MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Finance

By: Senator(s) Minor

AN ACT TO AMEND SECTION 67-3-52, MISSISSIPPI CODE OF 1972, TO REMOVE THE JULY 1, 2000, REPEAL DATE ON A PROVISION OF LAW THAT ENHANCES THE CRIMINAL PENALTIES FOR VIOLATIONS OF CERTAIN LAWS REGARDING THE SALE AND DISTRIBUTION OF BEER OR LIGHT WINE; TO AMEND SECTIONS 27-71-307, 27-71-313, 27-71-331, 27-71-333, 27-71-335, 27-71-347, 27-71-505, 67-3-15, 67-3-57 AND 67-3-69, MISSISSIPPI CODE OF 1972, TO REMOVE JULY 1, 2000, REVERSION PROVISIONS THAT RELATE TO THE REQUIREMENT THAT TAX STAMPS BE AFFIXED TO CONTAINERS OF BEER AND LIGHT WINE AND REMOVE CERTAIN ENHANCED PENALTIES FOR VIOLATIONS OF CERTAIN LAWS REGARDING THE MANUFACTURE AND SALE OF BEER OR LIGHT WINE; TO REPEAL SECTION 67-3-48, MISSISSIPPI CODE OF 1972, WHICH, FROM AND AFTER JULY 1, 2000, REQUIRES THE CHAIRMAN OF THE STATE TAX COMMISSION TO PROVIDE SUITABLE MARKINGS OF IDENTIFICATION FOR THE PURPOSE OF TAXATION OF BEER AND REQUIRES SUCH MARKINGS TO BE USED BY VENDORS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 67-3-52, Mississippi Code of 1972, is amended as follows:

67-3-52. It shall be unlawful for any person holding a permit authorizing the sale of beer or light wine at retail to obtain such beer or light wine from any source outside of the State of Mississippi. Any person who violates the provisions of this section, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment, in the discretion of the court. Any person convicted of violating this section, or any rules or regulations promulgated by the commissioner with regard to the unlawful acts described in this section, shall forfeit his permit. Any person whose permit has been forfeited pursuant to this section shall not be eligible for a permit issued by the commissioner for a period of five (5) years after the date of such forfeiture. In addition, no permit shall be issued for the same location, for which an offender has forfeited a permit pursuant to this section, to a spouse, offspring or sibling of the offender when to do so would circumvent the purposes of this section. The commissioner may assess a retailer who violates this section the amount of excise taxes due on the unlawfully imported beer or light wine, together with a penalty in the amount of four (4) times the state excise taxes due or One Hundred Dollars ($100.00) per case, whichever is greater.

SECTION 2. Section 27-71-307, Mississippi Code of 1972, is amended as follows:

27-71-307. (1) (a) 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 (42.68¢) per gallon upon all light wines and beer acquired for sale or distribution in this state. Such excise or privilege tax is also 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.

(b) 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.

(c) 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.

No official crowns, lids, labels or stamps with the word "MISSISSIPPI" or "MS" imprinted thereon or any other evidence of tax payment is required by this section, or may be required under rule or regulation promulgated by the commissioner, to be affixed on or to any part of a beer, 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.

(2) 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. Any person who violates the provisions of this subsection, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment, in the discretion of the court and shall be subject to license forfeiture following an appropriate hearing before the State Tax Commission.

(3) 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 light wine or 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 light wine or 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.

(4) 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.

(5) 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 3. Section 27-71-313, Mississippi Code of 1972, is amended as follows:

27-71-313. If any person shall willfully evade the payment of any tax levied or imposed under this article, he shall be guilty of a felony, and, upon conviction, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment in the State Penitentiary for not less than one (1) year, nor more than ten (10) years, or by both such fine and imprisonment.

SECTION 4. 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 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 5. Section 27-71-333, Mississippi Code of 1972, is amended as follows:

27-71-333. Whenever it shall be determined by the commissioner that any wholesaler or distributor having in his possession, or engaging in the sale or distribution of light wines or beer, has failed to pay the tax, as provided herein, the commissioner shall compute the correct amount of tax due and unpaid and shall notify the taxpayer of the amount as being actually due and unpaid, and penalties, and interest and shall state in what manner this article is violated. The taxpayer so notified shall be given a period of ten (10) days in which to make objection and show cause why the additional tax, and penalties, and interest, should not be paid. On petition of the taxpayer, a hearing before the commissioner shall be granted, a final decision thereon shall be rendered, and the taxpayer notified as early as practicable. Any tax or deficiency in tax shall be assessed and paid, together with penalties and interest, if any, applicable thereto, within ten (10) days after notice and demand by the commissioner.

If no objection be made to the finding of the commissioner, and no hearing be had before the commissioner within the time herein specified, the findings of the commissioner shall be final. If a hearing be had, and the amount of tax due and unpaid be determined, notice of the amount of such tax, penalties and interest shall be mailed to the taxpayer, and, if not paid within ten (10) days thereafter, the commissioner shall forthwith issue a warrant under official seal directed to the sheriff of any county of the state commanding him to levy upon and sell the real and personal property of the person owing the tax, found within his county, for the payment of the amount thereof, with added damages, interest and cost of executing the warrant, and to return such warrant to the commissioner and pay to him money collected by virtue thereof by a time to be therein specified not more than sixty (60) days from the date of the warrant. The sheriff shall, within five (5) days after the receipt of the warrant, file with the circuit clerk of his county a copy thereof, and thereupon the circuit clerk shall enter in the judgment roll, in the column for judgment debtors, the name of the taxpayer mentioned in the warrant, and in appropriate columns, the amount of the tax, or portion thereof and damages for which the warrant is issued, and the date when such copy is filed; and thereupon the amount of such warrant or warrants so docketed shall become a lien upon the title to and interest in the real and personal property, including choses in action, of the person against whom it is issued in the same manner as a judgment duly enrolled in the office of such clerk. The sheriff thereupon shall proceed upon the same in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgment or attachment proceedings of a court of record; and he shall be entitled to the same fee for his service in executing the warrant as now allowed by law for like service, to be collected in the same manner as provided by law for like service.

SECTION 6. Section 27-71-335, Mississippi Code of 1972, is amended as follows:

27-71-335. Any beer found at any point within this state which has been in the possession of any wholesaler or distributor for a period of more than forty-eight (48) hours and any light wines or beer transported into this state from a point outside this state, or from point to point within this state in violation of the provisions of this article, or any light wines or beer held or possessed by any person within this state on which the legal and proper tax has not been paid when due, whether such person be a wholesaler, retailer or distributor, or individual, and whether such beer be for sale or storage or individual use, except beer in possession of a licensed wholesaler or distributor for a period of time less than forty-eight (48) hours after receipt of same within this state, and light wines or beer held in storage by licensed manufacturers or producers, are hereby declared to be contraband goods, and there is hereby imposed and assessed, as tax and penalty, to be collected by the commissioner, an amount equal to the amount of the excise tax otherwise imposed under the Mississippi Wine and Beer Tax Law, plus a penalty of one hundred percent (100%) of the amount of such tax; or, at the option of the commissioner, the same may be seized by the commissioner or his agents or any sheriff, or other lawful officer, and shall be dealt with in the following manner, to wit:

Such officer seizing said light wines or beer shall immediately make complaint under oath before the proper justice court judge, stating the facts connected with said seizure by him, giving the name or names of the person or persons found in possession or control of such light wines or beer, and giving the name of the owner of such light wines or beer, if the same be known to him, whereupon the said justice court judge shall summon into his court all interested parties, and may issue a writ of seizure, if said property or any part of it is not in the possession of the officer seizing same, for the seizure of said light wines or beer and the summoning of the interested parties into court, as in proceedings for the enforcement of purchase money security interests in the property. If any person claims that the light wines or beer were unlawfully seized or that the tax thereon had been paid prior to such seizure, he may file his claim therefor under oath, stating in detail why said light wines or beer or any of it so seized should not be confiscated, and said affidavit shall state the market value of the property so claimed by him, which amount as so fixed shall determine the jurisdiction of the court as to the amount involved or the value of the property.

If the affidavit fixes the value of the property at Two Hundred Dollars ($200.00) or less, the said justice court judge shall finally dispose of the issue in the case joined under his direction, but if the affidavit fixes the value of the property at more than Two Hundred Dollars ($200.00), the justice court judge before whom the case is returnable shall forthwith present said case to the circuit court of the county or county court having jurisdiction to try the case, where the issue shall, under the direction of the circuit court, or county court, be joined between the State of Mississippi and the said claimant, and the case there tried as in other cases. If no claim be interposed by any party in interest on or before the return day of the summons and writ of seizure, the justice court judge on the return day shall hear the cause, and dispose of the property, and may order such light wines or beer to be destroyed. In the event the property is claimed by any party in interest and issue joined in any court having jurisdiction of the case, such court trying the case shall have the rights of the state and the claimant determined in a trial according to the rules of procedure for such court, and if it be determined that any property involved in said trial was kept or possessed in violation of any provisions of this article or that any tax due thereon had not been paid prior to the seizure of such property, it shall be ordered destroyed. Any person so owning or possessing such light wines or beer shall be guilty of misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00), or be sentenced to serve a period in the county jail of not more than six (6) months, or both in the discretion of the court. But in all such trials and proceedings as provided for in this section the claimant may, before he shall file his claim, be required to execute a solvent bond in sufficient amount to cover all costs that may likely accrue, conditioned that he will pay all costs of the case that may be adjudged against him, and in the event the claimant fails to establish his claim or any part of it to said property, it may be taxed for all, or any part of the costs of the case, and judgment shall go against his sureties for all costs adjudged against him.

SECTION 7. Section 27-71-347, Mississippi Code of 1972, is amended as follows:

27-71-347. Except as otherwise provided in this article, any person who violates any provision of this article, or any rule or regulation promulgated by the commissioner under authority of this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment, in the discretion of the court. Any person convicted of violating any of the provisions of this article, or any rules or regulations promulgated by the commissioner under authority of this article, shall forfeit his permit, and shall not thereafter be permitted to engage in any business taxable under the provisions of this article.

SECTION 8. Section 27-71-505, Mississippi Code of 1972, is amended as follows:

27-71-505. The commissioner may revoke any or all permits issued by him to sell beer or wine manufactured by any person who shall fail or refuse to furnish the information required by Section 27-71-501 of this article, and he may revoke the permit of any person who shall fail or refuse to furnish the information required by Section 27-71-503 of this article, and said revocation may apply to any or all brands of such beverages, if the manufacturer or holder of the permit shall fail or refuse to comply with the rules and regulations promulgated by him.

SECTION 9. Section 67-3-15, Mississippi Code of 1972, is amended as follows:

67-3-15. Any person who shall brew or manufacture or sell any beer or light wine without first having secured a permit and/or license from the commissioner authorizing the brewing or manufacture or sale of such liquor, shall be guilty of a misdemeanor and, upon conviction thereof, be punished by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment in the county jail for not more than one (1) year, or both, in the discretion of the court. Any person so convicted may not apply for any permit or license issued by the commissioner until five (5) years have elapsed from the date of such conviction.

SECTION 10. Section 67-3-57, Mississippi Code of 1972, is amended as follows:

67-3-57. It shall be unlawful for any retailer to possess, sell or offer to sell, or to possess for purpose of sale, any light wine or beer at his place of business before securing a permit required by this chapter.

It shall be unlawful for any person to possess, sell or offer to sell any light wine or beer at his place of business after revocation of his permit or to purchase, to sell or offer to sell any light wine or beer during the period of suspension of his permit.

SECTION 11. Section 67-3-69, Mississippi Code of 1972, is amended as follows:

67-3-69. (1) Except as to Sections 67-3-17, 67-3-23, 67-3-27, 67-3-55 and 67-3-57, any violation of any provision of this chapter or of any rule or regulation of the commissioner, shall be a misdemeanor and, where the punishment therefor is not elsewhere prescribed herein, shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or imprisonment for not more than six (6) months, or both, in the discretion of the court. If any person so convicted shall be the holder of any permit or license issued by the commissioner under authority of this chapter, such permit or license shall from and after the date of such conviction be void and the holder thereof shall not thereafter, for a period of one (1) year from the date of such conviction, be entitled to any permit or license for any purpose authorized by this chapter. Upon conviction of the holder of any permit or license, the appropriate law enforcement officer shall seize the permit or license and transmit it to the commissioner.

(2) (a) Any person who shall violate any provision of Section 67-3-17, 67-3-23, 67-3-27 or 67-3-55 shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment, in the discretion of the court.

(b) Any person who shall violate any provision of Section 67-3-57 shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not more than one (1) year, or by both, in the discretion of the court. Any person convicted of violating any provision of the sections referred to in this subsection shall forfeit his permit, and shall not thereafter be permitted to engage in any business taxable under the provisions of Sections 27-71-301 through 27-71-347.

(3) If the holder of a permit, or the employee of the holder of a permit, shall be convicted of selling any beer or wine to any person under the age of twenty-one (21) years from the licensed premises in violation of Section 67-3-53(b), then, in addition to any other penalty provided for by law, the holder of the permit may be punished as follows:

(a) For the first offense on the licensed premises, the holder of the permit may be fined in an amount not to exceed Five Hundred Dollars ($500.00) and/or the sale of beer or wine on the premises from which the sale occurred may be prohibited for three (3) months.

(b) For a second offense occurring on the licensed premises within twelve (12) months of the first offense, the holder of the permit may be fined in an amount not to exceed One Thousand Dollars ($1,000.00) and/or the sale of beer or wine on the premises from which the sale occurred may be prohibited for six (6) months.

(c) For a third or subsequent offense occurring on the licensed premises within twelve (12) months of the first, the holder of the permit may be fined in an amount not to exceed Five Thousand Dollars ($5,000.00) and/or the sale of beer or wine on the premises from which the sale occurred may be prohibited for one (1) year.

(4) A person who sells any beer or wine to a person under the age of twenty-one (21) years shall not be guilty of a violation of Section 67-3-53(b) if the person under the age of twenty-one (21) years represents himself to be twenty-one (21) years of age or older by displaying an apparently valid Mississippi driver's license containing a physical description consistent with his appearance or by displaying some other apparently valid identification document containing a picture and physical description consistent with his appearance for the purpose of inducing the person to sell beer or wine to him.

(5) If the holder of a permit to operate a brewpub is convicted of violating the provisions of Section 67-3-22(3), then, in addition to any other provision provided for by law, the holder of the permit shall be punished as follows:

(a) For the first offense, the holder of a permit to operate a brewpub may be fined in an amount not to exceed Five Hundred Dollars ($500.00).

(b) For a second offense occurring within twelve (12) months of the first offense, the holder of a permit to operate a brewpub may be fined an amount not to exceed One Thousand Dollars ($1,000.00).

(c) For a third or subsequent offense occurring within twelve (12) months of the first offense, the holder of a permit to operate a brewpub may be fined an amount not to exceed Five Thousand Dollars ($5,000.00) and the permit to operate a brewpub shall be suspended for thirty (30) days.

SECTION 12. Section 67-3-48, Mississippi Code of 1972, which, from and after July 1, 2000, requires the Chairman of the State Tax Commission to provide suitable markings of identification for the purpose of taxation of beer and requires such markings to be used by vendors, is repealed.

SECTION 13. This act shall take effect and be in force from and after its passage.