Virginia Enacts Tobacco Products Tax Law Applicable to Remote Retail Sales of Cigars and Pipe Tobacco

New Virginia regulation addresses excise taxation and other demands with regards to remote retail sales of cigars and pipe tobacco to consumers in the Commonwealth.

On April 27, 2022, the Virginia General Assembly handed Home Bill 1199 and Senate Invoice 748 pertaining to the application of the Commonwealth’s tobacco products and solutions tax on “remote retail sales” of cigars and pipe tobacco and linked demands.

The Typical Assembly had previously passed the payments nevertheless, on April 11 the Governor suggested various variations.  The Standard Assembly recognized the Governor’s suggestions in comprehensive on April 27, producing the expenditures legislation pursuant to Post V, § 6(b)(iii) of the Virginia Structure.  The legislation will choose result on July 1, 2022.

About imposition of the tobacco solutions tax, the regulation does not transform current tax rates, but presents that:

• for “cigars and pipe tobacco merchandise sold by distant retail sellers,” the tobacco items tax fees use to both (a) “[t]he real cost” or (b) “[i]f the true value is not available, the regular of the true charge about the 12 calendar months right before January 1 of the yr in which the sale occurs”
• “‘actual cost’ implies the actual cost paid by a distant retail seller for just about every personal stock preserving unit or SKU”
• the tax will be imposed the moment, “at the time the remote retail seller positioned inside or outside the house the Commonwealth makes a remote retail sale to a purchaser in just the Commonwealth,” and “the remote retail seller [will] be liable for the tax.”

To lawfully make remote retail income of cigars or pipe tobacco to consumers in the Commonwealth, the law requires that the distant retail vendor:

• “complet[e] an application for and be[] granted a license as a distant retail seller”
• “determin[e] regardless of whether economic nexus activity thresholds have been met to register for a dealer’s certification under” the Retail Sales and Use Tax legislation as explained in 58.1-612(C), which call for vendor registration if the dealer:
• “1. Maintains or has in just this Commonwealth, immediately or by an agent or subsidiary, an office environment, warehouse, or location of company of any nature
• Solicits small business in this Commonwealth by staff, impartial contractors, agents or other associates
• Advertises in newspapers or other periodicals printed and printed inside of this Commonwealth, on billboards or posters located in this Commonwealth, or by resources dispersed in this Commonwealth by suggests other than the United States mail
• Helps make regular deliveries of tangible individual home inside of this Commonwealth by implies other than widespread provider. A human being shall be deemed to be creating typical deliveries hereunder if motor vehicles other than individuals operated by a prevalent carrier enter this Commonwealth additional than 12 instances all through a calendar year to produce goods sold by him
• Solicits enterprise in this Commonwealth on a constant, frequent, seasonal, or systematic foundation by means of promoting that is broadcast or relayed from a transmitter in just this Commonwealth or distributed from a site inside of this Commonwealth
• Solicits enterprise in this Commonwealth by mail, if the solicitations are steady, common, seasonal, or systematic and if the dealer benefits from any banking, funding, credit card debt collection, or internet marketing actions taking place in this Commonwealth or added benefits from the spot in this Commonwealth of approved set up, servicing, or fix services
• Is owned or controlled by the similar interests which personal or command a small business found in just this Commonwealth
• Has a franchisee or licensee working below the exact same trade identify in this Commonwealth if the franchisee or licensee is necessary to get hold of a certification of registration less than § 58.1-613
• Owns tangible personalized residence that is for sale found in this Commonwealth, or that is rented or leased to a shopper in this Commonwealth, or gives tangible own house, on acceptance, to consumers in this Commonwealth
• Gets far more than $100,000 in gross income, or other bare minimum amount of money as may possibly be needed by federal regulation, from retail product sales in the Commonwealth in the previous or present-day calendar year, furnished that in analyzing the volume of a dealer’s gross revenues, the income built by all generally managed people as described in subsection D shall be aggregated or
• Engages in 200 or more individual retail sales transactions, or other minimal amount as might be necessary by federal regulation, in the Commonwealth in the prior or existing calendar yr, presented that in determining the complete amount of a dealer’s retail income transactions, the revenue built by all normally controlled individuals as described in subsection D shall be aggregated.”
• “provid[e] for age verification by means of an impartial, third-party age verification support that compares information accessible from a commercially offered databases, or combination of databases, that is regularly utilised by govt businesses and organizations for the function of age and identity verification to the individual data entered by the particular person all through the buying approach that establishes that the particular person is of age” and
• “if economic nexus thresholds are met”:
• “collect[] and remit[] the excise tax pursuant to subsection A of § 1-1021.02” and
• if “excise tax is staying remitted employing the precise cost record technique to compute the excise tax, provid[e] the distant retail seller’s licensed genuine charge record to the Section [of Taxation] for every single SKU to be offered for remote retail sale in the subsequent calendar calendar year. The true charge checklist shall be updated quarterly as new SKUs are added to a remote retail seller’s stock.  New SKUs will be additional using the actual price first compensated for the SKU.”

The law also provides applicable statutory definitions of “cigar,” “consumer,” “pipe tobacco,” “remote retail sale,” “remote retail vendor,” and “SKU” imposes recordkeeping and reporting demands for remote retail sellers and extends present needs associated to the tobacco goods tax to distant retail sellers. There are also supplemental necessities if the distant retail seller can’t generate required bill data and utilizes the actual expense checklist approach to estimate excise taxes.

The law additional supplies that the tobacco products and solutions tax is usually imposed “on tobacco products (i) at the time of retail sale by a retail seller or distributor (ii) at the time the distributor makes, manufactures, or fabricates tobacco products and solutions in the Commonwealth for sale in the Commonwealth or (iii) at the time the distributor ships or transports tobacco goods to vendors in the Commonwealth to be offered by those people vendors.”  (New language emphasised.)

**********

As earlier noted on this blog, the Typical Assembly prolonged the Commonwealth’s tobacco products and solutions tax to distant sellers commencing January 1, 2021, by way of revisions to the funds invoice.  The new legislation reflects that the taxation and regulation of distant sellers carries on to be an region of interest for the Common Assembly.  In the latest yrs, this has also been an location of desire to other States’ legislatures (in enacting or amending their own shipping profits legislation) and to Congress (in extending the Jenkins Act to electronic nicotine delivery methods).  No matter if and how Congress and Condition legislatures carry on to enact or amend regulations regarding shipping and delivery revenue of tobacco merchandise will, of training course, carry on to be significant issues for delivery sellers to follow.

We will keep an eye on for further developments.