SALT Report 2097 – The Florida Department of Revenue issued a technical advisory regarding bakery products sold for off-premises consumption. The Taxpayer owns and operates 14 retail bakery outlets as well as a manufacturing facility. The majority of the Taxpayer’s retail business consists of sales of baked goods, coffee, and tea. The Taxpayer requested a ruling regarding whether the retail bakery outlets are required to collect sales tax on bakery items that are sold in quantities of six or more as follows:
- Half dozen bagels and dozen bagels,
- Half dozen donuts, dozen donuts, and two dozen donuts,
- Products that are provided to the customer in special packaging that is secured with tape or a seal, and the sale is recorded through the POS using a special key to establish that the products are sold for consumption off the premises, and
- Sales of coffee beans, ground coffee, and “k-cup portion packs,” which are not sold for immediate consumption
In its decision the Department referred to Section 212.08(1), F.S., which exempts the sale of bakery products when they are sold by bakeries, pastry shops, or like establishments for consumption off the seller’s premises. However, Rule 12A-1.011(3)(c)2., F.A.C. provides that:
There shall be a rebuttable presumption that sales of bakery products by bakeries, pastry shops, or like establishments that have eating facilities are taxable when:
a. Such bakery products are sold in quantities of five (5) or fewer items; or
b. The bakery products sold, regardless of the quantity, are not packaged in a manner consistent with an intention by the customer to consume the products off the seller’s premises.
Based on the above regulations, the Department determined that the Taxpayer’s sales of baked goods regardless of the quantity, that are for consumption off the premises are exempt when the products are packaged in a way that establishes that the customer intends to consume the products off the seller’s premises. As for the Taxpayer’s sales of coffee beans, ground coffee, and “k-cup portion packs” these are exempt as food products.
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