12A-15.004. Specific Limitations

(1) SCOPE. This rule is intended to provide guidelines regarding the limitation for the sales amount above $5,000 provided for any item of tangible personal property subject to the discretionary sales surtax imposed under Sections 212.054 and 212.055, F.S. For the application of the limitation to the fabrication of items used in the performance of a real property contract, see Rule 12A-15.008, F.A.C.

(2)(a) The surtax does not apply to the sales amount above $5,000 on any item of tangible personal property. However, the surtax does apply to the first $5,000 of the sales amount on the sale, use, lease, rental, or license to use any item of tangible personal property, including electric power or energy. The surtax applies, without limitation, to sales of admissions; sales and uses of services; sales of service warranties; charges for prepaid calling arrangements; leases, rentals, and licenses to use real property or transient accommodations; leases or rentals of parking or storage space for motor vehicles in parking lots or garages, docking or storage space in boat docks and marinas, and tie-down or storage space for aircraft; and all other transactions subject to the discretionary sales surtax.

(b) Each lease or rental payment made, or contracted to be paid, for the lease or rental of tangible personal property by a lessee or renter represents one taxable transaction. The surtax applies to the first $5,000 of the lease or rental payment when the lease or rental payment is due. Liability for the immediate payment of the tax on all the payments required under the lease or rental does not arise at the time of the execution of the lease or rental.

(c)1. Example: A motor vehicle dealer sells a vehicle for $12,000 to a purchaser whose address on the registration or title document is in a county imposing the surtax. The first $5,000 of the sales amount is subject to the surtax and the amount over $5,000 (i.e., $7,000) is not subject to the surtax.

2. Example: A person leases real property subject to the state sales tax for $10,000 a month. The entire monthly rental (i.e., $10,000) is subject to the surtax since the $5,000 limitation only applies to items of tangible personal property.

3. Example: ABC, Inc., a consumer of electric power, is located within a county imposing the surtax. The consumer (a commercial account) receives a bill in the amount of $6,700. The first $5,000 of the sales amount is subject to the surtax and the amount over $5,000 (i.e., $1,700) is not subject to the surtax.

4. Example: A security company provides security services to a shopping mall located in a surtax county for $8,000 a month. The entire monthly charge for security services (i.e., $8,000) is subject to the surtax, since the $5,000 limitation only applies to items of tangible personal property.

(3) When multiple items of tangible personal property are sold by a dealer to the same purchaser at the same time, the $5,000 limitation applies when the sale or purchase is a single sale that meets the requirements of paragraph (a) and is a sale of items normally sold in bulk or items that comprise a working unit, or a part of a working unit, that meets the requirements of paragraph (b).

(a) SINGLE SALE. The sale or purchase of multiple items of tangible personal property must be a single sale in which the purchaser buys all items of tangible personal property from the dealer at the same time.

1. There must be an invoice, sales slip, charge ticket, written purchase order or agreement, or other tangible evidence of sale that establishes the items were sold in a single sale.

2. A single sale of items of tangible personal property that is documented by a written purchase order or written agreement executed between a purchaser and the selling dealer must:

a. Provide for a specific quantity of tangible personal property; and

b. If delivery of all items does not occur at the same time, provide for a specific time period within which delivery of the tangible personal property to the purchaser must be made.

3. Each delivery of items of tangible personal property, under the provisions of a written purchase order or written agreement that does not specify the quantity and the time period during which delivery of the property will occur, will be a single sale.

4.a. Example: A developer and an appliance distributor enter an agreement pursuant to which the developer purchases 250 refrigerators for an apartment complex project. Delivery will be in 10 loads of 25 refrigerators, as buildings in the complex are completed, with invoicing to follow each delivery and final delivery to occur no later than 10 months after the contract is signed. The 250 refrigerators will be viewed as purchased in a single sale, because the agreement specified both the quantity to be purchased and the time period in which delivery will occur.

b. Example: A road contractor enters a contract to purchase all of the asphalt needed for a certain job from an asphalt dealer that is willing to guarantee delivery as needed over a six-month period for a set price per ton, with invoicing to follow each delivery. Each delivery is a separate sale, because the agreement does not specify the quantity of asphalt to be purchased.

(b) ITEMS NORMALLY SOLD IN BULK OR ITEMS THAT COMPRISE A WORKING UNIT. A single sale must be a sale of items of tangible personal property that meets at least one of the following conditions:

1. The items are multiple quantities of a single item that the dealer normally sells in multiple quantities in the normal course of the dealer’s business or that the purchaser normally buys in multiple quantities in the normal course of the purchaser’s business;

2. The items are normally sold as a set or a unit and the utility of each for its intended purposes is dependent on the set being complete;

3. The items are normally sold in single sale by the seller to the purchaser for use in the normal business practice of the purchaser as an integrated unit; or

4. The items are component parts that have no utility unless assembled with each other to form a working unit or part of a working unit.

(c) MULTIPLE ITEMS OF TANGIBLE PERSONAL PROPERTY IN A SINGLE SALE. Multiple items of tangible personal property sold or purchased under a single sales transaction that are not normally sold in bulk or that, when assembled, will not comprise a working unit, part of a working unit, or comprise an integrated unit to be used in the purchaser’s normal business practice, cannot be aggregated into a single sale for purposes of the surtax limitation.

(d) EXAMPLES.

1. When furniture dealers advertise, sell, and invoice furniture suites or sets for a certain amount, without itemization of individual pieces that make up the suite or set, the surtax applies to the first $5,000 of each such suite or set of furniture. If the invoice contains other items not included in the suite or set, the surtax applies to the first $5,000 of each of these items. When furniture dealers sell individual pieces of furniture and separately itemize each piece, the surtax applies to the first $5,000 of each piece.

2. When a heating and air conditioning contractor, who normally purchases several heating and air conditioning units at the same time, purchases several units from a selling dealer who bills for the units on one invoice, the surtax applies to the first $5,000 on the total amount of the invoice.

3. When a lumber and building supply dealer sells lumber of various kinds and sizes, nails of different sizes, rolls of felt, squares of shingles, and other building materials that are used by the purchaser to comprise a working unit (e.g., a roof) the surtax applies to the first $5,000 of the total amount of the single sale. If the single sale or purchase contains items that are not used to comprise the working unit (e.g., the roof), the surtax applies to the first $5,000 of each item separately itemized on the sales invoice or other evidence of sale. Example of such items that are used by the contractor to construct the roof, but do not become a part of the roof when completed are hammers, saws, shovels, and power tools.

Rulemaking Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(15), (19), 212.05(1), 212.054, 212.055 FS. History–New 12-11-89, Amended 5-12-92, 3-17-93, 11-16-93, 10-2-01, 4-17-03.