Were boxed cookies taxable when sold warm from a warmer, chilled from a refrigerator, or at room temperature for catering?

Plain-English summary

Cookies kept warm in a warmer were taxable because Florida treated them as hot prepared food.

Chilled boxed cookies from the refrigerator were exempt, as were boxed catering cookies sold at room temperature. The bakery had no seating or dining facilities, and all cookies were sold for off-premises consumption.

The key distinction was the heat source. A bakery product maintained or reheated by a warmer is hot prepared food. A product that is only still warm from its initial baking is not automatically hot prepared food under the cited rule.

Common questions

Were cookies sold from the warmer taxable? Yes.

Were chilled cookies taxable? No.

Were room-temperature catering cookies taxable? No.

Does any warmth make a cookie taxable? No. The rule distinguishes residual warmth from baking from heat maintained or restored by a heat source.

Citations and references

• Fla. Stat. §§ 212.05 and 212.08(1)(b)3. and (c)6.
• Fla. Admin. Code r. 12A-1.011(3).

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 23A-006

Original ruling text

QUESTIONS:

1. Are sales of warm cookies boxed and ready to-go from the warmer taxable?
2. Are sales of chilled cookies sold boxed and ready to-go from the refrigerator taxable?
3. Are sales of catering-order cookies sold boxed and ready to-go at room temperature taxable?
   ANSWERS:
4. Yes. Cookies kept warm by a heat source used to maintain them in a heated state are considered
   to be hot prepared food products which are not exempt under s. 212.08(1)(c) 6., F.S.
5. No. Since the cookies are in a chilled state, they are not considered hot prepared food products.
6. No. Since the cookies are at room temperature, they are not considered to be hot prepared food
   products.
   March 23, 2023

Email:
Re:

Dear

Technical Assistance Advisement – TAA #: 23A-006
(“Taxpayer”)
Florida Sales and Use Tax – Sales of Bakery Products
Sections 212.05, 212.08(1), Florida Statutes (F.S.)
Rule 12A-1.011(3), Florida Administrative Code (F.A.C.)
F.E.I.#:
BP#:
:

This is in response to your letter February 10, 2023, requesting this Department’s issuance of a
Technical Assistance Advisement (“TAA”) pursuant to Section(s.) 213.22, F.S., and Rule Chapter 1211 F.A.C, Florida Administrative Code, regarding the matter discussed below. Your request 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.

Technical Assistance Advisement
March 23, 2023
Page 2

REQUESTED ADVISEMENT
What is the taxability of the following items?

1. Warm cookies sold boxed and ready to-go from the warmer.
2. Chilled cookies sold boxed and ready to-go from the refrigerator.
3. Catering - order cookies sold boxed and ready to-go at room temperature.
   FACTS
   Taxpayer is a retail bakery located in
   with no seating/dining facilities. To confirm this,
   you attached photos reflecting no eating facilities (inside or outside) and that the counter space was
   only for ordering and carry out.
   All cookies are boxed and sold to-go (in single, 4-pack, 6-pack, and 12-pack boxes) for off-premises
   consumption. After Taxpayer bakes the cookies, the cookies are allowed to cool slightly but not all
   the way; then, the cookies are placed in a warmer to keep them warm.
   The majority of cookies sold by Taxpayer are warm cookies sold boxed and ready to-go from the
   warmer. Taxpayer also sells chilled cookies sold boxed and ready to-go from the refrigerator. Lastly,
   catering- order cookies are sold boxed and ready to-go at room temperature.
   LAW AND DISCUSSION
   Unless a specific exemption applies1, s. 212.05, F.S., provides it is the legislative intent that every
   person is exercising a taxable privilege that engages in the business of selling tangible personal
   property2 in this state. For exercising such a privilege, a tax is levied on each taxable transaction or
   incident. The tax is due and payable at the rate of 6 percent, plus any applicable surtaxes imposed
   under s. 212.055, F.S., on the total consideration received for each item or article of tangible personal
   property when sold at retail in this state.
   An exemption is provided for bakery products sold by bakeries, pastry shops, or like establishments
   that do not have eating facilities. See s. 212.08(1)(b)3., F.S.
   However, s. 212.08(1)(c)6., F.S., provides that the exemption for sales of food products does not apply
   to “food products sold as hot prepared food products.”

1

The Department must point out that while taxing statutes are strictly construed against the taxing authority, statutes that grant an exemption
are strictly construed against the taxpayer. See Asphalt Pavers v. Dept. of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991), at 57 (citing the rule that
exemptions from tax are strictly construed against the taxpayer, with any ambiguity resolved in favor of the administrative agency); State ex rel.
Szabo Food Services Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973) (“Exemptions to taxing statutes are special favors granted by the Legislature and
are to be strictly construed against the taxpayer.”). See also, United States Gypsum Co. v. Green, 110 So.2d 409 (Fla. 1959) (also stating that
exemptions from tax are strictly construed against the taxpayer) and Wanda Marine Corp. v. Dep’t of Revenue, 305 So.2d 65, 69 (Fla. 1st DCA
1975).
2 Tangible personal property means and includes personal property which may be seen, weighed, measured, or touched or is in any manner
perceptible to the senses. See s. 212.02(19), F.S.

Technical Assistance Advisement
March 23, 2023
Page 3

Rule 12A-1.011(3)(a), F.A.C., provides that “bakery products sold by bakeries, pastry shops, or like
establishments as hot prepared food products are taxable.” Rule 12A-1.011(3)(a)1., F.A.C., provides
that “bakery products that are kept warm by a heat source used to maintain them in a heated state,
or to reheat them, are hot prepared food products.” Subparagraph 2., of this paragraph provides that
“bakery products that are sold while still warm from the initial baking are not hot prepared food
products” and are not taxable.”
Bakery products, excluding items sold as hot prepared food products, sold for consumption off the
premises are exempt. See Rule 12A-1.011(3)(c)1., F.A.C.
Cookies sold as hot prepared food products are not exempt from Florida sales and use tax. Therefore,
any cookies sold by Taxpayer which are kept warm by a heat source used to maintain the cookies in
a heated state, or to reheat the cookies, are not exempt from Florida sales and use tax, as these
cookies are considered to be “hot prepared food products.”
Cookies, excluding any which may be sold as hot prepared items, are exempt from Florida sales and
use tax.
CONCLUSION
QUESTIONS:

1. Are sales of warm cookies boxed and ready to-go from the warmer taxable?
   Answer: Yes. Cookies kept warm by a heat source used to maintain them in a heated state
   are considered to be hot prepared food products which are not exempt under s. 212.08(1)(c)
   6., F.S.
2. Are sales of chilled cookies sold boxed and ready to-go from the refrigerator taxable?
   Answer: No. Since the cookies are in a chilled state, they are not considered hot prepared
   food products.
3. Are sales of catering-order cookies sold boxed and ready to-go at room temperature taxable?
   Answer: No. Since the cookies are at room temperature, they are not considered to be hot
   prepared food products.
   This response constitutes a TAA 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 TAA,

Technical Assistance Advisement
March 23, 2023
Page 4

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
ten (10) days of the date of this letter.
If you have any further questions with regard to this matter and wish to discuss them, you may
contact me directly at (850) 717-7759.
Sincerely,

Alesia Pride
Alesia Pride
Tax Law Specialist
Technical Assistance & Dispute Resolution

Record ID: 7000928918

Technical Assistance Advisement
March 23, 2023
Page 5

TADR Satisfaction Survey
The Florida Department of Revenue invites you to complete the online TADR Satisfaction Survey to help
us identify ways to improve our service to taxpayers. The survey is an opportunity to provide feedback
on your recent experience with the Department’s office of Technical Assistance and Dispute Resolution
(TADR). To access the survey, place the following address in your browser’s access bar:
https://tadr.questionpro.com
When you open the survey, you’ll be asked to enter the following information. This information will
enable you to complete and submit the survey.
Notification number:

7000928918

Respondent code:

44

Tax type:

Sales and Use Tax

Correspondence type: Technical Assistance
If you need technical assistance accessing the survey, please email Douglas Charity at
[email protected].
Thank you.