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 firstname.lastname@example.org.
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 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.)
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 email@example.com.
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
- 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
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
FedEx Ground Control Processes for Alcohol Shipments: FedEx Ground requires Alcohol Shippers to sign a special contract addendum outlining labeling and information requirements
- 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
Alcoholic Beverages Control Commission
P.O. Box 3396
Boston, MA 02241-3396
Annie Bones, State Relations – Wine Institute
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.
In addition to being a foundational element of society, “Family” also turns out to be an iconic marketing theme. This is perhaps no more so than in the wine industry where the “family winery” or “family estate” seems so omnipresent among wine brands. In fact, a quick Google search for “family winery” yields 1.7M results — Clif Family, Benziger Family, Mayo Family…
We decided to look at this theme using LabelVision, ShipCompliant’s online tool that allows searches and monitoring of label approvals going back to 1995.
Since 1995, 5.8% of all wine labels approved have had the word “family” associated with it, whether as part of the brand name or located somewhere on the back label. That’s over 74,000 approved labels with “family” located on it somewhere.
Discovered by LabelVision
But then we started wondering about the WHOLE FAMILY. Of the 1.2 million wine labels approved since 1995 we found that some members of the family are more popular with wine brand owners than others.
It’s pretty clear that at least where wine labels are concerned, Dad, Mom and Grandfather are getting lots more love than the cousins.
One thing we should point out about the 73,000 wine labels approved since 1995 with the word “family” included in the label is that this only includes a search for the English spelling of family and does not include use of the word family written in another language. Were we to look for the words “Famille”, “Familia” or “Famiglia” and other common translations we found over 77,000 approved labels.
ShipCompliant’s LabelVision Tool allows user to identify keywords and receive an email alert whenever that keyword shows up on a new label approval, making this addition to our product line up critical for those looking to protect trademarks. However, as you can see from our investigation of the family, LabelVision is also capable of helping researchers delve into numerous marketing trends.
–For Immediate Release–
Virtual seminar addresses wine shipping rule changes and new reporting innovations for wineries.
Boulder, Colo. — On Tuesday, November 11, ShipCompliant, the leading compliance provider for wine, spirits and beer producers, will hold its 9th annual Direct Shipping Virtual Seminar for wineries. Attendees will learn about recent legislative and regulatory changes affecting wine shipping as well as the newest innovations to help wineries streamline reporting. This year’s seminar also includes best practices for end of year reporting. The online seminar is open free of charge to all members of the wine industry.
“The opening of Massachusetts represents the most significant opportunity for direct shippers since Granholm.” said Jeff Carroll, ShipCompliant’s Vice President of Product. “The new rules, requirements, and the status of common carrier licensing will be covered on Tuesday.”
The seminar will take place at 10:00am PST. Hundreds of wine industry representatives attend this seminar each year. ShipCompliant recommends wine club managers, heads of marketing and hospitality, compliance managers, shipping department managers, winery owners, and third party marketers all attend the seminar.
Online registration for the ShipCompliant Virtual Seminar is available now.
Founded in 2002 and located in Boulder, Colorado, ShipCompliant is a leader in automated alcohol beverage compliance services. ShipCompliant provides wine and spirits suppliers and importers with a full suite of web-based software tools to ensure compliance with federal and state regulations for direct and wholesale distribution. ShipCompliant works with the industry’s leading software providers and fulfillment companies to provide fully integrated solutions for direct and three-tier distribution. For more information, please visit: www.shipcompliant.com.
Jeff (at) ShipCompliant (dot) com