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.
North Dakota legislature has passed, and its Governor has signed into law on April 1, new legislation that will allow wine orders to be shipped from any fulfillment house that obtains a North Dakota “logistics shipper” license, require licensure of common carriers, and make other related changes to the state’s direct shipping law. These new requirements will take effect on August 1, 2013.
North Dakota notified direct shippers that wine shipments could only be shipped from the licensee’s premises back in April of 2010. Fulfillment houses, from which almost half of all direct shipments originate, were not allowed to ship on behalf of the licensee, despite the fact that California considers fulfillment houses with public warehouse licenses (Type 14) to be an extension of the winery’s premises. With the passage of this bill, licensed wineries and retailers will once again be able to use this much valued function of wine shipping.
North Dakota isn’t the only state to restrict the use of third party and shipping services —
- Virginia imposed restrictions on shipments from fulfillment houses in 2009, but established regulations to allow it last November. Virginia now requires out-of-state fulfillment houses to become approved, submit signed winery-fulfillment house contracts to the state, and remit periodic shipment reports.
- New Hampshire enacted a bill in 2011 that not only created a common carrier license, but also created a “black list” of unauthorized shippers from which FedEx and UPS cannot deliver without penalty.
New regulations and laws in New Hampshire, Virginia and North Dakota give these states additional resources and tools to track shipments, enforce direct shipping rules and collect tax on all shipments.
In addition to becoming licensed, fulfillment houses and common carriers wishing to ship wine into North Dakota will be required to report shipments on a monthly basis and will be subject to penalties if they fulfill and/or ship orders from unlicensed warehouses or suppliers. Also, licensed direct shippers will be required to report their use of fulfillment houses in preparing direct shipments. The Alcohol Tax Section of the North Dakota Office of the State Tax Commissioner has already begun drafting license application and reporting forms and plans to make these available ahead of the August 1 effective date in order to give potential licensees time to review the new requirements.
Until the new law takes effect, out-of-state direct wine shippers should continue to ship from their licensed premises. As the August 1 date gets closer, we will keep our clients and readers informed of specifics related to the new regulations.
Since the 2005 Granholm v. Heald Supreme Court decision addressing the interstate direct shipment of wine, the number of states allowing out-of-state wineries to ship directly to consumers has increased from 31 states to 40. The experience for licensed wine retailers (for example: brick and mortar wine shops, California Type 85 or 20 licensees and auction houses) however, has been somewhat different. The number of states previously available to retailers since 2005 has declined from 18 to 14 states and the District of Columbia.
What Retailers Need to Know
To help retailers navigate the market, we’ve created a quick reference guide, including basic information on regulations in the states available for retailer-to-consumer wine shipping. This guide includes links to license applications, statutes, state websites, and volume limits (if applicable). Note that four states on this list are “reciprocal” states. Reciprocity means generally that if state X’s retailers are allowed to ship into state Y, then state Y’s retailers may ship into state X without the need to obtain a direct shipper license or permit in the destination state. These states are: Idaho, Missouri, New Mexico, and California. General requirements that apply to interstate retail shipments also include but are not limited to:
- Customer volume limits (all regions but Alaska)
- Direct shipping permits (Louisiana, Nebraska, Nevada, New Hampshire, North Dakota, Oregon, Virginia, West Virginia and Wyoming)
- Producer consent (Virginia)
- Label registration (Virginia, West Virginia)
- Third party marketing restrictions (Virginia)
- Direct shipment to dry areas prohibited (Alaska, New Hampshire, West Virginia)
Download the Retailer Wine Shipping Guide
All states available to retailers are also available to wineries, and in many cases the regulations for the two shippers are similar. Indeed, permit-required states like North Dakota and New Hampshire allow for retailers and wineries to use the same application process and abide by the same rules in order to direct ship wine to that state. With this observation in mind, it would stand to reason that there is the potential for retailers to be welcomed to the same direct shipping states as wineries; actual practice, however, gives wineries access to three times the amount of the US market share.
In July, 2009, Virginia ABC notified Virginia Wine Shipper licensees they were prohibited from contracting with third parties for selling and shipping wine into Virginia. Since then industry has been working with Virginia ABC to outline allowable uses of third parties. The culmination of these efforts was a new Virginia regulation which took effect in November 2012 that defines how out-of-state Fulfillment Warehouses can secure the necessary approvals from Virginia ABC to continue to do business with Virginia Direct Shipper licensees.
In a temporary work-around, Virginia ABC has allowed Direct Shippers to hold more than one direct shipping license and submit separate monthly shipment reports for each shipping location. This workaround remains in place until existing extra licenses expire (one year from issue) giving Direct Shippers and Fulfillment Warehouses time to secure the new approval. Wineries must continue to maintain their primary Virginia Direct Shipper license, but no licenses for additional fulfillment locations will be approved.
In order to gain the one-time written approval via letter from the Virginia ABC, Fulfillment Warehouses must, for each winery they represent:
- Provide Virginia ABC with a copy of the Fulfillment Warehouse’s valid, home state public warehouse license.
- Provide a written agreement between the Fulfillment Warehouse and the licensed Direct Shipper, listing all shipping locations and indicating the Fulfillment Warehouse is the agent of the Direct Shipper for purposes of complying with Virginia law. Please click here for a sample of a winery/fulfillment house contract addendum that has been recently endorsed by Virginia ABC to satisfy this requirement.
- Maintain for 2 years and make available to Virginia ABC upon request, records of each shipment, including 1) quantity and volume, 2) brands shipped, and 3) names and addresses of Virginia recipients.
Also as of November 2012, Virginia Direct Shipper licensees are no longer able to accept orders from Virginians made through a third party marketer that are not an “agricultural cooperative”. The most common unlicensed third party marketers (marketing portals, third party providers, TPPs, flash sites, e-mail marketers or collective web site hosts) cannot satisfy these requirements and are banned from selling into Virginia on behalf of wineries. If you use such marketers that trigger sales in Virginia, you may wish to discuss this new law with your contractor, as your Virginia Direct Shipper license is at stake.
Contact Terri Cofer Beirne at email@example.com with any questions about these Virginia laws.
– Terri Cofer Beirne, Eastern Counsel, Wine Institute
In July of 2009, the Virginia Department of Alcohol Beverage Control (Virginia ABC) sent out Circular Letter 09-05 to Direct-to-Consumer Wine Shipper and Beer Shipper licensees, prohibiting Direct Shippers from contracting with third parties for receiving or shipping orders on behalf of the licensee. Since then, Virginia has been working with industry members to outline laws and regulations concerning the use of these third parties. The culmination of these efforts is a new Virginia regulation, which will go into effect this Sunday, November 4.
Initially these regulations were submitted in May of 2011 in support of a “fix-it” bill passed in April of 2010. The “fix it” bill – now current law – allows Direct Shippers to ship through approved Fulfillment Warehouses and Marketing Portals. These new regulations define how out-of-state Fulfillment Warehouses and Marketing Portals can become approved by Virginia ABC to do business with Virginia Direct Shipper licensees.
What’s Changing for Direct Shippers Using Fulfillment Warehouses
From 2010 until now, the Virginia ABC has allowed Direct Shippers to apply for more than one direct shipping license and submit separate monthly shipment reports for each shipping location as a temporary workaround. This workaround will remain in place after November 4, but only until the existing extra licenses expire (one year from the date of issue) giving Direct Shippers and Fulfillment Warehouses time to become approved as defined in the new regulations. All wineries must continue to maintain their primary Virginia Direct Shipper license, but no new licenses for additional fulfillment locations are expected to be approved. In order to gain Virginia ABC approval, Fulfillment Warehouses will need to:
- Submit a copy of the Fulfillment Warehouse’s home-state fulfillment services license to the Virginia ABC
- Submit a written contract or addendum to an existing contract, between the Fulfillment Warehouse and the licensed Direct Shipper, listing all shipping locations and indicating that the Fulfillment Warehouse is the agent of the Direct Shipper for purposes of complying with the Virginia direct wine shipper’s law under Va. Code §§4.1-209 and §§4.l-209.1, and Va. Administrative Regulation 3VAC5-70-240
- Maintain for two years and make available to Virginia ABC upon request, records of each shipment, including: quantity and volume, brands shipped, and names and addresses of recipients
Fulfillment Warehouses must submit these documents for EACH Direct Shipper they represent. A sample addendum to be endorsed by the Virginia ABC is currently being drafted and will allow any existing contract between the two parties to merely be referenced, saving time and protecting proprietary information in existing agreements.
What’s Changing for Direct Shippers Using Marketing Portals
Virginia is one of the first states to restrict use of Third Party Marketers by out-of-state Direct Shippers. Beginning November 4, Third Party Marketers must follow these guidelines to become approved in the state:
- The Marketing Portal must be properly organized as an “agricultural cooperative” in its home-state and provide a copy of its license to the Virginia ABC
- Establish and submit to the state a written contract between the Marketing Portal and the Direct Shipper
The most commonly thought of Third Party Marketers (aka Third Party Providers, TPPs, flash sites, email marketers) may find it impossible to satisfy the new requirements as most are not licensed as “agricultural cooperatives”. Beginning November 4, Direct Shippers will no longer be able to accept Virginia orders made through a Third Party Marketer that is not an “agricultural cooperative”.
Three years after the release of Virginia Circular Letter 09-05, final regulation of third party services will be enacted on November 4. Industry members that are affected by these changes should continue to stay informed and be prepared to adapt how they do business with Virginia. Please comment with questions or contact Terri Cofer Beirne, Eastern Counsel, Wine Institute at firstname.lastname@example.org.
Wine Institute Eastern Counsel Terri Beirne has been working since July 2009 with the Virginia ABC Board, and representatives of Wine America and the Virginia wineries to resolve problems created by Virginia ABC Circular Letter 09-05. That Circular prohibited Virginia direct wine shippers from using any third-party service providers, namely fulfillment or pick and pack warehouses. To resolve this problem, Wine Institute drafted legislation and identified sponsors in the 2010 General Assembly to permit a third party, under the direction and control of a Virginia wine shipper license, to solicit and receive orders for wine, and to pack and ship wine.
Like sausage, the bill that started in Virginia was quite different from what passed. Most importantly, the new law allows wine shipments into Virginia from out-of-state shipper licensee through an “approved fulfillment warehouse.” The ABC is charged with developing regulations governing such approval. They will require the fulfillment warehouse to: 1) show ABC its home state license; 2) to maintain/give records that the ABC will describe; and (3) demonstrate it has a contract with a wine shipper licensee designating that fulfillment warehouse as its agent. Wine Institute will actively participate in the creation of these regulations, but it is unlikely they will be finalized before July of 2011.
The new law also creates a Virginia fulfillment warehouse license, as well as a Virginia “marketing portal” license. These two new licenses are available only to agricultural cooperatives (non-profit associations recognized by the Virginia Agricultural Cooperative Act of 5 or more growers within Virginia) operating under the direction and control of a Virginia wine shipper licensee. On behalf of wine shipper licensees, the fulfillment and marketing portal licensees can pack and ship wine for wineries/retailers, or solicit and receive orders for wine through an Internet site.
Virginia continues to permit wineries licensed as Virginia direct wine shippers to offer their wines to Virginians via their web sites. It also continues to allow retailers licensed as Virginia direct shippers to market their own inventory on a web site. However, the new law prohibits any marketing on web sites of wine not owned/possessed by the web site owner, unless done by a Virginia agricultural cooperative licensed as a marketing portal.
Unfortunately, the new law (resulting from HB 279, HB 630, SB 483 and SB 590) also raises the annual license tax for Virginia wine shipper licensees from $65 to $95. It will take effect on July 1, 2010, at which time Virginia ABC will begin to draft the regulations.
-Terri Cofer Beirne, Eastern Counsel, Wine Institute