Are shipping charges taxable in Illinois?

Folks in Illinois are quite litigious when it comes to occupation and use (aka sales) taxes on transportation or delivery (aka “shipping”) charges. Back in 2006, Wal-Mart was hit with a class action for collecting tax on shipping where no tax was allegedly due. In more recent years, over 200 retailers have been sued by a Chicago attorney for not collecting tax on shipping.

So, should you collect and remit tax on shipping charges, or should you not collect or remit taxes on shipping? If only the answer were so black and white. Important considerations, as you will find in the regulations, cases, and articles listed below, are whether the shipping charges are stated separately in your checkout process and on your invoices, whether the shipping charged to the consumer exceed the actual cost of delivery, and whether you provide the customer an option to pick up the wine at the winery.

The goal of this post is not to provide legal advice, as the decision to collect and remit taxes on shipping in Illinois is based on several different factors and your own individual circumstances are important in determining taxability based on those factors. Instead, our aim is to share as much information as we can so that the industry is armed with the facts of the situation and can make informed decisions. We will continue to update this post with documents, resources, and other information that we find. If you come across something that is relevant, please post it in the comments section below or email us at illinois@shipcompliant.com.

Resources:

1) Illinois Regulations: Title 86 Part 130 Section 130.415 Transportation and Delivery Charges

If the seller and the buyer agree upon the transportation or delivery charges separately from the selling price of the tangible personal property which is sold, then the cost of the transportation or delivery service is not a part of the “selling price” of the tangible personal property which is sold, but instead is a service charge, separately contracted for, and need not be included in the figure upon which the seller computes his Retailers’ Occupation Tax liability. Delivery charges are deemed to be agreed upon separately from the selling price of the tangible personal property being sold so long as the seller requires a separate charge for delivery and so long as the charges designated as transportation or delivery or shipping and handling are actually reflective of the costs of such shipping, transportation or delivery

2) Brann & Isaacson: Some Good News for Retailers Regarding False Claims Act Issues

3) Illinois Supreme Court: Nancy Kean vs. Wal-Mart Stores, Inc.

4) Tax Analysts: Illinois Rules Against Chicago “Whistleblower” in False Claims Case

5) Tax Analysts: Qui Tam Troubles, Part 2: A Relator Seeking to Second-Guess Audits

6) Crain’s Chicago Business: State blows the Whistle on this Whistleblower

FedEx will begin shipping wine to Massachusetts on Febuary 1st

FedEx announced today that, effective Feb. 1, 2015, FedEx Express and FedEx Ground will open the state of Massachusetts for legal shipments of alcoholic beverages. The announcement provided the following:

  • FedEx Ground and FedEx Express will both transport legal alcoholic beverage shipments into, out of and within the state of Massachusetts starting Feb. 1, 2015.
  • Please note, unauthorized shipments of alcoholic beverages destined for MA prior to a Feb. 1, 2015 delivery date may not be accepted for delivery and/or returned to shipper.
  • Per FedEx policy, all alcoholic beverage shipments may only be tendered by licensed entities that have executed a FedEx Alcohol Shipping Agreement.
  • All alcoholic beverage shipments must comply with all FedEx policies and federal, state and local regulations.
  • Wine is the only type of alcoholic beverage that is allowed to be shipped to consumers.

FedEx does not provide legal advice to third parties. Questions not related to FedEx policy should be directed to appropriate legal counsel and the Massachusetts Alcoholic Beverages Control Commission.

(The new direct-to-consumer statute goes into effect on Jan. 1, 2015. Under the new law a winery must hold a Direct Wine Shipper license that has been approved by the MA ABCC and be registered to pay excise tax in order to ship to MA consumers.)

Last Month to Renew Labels in South Dakota

Happy Holidays! With Thanksgiving and the busiest shopping day of the year behind us, we have less than one more month of 2014 left. That’s 29 days of finishing resolutions you made last year and even less to buy holiday gifts! It also means that the label renewal periods for a few states are coming to a close! Luckily, South Dakota label renewals can be easily completed electronically in just a few minutes. All you need to know are the labels that you wish to continue to sell in 2015, and your four digit brand registration license number (the ABC can provide this if you’ve forgotten your number). That’s one more item to check off of your list for 2014 so you can get back to breaking out the holiday decorations!

Follow these four simple steps to complete your South Dakota renewals:
1) Click the button below
2) Login using your four digit brand registration number and email address
3) De-select any products you don’t want to renew
4) Complete your renewals by paying via check or credit card

Renew Now

Need help with renewals? Call our free, friendly support department at (303) 996-2356 or support@productregistrationonline.com

Massachusetts DTC Applications – How to Get Started

As ShipCompliant reported earlier this week, the new Direct Wine Shipper License application and advisory were released over this past weekend. The new permit law replaces the existing unworkable direct shipping law in its entirety. See the previous post to read more about how the new laws, in effect starting January 1, 2015, apply to wineries.

It is expected to take approximately four weeks for applications to be approved. Wineries may NOT engage in any “sales activities” prior to January 1, 2015. (or their license is approved.) Both the Direct Wine Shipper License application and Direct Wine Shipper License Advisory are available on the Wine Institute, ShipCompliant, and Massachusetts Alcoholic Beverages Control Commission (ABCC) websites. Below please find instructions on how to complete the application process. Questions about the application requirements can be directed to Ralph Sacramone of the ABCC at 617-727-3040 ext. 731 or to Annie Bones at abones@wineinstitute.org.

MASSACHUSETTS NEW DIRECT WINE SHIPPER LICENSE APPLICATION INSTRUCTIONS
Step 1: Register with the Department of Revenue to Pay Sales and Excise Taxes

  • Go to MassTax Connect to Register and Pay Excise Taxes (note the date of registration as you will need to enter this on the DTC application.)

Step 2: Application for a Direct Shipper Wine License (effective 1/1/2015)
Part 1 – Applicant Information and Legal Structure

  • Attach vote by the Board of Directors or LLC Managers appointing a manager or principal representative
  • Articles of Organization as filed with the Secretary of State’s Office

Part 2 – Licenses to Manufacture and Export Wine

  • List and attach a copy of your California 02 Winegrower license

Part 3 – Federal Compliance

  • List and attach a copy of your TTB Basic Permit Number
  • List and attach a copy of your FDA Registration

Part 4 – Tax Registration

  • Enter the date that you registered with the MA Department of Revenue to pay sales and excise taxes

Part 5 – Interests in this License

  • All of the limited partners must be listed

Parts 6-8

  • Follow the application’s instructions and provide affidavit(s) if necessary

Part 9 – Previously Held Interests in Other Licenses

  • All of previously held interests must be listed

Part 10 – Transportation and Delivery

  • FedEx Ground should be listed. FedEx Express and UPS are not licensed to deliver DTC wine shipments to MA consumers at this time. The application can be updated by letter if FedEx Express, UPS or any other common carrier enters the market and intend to use their services.

Part 11 – Proof of Age for Sale to Consumers

  • The Code for Direct Shipping Guidelines (http://freethegrapes.org/code-for-direct-shipping) recommends that direct shippers verify the purchaser’s age at the point of online purchase using an approved age verification vendor, such as LexisNexis or IDology.

Part 12 – Proof of Age for Delivery to Consumers
FedEx Ground Control Processes for Alcohol Shipments: FedEx Ground requires Alcohol Shippers to sign a special contract addendum outlining labeling and information requirements

  • Shippers must use FedEx® ShipManager electronic shipping solutions or an approved third-party system
  • Shippers must enter a unique identifier – $AW, in the “Your Reference” field for all wine shipments
  • Shippers must select Adult Signature Service as a condition of delivery of the shipment
  • All wine packages must be labeled with a FedEx approved alcohol label
  • An Adult Signature Service “code” is embedded in the unique bar code tracking ID
  • Delivery scanners alert drivers of the adults signature requirement at point of delivery scan
  • If no eligible recipient is at the address, the scanner prompts driver to apply the proper status code and reattempt delivery at a later time/date
  • FedEx will obtain a signature from any person at least 21 years old (government-issued photo identification required) at the delivery address
  • Part 13

    • Follow the application’s instructions

    Step 3: Direct Wine Shipper License Application Checklist

    • Check payable to ABCC or Commonwealth of MA for $300
    • Transmittal Form
    • Completed Application
    • Articles of Organization as filed with the Secretary of State’s Office
    • Vote by the Board of Directors or LLC Managers appointing a manager or principal representative
    • A copy of your California 02 Winegrower license
    • A copy of your Federal Basic Permit
    • A copy of your FDA Registration

    Send to:
    Alcoholic Beverages Control Commission
    P.O. Box 3396
    Boston, MA 02241-3396

    Annie Bones, State Relations – Wine Institute

    New Direct Wine Shipper License Applications Now Available for Massachusetts


    As we discussed in a previous post, Massachusetts opening to direct shipping is probably the biggest change that we have seen in direct wine shipping since the Granholm Supreme Court decision of 2005. Over the weekend, the Massachusetts ABCC updated their website with a brief advisory on the new direct shipping law that summarizes the law and provides instructions on how to complete the permit process, and how to comply with the reporting requirements.

    Click here to download the Massachusetts direct shipping application (if you are having trouble downloading the application from the Massachusetts website, click here).

    Here’s a quick summary of the new law:

    • Only wineries that hold a TTB license and a license to produce in and export out of their state can qualify for the Direct Wine Shipper License
    • Each licensed direct shippers can ship up to 12 9-liter cases of wine to any one individual per calendar year
    • Direct shipping reports will be due on an annual basis
    • Sales tax is not due for wine products, but is due for any non-wine items such as merchandise
    • Excise taxes will be due on all shipments

    The 7-page application is fairly straightforward, but in addition to some of the usual information (like business and business owner information), you’ll need to answer a couple out-of-the ordinary questions. Note: We’re working to clarify how to answer a few of the questions with the ABCC, and will update this post once we have more information.

    • First, register with Mass Tax Connect to pay excise taxes. You’ll need to include the date you registered on the application.
    • List all businesses (carriers) that will deliver wine on your behalf; carriers must hold a Winery Shipment Transportation Permit

      An early concern over the new Massachusetts wine shipping law was that it did not address the issue of common carriers having to license each and every truck that delivers wine. However, a bill to allow common carriers to obtain a fleet license for the delivery of alcohol is pending in the Massachusetts legislature. It seems somewhat unlikely that the fleet license bill will move this session. But, we believe that at least one of the common carriers will begin to license each of their trucks and therefore will be able to deliver wine to Massachusetts addresses as early as the beginning of February.

    • List your winery’s methods for proof of age for sale and delivery to consumers.

      See our informative post on 7 tips for better age verification, listing the different age verification methods for online wine purchases

    • Include with the application a copy of 1) the license(s) you hold which authorize manufacture and exportation of wine; 2) your TTB Permit; and 3) your FDA Registration
    • Finally, include a check for $300. Make the check out to the “Massachusetts ABCC” and denote the name of the licensee

    We expect Massachusetts will represent an extremely important opportunity for wineries. If is approved, a process that may take as long as four weeks, you can start taking orders as soon as January 1, 2015!

    UPDATE: For a step-by-step guide on filling out the application form, see our following blog post, “Massachusetts DTC Applications – How to Get Started“. Please note: Applicants do NOT have to register to pay sales tax; contradictory towtheyted on the application form, however, applicants MUST apply to pay excise tax at Mass Tax Connect.