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  • While the Autumn Leaves Change in Montana, So Do Their Wine Direct Shipping Regulations


    Montana’s new direct shipping law goes into effect October 1 and will replace the current “Wine Connoisseur’s License” process with a “Direct Shipping Endorsement” permit system. Applications for authorization to ship directly to consumers in Montana are now available. Overall, the new law and licensing process are fairly simple; the Endorsement fee will cost $50 and the winery will also have to pay the applicable Foreign Winery registration fee, depending on how many cases the winery expects to send into Montana. Effective Tuesday, October 1, wineries must have the Endorsement in order to ship to consumers in Montana.

    Wineries that have been direct shipping wine via the now-obsolete “Wine Connoisseurs License” process, or wineries that have been selling to Montana distributors, will likely already have a Foreign Winery License. Wineries already holding the Foreign Winery License may submit an application for the new Direct Shipping Endorsement with the Foreign Winery’s 2013-2014 license renewal application, or if wineries have already renewed their Foreign Winery License or are Domestic Winery licensees, the Endorsement Application may be filed separately. Wineries that are not already licensed as a Foreign Winery will need to apply for the Foreign Winery License and “Direct Shipment Endorsement” box on the Foreign Winery License Registration form.

    What else needs to be done to become compliant and licensed? Many of the specifics of the law change are noted in our previous blog post and in Montana’s 2013 Legislative Wrap-up. Below are some items wineries will need to know during the process of becoming licensed.

    1. Fulfillment, Carrier and Distributor Notifications

    • Direct Shippers must notify the Department of any fulfillment houses that will send shipments to Montana consumers on behalf of the licensed winery. Submit the name and the address of the fulfillment warehouse you will use with your Endorsement Application, or anytime you plan to begin using a fulfillment warehouse.
    • Direct Shipper applicants must send a written statement acknowledging that they will only contract with common carriers that agree to deliver table wine only to consumers who are at least 21 years of age.
    • Distributor agreements must be submitted along with the Foreign Winery Application. However, if the Foreign Winery applicant intends to ship only to onsumers in Montana, no distributors need to be noted in Section 6 of the application, and therefore no agreements need be included.

    2. Label Registrations

    • Foreign Winery applicants may register their labels via the paper application and must include copies of the COLAs that they will ship into the state. Approval of these labels must be received before shipping them into the state.
    • Wineries already licensed as a Foreign Winery should register their products online through the Montana TaxPayer Access Point (TAP) system. Labels being sold both to wholesalers and to consumers in Montana only need to be registered once. There is no fee for registering labels.

    The Wine Connoisseur’s License will remain effective until October 1 for any current connoisseur licensees who opted to renew their license for a shortened period of July 1 – September 30 of the 2013 year. After October 1, consumers in Montana purchasing wine will not need to obtain a connoisseur’s license, but will still need a connoisseur’s license to purchase beer if they wish to receive shipments from registered breweries, as beer was not included in the changes enacted by HB 402.

    Logistics Shippers and Carrier License Applications Required in North Dakota

    An update to North Dakota’s existing direct shipping law is going into effect today, August 1. Passed earlier this year, the new law maintains much of the existing law surrounding direct shipping, but also adds two new licenses, “Logistics Shipper License” and “Alcohol Carrier License”, in addition to new shipment reports.

    Since April of 2010, fulfillment warehouses have been prohibited from shipping into the state on behalf of their winery or retailer clients. Effective today, a fulfillment warehouse can ship into the state once they apply and are approved for a “Logistics Shippers” license. Also effective today, an “Alcohol Carrier” license is required for any carriers shipping direct-to-consumer orders into the state; this includes common carriers such as FedEx and UPS. According to a recent newsletter sent out by North Dakota’s Office of the State Tax Commission,

    “All direct shippers, logistics shippers, and alcohol carriers MUST be licensed BEFORE shipping… and must ensure the alcohol beverage is being shipped and delivered by licensed direct shippers, licensed logistics shippers and licensed alcohol carriers.”

    No Logistics Shipper or Alcohol Carrier licenses have been issued as of yet. This means that, in effect, until carriers become licensed, direct shipments into North Dakota will not be compliant. Alcohol Carrier and Logistics Shipper licenses may take a week to be processed.

    Licensees should also be aware of new shipment reports. The law now requires each of the three aforementioned types of licensees to electronically report shipments into the state. Each licensee must keep records and will be required to report the name and license number of the other licensees they used for each shipment. All licensees will be required to report the name and address of the recipient, the type and quantity of alcohol shipped, and tracking numbers. Direct shippers may file the existing annual electronic report for all 2013 shipments (“Schedule H” for sales of liquor and wine); the new direct shipper reporting requirements will go into effect beginning with the 2014 filing period. Alcohol Carriers and Logistics Shippers must report monthly. To ease the reporting burden, the Office of State Tax Commissioner publishes license names, numbers and addresses of licensees on their website.

    ShipCompliant clients should note that we added “Carrier Prohibited” rules for FedEx and UPS to our database that will cause all shipments to North Dakota to be not compliant effective today. Once we receive confirmation that the carriers are licensed, we will remove each rule to allow shipments from approved Alcohol Carriers. Similarly, we applied a “Third Party Shipper Approval Required” rule to North Dakota that will cause shipments from non-approved fulfillment houses to fail compliance checks. Currently, no fulfillment houses are approved, but we will update this rule immediately after getting confirmation of each approved Logistics Shipper.

    Application Links:
    Alcohol Carrier License Application
    – $100/year
    Logistics Shipper License Application
    – $100/year
    Direct Shipping Permit Application
    – $50/year Renewals will be sent out in November for the 2014 licensing period

    Kentucky Election Day Bill Creates New License for Out-of-State Wine and Spirits Suppliers

    All out-of-state wine and distilled spirits suppliers that sell to Kentucky distributors are now required to obtain an “Out-of-State Distilled Spirits/Wine Producer/Supplier License” following the passage of SB 13 in April. Before this bill became effective on June 25, 2013, suppliers still needed to register their brands with the ABC prior to selling to Kentucky distributors but did not need to obtain a license. In an informative fact sheet, Kentucky explains SB 13 was “…a much needed ‘clean up’ of existing statutory problems and inconsistencies that existed in Kentucky law without changing or expanding existing license privileges.” By now, most current out-of-state wine and spirits suppliers have received an application packet from the Kentucky Department of Alcoholic Beverage Control to apply for the new license, needed in order to continue selling to their Kentucky distributors.

    SB 13, originally a bill to allow for sales of alcoholic beverages on election days, went through several amendments that also added changes to current law in regards to sampling allowances, elections of wet/dry location changes, and numerous updates to the alcoholic beverage licensing system. These added amendments included the creation of the Out-of-State Distilled Spirits/Wine Producer/Supplier Licenses and accompanying fees:

    • “Out-of-state Distilled Spirits/Wine Producer/Supplier” – 50,000 gallons or more produced imported annually. $1550/year or $3100/two years
    • “Limited Out-of-State Distilled Spirits/Wine Producer/Supplier” – 2001 to 49,999 gallons produced imported annually. $260/year or $520/two years
    • “Micro Out-of-State Distilled Spirits/Wine Producer/Supplier” – 2000 gallons or less produced imported annually. $10/year or $20/two years

    If you are an out-of-state wine/spirits supplier that has not yet applied for the new license, or if you wish to begin selling to Kentucky distributors, fill out the application for an Out-of-State Distilled Spirits/Wine Producer/Supplier License and submit to the state, or contact the Kentucky ABC at (502) 564-4850 for further assistance.

    UPDATE: License fees are based off of gallons imported into the state of Kentucky on an annual basis-not overall annual production.

    Limited to On-site Sales, Arkansas Passes Bill to Allow Direct Shipping

    On March 21, 2013, House Bill 1749 became Act 483, signifying its passage into law. Once enacted mid-August, the state of Arkansas will be added to the list of states that allow wineries to ship wine directly to consumers — but with many limitations.

    Aside from the low cost of the license, the requirements under this new shipping law limit the abilities of licensed out-of-state wineries, arguably more than any other state that currently allows direct-to-consumer wine shipping. These limitations include requiring all shipments to be purchased in person at the winery, and affixing a special, ABC-provided, shipping label to each shipment.

    For those wineries interested in navigating these one-of-a-kind requirements, Arkansas consumers will no doubt enjoy the ability to ship home a case of wine after visiting their favorite wineries. No license applications or information are available as of yet. Below is a breakdown of the licensing process, as well as the requirements and restrictions to operate, as stated in the new law:

    Restrictions/Requirements (not limited to the following):

    • Consumers must be physically present at the winery when purchasing the wine to be shipped to Arkansas consumers (onsite orders only)
    • Every shipment must be affixed with a shipping label provided by the ABC, costing up to an additional $10 per label
    • Collect and remit sales and excise tax, “as if the sale took place on the premises of a Arkansas Small Farm Winery”
    • Ship only to a private residence – added difficulty, as shipments require an adult signature
    • Customer volume limit of one case per customer, per quarter

    Licensing Process

    • Registration with the Arkansas Department of Finance and Administration Alcoholic Beverage Control Division (ABC), including a $25 annual fee.
    • Provide the ABC with a copy of the winery’s home-state license as well as the winery’s TTB Federal Basic Permit

    Is the Marketplace Fairness Act Fair for Wineries?


    In short, yes, for a couple of reasons:

    1. Wineries already pay sales tax in most states
    2. The vast majority of wineries will likely be exempt from the law

    So what is it, exactly?

    Senate Bill S. 743, more commonly known as the “Marketplace Fairness Act“, is a pretty simple bill that would give states the ability to require out of state businesses that have “remote sales” in excess of $1 million annually to remit sales taxes. Each state would be able to opt in to the Act, but only after they have simplified their tax structure, either by joining the Streamlined Sales and Use Tax Agreement or to follow the steps outlined in the bill to simplify their sales tax requirements.

    Will it pass?

    With broad bi-partisan support, S. 743 passed out of the Senate with a vote of 69 to 27. However, a tough battle is expected in the House, and therefore the Marketplace Fairness Act has a long way to go before it is enacted with a signature from President Obama. Amazon.com is supporting the bill (presumably because they would like to move forward with their plans to build warehouses in each state to support same-day shipping), while eBay is one of the main voices in opposition.

    What will it mean for wineries?

    A lot hinges on the definition of “remote sales”. Keep in mind the fact that state legislation to allow wine shipments typically includes a provision that also requires wineries to register for and pay sales tax. As it stands in the Senate version, and based on our interpretation of the current language, sales by wineries to states where they are already required to pay sales tax would not be counted when considering the $1 million threshold for remote sales.

    Based on some quick analysis, there are a few hundred wineries in the US that ship more than $1 million worth of wine to consumers each year. BUT, if you include sales only to those states (Alaska, Colorado, D.C., Florida, Iowa, Kansas, Minnesota, Missouri, New Hampshire, Oregon, and Wyoming) that do not require wineries to pay sales tax, then we estimate that less than 25 wineries would exceed the $1 million cap. In other words, the vast majority of the 7,000+ wineries in the US would be exempt from this law.

    Wineries are already accustomed to calculating, collecting, and remitting sales taxes in most states. So, for those wineries that would not be exempt from this law, it would probably not be that big of a deal to add a few more states (initially the states of Iowa, Kansas, Minnesota, and Wyoming) to the list of states to which they would be required to remit sales tax. They already have the technology and processes to do so.

    The bill would take effect, at the earliest, on October 1st, 2013. Once effective, the 22 “Streamlined” sales tax states would begin requiring sales tax for remote sellers with over $1 million in sales. After that, each of the remaining 28 states would choose whether to opt in to the Act and start requiring sales tax from remote sellers.

    Nebraska Tightens up Existing Direct Shipping Law

    LB 230 passed Nebraska’s unicameral legislature and was signed by the Governor on April 24, 2013. The new law will go into effect on September 6, 2013. Nebraska is currently open to direct shipping from wineries and retailers (although there was some debate recently as to whether retailers should qualify under the current law), with easy-to-navigate regulations. The new law introduces several new restrictions that Nebraska direct shippers should be aware of before the new law goes into effect.

    Though the bill’s statement of intent indicated that only manufacturers (wineries) would be able to obtain a license, after amendments to the bill, retailers were added back in and will be eligible for the Nebraska direct shipping license. So, at the end of the day (following a confusing set of hearings and deliberations) currently licensed wineries and retailers will both be able to continue to ship to Nebraska consumers, but with added complexity and requirements.

    Direct shippers will see several marked changes to rules and licensing processes. Here’s a quick breakdown of these and other requirements in the new law – additional descriptions follow below:


    Item Before
    Sept. 6
    After
    September 6
    Nexus status Not required In addition to requiring sales tax payments (common for direct shipping law), the potential to trigger additional tax obligations exists
    Brand identification Not required Retailers and manufacturers may "only ship the brands of alcoholic liquor identified on the application
    Distributor notification Not required Manufacturers (but not retailers) must notify Nebraska distributors carrying the identified brands, of the manufacturer’s intent to apply for a direct shipping license.
    Notification of any violations Not required “…the applicant agrees to notify the commission of any violations in the state in which he or she is domiciled and any violations of the direct shipping laws of any other states…”
    Non-sellable products Not required Required. Shippers may “…not ship any alcoholic liquor products that the manufacturers or wholesalers licensed in Nebraska have voluntarily agreed not to bring into Nebraska at the request of the commission;”
    Excise tax Annual filing Monthly filing
    Common carrier approval Not required Required

    Under current regulations, it was somewhat unclear whether or not direct shippers were required to register to pay sales taxes, though most direct shippers did. The establishment of nexus under the new law could also mean that, in addition to requiring sales tax registration (common for direct shipping law), there is a potential to trigger additional tax obligations. Brand listings will be required as part of the licensing process, and wineries (but not retailers) must notify their Nebraska distributors carrying the listed brands of the manufacturer’s intent to apply for a direct shipping license. If a Nebraska manufacturer or wholesaler volunteers not to sell certain products within Nebraska’s borders, direct shippers would also not be allowed to sell those products under the new law. Furthermore, direct shipper applicants will have to notify the Nebraska Liquor Control Commission of any violations of direct shipping laws of any other states and any violations in the state in which the shipper is domiciled.

    Many of the new laws will require clarification as to how currently licensed direct shippers should proceed in order to remain licensed and compliant – for example, will existing licensees have to notify distributors of their existing direct shipping license on Sept 6, or will this new requirement take effect once their current license expires in April? As we get closer to the September effective date, we will notify our clients and readers of any published guidelines or additional information.