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dhdunbar

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dhdunbar last won the day on April 4

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About dhdunbar

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    Retired from ATF and began consulting for DSP's in 2012. When I'm not working, I like to head outdoors. That can mean simply sitting on the deck reading. Regulation bores me. Helping others deal with it does not.

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  1. I am too busy to answer fully, but here are some quick comments: 1. Others are correct. You do not use the term "distilled spirits specialty on the label." You designate it with a fanciful name and truthful and adequate statement of composition. See §5.35. 2. If the specialty contains, as an ingredient, a spirit that conforms to a standard in §5.22, you may list that spirit in the statement of composition. 3. Bourbon is a distinctive product of the US and so TTB protects it in ways that it does not protect other whiskey. Look to the fairly recent revenue ruling on general use formulas for guidance on that. Bottom line, you may not add, to bourbon, any flavor, such as that which might be obtained from storage in a sherry barrel, without changing the class and type designation. 4. Other whiskeys may or may not be deemed to undergo a change in class and type when finished in a used sherry barrel. ISee 5.23(a)(2) - There may be added to any class or type of distilled spirits, without changing the class or type thereof, (ii) harmless coloring, flavoring, or blending materials such as [and therefore not limited too] caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Administrator, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 21⁄2 percent by volume of the finished product. 5. What is customarily employed, in whiskey other than bourbon, in accordance with established usage. I don't want to venture a prediction, but ... 6. Look at Angel's Envy approvals for the bourbon whiskey and other whiskey finished in other than new charred oak. Also look at the way in which many labels split the required statements of composition and what TTB has taken to be the "fanciful name." I did that once. Ii don't recall the details, but seem to recall that bourbon was treated differently from other whiskeys. I'd look too, but right now I'm trying to keep my head above water. So I'll just offer the route I'd try to follow to determine how to proceed if I had the time.
  2. J Norris and others have it right. The direct statement of the prohibition is Sec. 19.351(c), which is headed removals from processing. It states, "Except as provided in paragraph (b)(2) and (3) of this section, spirits may not be transferred from the processing account to the storage account." Why they bury such a basic tenant so deeply in the text is a mystery to me, but they do. The two exceptions mentioned relate to deposits into the production account, not the storage account, but I'd read (c) as saying you can pass them through the storage account on the way to production. I think someone must have had a need for that and petitioned for it. It otherwise makes no sense, but then I can't think of a rationale for the one way gate into processing rule either. The regulation sites nine sections of law on which it is based and none have a one way rule. The operations you may conduct in the storage account are limited. There are rules that allow filling packages, changing packages, mingling and blending, and adding oak chips to spirits and caramel to rum or brandy, all subject to restrictions, etc. That's it. Under §19.325 you can change packages and barrels are packages. However, and I can't find any direct provision affirming this, if the repackaging results in a change in the class and type, it must be done in the processing account. That suggests a detour into the way repackaging bourbon is different than repackaging rye, but I'll not go there now. I can't find any direct requirement that all operations that change class and type, must be done in processing, but there is an indirect path to that conclusion. The indirect is through the requirement you must designate spirits by kind when you put them into a package (barrel) and that you may not change the designation you have given them without the written permission of TTB (§§19.487(a) and (b) respectively]. An approved formula constitutes such written permission. Section §19.348, which is a processing account rule, requires that you must have an approved formula before you "Blend, mix, purify, refine, compound, or treat spirits in any manner which results in a change of character, composition, class, or type of the spirits, including redistillation as provided in Sec.19.314; or produce gin or vodka by other than original and continuous distillation. Section 19.343, which also a processing account rule, provides that you must make a dump record when you dump spirits for use in the manufacturing of a distilled spirits product and when when spirits are dumped for redistillation in the processing account. It also provides that you must prepare a batch record to record the dumping of spirits that are to be used in their entirety in preparing a batch of product manufactured under an approved formula and the use of such spirits in preparing a batch of product manufactured under an approved formula. The dump/batch record is a processing account record (§19.598). Finally, all "manufacturing," which is a term defined only by the context in which it occurs, occurs in the processing account. But its meaning, as TTB uses it, is clear from the definition of processor. A processor is "any person qualified under this part who manufactures, mixes, bottles, or otherwise processes distilled spirits (§19.1)." Further 19.591, which is in the subpart that addresses processing operations discusses manufacturing records. Thus, one an, be a string of syllogistic logic, deduce that specialty items, which are formula products, are all manufactured in the processing account, and so may not be transferred to the storage account after they are manufactured, unless you want to redistill them to neutral spirits.,any It's all a tangle of rules that someone, not me, should set out by type of spirit. A "for bourbon you may," "for American type whiskey other than bourbon you may not," "for whiskey designated as distilled from malt mash you may, but need not," set of rules, saying what you must, must not, and may do with that type of spirit; the criteria and rules for doing anything that you must or may do; the account in which you do it; what records you must keep of the operations and transactions; and what those records must show.
  3. TexCF has it pegged. The citation for allowable returns is §19.452, which lists the reasons you can return something to bond.. :The reasons do not include accepting product back with the intent of removing it again to another customer without first redistilling,, reconditioning or rebottling the spirits, When you make a return for a purpose authorized by §19.452, you may, bjut need not, file a claim for refund of the taxes you had paid 19.452(c). Once the spirits are returned to bond, you treat them in the same manner as any spirits held on the boned premises, i.e., you must withdraw them on determination of tax unless you withdraw them as authorized without payment of tax or free of tax. 19.452(d). So if you don't file a claim, you will pay taxes twice. If you file a claim, you do so under 19.264. You must file that claim within six months of the return to bond. You may file either for a credit or a refund. You must wait for the refund, but you may not anticipate a credit. You may not take it on your tax return until TTB approves the claim (19.266). You take the credit on the next return you file after TTB approves the claim. You annotate the adjustment decreasing taxes as required by 19.267. Note that you can return spirits to the bonded premises for relabelling or reclosing (19.453). If you do that, you do not make a claim. You do not return them to bond. No tax is due on the subsequent removal. You must relabel or close immediately and promptly remove from the bonded premises. The rules at 19.363 apply and you must keep the record required by 19.604. also, you must make a record of the disposition of the spirits after you remove them. It should not be an invoice out of the sequence you are using as your record of tax determination. If you do not know what I'm talking about here, see 19.611 and 19.622. This is already getting too long. Also note that you can find all of this information for yourself by first looking at the rules for returns to bond in the table of contents of part 19, then following that to where it leads,. The sections are usually linked. When you move from one section to the next, look at other sections in the immediate vicinity of both. A word copy of the regulations works wonders when used with "find" functions.
  4. I'm busy but, quickly put, the regulations make no provisions for filing a claim for refund of spiritsz that are not in bond at the time of their destruction. You might think you had to read through all provisions to find this, but the law makes it clear. 26 USC 5008(a)(1)(B) provides that no tax shall be collected in respect of distilled spirits lost or destroyed while in bond. " It goes on to provide that tax shall be collected in the case of voluntary destruction, unless such destruction is carried out as provided in subsection, which provides that you can distill spirits ion bond, but only under such regulations as TTB masy establish. Note that you can remove spirits from the bonded premises for destruction, but only if the surety consents to being liable for the tax if you don't destroy them. The spirits, that is, remain in bond. Spirits that you have taxpaid are not in bond. To destroy them without need to pay tax you must return them to bond, file a claim to get a refund of the taxes previously paid, based on returning them for an authorized reason, in this case for destruction, and then destroying them in the manner permitted by part 19. It is the way the law is written. It is not a decision TTB has made. It's got to follow the law too.
  5. Contact TTB and ask them to provide you with information about how to proceed. If the product happens to be bourbon, TTB itself will have an interest, because bourbon is a distinctive product of the US and TTB will work to protect that. If it is not bourbon, they can tell you who to contact in the markets where the presumed counterfeiter is selling the product and may even ask for an investigation on your behalf. For example, at the request of a foreign government, I once made inquiry into sales of wine that were deemed to be excess production from certain French vineyards that had limited tons per acre requirements. I also once looked into expensive, rare vintage wines - collector quality - that were being imported and sold here aty prices that indicated they were not genuine, and were also diverted into England, it appeared, to avoid the value added tax. I've forgotten the details, but the point is not in the details, it is in the fact that governments take interest in such matters and will investigate them, particularly because counterfeit product is often smuggled product. I know that from working "diversion" cases. Contact TTB's International Trade office, 202-453-2260, and see if they can point you in the correct direction.
  6. No form - you amend the application on line. It is a check the box statement, but you have to get through the template builder they have built in. If you did not apply on permits online, recent changes still allow you to amend using it. I've never done that. But you will have to register as a user first.
  7. No - the spirits must be aged in the oak. Buying wine that has been stored in oak means only that you paying someone else to store something you will still have to store for an additional two years,. I'm not competent to comment on whether distilling wine that has been in oak will benefit the brandy produced. Stipping out the excess verbiage to get to the basic, we get, "In the case of brandy distilled from wine of grapes, which has been stored in oak containers for less than 2 years, the statement of class and type shall be immediately preceded, in the same size and kind of type, by the word “immature”. So, I see your logic. Does the phrase "which has been stored in oak containers for less than two years," modify "brandy" or modify "wine of grape." The answer to that lies in the age statement, in §5.40, again simplified for clarity, and referring only to grape brandy, not other fruit brandy: (b) Statements of age for brandy, Age may, but need not, be stated on labels of brandies, except that an appropriate statement with respect to age shall appear on the brand label in case of brandy (other than immature brandies which are not customarily stored in oak containers) not stored in oak containers for a period of at least 2 years." And age means, by the definition at 5.11, "The period during which, after distillation and before bottling, distilled spirits have been stored in oak containers.
  8. I'll try to get this into perspective before tings spin out of control. You are required to put two kinds of marks on a barrel. One is the lot identification number. The lot identification number ties the barrel to the package record and the package record ties it to the package gauge record. Any number of barrels of the same product filled to the same fill on the same day can have the same lot identification number. See §19.485. the lot identification number is a coded number. If you don't have a number that looks like this, "02A02B," which translates as this is from the 3rd lot filled in on 1/2/2002. You are supposed to follow that code. Next, §19.483(b) and (c) provide that you may use labels as the means for applying prescribed marks if the labels meet the requirements of paragraph (a) of that section (they have to be legible, etc). A proprietor must place the prescribed marks on one side of the case or encased container, or on the head of the package. Now, in addition to the lot identification number I'm sure you are all usng, §19.484 requires a bunch more information and §19.486 requires still more if you repackage the product into another container. But none of this establishes a tax liability and TTB can't assess taxes on the mere prospect that something may have escaped the system. They need to prove the liability; you need to prove the deductions, or, in the case of excise taxes on spirits, prove that any quantities to which the tax has attached, and which were not withdrawn on determination of tax, are accounted for in ways that demonstrate tax was not due. TTB can suspend permits, or collect offers in compromise, or even fine you, if they can find a US Attorney willing to take such a case into federal court, which is not going to happen unless the omission of markings is a part of a fraud that has far more serious consequences. However, Bluestar is correct. If your records don't allow TTB to trace the spirits through the system, AND you can't account for what you are liable, then there is a potential for an assessment on the quantities for which you can't account. Even tough that requires a lot more than leaving a label off a barrel, there is no reason not to affix the label with the staples Bluestar suggests. Hoochware alos prints labels, so most database systems probably do. But you can do it with the permanent marker on a piece of paper you attach with staples.
  9. Any grape brandy not aged in an oak container must be labeled "immature brandy." Acceleration, even if it works, is not an acceptable alternative under TTB's rules. Note that I'm the neutral messenger here. I don't take a position that one is better than the other; I just say that there are legal consequences to not aging grape brandy in an oak container for two years or more. 5.22(d)(1) ... . Fruit brandy, derived from grapes, shall be designated as “grape brandy” or “brandy”, except that in the case of brandy (other than neutral brandy, pomace brandy, marc brandy, grappa brandy, Pisco, Pisco Perú, or Pisco Chileno) distilled from the fermented juice, mash, or wine of grapes, or the residue thereof, which has been stored in oak containers for less than 2 years, the statement of class and type shall be immediately preceded, in the same size and kind of type, by the word “immature”.
  10. TTB can't allow more than one gallon because that limit comes straight from the law. If you want larger consumer sizes, you will have to get congress to make that change. TTB cannot do it by regulation alone. Here is what the law says. §206. Bulk sales and bottling (a) Offenses It shall be unlawful for any person— (1) To sell or offer to sell, contract to sell, or otherwise dispose of distilled spirits in bulk except, under regulations of the Secretary of the Treasury, for export or to the following, or to import distilled spirits in bulk except, under such regulations, for sale to or for use by the following: A distiller, rectifier of distilled spirits, person operating a bonded warehouse qualified under the internal-revenue laws or a class 8 bonded warehouse qualified under the customs laws, a winemaker for the fortification of wines, a proprietor of an industrial alcohol plant, or an agency of the United States or any State or political subdivision thereof. (2) To sell or offer to sell, contract to sell, or otherwise dispose of warehouse receipts for distilled spirits in bulk unless such warehouse receipts require that the warehouseman shall package such distilled spirits, before delivery, in bottles labeled and marked in accordance with law, or deliver such distilled spirits in bulk only to persons to whom it is lawful to sell or otherwise dispose of distilled spirits in bulk. (3) To bottle distilled spirits unless the bottler is a person to whom it is lawful to sell or otherwise dispose of distilled spirits in bulk. (b) Penalty Any person who violates the requirements of this section shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year or both, and shall forfeit to the United States all distilled spirits with respect to which the violation occurs and the containers thereof. (c) "In bulk" defined The term "in bulk" mean in containers having a capacity in excess of one wine gallon.
  11. Whose idea was this and how did they determine they should propose it? Look at a 40 section. It' s ot room for x scu's. If Conglomerate Y has one size for product Z, then product Z takes 2 or three slots depending on turns. If he has four sizes, that multiplies the number of slot's the product fills. That favors him over guess who. Why are large producers taking a stake in "craft?" Let me propose, their distributors want a share of the craft market and acquisition gives the conglomerate a brand to fill that need and not just coincidentally the slots that brand takes up. Retailers get to have the craft segment they need and they get to deal with fewer reps. Decisions involve hard work. A retailer can get both majors and craft with a single sales call. Do you think Lay's makes all those different flavored chips because they want to give the consumer choice? Do you think that is why a major bottler would propose multiple sizes? Am I correct in this? Maybe. Is it the sort of thing that affects most of you? No, because you are not in that fight anyway. Would I as a consumer want my milk to come in many different size packages so that I had to calculate the cost per ounce of brand X vs. brand y and size z vs ....? If not, then why would I want that for bourbon? Why would your customer give a hoot if you package in 700 cl or 750 ml bottles? You don't want to have to deal with all those sku's either. The only client who has ever asked me about this was someone who wanted to package moonshine in pint mason jars. It was the jar perception that was the objective; not the size.
  12. Thanks James - I hadn't heard this phrase before and you sent me on a Google search - Wikipedia augmented by scholar is the way I go. Okay - so it's why, when I approach TTB with a proposal or even a question, I try to know, in advance, more than they do about it and to frame it carefully in my way before they have an opportunity to frame it first in theirs. I want my way in the first position. When they get to set their minds first and take a position, it is a lot harder to steer them to where I want them to go.
  13. Here is the link - https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1513-AC45. You can see everything that TTB has one its plate at: https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=1500&Image58.x=45&Image58.y=16
  14. The pending notice of proposed rulemaking on barrel size must have stirred a hornet's nest, because TTB's regulatory agendas has a spanking new item: See it at: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1513-AC50
  15. Thanks - I figured you got an aging "boost", but you have to pay for two new charred barrels, so $seemed like an expen$ive way to accelerate aging. I guess the economics works out if you crunch the numbes$. :-).
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