Were free monthly advertising publications exempt when distributed at newsstands in Florida or shipped by the printer to other states?

Subject

Shoppers; Shipment by Printers

Plain-English summary

The two free monthly publications were exempt because their content was primarily advertising and they were regularly distributed through newsstands. Their themed articles and event announcements did not defeat the exemption.

Copies the printer sent by common carrier to other states also qualified. They met the same publication requirements and were committed to export at the time of sale without the publisher taking possession.

What this means for you

The exemption depended on regular publication, free circulation, predominantly advertising content, and a qualifying distribution channel. Direct export supplied an additional basis for the out-of-state copies.

Common questions

Q: Were the Florida newsstand copies exempt? Yes.

Q: Were out-of-state printer shipments exempt? Yes.

Q: Did some editorial articles prevent exemption? No, because the publications remained primarily advertising.

Citations and references

• Fla. Stat. § 212.08(7)(w) — free advertising publications
• Fla. Stat. §§ 212.05 and 212.06(5)(a)1., (16)(a) — sales, use, and outside-state delivery
• Fla. Admin. Code rr. 12A-1.008(10) and 12A-1.064 — newspapers and export sales
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 01A-028

Original ruling text

SUMMARY

QUESTION 1: Are the taxpayer's publications consisting of
primarily advertising of various services and products,
printed monthly and distributed free of charge via
newsstands, exempt from tax under the provisions of
212.08(7)(w), F.S.?

ANSWER 1 - Based on Facts Below: Yes, Section 212.08(7)(w),
F.S., provides an exemption from tax for 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 taxpayer's two publications meet all of the
requirements of the statute.

QUESTION 2: Are the publications that are shipped out of
state by the printer, using a common carrier, taxable?

ANSWER 2 - Based on Facts Below: Upon satisfying the
requirements provided in Section 212.08(7)(w), F.S., the
shipment of the publications out of state via common
carrier would also provide the publication with the same
exemption as that for the publications delivered in state.
Additionally, under Rule 12A-1.064, F.A.C., tax does not
apply to tangible personal property committed to the
exportation process at the time of sale.

May 30, 2001

Re: Technical Assistance Advisement 01A-028
Sales and Use Tax -- Shoppers; Shipment by Printers
Sections 212.05, 212.08(7)(w), F.S.
Section 212.06(5)(a)1., F.S.
Rules 12A-1.008(10), 12A-1.064, F.A.C.
Petitioner: XXX (herein "taxpayer")
FEI#: XX

Dear :

This is a response to your request dated April 24, 2001, for the
issuance of a Technical Assistance Advisement ("TAA") concerning
the above referenced matter. Your petition has been carefully
examined and the Department finds it to be in compliance with
the requisite criteria set forth in Chapter 12-11, F.A.C. This
response to your request constitutes a TAA and is issued to you
under the authority of s. 213.22, F.S.

FACTS

The taxpayer publishes two periodicals under the names XXX and
XXX. XXX is designed to appeal to motorcycle enthusiasts and is
published in five different states. XXX is geared toward adult
entertainment and is currently published in three different
states. Each publication consists predominantly of
advertisements of various products and services, and
announcements of upcoming events, that are targeted to a
particular area. Both publications contain various articles
related to the publication's theme. The publications are printed
monthly and distributed free of charge via newsstands. The
publications that are shipped out of state are delivered to the
printer for shipment via common carrier. The taxpayer does not
take possession of these publications. I reviewed four different
copies of XXX and one copy of XXX.

REQUESTED ADVISEMENT

Whether the two publications are exempt under the
provisions of section 212.08(7)(w), F.S.

Whether the publications that are shipped out of state by
the printer, using a common carrier, are taxable.

APPLICABLE LAW and DISCUSSION

Section 212.05, F.S., provides in part:

It is hereby declared to be the legislative intent that
every person is exercising a taxable privilege who engages

in the business of selling tangible personal property at
retail in this state,... or who rents or furnishes any of
the things or services taxable under this chapter, or who
stores for use or consumption in this state any item or
article of tangible personal property....(e.s.)

Section 212.06(16)(a), F.S., provides in part:

... the use by the publisher of a newspaper, magazine, or
periodical of copies for his or her own consumption or to
be given away is taxable at the usual retail price thereof,
if any, or at the "cost price."

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

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.

Rule 12A-1.008, F.A.C., provides in part:

(10) Effective July 1, 1991, "shoppers" and "community
newspapers" which satisfy the criteria provided in this
subsection are exempt from tax.

(a) The term "shopper" means a community publication made
available to its coverage area by way of distribution
through the mail, home delivery, or newsstands free of
charge, which is published on a regular basis (usually
daily or weekly) and which consists primarily of
advertising of a broad range of products and services
offered by several unrelated types of businesses or
individuals, and which has a conformity as to title and

general nature of content from issue to issue, and may
contain in each issue at least some news of general or
community interest, community notices, and could also
contain editorial comment or articles by different
authors....

(c) In order to satisfy the "primarily advertising"
requirement of a "shopper" or "community newspaper," more
than 50 percent of the publication's copy must be devoted
to advertising in more than one-half of the published
editions during any 12-month period. However, in order to
be considered a newspaper, a community newspaper must carry
a minimum of 25 percent news consisting of current events
and matters of general interest which appeal to a wide
spectrum of the general public.

Section 212.06(5)(a)1., F.S., provides in part:

Except as provided in subparagraph 2., it is not the
intention of this chapter to levy a tax upon tangible
personal property imported, produced, or manufactured in
this state for export, provided that tangible personal
property may not be considered as being imported, produced,
or manufactured for export unless the importer, producer,
or manufacturer delivers the same to a licensed exporter
for exporting or to a common carrier for shipment outside
the state or mails the same by United States mail to a
destination outside the state;....

Rule 12A-1.064 (1)(a), (b), F.A.C., provides in part:

(1)(a) Sales tax is imposed on the sales price of each item
or article of tangible personal property, unless otherwise
exempt, when the property is delivered to the purchaser or
his representative in this state. However, the tax does
not apply to tangible personal property irrevocably
committed to the exportation process at the time of sale,
when such process has been continuous or unbroken.

(b) Intent of the seller and the purchaser that the
property will be exported is not sufficient to establish

the exemption; nor does delivery of the property to a point
in Florida for subsequent transportation outside Florida
necessarily constitute placing the property irrevocably in
the exportation process. Tangible personal property shall
be deemed committed to the exportation process if:

1. The dealer is required by the terms of the sale contract
   to deliver the goods outside this state using his own mode
   of transportation. The dealer must retain in his records
   trip tickets, truck log records, or other documentation
   reflecting the specific items and export destination.

2. The dealer is required by the terms of the sale contract
   to deliver the goods to a common carrier for final and
   certain movement of such property to its out of state
   destination. Sales by a Florida dealer are exempt when the
   dealer delivers the merchandise to the transportation
   terminal for shipment outside this state and secures a dock
   or warehouse receipt and a copy of the bill of lading. On
   shipments to points outside the United States, a shipper's
   export declaration shall also be obtained;

3. The dealer is required by the terms of the sale contract
   to mail the goods by United States mail for final movement
   of such property to its out of state destination; or

4. The dealer is required by the terms of the sale contract
   to deliver the goods to a licensed customs broker for
   delivery to a point outside this state. As used herein the
   term "licensed customs broker" means a person licensed by
   the United States custom service to act as a custom house
   broker. The dealer must retain documentation provided by
   the licensed customs broker that delivery was made to a
   point outside this state....

Department Response

Section 212.05, F.S., provides that a tax is imposed on the sale
of tangible personal property at retail in this state. Section
212.06(16)(a), F.S., provides that the use by the publisher of a
newspaper, magazine, or periodical of copies for its own

consumption or to be given away is taxable at the cost price of
the publication. The publications that are the subject of this
advisement are considered to be tangible personal property.

Section 212.08(7)(w), F.S., provides an exemption from the tax
imposed by the two aforementioned sections. The essential
requirements of the exemption provisions of this section must
all be satisfied to be exempt from tax. Each publication must
be published on a regular basis, the content of each consists of
primarily advertising, and each is distributed through the mail,
home delivery, or newsstands.

Based upon the information provided and our review of the
publications, we have determined both publications satisfy the
requirements provided in Section 212.08(7)(w), F.S., and are
exempt from tax. We caution you that each publication must meet
these requirements in order for the exemption to continue.

Upon satisfying the requirements provided in Section
212.08(7)(w), F.S., the delivery of the publications to a
printer for delivery out of state would also receive the same
exemption as that for the publications delivered in state.
Additionally, under Rule 12A-1.064, F.A.C., tax does not apply
to tangible personal property committed to the exportation
process at the time of sale.

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, your request and
related backup documents are public records under Chapter 119,
F.S., and 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,

T. Val Burgess
Tax Law Specialist
Technical Assistance and Dispute Resolution(850) 488-9666

TVB/
Control #45025