12A-1.048. Sale of Agricultural Products

(1)(a) The sale of agricultural products direct from the farm when made directly by the producer is exempt. The producer is not required to obtain an exemption certificate from the purchaser to make tax exempt sales of agricultural products. This exemption does not apply to the sale of ornamental nursery stock.

(b) Agricultural products that are produced by the farmer and used by the farmer or the farmer’s family or employees on the farm are not subject to tax.

(c) The sale of agricultural products by persons who do not produce agricultural products to any person who does not directly consume the product, but acquires the raw product for resale to the ultimate retail customer, or for use in the process of preparing, finishing, or manufacturing agricultural products for the ultimate retail consumer trade, is exempt. No certificate is required to be issued by the purchaser or obtained by the seller.

(d) The sale of agricultural products by any person, other than the producer, as a marketable or finished product to the ultimate consumer, except in the form of food or food products, is subject to tax. Example: Marketable products, such as nursery stock, and finished products, such as hides, bones, hooves, and feathers, are subject to tax.

(2)(a) The sale of ornamental nursery stock by any person, including producers of agricultural products, is subject to tax. The term “ornamental nursery stock” applies to all plants, shrubs and trees customarily sold by nurseries for landscaping purposes, regardless of the state of growth or maturity, but does not include plants used to produce food for human consumption. Sod and ferns are examples of ornamental nursery stock.

(b) The rental of ornamental nursery stock, such as plants, shrubs, or trees, is subject to tax, including the rental by the producer of the ornamental nursery stock.

(c) A landscape contractor who purchases ornamental nursery stock to fulfill a lump sum, cost plus, fixed fee, or guaranteed price contract for the improvement of realty is construed to be the consumer of such nursery stock and is liable for the sales tax at the time of purchase. A person who fulfills a contract as above described should not collect the tax from his or her customers, because the tax should be paid by the landscaper on all materials used in fulfilling the contract. A landscaper who produces his or her own ornamental nursery stock or who obtains stock that was acquired without cost, such as by digging up wild plants in the woods, is not liable for the tax on such stock which he or she uses in fulfilling the aforesaid types of contracts.

(d) A person who agrees by contract to sell specifically described and itemized materials and supplies at an agreed price or at the regular retail price and to complete the work either for an additional agreed price or on the basis of time consumed is deemed to be selling tangible personal property (ornamental nursery stock) at an agreed retail price. The contractor is required to collect sales tax from the purchaser based on the price of the materials and supplies, excluding any separately stated installation charges. Sales tax applies even though all or part of the ornamental nursery stock is grown or obtained from its natural habitat for no consideration by the person completing the contract.

(e) Plants, shrubs, trees, and other items of tangible personal property that a nurseryman donates in the course of business to any person or organization is taxed based on the cost price. No tax is due on any item donated that the nurseryman produces or acquires from its natural habitat without cost.

(3) The sale of topsoil, peat moss, sand used for erooting purposes, compost, and manure is exempt as agricultural products when sold by the producer but is taxable when sold by anyone other than the producer.

(4) The sale of fill dirt is not the sale of an agricultural product and is subject to tax.

(5) The sales of certain items for agricultural use and items for agricultural purposes, as provided in Sections 212.08(5)(a) and (e), F.S., are exempt. The exemption will not be allowed unless the purchaser furnishes the seller a written certificate stating that the purchased items qualify for exemption under Section 212.08(5)(a) or (e), F.S. The format of a suggested certificate is contained in subsection 12A-1.087(11), F.A.C.

(6) The sale of ornamental nursery stock for the purposes of resale, or for the purposes of producing for resale, is exempt. The seller must obtain a copy of the purchaser’s Annual Resale Certificate (Form DR-13) to make tax exempt sales for the purposes of resale.

(7) Nursery stock, plants, shrubs, and trees, purchased by one nurseryman from another for stock are exempt. Nursery stock purchased for direct resale and sold at retail is required to be purchased with a resale certificate and is subject to tax when sold to the ultimate consumer.

Rulemaking Authority 212.17(6), 212.18(2), 213.06(1) FS. Law Implemented 212.02(29), 212.07(5), (6), (7), 212.08(5)(a), (e), 212.18(2) FS. History–New 10-7-68, Amended 6-16-72, 12-11-74, 7-20-82, Formerly 12A-1.48, Amended 3-1-00, 6-19-01.