1997 Regular Session
To: Ways and Means
By: Representative Janus
House Bill 1518
AN ACT TO AMEND SECTIONS 27-71-301, 27-71-303, 27-71-307, 21-71-311, 27-71-327, 27-71-331, 27-71-345, 67-3-3, 67-3-27, 67-3-45, 67-3-49 AND 67-3-55, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE LICENSING AND OPERATION OF BREWPUBS IN THIS STATE; TO LIMIT THE AMOUNT OF BEER OR LIGHT WINE WHICH SUCH BREWPUBS MAY MANUFACTURE ANNUALLY; TO ESTABLISH A LICENSE FEE AND EXCISE TAXES FOR SUCH BREWPUBS; TO PROVIDE FOR THE MONITORING OF THE ALCOHOL CONTENT OF BEER OR LIGHT WINE MANUFACTURED, SOLD, KEPT, STORED OR SECRETED BY BREWPUBS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 27-71-301, Mississippi Code of 1972, is amended as follows:
27-71-301. When used in this article the words and terms hereafter mentioned shall have the following definitions:
(a) "State Auditor" shall mean the State Auditor of Public Accounts of the State of Mississippi or any legally appointed deputy, clerk or agent.
(b) "Person" shall include all natural persons or corporations, a partnership, an association, a joint venture, an estate, a trust, or any other group or combination acting as a unit and shall include the plural as well as the singular unless an intention to give another meaning thereto is disclosed in the context.
(c) "Consumer" shall mean a person who comes into the possession of beer or light wine, the sale of which is authorized by Chapter 3 of Title 67, Mississippi Code of 1972, for the purpose of consuming it, giving it away or otherwise disposing of it in any manner except by sale, barter or exchange.
(d) "Retailer" shall mean any person who comes into the possession of such light wines or beer for the purpose of selling it to the consumer, or giving it away, or exposing it where it may be taken or purchased or acquired in any other manner by the consumer.
(e) "Wholesaler" shall mean any person who comes into possession of such light wine or beer for the purpose of selling, distributing, or giving it away to retailers or other wholesalers or dealers inside or outside of this state.
(f) "Commissioner" shall mean the Chairman of the State Tax Commission or his duly appointed agents or employees.
(g) "Sale" shall include the exchange of such light wines or beer for money, or giving away or distributing any such light wines or beer for anything of value.
(h) "Light wines or beer" shall mean beer and light wines legalized for sale by the provisions of Chapter 3 of Title 67, Mississippi Code of 1972.
(i) "Distributor" shall include every person who receives either from within or from without this state, from a brewery, a winery or any other source, light wines or beer as defined in Chapter 3 of Title 67, Mississippi Code of 1972, for the purpose of distributing or otherwise disposing of such light wines or beer to a wholesaler or retailer of such light wines or beer.
(j) "Brewpub" shall mean the premises of any eating establishment in which light wine or beer is manufactured or brewed, subject to the production limitation imposed in Section 13 of House Bill No. , 1997 Regular Session, for consumption exclusively on the premises. "Premises," for the purpose of this paragraph (j), shall mean those areas normally used by the brewpub to conduct business and shall include the selling areas, brewing areas and storage areas. "Eating establishment," for the purpose of this paragraph (j), shall mean an establishment which is licensed to sell light wine or beer and which derives at least forty percent (40%) of its annual gross food and beverage sales from the sale of prepared meals or food.
SECTION 2. Section 27-71-303, Mississippi Code of 1972, is amended as follows:
27-71-303. Upon each person approved for a permit to engage in the business of selling light wines or beer there is hereby imposed, levied and assessed, to be collected and paid as herein provided, annual privilege taxes in the following amounts:
(a) Retailers--for each place of
(b) Wholesalers or distributors--for each
(c) Manufacturers--for each place of
(d) Brewpubs--for each place of
Upon each person operating an airline, bus, boat or railroad car upon which light wines or beer may be sold there is hereby imposed, levied and assessed, to be collected and paid, annual privilege taxes of Thirty Dollars ($30.00) for each airplane, bus, boat or railroad car so operated in this state.
Provided, however, the amount of the privilege tax to be paid for a permit issued for a period of less than twelve (12) months shall be that proportionate amount of the annual privilege tax that the number of months, or part of a month, remaining until its expiration date bears to twelve (12) months, but in no case shall the privilege tax be less than Ten Dollars ($10.00).
SECTION 3. Section 27-71-307, Mississippi Code of 1972, is amended as follows:
27-71-307. In addition to the specific tax imposed in Section 27-71-303, there is hereby imposed, levied, assessed and shall be collected, as hereinafter provided, an excise or privilege tax upon each person engaged or continuing in the business of wholesaler or distributor of light wines or beer equivalent to Forty-two and Sixty-eight One Hundredths Cents (42.684) per gallon upon all light wines and beer acquired for sale or distribution in this state. Such excise or privilege tax also is imposed at the same rate upon each gallon of light wine or beer manufactured by brewpubs, each of which shall accurately and reliably measure the quantity of light wine and beer produced by using a measuring device such as a meter or gauge glass or any other suitable method approved by the commissioner. Such tax is hereby imposed as an additional tax for the privilege of engaging or continuing in * * * business.
The excise tax imposed in this section shall be paid * * * to the State Tax Commission monthly on or before the fifteenth day of the month following the month in which the beer or light wine was manufactured or received in this state. Monthly report forms shall be furnished by the commissioner to the wholesalers, distributors and brewpubs.
Provided that persons operating a railroad dining car, club car or other car in interstate commerce upon which light wines or beer may be sold and who are licensed under the provisions of Section 67-3-27 and any other law relating to the sale of such beverages shall keep such records of the sales of such light wines and beer in this state as the commissioner shall prescribe and shall submit monthly reports of such sales to the commissioner within fifteen (15) days after the end of each month on a form prescribed therefor by the commissioner, and shall pay the tax due under the provisions of this section at the time such reports are filed.
All beer sold, received or stored in this state shall have imprinted by the manufacturer on each bottle, can or other container (including kegs, barrels or such large containers) the word "MISSISSIPPI" or "MS." The word "MISSISSIPPI" or "MS" may be printed, etched, engraved, embossed, ink jet sprayed, or marked thereon by any permanent method that makes the word plain and conspicuous. If the bottle is covered by foil or any other material, the word "MISSISSIPPI" or "MS" shall be printed on the label, or elsewhere on the bottle, can or other container, in a manner to make it plain and conspicuous. The design for each type of crown, lid, label and the Mississippi identifying mark shall be submitted first to the commissioner for his approval before used. No official crowns, lids or stamps with the word "MISSISSIPPI" or "MS" imprinted thereon or any other evidence of tax payment shall be required to be affixed on or to any part of a light wine or malt cooler bottle, can or other light wine or malt cooler container. For purposes of this section, malt cooler products shall be defined as a flavored malt beverage made from a base of malt beverage and flavored with fruit juices, aromatics and essences of other flavoring in quantities and proportions such that the resulting product possesses a character and flavor distinctive from the base malt beverage and distinguishable from other malt beverages.
A licensed wholesaler or distributor of beer or light wine may not import beer or light wine from any source other than a brewer or importer authorized by the commissioner to sell such beer or light wine in Mississippi.
The wholesaler or distributor shall be allowed credit for tax paid on beer or light wine which is no longer marketable and which is destroyed by same when such destruction is witnessed by an agent of the commissioner and when the amount of the excise tax exceeds One Hundred Dollars ($100.00). No other loss will be allowed.
A brewpub shall be allowed credit for beer which has passed through the meter, gauge glass or other approved measuring device and which has been soured or damaged. The brewpub shall record the removal of sour or damaged beer and may take credit after the destruction is witnessed by an agent of the commissioner and when the amount of excise tax exceeds Twenty-five Dollars ($25.00). No other loss shall be allowed.
All manufacturers, brewers and importers of beer or light wine shall file monthly reports as prescribed by the commissioner listing sales to each wholesaler or distributor by date, invoice number, quantity and container size, and any other information deemed necessary.
All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of such chapter, and all other requirements and duties imposed upon taxpayers, shall apply to all persons liable for taxes under the provisions of this chapter, and the commissioner shall exercise all the power and authority and perform all the duties with respect to taxpayers under this chapter as are provided in the sales tax law except where there is conflict, then the provisions of this chapter shall control.
SECTION 4. Section 27-71-311, Mississippi Code of 1972, is amended as follows:
27-71-311. Before any person shall engage in the business of manufacturing light wines or beer, * * * in the business of wholesaler or distributor of light wines or beer or in the business of a brewpub, he shall be required to enter into a good and sufficient bond. The bond shall be made payable to the State of Mississippi, in a sum of not less than Five Thousand Dollars ($5,000.00) nor more than Two Hundred Thousand Dollars ($200,000.00), the amount to be determined by the commission. The bond of a wholesaler, distributor or brewpub shall not exceed the amount of excise tax estimated to be owed by such wholesaler, distributor or brewpub for any sixty-day period. The bond shall be conditioned that he will conduct his business strictly in accordance with the laws of the State of Mississippi, and that he will comply with the rules and regulations prescribed by the commissioner, and pay the taxes imposed under the provisions of this article for the privilege of engaging or continuing in such business. Such bond shall be made in a surety company authorized to do business in the State of Mississippi, and shall be approved by the commissioner. The commissioner shall be authorized to institute suit in the proper court on said bond for any violation of the conditions of said bond.
SECTION 5. Section 27-71-327, Mississippi Code of 1972, is amended as follows:
27-71-327. Any person engaged in the business of manufacturer, distributor, wholesaler or retailer of light wines or beer and any brewpub shall keep such additional records and make such additional reports with respect to the manufacture, receipt, distribution and sale of such light wines or beer as the commissioner may require. It shall be the duty of the commissioner to prescribe and promulgate uniform rules and regulations for keeping such records and making such reports.
SECTION 6. Section 27-71-331, Mississippi Code of 1972, is amended as follows:
27-71-331. If any wholesaler, distributor or brewpub, subject to the provisions of this article, shall fail to affix the stamps required, or to have the same affixed as herein provided, or to otherwise pay any tax due under the provisions of this article, within the time, and in the manner herein provided, the commissioner is authorized to assess and collect such tax, together with interest thereon from the date such tax became due at the rate of one percent (1%) per month; and, in addition to the amount of the tax due and the interest accrued thereon, the commissioner may, in his discretion, assess and collect, from such delinquent taxpayer, a penalty equal to the amount of the tax found to be due.
SECTION 7. Section 27-71-345, Mississippi Code of 1972, is amended as follows:
27-71-345. Any municipality, in which any business licensed under the provisions of Section 67-3-27, Mississippi Code of 1972, may be carried on, shall have the right to impose upon persons engaged in such business an annual privilege tax of not more than fifty percent (50%) of the tax imposed by Section 27-71-303 of this article, and any county, in which any business licensed under the provisions of Section 67-3-27, Mississippi Code of 1972, may be carried on outside of the territory taxed by municipalities, shall have the right to impose upon persons engaged in such business an annual privilege tax of not more than fifty percent (50%) of the tax imposed by Section 27-71-303 of this article; provided, however, that no person engaged in the business of manufacturer, brewpub, wholesaler or distributor of light wines or beer shall be taxed by any municipality other than that in which the warehouse or plant of such wholesaler or distributor, or the premises of such brewpub, is located, nor shall any county impose any such tax upon such manufacturer, brewpub, wholesaler or distributor of light wines or beer if the place of business is located within the jurisdiction of any municipality.
SECTION 8. Section 67-3-3, Mississippi Code of 1972, is amended as follows:
67-3-3. When used in this chapter:
(a) The word "commissioner" means the Chairman of the State Tax Commission of the State of Mississippi, and his authorized agents and employees;
(b) The word "person" means one or more persons, a company, a corporation, a partnership, a syndicate or an association;
(c) The words "manufacturer" and "retailer" include brewpubs licensed pursuant to Article 3, Chapter 71, Title 27, Mississippi Code of 1972, unless otherwise clearly provided.
SECTION 9. Section 67-3-27, Mississippi Code of 1972, is amended as follows:
67-3-27. Before any person shall engage in the business of manufacturer, wholesaler, distributor or retailer of light wines or beer, he shall apply to the commissioner for a license to engage in such business, and shall pay to the commissioner the specific tax imposed by Section 27-71-303, for the privilege of engaging in such business. The commissioner upon receipt of such tax shall issue to such person a privilege license to engage in or continue in such business for a period of time not to exceed one (1) year. No such license shall be issued to the applicant unless such applicant shall have obtained from the commissioner a permit as required in Section 67-3-17. A brewpub shall obtain all necessary federal licenses and permits prior to obtaining any license under this chapter.
All privilege licenses issued under the provisions of this section shall be renewed annually on or before the first day of the month in which the current license expires.
SECTION 10. Section 67-3-45, Mississippi Code of 1972, is amended as follows:
67-3-45. No manufacturer, distributor or wholesale dealer to whom or to which this chapter applies shall:
(a) Make any loan, directly or indirectly, or furnish any fixtures of any kind, directly or indirectly, to any retail dealer in light wines and/or beer;
(b) Have any interest, direct or indirect, in the business of or in the furnishings or fixtures or in the premises used by any such retail dealer in connection with his or its business;
(c) Have any lien on any such property of any such retail dealer; or
(d) Sell light wines and/or beer to any such retail dealer on credit.
This section shall not apply to a brewpub licensed pursuant to Article 3, Chapter 71, Title 27, Mississippi Code of 1972.
SECTION 11. Section 67-3-49, Mississippi Code of 1972, is amended as follows:
67-3-49. It shall be unlawful for any brewer or manufacturer or distributor or wholesale dealer of or in light wines and/or beer to manufacture or knowingly bring upon his premises or keep thereon any beer or wine of an alcoholic content of more than four percent (4%) by weight, or any distilled spirits of any alcoholic content whatsoever. Any person that shall add to or mix with any beer or light wine any alcoholic or other liquid, or any alcohol cube or cubes, or any other ingredient or ingredients that will increase or tend to increase the alcoholic content of such liquor, or any person that shall knowingly offer for sale any liquor so treated, shall be guilty of a misdemeanor and punished as hereinafter provided in this chapter. The commissioner shall take any action he considers necessary to ensure that light wine and/or beer manufactured at a brewpub complies with the provisions of this section.
SECTION 12. Section 67-3-55, Mississippi Code of 1972, is amended as follows:
67-3-55. (1) It shall be unlawful for any retailer to possess for purpose of sale, to sell, or to offer to sell any light wine or beer which was not purchased from a wholesaler in this state who has a permit to sell such light wine or beer, except for beer or light wine that was brewed on the premises of the retailer who holds a permit as a brewpub pursuant to Article 3, Chapter 71, Title 27, Mississippi Code of 1972.
(2) It shall be unlawful for any wholesaler to possess for purpose of sale, to sell, or to offer to sell any light wine or beer which was not purchased from a manufacturer or importer of a foreign manufacturer authorized to sell such light wine or beer in this state.
SECTION 13. (1) No brewpub shall manufacture more than forty thousand three hundred (40,300) gallons of beer or light wine a year.
(2) No licensed gaming establishment or person doing business with a gaming establishment shall be eligible to receive a license as a brewpub.
(3) A brewpub shall be required to offer for sale light wine and beer that is not manufactured on its premises or at another brewpub.
SECTION 14. (1) Any person desiring to engage in business as a brewpub shall file with the commissioner, along with the application required by Section 67-3-17, a certificate issued by a licensed testing laboratory indicating that such laboratory has tested a sample of the applicant's beer or light wine, or both, and that the alcohol content of such sample does not exceed four percent (4%) by weight.
(2) Every brewpub shall be required to submit to random testing by the commissioner to determine whether any beer or light wine being manufactured, sold, kept, stored or secreted by the license holder contains an alcohol content greater than four percent (4%) by weight. The commissioner shall establish and administer testing standards and procedures to be used in such random testing. The brewpub licensee shall be responsible for all costs incurred by the commissioner in conducting random testing under this section.
SECTION 15. Sections 13 and 14 of this act shall be codified as a separate code section within Article 3, Chapter 71, Title 27, Mississippi Code of 1972.
SECTION 16. This act shall take effect and be in force from and after July 1, 1997.