Note: This article was updated May 8, 2018 to reflect a more accurate understanding of how the new tax credits are taken. Specifically, eligibility for each level of credit depends on how many gallons have previously been removed at reduced tax rates. The gallonage of wine removed without taking the tax credit does not count for purposes of determining the winery's current rate of tax credit.
Late last Friday afternoon (March 2, 2018) TTB released further guidance on the recently enacted Craft Beverage Modernization and Tax Reform Act. The new guidance finally answered some large and pressing questions about how the law will be implemented, and revealed some very troubling consequences. While the Act created new tax credits that were meant to benefit all wineries large and small, it’s now clear that it falls short of its promise due to its poor drafting and hasty implementation.
In three FAQs added last week to TTB's website the agency confirmed that, because of the way the law was written, only wine produced by the taxpayer who removes the wine is eligible for the new credits. This means that any wine received in bond is not eligible for the new credits -- unless the removing winery has performed an operation on it that increases its volume, such as sweetening, the addition of wine spirits, amelioration (where legal), or the production of formula wines which was "undertaken in the ordinary course of production and not solely for the purpose of qualifying for the credit" (emphasis added). (This means that wineries are not allowed to add concentrate or perform other production activities on wine only for the purpose of qualifying for lost tax credits.) In effect, wineries were told that their common industry practice of custom crushing, which allows wineries to use their excess production capacity to help other wineries who are short on fermentation space, and the thriving business of buying and selling wine in the bulk market, so central to the health of the industry, have suddenly inherited heavy, unexpected tax consequences, putting wineries that rely on them at a competitive disadvantage.
TTB’s guidance also announced that the provision allowing wineries to use their tax credits on wine stored in bond at independent bonded wine cellars (BWCs) is now suspended, because it was allowed in connection with the currently suspended Small Producer Credit. Under the transfer-of-credit provision, small producers were formerly allowed to transfer their tax credits on wine they produced to other taxpayers – an important privilege since most smaller wineries (and many larger ones) simply do not have the warehouse space to store all of their own case goods. Therefore, it is common for wineries to ship their case goods in bond to BWC warehouses that offer storage, consolidation, and shipping services. The BWCs have been removing the wine and paying tax on their winery clients’ behalf, at each winery’s tax rate.
When the new Act suspended the Small Producer Credit, it neglected to extend the transfer provisions. Wineries that could have shipped credit-eligible wine to a BWC in bond without losing their tax credits last year must pay their taxes at the winery before shipment in order to take their tax credit this year – or, if the wine is already stored at a third-party BWC as hundreds of thousands of cases are, the winery must return it to the winery for removal from bond.
Recognizing the cost and impracticality of returning wine physically to the winery from the BWC, TTB created an alternate procedure of operation that will partly make up for the problems, but only for several months. And TTB has not addressed how they will treat wine that has already been removed from BWCs during the first two months of 2018, and whether the alternate procedure can be used retroactively.
The newly announced alternate procedure allows wineries to return wine to the winery, remove and taxpay the wine at their own premises, and send it back to third-party storage through a series of paperwork transfers without physically moving the wine. This solution will be available only until June 30, 2018. I will describe in detail how to use the alternate procedure later in this article.
What does this mean to your winery? There are many operational implications to these changes. I will describe four of them below. Please read the following discussion carefully to see what parts of it apply to you.
First, part or all of the products sold by your winery may be ineligible for the new tax credits, because they were not produced at the winery. The new Act changed what wines would be eligible for the new credits in a very significant way. In the past a small producer could purchase and bottle bulk wine made by another winery, and as long as it removed the purchased wine from its winery, it could claim the credit on that wine. The new credits can only be taken on wine the winery both produced and removed. Wine received from another winery in bond and merely bottled by the winery that removes it does not qualify for the new credits.
The guidance published last week did not address whether the new credits would apply to any of your products that are blends of wines produced by your winery with wines from another winery. After querying TTB directly about the issue we’ve been told that when a winery removes from its bonded premises wine of its own production that has been blended with wine produced by another winery, the winery may claim the credit only for the portion of the wine that it produced. It may not take the credit for the portion of the wine that it did not produce. TTB intends to post official guidance on this question to its website very soon.
Second, many wineries have significant quantities of wine in bond stored off-site at third-party commercial warehouses. If this wine was not produced by your winery, just leave it there: you face no loss of tax credits when the BWC removes that wine at the full tax rate. However, if the wine was totally or partly produced by your winery and therefore is eligible for tax credits, you will be able to take the tax credit only if you return the wine to your winery and taxably remove it at your own bonded premises. In recognition of the logistical difficulties and expense of this requirement to both the wineries and the BWC's, and the fact that wineries and BWCs had no advance notice of this change giving them the opportunity to taxably remove the wine at the BWC before the law went into effect, TTB has instituted for a limited time an easier alternate procedure for wineries to tax determine and taxpay wine stored in bond at bonded wine cellars, described in detail in TTB Industry Circular 2018-1. This procedure may be used any time through June 30, 2018.
Under the alternate procedure, wineries may return wine to their own bonded premises for removal and tax payment through paper documentation and reporting, without any physical movement of the wine -- in other words, using a paper-only transfer -- under the following conditions:
It is good that TTB devised the alternate procedure to permit wineries to take the tax credit, but having to do so will certainly create financial hardships. In order to take advantage of the tax credits on wine stored at third-party BWCs, many wineries will now be compelled to make large tax payments months or even years in advance of sale, due to limitations of storage space at the winery's own premises. In addition to the expense of generating the needed paperwork, the unplanned cost of having to pay all those taxes will obviously put a financial burden on those wineries.
Third, wineries eligible for tax credits that remove more than 30,000 gallons of wine a year will need to implement additional recordkeeping procedures in order to remove wine at the proper tax rate throughout the year, and be aware of the point at which the tax rate changes. Wineries that sell and remove some wine that qualifies for the credit and other wine that does not qualify will have the additional burden of making sure each case is taxpaid at the correct rate depending on how much of the winery's tax credits have been used on wine that has previously been removed this year, and how much of the removed wine was not produced by your winery.
Fourth, small wineries that previously qualified for the Small Producer Credit but do not produce 100% of their wine will now owe tax at the full $1.07/gallon rate -- a huge tax increase they had no way to anticipate. As I said earlier, wine received in bond and bottled by the small producer under its own label formerly qualified for the Small Producer Credit if removed at the small producer’s winery. The 2018 tax law has made such wine ineligible for any credit, requiring the small producers to pay taxes at the highest rate. This was certainly not the intention of the legislature or the administration in enacting this law and accelerating its effective date.
Hopefully, wine industry lobbyists will be able to prevail on Congress to enact emergency corrective legislation before the end of the year to reverse or mitigate some or all of these impacts. However, until corrective legislation is actually passed and confirmed to correct the problems, it is prudent for wineries to consider how the various implications of the new law impact their operations, and protect their interests as best they can.
Latest guidance is published on TTB's website at this link: https://www.ttb.gov/alcohol/craft-beverage-modernization-and-tax-reform.shtml
Any additional guidance TTB publishes here can be found by checking this page regularly. Updates to this page will be announced in TTB's newsletter, available to all persons who sign up on TTB’s website for email notifications.