Fla. Admin. Code Ann. R. 12A-1.037 - Occasional or Isolated Sales or Transactions Involving Tangible Personal Property or Services

(1) Occasional or isolated sales or transactions involving tangible personal property or taxable services are exempt, provided the sales or series of sales meet the requirements set forth in this rule, regarding: the intent of the parties; the frequency and duration of the sales; the type of tangible personal property or services offered for sale; the location where the sales take place; and the status of the parties, as it relates to the tangible personal property or taxable services being sold.

(2) An exempt isolated sale or transaction occurs when an entity, which for purposes of this rule is a "person, " as defined in Section 212.02(12), F.S., required to be registered as a dealer, either distributes tangible personal property in exchange for the surrender of a proportionate interest in an entity, or transfers all, or substantially all, of the property of a person's business, or a division thereof. Also, the transfer of property to an entity in exchange for an interest therein in proportion to the tangible personal property contributed is exempt as an isolated sale.

(a) The isolated sales exemption does not apply to:

1. Sales of aircraft, boats, mobile homes, or motor vehicles in this state of a class or type required to be registered, licensed, titled, or documented in this state or by the United States Government; however, such sales may be exempt if they meet the criteria in subparagraph 12A-1.007(25)(a) 3., 4. or 5., F.A.C.

2. The distribution or sale of inventory.

3. The distribution or sale of tangible personal property used in the business, such as salvage, surplus, or obsolete property, will not qualify as an isolated sale or transaction, unless the transaction is described in paragraph (2)(b) or (c), below; but such sale qualifies as an occasional sale or transaction if it complies with the requirements set forth in subsection (3), below, and provided none of the elements set forth in subsection (5), below, are present.

4. Transactions where the transferor has not paid any applicable sales or use tax on the tangible personal property, unless at the time of transfer the statute of limitations for assessment of sales and use tax on the property had expired, as provided in Section 95.091(3), F.S.

5. Sales made by or through an auctioneer, agent, broker, factor, or any other person required to be registered and to collect tax on such sales, as provided in Rule 12A-1.066, F.A.C.

6. Transactions which are not completed within 60 days from the date of the first distribution of assets of an entity.

(b) A transfer, distribution, exchange or sale of tangible personal property to or by an entity is an exempt isolated sale when:

1. The transfer of tangible personal property to an entity is in exchange for the stock (or an increase in the value of the transferor's stock), or an interest (or an increase in the value of the transferor's interest) therein, or in an entity which controls such entity, in proportion to the value of the property contributed.

a. Example: X Corp and Y Corp will each transfer $500, 000 worth of tangible personal property to form XY Corp in exchange for X Corp and Y Corp each owning 50 percent of XY Corp stock. That transfer of tangible personal property to XY Corp is exempt as an isolated sale.

b. Example: X Corp transfers all or substantially all of the tangible personal property of one of its divisions to Y Corp, a newly formed corporation, in exchange for all of the stock of Y Corp. The transfer of the tangible personal property is a contribution to the capital of Y Corp and therefore is an exempt isolated sale.

c. Example: Z transfers tangible personal property to Y Corp as a contribution to the capital of Y Corp and either increases the value of its presently held stock in Y Corp in proportion to the value of the property contributed or receives additional stock in proportion to the value of the property contributed. The transfer of the tangible personal property from Z to Y Corp is a contribution to capital and therefore is an exempt isolated sale.

2. The transfer of property to an acquiring corporation is pursuant to a consolidation or merger of the corporation, and in exchange solely for issuance of the acquiring corporation's stock, or stock of the acquiring corporation's parent. Example: X Corp merges into Y Corp, in compliance with the statutory merger requirements set forth in Chapters 607 and 617, F.S. X Corp would not be required to collect sales tax from Y Corp on the transfer of the tangible personal property to Y Corp, since such transfer is not in the normal course of business; instead, the transfer is for the merger or consolidation of X Corp and Y Corp in the formation of XY Corp.

3. The distribution or sale by an entity in complete liquidation of non-inventory tangible personal property is made pursuant to the dissolution of that entity or a division thereof.

4. There is a transfer of tangible personal property to an acquiring corporation, where the acquiring corporation, in addition to exchanging its stock, either assumes a liability or pays boot in exchange for tangible personal property, provided that the fair market value of the stock exchanged for the tangible personal property represents at least 80% of the fair market value of the total consideration given for the tangible personal property.

(c) An exempt isolated sale or transaction may also occur when the transfer of non-inventory tangible personal property by an entity is in exchange for the surrender of a proportionate interest in the entity held by the transferee. Example: A, B, and C each hold one-third interest in Partnership. C's interest in Partnership will be extinguished when the non-inventory tangible personal property of Partnership proportionate to C's interest is transferred to C. This transfer of non-inventory tangible personal property from Partnership to C is exempt as an isolated sale.

(d) The sale of business assets in conjunction with the sale of the business as provided in paragraph 12A-1.055(6)(b), F.A.C., other than inventory and aircraft, boats, mobile homes, and motor vehicles, qualifies as an isolated sale provided the sale and the transfer of the assets of the business is completed within 30 days from the date of the agreement for the sale of the business. If the sale of the business is not completed within the 30 day period, the sale may nevertheless qualify as an occasional sale provided the sale complies with the requirements in subsection (3), below, and provided none of the elements set forth in subsection (5), below, are present.

(3)

(a) An exempt occasional sale or series of sales occurs when there is a sale by the owner of tangible personal property, which meets the requirements set forth below, regarding the frequency and duration of the sales, the type of tangible personal property sold, the location of the sales, and the status of the parties as it relates to the property being sold.

(b) An exempt occasional sale or series of sales by the owner of tangible personal property must occur under the following circumstances:

1. The seller must have paid any applicable sales or use tax on such property unless at the time of sale the statute of limitations for assessment of sales and use tax on the property had expired, as provided in Section 95.091(3), F.S.

2. Such sales or series of sales occur no more frequently than two times during any 12-month period.

a. The third sale or series of sales in this State of such property during any 12-month period makes that person engaged in the business, and that person is required to register as a dealer and required to collect and remit tax on such third sale or series of sales and on all subsequent sales until such sales or series of sales occur no more than two times within any 12-month period. A dealer that is no longer required to be registered must cancel its sales tax registration. Once the registration is canceled, the seller cannot make more than two sales or series of sales within any 12-month period without being required to register again as a dealer.

b. The term "series of sales, " for purposes of this rule, means any multiple sales of tangible personal property, for a limited duration not to exceed 30 consecutive days, which as to any single sale within the series of sales would not be taxable under the requirements set forth in this rule for each such single sale. Each series of sales shall be considered a single sale. Example: A carpet retailer conducts a two day sale to dispose of its used office equipment. The multiple sales made by the dealer during those two days constitute a single sale, for purposes of the occasional sales tax exemption, since the sales took place within the limited duration which did not exceed 30 consecutive days; therefore, the sale is exempt from tax.

c. For purposes of determining whether a sale qualifies as an occasional sale, an entity with more than one place of operation in the State of Florida shall be considered a single entity. Example: X Corp wishes to sell its used office furniture and equipment; it operates from A, B, C, and D locations. The A location holds a sale on January 1st; the B location holds a sale on January 15th; the C location holds a sale in May; and the D location holds a sale in August. The sales made by the A and B locations constitute a single sale, since the same entity, X Corp, sold the tangible personal property within 30 consecutive days; therefore, the sales made at the A and B locations may qualify as occasional sales. The sales made by the C location constitute a second sale by X Corp, and may qualify as the second occasional sale, because such sale did not occur within 30 days from the January 1st sale. However, the sales made by the D location constitute a third sale by X Corp, and shall not qualify as an occasional sale.

3. Sales by a dealer of tangible personal property that was used in the business, which is not inventory and which was not originally purchased for resale, may qualify as an occasional sale, regardless of the items' similarity to any items sold in the regular course of the dealer's trade or business, provided the items are not specifically excluded, as set forth in subsection (5) of this rule, from the occasional sales exemption, and provided all other requirements set forth herein are met.

a. Example: Sales by a farmer of his farm machinery or equipment, or by a grocery store of its cash registers and other equipment, or by an office supply company of its (fixed assets) office furniture are exempt if:

(I) Such sales or series of sales do not occur more than two times within any 12-month period;

(II) Such tangible personal property was not inventory; and,

(III) Such tangible personal property was not originally purchased or acquired for resale.

b. Example: X Corp is in the business of manufacturing baseball equipment, including baseballs, gloves, and bats. X Corp has decided to discontinue the production of gloves and will sell all the manufacturing equipment used for the production of gloves. The sale of the glove production equipment may qualify as an isolated sale of a division, as provided in subsection (2) above, or it may otherwise qualify as an occasional sale. However, the sale of gloves in inventory that were originally manufactured for resale does not qualify as an occasional sale.

(4) An occasional sale of taxable services occurs when the seller does not hold himself out as engaged in the business of selling such services and the sale of the services occurs no more than two times during any 12-month period.

(5) The sale of tangible personal property, or the sale of services, under any one of the following circumstances, is taxable and is not an occasional sale if:

(a) Such sale or series of sales occurs more than two times within any 12-month period (tax shall apply only to the third and subsequent sale(s)).

(b) Such property was originally purchased or acquired for resale.

(c) Such sale or series of sales are made on the same commercial premises or from a location, which is not its fixed and permanent business location, and which is in competition with other persons required to collect tax, regardless of whether such sales may otherwise qualify as occasional sales, and regardless of the similarity of the tangible personal property to that of the other dealers' tangible personal property.

(d)

1. Example: A non-profit civic organization selling T-shirts purchased for resale on the premises of any commercial establishment where the vendors are required to be registered as dealers, to charge, collect, and remit sales tax, must also register as a dealer even if that is the organization's first sale during that 12-month period because:

a. The location where that organization is selling the T-shirts is considered to be in competition with other dealers required to collect tax; or

b. The T-shirts were purchased for resale.

2. Example: A city holds a parade which attracts sellers of tangible personal property, including, but not limited to, arts and crafts vendors. The city designates a specific area where the arts and crafts and other vendors' items are to be sold. The sale of the arts and crafts is taxable, even if the arts and crafts are sold by non-profit organizations, and even if the sale would otherwise qualify as an occasional sale, because the sellers of the arts and crafts are selling at a location which is in competition with other vendors that are required to be registered. Therefore, the sale of the arts and crafts is not an occasional sale, and the sellers of arts and crafts must register as dealers.

(e) Such sale is made by or through an auctioneer, agent, broker, factor, or any other person required to be registered as a dealer to collect and remit tax on such sales, as provided in Rule 12A-1.066, F.A.C.

(f) Such sale involves an aircraft, boat, mobile home, or motor vehicle of a class or type required to be registered, licensed, titled, or documented in this state or by the United States Government. See Rule 12A-1.007, F.A.C.

(g) Such sale involves admissions; or taxable rentals, leases, or licenses of transient rental accommodations, real property, parking lots, garages, docking, tie down spaces, or storage spaces for motor vehicles, boats or aircraft.

(6) The rental of tangible personal property, pursuant to an operating lease (as defined in Rule 12A-1.071, F.A.C.), qualifies as an exempt occasional sale, provided it complies with the requirements in subsection (3) above, and provided none of the elements set forth in subsection (5) above, are present.

(a) For purposes of this subsection, there shall be no series of sales of tangible personal property as set forth in sub-subparagraph (3)(b)2.b., above; therefore, all single rentals of tangible personal property shall constitute a sale.

(b) Any single rental transaction of tangible personal property, pursuant to an operating lease, covering a period of 30 days or less, will be treated as a single rental, and shall constitute one sale. If a rental transaction of tangible personal property covers a period in excess of 30 days, each 30 day increment, or portion thereof, will be considered a single rental transaction and shall constitute one sale.

(c) If a rental transaction exceeds the frequency requirement set forth in subsection (3), above, as modified by paragraphs (6)(a) and (b) above, no portion of that rental transaction shall be exempt as an occasional rental.

1. Example: Contractor X owns and operates bulldozers and other equipment (other than vehicles described in subparagraph (2)(a)1.) used in land clearing. Contractor X paid the applicable tax on the purchase of the equipment, and generally does not lease any of its equipment. However, in a 12-month period, Contractor X entered into three separate 30-day term operating leases, for the lease of a bulldozer to Contractor Y (without an operator). The first two 30-day leases qualify as occasional operating leases and are exempt from tax. However, Contractor X is required to register and collect tax on the third, and subsequent leases, until Contractor X has no more than two leases within any 12-month period.

2. Example: The rental of an automobile, pursuant to an operating lease, on which sales tax was paid when purchased is taxable, regardless of whether such rental would otherwise qualify as an occasional sale, because an automobile is a vehicle of a class required to be registered in this state.

3. Example: An individual, who was not previously in the business of renting computers, rents a computer for a term of six months in exchange for $300. The rental of the computer is not an occasional rental, and the entire amount paid for the full term of the rental is taxable, because each 30 day period is treated as a sale so that a six month rental constitutes six sales.

(7) The sales of second hand goods in a second hand store are not occasional sales, because second hand stores are in the business of selling such goods, and such items were purchased or acquired for resale.

(8)

(a) A sale or series of sales of tangible personal property consisting of household goods or personal effects is an occasional sale if such sales comply with the requirements in subsection (3) above, and provided none of the elements set forth in subsection (5) above, are present.

(b) Such sale or series of sales must be by an individual(s) at his or her residence or at some other site, which is not on the same premises in competition with other persons required to collect tax.

1. Example: A garage sale of household goods and personal effects is held at a residence for several hours during a weekend. The sale or series of sales made by the owner of the tangible personal property qualifies as a single sale for purposes of the occasional sales tax exemption, provided this is the first or second such sale or series of sales within the immediately preceding 12-month period, and that such items were not purchased for resale.

2. Example: An individual holds three garage sales. One is on the second weekend of April, another is on the second weekend of June, and the final sale is on the second weekend of August. The April garage sale constitutes one sale or series of sales and may qualify as an occasional sale or series of sales. The June garage sale constitutes a second sale or series of sales, since it did not take place within 30 consecutive days from the April sale, and may also qualify as an occasional sale or series of sales. However, the August sale constitutes a third garage sale, since it did not take place within 30 consecutive days from the June sale; therefore, it may not qualify as an occasional sale of series or sales. Accordingly, for the August and future garage sales, the individual is required to register with the Department as a dealer, and is required to collect and remit sales tax on all taxable items of tangible personal property sold, until the individual makes no more than two garage sales or series of sales within any 12-month period.

(9) The sale by the Federal Government, including sales made by U.S. Marshals, of surplus government property or confiscated property is not subject to tax. However, no title certificate may be issued on any boat, mobile home, or motor vehicle or, if no title is required by law, no license or registration may be issued for any aircraft, boat, mobile home, motor vehicle, or other vehicle unless the purchaser files with the application for title certificate, license, or registration certificate a receipt issued by the Department of Revenue, its designated agent, or a county tax collector, evidencing payment of the tax where the same is payable.

(10)

(a) The sale of tangible personal property, except unclaimed property pursuant to Section 717.122, F.S., by an agency of the state, or any county, municipality, or political subdivision of this state is taxable, provided the sale does not otherwise qualify as an occasional sale.

(b) In the case of aircraft, boats, mobile homes, motor vehicles, or other vehicles, such governmental unit shall collect and remit the tax and shall furnish the purchaser with a receipt thereof evidencing payment of the tax where the same is payable. The receipt evidencing payment of tax shall be attached to application for title or, if no title is required by law, to the license or registration certificate as proof that the tax has been paid.

(11) Sales of unclaimed tangible personal property by an agency of the state pursuant to Section 717.122, F.S., are not subject to tax. However, no title certificate may be issued on any boat, mobile home, or motor vehicle or, if no title is required by law, no license or registration may be issued for any aircraft, boat, mobile home, motor vehicle, or other vehicle unless the purchaser files with the application for title certificate, license, or registration certificate a receipt issued by the Department of Revenue, its designated agent, or a county tax collector, evidencing payment of the tax where the same is payable.

(12) Sales made by officers of a court pursuant to court orders are considered occasional sales, with the exception of:

(a) Sales made by trustees in bankruptcy or sales made by third parties at the direction of or by appointment of such trustees, sales made by receivers, and sales made by assignees under the provisions of Chapter 727, F.S., which are taxable. Trustees and such third parties, receivers, and assignees are required to register as dealers and collect the applicable tax on all taxable sales of tangible personal property made during the trusteeship, receivership, or assignment for the benefit of creditors, including sales from inventory and all tangible personal property of any business or estate, excluding sales of tangible personal property to the debtor in any bankruptcy proceedings, receiverships, or assignments;

(b) Sales made by or through an auctioneer, agent, broker, factor, or any other person required to be registered as a dealer to collect and remit tax on such sales, as provided in Rule 12A-1.066, F.A.C.;

(c) Aircraft, boats, mobile homes, or motor vehicles of a class or type required to be registered, licensed, titled, or documented in this state or by the United States Government; and,

(d) In the case of any aircraft, boat, mobile home, or motor vehicle of a class or type required to be registered, licensed, titled, or documented in this state or by the United States Government sold by an officer of the court, no title certificate may be issued, or, if no title is required by law, no license or registration may be issued unless there is filed with such application for title certificate, license, or registration certificate a receipt issued by the Department of Revenue, its designated agent, or a county tax collector, evidencing payment of tax where the same is payable.

(13) Manufacturers, processors, refiners, and miners in the business of producing and wholesalers engaged in distributing tangible personal property who sell primarily other than at retail are not deemed to be making occasional sales and must collect and remit tax when they sell such taxable tangible personal property to purchasers for use or consumption, notwithstanding that sales at retail may comprise a small fraction of their total sales.

(14) The sale of damaged or rejected freight by a common carrier may be exempt as an occasional sale, provided such sale complies with the requirements in subsection (3) above, and provided none of the elements set forth in subsection (5) above, are present.

(15)

(a) The sale, by a dealer, of cancelled stamps as collector's items is taxable. Rare, uncancelled stamps sold by dealers are also taxable.

(b) The sale, by a dealer, of gold and silver bullion is deemed to be a sale of tangible personal property and is taxable. For sales of coins and currency, see Rule 12A-1.0371, F.A.C.

(16) The sale of new or used rails, cross-ties, and other tangible personal property by a railroad is taxable and does not qualify for exemption as an occasional sale, unless such sale or series of sales complies with the criteria set forth in subsection (3) above, and provided none of the elements set forth in subsection (5) above, are met.

(17) The sale by a contractor of equipment, on which sales tax was paid when purchased, is taxable, unless it qualifies as an occasional sale, as provided in subsection (3) above, and provided none of the elements set forth in subsection (5) above, are met. (For rental of equipment, see subsection (6) above.)

(18) House wreckers and movers who sell tangible materials or conduct other transactions are required to register as dealers and collect tax where applicable as follows:

(a) Sales of lumber, timber, brick, plumbing fixtures, and any other tangible personal property to a user or consumer are taxable.

(b) An assembled dwelling or other structure acquired by a house mover and sold as an entity to an individual to be placed on the individual's own lot or property is taxable. The house becomes tangible personal property when removed from its original site.

(c) If a house mover acquires a building and moves it onto a lot owned by the mover and later sells the building and lot together, the sale is exempt because this constitutes a sale of realty.

(d) If an individual not engaged in the business of wrecking or moving houses acquires a house from another who is not engaged in the business of wrecking or moving houses, the transaction is exempt as an occasional sale. Where a house mover contracts to move and relocate such house to the purchaser's lot, all materials, supplies, machinery, or equipment used in performing this service are taxable to the mover-contractor.

(e) Any temporary conveyance of title or ownership or other device designed to evade the application of the sales tax will not prevent the imposition of the proper sales tax.

Notes

Fla. Admin. Code Ann. R. 12A-1.037

Rulemaking Authority 212.18(2), 213.06(1) FS. Law Implemented 212.02(1), (2), (10)(g), (12), (14), (16), (19), 212.04, 212.05(1)(c), (d), (f), (j), 212.06(1)(a), (2), (3), (8), (10), 212.07(1), 212.11(2), (3), 212.12(9), 212.18(2), 212.21(2), 213.06(1), 213.35 FS.

Revised 10-7-68, 6-16-72, Amended 10-18-78, 5-8-79, 12-23-80, 12-3-81, 7-20-82, Formerly 12A-1.37, Amended 1-2-89, 8-15-94, 6-19-01, 8-1-02.

New 10-7-68, Amended 6-16-72, 10-18-78, 5-8-79, 12-23-80, 12-3-81, 7-20-82, Formerly 12A-1.37, Amended 1-2-89, 8-15-94, 6-19-01, 8-1-02.