Alcohol and Tobacco Tax and Trade Bureau

Federal Excise Tax Increase and Related Provisions

Summary

The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA, Public Law 111–3) (“the Act”), was signed into law on February 4, 2009.  The Act increases the Federal excise taxes on tobacco products, imposes a floor stocks tax, imposes new requirements on manufacturers and importers of processed tobacco, expands the definition of roll-your-own tobacco, and changes the basis for denial, suspension, or revocation of permits.

To date, TTB has published several informational and guidance documents to assist industry members in complying with the Act’s provisions (see Industry Circular 2009–1, TTB Ruling 2009–1 and TTB Procedure 2009–1).  In addition, in final rule T.D. TTB–104, TTB made permanent, with some changes, temporary regulations issued in response to the changes that CHIPRA made to the Internal Revenue Code.  Therefore, effective June 21, 2012, all CHIPRA-related regulations in 27 CFR parts 40, 41, 44, and 45, published in T.D. TTB–78, T.D. TTB–80, T.D. TTB–81, and T.D. TTB–104, are adopted as final.  All documents related to the CHIPRA-related rulemaking are available for public viewing at the Regulations.gov website within Docket No. TTB–2009–0002.

In addition, TTB has updated the floor stocks tax return, as well as several application and report forms, because of the new CHIPRA provisions.  These forms include:

TTB F 5000.28T09

2009 Floor Stocks Tax (also see Instructions for TTB F 5000.28T09)

TTB F 5200.3

Application for Permit to Manufacture Tobacco Products or Processed Tobacco or to Operate an Export Warehouse

TTB F 5200.16

Application for Amended Permit to Manufacture Tobacco Products or Processed Tobacco or to Operate an Export Warehouse

TTB F 5220.6

Monthly Report — Importer of Tobacco Products or Processed Tobacco

TTB F 5230.4

Application for Permit to Import Tobacco Products or Processed Tobacco

TTB F 5230.5

Application for Amended Permit to Import Tobacco Products or Processed Tobacco

TTB F 5250.1

Report - Manufacturer of Processed Tobacco

TTB F 5250.2

Report of Removal, Transfer, or Sale of Processed Tobacco

Additional information is available on the floor stocks tax page.  We also are providing the general guidance below and ask that you please contact the National Revenue Center with any questions.  Please email your questions to ttbtobacco@ttb.treas.gov or call the NRC at 1-877-TTB-FAQS (1-877-882-3277) toll free or at (513)-684-3334.

Federal Excise Tax Increase and Floor Stocks Tax

The Act increases the Federal excise tax on all tobacco products and cigarette papers and cigarette tubes, effective April 1, 2009.  In addition, the Act imposes a floor stocks tax on all tobacco products (except large cigars), cigarette papers and cigarette tubes held for sale on April 1, 2009.  A floor stocks tax is a one-time excise tax placed on a commodity undergoing a tax increase.  The amount of the floor stocks tax is equal to the difference between the new tax rate and the one just previous to it.  Any person who holds tobacco products (except large cigars), cigarette papers, or cigarette tubes is liable for the floor stocks tax on April 1, 2009.  This includes, for example, wholesalers and retail dealers, as well as manufacturers and importers who are holding taxpaid or tax determined products.  Each person is allowed a credit against the tax of $500. Liability for the floor stocks tax must be established by inventory.  The Act stipulates that the floor stocks tax must be paid on or before August 1, 2009.  Because August 1 is a Saturday, the floor stocks tax must be paid on or before the preceding day, July 31, 2009, in accordance with 26 U.S.C. 5703(b)(2)(E). As noted above, more information related to the floor stocks tax will follow.  The tax rates in effect on April 1, 2009, and just previous to the increase, as well as the floor stocks tax, are shown in the table below.  

Product

Tax Rate effective March 31, 2009

Tax Rate effective
April 1, 2009

Floor Stocks Tax Rate

 (difference between
 the rates)

Small Cigarettes - Class A

(Weigh 3 lbs. or less per 1,000)

$19.50 per 1,000
equivalent to:
$3.90 per carton
$0.39 per pack

$50.33 per 1,000
equivalent to:
$10.066 per carton
$1.0066 per pack

$30.83 per 1,000
equivalent to:
$6.166 per carton               $0.6166 per pack

Large Cigarettes - Class B*

(Weigh more than 3 lbs. per 1,000)

$40.95 per 1,000

$105.69 per 1,000

$64.74 per 1,000

Small Cigars

(Weigh 3 lbs. or less per 1,000)

$1.828 per 1,000

$50.33 per 1,000

$48.502 per 1,000

Large Cigars

 

(Weigh more than 3 lbs. per 1,000)

20.719% of sales price but not to exceed $48.75 per 1,000

52.75% of sales price but not to exceed $0.4026 per cigar (or $402.60 per 1,000)

NOT PART OF FLOOR STOCKS TAX

Chewing Tobacco**

$0.195 per pound

$0.5033 per pound

$0.3083 per pound

Snuff**

$0.585 per pound

$1.51 per pound

$0.925 per pound

Pipe tobacco**

$1.0969 per pound

$2.8311 per pound

$1.7342 per pound

Roll-your-own tobacco**

$1.0969 per pound

$24.78 per pound

$23.6831 per pound

Cigarette papers***

$0.0122 per 50

$0.0315 per 50

$0.0193 per 50

Cigarette tubes***

$0.0244 per 50

$0.0630 per 50

$0.0386 per 50

*If more than 6 ½ inches in length, the cigarettes are taxable at the rate prescribed for small cigarettes, counting each 2¾ inches, or fraction thereof, as one small cigarette.
**The tax rate is set forth per pound and a proportionate tax at the same rate applies to all fractional parts of a pound.
***The tax rate for less than 50 cigarette papers or cigarette tubes is not prorated.  If more than 6 ½ inches in length, the cigarette papers or cigarette tubes shall be taxable at the rate prescribed for that product, counting each 2¾ inches, or fraction thereof, as one cigarette paper or cigarette tube, as appropriate.

Permits, reports, and recordkeeping requirements for manufacturers and importers of processed tobacco

As a result of the Act, any person who manufactures or imports processed tobacco will now be required to qualify for and obtain a permit from TTB, and take inventories, submit reports, and keep records as required by regulation.  There is no tax liability on processed tobacco and no bond requirement.  Under the Act, the processing of tobacco does not include the farming or growing of tobacco or the handling of tobacco solely for sale, shipment, or delivery to a manufacturer of tobacco products or processed tobacco.  The Act includes a transitional rule whereby any person engaged in the business as a manufacturer or importer of processed tobacco on April 1, 2009, who submits an application to TTB within 90 days after April 1, 2009 (that is, on or before June 30, 2009) may continue to engage in that business pending final action by TTB on the permit application.

Expansion of the definition of roll-your-own tobacco

The definition of roll-your-own tobacco at 26 U.S.C. 5702(o), as amended by the Act, reads “any tobacco which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes or cigars, or for use as wrappers thereof.”  Specifically, the Act added the words, “or cigars, or for use as wrappers thereof” to the end of the definition.  As a result, existing permit requirements applicable to manufacturers and importers of roll-your-own tobacco will now extend to manufacturers and importers of tobacco for making cigars and tobacco for use as wrappers of cigarettes and cigars.  There is no transitional rule for these new industry members. The effective date for this provision is also April 1, 2009.

Basis for denial, suspension, or revocation of permits

As a result of the Act, the basis for denial, suspension, or revocation of permits has been broadened.  That is, a permit may now be denied for an applicant who has been convicted of a felony violation of a Federal or State criminal law relating to tobacco products, processed tobacco, cigarette papers, or cigarette tubes, or if, by reason of previous or current legal proceedings involving a violation of Federal criminal felony laws relating to tobacco products, processed tobacco, cigarette papers, or cigarette tubes, the applicant is not likely to maintain operations in compliance with the applicable provisions of the IRC.  Similarly, a permit may be revoked or suspended for a person convicted of a felony violation of a Federal or State criminal law relating to tobacco products, processed tobacco, cigarette papers, or cigarette tubes, or if, by reason of previous or current legal proceedings involving a violation of Federal criminal felony laws relating to tobacco products, processed tobacco, cigarette papers, or cigarette tubes, the person is not likely to maintain operations in compliance with chapter 52 of the IRC.  This provision was effective on the date of enactment, that is, February 4, 2009.

Other provisions

As noted above, the general guidance provided here is merely to alert industry members and other interested parties of certain provisions in the Act that have immediate and broad importance.  More detailed information, guidance, and regulatory text, will be forthcoming.  For reference, the text of the Act follows.

Excerpted Text from HR2 Pertaining to Tobacco Products

TITLE VII--REVENUE PROVISIONS

SEC. 701. INCREASE IN EXCISE TAX RATE ON TOBACCO PRODUCTS.

(a) Cigars- Section 5701(a) of the Internal Revenue Code of 1986 is amended--

(1) by striking `$1.828 cents per thousand ($1.594 cents per thousand on cigars removed during 2000 or 2001)' in paragraph (1) and inserting `$50.33 per thousand',
(2) by striking `20.719 percent (18.063 percent on cigars removed during 2000 or 2001)' in paragraph (2) and inserting `52.75 percent', and
(3) by striking `$48.75 per thousand ($42.50 per thousand on cigars removed during 2000 or 2001)' in paragraph (2) and inserting `40.26 cents per cigar'.

(b) Cigarettes- Section 5701(b) of such Code is amended--

(1) by striking `$19.50 per thousand ($17 per thousand on cigarettes removed during 2000 or 2001)' in paragraph (1) and inserting `$50.33 per thousand', and
(2) by striking `$40.95 per thousand ($35.70 per thousand on cigarettes removed during 2000 or 2001)' in paragraph (2) and inserting `$105.69 per thousand'.

(c) Cigarette Papers- Section 5701(c) of such Code is amended by striking `1.22 cents (1.06 cents on cigarette papers removed during 2000 or 2001)' and inserting `3.15 cents'.

(d) Cigarette Tubes- Section 5701(d) of such Code is amended by striking `2.44 cents (2.13 cents on cigarette tubes removed during 2000 or 2001)' and inserting `6.30 cents'.

(e) Smokeless Tobacco- Section 5701(e) of such Code is amended--

(1) by striking `58.5 cents (51 cents on snuff removed during 2000 or 2001)' in paragraph (1) and inserting `$1.51', and
(2) by striking `19.5 cents (17 cents on chewing tobacco removed during 2000 or 2001)' in paragraph (2) and inserting `50.33 cents'.

(f) Pipe Tobacco- Section 5701(f) of such Code is amended by striking `$1.0969 cents (95.67 cents on pipe tobacco removed during 2000 or 2001)' and inserting `$2.8311 cents'.

(g) Roll-Your-Own Tobacco- Section 5701(g) of such Code is amended by striking `$1.0969 cents (95.67 cents on roll-your-own tobacco removed during 2000 or 2001)' and inserting `$24.78'.

(h) Floor Stocks Taxes-

(1) IMPOSITION OF TAX- On tobacco products (other than cigars described in section 5701(a)(2) of the Internal Revenue Code of 1986) and cigarette papers and tubes manufactured in or imported into the United States which are removed before April 1, 2009, and held on such date for sale by any person, there is hereby imposed a tax in an amount equal to the excess of--

(A) the tax which would be imposed under section 5701 of such Code on the article if the article had been removed on such date, over

(B) the prior tax (if any) imposed under section 5701 of such Code on such article.

(2) CREDIT AGAINST TAX- Each person shall be allowed as a credit against the taxes imposed by paragraph (1) an amount equal to $500. Such credit shall not exceed the amount of taxes imposed by paragraph (1) on April 1, 2009, for which such person is liable.

(3) LIABILITY FOR TAX AND METHOD OF PAYMENT-

(A) LIABILITY FOR TAX- A person holding tobacco products, cigarette papers, or cigarette tubes on April 1, 2009, to which any tax imposed by paragraph (1) applies shall be liable for such tax.

(B) METHOD OF PAYMENT- The tax imposed by paragraph (1) shall be paid in such manner as the Secretary shall prescribe by regulations.

(C) TIME FOR PAYMENT- The tax imposed by paragraph (1) shall be paid on or before August 1, 2009.

(4) ARTICLES IN FOREIGN TRADE ZONES- Notwithstanding the Act of June 18, 1934 (commonly known as the Foreign Trade Zone Act, 48 Stat. 998, 19 U.S.C. 81a et seq.) or any other provision of law, any article which is located in a foreign trade zone on April 1, 2009, shall be subject to the tax imposed by paragraph (1) if--

(A) internal revenue taxes have been determined, or customs duties liquidated, with respect to such article before such date pursuant to a request made under the 1st proviso of section 3(a) of such Act, or

(B) such article is held on such date under the supervision of an officer of the United States Customs and Border Protection of the Department of Homeland Security pursuant to the 2d proviso of such section 3(a).

(5) DEFINITIONS- For purposes of this subsection--

(A) IN GENERAL- Any term used in this subsection which is also used in section 5702 of the Internal Revenue Code of 1986 shall have the same meaning as such term has in such section.

(B) SECRETARY- The term `Secretary' means the Secretary of the Treasury or the Secretary's delegate.

(6) CONTROLLED GROUPS- Rules similar to the rules of section 5061(e)(3) of such Code shall apply for purposes of this subsection.

(7) OTHER LAWS APPLICABLE- All provisions of law, including penalties, applicable with respect to the taxes imposed by section 5701 of such Code shall, insofar as applicable and not inconsistent with the provisions of this subsection, apply to the floor stocks taxes imposed by paragraph (1), to the same extent as if such taxes were imposed by such section 5701. The Secretary may treat any person who bore the ultimate burden of the tax imposed by paragraph (1) as the person to whom a credit or refund under such provisions may be allowed or made.

(i) Effective Date- The amendments made by this section shall apply to articles removed (as defined in section 5702(j) of the Internal Revenue Code of 1986) after March 31, 2009.

SEC. 702. ADMINISTRATIVE IMPROVEMENTS.

(a) Permit, Inventories, Reports, and Records Requirements for Manufacturers and Importers of Processed Tobacco-

(1) PERMIT-

(A) APPLICATION- Section 5712 of the Internal Revenue Code of 1986 is amended by inserting `or processed tobacco' after `tobacco products'.

(B) ISSUANCE- Section 5713(a) of such Code is amended by inserting `or processed tobacco' after `tobacco products'.

(2) INVENTORIES, REPORTS, AND PACKAGES-

(A) INVENTORIES- Section 5721 of such Code is amended by inserting `, processed tobacco,' after `tobacco products'.

(B) REPORTS- Section 5722 of such Code is amended by inserting `, processed tobacco,' after `tobacco products'.

(C) PACKAGES, MARKS, LABELS, AND NOTICES- Section 5723 of such Code is amended by inserting `, processed tobacco,' after `tobacco products' each place it appears.

(3) RECORDS- Section 5741 of such Code is amended by inserting `, processed tobacco,' after `tobacco products'.

(4) MANUFACTURER OF PROCESSED TOBACCO- Section 5702 of such Code is amended by adding at the end the following new subsection:

`(p) Manufacturer of Processed Tobacco-

`(1) IN GENERAL- The term `manufacturer of processed tobacco' means any person who processes any tobacco other than tobacco products.

`(2) PROCESSED TOBACCO- The processing of tobacco shall not include the farming or growing of tobacco or the handling of tobacco solely for sale, shipment, or delivery to a manufacturer of tobacco products or processed tobacco.'.

(5) CONFORMING AMENDMENTS-

(A) Section 5702(h) of such Code is amended by striking `tobacco products and cigarette papers and tubes' and inserting `tobacco products or cigarette papers or tubes or any processed tobacco'.

(B) Sections 5702(j) and 5702(k) of such Code are each amended by inserting `, or any processed tobacco,' after `tobacco products or cigarette papers or tubes'.

(6) EFFECTIVE DATE- The amendments made by this subsection shall take effect on April 1, 2009.

(b) Basis for Denial, Suspension, or Revocation of Permits-

(1) DENIAL- Paragraph (3) of section 5712 of such Code is amended to read as follows:

`(3) such person (including, in the case of a corporation, any officer, director, or principal stockholder and, in the case of a partnership, a partner)--

`(A) is, by reason of his business experience, financial standing, or trade connections or by reason of previous or current legal proceedings involving a felony violation of any other provision of Federal criminal law relating to tobacco products, processed tobacco, cigarette paper, or cigarette tubes, not likely to maintain operations in compliance with this chapter,

`(B) has been convicted of a felony violation of any provision of Federal or State criminal law relating to tobacco products, processed tobacco, cigarette paper, or cigarette tubes, or

`(C) has failed to disclose any material information required or made any material false statement in the application therefor.'.

(2) SUSPENSION OR REVOCATION- Subsection (b) of section 5713 of such Code is amended to read as follows:

`(b) Suspension or Revocation-

`(1) SHOW CAUSE HEARING- If the Secretary has reason to believe that any person holding a permit--

`(A) has not in good faith complied with this chapter, or with any other provision of this title involving intent to defraud,

`(B) has violated the conditions of such permit,

`(C) has failed to disclose any material information required or made any material false statement in the application for such permit,

`(D) has failed to maintain his premises in such manner as to protect the revenue,

`(E) is, by reason of previous or current legal proceedings involving a felony violation of any other provision of Federal criminal law relating to tobacco products, processed tobacco, cigarette paper, or cigarette tubes, not likely to maintain operations in compliance with this chapter, or

`(F) has been convicted of a felony violation of any provision of Federal or State criminal law relating to tobacco products, processed tobacco, cigarette paper, or cigarette tubes, the Secretary shall issue an order, stating the facts charged, citing such person to show cause why his permit should not be suspended or revoked.

`(2) ACTION FOLLOWING HEARING- If, after hearing, the Secretary finds that such person has not shown cause why his permit should not be suspended or revoked, such permit shall be suspended for such period as the Secretary deems proper or shall be revoked.'.

(3) EFFECTIVE DATE- The amendments made by this subsection shall take effect on the date of the enactment of this Act.

(c) Application of Internal Revenue Code Statute of Limitations for Alcohol and Tobacco Excise Taxes-

(1) IN GENERAL- Section 514(a) of the Tariff Act of 1930 (19 U.S.C. 1514(a)) is amended by striking `and section 520 (relating to refunds)' and inserting `section 520 (relating to refunds), and section 6501 of the Internal Revenue Code of 1986 (but only with respect to taxes imposed under chapters 51 and 52 of such Code)'.

(2) EFFECTIVE DATE- The amendment made by this subsection shall apply to articles imported after the date of the enactment of this Act.

(d) Expansion of Definition of Roll-Your-Own Tobacco-

(1) IN GENERAL- Section 5702(o) of the Internal Revenue Code of 1986 is amended by inserting `or cigars, or for use as wrappers thereof' before the period at the end.

(2) EFFECTIVE DATE- The amendment made by this subsection shall apply to articles removed (as defined in section 5702(j) of the Internal Revenue Code of 1986) after March 31, 2009.

(e) Time of Tax for Unlawfully Manufactured Tobacco Products-

(1) IN GENERAL- Section 5703(b)(2) of such Code is amended by adding at the end the following new subparagraph:

`(F) SPECIAL RULE FOR UNLAWFULLY MANUFACTURED TOBACCO PRODUCTS- In the case of any tobacco products, cigarette paper, or cigarette tubes manufactured in the United States at any place other than the premises of a manufacturer of tobacco products, cigarette paper, or cigarette tubes that has filed the bond and obtained the permit required under this chapter, tax shall be due and payable immediately upon manufacture.'.

(2) EFFECTIVE DATE- The amendment made by this subsection shall take effect on the date of the enactment of this Act.

(f) Disclosure-

(1) IN GENERAL- Paragraph (1) of section 6103(o) of such Code is amended by designating the text as subparagraph (A), moving such text 2 ems to the right, striking `Returns' and inserting `(A) IN GENERAL- Returns', and by inserting after subparagraph (A) (as so redesignated) the following new subparagraph:

`(B) USE IN CERTAIN PROCEEDINGS- Returns and return information disclosed to a Federal agency under subparagraph (A) may be used in an action or proceeding (or in preparation for such action or proceeding) brought under section 625 of the American Jobs Creation Act of 2004 for the collection of any unpaid assessment or penalty arising under such Act.'.

(2) CONFORMING AMENDMENT- Section 6103(p)(4) of such Code is amended by striking `(o)(1)' both places it appears and inserting `(o)(1)(A)'.

(3) EFFECTIVE DATE- The amendments made by this subsection shall apply on or after the date of the enactment of this Act.

(g) Transitional Rule- Any person who--

(1) on April 1, 2009 is engaged in business as a manufacturer of processed tobacco or as an importer of processed tobacco, and

(2) before the end of the 90-day period beginning on such date, submits an application under subchapter B of chapter 52 of such Code to engage in such business, may, notwithstanding such subchapter B, continue to engage in such business pending final action on such application. Pending such final action, all provisions of such chapter 52 shall apply to such applicant in the same manner and to the same extent as if such applicant were a holder of a permit under such chapter 52 to engage in such business.

SEC. 703. TREASURY STUDY CONCERNING MAGNITUDE OF TOBACCO SMUGGLING IN THE UNITED STATES.

Not later than one year after the date of the enactment of this Act, the Secretary of the Treasury shall conduct a study concerning the magnitude of tobacco smuggling in the United States and submit to Congress recommendations for the most effective steps to reduce tobacco smuggling. Such study shall also include a review of the loss of Federal tax receipts due to illicit tobacco trade in the United States and the role of imported tobacco products in the illicit tobacco trade in the United States.

Page last reviewed/updated: 09/04/2012

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