the products to others. These
exclusions from the exemption apply to bakery products and,
therefore, the Taxpayer's sales of hot soft baked pretzels are
subject to sales tax.

This response constitutes a revised 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 and
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, your request and
related backup documents 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. Confidential information must be
deleted before public disclosure. In an effort to protect
confidentiality, we request you provide the undersigned with an
edited copy of your request for Technical Assistance Advisement,
the backup material and this response, deleting names, addresses
and any other details which might lead to identification of the
taxpayer. Your response should be received by the Department
within 15 days of the date of this letter.

Sincerely,

Richard R. Parsons
Tax Law Specialist
Technical Assistance and Dispute Resolution
(850) 922-4838

Control Number 42765