Over the past few years, we have been writing updates dealing with tax issues in connection with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco ("DABT"). In 2011, DABT lost the Micjo case, which held that Florida Other Tobacco Products Tax ("OTP") only applies to the tobacco product and not the reimbursement charges for Federal Excise Taxes and shipping charges. While there have been other issues in which taxpayer have been challenging DABT taxes, DABT was dealt another blow this week.
At issue, is a product called a cigar wrapper or a blunt wrap. Sold primarily by gas stations and convenience stores, blunt wraps are composed primarily of paper and flavoring, with a very small amount of tobacco. In order to be taxable, the blunt wraps must constitute a tobacco product. A tobacco product for tax purposes is defined as:
[L]oose tobacco suitable for smoking; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but "tobacco products" does not include cigarettes, as defined by s. 210.01(1), or cigars.
With that definition in mind, is a blunt wrap a tobacco product? More specifically, is a blunt wrap "loose tobacco suitable for smoking?"
On January 9, 2015, our first case went to hearing on the taxability of blunt wraps in Brandy's Products Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages & Tobacco ("DABT"). In Brandy's the tax, penalty, and interest amounted to $71,868.23. After hearing the case, Judge Van Laningham turned to the question of whether the blunt wraps met the statutory definition of a "tobacco product." The judge viewed the blunt wraps as "a distinct, cohesive, uniform product . . . cut to a predetermined shape." Defined as such, the blunt wraps would not be considered taxable.
Also raised during the case was the issue of whether the DABT is subject to the 3 year statute of limitations for assessing tax against registered wholesalers of tobacco products who are filing returns. For those not aware of the situation, the DABT essentially have been ignoring the statute of limitations for assessing wholesale taxes for many years. The judge hinted that the 3 year statute of limitations applies, but did not formally rule on the issue.
While a final order has not been issued as of yet, the decision has a profound impact on the Florida blunt wrap industry. If nothing else, it is advisable for a Florida tobacco distributor or manufacturer that has paid tax on these items in the last 3 years should preserve their rights by filing a refund claim. We will keep everyone posted on the outcome of the agency's final order. If this situation may apply to your company or your clients, or if you have any questions about taxes imposed by Florida's Division of Alcohol, Beverages, and Tobacco or the Florida Department of Revenue, then please contact our office for a free initial consultation.
About the author: Mr. Donnini is a multi-state sales and use tax attorney and an associate in the law firm the Law Offices of Moffa, Sutton, & Donnini, P.A., based in Fort Lauderdale, Florida. Mr. Donnini's primary practice areas are Florida sales and use tax and multi-state sales and use tax. Mr. Donnini also practices in the areas of alcohol, cigarette & tobacco wholesale tax, Florida motor fuel tax, and Native American taxation. Mr. Donnini earned his LL.M. in Taxation at NYU. JerryDonnini@Floridasalestax.com or phone at 954-642-9390
AUTHORITY
Brandy's Products, Inc. vs DBPR, Division of Alcohol Beverages and Tobacco, (Recommended Order, DOAH Case No. 14-3496), Feb. 24, 2015.
Brandy's Products, Inc vs DBPR – Amended Complaint
Brandy's Products, Inc vs DBPR – DBPR's Exceptions to Recommended Order
ADDITIONAL RESOURCES
FL TOBACCO DISTRIBUTION UPDATE - ANOTHER REFUND OPPORTUNITY, published April 10, 2014, by Jerry Donnini, Esquire
FL WHOLESALE TOBACCO TAX UPDATE - MIAMI HOOKAH SUES FL DBPR, published January 31, 2014, by Jerry Donnini, Esquire.
FL BEVERAGE AND TOBACCO TAXES UPDATE - GET YOUR REFUNDS!, published November 2, 2013, by Jerry Donnini, Esquire
FL tax controversy Alert – FL 2nd DCA AB&T's Rules on Wholesale Sales Price Definition, published February 8, 2012, by Jerry Donnini, Esquire