Current through Register Vol. XLI, No. 50, December 13, 2024
Section 175-4-3 - Suppliers3.1. Licensing of suppliers and sales representatives. -- All suppliers are required to be registered and licensed by the Commissioner prior to entering into any sales transactions with a licensed West Virginia distributor. Every supplier must have a representative licensed to solicit or consummate sales in this state. A supplier must complete an Application for Representative's License, Alcohol Beverage Control Commissioner Form No. ABC-181, which form must be completed and acknowledged by a notary public in the manner provided in the form. The licensing of one (1) sales representative shall not preclude the required registration and licensure of other persons acting as sales representative for the same supplier.3.2. Monthly report of supplier. 3.2.a. Every supplier must file with the Commissioner a properly completed monthly report stating the amount of wine, in liters or liter equivalents, it sold and shipped to licensed West Virginia distributors during the previous month. The monthly report must be filed before the sixteenth (16th) day of the month following the month for which the report is filed and shall be made on Monthly Summary Report of Total Liters Sold, Shipped and Delivered to Distributors, West Virginia Alcohol Beverage Control Commissioner Form and Wine Shipped Into the State of West Virginia State Tax Form WV/WNE-01. A supplier is required to file only one (1) monthly report even though the supplier may have more than one (1) licensed sales representative in the state.3.2.b. A monthly report shall contain the following information: 3.2.b.1. The name and address of the supplier;3.2.b.2. The name and address of the supplier's licensed West Virginia representative. If the supplier has more than one licensed representative, the supplier is required to report only the name and address of the licensed representative primarily responsible for the State of West Virginia. If all of a supplier's representatives are of equal status, the supplier may report the name and address of only one (1) representative;3.2.b.3. The calendar month for which the report is being made;3.2.b.4. The name, address and ABCC license number of every licensed West Virginia distributor to whom the supplier sold or delivered wine;3.2.b.5. The total number of liters the supplier sold and delivered to each West Virginia distributor; and3.2.b.6. The name and business telephone number of the person who prepared the report on behalf of the supplier.3.2.c. All monthly reports shall be acknowledged before a notary public in the manner provided upon such form and shall be considered tax returns under article 10, chapter 11 of the West Virginia Code3.2.d. At the time of shipment, the supplier shall forward to the Commissioner one (1) copy of the invoice of each shipment the supplier made to a licensed West Virginia distributor during the reporting period. The invoice shall identify the licensed West Virginia distributor to whom the shipment was delivered, the items shipped by label identification, the quantity of wine delivered, stated in liters, and the alcohol content of each item sold, shipped and delivered to the distributor.3.2.e. The supplier shall file each monthly report in duplicate with the Tax Commissioner and the ABCC Commissioner. The supplier shall collect and remit to the Tax Commissioner at the close of each month all taxes, including sales taxes, municipal taxes and liter tax, due to the State of West Virginia, together with the supplier's monthly return reflecting the taxes paid for all sales and shipments to residents in West Virginia. The supplier shall provide the ABCC Commissioner with a copy or a receipt of payment of the taxes. A supplier who fails to file a monthly report by the twenty-first calendar day of the month after the reporting period is subject to the penalties provided in article 18, chapter 60 of the West Virginia Code.3.3. Post-offs permitted; limitations and restrictions. -- Post-offs are permitted subject to the limitations and restrictions of this section. 3.3.a. No supplier shall offer to any distributor in this state any post-off which is conditioned upon either: 3.3.a.1. A requirement that the distributor pass through such post-off to any retailer, or3.3.a.2. That the distributor participate in such post-off in such a way that the distributor is required to match, either in whole or in part such post-off. Every post-off shall be offered under equal terms and conditions to every distributor carrying the product of the supplier to which the post-off applies.3.3.a.3. Nothing herein prohibits a distributor from participating in any post-off offered by a supplier or from passing the post-off on to any licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa so long as the same satisfies requirements of this rule and so long as such post-off is passed on to all persons, in whole or in part, equally.3.4. Prohibited supplier sales. -- No supplier, except a farm winery, may sell or furnish wine to a licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa except through a licensed distributor or the Commissioner.3.5. Bond. A supplier's license may not be issued until the applicant has executed a surety bond in the penal sum of ten thousand dollars ($10,000), payable to the State of West Virginia. The surety of the bond shall be executed by a corporate surety authorized to transact business in the State of West Virginia. The bond shall be conditioned on the payment of all fees and taxes prescribed by the law and on the faithful performance of, and compliance with W. Va. § 60-8-1et seq., and the rules promulgated thereto. The bond shall be executed on a Wine Supplier Bond form as prescribed by the commissioner.3.6. Duration of license. The annual licensing period shall begin on July 1 of the year for which an application for licensure is made and shall end on June 30 of the following year.3.7. Fees 3.7.a. The annual fee for a supplier's license is one hundred fifty dollars ($150).If the application for licensure is made at any time from July 1 through December 31, the applicant shall remit with the application the full license fee. If an application for licensure for the expiring fiscal year is filed at any time from January 1 through June 30, the applicant shall remit with the application one half (1/2) of the annual fee, or seventy-five dollars ($75);3.7.b. The annual fee for licensure as a supplier's representative is one hundred dollars ($100). If the application for licensure is made at any time from July 1 through December 31, the applicant shall remit with the application the full license fee. If an application for licensure for the expiring fiscal year is filed at any time from January 1 through June 30, the applicant shall remit with the application one half (1/2) of the annual fee, or fifty dollars ($50);3.7.c. The annual fee is payable to the West Virginia Alcohol Beverage Control Commissioner by certified check, cashier's check or money order. The Commissioner will refund any license fee paid by an applicant who fails to qualify for licensure.3.8. Wine brand registration and review. No supplier, distributor or direct shipper may sell or ship wine to or within West Virginia until a licensed supplier or a licensed direct shipper has registered the wine brand and the corresponding labels of that brand with and paid all registration fees to the Commissioner.3.8.a. The licensed supplier or direct shipper shall submit an application for wine brand registration on Wine Brand Registration, Alcohol Beverage Control Commissioner Form No. ABCC-WS-1-D. The application shall contain the following: 3.8.a.1. The name, address and West Virginia supplier or direct shipper license number of the applicant;3.8.a.2. The name of any licensed West Virginia distributor to which the applicant will sell the wine brand;3.8.a.3. The name of a licensed West Virginia representative of the applicant. If the applicant has more than one (1) licensed representative, it may give only the name of the representative dealing primarily with the West Virginia distributor;3.8.a.4. The brand name of the wine to be registered and the name of the winery or farm which manufactured the wine;3.8.a.5. The class and/or type of wine to be registered;3.8.a.6. The alcohol content of the wine by volume;3.8.a.7. The date of the registration application;3.8.a.8. The signature and title of the person who completed the registration application form; and3.8.a.9. Any other information the Commissioner may specify on the wine brand registration form.3.8.b. The applicant shall submit the brand registration form to the Commissioner along with: 3.8.b.1. Unattached labels of all wines to be registered under the brand and any other information describing each label;3.8.b.2. The Department of Treasury Alcohol and Tobacco Tax and Trade Bureau (TTB) Certificate of Label Approval (COLA);3.8.b.3. The TTB number; and3.8.b.4. A fee of one hundred dollars ($100.00) for each brand to be registered to be paid by certified check, cashier's check, business check or money order payable to the Alcohol Beverage Control Commissioner.3.8.c. The applicant for registration is required to file only one (1) registration application for each brand of wine, regardless of the number of labels or the various sizes of the wine to be sold.3.8.d. Before registering any brand of wine, the Commissioner shall review the brand's labels, including, but not limited to, the alcohol content, corporate or product information, marketing and advertising to determine whether the wine is intended to be marketed to persons under twenty-one years of age.3.8.e. The Commissioner will refund any registration fee submitted for a wine brand that is not registered for sale in West Virginia.3.8.f. Brand registration remains effective for three (3) years. During that time, the supplier or direct shipper must submit each new label added to the wine brand for review by the Commissioner before the label may be sold in West Virginia.3.8.g. A supplier or direct shipper who fails to submit all labels, to register a wine brand, to obtain certification or to pay the registration fee or any licensee who sells or ships unregistered wine in West Virginia is subject to the penalties provided in article 8, chapter 60 of the West Virginia Code.3.8.h. At the end of the three-year registration period, a supplier or direct shipper may renew its brand registration for an additional three years by: 3.8.h.1. Submitting a new application for registration;3.8.h.2. Submitting or resubmitting all labels for each brand to be sold in or shipped to West Virginia;3.8.h.3. Paying a one hundred dollar ($100) renewal fee for each brand to be registered.3.8.i. The Commissioner may remove any wine brand or label that is not renewed at the end of the registration period.3.9. Primary Source.3.9.a. Prior to selling, shipping or delivering any wine to a licensed distributor, a supplier must file a letter of primary source authorization with the Commissioner granting the distributor the right to distribute their brand or brands of wine in West Virginia.3.9.b. All distributor terminations require a notice of termination to be sent to the distributor with a copy filed with the Commissioner subject to the requirements of this rule.