Just a friendly reminder that beginning June 1st, 2008, Illinois will require a permit for all direct-to-consumer wine shipments to the state. A winery must receive the permit before it may begin/resume shipment to the state. In 10 days, under the newly-promulgated wine shipping law, wineries and retailers that have been shipping to Illinois under a reciprocal agreement will no longer be able to ship to the state without a permit. The Illinois Liquor Control Commission has not given any indication of a grace period for shipping while applications are in process.
For expedient processing, an applicant should submit a copy of its state liquor license along with the Out-of-State Winery Shipper’s License application. An applicant must also submit the brand registration form (for brands not already registered with the state) prior to, or simultaneously to the submission of the application. In addition, a winery must register for sales and excise tax. An accelerated tax permit approval process is available for those wineries which have a distributor in state. In any event, and with time running out, electronic submissions will be approved faster than those send via conventional mail. See our previous post for more detailed instructions and a checklist for the application process with links to forms.
Also, as a reminder, Georgia will open up on July 1st, and Wisconsin will begin their new permit system on October 1st. We’ll have the full details of the application process in both states as they become available.
Beginning June 1, 2008 wineries will be required to have an “Out-of-State Winery Shipper’s License,” file reports, obtain a bond and pay sales and excise tax in order to ship wine to consumers in Illinois. Wineries with a valid Shipper’s License issued by the Illinois Liquor Control Commission will be permitted to ship up to 12 cases a year to a consumer who is 21 years of age or older, an increase over the 2 case annual limit in the reciprocity law being replaced. Illinois Direct-to-Consumer Permit applications are now available on the Wine Institute website.
California wineries should select option F, “OUT-OF-STATE WINERY SHIPPER’S LICENSE” as type of license being applied for.
The application process separates wineries into 3 classes based on the total number of gallons manufactured annually. The cost of the annual license for each class varies. Class 1 wineries have a $150 license fee and produce less than 250,000 gallons annually. Class 2 consists of wineries producing more than 250,000 gallons but less than 500,000 gallons annually. The license fee for Class 2 is $500.00. Class 3 wineries have a $1000.00 license fee and manufacture 500,000 gallons or more annually.
A copy of the applicant’s state manufacturer’s liquor license (Class 02 Winegrower’s license) must be submitted with the license application.
The license must be renewed annually.
Registration Statement (For Brand Registration)
Brands not already registered with the Commission must be registered prior to, or simultaneously with, the direct shipper application filing. The brand registration requirements are fulfilled by submitting the Registration Form and copies of all federal label approvals for products being shipped into Illinois.
In the first column titled Name, Address, City etc., write “N/A” If sales are only made to consumers.
In the second column titled Trade-Mark Brand, or Name of Item, list brands not already registered with the Illinois Liquor Control Commission.
In the third column titled Geographical Territory, write “Illinois”.
In the fourth column titled Time Period, write “Until further notice”.
Note: If brands are already registered, you do not need to complete this form.
Class 1 wineries who will not produce more than 25,000 gallons annually may apply for self-distribution privileges by completing the “Self-Distribution Exemption” form. Wineries qualifying for the self-distribution exemption may not sell more than 5,000 gallons to retail licensees in Illinois each year. Wineries producing more than 25,000 gallons annually, including all Class 2 and 3 wineries are not eligible to self-distribute in Illinois.
Applicants must obtain a bond for the amount of $1000 or 2x their estimated monthly tax liability, whichever is greater, up to a maximum of $100,000. (See RL-26-W, Step 2: “Figure your tax due” for alcohol content breakdown with corresponding excise tax rates to estimate monthly tax liability.) Form RL-1, Liquor Tax Statement of Liability must be submitted with the bond paperwork. In addition you will need to submit one of the following:
Form REG-4-A “Financial Responsibility Bond”
Form REG -4-D “Financial Institution Irrevocable Letter of Credit Bond”. or
a cashiers check to cover the cost of a Certificate of Deposit that the Illinois Department of Revenue will purchase for you.
Applications to Register to Pay Sales and Excise Taxes
Illinois requires applicants to register their business with the Illinois Department of Revenue (IDOR). You do not need a separate application to register to pay the Liquor Tax. IDOR will automatically register you to pay this excise tax using the application you submitted to receive your wine shipper license. The license certificate you receive from the Illinois Liquor Control Commission will contain your liquor license number as well as an Illinois Business Tax Number (IBT). This IBT must be used to file and pay liquor tax. However, you will need to complete a separate application to register for the sales/use tax that you will need to file and pay.
IDOR will automatically send you a request for an application once you have been registered for the liquor tax or you can register online. You may register by visiting the IDOR website or by completing and mailing in Form REG-1. Applications submitted electronically will be processed significantly faster than applications submitted by mail. When completing Form REG-1, Step 3, question 11, write “Direct Wine Shipper”. When completing Step 3, question 13, applicants should select “sales to Illinois Consumers” and “Liquor at Retail” as type of business.*IMPORTANT: WAIT UNTIL AFTER YOU RECEIVE YOUR SHIPPER’S LICENSE BEFORE FILING THE REG-1 TO AVOID LICENSING COMPLICATIONS.*
Once the application is processed you will receive an Illinois Business Authorization Certificate of Registration. Your Sales/Use Tax Account Identifier Number will be listed on the certificate. Keep track of the number because it will be needed on sales/use tax payment forms.
Note: Do not confuse your identification numbers. You will receive a Liquor License number, an Illinois Business Tax number (IBT), and a Sales/Use Tax Account number. The Sales/Use Tax Account Number is sometimes also referred to as an IBT number. However; this number is different from the IBT number that is used to pay the liquor tax.
Winery Shippers are required to file and pay state sales tax and excise tax on all shipments to IL consumers. The state sales tax is 6.25%; payment schedules will depend on the estimated amount of total sales. Local sales tax is not required.
Excise taxes must be filed and paid every month, including months in which 0 shipments occurred. Once your Winery Shipper’s License has been issued, the IDOR will mail you tax form RL-26-W “Liquor Direct Wine Shipper Return.” Winery Shippers have the option of filling the form electronically on the IDOR Website or by mail. Winery Shippers who choose to file and pay electronically will receive a discount of 2% if their return and payment are filed and paid on time. This discount is not available to those that use the paper method.
The Illinois Direct-to-Consumer Permit applications are now available on the Wine Institute and Illinois Liquor Control Commission’s websites. Beginning June 1, 2008 wineries will be required to have an “Out-of-State Winery Shipper’s License,” file reports, obtain a bond and pay sales and excise tax in order to ship wine to consumers in Illinois. Wineries with a valid Shipper’s License issued by the Illinois Liquor Control Commission will be permitted to ship up to 12 cases a year to a consumer who is 21 years of age or older, an increase over the 2 case annual limit in the reciprocity law being replaced.
The application process separates wineries into 3 classes based on the total of gallons manufactured annually. The license for each class varies. Class 1 wineries have a $150 license fee and produce less than 250,000 gallons annually. Class 2 consists of wineries producing more than 250,000 gallons but less than 500,000 gallons annually. The license fee for Class 2 is $500.00. Class 3 wineries have a $1000.00 license fee and manufacture 500,000 gallons or more annually. A copy of the applicant’s state manufacturer’s liquor license (Class 02 Winegrower’s license in CA) and copies of all federal label approvals must be submitted with the license application. Brands not already registered with the Commission must be registered prior to, or simultaneously with, the direct shipper application filing. Class 1 wineries may apply for self-distribution privileges by completing the “Self-Distribution Exemption” form. Class 2 and 3 wineries are not eligible to self-distribute in Illinois.
Once the Illinois Winery Shipper’s License is issued, the Illinois Department of Revenue will mail the permit holder the Liquor Direct Shipper Wine Return Tax form. Excise taxes must be paid monthly and there is a $1000.00 bond requirement. The permit holder has the option to pay excise taxes electronically or by mail. Permit holders are responsible for paying sales tax. The Department of Revenue has not published instructions for sales tax registration at this time. As soon as the information becomes available it will be posted on the Wine Institute website. Should you have any questions please contact the Wine Institute State Relations Department at 415-356-7530.
The issue of direct shipments by retailers to consumers has become a very hot topic of late. As of today, retailers can ship to less than half of the number of states to which producing wineries can ship. The Specialty Wine Retailers Association is fighting hard with both legislative efforts and litigation to open more states for retail to consumer shipments. The heated battle in Illinois, where out-of-state retailers recently lost the ability to ship to consumers under HB 429, raised national awareness to this issue.
The fundamental question is whether the decision in Granholm v. Heald that said states must treat in-state and out-of-state wineries evenhandedly should also apply to in-state and out-of-state retailers. R. Corbin Houchins recently made two posts (September 18th and October 5th) that do an excellent job of highlighting the legal questions that come into play when attempting to extend Granholm to retailers. In his October 5th post, Mr. Houchins indicates his disagreement with the reasoning of the recent and important Arnold’s Wines v. Boyle opinion, which upheld discrimination against out-of-state retailers in New York.
There is a very interesting recent article, with substantial background materials for lawyers who do not practice in the subject area, on FindLaw.com titled “The Fight Over State Laws Favoring In-State Alcohol Purveyors: Do Such Laws Violate the Dormant Commerce Clause?” that also examines the important ruling in Arnold’s Wines. This article is definitely worth reading.
The Court has had to examine the intersection between the dormant Commerce Clause idea and the Twenty-First Amendment a number of times. Two years ago, in the seminal case of Granholm v. Heald, the Court appeared to send a message that while the Twenty-First Amendment may indeed empower states in some ways, it does not trump the anti-discrimination, anti-balkanization norm of the Commerce Clause.
The federal district judge in the recent Arnold case in New York properly acknowledged the importance of Granholm. Nevertheless, the judge held that Granholm’s ban on state discrimination against out-of-staters applied only to state laws regulating producers of alcohol, not laws (such as the one at issue in the recent New York case) that regulated wholesalers or retailers.
The New York judge’s interpretation of Granholm is, I believe, in error.
The Arnold’s Wines case will likely impact current (Texas, California) and future (Illinois?) cases in the battle over retail to consumer shipments and could possibly end up in the Supreme Court, where a favorable decision could potentially open the legislative floodgates for retailers as Granholm did for wineries in 2005.
Illinois Governor Rod Blagojevich yesterday signed House Bill 429 which goes into effect June 1, 2008. The new law dramatically expands consumer choice for winery-to-consumer purchases made by Illinois wine consumers. Under the new law, wineries in all 50 states may purchase a permit to ship. Under the old law, wineries in just five states, including Illinois, were allowed to direct ship to Illinois consumers. The trading network of states with so-called ‘reciprocal’ wine shipping arrangements has decreased from a dozen to just five: New Mexico, Wisconsin, Iowa, Oregon (changes to permit law in January 2008) and Illinois (changes to permit law in June 2008).
“The new law is a boon for winery-to-consumer shipments, and long overdue, but unfortunately it corks out-of-state retailers. An amendment, widely supported by Illinois consumers and Free the Grapes! would have allowed out-of-state retailers the same privileges as wineries. It was defeated by powerful Illinois retailers and wholesalers,” said Jeremy Benson, executive director, Free the Grapes!, a winery-consumer grassroots coalition.
Governor Blagojevich signed HB 429 yesterday, temporarily ending an extremely tough battle to pass wine shipping legislation in Illinois. The new laws will not take effect until June 1st, 2008. Illinois will move from a reciprocal state to a permit state for winery direct shipping and will also enable limited self distribution for wineries that produce less than 25,000 gallons per year.
HB 429 will allow Illinois retailers to ship to consumers, but will prohibit out of state retailers from doing the same. This will almost certainly be challenged by the Specialty Wine Retailers Association, who will seek evenhanded access to shipping directly to Illinois consumers.