Do wine and liquor sales put a target on a state’s back?

New Hampshire boast something that its New England neighbors don’t, a non-existent sales tax rate.

Recently New Hampshire decided to flex its tax-free muscles and brag about its advantages over its neighbors. Specifically, State run liquor stores in New Hampshire targeted customers in Maine, Massachusetts, and Vermont.

The New Hampshire state run stores posted an ad on the internet called “No Taxation on Our Libations: Celebrating New Hampshire’s Tax Free Wine and Spirits”.

In the ad they make an offer for customers to receive up to 13% off their total purchase up to $150.00 and $25 off $150 or more in purchases.

The ad further states that “New Hampshire Liquor and Wine Outlets are always tax-free and this month we want to reward customers with something extra by giving our neighboring states sales tax back. Just provide your email address below and we will send the coupon right to your inbox”.

A customer inputs their state and email address and would receive a coupon for double their tax amount. [1] The state selection menu for coupons includes every state in the union.

The discount amount depends on the state of residency. The rule of thumb for neighboring states is New Hampshire’s discount would be double of the state’s sales tax rate. A resident of Massachusetts receives a 13% discount, Vermont a 12% discount and Maine an 11% discount.

So what is the issue with cheap liquor?

Many states’ laws ban personal importation of liquor or only allow a small amount of liquor into the state. In other words, shopping in another state and bringing the liquor back into your home state could be against a specific state’s laws.

Nearly every state restricts the personal importation of alcohol from another state, yet, New Hampshire seems to invite people to come across state lines and seemingly puts no limits on their purchase amounts.

The big question

If someone comes into New Hampshire and purchases vast amounts of liquor which is cheaper and tax free, who is at fault the liquor store or the customer?

One would believe that since the laws are aimed at personal importation, liability would rest with the customer.

However, lately there has been a divergent point of view on who bears legal responsibility.

Let’s call it the New York v. Mississippi model.

New York Model

Back in November of 2017, New York liquor investigators followed a Chevy Suburban that was purchasing liquor at a New Hampshire store.[2] The New York customer purchased 750 liters of Hennessey, 750 liters is such a vast amount that it could not be for personal use. Obviously, the wrongdoer planned to sell this on the streets of New York.

New York arrested the consumer who illegally imported the alcohol from New Hampshire and charged him under New York law.

New York did not charge the New Hampshire liquor stores with any criminal penalties. Also, the State of New Hampshire concluded that no laws were broken when they sold product to the New York resident. [3]

Under the New York model the state goes after the customer that brought the product back into New York and violated New York law. The retailer, mainly because the state lacks jurisdiction over them, is not charged with a crime.

Mississippi Model

In Mississippi it is illegal to ship wine into the state. Often times a consumer desires to visit another state and have wine shipped back to them. If the consumer desires this and has the wine shipped or transported back to them, who is to blame? Presumably, the consumer because they broke the law!

However, Mississippi is turning conventional wisdom on its head and putting the legal onus on the retailer.

In a specific example, Mississippi State Agents visited a retailer, an online retailer, and ordered wine for shipment back to Mississippi. Under the terms of the sale, they agreed that the sale would take place in California and New York, the retailers’ place of business and that the retailer would help arrange for shipping.

Similar to the New York example, the consumer visited a retail location in another state to purchase liquor.

Mississippi steadfastly disagrees with this conclusion and believes it maintains jurisdiction over the retailer. Mississippi maintains that the retailer utilizes the law to get around shipping bans and the retailer targeted the state by operating a website that Mississippi consumer could access to place orders.

Mississippi brought charges against these retailers, the retailers won in a lower court, and the case was accepted by the Mississippi Supreme Court. Jim Hood v. Wine Express Inc. 2018-SA-01259-SCT (Miss Supreme Court 2019)

What is the big difference between the two models?

If Mississippi is successful in its case against out-of-state wine retailers and its model gains traction nationwide, then New Hampshire could be pulled into another state to face charges. The consumer itself would be absolved of wrongdoing as the sanction shift to the retailer.

Mississippi, in its legal case, claims that a major reason for jurisdiction over out-of-state retailers is that the retailers targeted the state via a website. They make this claim even though the retailers were passive sellers that never targeted the market with advertising aimed at Mississippi consumers.

New Hampshire on the other hand, actively targets residents of other states and especially targets border state residents.

Under the Mississippi model, New Hampshire would become the guilty party and the consumer who imported alcohol into Maine, Massachusetts, New York, or Vermont would not face any consequences.

How will this end up?

The Mississippi model would turn jurisdiction into a different concept, the state would extend jurisdiction to punish someone in another state over an act that is perfectly legal in that player’s state. While at the same time it does not take action against someone inside its borders committing an illegal act.

Clearly, there’s a crossed-up game, the person that performs a legal act in another jurisdiction is brought into your jurisdiction for breaking the law. While the person that broke the law inside your jurisdiction is not charged.

The New York model’s effect differs. The law breaker, the personal importer and violator of the law is charged with a criminal offense. The out-of-state retailer that perform a perfectly legal act in its states is not charged with the crime.

Conclusion

The reader can choose which model of law enforcement is superior, both are different and the Mississippi model could become revolutionary in its application.

As for this situation, applying the Mississippi model would drag New Hampshire into the courts of neighboring states and leave it with some bruising court battles with once friendly neighbors!

The liquor world is never dull!

 

[1] https://www.gazettenet.com/Liquor-commission-celebrates-freedom-from-taxes-with-sale-27535560

[2] https://www.nhpr.org/post/hennessy-bootlegger-pleads-guilty-charges-ny#stream/0

[3] https://www.nhpr.org/post/ag-clears-nh-liquor-commission-wrongdoing-after-months-long-investigation#stream/0

2 thoughts on “Do wine and liquor sales put a target on a state’s back?”

  1. Nope, none of above is superior. The federal law is applicable to everyone in all the 50 States without any exception. The federal limit of bringing alcohol from one State to another without a license is 20 gallons. It is also legal to bring over 20 gallons as long, as purchaser can prove that the liquor is not for resale. A large wedding party at which alcohol will be poured for free could be a good example.

    Personal importation, if read these laws closely, is for bringing alcohol from out of States. They are inapplicable to transportation from one State to another. These laws of the States are enforced by federal agents at the port of entry. There is definitely no any port entry between NY and MS, or between NH and NY.

    The one, who transported almost 10 times over federal limit was in violation unless he could prove that 200 gallons were not intended to be for resale. It, probably, would be very hard to do.

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