[Title 27 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2007 Edition]
[From the U.S. Government Printing Office]

[[Page i]]

Parts 40 to 399

Revised as of April 1, 2007

Alcohol, Tobacco Products and Firearms

________________________

Containing a codification of documents of general
applicability and future effect

As of April 1, 2007
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register

[[Page ii]]

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As of April 1, 2007

Title 27, Parts 1-399

Revised as of April 1, 2007

Is Replaced by

Title 27, Parts 1-39

and

Title 27, Parts 40-399

[[Page v]]

Table of Contents

Page
Explanation................................................. v

Title 27:
Chapter I--Alcohol and Tobacco Tax and Trade Bureau,
Department of the Treasury 3
Finding Aids:
Table of CFR Titles and Chapters........................ 391
Alphabetical List of Agencies Appearing in the CFR...... 409
List of CFR Sections Affected........................... 419

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----------------------------

Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 27 CFR 1.1 refers to
title 27, part 1, section
1.

----------------------------

[[Page vii]]

EXPLANATION

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Title 1 through Title 16.................................as of January 1
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[[Page viii]]

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[[Page ix]]

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Raymond A. Mosley,
Director,
Office of the Federal Register.

April 1, 2007.

[[Page xi]]

THIS TITLE

Title 27--Alcohol, Tobacco Products, and Firearms is composed of
three volumes, parts 1-39, parts 40-399, and part 400 to end. The
contents of these volumes represent all current regulations issued by
the Alcohol and Tobacco Tax and Trade Bureau, Department of the
Treasury, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice, as of April 1, 2007.

For this volume, Elmer Barksdale was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Ann Worley.

[[Page 1]]

TITLE 27--ALCOHOL, TOBACCO PRODUCTS AND FIREARMS

(This book contains parts 1 to 39)

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Part

chapter i--Alcohol and Tobacco Tax and Trade Bureau,
Department of the Treasury................................ 1

Abbreviations Used in This Chapter:
ATF = Alcohol, Tobacco and Firearms. T.D. = Treasury Decision. TTB =
Alcohol and Tobacco Tax and Trade Bureau.

[[Page 3]]

CHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, DEPARTMENT OF THE
TREASURY

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Editorial Notes: 1. The regulations appearing in this title were
originally issued by the Federal Alcohol Administration, which was
abolished by Reorganization Plan No. III, Apr. 2, 1940, 5 FR 2107, 3
CFR, 1940 Supp. Treasury Order 30, June 12, 1940, 5 FR 2212, issued
under sections 2 and 8 of Reorganization Plan No. III (54 Stat. 1232)
provided that these regulations continue in effect as regulations of the
Bureau of Alcohol, Tobacco and Firearms.

2. Nomenclature changes to chapter I appear by T.D. TTB-44, 71 FR
16920, Apr. 4, 2006.

SUBCHAPTER B--TOBACCO
Part Page
40 Manufacture of tobacco products and
cigarette papers and tubes.............. 5
41 Importation of tobacco products and
cigarette papers and tubes.............. 61
44 Exportation of tobacco products and
cigarette papers and tubes, without
payment of tax, or with drawback of tax. 97
45 Removal of tobacco products and cigarette
papers and tubes, without payment of
tax, for use of the United States....... 137
46 Miscellaneous regulations relating to
tobacco products and cigarette papers
and tubes............................... 144
SUBCHAPTER C--FIREARMS
53 Manufacturers excise taxes--firearms and
ammunition.............................. 163
SUBCHAPTERS D-E [RESERVED]
SUBCHAPTER F--PROCEDURES AND PRACTICES
70 Procedure and administration................ 226
71 Rules of practice in permit proceedings..... 356
72 Disposition of seized personal property..... 374

[[Page 4]]

73 Electronic signatures; electronic submission
of forms................................ 383
SUBCHAPTERS G-L [RESERVED]
SUBCHAPTER M--ALCOHOL, TOBACCO AND OTHER EXCISE TAXES
194-399 [Reserved]

Supplementary Publications: Additional supplementary publications are
issued covering individual parts of the Alcohol, Tobacco and Firearms
Regulations, the Tobacco Tax Guide, and Regulations Under Tax
Conventions.

[[Page 5]]

SUBCHAPTER B_TOBACCO

PART 40_MANUFACTURE OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES--Table

of Contents

Subpart A_Scope of Regulations

Sec.
40.1 Manufacture of tobacco products and cigarette papers and tubes.
40.2 Territorial extent.

Subpart B_Definitions

40.11 Meaning of terms.

Subpart C_Taxes

40.21 Cigar tax rates.
40.22 Determination of sale price of large cigars.
40.23 Cigarette tax rates.
40.24 Classification of cigarettes.
40.25 Smokeless tobacco tax rates.
40.25a Pipe tobacco and roll-your-own tobacco tax rates.
40.26 Persons liable for tax.
40.27 Assessment.

Subpart Ca_Special (Occupational) Taxes

40.31 Liability for special tax.
40.32 Rates of special tax.
40.33 Special tax returns.
40.34 Employer identification number.
40.35 Issuance, distribution, and examination of special tax stamps.
40.36 Changes in special tax stamps.

Subpart D_Administrative Provisions

40.41 Forms prescribed.
40.42 Authority of Appropriate TTB officers to enter premises.
40.43 Interference with administration.
40.44 Disposal of forfeited, condemned, and abandoned tobacco products.
40.45 Alternate methods or procedures.
40.46 Emergency variations from requirements.
40.47 Other businesses within factory.
40.48 Penalties and forfeitures.
40.49 Delegations of the Administrator.

Subpart E_Qualification Requirements for Manufacturers

40.61 Qualification--General.
40.61a Transitional rule.
40.62 Application for permit.
40.63 Corporate documents.
40.64 Articles of partnership or association.
40.65 Trade name certificate.
40.66 Bond.
40.67 Blanket bond.
40.68 Power of attorney.
40.69 Factory premises.
40.70 Separation of and access to factory.
40.71 Factories established prior to October 1, 1961.
40.72 Use of factory premises.
40.73 Additional information.
40.74 Investigation of applicant.
40.75 Issuance of permit.
40.76 Retention of permit and supporting documents.

Subpart F_Changes After Original Qualification of Manufacturers

Changes in Name

40.91 Change in individual name.
40.92 Change in trade name.
40.93 Change in corporate name.

Changes in Ownership and Control

40.101 Fiduciary successor.
40.102 Transfer of ownership.
40.103 Change in officers, directors, or stockholders of a corporation.
40.104 Change in control of a corporation.

Changes in Location of Factory

40.111 Change in location within same region.
40.112 Change in address.
40.113 Change in location to another region.
40.114 Extension or curtailment of factory.

Subpart G_Bonds and Extensions of Coverage of Bonds

40.131 Corporate surety.
40.132 Deposit of securities in lieu of corporate surety.
40.133 Amount of individual bond.
40.134 Amount of blanket bond.
40.135 Strengthening bond.
40.136 Superseding bond.
40.137 Extension of coverage of bond.
40.138 Approval of bond and extension of coverage of bond.
40.139 Termination of bond.
40.140 Release of pledged securities.

Subpart H_Operations by Manufacturers

Determination and Payment of Taxes on Tobacco Products

40.161 Determination of tax and method of payment.
40.162 Semimonthly tax return.
40.163 Semimonthly tax return periods.
40.164 Special rule for taxes due for the month of September (effective
after December 31, 1994).

[[Page 6]]

40.165 Times for filing semimonthly return.
40.165a Payment of tax by electronic fund transfer.
40.166 Default, prepayment of tax required.
40.167 Prepayment tax return.
40.168 Remittance with return.
40.169 Employer identification number.
40.170 Application for employer identification number.
40.171 Execution and filing of Form SS-4.

Records

40.181 General.
40.182 Record of tobacco.
40.183 Record of tobacco products.
40.184 Record of removals subject to tax.
40.185 Retention of records.
40.186 Record in support of transfers in bond.
40.187 Record of sales prices of large cigars.

Inventories and Reports

40.201 Inventories.
40.202 Reports.

Packages

40.211 Package.
40.212 Mark.
40.213 Tobacco products labeled for export.
40.214 Notice for cigars.
40.215 Notice for cigarettes.
40.216 Notice for smokeless tobacco.
40.216a Notice for pipe tobacco.
40.216b Notice for roll-your-own tobacco.
40.216c Package use-up rule.
40.217 Repackaging.

Exemption From Taxes on Tobacco Products

40.231 Consumption by employees.
40.232 Experimental purposes.
40.233 Transfer in bond.
40.234 Removal for use of the United States.
40.235 Removal for export purposes.
40.236 Release from customs custody.

Other Provisions Relating to Tobacco Products

40.251 Emergency storage.
40.252 Reduction of tobacco products to materials.
40.253 Destruction.
40.254 Receipt into factory.
40.255 Shortages and overages in inventory.

Subpart I_Claims by Manufacturers

General

40.281 Abatement of assessment.
40.282 Allowance of tax.
40.283 Credit or refund of tax.
40.284 Remission of tax liability.
40.285 [Reserved]
40.286 Refund of overpayment.
40.287 Remission of tax liability on shortage.

Tobacco Products Lost or Destroyed

40.301 Action by claimant.

Tobacco Products Withdrawn From the Market

40.311 Action by claimant.
40.312 Action by the appropriate TTB officer.
40.313 Disposition of tobacco products and schedule.

Subpart J_Suspension and Discontinuance of Operations by Manufacturers

40.331 Discontinuance of operations.
40.332 Suspension and revocation of permit.

Subpart K_Manufacture of Cigarette Papers and Tubes

Taxes

40.351 Cigarette papers.
40.352 Cigarette tubes.
40.353 Persons liable for tax.
40.354 Determination of tax and method of payment.
40.355 Return of manufacturer.
40.356 Adjustments in the return of manufacturer.
40.357 Payment of tax by electronic fund transfer.
40.358 Assessment.
40.359 Employer identification number.
40.360 Application for employer identification number.
40.361 Execution and filing of Form SS-4.

Special (Occupational) Taxes

40.371 Liability for special tax.
40.372 Rate of special tax.
40.373 Special tax returns.
40.374 Issuance, distribution, and examination of special tax stamps.
40.375 Changes in special tax stamps.

General

40.382 Authority of TTB officers to enter premises.
40.383 Interference with administration.
40.384 Disposal of forfeited, condemned, and abandoned cigarette papers
and tubes.
40.385 Alternate methods or procedures.
40.386 Emergency variations from requirements.
40.387 Penalties and forfeitures.

Qualification Requirements for Manufacturers

Original Qualifications

40.391 Persons required to qualify.
40.392 Bond.
40.393 Power of attorney.
40.394 Notice of approval of bond.

[[Page 7]]

Changes After Original Qualification

40.395 Change in name.
40.396 Change in proprietorship.
40.397 Change in location.

Bonds and Extensions of Coverage of Bonds

40.401 Corporate surety.
40.402 Two or more corporate sureties.
40.403 Deposit of securities in lieu of corporate surety.
40.404 Amount of bond.
40.405 Strengthening bond.
40.406 Superseding bond.
40.407 Extension of coverage of bond.
40.408 Approval of bond and extension of coverage of bond.
40.409 Termination of liability of surety under bond.
40.410 Release of pledged securities.

Operations by Manufacturers

Records

40.421 General.

Reports

40.422 General.
40.423 Opening.
40.424 Monthly.
40.425 Special.
40.426 Closing.

Inventories

40.431 General.
40.432 Opening.
40.433 Special.
40.434 Closing.

Document Retention

40.435 General.

Packages

40.441 General.

Miscellaneous Operations

40.451 Transfer in bond.
40.452 Release from customs custody.
40.453 Use of the United States.
40.454 Removal for export purposes.

Permanent Discontinuance of Business

40.461 Discontinuance of operations.

Claims by Manufacturers

General

40.471 Abatement.
40.472 Allowance.
40.473 Credit or refund.
40.474 Remission.

Lost or Destroyed

40.475 Action by claimant.

Withdrawn From the Market

40.476 Action by claimant.
40.477 Action by the appropriate TTB officer.
40.478 Disposition of cigarette papers and tubes and schedule.

Authority: 26 U.S.C. 5142, 5143, 5146, 5701, 5703-5705, 5711-5713,
5721-5723, 5731, 5741, 5751, 5753, 5761-5763, 6061, 6065, 6109, 6151,
6301, 6302, 6311, 6313, 6402, 6404, 6423, 6676, 6806, 7011, 7212, 7325,
7342, 7502, 7503, 7606, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.

Source: 26 FR 8174, Aug. 31, 1961, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975; 54 FR 48839, Nov. 27, 1989,
and further redesignated by T.D. ATF-460, 66 FR 39093, July 27, 2001.

Editorial Note: Nomenclature changes to part 40 appear by T.D. ATF-
460, 66 FR 39094-39096, July 27, 2001 and T.D. ATF-464, 66 FR 43479,
Aug. 20, 2001.

Subpart A_Scope of Regulations

Sec. 40.1 Manufacture of tobacco products and cigarette papers and tubes.

This part contains regulations relating to the manufacture of
tobacco products and cigarette papers and tubes; the payment by
manufacturers of tobacco products and cigarette papers and tubes of
internal revenue taxes imposed by 26 U.S.C. chapter 52; and the
qualification of and operations by manufacturers of tobacco products.

[T.D. ATF-384, 61 FR 54085, Oct. 17, 1996]

Sec. 40.2 Territorial extent.

The provisions of the regulations in this part shall apply in the
several States of the United States and the District of Columbia.

Subpart B_Definitions

Sec. 40.11 Meaning of terms.

[[Page 8]]

Administrator. The Administrator, Alcohol and Tobacco Tax and Trade
Bureau, Department of the Treasury, Washington, DC.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.40, Delegation of the Administrator's Authorities in 27 CFR Part
40, Manufacture of Tobacco Products and Cigarette Papers and Tubes.
Bank. Any commercial bank.
Banking day. Any day during which a bank is open to the public for
carrying on substantially all its banking functions.
CFR. The Code of Federal Regulations.
Chewing tobacco. Any leaf tobacco that is not intended to be smoked.
Cigar. Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco which is a
cigarette within the meaning of paragraph (2) of the definition for
cigarette).
Cigarette. (1) Any roll of tobacco wrapped in paper or in any
substance not containing tobacco, and
(2) Any roll of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (1) of
this definition.
Cigarette paper. Paper, or any other material except tobacco,
prepared for use as a cigarette wrapper.
Cigarette tube. Cigarette paper made into a hollow cylinder for use
in making cigarettes.
Commercial bank. A bank, whether or not a member of the Federal
Reserve System, which has access to the Federal Reserve Communications
System (FRCS) or Fedwire. The ``FRCS'' or ``Fedwire'' is a
communications network that allows Federal Reserve System member banks
to effect a transfer of funds for their customers (or other commercial
banks) to the Treasury Account at the Federal Reserve Bank in New York.
Determine. To establish enough information about taxable products at
the time of removal to calculate the tax, specifically the quantity
(pounds or number) and kind (for example, cigarettes, snuff, paper
tubes). Where the tax rate depends on additional information (such as
number of cigarette papers to a set before January 1, 2000 or sale price
of large cigars), that information must also be established as part of
tax determination.
Director of the service center. The Director, Internal Revenue
Service Center, in any of the Internal Revenue regions.
District director. A district director of internal revenue.
Electronic fund transfer or EFT. Any transfer of funds effected by a
manufacturer's commercial bank, either directly or through a
correspondent banking relationship, via the Federal Reserve
Communications System (FRCS) or Fedwire to the Treasury Account at the
Federal Reserve Bank of New York.
Export warehouse. A bonded internal revenue warehouse for the
storage of tobacco products and cigarette papers and tubes, upon which
the internal revenue tax has not been paid for subsequent shipment to a
foreign country, Puerto Rico, the Virgin Islands, or a possession of the
United States, or for consumption beyond the jurisdiction of the
internal revenue laws of the United States.
Export warehouse proprietor. Any person who operates an export
warehouse.
Factory. The premises of a manufacturer of tobacco products as
described in his permit issued under 26 U.S.C. chapter 52, or the
premises of a manufacturer of cigarette papers and tubes on which such
business is conducted.
Fiscal year. The period which begins October 1 and ends on the
following September 30.
In bond. The status of tobacco products and cigarette papers and
tubes, which come within the coverage of a bond securing the payment of
internal revenue taxes imposed by 26 U.S.C. 5701 or 7652, and in respect
to which such taxes have not been determined as provided by regulations
in this chapter, including (a) such articles in a factory, (b) such
articles removed, transferred,

[[Page 9]]

or released, pursuant to 26 U.S.C. 5704, and with respect to which
relief from the tax liability has not occurred, and (c) such articles on
which the tax has been determined, or with respect to which relief from
the tax liability has occurred, which have been returned to the coverage
of a bond.
Large cigarettes. Cigarettes weighing more than three pounds per
thousand.
Large cigars. Cigars weighing more than three pounds per thousand.
Manufacturer of cigarette papers and tubes. Any person who
manufactures cigarette paper, or makes up cigarette paper into tubes,
except for his own personal use or consumption.
Manufacturer of tobacco products. Any person who manufactures
cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own
tobacco but does not include:
(1) A person who produces tobacco products solely for that person's
own consumption or use; or
(2) A proprietor of a Customs bonded manufacturing warehouse with
respect to the operation of such warehouse.
Package. The immediate container in which tobacco products or
cigarette papers or tubes are put up in by the manufacturer and offered
for sale or delivery to the consumer.
Permit number. The combination of (1) the letters indicating the
kind of permit, (2) the identifying number, and (3) the name or
abbreviation of the State (or the District of Columbia) in which the
factory is located, as assigned to the permit by the appropriate TTB
officer; for example, ``TP-999-Utah''.
Person. An individual, partnership, association, company,
corporation, estate, or trust.
Pipe tobacco. 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 to be smoked in a pipe.
Removal or remove. The removal of tobacco products or cigarette
papers or tubes from the factory or release from customs custody,
including the smuggling of other unlawful importation of such articles
into the United States.
Roll-your-own tobacco. 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.
Sale price. The price for which large cigars are sold by the
manufacturer, determined in accordance with Sec. 40.22 and used for
computation of the tax.
Service center. An Internal Revenue Service Center in any of the
Internal Revenue regions.
Service center director. A director of an internal revenue service
center.
Sets. Any collection, grouping, or packaging of cigarette papers
made up by any person for delivery to the consumer as a unit.
Small cigarettes. Cigarettes weighing not more than three pounds per
thousand.
Small cigars. Cigars weighing not more than three pounds per
thousand.
Smokeless tobacco. Any snuff or chewing tobacco.
Snuff. Any finely cut, ground, or powdered tobacco that is not
intended to be smoked.
This chapter. Title 27, Code of Federal Regulations, chapter I (27
CFR chapter I).
Tobacco products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
Treasury Account. The Department of the Treasury's General Account
at the Federal Reserve Bank of New York.
TTB. The Alcohol and Tobacco Tax and Trade Bureau, Department of the
Treasury
U.S.C. The United States Code.

(26 U.S.C. 7805 (68A Stat. 917), 27 U.S.C. 205 (49 Stat. 981 as
amended), (82 Stat. 959), and Sec. 38, Arms Export Control Act (90 Stat.
744) Aug. 16, 1954, ch. 736, 68A Stat. 775, as amended (26 U.S.C. 6301);
June 29, 1956, ch. 462, 70 Stat. 391 (26 U.S.C. 6301))

[T.D. ATF-48, 43 FR 13553, Mar. 31, 1978; 44 FR 55854, Sept. 28, 1979,
as amended by T.D. ATF-77, 46 FR 3007, Jan. 13, 1981; T.D. ATF-232, 51
FR 28080, Aug. 5, 1986; T.D. ATF-289, 54 FR 48839, Nov. 27, 1989; T.D.
ATF-384, 61 FR 54085, Oct. 17, 1996; T.D. ATF-424, 64 FR 71930, Dec. 22,
1999; T.D. ATF-420, 64 FR 71939, Dec. 22, 1999; T.D. ATF, 457, 66 FR
32220, June 14, 2001; T.D. ATF-460, 66 FR 39094, July 27, 2001; T.D.
ATF-467, 66 FR 49532, Sept. 28, 2001; T.D. TTB-44, 71 FR 16948, Apr. 4,
2006; 71 FR 25753, May 2, 2006]

[[Page 10]]

Subpart C_Taxes

Sec. 40.21 Cigar tax rates.

(a) Cigars are taxed at the following rates under 26 U.S.C. 5701(a):

----------------------------------------------------------------------------------------------------------------
Tax rate for removals during the years:
Type and amount -------------------------------------------------------------------------
1993 to 1999 2000 and 2001 2002 and after
----------------------------------------------------------------------------------------------------------------
Small cigars per thousand............. $1.125 $1.594 $1.828
Large cigars per thousand *
percentage of 12.75% 18.063% 20.719%
sale price.
but not to $30 $42.50 $48.75
exceed[rarr].
----------------------------------------------------------------------------------------------------------------
*For large cigars, the percentage tax rate applies when the sale price is $235.294 per thousand or less, and the
flat tax rate applies when the sale price is more than $235.294 per thousand.

(b) See Sec. 40.22 of this part for rules concerning determination
of sale price of large cigars.
(c) Cigars not exempt from tax under 26 U.S.C. chapter 52 and the
provisions of this part which are removed but not intended for sale
shall be taxed at the same rate as similar cigars removed for sale.

[ T.D. ATF-420, 64 FR 71939, Dec. 22, 1999]

Sec. 40.22 Determination of sale price of large cigars.

(a) General rule. The tax imposed on large cigars is computed based
on the sale price (the price for which the large cigars are sold by the
manufacturer). In addition to money, goods or services exchanged for
cigars may be considered as part of the sale price.
(b) Special cases.--(1) In general. If there is any question
concerning the applicable sale price for tax purposes, the appropriate
TTB officer will determine such price, applying rules similar to the
constructive sale price rules in 26 U.S.C. 4216(b) and the implementing
regulations in 26 CFR 48.4216(b)-1 through 48.4216(b)-4. These
constructive sale price rules apply to cigars sold by a manufacturer at
retail, sold on consignment, or sold (otherwise than through an arm's
length transaction) at less than the fair market price. Sales of cigars
between affiliated corporations may be analyzed under the constructive
sale price rules. The appropriate TTB officer may make this analysis on
his or her own initiative or upon the written request of a manufacturer.
If TTB decides it is necessary, we will publish constructive sale price
determinations in the TTB Bulletin in accordance with Sec. 70.701(d) of
this chapter.
(2) Adjustments in sale price.--(i) Reasons for adjustment.
Adjustments to the sale price may occur as a result of a discount or
price increase by the manufacturer or as a result of an TTB
determination pursuant to paragraph (b)(1) above. In either case, the
manufacturer must make conforming changes to the tax that was computed
on the sale price before the adjustment.
(ii) Time of adjustment. If an adjustment is made before the end of
the same tax return period as the original determination of the tax, the
adjustment may be made on the same return. If the price is increased or
decreased retroactively (during a later return period), either by the
manufacturer or by TTB's determination, the manufacturer must make an
adjustment on the tax return for the current return period in which the
price change was determined.
(iii) Amount of adjustment. The taxpayer must compute the adjustment
to the tax as the difference between the tax that was paid and the tax
that should have been paid, based on the newly determined sale price,
together with interest thereon and any applicable penalties. The
interest must be computed from the time of payment of the original tax
until the time the adjustment was made. Upon request, the appropriate
TTB officer will provide information regarding interest rates applicable
to specific time periods and any applicable penalties.

[[Page 11]]

(3) Pricing for different packaging. If different bona fide sale
prices are applicable to different types of packaging (e. g., boxes of
25 and boxes of 50), then the cigars in each type of packaging are taxed
on the basis of their respective sale prices.
(4) Pricing of seconds. If some of an otherwise identical cigar
brand and size:
(i) Are distinctive from other such cigars because of physical
imperfections, (ii) Are offered to the consumer through clear labeling
as ``imperfects'', ``seconds'', ``throw-outs'', or a comparable commonly
understood term, and
(iii) The manufacturer has a separate sale price for such cigars,
then they are taxed on the basis of this separate sale price.
(5) Combination packages. If a manufacturer has a sale price for a
combination package containing cigars of different sizes, the cigars are
taxed based on that combination sale price. If there is no sale price
for the combination, then the cigars are taxed based on their individual
sale prices.
(6) Removals for another person. If a manufacturer makes taxable
removals of a brand and size of cigar only for distribution by others
who establish the sale price, the tax is based on such sale price even
though the manufacturer who makes the removals does not establish the
price.

[T.D. ATF-420, 64 FR 71939, Dec. 22, 1999]

Sec. 40.23 Cigarette tax rates.

Cigarettes are taxed at the following rates under 26 U.S.C. 5701(b):

------------------------------------------------------------------------
Tax rate per thousand for removals
during the years
Product --------------------------------------
1993 to 2000 and 2002 and
1999 2001 after
------------------------------------------------------------------------
Small cigarettes................. $12 $17 $19.50
Large cigarettes up to 6\1/2\ long....................
Large cigarettes over 6\1/2\ long.................... (2)Taxed at the rate for small
cigarettes, counting each 2\3/4\
inches or fraction thereof of the
length of each as one cigarette.
------------------------------------------------------------------------

[T.D. ATF-420, 64 FR 71940, Dec. 22, 1999]

Sec. 40.24 Classification of cigarettes.

For tax purposes, small cigarettes are designated Class A and large
cigarettes are designated Class B.

(72 Stat. 1414; 26 U.S.C. 5701)

Sec. 40.25 Smokeless tobacco tax rates.

Smokeless tobacco products are taxed at the following rates under 26
U.S.C. 5701(e):

------------------------------------------------------------------------
Tax rate per pound * for removals
during the years
Product --------------------------------------
1993 to 2000 and 2002 and
1999 2001 after
------------------------------------------------------------------------
Snuff............................ $0.36 $0.51 $0.585
Chewing tobacco.................. 0.12 0.17 0.195
------------------------------------------------------------------------
* Prorate tax for fractions of a pound.

[T.D. ATF-420, 64 FR 71940, Dec. 22, 1999]

Sec. 40.25a Pipe tobacco and roll-your-own tobacco tax rates.

Pipe tobacco and roll-your-own tobacco are taxed at the following
rates under 26 U.S.C. 5701(f) and (g), respectively:

[[Page 12]]

------------------------------------------------------------------------
Tax rate per pound * for removals
during the years
Product --------------------------------------
1993 to 2000 and 2002 and
1999 2001 after
------------------------------------------------------------------------
Pipe tobacco..................... $0.675 $0.9567 $1.0969
Roll-your-own tobacco............ * No tax 0.9567 1.0969
------------------------------------------------------------------------
* Prorate tax for fractions of a pound.

[T.D. ATF-420, 64 FR 71940, Dec. 22, 1999]

Sec. 40.26 Persons liable for tax.

The manufacturer of tobacco products shall be liable for the taxes
imposed on tobacco products by 26 U.S.C. 5701: Provided, That when
tobacco products are transferred in bond pursuant to 26 U.S.C. 5704, to
the bonded premises of another such manufacturer or an export warehouse
proprietor, the transferee shall become liable for the tax upon receipt
by him of such products and the transferor shall thereupon be relieved
of his liability for the tax. When tobacco products are released in bond
from customs custody for transfer to the bonded premises of a
manufacturer of tobacco products, the transferee shall become liable for
the tax on such products upon release from customs custody. Any person
who possesses tobacco products in violation of 26 U.S.C. 5751(a)(1) or
(2), shall be liable for a tax equal to the tax on such products.

(Sec. 201, Pub. L. 85-859, 72 Stat 1415, as amended, 1424, as amended
(26 U.S.C. 5703, 5751))

[T.D. 6871, 31 FR 32, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55854, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 52 FR 43194, Dec. 1,
1986]

Sec. 40.27 Assessment.

Whenever any person required by law to pay tax on tobacco products
fails to pay such tax, the tax shall be ascertained and assessed against
such person, subject to the limitations prescribed in 26 U.S.C. 6501.
The tax so assessed shall be in addition to the penalties imposed by law
for failure to pay such tax when required. Except in cases where delay
may jeopardize collection of the tax, or where the amount is nominal or
the result of an evident mathematical error, no such assessment shall be
made until and after notice has been afforded such person to show cause
against assessment. The person will be allowed 45 days from the date of
such notice to show cause, in writing, against such assessment.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1415, as amended (26 U.S.C. 5703))

Subpart Ca_Special (Occupational) Taxes

Source: T.D. ATF-271, 53 FR 17560, May 17, 1988, unless otherwise
noted.

Sec. 40.31 Liability for special tax.

(a) Manufacturer of tobacco products. Every manufacturer of tobacco
products shall pay a special (occupational) tax at a rate specified by
Sec. 40.32 of the part. The tax shall be paid on or before the date of
commencing the business of manufacturing tobacco products, and
thereafter every year on or before July 1. On commencing business, the
tax shall be computed from the first day of the month in which liability
is incurred, through the following June 30. Thereafter, the tax shall be
computed for the entire year (July 1 through June 30).
(b) Transition rule. For purposes of paragraph (a) of this section,
a proprietor engaged in the business of manufacturing tobacco products
on January 1, 1988, shall be treated as having commenced business on
that date. The special tax imposed by this transition rule shall cover
the period January 1, 1988, through June 30, 1988, and shall be paid on
or before April 1, 1988.

[[Page 13]]

(c) Each place of business taxable. A manufacturer of tobacco
products incurs special tax liability at each place of business in which
an occupation subject to special tax is conducted. A place of business
means the entire office, plant or area of the business in any one
location under the same proprietorship. Passageways, streets, highways,
rail crossings, waterways, or partitions dividing the premises are not
sufficient separation to require additional special tax, if the
divisions of the premises are otherwise contiguous.

(26 U.S.C. 5143, 5731)

Sec. 40.32 Rates of special tax.

(a) General. Title 26 U.S.C. 5731(a)(1) imposes a special tax of
$1,000 per year on every manufacturer of tobacco products.
(b) Reduced rate for small proprietors. Title 26 U.S.C. 5731(b)
provides for a reduced rate of $500 per year with respect to any
manufacturer of tobacco products whose gross receipts (for the most
recent taxable year ending before the first day of the taxable period to
which the special tax imposed by Sec. 40.31 relates) are less than
$500,000. The ``taxable year'' to be used for determining gross receipts
is the taxpayer's income tax year. All gross receipts of the taxpayer
shall be included, not just the gross receipts of the business subject
to special tax. Proprietors of new businesses that have not yet begun a
taxable year, as well as proprietors of existing businesses that have
not yet ended a taxable year, who commence a new activity subject to
special tax, qualify for the reduced special (occupational) tax rate,
unless the business is a member of a ``controlled group''; in that case,
the rules of paragraph (c) of this section shall apply.
(c) Controlled group. All persons treated as one taxpayer under 26
U.S.C. 5061(e)(3) shall be treated as one taxpayer for the purpose of
determining gross receipts under paragraph (b) of this section.
``Controlled group'' means a controlled group of corporations, as
defined in 26 U.S.C. 1563 and implementing regulations in 26 CFR 1.1563-
1 through 1.1563-4, except that the words ``at least 80 percent'' shall
be replaced by the words ``more than 50 percent'' in each place they
appear in subsection (a) of 26 U.S.C. 1563, as well as in the
implementing regulations. Also, the rules for a ``controlled group of
corporations'' apply in a similar fashion to groups which include
partnerships and/or sole proprietorships. If one entity maintains more
than 50% control over a group consisting of corporations and one, or
more, partnerships and/or sole proprietorships, all of the members of
the controlled group are one taxpayer for the purpose of this section.
(d) Short taxable year. Gross receipts for any taxable year of less
than 12 months shall be annualized by multiplying the gross receipts for
the short period by 12 and dividing the result by the number of months
in the short period as required by 26 U.S.C. 448(c)(3).
(e) Returns and allowances. Gross receipts for any taxable year
shall be reduced by returns and allowances made during such year under
26 U.S.C. 448(c)(3).

(26 U.S.C. 448, 5061, 5731)

Sec. 40.33 Special tax returns.

[[Page 14]]

power to control its management and policies with respect to the
activity subject to special tax. ``Owner of the business'' shall include
every partner, if the taxpayer is a partnership, and every person owning
10% or more of its stock, if the taxpayer is a corporation. However, the
ownership and control information required by this paragraph need not be
stated if the same information has been previously provided to TTB in
connection with a permit application, and if the information previously
provided is still current.
(c) Multiple locations and/or classes of tax. A taxpayer subject to
special tax for the same period at more than one location or for more
than one class of tax shall--
(1) File one special tax return, TTB Form 5630.5, with payment of
tax, to cover all such locations and classes of tax; and
(2) Prepare, in duplicate, a list identified with the taxpayer's
name, address (as shown on TTB Form 5630.5), employer identification
number, and period covered by the return. The list shall show, by
States, the name, address, and tax class of each location for which
special tax is being paid. The original of the list shall be filed with
TTB in accordance with instructions on the return, and the copy shall be
retained at the taxpayer's principal place of business (or principal
office, in the case of a corporate taxpayer) for the period specified in
Sec. 40.185.
(d) Signing of TTB Forms 5630.5--(1) Ordinary returns. The return of
an individual proprietor shall be signed by the individual. The return
of a partnership shall be signed by a general partner. The return of a
corporation shall be signed by any officer. In each case, the person
signing the return shall designate his or her capacity as ``individual
owner,'' ``member of firm,'' or, in the case of a corporation, the title
of the officer.
(2) Fiduciaries. Receivers, trustees, assignees, executors,
administrators, and other legal representatives who continue the
business of a bankrupt, insolvent, deceased person, etc., shall indicate
the fiduciary capacity in which they act.
(3) Agent or attorney in fact. If a return is signed by an agent or
attorney in fact, the signature shall be preceded by the name of the
principal and followed by the title of the agent or attorney in fact. A
return signed by a person as agent will not be accepted unless there is
filed, with the TTB office with which the return is required to be
filed, a power of attorney authorizing the agent to perform the act.
(4) Perjury statement. TTB Forms 5630.5 shall contain or be verified
by a written declaration that the return has been executed under the
penalties of perjury.

(26 U.S.C. 5142, 6061, 6065, 6151, 7011)

Sec. 40.34 Employer identification number.

(a) Requirement. The employer identification number (defined in 26
CFR 301.7701-12) of the taxpayer who has been assigned such a number
shall be shown on each special tax return, including amended returns,
filed under this subpart. Failure of the taxpayer to include the
employer identification number may result in the imposition of the
penalty specified in Sec. 70.113 of this chapter.
(b) Application for employer identification number. Each taxpayer
who files a special tax return, who has not already been assigned an
employer identification number, shall file IRS Form SS-4 to apply for
one. The taxpayer shall apply for and be assigned only one employer
identification number, regardless of the number of places of business
for which the taxpayer is required to file a special tax return. The
employer identification number shall be applied for no later than 7 days
after the filing of the taxpayer's first special tax return. IRS Form
SS-4 may be obtained from the director of an IRS service center or from
any IRS district director.
(c) Preparation and filing of IRS Form SS-4. The taxpayer shall
prepare and file IRS Form SS-4, together with any supplementary
statement, in accordance with the instructions on the form or issued in
respect to it.

(26 U.S.C. 6109)

[T.D. ATF-271, 53 FR 17560, May 17, 1988, as amended by T.D. ATF-301, 55
FR 47658, Nov. 14, 1990]

[[Page 15]]

Sec. 40.35 Issuance, distribution, and examination of special tax stamps.

(a) Issuance of special tax stamps. Upon filing a properly executed
return on TTB Form 5630.5 together with the full remittance, the
taxpayer will be issued an appropriately designated special tax stamp.
If the return covers multiple locations, the taxpayer will be issued one
appropriately designated stamp for each location listed on the
attachment required by Sec. 40.33(c)(2), but showing, as to name and
address, only the name of the taxpayer and the address of the taxpayer's
principal place of business (or principal office in the case of a
corporate taxpayer).
(b) Distribution of special tax stamps for multiple locations. On
receipt of the special tax stamps, the taxpayer shall verify that there
is one stamp for each location listed on the attachment to TTB Form
5630.5. The taxpayer shall designate one stamp for each location and
type on each stamp the address of the business conducted at the location
for which that stamp is designated. The taxpayer shall then forward each
stamp to the place of business designated on the stamp.
(c) Examination of special tax stamps. All stamps denoting payment
of special tax shall be kept available for inspection by appropriate TTB
officers, at the location for which designated, during business hours.

(26 U.S.C. 5146, 6806)

Sec. 40.36 Changes in special tax stamps.

(a) Change in name. If there is a change in the corporate or firm
name, or in the trade name, as shown on TTB Form 5630.5, the
manufacturer shall file an amended special tax return as soon as
practicable after the change, covering the new corporate or firm name,
or trade names. No new special tax is required to be paid. The
manufacturer shall attach the special tax stamp for endorsement of the
change in name.
(b) Change in proprietorship--(1) General. If there is a change in
the proprietorship of a tobacco factory, the successor shall pay a new
special tax and obtain the required special tax stamps.
(2) Exemption for certain successors. Persons having the right of
succession provided for in paragraph (c) of this section may carry on
the business for the remainder of the period for which the special tax
was paid, without paying a new special tax, if within 30 days after the
date on which the successor begins to carry on the business, the
successor files a special tax return on Form 5630.5 with TTB, which
shows the basis of succession. A person who is a successor to a business
for which special tax has been paid and who fails to register the
succession is liable for special tax computed from the first day of the
calendar month in which he or she began to carry on the business.
(c) Persons having right of succession. Under the conditions
indicated in paragraph (b)(2) of this section, the right of succession
will pass to certain persons in the following cases:
(1) Death. The widowed spouse or child, or executor, administrator,
or other legal representative of the taxpayer;
(2) Succession of spouse. A husband or wife succeeding to the
business of his or her spouse (living);
(3) Insolvency. A receiver or trustee in bankruptcy, or an assignee
for benefit of creditors;
(4) Withdrawal from firm. The partner or partners remaining after
death or withdrawal of a member.
(d) Change in location. If there is a change in location of a
taxable place of business, the manufacturer shall, within 30 days after
the change, file with TTB an amended special tax return covering the new
location. The manufacturer shall attach the special tax stamp or stamps,
for endorsement of the change in location. No new special tax is
required to be paid. However, if the manufacturer does not file the
amended return within 30 days, the manufacturer is required to pay a new
special tax and obtain a new special tax stamp.

(26 U.S.C. 5143, 7011)

Subpart D_Administrative Provisions

Sec. 40.41 Forms prescribed.

(a) The appropriate TTB officer is authorized to prescribe all forms
required by this part. All of the information

[[Page 16]]

called for in each form shall be furnished as indicated by the headings
on the form and the instructions on or pertaining to the form. In
addition, information called for in each form shall be furnished as
required by this part. When a return, form, claim, or other document
called for under this part is required by this part, or by the document
itself, to be executed under penalties of perjury, it shall be executed
under penalties of perjury.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National Revenue Center, 550
Main Street, Room 1516, Cincinnati, OH 45202.

(5 U.S.C. 552(a) (80 Stat. 383, as amended))

[T.D. ATF-92, 46 FR 46921, Sept. 23, 1981, as amended by T.D. ATF-232,
51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 52 FR 43194, Dec. 1, 1986; T.D.
ATF-372, 61 FR 20725, May 8, 1996; T.D. TTB-44, 71 FR 16949, Apr. 4,
2006]

Sec. 40.42 Authority of Appropriate TTB officers to enter premises.

Any appropriate TTB officer may enter in the daytime any premises
where tobacco products are produced or kept, so far as it may be
neccessary for the purpose of examining such products. When such
premises are open at night, any appropriate TTB officer may enter them,
while so open, in the performance of his official duties. The owner of
such premises, or person having the superintendence of the same, who
refuses to admit any appropriate TTB officer or permit him to examine
such products shall be liable to the penalties prescribed by law for the
offense.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 52 FR
43194, Dec. 1, 1986]

Sec. 40.43 Interference with administration.

Whoever, corruptly or by force or threats of force, endeavors to
hinder or obstruct the administration of this part, or endeavors to
intimidate or impede any TTB officer acting in his official capacity, or
forcibly rescues or attempts to rescue or causes to be rescued any
property, after it has been duly seized for forfeiture to the United
States in connection with a violation of the internal revenue laws,
shall be liable to the penalties prescribed by law.

(68A Stat. 855; 26 U.S.C. 7212)

Sec. 40.44 Disposal of forfeited, condemned, and abandoned tobacco products.

A Federal, State, or local officer shall not sell or cause to be
sold for consumption in the United States any forfeited, condemned, or
abandoned tobacco products in his custody upon which the Federal tax has
not been paid, if in his opinion the sale thereof will not bring a price
equal to the tax due and payable thereon and the expenses incident to
the sale thereof. Where the products are not sold the officer may
deliver them to a Federal or State hospital or institution (if they are
fit for consumption) or cause their destruction by burning completely or
by rendering them unfit for consumption. Where such products are sold
they shall be released by the officer having custody thereof only after
they are properly packaged and taxpaid. A receipt from the appropriate
TTB officer evidencing payment of tax on such products shall be
presented to the officer having custody of the products, which tax shall
be considered part of the sales price. Where tobacco products which have
been packaged under the provisions of part 44 or part 45 of this chapter
are to be released after payment of tax, the purchaser shall
appropriately mark each package ``Federal Tax Paid (date)'' before the
officer having custody of the products releases them:

Provided, That if the purchaser is a qualified manufacturer of tobacco
products, or for products packaged under part 44 a qualified export
warehouse proprietor, the products may be released without such marking
of the packages if the manufacturer or proprietor does not intend to
place such products on the domestic market for taxable products but will
dispose of them otherwise, such as by destruction or return to bond
through claim for refund, and files a written statement to that

[[Page 17]]

effect, in original only, with the officer having custody of the
products. In the case of products forfeited under the internal revenue
laws the sale shall be subject to the provisions of part 172 of this
chapter.

(68A Stat. 870, as amended, 72 Stat. 1425, as amended; 26 U.S.C. 7325,
5753)

[T.D. 6961, 33 FR 9488, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28080, Aug. 5, 1986; T.D.
ATF-243, 52 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19339, May 22,
1987; T.D. ATF-469, 66 FR 56758, Nov. 13, 2001]

Sec. 40.45 Alternate methods or procedures.

A manufacturer of tobacco products, on specific approval by the
appropriate TTB officer as provided in this section, may use an
alternate method or procedure in lieu of a method or procedure
specifically prescribed in this part. The appropriate TTB officer may
approve an alternate method or procedure, subject to stated conditions,
when he finds that--
(a) Good cause has been shown for the use of the alternate method or
procedure,
(b) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue, and
(c) The alternate method or procedure will not be contrary to any
provision of law, and will not result in an increase in cost to the
Government or hinder the effective administration of this part.

No alternate method or procedure relating to the giving of any bond or
to the assessment, payment, or collection of tax, shall be authorized
under this section. Where a manufacturer desires to employ an alternate
method or procedure, he shall submit a written application to do so, in
triplicate, to the appropriate TTB officer. The application shall
specifically describe the proposed alternate method or procedure, and
shall set forth the reasons therefor. Alternate methods or procedures
shall not be employed until the application has been approved by the
appropriate TTB officer. The manufacturer shall, during the period of
authorization of an alternate method or procedure, comply with the terms
of the approved application. Authorization for any alternate method or
procedure may be withdrawn whenever in the judgment of the appropriate
TTB officer the revenue is jeopardized or the effective administration
of this part is hindered. The manufacturer shall retain, as part of his
records, any authorization of the appropriate TTB officer under this
section.

Sec. 40.46 Emergency variations from requirements.

Variations from requirements granted under this section are conditioned
on compliance with the procedures, conditions, and limitations set forth
in the approval of the application. Failure to comply in good faith with
such procedures, conditions, and limitations shall automatically
terminate the authority for such variations and the manufacturer
thereupon shall fully comply with the prescribed requirements of
regulations from which the variations were authorized. Authority for any
variations may be withdrawn whenever in the judgment of the appropriate
TTB officer the revenue is jeopardized or the effective administration
of this part is hindered by the continuation of such variation. Where a
manufacturer desires to employ such variation, he shall submit a written
application to do so, in triplicate, to the appropriate TTB officer. The
application shall describe the proposed variations and set forth the
reasons therefor. Variations shall not be employed until the application
has been approved. The manufacturer shall retain, as part of his

[[Page 18]]

records, any authorization of the appropriate TTB officer under this
section.

Sec. 40.47 Other businesses within factory.

The appropriate TTB officer may authorize such other businesses
within the factory as he finds will not jeopardize the revenue, will not
hinder the effective administration of this part, and will not be
contrary to law. Where a manufacturer desires to engage in another
business within the factory he shall submit a written application to do
so, in triplicate, to the appropriate TTB officer. A manufacturer shall
not engage in such other business until the application is approved by
the appropriate TTB officer. The manufacturer shall retain, as part of
his records, any authorization of the appropriate TTB officer under this
section.

[T.D. 6840, 30 FR 9310, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.48 Penalties and forfeitures.

Anyone who fails to comply with the provisions of this part becomes
liable to the civil and criminal penalties, and forfeitures, provided by
law.

(72 Stat. 1425, 1426; 26 U.S.C. 5761, 5762, 5763)

Sec. 40.49 Delegations of the Administrator.

Most of the regulatory authorities of the Administrator contained in
this part are delegated to appropriate TTB officers. These TTB officers
are specified in TTB Order 1135.40, Delegation of the Administrator's
Authorities in 27 CFR Part 40, Manufacture of Tobacco Products and
Cigarette Papers and Tubes. You may obtain a copy of this order by
accessing the TTB Web site (http://www.ttb.gov) or by mailing a request
to the Alcohol and Tobacco Tax and Trade Bureau, National Revenue
Center, 550 Main Street, Room 1516, Cincinnati, OH 45202.

[T.D. TTB-44, 71 FR 16949, Apr. 4, 2006]

Subpart E_Qualification Requirements for Manufacturers

Sec. 40.61 Qualification--General.

(a) Who must qualify. Every person who produces tobacco products
except for his or her own personal consumption or use, shall qualify as
a manufacturer of tobacco products in accordance with the provisions of
this part.
(b) Minimum manufacturing and activity requirements. A permit to
manufacture tobacco products will only be granted to those persons whose
principal business activity under such permit will be the original
manufacture of tobacco products. A permit will not be granted to any
person whose principal activity under such permit will be to receive or
transfer tobacco products in bond. As a minimum activity requirement, in
order to qualify for a permit, the quantity of tobacco products
manufactured under the permit must exceed the quantity to be transferred
or received in bond under the permit. For the purposes of this section,
repackaging or relabeling activities alone do not qualify as a
manufacturing activity.

[T.D. ATF-421, 64 FR 71923, Dec. 22, 1999]

Sec. 40.61a Transitional rule.

Any person who:
(a) On August 5, 1997, was engaged in business as a manufacturer of
roll-your-own tobacco, and
(b) Before January 1, 2000, submits an application, as provided in
this part, to engage in such business, may, continue to engage in such
business pending final action on such application. Pending such final
action, all provisions of chapter 52 of the Internal Revenue Code of
1986 shall apply to such applicant in the same manner and to the same
extent as if such applicant were a holder of a permit to manufacture
roll-your-own tobacco under such chapter 52.

[T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Sec. 40.62 Application for permit.

Every person, before commencing business as a manufacturer of
tobacco products as defined in Sec. 40.11, shall make application for,
and obtain, the

[[Page 19]]

permit provided in Sec. 40.75, covering operations at each proposed
factory. Such application shall be made on Form 2093, in duplicate, to
the appropriate TTB officer. All documents required under this part to
be furnished with such application shall be made a part thereof. Where
the applicant for a permit under this section holds a permit or permits
authorizing the production of any tobacco products at premises to be
covered by the permit applied for, the applicant shall surrender such
permit or permits for cancellation, upon the issuance of the permit
applied for.

(72 Stat. 1421; 26 U.S.C 5712)

Sec. 40.63 Corporate documents.

Every corporation, before commencing business as a manufacturer of
tobacco products, shall furnish with its application for permit,
required by Sec. 40.62, a true copy of the corporate charter or a
certificate of corporate existence or incorporation executed by the
appropriate officer of the State in which incorporated. The corporation
shall likewise furnish duly authenticated extracts of the stockholders'
meetings, bylaws, or directors' meetings, listing the offices the
incumbents of which are authorized to sign documents or otherwise act in
behalf of the corporation in matters relating to 26 U.S.C. chapter 52,
and regulations issued thereunder. The corporation shall also furnish
evidence, in duplicate, of the identity of the officers and directors
and each person who holds more than ten percent of the stock of such
corporation. Where any of the information required by this section has
previously been filed with the appropriate TTB officer and such
information is currently complete and accurate, a written statement to
that effect, in duplicate, will be sufficient for the purpose of this
section.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C. 5712))

[T.D. 6840, 30 FR 9310, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55854, Sept. 28, 1979]

Sec. 40.64 Articles of partnership or association.

Every partnership or association, before commencing business as a
manufacturer of tobacco products, shall furnish with its application for
permit, required by Sec. 40.62, a true copy of the articles of
partnership or association, if any, or certificate of partnership or
association where required to be filed by any State, county, or
municipality. Where a partnership or association has previously filed
such documents with the appropriate TTB officer and such documents are
currently complete and accurate, a written statement, in duplicate, to
that effect by the partnership or association will be sufficient for the
purpose of this section.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 40.65 Trade name certificate.

Every person, before commencing business under a trade name as a
manufacturer of tobacco products, shall furnish with his application for
permit, required by Sec. 40.62, a true copy of the certificate or other
document, if any, issued by a State, county, or municipal authority in
connection with the transaction of business under such trade name. If no
such certificate or other document is so required, a written statement,
in duplicate, to that effect by such person will be sufficient for the
purpose of this section.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 40.66 Bond.

Every person, before commencing business as a manufacturer of
tobacco products, shall file, in connection with his application for
permit, a bond on Form 3070, in duplicate, in accordance with the
applicable provisions of subpart G of this part, conditioned upon
compliance with the provisions of chapter 52, I.R.C., and regulations
thereunder, including, but not limited to, the timely payment of taxes
imposed by such chapter and penalties and interest in connection
therewith for which he may become liable to the United States: Provided,
That any person who, on the effective date of this part, October 1,
1961, has on file a valid and adequate bond, Form 2100, ``Bond--

[[Page 20]]

Manufacturer of Cigars and Cigarettes,'' may continue, under such bond,
the operations with respect to the permit to which that bond relates, in
accordance with the provisions of this part.

(72 Stat. 1421, as amended; 26 U.S.C. 5711)

[T.D. 6871, 31 FR 33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.67 Blanket bond.

Where a manufacturer of tobacco products operates more than one
factory in the same region he may, in lieu of filing separate bonds,
file a blanket bond on Form 3070, in duplicate, in accordance with the
provisions of Sec. 40.134, for any or all of the factories in the same
region. The total amount of any blanket bond given under this section
shall be available for the satisfaction of any liability incurred at any
factory covered by the bond.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.68 Power of attorney.

If the application for permit or any report, return, notice,
schedule, or other document required to be executed is to be signed by
an individual (including one of the partners for a partnership or one of
the members of an association) as an attorney in fact for any person, or
if an individual is to otherwise officially represent such person, power
of attorney on Form 1534 shall be furnished to the appropriate TTB
officer. (For power of attorney in connection with conference and
practice requirements see subpart E, part 601 of this chapter.) Such
power of attorney is not required for persons whose authority is
furnished with the corporate documents as required by Sec. 40.63. Form
1534 does not have to be filed again with a appropriate TTB officer
where such form has previously been submitted to that appropriate TTB
officer and is still in effect.

[T.D. 6840, 30 FR 9310, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.69 Factory premises.

The premises to be used by a manufacturer of tobacco products as his
factory may consist of more than one building, or portions of buildings,
which need not be contiguous but must be located in the same city, town,
or village: Except that, where the appropriate TTB officer determines
that a building or portion of a building which is not within the city,
town, or village, is so conveniently and closely situated to the general
factory premises as to present no jeopardy to the revenue and as to
offer no hindrance to the administration of this part, he may authorize
the inclusion of such building or portion of building as part of the
factory. The buildings or portions of buildings shall be described in
the application for permit and the bond by number, street, and city,
town, or village, and State. If any of the following conditions exist a
diagram shall also be furnished, in duplicate, showing the information
indicated:
(a) Where the factory is in more than one building, and each
building is not identifiable by a separate street address--identify each
building by a letter, number, or similar designation;
(b) Where the factory consists of a portion of a building or where
portions of buildings are part of the factory--show the particular floor
or floors, or room or rooms, comprising the factory;
(c) Where there is an adjoining retail store operated by the
manufacturer tobacco products including any doors or other openings
between the premises.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6840, 30 FR 9310, July 27, 1965, as amended by T.D. 6871, 31 FR
33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr. 15, 1975, as amended
by T.D. ATF-232, 51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 52 FR 43194,
Dec. 1, 1986]

Sec. 40.70 Separation of and access to factory.

Where the factory consists of a portion of a building, or where
portions of buildings are part of the factory, the factory shall be
completely separated by walls from adjoining portions of the building.
Such walls shall be securely constructed of substantial materials. The
appropriate TTB officer may, wherever he finds that the revenue will not
be jeopardized, authorize openings and doors in such walls or means of
separation other than walls if such

[[Page 21]]

means adequately delineate the factory. The factory shall be accessible
directly from a street, yard, common passageway, or other common means
of entrance.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 40.71 Factories established prior to October 1, 1961.

Factories established prior to the effective date of this part,
October 1, 1961, shall not be subject to the provisions of Sec. 40.70
if, in the opinion of the appropriate TTB officer, the existing premises
afford adequate protection to the revenue.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6871, 31 FR 33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.72 Use of factory premises.

Unless otherwise authorized by the appropriate TTB officer as
provided in Sec. 40.47, the factory premises shall be used exclusively
for the purposes of manufacturing and storing tobacco products; storing
materials, equipment, and supplies related thereto or used or useful in
the conduct of the business; and carrying on activities in connection
with the business of the manufacturer: Provided, That tobacco products
manufacturers who maintain adequate records in respect to the
manufacture and storage of smoking tobacco that is not subject to tax
(as well as with respect to tobacco products), showing the date and
total quantity in pounds of the tobacco received, shipped or delivered,
lost, and destroyed, may continue such operations on the tobacco
products factory premises, without application for authorization as
prescribed in Sec. 40.47.

[T.D. ATF-232, 51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-289, 54 FR 48839, Nov. 27, 1989]

Sec. 40.73 Additional information.

The appropriate TTB officer may require such additional information
as he may deem necessary to determine whether the applicant is entitled
to a permit under the provisions of this part. The applicant shall, when
required by the appropriate TTB officer, furnish as a part of his
application for such permit such additional information as may be
necessary for the appropriate TTB officer to determine whether the
applicant is entitled to a permit.

Sec. 40.74 Investigation of applicant.

As the appropriate TTB officer deems necessary he will cause inquiry
or investigation to be made to verify the information furnished in
connection with an application for permit and to ascertain whether the
applicant is, by reason of his business experience, financial standing,
and trade connections, likely to maintain operations in compliance with
26 U.S.C. chapter 52, and regulations thereunder; whether such person
has disclosed all material information required or made any material
false statement in the application for such permit; and whether the
premises on which it is proposed to establish the factory are adequate
to protect the revenue. If the appropriate TTB officer has reason to
believe that the applicant is not entitled to a permit, he shall
promptly give the applicant notice of the contemplated disapproval of
his application and opportunity for hearing thereon in accordance with
part 71 of this chapter, which part (including the provisions relating
to the recommended decision and to appeals) is applicable to such
proceedings. If, after such notice and opportunity for hearing, the
appropriate TTB officer finds that the applicant is not entitled to a
permit, he shall, by order stating the findings on which his decision is
based, deny the permit.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C. 5713))

[26 FR 8174, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55854, Sept. 28, 1979; T.D. ATF-463,
66 FR 42734, Aug. 15, 2001]

Sec. 40.75 Issuance of permit.

If the application for permit, together with the bond and supporting
documents, required under this part is approved by him, the appropriate
TTB officer shall issue a permit on Form 2096 to the applicant as a
manufacturer of tobacco products.

(72 Stat. 1421; 26 U.S.C. 5713)

[T.D. 6871, 31 FR 33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975]

[[Page 22]]

Sec. 40.76 Retention of permit and supporting documents.

The manufacturer shall retain his permit, together with the copy of
the application and supporting documents returned to him with the
permit, at the same place where the records required by this part are
kept and they shall be made available for inspection by any appropriate
TTB officer upon his request.

(72 Stat. 1421, 1423; 26 U.S.C. 5712, 5713, 5741)

Subpart F_Changes After Original Qualification of Manufacturers

Changes in Name

Sec. 40.91 Change in individual name.

Where there is a change in the name of an individual operating as a
manufacturer, of tobacco products he shall, within 30 days of such
change, make application on Form 2098 for an amended permit.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 40.92 Change in trade name.

Where there is a change in, or an addition or discontinuance of, a
trade name used by a manufacturer of tobacco products in connection with
operations authorized by his permit the manufacturer shall, within 30
days of such change, addition or discontinuance, make application on
Form 2098 for an amended permit to reflect such change. The manufacturer
shall also furnish a true copy of any new trade name certificate or
document issued to him, or statement in lieu thereof, required by Sec.
40.65.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6840, 30 FR 9311, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.93 Change in corporate name.

Where there is a change in the name of a corporate manufacturer of
tobacco products, the manufacturer shall, within 30 days of such change,
make application on Form 2098 for an amended permit. The manufacturer
shall also furnish such documents as may be necessary to establish that
the corporate name has been changed.

(72 Stat. 1421; 26 U.S.C. 5712)

Changes in Ownership and Control

Sec. 40.101 Fiduciary successor.

If an administrator, executor, receiver, trustee, assignee, or other
fiduciary, is to take over the business of a manufacturer of tobacco
products, as a continuing operation, such fiduciary shall, before
commencing operations, make application for permit and file bond as
required by subpart E, of this part, furnish certified copies, in
duplicate, of the order of the court, or other pertinent documents,
showing his appointment and qualification as such fiduciary, and make a
commencing inventory, in accordance with the provisions of Sec. 40.201:
Provided, That where a diagram has been furnished by the predecessor, in
accordance with the provisions of Sec. 40.69, the successor may adopt
such diagram if it is currently complete and accurate. However, where a
fiduciary intends only to liquidate the business, qualification as a
manufacturer of tobacco products will not be required if he promptly
files with the appropriate TTB officer a written statement to that
effect, in duplicate, together with an extension of coverage of the
predecessor's bond, executed by the fiduciary and the surety on such
bond, in accordance with the provisions of Sec. 40.137.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5712, 5721)

Sec. 40.102 Transfer of ownership.

If a transfer is to be made in ownership of the business of a
manufacturer of tobacco products (including a change of any member of a
partnership or association), such manufacturer shall give notice, in
writing, to the appropriate TTB officer, naming the proposed successor
and the desired effective date of such transfer. The proposed successor
shall, before commencing operations, qualify as a manufacturer of
tobacco products, in accordance with the applicable provisions of
subpart E of this part: Provided, That where a diagram has been
furnished by the manufacturer in accordance with the provisions of Sec.
40.69, the proposed successor

[[Page 23]]

may adopt such diagram if it is currently complete and accurate. The
manufacturer shall give such notice of transfer, and the proposed
successor shall make application for permit and file bond, as required,
in ample time for examination and approval thereof before the desired
date of such change. The predecessor shall make a concluding inventory
and concluding report, in accordance with the provisions of Sec. Sec.
40.201 and 40.202, respectively, and surrender his permit with such
inventory and report. The successor shall make a commencing inventory
and commencing report, in accordance with the provisions of Sec. Sec.
40.201 and 40.202, respectively.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5712, 5713, 5721, 5722)

Sec. 40.103 Change in officers, directors, or stockholders of a corporation.

Upon election or appointment (excluding successive reelection or
reappointment) of any officer or director of a corporation operating the
business of a manufacturer of tobacco products, or upon any occurrence
which results in a person acquiring ownership or control of more than
ten percent in aggregate of the outstanding stock of such corporation,
the manufacturer shall, within 30 days of such action, so notify the
appropriate TTB officer in writing, giving the identity of such person.
When there is any change in the authority furnished under Sec. 40.63
for officers to act in behalf of the corporation the manufacturer shall
immediately so notify the appropriate TTB officer in writing.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6840, 30 FR 9311, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.104 Change in control of a corporation.

Where the issuance, sale, or transfer of the stock of a corporation,
operating as a manufacturer of tobacco products, results in a change in
the identity of the principal stockholders exercising actual or legal
control of the operations of the corporation, the corporate manufacturer
shall, within 30 days after the change occurs, make application on Form
2093 for a new permit. Otherwise, the present permit shall be
automatically terminated at the expiration of such 30-day period, and
the manufacturer shall dispose of all tobacco products on hand, in
accordance with this part, make a concluding inventory and concluding
report, in accordance with the provisions of Sec. Sec. 40.201 and
40.202, respectively, and surrender his permit with such inventory and
report. If the application for a new permit is timely made, the present
permit shall continue in effect pending final action with respect to
such application.

(72 Stat. 1421, 1422; 26 U.S.C. 5712, 5713, 5721, 5722)

[T.D. 6871, 31 FR 33, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-232, 51 FR 28081, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Changes in Location of Factory

Sec. 40.111 Change in location within same region.

Whenever a manufacturer of tobacco products intends to relocate his
factory within the same region, the manufacturer shall, before
commencing operations at the new location, make application on Form 2098
for, and obtain, an amended permit. The application shall be supported
by an extension of coverage of bond in accordance with the provisions of
Sec. 40.137.

(72 Stat. 1421; 26 U.S.C. 5711, 5712)

Sec. 40.112 Change in address.

Whenever any change occurs in the address, but not the location, of
the factory of a manufacturer of tobacco products, as a result of action
of local authorities, the manufacturer shall, within 30 days of such
change, make application on Form 2098 for an amended permit.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 40.113 Change in location to another region.

Whenever a manufacturer of tobacco products intends to remove his
factory to another region, the manufacturer shall, before commencing
operations at the new location, qualify as such a manufacturer in the
new region, in accordance with the applicable provisions

[[Page 24]]

of subpart E of this part. The manufacturer shall notify the appropriate
TTB officer for the region from which he is removing his factory of his
qualification in the new region, giving the address of the new location
of his factory and the number of the permit issued to him in the new
region, make a concluding inventory and concluding report in accordance
with the provisions of Sec. Sec. 40.201 and 40.202, respectively, and
surrender the permit for his old location with such inventory and
report.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5712, 5713, 5721, 5722)

Sec. 40.114 Extension or curtailment of factory.

Where a tobacco products factory is to be changed to an extent which
will make inaccurate the description of the factory as set forth in the
last application by the manufacturer for permit, on the diagram, if any,
furnished with such application, the manufacturer shall first make an
application on Form 2098 for, and obtain, an amended permit. Such
application shall describe the proposed change in the factory and shall
be accompanied by a new diagram if required under the provisions of
Sec. 40.69.

(72 Stat. 1421; 26 U.S.C. 5711, 5712)

Subpart G_Bonds and Extensions of Coverage of Bonds

Sec. 40.131 Corporate surety.

(a) Surety bonds required under the provisions of this part may be
given only with corporate sureties holding certificates of authority
from the Secretary of the Treasury as acceptable sureties on Federal
bonds. Each bond and each extension of coverage of bond shall at the
time of filing be accompanied by a power of attorney authorizing the
agent or officer who executed the bond to so act on behalf of the
surety. The appropriate TTB officer who is authorized to approve the
bond may, whenever he deems it necessary, require additional evidence of
the authority of the agent or officer to execute the bond or extension
of coverage of bond. The power of attorney shall be prepared on a form
provided by the surety company and executed under the corporate seal of
the company. If the power of attorney submitted is other than a manually
signed document it shall be accompanied by a certificate of its
validity. Limitations concerning corporate sureties are prescribed by
the Secretary in Treasury Department Circular No. 570, as revised. The
surety shall have no interest whatever in the business covered by the
bond.
(b) Treasury Department Circular No. 570 (Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as
Acceptable Reinsuring Companies) is published in the Federal Register
annually as of the first workday in July. As they occur, interim
revisions of the circular are published in the Federal Register. Copies
may be obtained from the Audit Staff, Bureau of Government Financial
Operations, Department of the Treasury, Washington, DC 20226.

(61 Stat. 649, 72 Stat. 1421, as amended; 31 U.S.C. 9304, 9306; 26
U.S.C. 5711; 5 U.S.C. 552(a) (80 Stat. 383, as amended))

[T.D. 6961, 33 FR 9488, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-92, 46 FR 46921, Sept. 23, 1981]

Sec. 40.132 Deposit of securities in lieu of corporate surety.

In lieu of corporate surety the manufacturer of tobacco products may
pledge and deposit, as security for his bond, securities which are
transferable and are guaranteed as to both interest and principal by the
United States, in accordance with the provisions of 31 CFR part 225.

(61 Stat. 650, 72 Stat. 1421; 6 U.S.C.9301, 9303; 26 U.S.C. 5711)

Sec. 40.133 Amount of individual bond.

The amount of the bond of a manufacturer of tobacco products shall
be not less than the total amount of tax liability on all tobacco
products manufactured in his factory, received in bond from other
factories and from export warehouses, and released to him in bond from
customs custody, during any calendar month. Where the amount of any bond
is no longer sufficient and the bond is in less than the maximum amount,
the manufacturer shall immediately file a strengthening or superseding
bond as required by this

[[Page 25]]

subpart. The amount of any such bond (or the total amount including
strengthening bonds, if any) need not exceed $250,000 for a manufacturer
producing or receiving cigarettes in bond; need not exceed $150,000 for
a manufacturer producing or receiving cigars, smokeless tobacco, pipe
tobacco, or roll-your-own tobacco in bond; and need not exceed $250,000
for a manufacturer producing or receiving any combination of tobacco
products in bond. The bond of a manufacturer of tobacco products shall
in no case be less than $1,000.

[T.D. ATF-232, 51 FR 28080, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-289, 54 FR 48839, Nov. 27, 1989;
T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Sec. 40.134 Amount of blanket bond.

In the case of a blanket bond filed under the provisions of Sec.
40.67, where the total amount of individual bonds otherwise required for
the factories under Sec. 40.133 does not exceed $250,000, such blanket
bond shall be not less than the total amount of such individual bonds.
Where the total amount of such individual bonds required is in excess of
$250,000 but not in excess of $500,000, the amount of the blanket bond
shall be not less than $250,000 plus 50 percent of such total amount
which is in excess of $250,000. Where the total amount of such
individual bonds required is in excess of $500,000 the amount of the
blanket bond shall be not less than $375,000 plus 25 percent of such
total amount which is in excess of $500,000.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.135 Strengthening bond.

Where the amount of any bond is no longer sufficient under the
provisions of Sec. 40.133 or Sec. 40.134, the manufacturer shall
immediately file a strengthening bond in an appropriate amount with the
same surety as that on the bond already in effect, unless a superseding
bond is filed pursuant to Sec. 40.136. Strengthening bonds will not be
approved where any notation is made thereon which is intended, or which
may be construed, as a release of any former bond, or as limiting the
amount of either bond to less than its full amount.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.136 Superseding bond.

A manufacturer of tobacco products shall immediately file a new bond
to supersede his current bond when
(a) The corporate surety on the current bond becomes insolvent,
(b) The appropriate TTB officer approves a request from the surety
on the current bond to terminate his liability under the bond,
(c) Payment of any liability under a bond is made by the surety
thereon,
(d) The amount of the bond is no longer sufficient under the
provisions of Sec. 40.133 or Sec. 40.134 and a strengthening bond has
not been filed, or
(e) The appropriate TTB officer considers such a superseding bond
necessary for the protection of the revenue.

Where a bond is not filed as required under the provisions of this
section the manufacturer shall discontinue forthwith the operations to
which such bond relates.

(72 Stat. 1421: 26 U.S.C. 5711)

Sec. 40.137 Extension of coverage of bond.

An extension of coverage of bond shall be manifested on Form 2105 by
the manufacturer of tobacco products and by the surety on the bond with
the same formality and proof of authority as required for the execution
of the bond.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.138 Approval of bond and extension of coverage of bond.

No person shall commence operations under any bond, nor extend his
operations, until he receives from the appropriate TTB officer notice of
his approval of the bond or of an appropriate extension of coverage of
the bond required under this part.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.139 Termination of bond.

Any bond required by this part may be terminated by the appropriate
TTB officer as to liability for future operations (a) pursuant to
application by

[[Page 26]]

the surety as provided in the bond, (b) on approval of a superseding
bond, or (c) when operations by the manufacturer are permanently
discontinued in accordance with subpart J. After a bond is terminated
the surety shall remain bound with respect to any liability for unpaid
taxes, penalties, and interest, not in excess of the amount of the bond,
incurred by the manufacturer prior to the termination date.

(72 Stat. 1421; 26 U.S.C. 5711)

[T.D. 6840, 30 FR 9311, July 27, 1965. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 40.140 Release of pledged securities.

Securities of the United States pledged and deposited as provided in
Sec. 40.132 shall be released only in accordance with the provisions of
31 CFR part 225. Such securities will not be released by the appropriate
TTB officer until liability under the bond for which they were pledged
has been terminated. When the appropriate TTB officer is satisfied that
they may be released, he shall fix the date or dates on which a part or
all of such securities may be released. At any time prior to the release
of such securities, the appropriate TTB officer may extend the date of
release for such additional length of time as he deems necessary.

(61 Stat. 650, 72 Stat. 1421; 31 U.S.C. 9301, 9303, 26 U.S.C. 5711)

Subpart H_Operations by Manufacturers

Determination and Payment of Taxes on Tobacco Products.

Sec. 40.161 Determination of tax and method of payment.

Except for removals in bond and transfers in bond, as authorized by
law, the taxes imposed on tobacco products by section 5701, I.R.C.,
shall be determined at the time of removal of such products and paid on
the basis of a return, in accordance with the provisions of this part.

(72 Stat. 1417; 26 U.S.C. 5703)

[T.D. 6929, 32 FR 13866, Oct. 5, 1967. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28081, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986]

Sec. 40.162 Semimonthly tax return.

Every manufacturer of tobacco products shall file, for each of his
factories, a semimonthly tax return on Form 5000.24 for each return
period, including any period during which a manufacturer begins or
discontinues business. The return shall be filed with TTB in accordance
with the instructions on the form. The manufacturer shall file the
return at the time specified in Sec. 40.165 regardless of whether
tobacco products are removed or whether tax is due for that particular
return period. However, when the manufacturer requests by letter and the
appropriate TTB officer grants specific authorization, the manufacturer
need not during the term of such authorization file a tax return for
which tax is not due or payable.

[T.D. ATF-232, 51 FR 35353, Oct. 3, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-251, 52 FR 19339, May 22, 1987]

Sec. 40.163 Semimonthly tax return periods.

Except as provided in section 40.164, the periods to be covered by
semimonthly tax returns shall be from the 1st day of each month through
the 15th day of that month and from the 16th day of each month through
the last day of that month.

[T.D. ATF-365, 60 FR 33675, June 28, 1995]

Sec. 40.164 Special rule for taxes due for the month of September (effective

after December 31, 1994).

(a)(1) Except as provided in paragraph (a)(2) of this section, the
second semimonthly period for the month of September shall be divided
into two payment periods, from the 16th day through the 26th day, and
from the 27th day through the 30th day. The manufacturer shall file a
return on Form 5000.24, and make remittance, for the period September
16-26, no later than September 29. The manufacturer shall file a return
on Form 5000.24, and make remittance, for the period September 27-30, no
later than October 14.
(2) Taxpayment not by electronic fund transfer. In the case of taxes
not required to be remitted by electronic fund transfer as prescribed by
Sec. 40.165a,

[[Page 27]]

the second semimonthly period of September shall be divided into two
payment periods, from the 16th day through the 25th day, and the 26th
day through the 30th day. The manufacturer shall file a return on Form
5000.24, and make remittance, for the period September 16-25, no later
than September 28. The manufacturer shall file a return on Form 5000.24,
and make remittance, for the period September 26-30, no later than
October 14.
(b) Amount of payment: Safe harbor rule. (1) Taxpayers are
considered to have met the requirements of paragraph (a)(1) of this
section, if the amount paid no later than September 29 is not less than
11/15 (73.3 percent) of the tax liability incurred for the semimonthly
period beginning on September 1 and ending on September 15, and if any
underpayment of tax is paid by October 14.
(2) Taxpayers are considered to have met the requirements of
paragraph (a)(2) of this section, if the amount paid no later than
September 28 is not less than 2/3rds (66.7 percent) of the tax liability
incurred for the semimonthly period beginning on September 1 and ending
on September 15, and if any underpayment of tax is paid by October 14.
(c) Last day for payment. If the required due date for taxpayment
for the periods September 16-25 or September 16-26 as applicable, falls
on a Saturday or legal holiday, the return and remittance shall be due
on the immediately preceding day. If the required due date falls on a
Sunday, the return and remittance shall be due on the immediately
following day.
(d) Example. Payment of tax for the month of September--(1) Facts.
X, a manufacturer of tobacco products required to pay taxes by
electronic fund transfer, incurred tax liability in the amount of
$30,000 for the first semimonthly period of September. For the period
September 16-26, X incurred tax liability in the amount of $45,000, and
for the period September 27-30, X incurred tax liability in the amount
of $2,000.
(2) Payment requirement. X's payment of tax in the amount of $30,000
for the first semimonthly period of September is due no later than
September 29 (Sec. 40.165(a)). X's payment of tax for the period
September 16-26 is also due no later than September 29 (Sec.
40.164(a)(1)). X may use the safe harbor rule to determine the amount of
payment due for the period of September 16-26 (Sec. 40.164(b)). Under
the safe harbor rule, X's payment of tax must equal $21,990.00, 11/15ths
of the tax liability incurred during the first semimonthly period of
September. Additionally, X's payment of tax in the amount of $2,000 for
the period September 27-30 must be paid no later than October 14 (Sec.
40.164(a)(1)). X must also pay the underpayment of tax, $23,010.00, for
the period September 16-26, no later than October 14 (Sec. 40.164(b)).

[T.D. ATF-365, 60 FR 33675, June 28, 1995]

Sec. 40.165 Times for filing semimonthly return.

(a) General. Except as provided by Sec. 40.164, and paragraph (b)
of this section, semimonthly returns on Form 5000.24 shall be filed, for
each return period, not later than the 14th day after the last day of
the return period. If the due date falls on a Saturday, Sunday, or legal
holiday, the return and remittance shall be due on the immediately
preceding day which is not a Saturday, Sunday, or legal holiday, except
as provided by Sec. 40.164(c).
(b) Postmark. The official postmark of the U.S. Postal Service
stamped on the cover in which the return was mailed shall be considered
the date of delivery of the tax return and, if the return was
accompanied by a remittance, the date of delivery of the remittance.
When the postmark is illegible, the manufacturer shall prove when the
postmark was made. When the proprietor sends the tax return with or
without remittance by registered mail or by certified mail, the date of
registry or the date of the postmark on the sender's receipt of
certified mail, as the case may be, shall be treated as the date of
delivery of the tax return and, if accompanied, of the remittance.

(Approved by the Office of Management and Budget under control number
1512-0467)

[T.D. ATF-246, 52 FR 669, Jan. 8, 1987, as amended by T.D. ATF-251, 52
FR 19339, May 22, 1987; T.D. ATF-365, 60 FR 33675, June 28, 1995; T.D.
ATF-446, 66 FR 16602, Mar. 27, 2001; T.D. ATF-446a, 66 FR 19089, Apr.
13, 2001]

[[Page 28]]

Sec. 40.165a Payment of tax by electronic fund transfer.

(a) General. (1) Each taxpayer who was liable, during a calendar
year, for a gross amount equal to or exceeding five million dollars in
taxes on tobacco products, cigarette papers, and cigarette tubes
combining tax liabilities incurred under this part and part 41 of this
chapter, shall use a commercial bank in making payment by electronic
fund transfer (EFT) of taxes on tobacco products, cigarette papers, and
cigarette tubes during the succeeding calendar year. Payment of taxes on
tobacco products by cash, check, or money order, as described in Sec.
40.168, is not authorized for a taxpayer who is required, by this
section, to make remittances by EFT. For purposes of this section, the
dollar amount of tax liability is defined as the gross tax liability on
all taxable withdrawals and importations (including tobacco products,
cigarette papers, and cigarette tubes brought into the United States
from Puerto Rico or the Virgin Islands) during the calendar year,
without regard to any drawbacks, credits, or refunds, for all premises
from which such activities are conducted by the taxpayer. Overpayments
are not taken into account in summarizing the gross tax liability.
(2) For the purposes of this section, a taxpayer includes a
controlled group of corporations, as defined in 26 U.S.C. 1563, and
implementing regulations in 26 CFR 1.1563-1 through 1.1563-4, except
that the words ``at least 80 percent'' shall be replaced by the words
``more than 50 percent'' in each place it appears in subsection (a) of
26 U.S.C. 1563, as well as in the implementing regulations. Also, the
rules for a ``controlled group of corporations'' apply in a similar
fashion to groups which include partnerships and/or sole
proprietorships. If one entity maintains more than 50% control over a
group consisting of corporations and one, or more, partnerships and/or
sole proprietorships, all of the members of the controlled group are one
taxpayer for the purpose of determining who is required to make
remittances by EFT.
(3) A taxpayer who is required by this section to make remittances
by EFT, shall make a separate EFT remittance and file a separate return,
Form 5000.24, for each factory from which tobacco products are withdrawn
upon determination of tax.
(b) Requirements. (1) On or before January 10 of each calendar year,
except for a taxpayer already remitting the tax by EFT, each taxpayer
who was liable for a gross amount equal to or exceeding five million
dollars in taxes on tobacco products, cigarette papers, and cigarette
tubes combining tax liabilities incurred under this part and part 41 of
this chapter, during the previous calendar year, shall notify, in
writing, the appropriate TTB officer. The notice shall be an agreement
to make remittances by EFT.
(2) For each return filed in accordance with this part, the taxpayer
shall direct the taxpayer's bank to make an electronic fund transfer in
the amount of the tax payment to the Treasury Account as provided in
paragraph (e) of this section. The request shall be made to the bank
early enough for the transfer to be made to the Treasury Account by no
later than the close of business on the last day for filing the return,
prescribed in Sec. 40.165 or Sec. 40.167. The request shall take into
account any time limit established by the bank.
(3) If a taxpayer was liable for less than five million dollars in
taxes on tobacco products, cigarette papers, and cigarette tubes
combining tax liabilities incurred under this part and part 41 of this
chapter during the preceding calendar year, the taxpayer may choose
either to continue remitting the tax as provided in this section or to
remit the tax with the return on as prescribed by Sec. 40.168. Upon
filing the first return which the taxpayer chooses to discontinue
remitting the tax by EFT and to begin remitting the tax with the tax
return, the taxpayer shall notify the appropriate TTB officer by
attaching a written notification to Form 5000.24, stating that no taxes
are due by EFT, because the tax liability during the preceding calendar
year was less than five million dollars, and that the remittance shall
be filed with the tax return.
(c) Remittance. (1) Each taxpayer shall show on the return, Form
5000.24, information about remitting the tax for that return period by
EFT and shall

[[Page 29]]

file the return with the TTB, in accordance with the instructions on
Form 5000.24.
(2) Remittances shall be considered as made when the taxpayment by
electronic fund transfer is received by the Treasury Account. For
purposes of this section, a taxpayment by electronic fund transfer shall
be considered as received by the Treasury Account when it is paid to a
Federal Reserve Bank.
(3) When the taxpayer directs the bank to effect an electronic fund
transfer message as required by paragraph (b)(2) of this section, any
transfer data record furnished to the taxpayer, through normal banking
procedures, will serve as the record of payment, and shall be retained
as part of required records.
(d) Failure to make a taxpayment by EFT. The taxpayer is subject to
a penalty imposed by 26 U.S.C. 5761, 6651, or 6656, as applicable, for
failure to make a tax payment by EFT on or before the close of business
on the prescribed last day for filing.
(e) Procedure. Upon the notification required under paragraph (b)(1)
of this section, the appropriate TTB officer will issue to the taxpayer
an TTB Procedure entitled, Payment of Tax by Electronic Fund Transfer.
This publication outlines the procedure a taxpayer is to follow when
preparing returns and EFT remittances in accordance with this part. The
U.S. Customs Service will provide the taxpayer with instructions for
preparing EFT remittances for payments to be made to the U.S. Customs
Service.

(Approved by the Office of Management and Budget under control number
1512-0457)

(Act of August 16, 1954, 68A Stat. 775, as amended (26 U.S.C. 6302);
sec. 202, Pub. L. 85-859, 72 Stat. 1417, as amended (26 U.S.C. 5703))

[T.D. ATF-198, 49 FR 37582, Sept. 25, 1984, as amended by T.D. ATF-219,
50 FR 51390, Dec. 17, 1985; T.D. ATF-232, 51 FR 28081, Aug. 5, 1986;
T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-245, 52 FR 533, Jan.
7, 1987; T.D. ATF-251, 52 FR 19339, May 22, 1987; T.D. ATF-262, 52 FR
47560, Dec. 15, 1987; T.D. ATF-446, 66 FR 16602, Mar. 27, 2001; T.D.
ATF-446a, 66 FR 19089, Apr. 13, 2001; T.D. TTB-16, 69 FR 52423, Aug. 26,
2004]

Sec. 40.166 Default, prepayment of tax required.

Where a check or money order tendered with any return, whether semi-
monthly or prepayment, for payment of tax on tobacco products is not
paid on presentment, where a manufacturer fails to remit with the return
the full amount of tax due thereunder, or where a manufacturer is
otherwise in default in payment of tax on tobacco products under the
internal revenue laws or this chapter, during the period of such default
and until the appropriate TTB officer finds that the revenue will not be
jeopardized by the deferred payment of tax pursuant to the provisions of
this part, no tobacco products shall be removed subject to tax until the
tax thereon has first been paid as provided in Sec. 40.167. Any
remittance made during the period of a default shall be in cash, or in
the form of a certified, cashier's, or treasurer's check drawn on any
bank or trust company incorporated under the laws of the United States,
or under the laws of any State, Territory, or possession of the United
States, or in the form of a U.S. postal money order or other money
order, and defined in Sec. 70.61 of this chapter (payment by check or
money order), or shall be delivered in the form of an electronic fund
transfer message as provided in Sec. 40.165a.

(68A Stat. 777, 72 Stat. 1417; 26 U.S.C. 6311, 5703; Aug. 16, 1954, ch.
736, 68A Stat. 707 (26 U.S.C. 5703); Aug. 16, 1954, ch. 736, 68A Stat.
777 (26 U.S.C. 6311))

[T.D. 6871, 31 FR 34, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-77, 46 FR 3008, Jan. 13, 1981; T.D. ATF-232, 51 FR 28081, Aug. 5,
1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-301, 55 FR
47658, Nov. 14, 1990]

Sec. 40.167 Prepayment tax return.

(a) To prepay the tax on tobacco products a manufacturer shall file
a prepayment tax return on Form 5000.24 showing the tax to be paid on
the tobacco products prior to removal. The return shall be executed and
filed, prior to the removal of such products, with TTB, in accordance
with the instructions on the form. A manufacturer prepaying the taxes on
tobacco products under the provisions of this section

[[Page 30]]

shall continue to file semimonthly returns as required by Sec. 40.162.
(b) However, if a manufacturer is required by Sec. 40.165a to pay
the tax by electronic fund transfer, the manufacturer shall prepay the
tax before any tobacco products can be removed for consumption or sale
by completing the return and filing it with TTB, in accordance with the
instructions on the form. At the same time, the manufacturer shall
direct his bank to effect an EFT.

(Sec. 202, Pub. L. 85-859, 68A Stat. 1417 (26 U.S.C. 5703); sec. 202,
Pub. L. 85-859, 72 Stat. 1423, as amended (26 U.S.C. 5741); (Aug. 16,
1954, ch. 736, 68A Stat. 775, as amended (26 U.S.C. 6302)); 26 U.S.C.
7805 (68A Stat. 917, as amended))

[T.D. 6871, 31 FR 34, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-77, 46 FR 3008, Jan. 13, 1981; T.D.
ATF-219, 50 FR 51390, Dec. 17, 1985; T.D. ATF-232, 51 FR 28081, Aug. 5,
1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR
19340, May 22, 1987]

Sec. 40.168 Remittance with return.

Except when an electronic fund transfer has been made under Sec.
40.165a for the full amount of tax due, the tax on tobacco products
shown to be due and payable on any return shall be paid by remittance in
full with the tax return. The remittance may be in the form which the
appropriate TTB officer is authorized to accept under Sec. 70.61 of
this chapter (Payment by check or money order) and which is acceptable
to him, except as otherwise specified in Sec. 40.166. Checks and money
orders shall be made payable to the ``Alcohol and Tobacco Tax and Trade
Bureau''. In paying the tax, a fractional part of a cent shall be
disregarded unless it amounts to one-half cent or more, in which case it
shall be increased to one cent.

(68A Stat. 778, 72 Stat. 1417; 26 U.S.C. 6313, 5703; Aug. 16, 1954, ch.
736, 68A Stat. 707, as amended (26 U.S.C. 5703))

[T.D. 6871, 31 FR 35, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-77, 46 FR 3009, Jan. 13, 1981; T.D. ATF-232, 51 FR 28081, Aug. 5,
1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-301, 55 FR
47658, Nov. 14, 1990]

Sec. 40.169 Employer identification number.

The employer identification number (defined at 26 CFR 301.7701-12)
of a manufacturer of tobacco products who has been assigned such a
number shall be shown on each tax return, Form 5000.24. Failure of the
manufacturer to include his employer identification number on Form
5000.24 may result in assertion and collection of the penalty specified
in Sec. 70.113 of this chapter.

[T.D. ATF-219, 50 FR 51390, Dec. 17, 1985, as amended by T.D. ATF-301,
55 FR 47658, Nov. 14, 1990]

Sec. 40.170 Application for employer identification number.

Every manufacturer of tobacco products who has neither secured an
employer identification number nor made application therefor shall file
an application on Form SS-4. Form SS-4 may be obtained from any service
center director or from any district director. Such application shall be
filed on or before the seventh day after the date on which any tax
return under this part is filed. Each manufacturer shall make
application for and shall be assigned only one employer identification
number for all internal revenue tax purposes.

(75 Stat. 828; 26 U.S.C. 6109)

[T.D. 7055, 35 FR 13515, Aug. 25, 1970. Redesignated at 40 FR 16835,
Apr. 15, 1975]

Sec. 40.171 Execution and filing of Form SS-4.

The application on Form SS-4, together with any supplementary
statement, shall be prepared in accordance with the form, instructions,
and regulations applicable thereto, and shall set forth fully and
clearly the data therein called for. The application shall be filed with
the service center director serving any internal revenue district where
the applicant is required to file returns under this part, except that
hand-carried applications may be filed with the district director of any
such district as provided for in 26 CFR 301.6091-1. The application
shall be signed by (a) the individual if the person is an individual;
(b) the president, vice president, or other principal officer if the
person is a corporation; (c) a

[[Page 31]]

responsible and duly authorized member or officer having knowledge of
its affairs if the person is a partnership or other unincorporated
organization; or (d) the fiduciary if the person is a trust or estate.

(75 Stat. 828; 26 U.S.C. 6109)

[T.D. 7055, 35 FR 13515, Aug. 25, 1970. Redesignated at 40 FR 16835,
Apr. 15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979]

Records

Sec. 40.181 General.

Every manufacturer of tobacco products must keep records of his
operations and transactions which shall reflect, for each day, the
information specified in Sec. Sec. 40.182 and 40.183. For this purpose
day shall mean calendar day, except that the appropriate TTB officer
may, upon application of the manufacturer by letter, in duplicate,
authorize as such day for a factory a 24-hour cycle of operation other
than the calendar day. A day once so established as other than the
calendar day may be changed only by another application approved by the
appropriate TTB officer. No specific form is required. The manufacturer
may use commercial records from which the required information may be
readily ascertained for this purpose. The manufacturer shall keep the
auxiliary and supplemental records from which such records are compiled
and shall keep supporting records, as specified in Sec. Sec. 40.184 and
40.186, of tobacco products removed subject to tax and transferred in
bond. Except as provided in Sec. Sec. 40.184 and 40.186, the entries in
the commercial records so maintained or kept shall be made not later
than the close of the next business day following the day on which the
transaction(s) occurred. As used in this section the term business day
shall mean any day other than Saturday, Sunday, a legal holiday in the
District of Columbia, or a statewide legal holiday in the State wherein
the factory to which the records relate is located.

(72 Stat. 1423, as amended; 26 U.S.C. 5741)

[T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Sec. 40.182 Record of tobacco.

The record of a manufacturer of tobacco products shall show the date
and total quantity in pounds, of all tobacco other than tobacco
products:
(a) Received (including tobacco resulting from reduction of cigars
and cigarettes, and unpackaging of smokeless tobacco, pipe tobacco and
roll-your-own tobacco), together with the name and address of the person
from whom received;
(b) Shipped or delivered, together with the name and address of the
person to whom shipped or delivered;
(c) Lost; and
(d) Destroyed.

(Approved by the Office of Management and Budget under control number
1512-0358)

[T.D. 6871, 31 FR 35, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-172, 49 FR 14943, Apr. 16, 1984; T.D.
ATF-232, 51 FR 28081, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-289, 54 FR 48840, Nov. 27, 1989; T.D. ATF-424, 64 FR
71931, Dec. 22, 1999]

Sec. 40.183 Record of tobacco products.

The record of a manufacturer of tobacco products shall show the date
and total quantities of all tobacco products, by kind (small cigars-
large cigars; small cigarettes-large cigarettes; chewing tobacco-snuff;
pipe tobacco; roll-your-own tobacco):
(a) Manufactured;
(b) Received in bond by--
(1) Transfer from other factories,
(2) Release from customs custody,
(3) Transfer from export warehouses, and
(4) Transfer from foreign trade zone;
(c) Received by return to bond;
(d) Disclosed as an overage by inventory;
(e) Removed subject to tax (itemize large cigars by sale price in
accordance with Sec. 40.22, except cigars that cost more than $235.294
may optionally be shown as if the price were $236 per thousand);
(f) Removed, in bond, for--
(1) Export,
(2) Transfer to export warehouses,
(3) Transfer to other factories,
(4) Transfer to a foreign trade zone
(5) Use of the United States, and
(6) Experimental purposes off factory premises;

[[Page 32]]

(g) Otherwise disposed of, without determination of tax, by--
(1) Consumption by employees on factory premises,
(2) Consumption by employees off factory premises, together with the
number of employees to whom furnished,
(3) Use for experimental purposes on factory premises,
(4) Loss,
(5) Destruction, and
(6) Reduction to materials;
(h) Disclosed as a shortage by inventory; and
(i) On which the tax has been determined and which are--
(1) Received, and
(2) Disposed of.

(Approved by the Office of Management and Budget under control number
1512-0358)

[T.D. ATF-421, 64 FR 71923, Dec. 22, 1999, as amended by T.D. ATF-424,
64 FR 71931, Dec. 22, 1999; T.D. ATF-420, 64 FR 71940, Dec. 22, 1999]

Sec. 40.184 Record of removals subject to tax.

(a) Requirement. Every manufacturer of tobacco products must keep a
record of tobacco products removed from the factory subject to tax. The
manufacturer must make entries in this record at the time of removal.
The record for each removal must show:
(1) The date of removal,
(2) The name and address of the person to whom shipped or delivered,
(3) The kind and quantity of tobacco products removed, and
(4) For large cigars, show the sale price (If the sale price is more
than $235.294 per thousand, you may place a note to that effect in the
record instead of the actual price).
(b) Exceptions. (1) The record of removal may consist of the
manufacturer's commercial documents, such as copies of invoices, rather
than records prepared expressly to meet the requirements of this
section. If commercial documents are used, they must be kept at the
factory, contain all the details required by this section, and be clear
and accurate. Commercial documents that do not show specifically the tax
classification of tobacco products (including sale price of large
cigars) are still acceptable if they contain adequate information for an
appropriate TTB officer to readily ascertain the applicable tax.
(2) Where tobacco products are delivered within the factory directly
to the consumer, the record need not show the name and address of the
consumer.

(Sec. 2128(c), Pub. L. 94-455, 90 Stat. 1921 (26 U.S.C. 5741))

[T.D. ATF-420, 64 FR 71941, Dec. 22, 1999]

Sec. 40.185 Retention of records.

All records required to be kept under this part, including copies of
authorizations, claims, inventories, notices, reports, returns and
schedules, shall be retained by the manufacturer for three years
following the close of the calendar year in which filed or made, or in
the case of an authorization, for three years following the close of the
calendar year in which the operation under such authorization is
concluded. Such records shall be kept in the factory or a place
convenient thereto, and shall be made available for inspection by any
appropriate TTB officer upon his request.

(72 Stat. 1423; 26 U.S.C. 5741)

Sec. 40.186 Record in support of transfers in bond.

Every manufacturer of tobacco products shall keep a supporting
record of tobacco products transferred in bond to or received in bond
from other factories, and shall make the entries therein at the time of
each receipt or removal of such products. Such supporting records shall
show the date of receipt or removal, the name of the manufacturer and
address of the factory from which received or to which removed or the
permit number of such factory, and the kind and quantity of tobacco
products. Where the manufacturer keeps, at the factory, copies of
invoices or other commercial records containing the information required
as to each receipt and removal, in such orderly manner that the
information may be readily ascertained therefrom,

[[Page 33]]

such copies will be considered the supporting record required by this
section.

(Approved by the Office of Management and Budget under control number
1512-0358)

(72 Stat. 1423, as amended; 26 U.S.C. 5741)

Sec. 40.187 Record of sales prices of large cigars.

Every manufacturer of tobacco products who removes large cigars from
the factory shall keep such records as are necessary to establish and
verify the price for which the cigars are sold, in accordance with Sec.
40.22. The record shall be a continuing one of each brand and size of
cigar so that the sale price on which the tax is based may be readily
ascertained.

[ T.D. ATF-307, 55 FR 52743, Dec. 21, 1990. Redesignated and amended by
T.D. ATF-420, 64 FR 71941, Dec. 22, 1999; T.D. ATF-420, 65 FR 1676, Jan.
11, 2000]

Inventories and Reports

Sec. 40.201 Inventories.

Every manufacturer of tobacco products shall make true and accurate
inventories on Form 5210.9, which inventories shall include all tobacco
products and tobacco on hand required to be accounted for in the records
kept under this part. The manufacturer shall make such an inventory at
the time of commencing business, which shall be the effective date of
the permit issued upon original qualification under this part; at the
time of transferring ownership; at the time of changing the location of
his factory to a different region; at the time of concluding business;
and at such other time as any appropriate TTB officer may require. Each
inventory shall be prepared in duplicate, and shall be subject to
verification by an appropriate TTB officer. The original of each such
inventory shall be submitted to the appropriate TTB officer, and the
duplicate shall be retained by the manufacturer.

(Approved by the Office of Management and Budget under control number
1512-0358)

(72 Stat. 1422, 1423, as amended; 26 U.S.C. 5721, 5741)

Sec. 40.202 Reports.

(a) Monthly report. Every manufacturer of tobacco products shall
make a report on Form 5210.5, in duplicate, for each month and for any
portion of a month during which he engages in such business. Such report
shall be made regardless of whether any operations or transactions
occurred during the month or portion of a month covered therein. The
report for a month or portion of a month in which business is commenced
or is concluded shall be conspicuously marked ``Commencing Report'' or
``Concluding Report,'' respectively. The original of the report shall be
submitted to the appropriate TTB officer not later than the 20th day of
the month succeeding the month covered therein, and the duplicate shall
be retained by the manufacturer. Each report shall show, for the period
covered, the total quantity of tobacco products:
(1) Manufactured,
(2) Received in bond,
(3) Received by return to bond,
(4) Disclosed by inventory as an overage,
(5) Removed subject to tax,
(6) Removed in bond,
(7) Otherwise disposed of without determination of tax,
(8) Disclosed by inventory as a shortage, and
(9) On hand, in bond, beginning of and end of month.
(b) Report of wholesale prices of large cigars removed before
January 1, 1991. Every manufacturer of tobacco products who removes
large cigars from his factory, and who issues announcements such as
those described in this paragraph, shall make a report of each
establishment or change of wholesale

[[Page 34]]

price (suggested delivered price to retailers) for large cigars. The
report shall consist of a copy of each general announcement that the
manufacturer issues within his organization or to the trade about
establishment or changes of wholesale prices. Only one copy of an
announcement need be submitted even if it relates to tobacco products
removed subject to tax from more than one factory. If this copy does not
show the actual date when the announcement was issued, or identify the
factory or factories from which removals of the cigars covered by the
announcement are made, then the copy shall be annotated to show this
information. The factory or factories shall be identified either by
permit number(s) or by name, city and state. If an intraorganizational
announcement involves a forthcoming price change or new product which at
the time of issuance is to remain confidential until a later date, the
manufacturer may include a statement to this effect on the copy
submitted. The copy shall be submitted to the appropriate TTB officer
within five business days after the day issued.

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5722))

(Approved by the Office of Management and Budget under Control No. 1512-
0358)

[T.D. 6871, 31 FR 36, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-40, 42 FR 5001, Jan. 26, 1977; T.D.
ATF-232, 51 FR 28081, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-307, 55 FR 52743, Dec. 21, 1990; T.D. ATF-424, 64 FR
71931, Dec. 22, 1999]

Packages

Sec. 40.211 Package.

All tobacco products shall, before removal subject to tax, be put up
by the manufacturer in packages which shall be of such construction as
will securely contain the products therein and maintain the mark and the
notice thereon as required by this part. No package of tobacco products
shall have contained therein, attached thereto, or stamped, marked,
written, or printed thereon (a) any certificate, coupon, or other device
purporting to be or to represent a ticket, chance, share, or an interest
in, or dependent on, the event of a lottery, (b) any indecent or immoral
picture, print, or representation, or (c) any statement or indication
that United States tax has been paid.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 36, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28081, Aug. 5, 1986 T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.212 Mark.

Every package of tobacco products packaged in a domestic factory
shall, before removal subject to tax, have adequately imprinted thereon,
or on a label securely affixed thereto, a mark as specified in this
section. The mark may consist of the name of the manufacturer removing
the product subject to tax and the location (by city and State) of the
factory from which the products are to be so removed, or may consist of
the permit number of the factory from which the products are to be so
removed. (Any trade name of the manufacturer approved as provided in
Sec. 40.65 may be used in the mark as the name of the manufacturer.) As
an alternative, where tobacco products are packaged and removed subject
to tax by the same manufacturer, either at the same or different
factories, the mark may consist of the name of such manufacturer if the
factory where packaged is identified on or in the package by a means
approved by the appropriate TTB officer. Before using the alternative,
the manufacturer shall notify the appropriate TTB officer in writing of
the name to be used as the name of the manufacturer and the means to be
used for identifying the factory where packaged. If approved by him the
appropriate TTB officer shall return approved copies of the notice to
the manufacturer. A copy of the approved notice shall be retained as
part of the factory records at each of the factories operated by the
manufacturer.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 36, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28081, Aug. 5, 1986; T.D. ATF-243, 52 FR
43194, Dec. 1, 1986]

[[Page 35]]

Sec. 40.213 Tobacco products labeled for export.

Tobacco products labeled for export are ineligible for removal from
the factory and distribution into the domestic U.S. market. Such
products may only be sold, transferred or delivered onto the domestic
U.S. market by a manufacturer of tobacco products after repackaging of
the product. For the purposes of this section, ``repackaging'' shall
mean the removal of the tobacco product from its original package
bearing the export marks and placement of the product in a new package.
The new packages, marks and notices must conform to the requirements of
this subpart.

[T.D. ATF-421, 64 FR 71924, Dec. 22, 1999]

Sec. 40.214 Notice for cigars.

Before removal subject to tax, every package of cigars shall have
adequately imprinted on it, or on a label securely affixed to it--
(a) The designation ``cigars'';
(b) The quantity of cigars contained in the package; and
(c) For small cigars, the classification of the product for tax
purposes (i.e., either ``small'' or ``little'').

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-80, 46 FR 18310, Mar. 24, 1981]

Sec. 40.215 Notice for cigarettes.

Every package of cigarettes shall, before removal subject to tax,
have adequately imprinted thereon, or on a label securely affixed
thereto, the designation ``cigarettes'', the quantity of such product
contained therein, and the classification for tax purposes, i.e., for
small cigarettes, either ``small'' or ``Class A'', and for large
cigarettes, either ``large'' or ``Class B''.

(72 Stat. 1422; 26 U.S.C. 5723)

Sec. 40.216 Notice for smokeless tobacco.

(a) Product designation. Every package of chewing tobacco or snuff
shall, before removal subject to tax, have adequately imprinted thereon,
or on a label securely affixed thereto, the designation ``chewing
tobacco'' or ``snuff.'' As an alternative, packages of chewing tobacco
may be designated ``Tax Class C'', and packages of snuff may be
designated ``Tax Class M''.
(b) Product weight. Every package of chewing tobacco or snuff shall,
before removal subject to tax, have adequately imprinted thereon, or on
a label securely affixed thereto, a clear statement of the actual pounds
and ounces of the product contained therein. As an alternative, the
shipping cases containing packages of chewing tobacco or snuff may,
before removal, have adequately imprinted thereon, or on a label
securely affixed thereto, a clear statement, in pounds and ounces, of
the total weight of the product, the tax class of the product, and the
total number of the packages of product contained therein.

(Approved by the Office of Management and Budget under control number
1512-0502)

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-243, 51 FR 43194, Dec. 1, 1986, as amended by T.D. ATF-446, 66
FR 16602, Mar. 27, 2001]

Sec. 40.216a Notice for pipe tobacco.

(a) Product designation. Every package of pipe tobacco shall, before
removal subject to tax, have adequately imprinted thereon, or on a label
securely affixed thereto, the designation ``pipe tobacco.'' As an
alternative, packages of pipe tobacco may be designated ``Tax Class L.''
(b) Product weight. Every package of pipe tobacco shall, before
removal subject to tax, have adequately imprinted thereon, or on a label
securely affixed thereto, a clear statement of the actual pounds and
ounces of the product contained therein.

[T.D. ATF-289, 54 FR 48840, Nov. 27, 1989. Redesignated at T.D. ATF-424,
64 FR 71931, Dec. 22, 1999]

Sec. 40.216b Notice for roll-your-own tobacco.

[[Page 36]]

must have a clear statement of the actual weight in pounds and ounces of
the product in the package. This statement must be adequately imprinted
on, or on a label securely affixed to, the package.

(Approved by the Office of Management and Budget under control number
1512-0502)

[T.D. ATF-429, 65 FR 57547, Sept. 25, 2000]

Sec. 40.216c Package use-up rule.

(a) A manufacturer must have used such packaging for roll-your-own
tobacco before January 1, 2000.
(b) A manufacturer of roll-your-own tobacco may continue to place
roll-your-own tobacco in packages that do not meet the marking
requirements of Sec. Sec. 40.212 and 40.216b(b) until April 1, 2000.
(c) A manufacturer of roll-your-tobacco may continue to place roll-
your-tobacco in packages that do not meet the requirements of Sec.
40.216b(a) until October 1, 2000.

[T.D. ATF-427, 65 FR 40051, June 29, 2000]

Sec. 40.217 Repackaging.

Where a manufacturer of tobacco products desires to repackage,
outside the factory, tobacco products on which the tax has been
determined or which were removed for a tax-exempt purpose or transferred
in bond to an export warehouse, or to repackage tax determined tobacco
products in the factory, he shall make application for authorization to
do so, in duplicate, to the appropriate TTB officer. The application
shall set forth the location and the number of packages, a description
of the contents, the tax status of the tobacco products the reason for
wanting to repackage the products (e.g., packages soiled, damaged, or
otherwise in a condition making the product unsalable), and a
description of the package to be used for repackaging. The packages to
be used must comply with the package, mark, and notice provisions of
this chapter applicable to the tobacco products being repackaged. The
operations authorized under this section are limited solely to
repackaging for good cause by a manufacturer, pursuant to an approved
application, of the specified tobacco products in the described
packages, and do not include any manufacturing processes. If the
appropriate TTB officer approves the application, he may assign an
appropriate TTB officer to supervise the repackaging or he may authorize
the manufacturer to repackage the products without supervision by so
stating on a copy of the application returned to the manufacturer. Where
the manufacturer is authorized to repackage he shall record the date of
repackaging on the approved application and retain it as part of his
records.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 36, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Exemption From Taxes on Tobacco Products

Sec. 40.231 Consumption by employees.

A manufacturer of tobacco products may gratuitously furnish tobacco
products, without determination and payment of tax, for personal
consumption by employees in the factory in such quantities as desired.
Each employee may also be gratuitously furnished by the manufacturer,
for off-factory personal consumption, not more than 5 large cigars or
cigarettes, 20 small cigars or cigarettes, or one retail package of
chewing tobacco, snuff, pipe tobacco or roll-your-own tobacco, or a
proportionate quantity of each, without determination and payment of
tax, on each day the employee is at work. For the purposes of this
section, the term ``employee'' shall mean those persons whose duties
require their presence in the factory of whose duties relate to the
manufacture, distribution, or sale of tobacco products and who receive
compensation from the manufacturer, or a parent, subsidiary, or
auxiliary company or corporation of the manufacturer. Such product
furnished for off-factory consumption shall be furnished to the employee
within the factory and taken from the factory by the employee on the day
for which furnished. Employees shall not sell, offer

[[Page 37]]

for sale, or give away products so furnished.

[T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-289, 54 FR 48840, Nov. 27, 1989;
T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Sec. 40.232 Experimental purposes.

A manufacturer of tobacco products may use tobacco products for
experimental purposes without determination and payment of tax as set
forth in this section.
(a) What are experimental purposes? Experimental purposes are
operations or tests carried out under controlled conditions to discover
an unknown scientific principle or fact, to gather or confirm data about
a known scientific principle or fact, or to test manufacturing,
packaging, or other such equipment. Examples of uses for experimental
purposes are:
(1) Use by manufacturers to determine scientific facts relating to
tobacco products, such as their chemical content;
(2) Use by producers of packaging machines to test the operation of
such machines; and
(3) Use by laboratories, hospitals, medical centers, institutes,
colleges, or universities, for scientific, technical, or medical
research.
(b) What purposes are not experimental? The uses of tobacco products
outside the factory premises for advertising or consumer testing or as
salespersons' or customers' samples are not experimental purposes.
(c) Use in factory. A manufacturer of tobacco products may use
tobacco products without determination and payment of tax for
experimental purposes in a factory.
(d) Use outside factory. A manufacturer may remove tobacco products
in bond for experimental purposes outside a factory. When tobacco
products are shipped for experimental purposes outside the factory, the
proprietor of the factory remains liable for the taxes imposed by 26
U.S.C. 5701 until the occurrence of one of the following events:
(1) The tobacco products are returned to the premises of the factory
from which they were shipped; or
(2) The tobacco products are destroyed during or after their use for
experimental purposes.
(e) Record of use. In addition to the records prescribed by Sec.
40.183, a manufacturer who removes tobacco products in bond for
experimental purposes outside a factory must prepare and maintain a
record containing the following information:
(1) Name and address of the consignee;
(2) Kind and quantity of tobacco products removed;
(3) Description of packaging, if any, of the tobacco products
removed;
(4) Description of how and when the consignee will use the tobacco
products; and
(5) Disposition of any remaining tobacco products after the
consignee's use.

(Approved by the Office of Management and Budget under Control Number
1512-0562)

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. ATF-478, 67 FR 19333, Apr. 19, 2002]

Sec. 40.233 Transfer in bond.

A manufacturer of tobacco products may transfer tobacco products in
bond, to the factory of any manufacturer of tobacco products. The
transfer of tobacco products in bond to the premises of an export
warehouse proprietor shall be in accordance with the provisions of part
44 of this chapter. Tobacco products are not eligible for transfer in
bond to a manufacturer of tobacco products or to an export warehouse
unless they bear all required marks, labels, or notices.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71924, Dec. 22,
1999]

Sec. 40.234 Removal for use of the United States.

The removal of tobacco products in bond, for use of the United
States,

[[Page 38]]

shall be in accordance with the provisions of part 45 of this chapter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986; T.D. ATF-469, 66 FR 56758, Nov. 13, 2001]

Sec. 40.235 Removal for export purposes.

The removal of tobacco products in bond, for shipment to a foreign
country, Puerto Rico, the Virgin Islands, or a possession of the United
States, or for consumption beyond the jurisdiction of the internal
revenue laws of the United States, shall be in accordance with the
provisions of part 44 of this chapter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.236 Release from customs custody.

The release of tobacco products from customs custody, in bond, for
transfer to the premises of a tobacco products factory, shall be in
accordance with the provisions of part 41 of this chapter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. TTB-16, 69 FR 52423, Aug. 26,
2004]

Other Provisions Relating to Tobacco Products

Sec. 40.251 Emergency storage.

In cases of emergency, the appropriate TTB officer may authorize,
for a stated period, the temporary storage of tobacco products at a
place outside the factory without the application for amended permit
required under Sec. 40.114, where such action will not hinder the
effective administration of this part, is not contrary to law, and will
not jeopardize the revenue. Application for authorization to so store
tobacco products shall be submitted to the appropriate TTB officer by
letter, in duplicate. All tobacco products so stored outside the factory
shall be accounted for in the records and reports required under
Sec. Sec. 40.183 and 40.202 the same as products within the factory.

(72 Stat. 1422, 1423, as amended; 26 U.S.C. 5722, 5741)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986]

Sec. 40.252 Reduction of tobacco products to materials.

A manufacturer may reduce tobacco products to materials without
supervision. If the tobacco products have been entered in the factory
record as manufactured or received, an entry shall be made in such
record of the quantity of pipe tobacco or roll-your-own tobacco and the
kind and quantity of cigars, cigarettes, and smokeless tobacco reduced
to materials and of the quantity of tobacco resulting from the
reduction. Where the manufacturer intends to file claims for credit
allowance, or refund of tax on such tobacco products, he shall comply
with the provisions of Sec. Sec. 40.311 and 40.313.

[T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-289, 54 FR 48840, Nov. 27, 1989;
T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Sec. 40.253 Destruction.

When a manufacturer of tobacco products desires to destroy tobacco
products which have been entered in the factory record as manufactured
or received, without salvaging the tobacco, he shall notify the
appropriate TTB officer by letter, in duplicate, of the kind and
quantity of tobacco products to be destroyed, the intended method of
destruction, and the date on which he desires to destroy such products.
The appropriate TTB officer may assign an appropriate TTB officer to
supervise destruction of the tobacco products or he may authorize the
manufacturer to destroy such products without supervision by so stating
on a copy of the manufacturer's notice returned to the manufacturer.
When so authorized by the appropriate TTB officer, the manufacturer
shall destroy the tobacco products by burning completely or by rendering
them unfit for consumption. Upon completion of the destruction, the
manufacturer shall

[[Page 39]]

make an entry of such destruction in his factory record, and where
destruction without supervision is authorized, shall record the date and
method of destruction on the notice returned to him by the appropriate
TTB officer, which notice the manufacturer shall retain. Where the
manufacturer intends to file claim for credit, allowance, or refund of
tax on such products he shall comply with the provisions of Sec. Sec.
40.311 and 40.313.

(72 Stat. 1423, as amended; 26 U.S.C. 5741)

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.254 Receipt into factory.

A manufacturer of tobacco products may receive in bond into his
factory tobacco products and may also receive into his factory tobacco
products on which the tax has been determined (including products on
which the tax has been paid). Cigars and cigarettes on which the tax has
been determined which are so received shall be segregated and identified
as products on which the tax has been determined. If tax determined
products received into the factory are so handled that they cannot be
identified both physically and in the records as tax determined products
they shall be accounted for as returned to bond and upon subsequent
removal shall be tax determined. Where returned tax determined tobacco
products are to be repackaged without being returned to bond the
manufacturer shall make application for authorization to do so to the
appropriate TTB officer in accordance with Sec. 40.217. Where the
manufacturer intends to file claim for credit, allowance, or refund of
tax on tax determined products he shall comply with the provisions of
Sec. Sec. 40.311 and 40.313.

[T.D. 6871, 31 FR 37, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D.
ATF-243, 52 FR 43194, Dec. 1, 1986]

Sec. 40.255 Shortages and overages in inventory.

Whenever a manufacturer of tobacco products makes a physical
inventory of packaged tobacco products in bond, either as part of normal
operations or when required by an appropriate TTB officer, and such
inventory discloses a shortage or overage in such products by kind as
recorded and reported (i.e., small cigars, large cigars, chewing
tobacco, snuff, pipe tobacco, or roll-your-own tobacco), the
manufacturer shall enter such shortage or overage in the records
required by Sec. 40.183. Shortages or overages in inventories made at
different times may not be used to offset each other, but shall be
recorded and reported separately. Unless the manufacturer establishes
that a shortage was not caused by a removal subject to the tax the
manufacturer shall determine the tax on any shortage, make an adjustment
in Schedule A of his next semimonthly tax return and pay the tax
thereon. If, after paying the tax on a shortage, the manufacturer
satisfactorily establishes that the shortage was not caused by a removal
subject to tax, then such payment would be an overpayment of tax which
the manufacturer may recover as provided in Sec. 40.286. Where the
manufacturer can establish prior to paying the tax on a shortage, that
the shortage was not the result of a removal subject to tax he shall
submit an explanation of such shortage with his report for the month in
which the shortage was disclosed and, if appropriate, he may file claim
for remission of tax liability as provided in Sec. 40.287. When an
overage is disclosed which the manufacturer can explain, he shall
include such explanation in his monthly report and refund of any
overpayment may be recovered as provided in Sec. 40.286. Whenever a
physical inventory discloses a shortage or overage of tobacco products
which have not been packaged the manufacturer shall appropriately enter
such shortage or overage in his records and shall, at the time required
by the appropriate TTB officer, furnish an explanation in the form of a
claim for remission of tax liability as provided in Sec. 40.287. The
manufacturer shall pay the tax on any shortage or portion thereof

[[Page 40]]

for which he is unable to furnish an explanation acceptable to the
appropriate TTB officer.

[T.D. ATF-232, 51 FR 28082, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-289, 54 FR 48840, Nov. 27, 1989;
T.D. ATF-424, 64 FR 71931, Dec. 22, 1999]

Subpart I_Claims by Manufacturers

General

Sec. 40.281 Abatement of assessment.

A claim for abatement of the unpaid portion of the assessment of any
tax on tobacco products or any liability in respect thereof, may be
allowed to the extent that such assessment is excessive in amount, is
assessed after expiration of the applicable period of limitation, or is
erroneously or illegally assessed. Any claim under this section shall be
prepared on Form 2635 (5620.8), in duplicate, and shall set forth the
particulars under which the claim is filed. The original of the claim,
accompanied by such evidence as is necessary to establish to the
satisfaction of the appropriate TTB officer that the claim is valid,
shall be filed with the appropriate TTB officer, and the duplicate of
the claim shall be retained by the manufacturer.

(68A Stat. 792; 26 U.S.C. 6404)

[T.D. 6871, 31 FR 38, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19340, May 22,
1987]

Sec. 40.282 Allowance of tax.

Relief from the payment of tax on tobacco products may be extended
to a manufacturer by allowance of the tax where the tobacco products
after removal from the factory upon determination of tax and prior to
the payment of such tax, are lost (otherwise than by theft) or
destroyed, by fire, casualty, or act of God, while in the possession or
ownership of the manufacturer who removed such products, or are
withdrawn by him from the market. Any claim for allowance under this
section shall be filed on Form 2635, in duplicate, with the appropriate
TTB officer, and shall show the date the tobacco products were removed
from the factory. A claim relating to products lost or destroyed shall
be supported as prescribed in Sec. 40.301. In the case of a claim
relating to tobacco products withdrawn from the market the schedule
prescribed in Sec. 40.311 shall be filed with the appropriate TTB
officer. The manufacturer may not anticipate allowance of his claim by
making the adjusting entry in a tax return pending consideration and
action on the claim. Tobacco products to which such a claim relates must
be shown as removed on determination of tax in the return covering the
period during which such products were so removed. Upon action on the
claim by the appropriate TTB officer he will return the copy of Form
2635 to the manufacturer as notice of such action, which copy, with the
copy of any verified supporting schedules, shall be retained by the
manufacturer. When such notification of allowance of the claim or any
part thereof is received prior to the time the return covering the tax
on the tobacco products to which the claim relates is to be filed, the
manufacturer may make an adjusting entry and explanatory statement in
that tax return. Where the notice of allowance is received after the
filing of the return and taxpayment of the tobacco products to which the
claim relates, the manufacturer may make an adjusting entry and
explanatory statement in the next tax return(s) to the extent necessary
to take credit in the amount of the allowance.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6961, 33 FR 9488, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.283 Credit or refund of tax.

The taxes paid on tobacco products may be credited or refunded
(without interest) to a manufacturer on proof satisfactory to the
appropriate TTB officer that the claimant manufacturer paid the tax on
tobacco products lost (otherwise than by theft) or destroyed, by fire,
casualty, or act of God, while in the possession or ownership of such
manufacturer, or withdrawn by him from the market. Any claim for credit

[[Page 41]]

or refund under this section shall be prepared on Form 2635 (5620.8), in
duplicate. Claims shall include a statement that the tax imposed on
tobacco products by 26 U.S.C. 7652 or chapter 52, was paid in respect to
the tobacco products covered by the claim, and that the products were
lost, destroyed, or withdrawn from the market within 6 months preceding
the date the claim is filed. A claim for credit or refund relating to
products lost or destroyed shall be supported as prescribed in Sec.
40.301, and a claim relating to products withdrawn from the market shall
be accompanied by a schedule prepared and verified as prescribed in
Sec. Sec. 40.311 and 40.313. The original and one copy of Form 2635
(5620.8), claim for credit, or the original of Form 2635 (5620.8), claim
for refund, shall be filed with the appropriate TTB officer. Upon action
by the appropriate TTB officer on a claim for credit he will return the
copy of Form 2635 to the manufacturer as notification of allowance or
disallowance of the claim or any part thereof, which copy, with the copy
of any verified supporting schedules, shall be retained by the
manufacturer. When the manufacturer is notified of allowance of the
claim for credit or any part thereof he shall make an adjusting entry
and explanatory statement in the next tax return(s) to the extent
necessary to take credit in the amount of the allowance. Prior to
consideration and action on his claim the manufacturer may not
anticipate allowance of his claim by taking credit in his tax return.
The duplicate of a claim for refund, with the copy of any verified
supporting schedules, shall be retained by the manufacturer.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1419)

[T.D. 6961, 33 FR 9489, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-219, 50 FR 51389, Dec. 17, 1985; T.D. ATF-232, 51 FR 28083, Aug. 5,
1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR
19340, May 22, 1987]

Sec. 40.284 Remission of tax liability.

Remission of the tax liability on tobacco products may be extended
to the manufacturer liable for the tax where tobacco products in bond
are lost (otherwise than by theft) or destroyed, by fire, casualty, or
act of God, while in the possession or ownership of such manufacturer.
Where tobacco products are so lost or destroyed the manufacturer shall
report promptly such fact, and the circumstances, to the appropriate TTB
officer. If the manufacturer wishes to be relieved of the tax liability
thereon he shall also prepare a claim on Form 2635, in duplicate,
setting forth the nature, date, place, and extent of the loss or
destruction. Both copies of the claim, accompanied by such evidence as
is necessary to establish to the satisfaction of the appropriate TTB
officer that the claim is valid, shall be filed with the appropriate TTB
officer. Upon action on the claim by the appropriate TTB officer he will
return the copy of Form 2635 to the manufacturer as notice of such
action, which copy shall be retained by the manufacturer.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6961, 33 FR 9489, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.285 [Reserved]

Sec. 40.286 Refund of overpayment.

Where an error in computation of the quantity of tobacco products or
in computation of the amount of tax due results in an overpayment and
such error is specifically identified and supported by records, the
manufacturer may file claim for refund or may make an adjustment in his
semimonthly tax return as provided in Sec. 40.164. (Section 6511, 26
U.S.C., provides that, in most cases, any adjustment of claim for refund
of an overpayment of tax on tobacco products must be made or filed
within three years after the tax is paid.) If the manufacturer elects to
file a claim for refund of an overpayment resulting from such a
computational error, he shall do so on Form 2635 (5620.8), in duplicate.
The original shall be filed with the appropriate TTB officer, and the
duplicate retained by the manufacturer. Where an overpayment of tax on
tobacco products results from other than a computational error any claim
for refund or credit shall be

[[Page 42]]

made in accordance with subpart A of part 46 of this chapter.

(68A Stat. 791, 72 Stat. 9; 26 U.S.C. 6402, 6423)

[T.D. 6871, 31 FR 39, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28083, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-251, 52 FR 19340, May 22, 1987; T.D. ATF-457, 66 FR
32220, June 14, 2001]

Sec. 40.287 Remission of tax liability on shortage.

Whenever a manufacturer of tobacco products desires to submit a
claim for remission of tax liability on shortages of tobacco products in
bond, disclosed by physical inventory as set forth in Sec. 40.255, he
shall prepare such claim on Form 2635, in duplicate. Both copies of the
claim shall be filed with the appropriate TTB officer. The claim shall
specify the quantities of tobacco products on which claim is made and
the tax liability in respect thereof, and shall set forth the
circumstances surrounding the shortage and the reason the manufacturer
believes tax is not due or payable. The appropriate TTB officer will,
after such investigation as he deems appropriate, allow the claim to the
extent he is satisfied the shortage was due to operating losses such as
damage during grading, sorting, or packaging, and was not caused by
theft or other unlawful or improper removal. Upon action on the claim by
the appropriate TTB officer he will return the copy of Form 2635 to the
manufacturer as notice of such action, which copy shall be retained by
the manufacturer.

(72 Stat. 1414, as amended, 1417, 1419, as amended; 26 U.S.C. 5701,
5703, 5705)

[T.D. 6961, 33 FR 9489, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Tobacco Products Lost or Destroyed

Sec. 40.301 Action by claimant.

Where tobacco products are lost (otherwise than by theft) or
destroyed, by fire, casualty, or act of God, and the manufacturer
desires to file a claim for the tax on such products under the
provisions of Sec. 40.282 or Sec. 40.283, he shall indicate on the
claim the nature, date, place, and extent of such loss or destruction.
The claim shall be accompanied by such evidence as is necessary to
establish to the satisfaction of the appropriate TTB officer that the
claim is valid.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6871, 31 FR 39, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 52 FR 43194, Dec. 1, 1986]

Tobacco Products Withdrawn From the Market

Sec. 40.311 Action by claimant.

(a) General. Where tobacco products are withdrawn from the market
and the manufacturer desires to file claim under the provisions of Sec.
40.282 or Sec. 40.283, he shall assemble the products in or adjacent to
a factory if they are to be returned to bond or at any suitable place if
they are to be destroyed or reduced to materials. The manufacturer shall
group the products according to the rates of tax applicable to the
products, and shall prepare a schedule of the products, on TTB Form
5200.7, in triplicate. All copies of the schedule shall be forwarded to
the appropriate TTB officer.
(b) Large cigars. Refund or credit of tax on large cigars withdrawn
from the market is limited to the lowest tax paid on that brand and size
of cigar during the required record retention period (see Sec. 40.185),
except where the manufacturer establishes that a greater amount was
actually paid. For each claim involving large cigars withdrawn from the
market, the manufacturer must include a certification on either Form
5200.7 or Form 2635 (5620.8) to read as follows:

The amounts claimed relating to large cigars are based on the lowest
sale price applicable to the cigars during the required record retention
period, except where specific documentation is submitted with the

[[Page 43]]

claim to establish that any greater amount of tax claimed was actually
paid.

(See 26 U.S.C. 5705)

[T.D. ATF-80, 46 FR 18310, Mar. 24, 1981, as amended by T.D. ATF-232, 51
FR 28083, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-251, 52 FR 19340, May 22, 1987; T.D. ATF-307, 55 FR 52743, Dec. 21,
1990; T.D. ATF-424, 64 FR 71932, Dec. 22, 1999; T.D. ATF-420, 64 FR
71941, Dec. 22, 1999]

Sec. 40.312 Action by the appropriate TTB officer.

Upon receipt of a schedule of tobacco products withdrawn from the
market, the appropriate TTB officer may assign a TTB officer to verify
the schedule and supervise disposition of the tobacco products (and
destruction of the stamps, if any), or he may authorize the manufacturer
to dispose of the products (and destroy the stamps, if any) without
supervision by so stating on the original and one copy of the schedule
returned to the manufacturer.

[T.D. 6871, 31 FR 39, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.313 Disposition of tobacco products and schedule.

When so authorized, as evidenced by the appropriate TTB officer's
statement on the schedule, the manufacturer shall dispose of the tobacco
products (and destroy the stamps, if any) as specified in the schedule.
After the manufacturer has disposed of the products (and destroyed the
stamps, if any), he shall execute a certificate on both copies of the
schedule returned to him by the appropriate TTB officer, to show the
disposition and the date of disposition of the products (and stamps, if
any). In connection with a claim for allowance the manufacturer then
shall return the original of the schedule to the appropriate TTB officer
who authorized such disposition, who will cause such schedule to be
associated with the claim, Form 2635 (5620.8), filed under Sec. 40.282.
In connection with a claim for credit or refund the manufacturer shall
attach the original of the schedule to his claim for credit, Form 2635
(5620.8), or claim for refund, Form 2635 (5620.8), filed under Sec.
40.283. When an appropriate TTB officer is assigned to verify the
schedule and supervise disposition of the tobacco products, such officer
shall, upon completion of his assignment, execute a certificate on all
copies of the schedule to show the disposition and the date of
disposition of the products. In connection with a claim for allowance
the officer shall return one copy of the schedule to be included in the
manufacturers records, and in connection with a claim for credit or
refund, the officer shall return the original and one copy of the
schedule to the manufacturer, the original of which the manufacturer
shall attach to the claim, Form 2635 (5620.8), filed under Sec. 40.283.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6871, 31 FR 39, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19340, May 22,
1987]

Subpart J_Suspension and Discontinuance of Operations by Manufacturers

Sec. 40.331 Discontinuance of operations.

Every manufacturer of tobacco products who desires to discontinue
operations under this part shall dispose of all tobacco products on
hand, in accordance with this part, and make a concluding inventory and
concluding report in accordance with the provisions of Sec. 40.201 and
Sec. 40.202, respectively. The manufacturer shall surrender his permit,
with such inventory and report, to the appropriate TTB officer as notice
of such discontinuance. The appropriate TTB officer may then terminate
the liability of the surety on the bond of the manufacturer.

(72 Stat. 1422; 26 U.S.C. 5721, 5722)

[T.D. 6871, 37 FR 40, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28083, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 40.332 Suspension and revocation of permit.

Where the appropriate TTB officer has reason to believe that a
manufacturer of tobacco products has not in good faith complied with the
provisions of 26 U.S.C. chapter 52, and regulations

[[Page 44]]

thereunder, or with any other provision of 26 U.S.C. with intent to
defraud, or has violated any condition of his permit, or has failed to
disclose any material information required or made any material false
statement in the application for the permit, or has failed to maintain
his premises in such manner as to protect the revenue, the appropriate
TTB officer shall issue an order, stating the facts charged, citing such
person to show cause why his permit should not be suspended or revoked.
Such citation shall be issued and opportunity for hearing afforded in
accordance with part 71 of this chapter, which part is applicable to
such proceedings. If the hearing examiner, or on appeal, the
Administrator, decides the permit should be suspended or revoked, the
appropriate TTB officer shall by order give effect to such decision.

(Sec. 201, Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C. 5713))

[26 FR 8174, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D. ATF-463,
66 FR 42734, Aug. 15, 2001]

Subpart K_Manufacture of Cigarette Papers and Tubes

Source: T.D. ATF-384, 61 FR 54085, Oct. 17, 1996, unless otherwise
noted.

Taxes

Sec. 40.351 Cigarette papers.

Cigarette papers are taxed at the following rates under 26 U.S.C.
5701(c):

------------------------------------------------------------------------
Tax rate for each 50 papers \1\ for
removals during the years:
Product --------------------------------------
1993 to 2000 and 2002 and
1999 \2\ 2001 after
------------------------------------------------------------------------
Cigarette papers up to 6\1/2\ long....................
Cigarette papers over 6\1/2\ long.................... Use rates above, but count each 2\3/
4\ inches, or fraction thereof, of
the length of each as one cigarette
paper.
------------------------------------------------------------------------
\1\ Tax rate for less than 50 papers is the same. The tax is not
prorated.
\2\ Before January 1, 2000, books or sets containing 25 papers or less
were not taxable. On and after January 1, 2000, all cigarette papers
are taxable.

(72 Stat. 1414; 26 U.S.C. 5701)

[T.D. ATF-420, 64 FR 71941, Dec. 22, 1999]

Sec. 40.352 Cigarette tubes.

Cigarette tubes are taxed at the following rates under 26 U.S.C.
5701(d):

------------------------------------------------------------------------
Tax rate for each 50 tubes* for
removals during the years
Product --------------------------------------
1993 to 2000 and 2002 and
1999 2001 after
------------------------------------------------------------------------
Cigarette tubes up to 6\1/2\ long....................
Cigarette tubes over 6\1/2\ long.................... Use rates above, but count each 2\3/
4\ inches, or fraction thereof, of
the length of each as one cigarette
tube.
------------------------------------------------------------------------
*Tax rate for less than 50 tubes is the same. The tax is not prorated.

(72 Stat. 1414; 26 U.S.C. 5701)

[T.D. ATF-420, 64 FR 71941, Dec. 22, 1999]

Sec. 40.353 Persons liable for tax.

The manufacturer of cigarette papers and tubes shall be liable for
the taxes imposed on such articles by 26 U.S.C. 5701. When a
manufacturer of cigarette papers and tubes transfers such papers and
tubes without payment of tax, pursuant to 26 U.S.C. 5704 to the bonded

[[Page 45]]

premises of another such manufacturer, a manufacturer of tobacco
products, or an export warehouse proprietor, the transferee shall become
liable for the tax upon receipt of such papers and tubes and the
transferor shall thereupon be relieved of liability for the tax. When
cigarette papers and tubes are released in bond from customs custody for
transfer to the bonded premises of a manufacturer of such papers and
tubes or a manufacturer of tobacco products, the transferee shall become
liable for the tax on the papers and tubes upon release from customs
custody. Any person who possesses cigarette papers and tubes in
violation of 26 U.S.C. 5751(a) (1) or (2), shall be liable for a tax
equal to the rate of tax applicable to such articles.

(72 Stat. 1417, 1424; 26 U.S.C. 5703, 5751)

Sec. 40.354 Determination of tax and method of payment.

Except for removals without payment of tax and transfers in bond, as
authorized by law, no cigarette papers and tubes shall be removed until
the taxes imposed by section 5701, I.R.C., have been determined. The
payment of taxes on cigarette papers and tubes which are removed on
determination of tax shall be made by return in accordance with the
provisions of this subpart.

(72 Stat. 1417; 26 U.S.C. 5703)

Sec. 40.355 Return of manufacturer.

(a) Requirement for filing. A manufacturer of cigarette papers and
tubes shall file, for each factory, a semimonthly tax return on TTB Form
5000.24. A return shall be filed for each semimonthly return period
regardless of whether cigarette papers and tubes were removed subject to
tax or whether tax is due for that particular return period.
(b) Waiver from filing. The manufacturer need not file a return for
each semimonthly return period if:
(1) Cigarette papers and tubes were not removed subject to tax
during the period, and
(2) The appropriate TTB officer has granted a waiver from filing in
response to a written request from the manufacturer.
(c) Semimonthly return periods. Except as provided by paragraph (g)
of this section, semimonthly return periods shall run from the first day
of the month through the 15th day of the month, and from the 16th day of
the month through the last day of the month.
(d) Preparation and filing. The return shall be executed and filed
with TTB in accordance with the instructions on the form.
(e) Remittance of tax. Except as provided in Sec. 40.357,
remittance of the tax, if any, shall accompany the return.
(f) Time for filing. Except as provided by paragraph (g) of this
section, for each semimonthly return period, the return shall be filed
not later than the 14th day after the last day of the return period. If
the due date falls on a Saturday, Sunday, or legal holiday, the return
and remittance shall be due on the immediately preceding day which is
not a Saturday, Sunday or legal holiday.
(g) Special rule for taxes due for the month of September (effective
after December 31, 1994). (1) Except as provided in paragraph (g)(2) of
this section, the second semimonthly period for the month of September
shall be divided into two payment periods, from the 16th day through the
26th day, and from the 27th day through the 30th day. The manufacturer
shall file a return on Form 5000.24, and make remittance, for the period
September 16-26, no later than September 29. The manufacturer shall file
a return on Form 5000.24, and make remittance, for the period September
27-30, no later than October 14.
(2) Taxpayment not by electronic fund transfer. In the case of taxes
not required to be remitted by electronic fund transfer as prescribed by
Sec. 40.357, the second semimonthly period of September shall be
divided into two payment periods, from the 16th day through the 25th
day, and the 26th day through the 30th day. The manufacturer shall file
a return on Form 5000.24, and remittance, for the period September 16-
25, no later than September 28. The manufacturer shall file a return on
Form 5000.24, and make remittance, for the period September 26-30, no
later than October 14.

[[Page 46]]

(3) Amount of payment: Safe harbor rule. (i) Taxpayers are
considered to have met the requirements of paragraph (g)(1) of this
section, if the amount paid no later than September 29 is not less than
\11/15\ (73.3 percent) of the tax liability incurred for the semimonthly
period beginning on September 1 and ending on September 15, and if any
underpayment of tax is paid by October 14.
(ii) Taxpayers are considered to have met the requirements of
paragraph (g)(2) of this section, if the amount paid no later than
September 28 is not less than two-thirds (66.7 percent) of the tax
liability incurred for the semimonthly period beginning on September 1
and ending on September 15, and if any underpayment of tax is paid by
October 14.
(4) Last day for payment. If the required due date for taxpayment
for the periods September 16-25 or September 16-26, as applicable, falls
on a Saturday, the return and remittance shall be due on the immediately
preceding day. If the required due date falls on a Sunday, the return
and remittance shall be due on the immediately following day.

(Approved by the Office of Management and Budget under Control Number
1512-0467)

Sec. 40.356 Adjustments in the return of manufacturer.

Adjustments may be made in Schedules A and B of the manufacturer's
semimonthly tax return, TTB Form 5000.24, as provided in this section.
Schedule A of the return will be used where an unintentional error in a
previous return resulted in an underpayment of tax. Schedule B of the
return will be used where an unintentional error in a previous return
resulted in an overpayment of tax, or where notice has been received
from the appropriate TTB officer that a claim for allowance of tax has
been approved. In the case of an overpayment, the manufacturer shall
have the option of filing a claim on TTB Form 2635 (5620.8) for refund
or taking credit in Schedule B of the return, both subject to the period
of limitations prescribed in 26 U.S.C. 6511. Any adjustment made in a
return must be fully explained in the appropriate schedule or in a
statement attached to and made a part of the return in which such
adjustment is made.

(72 Stat. 1417, 68A Stat. 791; 26 U.S.C. 5703, 6402)

Sec. 40.357 Payment of tax by electronic fund transfer.

(a) General. (1) Each taxpayer who was liable, during a calendar
year, for a gross amount equal to or exceeding five millions dollars in
taxes on tobacco products, cigarette papers, and cigarette tubes
combining tax liabilities incurred under this part and part 41 of this
chapter, shall use a commercial bank in making payment by electronic
fund transfer (EFT) of taxes on tobacco products, cigarette papers, and
cigarette tubes during the succeeding calendar year. Payment of taxes on
tobacco products, cigarette papers, and cigarette tubes in any other
form of remittance, as authorized in Sec. 40.355, is not authorized for
a taxpayer who is required, by this section, to make remittances by EFT.
For purposes of this section, the dollar amount of tax liability is
defined as the gross tax liability on all taxable withdrawals and
importations (including tobacco products, cigarette papers, and
cigarette tubes brought into the United States from Puerto Rico or the
Virgin Islands) during the calendar year, without regard to any
drawbacks, credits, or refunds, for all premises from which such
activities are conducted by the taxpayer. Overpayments are not taken
into account in summarizing the gross tax liability.
(2) For the purposes of this section, a taxpayer includes a
controlled group of corporations, as defined in 26 U.S.C. 1563, and
implementing regulations in 26 CFR Sec. Sec. 1.563-1 through 1.1563-4.
Also, the rules for a ``controlled group of corporations'' apply in a
similar fashion to groups which include partnerships and/or sole
proprietorships. If one entity maintains more than 50% control over a
group consisting of corporations and one, or more, partnerships and/or
sole proprietorships, all of the members of the controlled group are one
taxpayer for the purpose of determining who is required to make
remittances by EFT.
(3) A taxpayer who is required by this section to make remittances
by EFT

[[Page 47]]

shall make a separate EFT remittance and file a separate return, TTB
Form 5000.24, for each factory from which cigarette papers or cigarette
tubes are withdrawn upon determination of tax.
(b) Requirements. (1) On or before January 10 of each calendar year,
except for a taxpayer already remitting the tax by EFT, each taxpayer
who was liable for a gross amount equal to or exceeding five million
dollars in taxes on tobacco products, cigarette papers, and cigarette
tubes combining tax liabilities incurred under this part and part 41 of
this chapter during the previous calendar year, shall notify, in
writing, the appropriate TTB officer. The notice shall be an agreement
to make remittances by EFT.
(2) For each return filed in accordance with this part, the taxpayer
shall direct the taxpayer's bank to make an electronic fund transfer in
the amount of the taxpayment to the Department of the Treasury's General
Account or the Federal Reserve Bank of New York as provided in paragraph
(e) of this section. The request shall be made to the bank early enough
for the transfer to be made to the Treasury Account by no later than the
close of business on the last day for filing the return, prescribed in
Sec. 40.355. The request shall take into account any time limit
established by the bank.
(3) If a taxpayer was liable for less than five million dollars in
taxes on tobacco products, cigarette papers, and cigarette tubes
combining tax liabilities incurred under this part and part 41 of this
chapter during the preceding calendar year, the taxpayer may choose
either to continue remitting the tax as provided in this section or to
remit the tax with the return as prescribed by Sec. 40.355. Upon filing
the first return on which the taxpayer chooses to discontinue remitting
the tax by EFT and to begin remitting the tax with the tax return, the
taxpayer shall notify the appropriate TTB officer by attaching a written
notification to TTB Form 5000.24, stating that no taxes are due by EFT,
because the tax liability during the preceding calendar year was less
than five million dollars, and that the remittance shall be filed with
the tax return.
(c) Remittance. (1) Each taxpayer shall show on the return, TTB Form
5000.24, information about remitting the tax for that return period by
EFT and shall file the return with TTB, in accordance with the
instructions of TTB Form 5000.24.
(2) Remittances shall be considered as made when the taxpayment by
EFT is received by the Treasury Account. For purposes of this section, a
taxpayment by EFT shall be considered as received by the Treasury
Account when it is paid to a Federal Reserve Bank.
(3) When the taxpayer directs the bank to effect an EFT message as
required by paragraph (b)(2) of this section, any transfer data record
furnished to the taxpayer, through normal banking procedures, will serve
as the record of payment, and shall be retained as part of required
records.
(d) Failure to make a taxpayment by EFT. The taxpayer is subject to
a penalty imposed by 26 U.S.C. 5761, 6651, or 6656, as applicable, for
failure to make a taxpayment by EFT on or before the close of business
on the prescribed last day for filing.
(e) Procedure. Upon the notification required under paragraph (b)(1)
of this section, the appropriate TTB officer will issue to the taxpayer
an TTB Procedure entitled Payment of Tax by Electronic Fund Transfer.
This publication outlines the procedure a taxpayer is to follow when
preparing returns and EFT remittances in accordance with this part. The
U.S. Customs Service will provide the taxpayer with instructions for
preparing EFT remittances for payments to be made to the U.S. Customs
Service.

(Approved by the Office of Management and Budget under control number
1512-0457)

(Act of August 16, 1954, 68A Stat. 775, as amended (26 U.S.C. 6302);
sec. 202, Pub. L. 85-859, 72 Stat. 1417, as amended (26 U.S.C. 5703))

[T.D. ATF-384, 61 FR 54085, Oct. 17, 1996, as amended by T.D. TTB-16, 69
FR 52423, Aug. 26, 2004]

Sec. 40.358 Assessment.

Whenever any person required by law to pay tax on cigarette papers
and tubes fails to pay such tax, the tax shall be ascertained and
assessed

[[Page 48]]

against such person, subject to the limitations prescribed in 26 U.S.C.
6501. The tax so assessed shall be in addition to the penalties imposed
by law for failure to pay such tax when required. Except in cases where
delay may jeopardize collection of the tax, or where the amount is
nominal or the result of an evident mathematical error, no such
assessment shall be made until and after notice has been afforded such
person to show cause against assessment. The person will be allowed 45
days from the date of such notice to show cause, in writing, against
such assessment.

(72 Stat. 1417; 26 U.S.C. 5703)

Sec. 40.359 Employer identification number.

The employer identification number (EIN) (defined at 26 CFR
301.7701-12) of a manufacturer of cigarette papers and/or tubes who has
been assigned such a number shall be shown on each semimonthly tax
return, TTB Form 5000.24, and special tax return (including amended
returns), TTB Form 5630.5, filed under this subpart. Failure of the
taxpayer to include the EIN on TTB Form 5000.24 may result in assertion
and collection of the penalty specified in Sec. 70.113 of this chapter.
Failure of the taxpayer to include the EIN on TTB Form 5630.5 may result
in the imposition of the penalty specified in 27 CFR 70.113 of this
chapter.

(75 Stat. 828; 26 U.S.C. 6109, 6676)

Sec. 40.360 Application for employer identification number.

Each manufacturer of cigarette papers and tubes who has neither
secured an EIN nor made application therefor shall file an application
on IRS Form SS-4. IRS Form SS-4 may be obtained from any service center
director or from any district director. Such application shall be filed
on or before the seventh day after the date on which any tax return
under this subpart is filed. Each manufacturer shall make application
for and shall be assigned only one EIN for all internal revenue
purposes.

(75 Stat. 828; 26 U.S.C. 6109)

Sec. 40.361 Execution and filing of Form SS-4.

The application on IRS form SS-4, together with any supplementary
statement, shall be prepared in accordance with the applicable form,
instructions, and regulations, and the data called for shall be set
forth fully and clearly. The application shall be filed with the service
center director serving the internal revenue district where the
applicant is required to file returns under this subpart, except that
hand-carried applications may be filed with the district director of any
such district as provided for in 26 CFR Sec. 301.6091-1. The
application shall be signed by:
(a) The individual if the person is an individual;
(b) The president, vice president, or other principal officer if the
person is a corporation;
(c) A responsible and duly authorized member or officer having
knowledge of its affairs if the person is a partnership or other
unincorporated organization; or
(d) The fiduciary if the person is a trust or estate.

(75 Stat. 828; 26 U.S.C. 6109)

Special (Occupational) Taxes

Sec. 40.371 Liability for special tax.

(a) Manufacturer of cigarette papers and tubes. Every manufacturer
of cigarette papers and tubes shall pay a special (occupational) tax at
a rate specified by Sec. 40.372 of this part. The tax shall be paid on
or before July 1. On commencing business, the tax shall be computed from
the first day of the month in which liability is incurred, through the
following June 30. Thereafter, the tax shall be computed for the entire
year (July 1 through June 30).
(b) Each place of business taxable. A manufacturer of cigarette
papers and tubes incurs special tax liability at each place of business
in which an occupation subject to special tax is conducted. A place of
business means the entire office, plant or area of the business in any
one location under the same proprietorship. Passageways, streets,
highways, rail crossings, waterways, or partitions dividing the premises
are not sufficient separation

[[Page 49]]

to require additional special tax, if the divisions of the premises are
otherwise contiguous.

(26 U.S.C. 5143, 5731)

Sec. 40.372 Rate of special tax.

(a) General. Title 26 U.S.C. 5731(a)(2) imposes a special tax of
$1,000 per year on every manufacturer of cigarette papers and tubes.
(b) Reduced rate for small proprietors. Title 26 U.S.C. 5731(b)
provides for a reduced rate of $500 per year with respect to any
manufacturer of cigarette papers and tubes whose gross receipts (for the
most recent taxable year ending before the first day of the taxable
period to which the special tax imposed by Sec. 40.371 relates) are
less than $500,000. The ``taxable year'' to be used for determining
gross receipts is the taxpayer's income tax year. All gross receipts of
the taxpayer shall be included, not just the gross receipts of the
business subject to special tax. Proprietors of new businesses that have
not yet begun a taxable year, as well as proprietors of existing
businesses that have not yet ended a taxable year, who commence a new
activity subject to special tax, qualify for the reduced special
(occupational) tax rate, unless the business is a member of a
``controlled group''; in that case the rules of paragraph (c) of this
section shall apply.
(c) Controlled group. All persons treated as one taxpayer under 26
U.S.C. 5061(e)(3) shall be treated as one taxpayer for the purpose of
determining gross receipts under paragraph (b) of this section.
``Controlled group'' means a controlled group of corporations, as
defined in 26 U.S.C. 1563 and implementing regulations in 26 CFR 1.1563-
1 through 1.1563-4. Also, the rules for a ``controlled group of
corporations'' apply in a similar fashion to groups which include
partnerships and/or sole proprietorships. If one entity maintains more
than 50% control over a group consisting of corporations and one, or
more, partnerships and/or sole proprietorships, all of the members of
the controlled group are one taxpayer for the purpose of this section.
(d) Short taxable year. Gross receipts for any taxable year of less
than 12 months shall be annualized by multiplying the gross receipts for
the short period by 12 and dividing the result by the number of months
in the short period as required by 26 U.S.C. 448(c)(3).
(e) Returns and allowances. Gross receipts for any taxable year
shall be reduced by returns and allowances made during such year under
26 U.S.C. 448(c)(3).

(26 U.S.C. 448, 5061, 5731)

Sec. 40.373 Special tax returns.

(a) General. Special tax shall be paid by return. The prescribed
return is TTB Form 5630.5, Special Tax Registration and Return. Special
tax returns, with payment of tax, shall be filed with TTB in accordance
with instructions on the form.
(b) Preparation of TTB Form 5630.5. All of the information called
for on TTB Form 5630.5 shall be provided including:
(1) The true name of the taxpayer.
(2) The trade name(s) (if any) of the business(es) subject to
special tax.
(3) The employer identification number (see Sec. Sec. 40.359-361).
(4) The exact location of the place of business, by name and number
of building or street, or if these do not exist, by some description in
addition to the post office address. In the case of one return for two
or more locations, the address to be shown shall be the taxpayer's
principal place of business (or principal office, in the case of a
corporate taxpayer).
(5) The class(es) of special tax to which the taxpayer is subject.
(6) Ownership and control information: That is, the name, position,
and residence address of every owner of the business and of every person
having power to control its management and policies with respect to the
activity subject to special tax. ``Owner of the business'' shall include
every partner, if the taxpayer is a partnership, and every person owning
10% or more of its stock, if the taxpayer is a corporation. However, the
ownership and control information required by this paragraph need not be
stated if the same information has been previously provided to TTB in
connection with a permit application, and if the information previously
provided is still current.
(c) Multiple locations and/or classes of tax. A taxpayer subject to
special tax

[[Page 50]]

for the same period at more than one location or for more than one class
of tax shall--
(1) File one special tax return, TTB Form 5630.5, with payment of
tax, to cover all such locations and classes of tax; and
(2) Prepare, in duplicate, a list identified with the taxpayer's
name, address (as shown on TTB Form 5630.5), employer identification
number, and period covered by the return. The list shall show, by State,
the name, address, and tax class of each location for which special tax
is being paid. The original of the list shall be filed with TTB in
accordance with instructions on the return, and the copy shall be
retained at the taxpayer's principal place of business (or principal
office, in the case of a corporate taxpayer) for the period specified in
Sec. 40.371.
(d) Signing of TTB Forms 5630.5--(1) Ordinary returns. The return of
an individual proprietor shall be signed by the individual. The return
of a partnership shall be signed by a general partner. The return of a
corporation shall be signed by any officer. In each case, the person
signing the return shall designate his or her capacity as ``individual
owner,'' ``member of firm,'' or, in the case of a corporation, the title
of the officer.
(2) Fiduciaries. Receivers, trustees, assignees, executors,
administrators, and other legal representatives who continue the
business of a bankrupt, insolvent, deceased person, etc., shall indicate
the fiduciary capacity in which they act.
(3) Agent or attorney in fact. If a return is signed by an agent or
attorney in fact, the signature shall be preceded by the name of the
principal and followed by the title of the agent or attorney in fact. A
return signed by a person as agent will not be accepted unless there is
filed, with the TTB office with which the return is required to be
filed, a power of attorney authorizing the agent to perform the act.
(4) Perjury statement. TTB Forms 5630.5 shall contain or be verified
by a written declaration that the return has been executed under the
penalties of perjury.

Sec. 40.374 Issuance, distribution, and examination of special tax stamps.

(a) Issuance of special tax stamps. Upon filing a properly executed
return on TTB Form 5630.5 together with the full remittance, the
taxpayer will be issued an appropriately designated special tax stamp.
If the return covers multiple locations, the taxpayer will be issued one
appropriately designated stamp for each location listed on the
attachment required by Sec. 40.373(c)(2), but showing, as to name and
address, only the name of the taxpayer and the address of the taxpayer's
principal place of business (or principal office in the case of a
corporate taxpayer).
(b) Distribution of special tax stamps for multiple locations. On
receipt of the special tax stamps, the taxpayer shall verify that there
is one stamp for each location listed on the attachment to TTB Form
5630.5. The taxpayer shall designate one stamp for each location and
type on each stamp the address of the business conducted at the location
for which that stamp is designated. The taxpayer shall then forward each
stamp to the place of business designated on the stamp.
(c) Examination of special tax stamps. All stamps denoting payment
of special tax shall be kept available for inspection by the appropriate
TTB officers, at the location for which designated, during business
hours.

(26 U.S.C. 5142, 5146, 6806)

Sec. 40.375 Changes in special tax stamps.

[[Page 51]]

(2) Exemption for certain successors. Persons having the right of
succession provided for in paragraph (c) of this section may carry on
the business for the remainder of the period for which the special tax
was paid, without paying a new special tax, if within 30 days after the
date on which the successor begins to carry on the business, the
successor files a special tax return on TTB Form 5630.5 with TTB, which
shows the basis of succession. A person who is a successor to a business
for which special tax has been paid and who fails to register the
succession is liable for special tax computed from the first day of the
calendar month in which the successor began to carry on the business.
(c) Persons having right of succession. Under the conditions
indicated in paragraph (b)(2) of this section, the right of succession
will pass to certain persons in the following cases:
(1) Death. The spouse or child, or executor, administrator, or other
legal representative of the taxpayer;
(2) Succession of spouse. A husband or wife succeeding to the
business of his or her spouse (living);
(3) Insolvency. A receiver or trustee in bankruptcy, or an assignee
for benefit of creditors;
(4) Withdrawal from firm. The partner or partners remaining after
death or withdrawal of a member.
(d) Change in location. If there is a change in location of a
taxable place of business, the manufacturer shall within 30 days after
the change, file with TTB an amended special tax return covering the new
location. The manufacturer shall attach the special tax stamp or stamps
for endorsement of the change in location. No new special tax is
required to be paid. However, if the manufacturer does not file the
amended return within 30 days, the manufacturer is required to pay a new
special tax and obtain a new special tax stamp.

(26 U.S.C. 5143, 7011)

General

Sec. 40.382 Authority of TTB officers to enter premises.

The appropriate TTB officer may enter in the daytime any premises
where cigarette papers and tubes are produced or kept, so far as it may
be necessary for the purpose of examining such articles. When such
premises are open at night, the appropriate TTB officer may enter them,
while so open, in the performance of his or her official duties. The
owner of such premises, or person having the superintendence of the
same, who refuses to admit the appropriate TTB officer or permit the
appropriate TTB officer to examine such cigarette papers and tubes shall
be liable to the penalties prescribed by law for the offense.

(68A Stat. 872; 903 26 U.S.C. 7342, 7606)

Sec. 40.383 Interference with administration.

Whoever, corruptly or by force or threats of force, endeavors to
hinder or obstruct the administration of this subpart, or endeavors to
intimidate or impede any TTB officer acting in an official capacity, or
forcibly rescues or attempts to rescue or causes to be rescued any
property, after it has been duly seized for forfeiture to the United
States in connection with a violation or intended violation of this
subpart, shall be liable to the penalties prescribed by law.

(68A Stat. 855; 26 U.S.C. 7212)

Sec. 40.384 Disposal of forfeited, condemned, and abandoned cigarette papers

and tubes.

Forfeited, condemned, or abandoned cigarette papers or tubes in the
custody of a Federal, State, or local officer upon which the Federal tax
has not been paid shall not be sold or caused to be sold for consumption
in the United States if, in the opinion of the officer, the sale of such
papers and tubes will not bring a price equal to the tax due and
payable, and the expenses incident to the sale. Where the cigarette
papers or tubes are not sold the officer may deliver them to a Federal
or State institution (if they are fit for consumption) or cause their
destruction by burning completely or by rendering them unfit for
consumption. Where such papers or tubes are sold, release by the officer
having custody shall be made only after such papers and tubes are
properly packaged and taxpaid. A

[[Page 52]]

receipt from the appropriate TTB officer evidencing payment of tax on
such papers or tubes shall be presented to the officer having custody of
the articles, which tax shall be considered part of the sales price.
Where cigarette papers or tubes which have been packaged under the
provisions of part 45 of this chapter are to be released after payment
of tax, the purchaser shall appropriately mark each package ``Federal
Tax Paid (date)'' before the officer having custody of the papers or
tubes releases them. However, the articles may be released without such
marking of the packages if the purchaser is a qualified manufacturer of
cigarette papers and tubes and does not intend to place such papers or
tubes on the domestic market for taxable articles but will otherwise
dispose of them. A written statement of notification of disposal by
destruction or return to bond through claim for refund, shall be filed,
in original only, with the officer having custody of the articles. In
the case of cigarette papers and tubes forfeited under the internal
revenue laws, the sale shall be subject to the provisions of part 72 of
this chapter.

(68A Stat. 870, as amended, 72 Stat. 1425, as amended; 26 U.S.C. 7325,
5753)

[26 FR 8174, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated at 54 FR 48839, Nov. 27, 1989, and further
redesignated by T.D. ATF-460, 66 FR 39093, July 27, 2001, as amended by
T.D. ATF-469, 66 FR 56758, Nov. 13, 2001]

Sec. 40.385 Alternate methods or procedures.

A manufacturer of cigarette papers and tubes, on specific approval
by the appropriate TTB officer as provided in this section, may use an
alternate method or procedure in lieu of a method or procedure
specifically prescribed in this subpart. The appropriate TTB officer may
approve an alternate method or procedure, subject to stated conditions,
when the appropriate TTB officer finds that--
(a) Good cause has been shown for the use of the alternate method or
procedure,
(b) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue, and
(c) The alternate method or procedure will not be contrary to any
provision of law, and will not result in an increase in cost to the
Government or hinder the effective administration of this subpart.
No alternate method or procedure relating to the giving of any bond
or to the assessment, payment, or collection of tax, shall be authorized
under this section. A manufacturer who desires to employ an alternate
method or procedure shall submit a written application, in triplicate,
to the appropriate TTB officer. The application shall specifically
describe the proposed alternate method or procedure, and shall set forth
the reasons therefor. Alternate methods or procedures shall not be
employed until the application has been approved by the appropriate TTB
officer. The manufacturer shall, during the period of authorization of
an alternate method or procedure, comply with the terms of the approved
application. Authorization for any alternate method or procedure may be
withdrawn whenever, in the judgment of the appropriate TTB officer, the
revenue is jeopardized or the effective administration of this part is
hindered. Any authorization of the appropriate TTB officer under this
section shall be retained as part of the manufacturer's record in
accordance with this subpart.

Sec. 40.386 Emergency variations from requirements.

The appropriate TTB officer may approve methods of operation other
than as specified in this subpart, where it is determined that an
emergency exists and the proposed variations from the specified
requirements are necessary, and the proposed variations--
(a) Will afford the security and protection to the revenue intended
by the prescribed specifications;
(b) Will not hinder the effective administration of this subpart;
and
(c) Will not be contrary to any provision of law. Variations from
requirements granted under this section are conditioned on compliance
with the procedures, conditions, and limitations set forth in the
approval of the application. Failure to comply in good faith

[[Page 53]]

with such procedures, conditions and limitations shall automatically
terminate the authority for such variations and the manufacturer
thereupon shall fully comply with the prescribed requirements of
regulations from which the variations were authorized. Authority for any
variation may be withdrawn whenever in the judgment of the appropriate
TTB officer the revenue is jeopardized or the effective administration
of this subpart is hindered by the continuation of such variation. Where
a manufacturer desires to employ such variation, the manufacturer shall
submit a written application to do so (in triplicate) to the appropriate
TTB officer. The application shall describe the proposed variations and
set forth the reasons therefor. Variations shall not be employed until
the application has been approved. In accordance with this subpart, any
authorization of the appropriate TTB officer under this section shall be
retained as part of the manufacturer's records.

Sec. 40.387 Penalties and forfeitures.

Anyone who fails to comply with the provisions of this subpart
becomes liable to the civil and criminal penalties, and forfeitures,
provided by law.

(72 Stat. 1425, 1426; 26 U.S.C. 5761, 5762, 5763)

Qualification Requirements for Manufacturers

Original Qualifications

Sec. 40.391 Persons required to qualify.

Every person who manufactures cigarette paper, or makes up cigarette
paper into tubes, except for his own personal use or consumption, must
first qualify as a manufacturer of cigarette papers and tubes in
accordance with the provisions of this subpart.

[ATF-467, 66 FR 49532, Sept. 28, 2001]

Sec. 40.392 Bond.

Every person, before commencing business as a manufacturer of
cigarette papers and tubes, shall file a bond on TTB Form 2102 (5210.1).
Such bond shall be filed in accordance with the applicable provisions of
subpart G of this part and conditioned upon compliance with the
provisions of 26 U.S.C. Chapter 52, and regulations thereunder,
including, but not limited to, the timely payment of taxes imposed by
such chapter and penalties and interest in connection therewith for
which the manufacturer may become liable to the United States.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.393 Power of attorney.

If the bond or any other document required under this part is signed
by an attorney in fact for an individual, partnership, association,
company, or corporation, by one of the partners for a partnership, or by
one of the members of an association, a power of attorney on TTB Form
1534 (5000.8) shall be furnished to the appropriate TTB officer. If such
bond or other document is signed on behalf of a corporation by an
officer thereof, it must be supported by duly authenticated extracts of
the stockholders' meeting, by-laws, or directors' meeting authorizing
such officer to execute such document for the corporation. TTB Form
5000.8 or support of authority does not have to be filed again with a
appropriate TTB officer where such form or support has previously been
submitted to that appropriate TTB officer and is still in effect.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.394 Notice of approval of bond.

If the bond required under this subpart is approved by the
appropriate TTB officer, a number will be assigned to the factory of the
manufacturer of cigarette papers and tubes for internal revenue
purposes. The appropriate TTB officer will immediately notify the
manufacturer, in writing, of the bond approval, in order that the
manufacturer may commence operations.

(72 Stat. 1421; 26 U.S.C. 5711)

Changes after Original Qualifications

Sec. 40.395 Change in name.

Where there is a change in the individual, trade, or corporate name
of a manufacturer of cigarette papers and tubes, the manufacturer shall,
within

[[Page 54]]

30 days of the change, furnish the appropriate TTB officer a written
notice of such change.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 40.396 Change in proprietorship.

Where there is to be any change in proprietorship (including a
change in the identity of the members of a partnership or association,
but excluding any change in stock ownership in a corporation) of the
business of a manufacturer of cigarette papers and tubes, the proposed
successor shall, before commencing operations, qualify as a manufacturer
of cigarette papers and tubes, in accordance with this part. If such
manufacturer promptly files the required documentation with the
appropriate TTB officer, an administrator, executor, receiver, trustee,
assignee, or other fiduciary successor may liquidate the business
without qualifying as a manufacturer. The manufacturer must promptly
file with the appropriate TTB officer a statement of the intent to
liquidate and furnish a certified copy of the order of the court, or
other pertinent documents. These documents must show the appointment and
qualification of any administrator, executor, receiver, trustee,
assignee, or other fiduciary, together with an extension of coverage of
the predecessor's bond executed by the administrator, executor,
receiver, trustee, assignee, or other fiduciary and the surety, in
accordance with the provisions of Sec. 40.407. The predecessor shall
make a closing inventory and closing report in accordance with the
provisions of Sec. Sec. 40.434 and 40.426, respectively, and the
successor shall make an opening inventory and opening report, in
accordance with the provision of Sec. Sec. 40.432 and 40.423,
respectively.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5721, and 5722)

Sec. 40.397 Change in location.

Whenever a manufacturer of cigarette papers and tubes contemplates a
change in location of a factory within the same region, the manufacturer
shall, before commencing operations at the new location, file an
extension of coverage of bond in accordance with the provisions of Sec.
40.407. Whenever a manufacturer of cigarette papers and tubes
contemplates changing the location of a factory to another region, the
manufacturer shall, before commencing operations at the new location,
qualify as a manufacturer in the new region, in accordance with the
applicable provisions of this subpart, and make a closing inventory and
closing report, in accordance with the provisions of Sec. Sec. 40.434
and 40.426, respectively.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5721, and 5722)

Bonds and Extensions of Coverage of Bonds

Sec. 40.401 Corporate surety.

(a) Surety bonds required by this subpart may be given only with
corporate sureties holding certificates of authority from, and subject
to any limitations prescribed by the Secretary of the Treasury as set
forth in the current revision of Treasury Department Circular No. 570
(Companies Holding Certificates of Authority as Acceptable Sureties on
Federal Bonds and as Acceptable Reinsuring Companies). The surety shall
have no interest whatever in the business covered by the bond.
(b) Each bond and each extension of coverage of bond shall at the
time of filing be accompanied by a power of attorney authorizing the
agent or officer who executed the bond to so act on behalf of the
surety. The appropriate TTB officer who is authorized to approve the
bond may, whenever deemed necessary, require additional evidence of the
authority of the agent or officer to execute the bond or extension of
coverage of bond. The power of attorney shall be prepared on a form
provided by the surety company and executed under the corporate seal of
the company. If the power of attorney submitted is other than a manually
signed document, it shall be accompanied by a certificate of its
validity.
(c) Treasury Department Circular No. 570 is published in the Federal
Register annually as of the first workday in July. As they occur,
interim revisions of the circular are published in the Federal Register.
Copies may be obtained from the Surety Bond Branch,

[[Page 55]]

Financial Management Service, Department of the Treasury, Washington,
D.C. 20220.

(July 30, 1947, ch. 390, 61 Stat. 648, as amended (31 U.S.C. 9304,
9306); sec. 202. Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C.
5711))

Sec. 40.402 Two or more corporate sureties.

A bond executed by two or more corporate sureties shall be the joint
and several liability of the principal and the sureties. However, each
corporate surety may limit its liability in terms upon the face of the
bond in a definite, specific amount, which amount shall not exceed the
limitations prescribed for such corporate surety by the Secretary, as
set forth in the current revision of Treasury Department Circular 570
(Companies Holding Certificates of Authority as Acceptable Sureties on
Federal Bonds and as Acceptable Reinsuring Companies). (See Sec.
40.401(c)) When the sureties so limit their liability, the aggregate of
such limited liabilities must equal the required amount of the bond.

(July 30, 1947, ch. 390, 61 Stat. 648, as amended (31 U.S.C. 9304,
9306); sec. 202. Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C.
5711))

Sec. 40.403 Deposit of securities in lieu of corporate surety.

In lieu of corporate surety, the manufacturer of cigarette papers
and tubes may pledge and deposit, as security for the bond, securities
which are transferable and are guaranteed as to both interest and
principal by the United States, in accordance with the provisions of 31
CFR Part 225--Acceptance of Bonds, Notes or Other Obligations Issued or
Guaranteed by the United States as Security in Lieu of Surety or
Sureties on Penal Bonds.

(61 Stat. 650, 72 Stat. 1421, 31 U.S.C. 9301, 9303, 26 U.S.C. 5711, 5
U.S.C. 552(a) (80 Stat. 383, as amended))

Sec. 40.404 Amount of bond.

The amount of the bond of a manufacturer of cigarette papers and
tubes shall be not less than the maximum amount of the tax liability on
the cigarette papers and tubes manufactured in the factory, received
without payment of tax from other factories, and released without
payment of tax from customs custody as provided in Sec. 40.452, during
any month. In the case of a manufacturer commencing business, the
production, receipts from other factories, and releases from customs
custody, without payment of tax, shall be estimated for the purpose of
this section. The amount of any such bond (or the total amount where
strengthening bonds are filed) shall not exceed $20,000, nor be less
than $1,000.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.405 Strengthening bond.

Where the appropriate TTB officer determines that the amount of the
bond, under which a manufacturer of cigarette papers and tubes is
currently carrying on such business, no longer adequately protects the
revenue, the appropriate TTB officer may require the manufacturer to
file a strengthening bond in an appropriate amount with the same surety
as that on the bond already in effect, in lieu of a superseding bond to
cover the full liability on the basis of Sec. 40.404. The appropriate
TTB officer shall refuse to approve any strengthening bond where any
notation is made thereon which is intended or which may be construed as
a release of any former bond, or as limiting the amount of either bond
to less than its full amount.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.406 Superseding bond.

A manufacturer of cigarette papers and tubes shall file a new bond
to supersede the current bond immediately when:
(a) The corporate surety on the current bond becomes insolvent,
(b) The appropriate TTB officer approves a request from the surety
of the current bond to terminate liability under the bond,
(c) Payment of any liability under a bond is made by the surety
thereon, or
(d) The appropriate TTB officer considers such a superseding bond
necessary for the protection of the revenue.

(72 Stat. 1421; 26 U.S.C. 5711)

[[Page 56]]

Sec. 40.407 Extension of coverage of bond.

An extension of the coverage of bond filed under this subpart shall
be manifested on TTB Form 2105 (5000.7), Extension of Coverage of Bond,
by the manufacturer of cigarette papers and tubes and by the surety on
the bond with the same formality and proof of authority as required for
the execution of the bond.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.408 Approval of bond and extension of coverage of bond.

No person shall commence operations under any bond, nor extend
operations, until such person receives from the appropriate TTB officer
notice of approval of the bond or an appropriate extension of coverage
of the bond required under this subpart. Upon receipt of an approved
bond or extension of coverage of bond from the appropriate TTB officer,
such bond or extension of coverage of bond shall be retained by the
manufacturer of cigarette papers and tubes in factory and shall be made
available for inspection by any TTB officer upon request.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.409 Termination of liability of surety under bond.

The liability of a surety on any bond required by this subpart shall
be terminated only as to operations on and after the effective date of a
superseding bond, or the date of approval of the discontinuance of
operations by the manufacturer of cigarette papers and tubes, or
otherwise in accordance with the termination provisions of the bond. The
surety shall remain bound in respect of any liability for unpaid taxes,
penalties and interest, not in excess of the amount of the bond,
incurred by the manufacturer while the bond is in force.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 40.410 Release of pledged securities.

Securities of the United States pledged and deposited as provided in
Sec. 40.403 shall be released only in accordance with the provisions of
31 CFR part 225. Such securities will not be released by the appropriate
TTB officer until liability under the bond for which they were pledged
has been terminated. When the appropriate TTB officer is satisfied that
they may be released, the appropriate TTB officer shall fix the date or
dates on which a part or all of such securities may be released. At any
time prior to the release of such securities, the appropriate TTB
officer may extend the date of release for such additional length of
time as is deemed necessary.

(61 Stat. 650, 72 Stat. 1421; 31 U.S.C. 9301, 9303; 26 U.S.C. 5711)

Operations By Manufacturers

Records

Sec. 40.421 General.

(a) Every manufacturer of cigarette papers and tubes must keep
records of daily operations and transactions. Records maintained must
reflect the date and number of cigarette papers and the date and number
of cigarette tubes:
(1) Manufactured;
(2) Received, without payment of tax from another factory, an export
warehouse, customs custody, or by withdrawal from the market;
(3) Removed, subject to tax;
(4) Removed, without payment of tax, for export purposes, use of the
United States or transfer in bond pursuant to Sec. 40.451; or
(5) Lost or destroyed.
(b) The entries for each day in the records maintained or kept under
this subpart must be made by the close of the business day following
that on which the operations or transactions occur. No particular form
of records is prescribed, but the information required must be readily
ascertainable from the records kept.
(c) Records maintained under this section prior to January 1, 2000,
must reflect the date and number of books or sets of cigarette papers of
each different numerical content and the date and number of cigarette
tubes.

(26 U.S.C. 5741.)

[T.D. ATF-240, 64 FR 71941, Dec. 22, 1999]

[[Page 57]]

Reports

Sec. 40.422 General.

Every manufacturer of cigarette papers and tubes must prepare a
report on TTB Form 5230.3 in accordance with instructions for the form.
The report must be prepared at the times specified in this subpart and
must be prepared whether or not any operations or transactions occurred
during the period covered by the report. The manufacturer must retain a
copy of each report in accordance with the provisions of this subpart.
(a) Reports for periods on or after January 1, 2000. Reports
submitted must reflect the total number of cigarette papers and
cigarette tubes manufactured, received and lost or destroyed.
(b) Reports for periods prior to January 1, 2000. Reports submitted
must reflect the number of books or sets of cigarette papers of each
different numerical content and the number of cigarette tubes
manufactured, received, removed and lost or destroyed.

(26 U.S.C. 5722)

[T.D. ATF-240, 64 FR 71942, Dec. 22, 1999]

Sec. 40.423 Opening.

An opening report, covering the period from the date of the opening
inventory to the end of the month, shall be made on or before the 10th
day following the end of the month in which the business was commenced.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 40.424 Monthly.

A report for each calendar month shall be made on or before the 20th
day of the next succeeding month.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 40.425 Special.

A special report, covering the unreported period to the day
preceding the date of any special inventory required by an appropriate
TTB officer, shall be made with such inventory. Another report, covering
the period from the date of the special inventory to the end of the
month, shall be made on or before the 14th day following the end of the
month in which the inventory was made.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 40.426 Closing.

A closing report, covering the period from the first of the month to
the date of the closing inventory, shall be made with such inventory.

(72 Stat. 1422; 26 U.S.C. 5722)

Inventories

Sec. 40.431 General.

Every manufacturer of cigarette papers and tubes must provide a true
and accurate inventory on TTB Form 5230.2 in accordance with
instructions for the form. Such inventory is subject to verification by
the appropriate TTB officer. The manufacturer must retain a copy of each
inventory completed on TTB Form 5230.2 in accordance with this subpart.
(a) Reports of inventory for periods on or after January 1, 2000.
Reports of inventory submitted must reflect the total number of
cigarette papers and cigarette tubes held at the times specified in the
subpart.
(b) Reports of inventory for periods prior to January 1, 2000.
Reports of inventory submitted must reflect the number of books or sets
of cigarette papers of each different numerical content and the number
of cigarette tubes held at the times specified in this subpart.

(26 U.S.C. 5721)

[T.D. ATF-240, 64 FR 71942, Dec. 22, 1999]

Sec. 40.432 Opening.

An opening inventory shall be made by the manufacturer of cigarette
papers and tubes at the time of first commencing business.

(72 Stat. 1422; 26 U.S.C. 5721)

Sec. 40.433 Special.

A special inventory shall be made by the manufacturer of cigarette
papers and tubes when required by the appropriate TTB officer.

(72 Stat. 1422; 26 U.S.C. 5721)

[[Page 58]]

Sec. 40.434 Closing.

A closing inventory shall be made by the manufacturer of cigarette
papers and tubes when a change in proprietorship occurs, or when the
manufacturer changes location of the factory to another region, or
concludes business. Where a change in proprietorship occurs, the closing
inventory shall be made as of the day preceding the date of the opening
inventory of the successor.

(72 Stat. 1422; 26 U.S.C. 5721)

Document Retention

Sec. 40.435 General.

All records and reports required to be kept or maintained under this
subpart, including copies of authorizations, inventories, reports,
returns, and claims filed with verified supporting schedules, shall be
retained by the manufacturer for three years following the close of the
calendar year in which filed or made, or in the case of an
authorization, for three years following the close of the calendar year
in which the operation under such authorization is concluded. Such
records shall be made available for inspection by the appropriate TTB
officer upon request.

(72 Stat. 1423; 26 U.S.C. 5741)

Packages

Sec. 40.441 General.

All cigarette papers and tubes shall, before removal subject to tax,
be put up by the manufacturer in packages which shall be of such
construction as will securely contain the papers or tubes therein. No
package of cigarette papers or tubes shall have contained therein,
attached thereto, or stamped, marked, written, or printed thereon:
(a) Any certificate, coupon, or other device purporting to be or to
represent a ticket, chance, share, or an interest in, or dependent on,
the event of a lottery,
(b) Any indecent or immoral picture, print, or representation, or
(c) Any statement or indication that United States tax has been
paid.

(72 Stat. 1422; 26 U.S.C. 5723)

Miscellaneous Operations

Sec. 40.451 Transfer in bond.

A manufacturer of cigarette papers and tubes may transfer such
papers and tubes, under bond, without payment of tax, to the bonded
premises of any manufacturer of cigarette papers and tubes, or to the
bonded premises of a manufacturer of tobacco products solely for use in
the manufacture of cigarettes. The transfer of cigarette papers and
tubes, without payment of tax, to the bonded premises of an export
warehouse proprietor shall be in accordance with the provisions of part
44 of this chapter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 40.452 Release from customs custody.

Cigarette papers and tubes which were made in the United States,
exported, and subsequently returned to the United States, may be removed
from customs custody for transfer to the premises of a manufacturer
without payment of the internal revenue tax, upon compliance with part
41 of this chapter.

(72 Stat. 1418; 26 U.S.C. 5704)

[T.D. ATF-384, 61 FR 54085, Oct. 17, 1996, as amended by T.D. TTB-16, 69
FR 52423, Aug. 26, 2004]

Sec. 40.453 Use of the United States.

A manufacturer of cigarette papers and tubes may remove cigarette
papers and tubes covered under bond, without payment of tax, for use of
the United States. Such removal shall be in accordance with the
provisions of part 45 of this chapter.

(72 Stat. 1418; 26 U.S.C. 5704)

Sec. 40.454 Removal for export purposes.

The removal of cigarette papers and tubes, without payment of tax,
for shipment to a foreign country, Puerto Rico, the Virgin Islands, or a
possession of the United States, or for consumption beyond the
jurisdiction of the internal revenue laws of the United

[[Page 59]]

States, shall be in accordance with the provisions of part 44 of this
chapter.

(72 Stat. 1418; 26 U.S.C. 5704)

Permanent Discontinuance of Business

Sec. 40.461 Discontinuance of operations.

Every manufacturer of cigarette papers and tubes who desires to
discontinue operations and close out a factory shall dispose of all
cigarette papers and tubes on hand, in accordance with this subpart, and
make a closing inventory and closing report, in accordance with the
provisions of Sec. Sec. 40.434 and 40.426, respectively.

(72 Stat. 1422; 26 U.S.C. 5721, 5722)

Claims By Manufacturers

General

Sec. 40.471 Abatement.

A claim for abatement of the unpaid portion of the assessment of any
tax on cigarette papers and tubes, or any liability in respect thereof,
may be allowed to the extent that such assessment is excessive in
amount, is assessed after the expiration of the applicable period of
limitation, or is erroneously or illegally assessed. Any claim under
this section shall be prepared on TTB Form 2635 (5620.8), in duplicate,
and shall set forth the particulars under which the claim is filed. The
original of the claim, accompanied by such evidence as is necessary to
establish to the satisfaction of the appropriate TTB officer that the
claim is valid, shall be filed with the appropriate TTB officer.

(68A Stat. 792, 6404)

Sec. 40.472 Allowance.

Relief from the payment of tax on cigarette papers and tubes may be
extended to a manufacturer by allowance of the tax where the cigarette
papers and tubes, after removal from the factory upon determination of
tax and prior to the payment of such tax, are lost (otherwise than by
theft) or destroyed by fire, casualty, or act of God, while in the
possession or ownership of the manufacturer who removed such articles,
or are withdrawn by the manufacturer from the market. Any claim for
allowance under this section shall be filed on TTB Form 2635 (5620.8)
with the appropriate TTB officer, shall be executed under penalties and
perjury and shall show the date the cigarette papers and tubes were
removed from the factory. A claim relating to articles lost or destroyed
shall be supported as prescribed in Sec. 40.475. In the case of a claim
relating to cigarette papers or tubes withdrawn from the market the
schedule prescribed in Sec. 40.476 shall be filed with the appropriate
TTB officer. The manufacturer may not anticipate allowance of a claim by
making the adjusting entry in a tax return pending consideration and
action on the claim. Cigarette papers and tubes to which such a claim
relates must be shown as removed on determination of tax in the return
covering the period during which such articles were so removed. Upon
action on the claim by the appropriate TTB officer a copy of TTB Form
2635 (5620.8) will be returned to the manufacturer as notice of such
action. This copy of TTB Form 2635 (5620.8), with the copy of any
verified supporting schedules, shall be retained by the manufacturer.
When such notification of allowance of the claim or any part thereof is
received prior to the time the return covering the tax on the cigarette
papers or tubes to which the claim relates is to be filed, the
manufacturer may make an adjusting entry and explanatory statement in
that tax return. Where the notice of allowance is received after the
filing of the return and taxpayment of the cigarette papers or tubes to
which the claim relates, the manufacturer may make an adjusting entry
and explanatory statement in the next tax return(s) to the extent
necessary to take credit in the amount of the allowance.

(72 Stat. 1419, as amended, 26 U.S.C. 5705)

Sec. 40.473 Credit or refund.

The taxes paid on cigarette papers and tubes may be credited or
refunded (without interest) to a manufacturer on proof satisfactory to
the appropriate TTB officer that the claimant manufacturer paid the tax
on cigarette papers and tubes lost (otherwise than

[[Page 60]]

by theft) or destroyed, by fire, casualty, or act of God, while in the
possession or ownership of such manufacturer, or withdrawn by the
manufacturer from the market. Any claim for credit or refund under this
section shall be prepared on TTB Form 2635 (5620.8), in duplicate.
Claims shall include a statement that the tax imposed on cigarette
papers and tubes by 26 U.S.C. 7652 or Chapter 52, was paid in respect to
the cigarette papers or tubes covered by the claim, and that the
articles were lost, destroyed, or withdrawn from the market within 6
months preceding the date the claim is filed. A claim for credit or
refund relating to articles lost or destroyed shall be supported as
prescribed in Sec. 40.475, and a claim relating to articles withdrawn
from the market shall be accompanied by a schedule prepared and verified
as prescribed in Sec. Sec. 40.476, and 40.477. The original and one
copy of TTB Form 2635 (5620.8), shall be filed with the appropriate TTB
officer. Upon action by the appropriate TTB officer on a claim for
credit, a copy of TTB Form 2635 (5620.8) will be returned to the
manufacturer as notification of allowance or disallowance of the claim
or any part thereof. This copy, with the copy of any verified supporting
schedules, shall be retained by the manufacturer. When the manufacturer
is notified of allowance of the claim for credit or any part thereof,
the manufacturer shall make an adjusting entry and explanatory statement
in the next tax return(s) to the extent necessary to take credit in the
amount of the allowance. The manufacturer may not anticipate allowance
of a claim by taking credit on a tax return prior to consideration and
action on such claim. The duplicate of a claim for refund or credit,
with a copy of any verified supporting schedules, shall be retained by
the manufacturer.

(72 Stat. 1419, as amended, 26 U.S.C. 5705)

Sec. 40.474 Remission.

Remission of the tax liability on cigarette papers and tubes may be
extended to the manufacturer liable for the tax where cigarette papers
and tubes in bond are lost (other than by theft) or destroyed, by fire,
casualty, or act of God, while in the possession or ownership of such
manufacturer. Where cigarette papers and tubes are so lost or destroyed
the manufacturer shall report promptly such fact, and the circumstances,
to the appropriate TTB officer. If the manufacturer wishes to be
relieved of the tax liability, a claim on TTB Form 2635 (5620.8), in
duplicate, shall also be prepared, setting forth the nature, date,
place, and extent of the loss or destruction. The original and one copy
of the claim, accompanied by such evidence as is necessary to establish
to the satisfaction of the appropriate TTB officer that the claim is
valid, shall be filed with the appropriate TTB officer. Upon action on
the claim by the appropriate TTB officer, the copy of TTB Form 2635
(5620.8) will be returned to the manufacturer as notice of such action,
which copy shall be retained by the manufacturer.

(72 Stat. 1419, as amended, 26 U.S.C. 5707)

Lost or Destroyed

Sec. 40.475 Action by claimant.

Where cigarette papers and tubes are lost (other than by theft) or
destroyed, by fire, casualty, or act of God, and the manufacturer
desires to file claim under the provisions of Sec. 40.472 or Sec.
40.473, the manufacturer shall indicate on the claim the nature, date,
and extent of such loss or destruction. The claim shall be accompanied
by such evidence as necessary to establish to the satisfaction of the
appropriate TTB officer that the claim is valid.

(72 Stat. 1419; 26 U.S.C. 5705)

Withdrawn From the Market.

Sec. 40.476 Action by claimant.

Where cigarette papers and tubes are withdrawn from the market and
the manufacturer desires to file claim under the provisions of Sec.
40.472 or Sec. 40.473, the manufacturer shall assemble the articles in
or adjacent to a factory if they are to be retained in or received into
such factory, or at any suitable place if they are to be destroyed. The
manufacturer shall group the articles according to the rate of tax
applicable thereto, and shall prepare and submit a schedule of the
articles, on TTB Form 5200.7 in accordance with

[[Page 61]]

the instructions, on the form. All copies of the schedule shall be
forwarded to the appropriate TTB officer.

(72 Stat. 1419; 26 U.S.C. 5705)

[T.D. ATF-384, 61 FR 54085, Oct. 17, 1996, as amended by T.D. ATF-424,
64 FR 71932, Dec. 22, 1999]

Sec. 40.477 Action by the appropriate TTB officer.

Upon receipt of a schedule of cigarette papers and tubes withdrawn
from the market, the appropriate TTB officer may assign a TTB officer to
verify the schedule and supervise disposition of the cigarette papers
and tubes, or may authorize the manufacturer to dispose of the articles
without supervision by so stating on the original and one copy of the
schedule returned to the manufacturer.

(72 Stat. 1419; 26 U.S.C. 5705)

Sec. 40.478 Disposition of cigarette papers and tubes and schedule.

When so authorized, as evidenced by the appropriate TTB officer's
statement on the schedule, the manufacturer shall dispose of the
cigarette papers and tubes as specified in the schedule. After the
articles are disposed of, the manufacturer shall execute a certificate
on both copies of the schedule received from the appropriate TTB
officer, to show the disposition and the date of disposition of the
articles. In connection with a claim for credit or refund, the
manufacturer shall attach the original of the schedule to the claim for
credit or refund, TTB Form 2635 (5620.8), filed under Sec. 40.473. When
an appropriate TTB officer is assigned to verify the schedule and
supervise disposition of the cigarette papers and tubes, such officer
shall, upon completion of the assignment, execute a certificate on all
copies of the schedule to show the disposition and the date of
disposition of the articles. In connection with a claim for allowance,
the officer shall return one copy of the schedule to the manufacturer
for the record, and in connection with a claim for credit or refund, the
officer shall return the original and one copy of the schedule to the
manufacturer, the original of which the manufacturer shall attach to the
claim filed under Sec. 40.473.

(72 Stat. 1419, as amended; 26 U.S.C. 26 U.S.C. 5705)

PART 41_IMPORTATION OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES--Table

of Contents

Subpart A_Scope of Regulations

Sec.
41.1 Importation of tobacco products and cigarette papers and tubes.

Subpart B_Definitions

41.11 Meaning of terms.

Subpart C_General

41.21 Forms prescribed.
41.22 Retention of records.
41.23 Authority of TTB officers to enter premises.
41.24 Interference with administration.
41.25 Disposal of forfeited, condemned, and abandoned tobacco products
and cigarette papers and tubes.
41.26 Alternate methods or procedures.
41.27 Emergency variations from requirements.
41.28 Penalties and forfeitures.
41.29 Delegations of the Administrator.

Subpart D_Taxes

Tax Rates

41.30 Pipe tobacco and roll-your-own tobacco.
41.31 Cigar tax rates.
41.32 Cigarette tax rates.
41.33 Smokeless tobacco tax rates.
41.34 Cigarette papers.
41.35 Cigarette tubes.

Classification of Large Cigars and Cigarettes

41.37 [Reserved]
41.38 Cigarettes.
41.39 Determination of sale price of large cigars.

Liability for and Payment of Taxes

41.40 Persons liable for tax.
41.41 Determination and payment of tax.

Exemptions from Taxes and Permits

41.50 Exemptions.

Assessment of Taxes

41.60 Assessment.

[[Page 62]]

Customs' Collection of Taxes

41.62 Customs' collection of internal revenue taxes on tobacco products
and cigarette papers and tubes, imported or brought into the
United States.
41.63 Payment of tax by electronic fund transfer.

Subpart E_Packages

41.71 Package.
41.72 Notice for smokeless tobacco.
41.72a Notice for pipe tobacco.
41.72b Notice for roll-your-own tobacco.
41.72c Package use-up rule.
41.73 Notice for cigars.
41.74 Notice for cigarettes.
41.75 Exemptions.

Subpart F_Tobacco Products and Cigarette Papers and Tubes, Imported Into
or Returned to the United States

41.81 Taxpayment.

Release From Customs Custody of Tobacco Products and Cigarette Papers
and Tubes Without Payment of Tax or Certain Duty

41.82 Restrictions on tobacco products labeled for export.
41.83 Penalties and forfeiture for products labeled or shipped for
export.
41.85 Release from customs custody of imported tobacco articles.
41.85a Release from customs custody of returned articles.
41.86 Procedure for release.

Subpart G_Puerto Rican Tobacco Products and Cigarette Papers and Tubes,
Brought Into the United States

41.101 General.

Prepayment of Tax in Puerto Rico on Tobacco Products and Cigarette
Papers and Tubes

41.105 Prepayment of tax.
41.106 Examination and record of shipment by taxpayer.
41.107-41.108 [Reserved]

Deferred Payment of Tax in Puerto Rico on Tobacco Products

41.109 Bond required for deferred taxpayment.
41.110 Record of tax computation and shipment by bonded manufacturer
under deferred taxpayment.
41.111 Agreement to pay tax.
41.112 Tax return.
41.113 Return periods.
41.114 Time for filing.
41.114a Qualification for extended deferral.
41.115 Remittance with return.
41.115a Payment of tax by electronic fund transfer.
41.116 Default.
41.117-41.118 [Reserved]
41.119 Corporate surety.
41.120 Deposit of securities in lieu of corporate surety.
41.121 Amount and account of bond.
41.122 Strengthening bond.
41.123 Superseding bond.
41.124 Extension of coverage of bond.
41.125 Approval of bond and extension of coverage of bond.
41.126 Termination of bond.
41.127 Application of surety for relief from bond.
41.128 Relief of surety from bond.
41.129 Release of pledged securities.
41.135-41.138 [Reserved]
41.139 Records.
41.140 Taxpayment in the United States.
41.141 Reports.

Subpart H [Reserved]

41.151-41.153 [Reserved]

Subpart I_Claims

General

41.161 Abatement of assessment.
41.162 Losses caused by disaster occurring after September 2, 1958.
41.163 Refund of tax.

Tobacco Products, and Cigarette Papers and Tubes Lost or Destroyed

41.165 Action by taxpayer.

Tobacco Products and Cigarette Papers and Tubes Withdrawn From the
Market

41.170 Reduction of tobacco products to materials; TTB action.
41.171 Reduction of tobacco products to materials, action by appropriate
TTB officer.
41.172 Return to nontaxpaid status; action by taxpayer.
41.173 Return to nontaxpaid status; action by appropriate TTB officer.
41.174 Disposition of tobacco products and cigarette papers and tubes,
and schedule.

Subpart J_Records and Reports

41.181 Records of large cigars.
41.182 Availability of records.
41.183 [Reserved]

Subpart K_Tobacco Products Importers

41.190 Persons required to qualify.
41.191 Application for permit.
41.192 Transitional rule.
41.193 Corporate documents.
41.194 Articles of partnership or association.
41.195 Trade name certificate.

[[Page 63]]

41.196 Power of attorney.
41.197 Additional information.
41.198 Investigation of applicant.
41.199 Notice of contemplated disapproval.
41.200 Issuance of permit.
41.201 Duration of permit.
41.202 Renewal of permit.
41.203 Retention of permit and supporting documents.

Required Records and Reports

41.204 General.
41.205 Recordkeeping requirements.

Filing and Retention of Records and Reports

41.206 Reports.
41.207 Filing.
41.208 Retention.

Subpart L_Changes After Original Qualification of Importers

Changes in Name

41.220 Change in individual name.
41.221 Change in trade name.
41.222 Change in corporate name.

Changes in Ownership and Control

41.223 Fiduciary successor.
41.224 Transfer of ownership.
41.225 Change in officers, directors, or stockholders of a corporation.
41.226 Change in control of a corporation.

Changes in Location or Address

41.227 Change in location.
41.228 Change in address.

Authority: 18 U.S.C. 2342; 26 U.S.C. 5701, 5703, 5704, 5705, 5708,
5712, 5713, 5721-5723, 5741, 5754, 5761-5763, 6301, 6302, 6313, 6404,
7101, 7212, 7342, 7606, 7651, 7652, 7805; 31 U.S.C. 9301, 9303, 9304,
9306.

Source: Redesignated by T.D. TTB-16, 69 FR 52424, Aug. 26, 2004,
unless otherwise noted.

Editorial Note: Nomenclature changes to part 41 (formerly part 275)
appear at T.D. ATF-460, 66 FR 39093, July 27, 2001.

Subpart A_Scope of Regulations

Sec. 41.1 Importation of tobacco products and cigarette papers and tubes.

This part contains regulations relating to tobacco products and
cigarette papers and tubes imported into the United States from a
foreign country or brought into the United States from Puerto Rico, the
Virgin Islands, or a possession of the United States; the removal of
tobacco products from a customs bonded manufacturing warehouse, class 6;
restrictions on the importation of previously exported tobacco products
and cigarette papers and tubes; and the release of tobacco products and
cigarette papers and tubes from customs custody, without payment of
internal revenue tax or customs duty attributable to the internal
revenue tax.

[T.D. ATF-421, 64 FR 71924, Dec. 22, 1999]

Subpart B_Definitions

Sec. 41.11 Meaning of terms.

[[Page 64]]

Puerto Rico on the internal revenue tax imposed on such products by 26
U.S.C. 7652(a) as provided in this part.
CFR. The Code of Federal Regulations.
Chewing Tobacco. Any leaf tobacco that is not intended to be smoked.
Cigar. Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco which is a
cigarette within the meaning of paragraph (2) of the definition for
cigarette).
Cigarette. (1) Any roll of tobacco wrapped in paper or in any
substance not containing tobacco, and
(2) Any roll of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (1) of
this definition.
Cigarette paper. Paper, or any other material except tobacco,
prepared for use as a cigarette wrapper.
Cigarette tube. Cigarette paper made into a hollow cylinder for use
in making cigarettes.
Commercial bank. A bank, whether or not a member of the Federal
Reserve System, which has access to the Federal Reserve Communications
System (FRCS) or Fedwire. The ``FRCS'' or ``Fedwire'' is a
communications network that allows Federal Reserve System member banks
to effect a transfer of funds for their customers (or other commercial
banks) to the Treasury Account at the Federal Reserve Bank in New York.
Computation or computed. When used with respect to the tax on
tobacco products of Puerto Rican manufacture, computation or computed
shall mean that the bonded manufacturer has ascertained the quantity and
kind (small cigars, large cigars, small cigarettes, large cigarettes,
chewing tobacco, snuff, pipe tobacco, or roll-your-own tobacco) of
tobacco products and the sale price of large cigars being shipped to the
United States; that adequate bond has been posted to cover the payment,
in Puerto Rico, of the tax on such products to be deferred under subpart
G of this part; that the tax imposed on such products by 26 U.S.C.
7652(a) has been calculated; that the bonded manufacturer has executed
an agreement to pay the internal revenue tax which will become due with
respect to such products, as provided in this part; and that a TTB
officer has verified and executed a certification of such calculation.
Customs officer. Any officer of the Customs Service or any
commissioned, warrant, or petty officer of the Coast Guard, or any agent
or other person authorized by law or designated by the Secretary of the
Treasury to perform any duties of an officer of the Customs Service.
Determine. To establish enough information about taxable products at
the time of removal to calculate the tax, specifically the quantity
(pounds or number) and kind (for example, cigarettes, snuff, paper
tubes). Where the tax rate depends on additional information (such as
number of cigarette papers to a set before 1/1/2000 or sale price of
large cigars), that information must also be established as part of tax
determination.
Electronic fund transfer or EFT. Any transfer of funds effected by a
bonded manufacturer's commercial bank, either directly or through a
correspondent banking relationship, via the Federal Reserve
Communications System (FRCS) or Fedwire to the Treasury Account at the
Federal Reserve Bank of New York.
Export warehouse. A bonded internal revenue warehouse for the
storage of tobacco products and cigarette papers and tubes, upon which
the internal revenue tax has not been paid, for subsequent shipment to a
foreign country, Puerto Rico, the Virgin Islands, or a possession of the
United States, or for consumption beyond the jurisdiction of the
internal revenue laws of the United States.
Export warehouse proprietor. Any person who operates an export
warehouse.
Factory. The premises of a manufacturer of tobacco products or
cigarette papers or tubes in which he carries on such business.
Fiscal year. The period which begins October 1 and ends on the
following September 30.
HTS. The Harmonized Tariff Schedule of the United States, as
published by

[[Page 65]]

the United States International Trade Commission.
Importer. Any person in the United States to whom non-taxpaid
tobacco products or cigarette papers or tubes manufactured in a foreign
country, Puerto Rico, the Virgin Islands, or a possession of the United
States are shipped or consigned; any person who removes cigars for sale
or consumption in the United States from a Customs bonded manufacturing
warehouse; and any person who smuggles or otherwise unlawfully brings
tobacco products or cigarette papers or tubes into the United States.
Large cigarettes. Cigarettes weighing more than three pounds per
thousand.
Large cigars. Cigars weighing more than three pounds per thousand.
Manufacturer of cigarette papers and tubes. Any person who
manufactures cigarette paper, or makes up cigarette paper into tubes,
except for his own personal use or consumption.
Manufacturer of tobacco products. Any person who manufactures
cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own
tobacco but does not include:
(1) A person who produces tobacco products solely for that person's
own consumption or use; or
(2) A proprietor of a Customs bonded manufacturing warehouse with
respect to the operation of such warehouse.
Package. The container in which tobacco products or cigarette papers
or tubes are put up by the manufacturer or the importer for delivery to
the consumer.
Person. An individual, partnership, association, company,
corporation, estate, or trust.
Pipe tobacco. 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 to be smoked in a pipe.
Port Director of Customs. The director of any port or port of entry
as defined in 19 CFR 101.1. A list of ports is set forth in 19 CFR
101.3.
Records. Statements, declarations, books, papers, correspondence,
accounts, technical data, automated record storage devices (e.g.,
magnetic discs and tapes), computer programs necessary to retrieve
information in a usable form, and other documents that:
(1) Pertain to any importation of tobacco products or cigarette
papers or tubes, or to the information contained in the documents
required by law or regulation under the Tariff Act of 1930, as amended,
in connection with the importation or shipment into the United states
from Puerto Rico of merchandise; and
(2) Are of the type normally kept in the ordinary course of
business; and
(3) Are sufficiently detailed to:
(i) Establish the right to make the importation or shipment into the
United States from Puerto Rico;
(ii) Establish the correctness of any importation or shipment into
the United States from Puerto Rico;
(iii) Determine the liability of any person for duties and taxes
due, or which may be due, to the United States;
(iv) Determine the liability of any person for fines, penalties, and
forfeitures; and
(v) Determine whether the person has complied with the laws and
regulations administered by TTB and the Customs Service, and any other
documents required under laws or regulations administered by TTB and the
Customs Service.
Relanding. Any tobacco products, cigarette papers or tubes, which
have been labeled or shipped for exportation (including to Puerto Rico)
as prescribed in this chapter, previously exported and returned within
the jurisdiction of the United States.
Removal or Remove. The removal of tobacco products or cigarette
papers or tubes from the factory or release from internal revenue bond
under 26 U.S.C. 5704, or release from customs custody, including
conditional release in accordance with 19 CFR 141.0a(i), and shall also
include the smuggling or other unlawful importation of such articles
into the United States.
Roll-your-own tobacco. 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.

[[Page 66]]

Sale price. The price for which large cigars are sold by the
importer or manufacturer, determined in accordance with Sec. 41.39 and
used for computation of the excise tax.
Small cigarettes. Cigarettes weighing not more than three pounds per
thousand.
Small cigars. Cigars weighing not more than three pounds per
thousand.
Smokeless tobacco. Any chewing tobacco or snuff.
Snuff. Any finely cut, ground, or powdered tobacco that is not
intended to be smoked.
This chapter. Chapter I, title 27, Code of Federal Regulations.
Tobacco products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
Treasury Account. The Department of the Treasury's General Account
at the Federal Reserve Bank of New York.
United States. When used in a geographical sense shall include only
the States and the District of Columbia.
U.S.C. The United States Code.

(Aug. 16, 1954, ch. 736, 68A Stat. 775, as amended (26 U.S.C. 6301);
June 29, 1956, ch. 462, 70 Stat. 391 (26 U.S.C. 6301))

[T.D. ATF-48, 43 FR 13554, Mar. 31, 1978; 44 FR 55855, Sept. 28, 1979,
as amended by T.D. ATF-77, 46 FR 3009, Jan. 13, 1981; T.D. ATF-232, 51
FR 28084, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-251, 52 FR 19340, May 22, 1987; T.D. ATF-284, 54 FR 12190, Mar 24,
1989; T.D. ATF-289, 54 FR 48840, Nov. 27, 1989; T.D. ATF-421, 64 FR
71924, Dec. 22, 1999; T.D. ATF-424, 64 FR 71932, Dec. 22, 1999; T.D.
ATF-420, 64 FR 71942, Dec. 22, 1999; T.D. ATF-422, 64 FR 71948, Dec. 22,
1999; T.D. ATF-422c, 65 FR 63545, Oct. 24, 2000; T.D. ATF-444, 66 FR
13850, Mar. 8, 2001; T.D. ATF-465, 66 FR 45618, Aug. 29, 2001; T.D. ATF-
467, 66 FR 49532, Sept. 28, 2001; T.D. TTB-16, 69 FR 52424, Aug. 26,
2004]

Subpart C_General

Sec. 41.21 Forms prescribed.

(a) The Administrator is authorized to prescribe all forms required
by this part. All of the information called for in each form shall be
furnished as indicated by the headings on the form and the instructions
on or pertaining to the form. In addition, information called for in
each form shall be furnished as required by this part. When a return,
form, claim, or other document called for under this part is required by
this part, or by the document itself, to be executed under penalties of
perjury, it shall be executed under penalties of perjury.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National Revenue Center, 550
Main Street, Room 1516, Cincinnati, OH 45202.

(5 U.S.C. 552(a) (80 Stat. 383, as amended)

[T.D. ATF-92, 46 FR 46922, Sept. 23, 1981, as amended by T.D. ATF-232,
51 FR 28084, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-372, 61 FR 20725, May 8, 1996; T.D. TTB-16, 69 FR 52424, Aug. 26,
2004]

Sec. 41.22 Retention of records.

All records required to be kept under this part, including copies of
claims and schedules, authorizations, notices of release, reports, and
returns, shall be retained for three years following the close of the
year in which filed or made, or in the case of an authorization, for
three years following the close of the calendar year in which the
operation under such authorization is concluded. Such records shall be
made available for inspection by any appropriate TTB officer upon his
request.

(72 Stat. 1423; 26 U.S.C. 5741)

[26 FR 8189, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, Aug.
26, 2004]

Sec. 41.23 Authority of TTB officers to enter premises.

Any appropriate TTB officer may enter in the daytime any premises
where tobacco products or cigarette papers or tubes are produced or kept
so far as it may be necessary for the purpose of examining such
articles. When such premises are open at night, any appropriate TTB
officer may enter them, while so open, in the performance of his
official duties. The owner of such premises, or person having the
superintendence of the same, who refuses to admit any appropriate TTB
officer or permit him to examine such articles

[[Page 67]]

shall be liable to the penalties prescribed by law for the offense.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 40, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28084, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, Aug. 26, 2004]

Sec. 41.24 Interference with administration.

Whoever, corruptly or by force or threats of force, endeavors to
hinder or obstruct the administration of this part, or endeavors to
intimidate or impede any appropriate TTB officer acting in his official
capacity, or forcibly rescues or attempts to rescue or causes to be
rescued any property, after it has been duly seized for forfeiture to
the United States in connection with a violation of the internal revenue
laws, shall be liable to the penalties prescribed by law.

(68A Stat. 855; 26 U.S.C. 7212)

[26 FR 8189, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, Aug.
26, 2004]

Sec. 41.25 Disposal of forfeited, condemned, and abandoned tobacco products

and cigarette papers and tubes.

When any Federal, State, or local officer having custody of
forfeited, condemned, or abandoned tobacco products or cigarette papers
or tubes, upon which the Federal tax has not been paid, is of the
opinion that the sale thereof will not bring a price equal to the tax
due and payable thereon, and the expenses incident to the sale thereof,
he shall not sell, nor cause to be sold, such articles for consumption
in the United States. Where the articles are not sold, the officer may
deliver them to a Federal or State hospital or institution (if they are
fit for consumption) or cause their destruction by burning completely or
by rendering them unfit for consumption. Where such articles are sold,
they shall not be released by the officer having custody thereof until
they are properly packaged and taxpaid, which tax shall be considered as
a portion of the sales price. Except where the tax is to be paid to the
Port Directors of Customs or other authorized customs officer in
accordance with Customs regulations (19 CFR part 127) on sales of
articles by customs officers, the payment of tax on such articles must
be evidenced by presentation, to the officer having custody of the
articles, of a receipt from the appropriate TTB officer showing such
payment. In the case of such articles held by or for the Federal
Government, the sale thereof shall be subject to the applicable
provisions of the Regulations of the General Services Administration,
Title 1, Personal Property Management.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 40, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28084, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-422, 64 FR 71948, Dec. 22,
1999. Redesignated and amended by T.D. TTB-16, 69 FR 52424, Aug. 26,
2004]

Sec. 41.26 Alternate methods or procedures.

An importer, on specific approval by the appropriate TTB officer as
provided in this section, may use an alternate method or procedure in
lieu of a method or procedure specifically prescribed in this part. The
appropriate TTB officer may approve an alternate method or procedure,
subject to stated conditions, when he finds that--
(a) Good cause has been shown for the use of the alternate method or
procedure,
(b) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue, and
(c) The alternate method of procedure will not be contrary to any
provision of law, and will not result in an increase in cost to the
Government or hinder the effective administration of this part.

No alternate method or procedure relating to the giving of any bond or
to the assessment, payment, or collection of tax, shall be authorized
under this section. When an importer desires to

[[Page 68]]

employ an alternate method or procedure, he shall submit a written
application to do so, in triplicate, to the appropriate TTB officer. The
application shall specifically describe the proposed alternate method or
procedure, and shall set forth the reasons therefor. Alternate methods
or procedures shall not be employed until the application has been
approved by the appropriate TTB officer. The importer shall, during the
period of authorization of an alternate method or procedure, comply with
the terms of the approved application. Authorization for any alternate
method or procedure may be withdrawn whenever in the judgment of the
appropriate TTB officer the revenue is jeopardized or the effective
administration of this part is hindered. The importer shall retain, as
part of his records, any authorization of the appropriate TTB officer
under this section.

[26 FR 8190, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, Aug.
26, 2004]

Sec. 41.27 Emergency variations from requirements.

Variations from requirements granted under this section are conditioned
on compliance with the procedures, conditions, and limitations set forth
in the approval of the application. Failure to comply in good faith and
with such procedures, conditions, and limitations shall automatically
terminate the authority for such variations and the importer thereupon
shall fully comply with the prescribed requirements of regulations from
which the variations were authorized. Authority for any variations may
be withdrawn whenever in the judgment of the appropriate TTB officer the
revenue is jeopardized or the effective administration of this part is
hindered by the continuation of such variation. Where an importer
desires to employ such variation, he shall submit a written application
to do so, in triplicate, to the appropriate TTB officer. The application
shall describe the proposed variations and set forth the reasons
therefor. Variations shall not be employed until the application has
been approved. The importer shall retain, as part of his records, any
authorization of the appropriate TTB officer under this section.

[26 FR 8190, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, Aug.
26, 2004]

Sec. 41.28 Penalties and forfeitures.

Anyone who fails to comply with the provisions of this part becomes
liable to the civil and criminal penalties, and forfeitures, provided by
law.

(72 Stat. 1425, 1426; 26 U.S.C. 5761, 5762, 5763)

[26 FR 8190, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975]

Sec. 41.29 Delegations of the Administrator.

The regulatory authorities of the Administrator contained in this
part are delegated to appropriate TTB officers. These TTB officers are
specified in TTB Order 1135.41, Delegation of the Administrator's
Authorities in 27 CFR Part 41, Importation of Tobacco Products and
Cigarette Papers and Tubes. You may obtain a copy of this order by
accessing the TTB Web site (http://www.ttb.gov) or by mailing a request
to the Alcohol and Tobacco Tax and Trade Bureau, National Revenue
Center, 550 Main Street, Room 1516, Cincinnati, OH 45202.

[T.D. TTB-16, 69 FR 52424, Aug. 26, 2004]

Subpart D_Taxes

Tax Rates

Sec. 41.30 Pipe tobacco and roll-your-own tobacco.

Pipe tobacco and roll-your-own tobacco are taxed at the following
rates under 26 U.S.C. 5701(f) and (g), respectively:

[[Page 69]]

----------------------------------------------------------------------------------------------------------------
Tax rate per pound \1\ for removals during the years
Product -------------------------------------------------------------------------
1993 to 1999 2000 and 2001 2002 and after
----------------------------------------------------------------------------------------------------------------
Pipe tobacco.......................... $0.675 $0.9567 $1.0969
Roll-your-own tobacco................. No tax 0.9567 1.0969
----------------------------------------------------------------------------------------------------------------
\1\ Prorate tax for fractions of a pound.

[T.D. ATF-420, 64 FR 71942, Dec. 22, 1999]

Sec. 41.31 Cigar tax rates.

(a) Cigars are taxed at the following rates under 26 U.S.C. 5701(a):

----------------------------------------------------------------------------------------------------------------
Tax rate for removals during the years
Product -------------------------------------------------------------------------
1993 to 1999 2000 and 2001 2002 and after
----------------------------------------------------------------------------------------------------------------
Small cigars (per thousand)........... $1.125 $1.594 $1.828
Large cigars \1\
percentage of sale price.......... 12.75% 18.063% 20.719%
but not to exceed per thousand.... $30 $42.50 $48.75
----------------------------------------------------------------------------------------------------------------
\1\ For large cigars, the percentage tax rate applies when the sale price is $235.294 per thousand or less, and
the flat tax rate applies when the sale price is more than $235.294.

(b) See Sec. 41.39 of this part for rules concerning determination
of sale price of large cigars.
(c) Cigars not exempt from tax under 26 U.S.C. chapter 52 and the
provisions of this part which are removed but not intended for sale
shall be taxed at the same rate as similar cigars removed for sale.

[T.D. ATF-420, 64 FR 71942, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.32 Cigarette tax rates.

Cigarettes are taxed at the following rates under 26 U.S.C. 5701(b):

----------------------------------------------------------------------------------------------------------------
Tax rate per thousand for removals during the years
Product -------------------------------------------------------------------------
1993 to 1999 2000 and 2001 2002 and after
----------------------------------------------------------------------------------------------------------------
Small cigarettes...................... $12 $17 $19.50
Large cigarettes up to 6\1/2\ long.
Large cigarettes over 6\1/2\ long. fraction thereof of the length of each as one cigarette.
----------------------------------------------------------------------------------------------------------------

[T.D. ATF-420, 64 FR 71943, Dec. 22, 1999]

Sec. 41.33 Smokeless tobacco tax rates.

Smokeless tobacco products are taxed at the following rates under 26
U.S.C. 5701(e):

------------------------------------------------------------------------
Tax rate per pound \1\ for removals
during the years
Product --------------------------------------
1993 to 2000 or 2002 and
1999 2001 after
------------------------------------------------------------------------
Snuff............................ $0.36 $0.51 $0.585

[[Page 70]]

Chewing tobacco.................. $0.12 $0.17 $0.195
------------------------------------------------------------------------
\1\ Prorate tax for fractions of a pound.

[T.D. ATF-420, 64 FR 71943, Dec. 22, 1999]

Sec. 41.34 Cigarette papers.

Cigarette papers are taxed at the following rates under 26 U.S.C.
5701(c):

------------------------------------------------------------------------
Tax rate for each 50 papers \1\ for
removals during the years
Product --------------------------------------
1993 to 2000 or 2002 and
1999 \2\ 2001 after
------------------------------------------------------------------------
Cigarette papers up to 6\1/2\ long....................
Cigarette papers over 6\1/2\ long.................... Use rates above, but count each 2\3/
4\ inches, or fraction thereof, of
the length of each as one cigarette
paper.
------------------------------------------------------------------------
\1\ Tax rate for less than 50 papers is the same. The tax is not
prorated.
\2\ Before January 1, 2000, books or sets containing 25 papers or less
were not taxable. On and after January 1, 2000, all cigarette papers
are taxable.

[T.D. ATF-420, 64 FR 71943, Dec. 22, 1999]

Sec. 41.35 Cigarette tubes.

Cigarette tubes are taxed at the following rates under 26 U.S.C.
5701(d):

------------------------------------------------------------------------
Tax rate for each 50 tubes \1\ for
removals during the years
Product --------------------------------------
1993 to 2000 and 2002 and
1999 2001 after
------------------------------------------------------------------------
Cigarette tubes up to 6\1/2\ long....................
Cigarette tubes over 6\1/2\ long.................... Use rates above, but count each 2\3/
4\ inches, or fraction thereof, of
the length of each as one cigarette
tube.
------------------------------------------------------------------------
\1\ Tax rate for less than 50 tubes is the same. The tax is not
prorated.

[T.D. ATF-420, 64 FR 71943, Dec. 22, 1999]

Classification of Large Cigars and Cigarettes

Sec. 41.37 [Reserved]

Sec. 41.38 Cigarettes.

For internal revenue tax purposes, small cigarettes are designated
Class A and large cigarettes are designated Class B.

(72 Stat. 1414; 26 U.S.C. 5701)

[26 FR 8191, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975]

Sec. 41.39 Determination of sale price of large cigars.

The tax imposed on large cigars is computed based on the sale price
(the price for which the large cigars are sold by the importer or
manufacturer). In addition to money, goods or services exchanged for
cigars may be considered as part of the sale price. See Sec. 40.22(b)
of

[[Page 71]]

this chapter for information on determining the sale price in special
cases.

[T.D. ATF-420, 64 FR 71944, Dec. 22, 1999; T.D. ATF-422, 64 FR 71948,
Dec. 22, 1999; T.D. ATF-422a, 65 FR 15058, Mar. 31, 2000; T.D. ATF-460,
66 FR 39093, July 27, 2001]

Liability for and Payment of Taxes

Sec. 41.40 Persons liable for tax.

The importer of tobacco products or cigarette papers and tubes will
be liable for the internal revenue taxes imposed thereon by 26 U.S.C.
5701 or 7652: Provided, That tobacco products or cigarette papers or
tubes (other than those previously exported and returned) imported or
brought into the United States, may be released from customs custody
without payment of tax, for delivery to the proprietor of an export
warehouse, to a manufacturer of tobacco products, or to a manufacturer
of cigarette papers or tubes (except for tobacco products), if such
articles are not put up in packages (see Sec. 41.11). Under these
circumstances the transferee will become liable for the internal revenue
tax on such articles upon release from customs custody and the importer
will thereupon be relieved of the liability for such tax. If the
transferee is also the importer, then the importer will not be relieved
of the liability for such tax.

(Aug. 16, 1954, Chapter 736, 68A Stat. 907, as amended (26 U.S.C. 7652);
sec. 201, Pub. L. 85-859, Stat. 1417, as amended (26 U.S.C. 5703))

[T.D. ATF-422, 64 FR 71948, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.41 Determination and payment of tax.

Tobacco products and cigarette papers and tubes, imported or brought
into the United States, on which internal revenue taxes are due and
payable, must not be released from customs custody until such taxes have
been determined and paid.

(68A Stat. 907, as amended, 72 Stat. 1417; 26 U.S.C. 7652, 5703)

[T.D. ATF-422, 64 FR 71949, Dec. 22, 1999]

Exemptions From Taxes and Permits

Sec. 41.50 Exemptions.

The Harmonized Tariff Schedule of the United States (19 U.S.C. 1202)
and Customs Regulations, 19 CFR, chapter I, provide for certain
exemptions from internal revenue taxes with respect to tobacco products
and cigarette papers and tubes imported into the United States. These
exemptions include, but are not limited to, certain importations in
passengers' baggage, for use of crew members, and by foreign officials.
Those persons importing tobacco products and cigarette papers or tubes
as described in this section are not required to obtain a permit.

[T.D. 6871, 31 FR 41, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28084, Aug. 5, 1986; T.D.
ATF-243, 52 FR 43194, Dec. 1, 1986; T.D. ATF-284, 54 FR 12190, Mar. 24,
1989; T.D. ATF-422, 64 FR 71949, Dec. 22, 1999]

Assessment of Taxes

Sec. 41.60 Assessment.

Whenever any person required by law to pay internal revenue tax on
tobacco products or cigarette papers or tubes fails to pay such tax, the
tax shall be ascertained and assessed against such person, subject to
the limitations prescribed in 26 U.S.C. 6501. The tax so assessed shall
be in addition to the penalties imposed by law for failure to pay such
tax when required. Except in cases where delay may jeopardize collection
of the tax, or where the amount is nominal or the result of an evident
mathematical error, no such assessment shall be made until and after
notice has been afforded such person to show cause against assessment.
The person will be allowed 45 days from the date of such notice to show
cause, in writing, against such assessment.

(72 Stat. 1417; 26 U.S.C. 5703)

[T.D. 6871, 31 FR 41, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28084, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986]

[[Page 72]]

Customs' Collection of Taxes

Sec. 41.62 Customs' collection of internal revenue taxes on tobacco products

and cigarette papers and tubes, imported or brought into the United States.

Internal revenue taxes on tobacco products and cigarette papers and
tubes, imported or brought into the United States, which are to be paid
to the Port Director of Customs or other authorized customs employee, in
accordance with this part, must be collected, accounted for, and
deposited as internal revenue collections by the Port Director of
Customs, in accordance with customs procedures and regulations.

[T.D. ATF-422, 64 FR 71949, Dec. 22, 1999]

Sec. 41.63 Payment of tax by electronic fund transfer.

(a) Each importer who was liable, during a calendar year, for a
gross amount equal to or exceeding five million dollars in taxes on
cigars, cigarettes, cigarette papers, and cigarette tubes combining tax
liabilities incurred under this part and part 40 of this chapter, shall
use a commercial bank in making payment by electronic fund transfer
(EFT) of such taxes during the succeeding calendar year. Payment of such
taxes by cash, check, or money order is not authorized for an importer
who is required, by this section, to make remittances by EFT. For
purposes of this section, the dollar amount of tax liability is defined
as the gross tax liability on all taxable withdrawals and importations
(including similar products brought into the United States from Puerto
Rico or the Virgin Islands) during the calendar year, without regard to
any drawbacks, credits, or refunds, for all premises from which such
activities are conducted by the taxpayer.
(b) For the purposes of this section, a taxpayer includes a
controlled group of corporations, as defined in 26 U.S.C. 1563, and
implementing regulations in 26 CFR 1.1563-1 through 1.1563-4, except
that the words ``at least 80 percent'' shall be replaced by the words
``more than 50 percent'' in each place it appears in subsection (a) of
26 U.S.C. 1563, as well as in the implementing regulations. Also, the
rules for a ``controlled group of corporations'' apply in a similar
fashion to groups which include partnerships and/or sole
proprietorships. If one entity maintains more than 50% control over a
group consisting of corporations and one, or more, partnerships and/or
sole proprietorships, all of the members of the controlled group are one
taxpayer for the purpose of determining who is required to make
remittances by EFT.
(c) For the purposes of this section, (1) electronic fund transfer
or EFT means any transfer of funds, other than a transaction originated
by check, draft, or similar paper instrument, which is initiated through
an electronic terminal, telephonic instrument, or computer of magnetic
tape, so as to order, instruct, or authorize a financial institution to
either debit or credit an account, in accordance with procedures
established by the U.S. Customs Service, and (2) electronic fund
transfer or EFT does not have the meaning defined in Sec. 41.11 for use
elswhere in this part.
(d) An importer who is required by this section to make remittances
by EFT, shall make the EFT remittance in accordance with the
requirements of the U.S. Customs Service.

(Act of August 16, 1954, 68A Stat. 775, as amended (26 U.S.C. 6302);
Sec. 202, Pub. L. 85-859, 72 Stat. 1417, as amended (26 U.S.C. 5703))

[T.D. ATF-245, 52 FR 534, Jan. 7, 1987, as amended by T.D. ATF-384, 61
FR 54095, Oct. 17, 1996. Redesignated and amended by T.D. TTB-16, 69 FR
52424, 52425, Aug. 26, 2004]

Subpart E_Packages

Sec. 41.71 Package.

All tobacco products, cigarette papers and tubes, except as provided
in Sec. 41.75, shall, before removal subject to internal revenue tax,
be put up in packages which shall be of such construction as will
securely contain the articles therein and maintain the notice thereon as
required by this subpart. No package of tobacco products or cigarette
papers or tubes shall have contained in, attached to, or stamped,
marked, written, or printed thereon (a) any certificate, coupon, or
other device purporting to be or to represent a ticket, chance, share,
or an interest in, or

[[Page 73]]

dependent on, the event of a lottery, (b) any indecent or immoral
picture, print, or representation, or (c) any statement or indication
that United States tax has been paid.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 41, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28084, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.72 Notice for smokeless tobacco.

(a) Product designation. Every package of chewing tobacco or snuff
shall, before removal subject to internal revenue tax, have adequately
imprinted thereon, or on a label securely affixed thereto, the
designation ``chewing tobacco'' or ``snuff.'' As an alternative,
packages of chewing tobacco may be designated ``Tax Class C,'' and
packages of snuff may be designated ``Tax Class M.''
(b) Product weight. Every package of chewing tobacco or snuff shall,
before removal subject to internal revenue tax, have adequately
imprinted thereon, or on a label securely affixed thereto, a clear
statement of the actual pounds and ounces of the product contained
therein. As an alternative, the shipping cases containing packages of
chewing tobacco or snuff may, before removal, have adequately imprinted
thereon, or on a label securely affixed thereto, a clear statement, in
pounds and ounces, of the total weight of the product, the tax class of
the product, and the total number of the packages of product contained
therein.

(Approved by the Office of Management and Budget under control number
1512-0502)

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-243, 51 FR 43194, Dec. 1, 1986, as amended by T.D. ATF-446, 66
FR 16602, Mar. 27, 2001]

Sec. 41.72a Notice for pipe tobacco.

(a) Product designation. Every package of pipe tobacco shall, before
removal subject to internal revenue tax, have adequately imprinted
thereon, or on a label securely fixed thereto, the designation ``pipe
tobacco.'' As an alternative, packages of pipe tobacco may be designated
``Tax Class L.''
(b) Product weight. Every package of pipe tobacco shall, before
removal subject to internal revenue tax, have adequately imprinted
thereon, or on a label securely affixed thereto, a clear statement of
the actual pounds and ounces of the product contained therein.

[T.D. ATF-289, 54 FR 48841, Nov. 27, 1989. Redesignated by T.D. ATF-381,
61 FR 37004, July 16, 1996]

Sec. 41.72b Notice for roll-your-own tobacco.

(a) Product designation. Before removal subject to tax, roll-your-
own tobacco must have adequately imprinted on, or on a label securely
affixed to, the package, the designation ``roll-your-own tobacco'' or
``cigarette tobacco'' or ``Tax Class J.''
(b) Product weight. Before removal subject to tax, roll-your-own
tobacco must have a clear statement of the actual weight in pounds and
ounces of the product in the package. This statement must be adequately
imprinted on, or on a label securely affixed to, the package.

(Approved by the Office of Management and Budget under control number
1512-0502)

[T.D. ATF-429, 65 FR 57547, Sept. 25, 2000]

Sec. 41.72c Package use-up rule.

(a) An importer must have used such packaging for roll-your-own
tobacco before January 1, 2000.
(b) An importer of roll-your-own tobacco may continue to place roll-
your-own tobacco in packages that do not meet the marking requirements
of Sec. 41.72b(b) until April 1, 2000.
(c) An importer of roll-your-own tobacco may continue to place roll-
your-own tobacco in packages that do not meet the requirements of Sec.
41.72b(a) until October 1, 2000.

[T.D. ATF-427, 65 FR 40051, June 29, 2000. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.73 Notice for cigars.

Before removal subject to internal revenue tax, every package of
cigars, except as provided in Sec. 41.75, shall have

[[Page 74]]

adequately imprinted on it, or on a label securely affixed to it--
(a) The designation ``cigars'';
(b) The quantity of cigars contained in the package; and
(c) For small cigars, the classification of the product for tax
purposes (i.e., either ``small'' or ``little'').

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-80, 46 FR 18310, Mar. 24, 1981. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.74 Notice for cigarettes.

Every package of cigarettes, except as provided in Sec. 41.75,
shall, before removal subject to internal revenue tax, have adequately
imprinted thereon, or on a label securely affixed thereto, the
designation ``cigarettes'', the quantity of such product contained
therein; and the classification for tax purposes, i.e., for small
cigarettes either ``small'' or ``Class A'', and for large cigarettes,
either ``large'' or ``Class B''.

(72 Stat. 1422; 26 U.S.C. 5723)

[26 FR 8192, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
further redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425,
Aug. 26, 2004]

Sec. 41.75 Exemptions.

The provisions of this subpart requiring that tobacco products and
cigarette papers and tubes be put up in packages and that proper notice
be placed on such packages shall not apply to imported tobacco products
and cigarette papers and tubes authorized to be released from customs
custody, without payment of internal revenue tax, pursuant to Sec.
41.50, and shall not apply to tobacco products imported in passengers'
baggage, or by mail where the value does not exceed $250, where such
products are solely for the personal consumption of the importer or for
disposition as his bona fide gift.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 41, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-232, 51 FR 28085, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Subpart F_Tobacco Products and Cigarette Papers and Tubes, Imported Into
or Returned to the United States

Sec. 41.81 Taxpayment.

(a) General. The provisions of this section apply to tobacco
products, cigarette papers, and cigarette tubes upon which internal
revenue tax is payable, and which are imported into the United States
from a foreign country or are brought into the United States from Puerto
Rico, the Virgin Islands, or a possession of the United States. For
provisions relating to the importation of previously exported tobacco
products and cigarette papers and tubes, see section 41.82.
(b) Method of payment. Except in the case of articles imported or
brought into the United States under Sec. Sec. 41.85 and 41.85a, the
internal revenue tax must be determined and paid to the Port Director of
Customs before the tobacco products, cigarette papers, or cigarette
tubes are removed from customs custody. The tax must be paid on the
basis of a return on the customs form or by authorized electronic
transmission by which the tobacco products, cigarette papers, or
cigarette tubes are duty and tax paid to Customs.
(c) Required information. When tobacco products, cigarette papers,
or cigarette tubes enter the United States for consumption, or when they
are removed for consumption, the importer must include on the customs
form or authorized electronic transmission the following internal
revenue tax information.
(1) For cigarette papers: For cigarette papers imported on or after
January 1, 2000, the importer will show the total number of cigarette
papers, the rate of tax, and the amount of tax due. For cigarette papers
imported prior to January 1, 2000, the importer will show the number of
books or sets, the number of papers in each book or set, the rate of
tax, and the amount of tax due.
(2) For cigarette tubes: The importer will show the number of tubes,
the rate of tax, and the tax due.
(3) For cigarettes: The importer will show whether the cigarettes
are small (class A) or large (class B), the number

[[Page 75]]

of cigarettes, the rate of tax, and the tax due.
(4) For cigars. The importer will show:
(i) The number imported under each HTS item number;
(ii) For large cigars with a sale price of not more than $235.294
per thousand, the number and total sale price of such cigars;
(iii) For large cigars with a sale price of more than $235.294 per
thousand, the number of cigars;
(iv) The applicable tax rate, as specified by Sec. 41.31; and
(v) The tax due.
(5) For smokeless tobacco: The importer will show whether the
product is chewing tobacco or snuff, the number of pounds and ounces,
the rate of tax and the tax due.
(6) For pipe tobacco: The importer will show the designation ``pipe
tobacco'' or ``Tax Class L,'' the number of pounds and ounces, the rate
of tax and the tax due.
(7) For roll-your-own tobacco: The importer will show the
designation ``roll-your-own'' or ``Tax Class J'', the number of pounds
and ounces, the rate of tax and the amount of tax due.
(d) Exceptions. The provisions of this section shall not apply to:
(1) Tobacco products, cigarette papers, or cigarette tubes released
from customs custody and transferred in bond to a U.S. manufacturer of
tobacco products or cigarette papers and tubes (see Sec. Sec. 41.85,
41.85a, or 41.135);
(2) Puerto Rican products on which the tax is prepaid or deferred
(see subpart G); and
(3) Tax payments of cigars from class 6, customs bonded
manufacturing warehouses (see Sec. 41.151).

(68A Stat. 907, as amended (26 U.S.C. 7652); sec. 202, Pub. L. 85-859,
72 Stat. 1417 (26 U.S.C. 5703))

[T.D. ATF-27, 41 FR 23951, June 14, 1976, as amended by T.D. ATF-40, 42
FR 5005, Jan. 26, 1977; T.D. ATF-232, 51 FR 28085, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-246, 52 FR 669, Jan. 8,
1987; T.D. ATF-284, 54 FR 12190, Mar. 24, 1989; T.D. ATF-289, 54 FR
48841, Nov. 27, 1989; T.D. ATF-307, 55 FR 52744, Dec. 21, 1990: T.D.
ATF-421, 64 FR 71924, Dec. 22, 1999; T.D. ATF-424, 64 FR 71932, Dec. 22,
1999; T.D. ATF-420, 64 FR 71944, Dec. 22, 1999; T.D. ATF-422a, 65 FR
15059, Mar. 21, 2000. Redesignated and amended by T.D. TTB-16, 69 FR
52424, 52425, Aug. 26, 2004]

Release From Customs Custody of Tobacco Products and Cigarette Papers
and Tubes Without Payment of Tax or Certain Duty

Sec. 41.82 Restrictions on tobacco products labeled for export.

(a) The provisions of this section apply to tobacco products and
cigarette papers and tubes manufactured in the United States and labeled
for exportation under parts 44 and 270 of this chapter.
(b) Articles described in paragraph (a) of this section may be
transferred to or removed from the premises of a manufacturer or an
export warehouse proprietor only if such articles are being transferred
or removed without tax as provided in this part.
(c) Articles described in paragraph (a) of this section may only be
imported or brought into the United States, after their exportation,
under the provisions of 26 U.S.C. 5704(d), by release from Customs
custody for delivery to the original manufacturer of such tobacco
products or cigarette papers or tubes or to the proprietor of an export
warehouse authorized by such manufacturer to receive such articles.
These products are transferred in bond and are released from Customs
custody without payment of that part of the duty attributable to
internal revenue tax.
(d) Articles described in paragraph (a) of this section that are not
put up in packages may be imported or brought into the United States
under 26 U.S.C. 5704(c) by release from Customs custody without payment
of tax for delivery to the original manufacturer of such articles.
However, because such articles are also eligible for release under 26
U.S.C. 5704(d), such articles will be treated as though released under
section 5704(d), due to the penalty provisions in section 5761(c).
(e) Articles described in paragraph (a) of this section may not be
sold or held for sale for domestic consumption in the United States
unless such articles are removed from their export packaging and
repackaged by the original manufacturer into new packaging that does not
contain an export label. The new packages, marks and notices

[[Page 76]]

must conform to the requirements of 27 CFR part 270.
(f) The provisions of this section shall apply to articles labeled
for export even if the packaging or the appearance of such packaging to
the consumer of such articles has been modified or altered by a person
other than the original manufacturer so as to remove or conceal or
attempt to remove or conceal (including by placement of a sticker over)
any export label.
(g) For purposes of this section, an article is labeled for export
or contains an export label if it bears the mark, label, or notice
required by Sec. 44.185 of this chapter.
(h) For purposes of this section, references to exportation shall be
treated as including a reference to shipment to the Commonwealth of
Puerto Rico.
(i) The provisions of this section do not apply to any person who,
when entering U.S. manufactured tobacco products labeled for export
under parts 44 and 270 of this chapter, claims and is granted an
exemption from duty and tax for such products under chapter 98 of the
Harmonized Tariff Schedule of the United States. The quantity of tobacco
products entered may not exceed the quantity limit imposed on such
products under the applicable tariff provision. A traveler claiming an
exemption under this subsection upon arrival at the border may
voluntarily relinquish to the U. S. Customs Service at the time of entry
any excess of such quantity without incurring the penalty under section
Sec. 41.83.
(j) For civil penalties and forfeiture provisions related to
violations of this section, see Sec. 41.83. For a criminal penalty
applicable to any violation of this section see 26 U.S.C. 5762(b).

[T.D. ATF-465, 66 FR 45618, Aug. 29, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.83 Penalties and forfeiture for products labeled or shipped for export.

Except for the return of exported products that are specifically
authorized under Sec. 41.82(b) and (c):
(a) Every person who sells, relands, or receives within the
jurisdiction of the United States any tobacco products or cigarette
papers or tubes which have been labeled or shipped for exportation under
parts 44 and 270 of this chapter;
(b) Every person who sells or receives such relanded tobacco
products or cigarette papers or tubes; and,
(c) Every person who aids or abets in such selling, relanding, or
receiving, shall, in addition to the tax and any other penalty provided
for in title 26 U.S.C., be liable for a penalty equal to the greater of
$1,000 or 5 times the amount of the tax imposed by title 26 U.S.C. All
tobacco products and cigarette papers and tubes relanded within the
jurisdiction of the United States shall be forfeited to the United
States and destroyed. All vessels, vehicles and aircraft used in such
relanding or in removing such products, papers, and tubes from the place
where relanded, shall be forfeited to the United States.
(d) The provisions of this section do not apply to any person who,
when entering U.S. manufactured tobacco products labeled for export,
claims and is granted an exemption from duty and tax for such products
under chapter 98 of the Harmonized Tariff Schedule of the United States.
The quantity of tobacco products entered may not exceed the quantity
limit imposed on such products under the applicable tariff provision. A
traveler claiming an exemption under this subsection upon arrival at the
border may voluntarily relinquish to the U. S. Customs Service at the
time of entry any excess of such quantity without incurring the penalty
under this section.
(e) For purposes of this section, references to exportation shall be
treated as including a reference to shipment to the Commonwealth of
Puerto Rico.

[T.D. ATF-465, 66 FR 45619, Aug. 29, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.85 Release from customs custody of imported tobacco articles.

(a) The provisions of this section apply only to tobacco products,
cigarette papers, and cigarettes tubes, which are not put up in
packages, i.e., not placed by the manufacturer or importer in packages
in which the products will be sold to consumers. Tobacco products
manufactured in a foreign

[[Page 77]]

country, the Virgin Islands, or a possession of the United States may be
released by the Port Director of Customs or authorized customs officer
from customs custody, without payment of internal revenue tax, for
transfer to the factory of any manufacturer of tobacco products under
the internal revenue bond of the manufacturer to whom such articles are
released. Cigarette papers and tubes manufactured in a foreign country,
the Virgin Islands, or a possession of the United States may be released
by the Port Director of Customs or authorized customs officer from
customs custody, without payment of internal revenue tax, for transfer,
under the internal revenue bond of the manufacturer to whom such
articles are released, to the factory of a manufacturer of cigarette
papers and tubes; or a manufacturer of tobacco products solely for use
in the manufacture of cigarettes. Releases under this section must be in
accordance with Sec. 41.86: Provided, however, that in the case of
products exported from the Virgin Islands, in order for a manufacturer
of tobacco products or a manufacturer of cigarette papers and tubes to
remove such products from customs custody in the United States under the
manufacturer's internal revenue bond without payment of internal revenue
tax, the manufacturer must file an extension of coverage of the internal
revenue bond on TTB Form 2105, and receive a notice of approval from the
appropriate TTB officer. The extension of coverage must be executed by
the principal and the surety and must be in the following form:

``Whereas the purpose of this extension is to bind the obligors for
the purpose of the tax imposed by 26 U.S.C. 7652(b), on tobacco products
and tubes exported from the Virgin Islands and removed from customs
custody in the United States without payment of internal revenue tax,
for delivery to the principal on said bond.''
``Now, therefore, the said bond is further specifically conditioned
that the principal named therein must pay all taxes imposed by 26 U.S.C.
7652(b) plus penalties, if any, and interest, for which he may become
liable with respect to these products exported from the Virgin Islands
and removed from customs custody in the United States without payment of
internal revenue tax thereon, and must comply with all provision of law
and regulations with respect thereto.''

(b) Articles received into the factory of a manufacturer under the
provision of this section are subject to the provisions of part 40 of
this chapter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. ATF-422, 64 FR 71949, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.85a Release from customs custody of returned articles.

(a) Domestically produced tobacco products (classifiable under item
9801.00.80 of the Harmonized Tariff Schedule of the United States, 19
U.S.C. 1202) exported from and returned to the United States without
change to the product or the shipping container may be released, under
the bond of the manufacturer or export warehouse proprietor to whom such
articles are released, from customs custody in the United States without
payment of that part of the duty attributable to the internal revenue
tax for delivery to the factory of any tobacco products manufacturer or
to the permit premises of an export warehouse proprietor.
(b) Domestically produced cigarette papers and tubes (classifiable
under item 9801.00.80 of the Harmonized Tariff Schedule of the United
States, 19 U.S.C. 1202) exported from and returned to the United States
without change to the product or the shipping container may be released
from customs custody in the United States without payment of that part
of the duty attributable to the internal revenue tax for delivery, under
the bond of the manufacturer to whom such articles are released, to the
factory of:
(1) A manufacturer of cigarette papers and tubes; or
(2) A manufacturer of tobacco products solely for use in the
manufacture of cigarettes.
(c) Releases under this section must be in accordance with the
procedures set forth in Sec. 41.86. Once released, the tobacco products
and cigarette papers and tubes will be subject to the tax and all other
provisions of 26 U.S.C. chapter 52, and, as applicable, subject to the
provisions of the regulations in part 40 of this chapter as if they had
not been

[[Page 78]]

exported or otherwise removed from internal revenue bond.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. ATF-422, 64 FR 71949, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.86 Procedure for release.

(a) Every manufacturer of tobacco products and cigarette papers and
tubes and every export warehouse proprietor who desires to obtain the
release of tobacco products and cigarette papers and tubes from customs
custody, without payment of internal revenue tax, under its internal
revenue bond, as provided in Sec. Sec. 41.85 or 41.85a, must prepare a
notice of release, Form 5200.11, in triplicate, and file the three
copies of the form with the appropriate TTB officer. The appropriate TTB
officer will not certify Form 5200.11 covering the release of tobacco
products and cigarette papers and tubes unless the manufacturer is
authorized, under part 40 of this chapter, to receive, without payment
of tax, the kinds of articles set forth in the form.
(b) Importers who are either manufacturers of tobacco products and
cigarette papers and tubes or export warehouse proprietors, or their
authorized agents, who request the release of tobacco products or
cigarette papers and tubes from customs custody in the United States
under this section, using customs electronic filing procedures, must not
request such release until they have received the TTB Form 5200.11
certified by the appropriate TTB officer. Once Customs releases the
tobacco products or cigarette papers and tubes in accordance with 19 CFR
Part 143, Customs Directives, and any other applicable instructions, the
importer will send a copy of the TTB Form 5200.11 along with a copy of
the electronic filing and customs release to the appropriate TTB officer
at the address shown thereon. The importer will retain one copy of the
TTB Form 5200.11 to meet TTB recordkeeping requirements and one copy to
meet customs recordkeeping requirements.
(c) Importers or their authorized agents requesting release of
tobacco products or cigarette papers and tubes from customs custody in
the United States under any other authorized procedure will submit all
copies of the TTB Form 5200.11 to the appropriate customs officer along
with their request for release. The customs officer will verify that the
TTB Form 5200.11 has been certified by the appropriate TTB officer and
return all copies to the importer or the importer's authorized
representative.
(d) Once Customs releases the tobacco products or cigarette papers
and tubes in accordance with 19 CFR Part 143, Customs Directives, and
any other applicable instructions, the importer will send a copy of the
TTB Form 5200.11 along with a copy of the customs release to the
appropriate TTB office at the address shown thereon. The importer will
retain one copy of the TTB Form 5200.11 to meet TTB recordkeeping
requirements and one copy to meet customs recordkeeping requirements.

(72 Stat. 1418, as amended, 1423, as amended; 26 U.S.C. 5704, 5741)

[T.D. ATF-422, 64 FR 71950, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Subpart G_Puerto Rican Tobacco Products and Cigarette Papers and Tubes,
Brought Into the United States

Sec. 41.101 General.

(a) Tobacco products and cigarette papers and tubes manufactured in
Puerto Rico which are brought into the United States and withdrawn for
consumption or sale are subject to the tax imposed by 26 U.S.C. 7652(a),
at the rates set forth in 26 U.S.C. 5701.
(b) The excise taxes collected on tobacco products and cigarette
papers and tubes manufactured in Puerto Rico are covered into the
Treasury of Puerto Rico. Tobacco products and cigarette papers and tubes
are considered as manufactured in Puerto Rico for purposes of 26 U.S.C.
7652(a)(3) if the sum of the cost or value of the materials produced in
Puerto Rico, plus the direct costs of processing operations performed in
Puerto Rico, equals or exceeds 50 percent of the value of the product
when it is brought into the United States.

[[Page 79]]

(c) The excise tax on tobacco products and cigarette papers and
tubes of Puerto Rican manufacture may be prepaid in Puerto Rico prior to
shipment of such articles to the United States in accordance with Sec.
41.105. In the case of tobacco products such tax may be paid in Puerto
Rico on the basis of a semi-monthly return in accordance with the
applicable provisions of this subpart.

(68A Stat. 907, as amended, 72 Stat. 1417, 1418, as amended (26 U.S.C.
7652, 5703, 5704))

[T.D. ATF-206, 50 FR 15888, Apr. 23, 1985, as amended by T.D. ATF-232,
51 FR 28085, Aug. 5, 1986; T.D. ATF-243, 52 FR 43194, Dec. 1, 1986; T.D.
ATF-246, 52 FR 669, Jan. 8, 1987; T.D. ATF-422, 64 FR 71950, Dec. 22,
1999. Redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425, Aug.
26, 2004]

Prepayment of Tax in Puerto Rico on Tobacco products and Cigarette
Papers and Tubes

Sec. 41.105 Prepayment of tax.

To prepay, in Puerto Rico, the internal revenue tax imposed by 26
U.S.C. 7652(a), on tobacco products and cigarette paper and tubes of
Puerto Rican manufacture which are to be shipped to the United States,
the shipper must file, or cause to be filed, a tax return, TTB Form
5000.25, with full remittance of tax which will become due on such
tobacco products and cigarette papers and tubes.

(Approved by the Office of Management and Budget under control number
1512-0497)

[T.D. ATF-444, 66 FR 13850, Mar. 8, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.106 Examination and record of shipment by taxpayer.

(a) Shipments other than noncommercial mail shipment. The taxpayer
will ensure that the tax has been prepaid on the tobacco products and
cigarette papers and tubes in each shipment. The taxpayer will identify
the tobacco products or cigarette papers or tubes on the bill of lading
or similar record to accompany the shipment with the following
information:
(1) The marks and numbers on shipping containers;
(2) The number of containers;
(3) The kind of taxable article and the rate of tax, as specified by
41.30 through 41.35;
(4) The number of small cigarettes, large cigarettes or small cigars
to be shipped;
(5) The number and total sale price of large cigars with a price of
not more than $235.294 per thousand to be shipped;
(6) The number of large cigars with a sale price of more than
$235.294 per thousand to be shipped;
(7) The pounds and ounces of chewing tobacco or snuff to be shipped;
(8) The pounds and ounces of pipe tobacco or roll-your-own tobacco
to be shipped;
(9) The number of cigarette papers or tubes to be shipped;
(10) The amount of the tax paid on such articles under the
provisions of this subpart; and
(11) The name and address of the consignee in the United States to
whom such products are being shipped. The taxpayer will note such bills
of lading or similar records to identify the particular TTB Form 5000.25
on which taxes have been prepaid.
(b) Noncommercial mail shipments. Noncommercial mail shipments of
tobacco products and cigarette papers and tubes to the United States are
exempt from the provisions of paragraph (a) of this section, except that
the taxpayer will provide a copy of the TTB Form 5000.25 upon request of
an appropriate TTB officer.

(Approved by the Office of Management and Budget under control number
1512-0560)

[T.D. ATF-444, 66 FR 13850, Mar. 8, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. Sec. 41.107-41.108 [Reserved]

Deferred Payment of Tax in Puerto Rico on Tobacco Products

Sec. 41.109 Bond required for deferred taxpayment.

Where a manufacturer of tobacco products in Puerto Rico desires to
defer payment in Puerto Rico of the internal revenue tax imposed by 26
U.S.C. 7652(a), on tobacco products of Puerto Rican manufacture coming
into the United States, he shall file a bond,

[[Page 80]]

Form 2986, with the appropriate TTB officer, in accordance with the
provisions of this subpart. Such bond shall be conditioned on the
payment, at the time and in the manner prescribed in this subpart, of
the full amount of tax computed under the provisions of this subpart
with respect to tobacco products which are released for shipment to the
United States on computation of tax. All taxes which are computed under
the provisions of this subpart shall be chargeable against the bond,
until such taxes are paid, as provided in Sec. 41.112. The bond shall
show the location of the factory from which the tobacco products to
which it relates are to be shipped.

[T.D. 6871, 31 FR 43, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28085, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-251, 52 FR 19340, May 22, 1987. Redesignated and amended
by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.110 Record of tax computation and shipment by bonded manufacturer

under deferred taxpayment.

Where tobacco products or cigarette papers or tubes are to be
shipped to the United States involving deferred taxpayment, the bonded
manufacturer must calculate the tax from the information contained in
the bill of lading or a similar record. The bonded manufacturer will
identify each shipment on such record with the following information:
(a) The marks and numbers on shipping containers;
(b) The number of containers;
(c) The kind of taxable article and the rate of tax as specified in
41.30 through 41.35;
(d) The number of small cigarettes, large cigarettes or small cigars
to shipped;
(e) The number and total sale price of large cigars with a price of
not more than $235.294 per thousand to be shipped;
(f) The number of large cigars with a sale price of more than
$235.294 per thousand to be shipped;
(g) The pounds and ounces of chewing tobacco or snuff to be shipped;
(h) The pounds and ounces of pipe tobacco or roll-your-own tobacco
to be shipped;
(i) The number of cigarette papers or tubes;
(j) The amount of the tax to be paid on such articles under the
provisions of this subpart; and
(k) The name and address of the consignee in the United States to
whom such products are being shipped. The date of completing such record
will be treated as the date of computation of the tax. Tobacco products
or cigarette papers or tubes may be shipped to the United States in
accordance with the provisions of this section only after computation of
the tax.

(Approved by the Office of Management and Budget under control number
1512-0560)

[T.D. ATF-444, 66 FR 13851, Mar. 8, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.111 Agreement to Pay Tax.

Upon shipment of tobacco products and cigarette papers or tubes the
bonded manufacturer agrees:
(a) To pay the tax on the shipment;
(b) That there is no default in payment of tax chargeable against
the manufacturer's bond on TTB Form 2986 (5210.12); and
(c) That the amount of the manufacturer's bond is sufficient or in
the maximum penal sum to cover the tax due on the shipment.

[T.D. ATF-444, 66 FR 13851, Mar. 8, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.112 Tax return.

The internal revenue taxes imposed by 26 U.S.C. 7652(a), with
respect to tobacco products manufactured in Puerto Rico and shipped to
the United States on computation of tax under the provisions of this
subpart shall be paid on the basis of a semimonthly tax return. The
bonded manufacturer of such products shall prepare TTB Form 5000.25 in
duplicate, and file the original with the appropriate TTB officer, and
maintain one copy for the file for each semimonthly return period. The
bonded manufacturer shall execute the return, TTB Form 5000.25, under
the penalties of perjury. He shall file a return for

[[Page 81]]

each return period at the time specified in Sec. 41.114, regardless of
whether tax is due for that return period. However, where the
appropriate TTB officer, grants specific authorization, the bonded
manufacturer need not file a tax return during the term of such
authorization for any period in which tax liability was not incurred
under the provisions of this subpart.

(Approved by the Office of Management and Budget under control number
1512-0497)

[T.D. ATF-40, 42 FR 5006, Jan. 26, 1977, as amended by T.D. ATF-125, 48
FR 2123, Jan. 18, 1983; T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19340, May 22,
1987; T.D. ATF-277, 53 FR 45269, Nov. 9, 1988. Redesignated and amended
by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.113 Return periods.

Except as provided by Sec. 41.114, the periods to be covered in the
semimonthly tax returns shall be from the 1st day through the 15th day
of each month, and from the 16th day through the last day of each month.

[T.D. ATF-365, 60 FR 33675, June 28, 1995. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.114 Time for filing.

(a) General rule. Semimonthly tax returns under this subpart shall
be filed by the bonded manufacturer, for each return period, not later
than the 14th day after the last day of the return period, except as
provided by paragraph (b) of this section. The tax shall be paid in full
by remittance at the time the return is filed as prescribed in Sec.
41.115 or Sec. 41.115a.
(b) Special rule for taxes due for the month of September (effective
after December 31, 1994). (1) The second semimonthly period for the
month of September shall be divided into two payment periods, from the
16th day through the 26th day, and from the 27th day through the 30th
day. The bonded manufacturer shall file a return on Form 5000.25, and
make remittance, for the period September 16-26, no later than September
29. The bonded manufacturer shall file a return on Form 5000.25, and
make remittance, for the period September 27-30, no later than October
14.
(2) Taxpayment not by electronic fund transfer. In the case of taxes
not required to be remitted by electronic fund transfer as prescribed by
Sec. 41.115a, the second semimonthly period of September shall be
divided into two payment periods, from the 16th day through the 25th
day, and the 26th day through the 30th day. The bonded manufacturer
shall file a return on Form 5000.25, and make remittance, for the period
September 16-25, no later than September 28. The bonded manufacturer
shall file a return on Form 5000.25, and make remittance, for the period
September 26-30, no later than October 14.
(3) Amount of payment: Safe harbor rule. (i) Taxpayers are
considered to have met the requirements of paragraph (b)(1) of this
section, if the amount paid no later than September 29 is not less than
11/15 (73.3 percent) of the tax liability incurred for the semimonthly
period beginning on September 1 and ending on September 15, and if any
underpayment of tax is paid by October 14.
(ii) Taxpayers are considered to have met the requirements of
paragraph (b)(2) of this section, if the amount paid no later than
September 28 is not less than 2/3rds (66.7 percent) of the tax liability
incurred for the semimonthly period beginning on September 1 and ending
on September 15, and if any underpayment of tax is paid by October 14.
(4) Last day for payment. If the required due date for taxpayment
for the periods September 16-25 or September 16-26 as applicable, falls
on a Saturday or legal holiday, the return and remittance shall be due
on the immediately preceding day. If the required due date falls on a
Sunday, the return and remittance shall be due on the immediately
following day.
(c) Postmark. If the return, and remittance as the case may be, are
delivered by U.S. Mail to the appropriate TTB officer, the date of the
official postmark of the U.S. Postal Service stamped on the cover in
which the return, and remittance as the case may be, were mailed shall
be treated as the date of delivery.

[[Page 82]]

(d) Weekends and holidays. Except as provided in paragraph (b)(4) of
this section, if the due date falls on a Saturday, Sunday, or legal
holiday, the return and remittance shall be due on the immediately
preceding day which is not a Saturday, Sunday, or legal holiday.

(Approved by the Office of Management and Budget under control number
1512-0467)

[T.D. ATF-246, 52 FR 669, Jan. 8, 1987, as amended by T.D. ATF-251, 52
FR 19340, May 22, 1987; T.D. ATF-365, 60 FR 33675, June 28, 1995; T.D.
ATF-444, 66 FR 13851, Mar. 8, 2001. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.114a Qualification for extended deferral.

Note: This section applies only to removals made before January 1,
1983.
(a) Bonded manufacturers with bonds executed before September 1,
1973. Bonded manufacturers with bonds on Form 2936 executed before
September 1, 1973, who desire to file returns under this subpart with
benefit of the extended deferral permitted by Sec. 41.114 shall file
with the appropriate TTB officer an extension of coverage of bond on
Form 2105. Such extension of coverage shall identify the particular bond
to which it applies and shall contain a statement of purpose as follows:

To continue in effect said bond (including all extensions or
limitations of terms and conditions previously consented to and
approved) notwithstanding that the time for payment of the tax may be
deferred by the extended deferral period permitted by regulations in 27
CFR 41.114.

If the bond on Form 2986 is in an amount insufficient to cover an
extended deferral period, according to the requirements of Sec. 41.121,
the bonded manufacturer must either file a new bond or file a
strengthening bond to increase the total amount of the bonds then in
force to a sufficient amount.
(b) Bonded manufacturers with bonds executed after September 1,
1973. Bonded manufacturers operating under original or superseding bonds
executed after September 1, 1973, are automatically qualified for the
extended deferral permitted by Sec. 41.114 (unless found in default as
provided in Sec. 41.116). Such bonds must be executed in an amount
sufficient to cover an extended deferral period, according to the
requirements of Sec. 41.121.
(c) Commencement of extended deferral. Bonded manufacturers may file
returns with benefit of extended deferral only after the applicable
bonds and extensions of coverage required by this section have been
filed with and approved by the appropriate TTB officer.

(68A Stat. 847, as amended, 907, as amended; 26 U.S.C. 7101, 7652(a); 26
U.S.C. 7805)

[T.D. ATF-5, 38 FR 19688, July 23, 1973. Redesignated at 40 FR 16835,
Apr. 15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979;
T.D. ATF-125, 48 FR 2123, Jan. 18, 1983; T.D. ATF-251, 52 FR 19340, May
22, 1987. Redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425,
Aug. 26, 2004]

Sec. 41.115 Remittance with return.

Remittance of the full amount of internal revenue tax computed
during the return period shall accompany the return, except as
prescribed in Sec. 41.115a. Such remittance may be in any form the
appropriate TTB officer is authorized to accept under the provisions of
Sec. 70.61 of this chapter (Payment by check or money order) and which
is acceptable to that officer. In paying the tax, a fractional part of a
cent shall be disregarded unless it amounts to one-half cent or more, in
which case it shall be increased to one cent.

(Aug. 16, 1954, Ch. 736, 68A Stat. 778 (26 U.S.C. 6313) Aug. 16, 1954,
ch. 736, 68A Stat. 775 (26 U.S.C. 6301); June 29, 1956, ch. 462, 70
Stat. 391 (26 U.S.C. 6301))

[26 FR 8195, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D. ATF-77, 46
FR 3009, Jan. 13, 1981; T.D. ATF-251, 52 FR 19340, May 22, 1987; T.D.
ATF-301, 55 FR 47658, Nov. 14, 1990. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.115a Payment of tax by electronic fund transfer.

[[Page 83]]

products, cigarette papers, and cigarette tubes during the succeeding
calendar year. Payment of taxes on tobacco products, cigarette papers,
and cigarette tubes by cash, check, or money order, as described in
Sec. 41.115, is not authorized for a taxpayer who is required, by this
section, to make remittances by EFT. For purposes of this section, the
dollar amount of tax liability is defined as the gross tax liability of
all taxes which are paid in accordance with this subpart, taxable
withdrawals from premises in the United States, and importations during
the calendar year, without regard to any drawbacks, credits, or refunds,
for all premises from which such activities are conducted by the
taxpayer. Overpayments are not taken into account in summarizing the
gross tax liability.
(2) For the purposes of this section, a taxpayer includes a
controlled group of corporations, as defined in 26 U.S.C. 1563, and
implementing regulations in 26 CFR 1.1563-1 through 1.1563-4, except
that the words ``at least 80 percent'' shall be replaced by the words
``more than 50 percent'' in each place it appears in subsection (a) of
26 U.S.C. 1563, as well as in the implementing regulations. Also, the
rules for a ``controlled group of corporations'' apply in a similar
fashion to groups which include partnerships and/or sole
proprietorships. If one entity maintains more than 50% control over a
group consisting of corporations and one, or more, partnerships and/or
sole proprietorships, all of the members of the controlled group are one
taxpayer for the purpose of determining who is required to make
remittances by EFT.
(3) A taxpayer who is required by this section to make remittances
by EFT, shall make a separate EFT remittance and file a separate tax
return for each factory which tobacco products, or cigarette papers, or
cigarette tubes are withdrawn upon determination of tax.
(b) Requirements. (1) On or before January 10 of each calendar year,
except for a taxpayer already remitting the tax by EFT, each taxpayer
who was liable for a gross amount equal to or exceeding five million
dollars in taxes on tobacco products, cigarette papers, and cigarette
tubes combining tax liabilities incurred under this part and part 40 of
this chapter during the previous calender year, shall notify, in
writing, the appropriate TTB officer. The notice shall be an agreement
to make remittances by EFT.
(2) For each return filed in accordance with this part, the taxpayer
shall direct the taxpayer's bank to make an electronic fund transfer in
the amount of the taxpayment to the Treasury Account as provided in
paragraph (e) of this section. The request shall be made to the bank
early enough for the transfer to be made to the Treasury Account by no
later than the close of business on the last day for filing the return,
prescribed in Sec. 41.105 or Sec. 41.114. The request shall take into
account any time limit established by the bank.
(3) If a taxpayer was liable for less than five million dollars in
taxes on tobacco products, cigarette papers, and cigarette tubes during
the preceding calendar year, the taxpayer may choose either to continue
remitting the tax as provided in this section or to remit the tax with
the return as prescribed by Sec. 41.115. On the first return on which
the taxpayer chooses to discontinue remitting the tax by EFT and to
begin remitting the tax with the tax return, the taxpayer shall notify
the appropriate TTB officer by attaching a written notification to the
tax return, stating that no taxes are due by EFT, because the tax
liability during the preceding calendar year was less than five million
dollars, and that the remittance shall be filed with the tax return.
(c) Remittance. (1) Each taxpayer shall show on the tax return,
information about remitting the tax for that return by EFT and shall
file the return with the appropriate TTB officer.
(2) Remittances shall be considered as made when the taxpayment by
electronic fund transfer is received by the Treasury Account. For
purposes of this section, a taxpayment by electronic fund transfer shall
be considered as received by the Treasury Account when it is paid to a
Federal Reserve Bank.
(3) When the taxpayer directs the bank to effect an electronic fund
transfer message as required by paragraph (b)(2) of this section, any
transfer data record furnished to the taxpayer, through normal banking
procedures,

[[Page 84]]

will serve as the record of payment, and shall be retained as part of
required records.
(d) Failure to make a taxpayment by EFT. The taxpayer is subject to
a penalty imposed by 26 U.S.C. 5761, 6651, or 6656, as applicable, for
failure to make a taxpayment by EFT on or before the close of business
on the prescribed last day for filing.
(e) Procedure. Upon the notification required under paragraph (b)(1)
of this section, the appropriate TTB officer will issue to the taxpayer
an TTB Procedure entitled, Payment of Tax by Electronic Fund Transfer.
This publication outlines the procedure a taxpayer is to follow when
preparing returns and EFT remittances in accordance with this part.

(Approved by the Office of Management and Budget under Control Number
1512-0457)

(Act of August 16, 1954, 68A Stat. 775, as amended (26 U.S.C. 6302);
sec. 202, Pub. L. 85-859, 72 Stat. 1417, as amended (26 U.S.C. 5703))

[T.D. ATF-185, 49 FR 37583, Sept. 25, 1984, as amended by T.D. ATF-232,
51 FR 28086, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-245, 52 FR 534, Jan. 7, 1987; T.D. ATF-251, 52 FR 19340, May 22,
1987; T.D. ATF-262, 52 FR 47560, Dec. 15, 1987; T.D. ATF-277, 53 FR
45269, Nov. 9, 1988; T.D. ATF-384, 61 FR 54095, Oct. 17, 1996; T.D. ATF-
422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by T.D. TTB-
16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.116 Default.

Where a check or money order tendered with a semimonthly return for
payment of internal revenue tax under the provisions of this subpart is
not paid on presentment, where a bonded manufacturer fails to remit with
the semimonthly return the full amount of tax due thereunder, or where a
bonded manufacturer is otherwise in default in payment of tax under the
provisions of this subpart, he shall not ship tobacco products to the
United States on computation of tax, until the appropriate TTB officer
finds that the revenue will not be jeopardized by deferred payment of
tax under the provisions of this subpart.

[T.D. 6871, 31 FR 44, Jan 4, 1966. Redesignated at 40 FR 16835, Apr. 15,
1975, and amended by T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D. ATF-
243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19340, May 22, 1987.
Redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26,
2004]

Sec. Sec. 41.117-41.118 [Reserved]

Sec. 41.119 Corporate surety.

(a) Surety bonds, required under the provisions of this subpart, may
be given only with corporate sureties holding certificates of authority
from the Secretary of the Treasury as acceptable sureties on Federal
bonds. Limitations concerning corporate sureties are prescribed by the
Secretary in the current revision of Treasury Department Circular No.
570 (Companies Holding Certificates of Authority as Acceptable Sureties
on Federal Bonds and as Acceptable Reinsuring Companies). The surety
shall have no interest whatever in the business covered by the bond.
(b) Treasury Department Circular No. 570 is published in the Federal
Register annually as of the first workday of July. As they occur,
interim revisions of the circular are published in the Federal Register.
Copies may be obtained from the Audit Staff, Bureau of Government
Financial Operations, Department of the Treasury, Washington, DC 20226.

(July 30, 1947, ch. 390, 61 Stat. 648, as amended (6 U.S.C. 6, 7))

[T.D. ATF-92, 46 FR 46922, Sept. 23, 1981]

Sec. 41.120 Deposit of securities in lieu of corporate surety.

In lieu of corporate surety, the manufacturer of tobacco products in
Puerto Rico may pledge and deposit, as security for his bond, securities
which are transferrable and are guaranteed both as to interest and as to
principal by the United States, in accordance with the provisions of 31
CFR part 225.

(61 Stat. 650; 6 U.S.C. 15)

[T.D. 6871, 31 FR 44, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

[[Page 85]]

Sec. 41.121 Amount and Account of bond.

(a) Bond amount. Except for the maximum and minimum amounts stated
in this paragraph, the total amount of the bond or bonds for tobacco
products or cigarette papers or tubes under the provisions of this
subpart must be in an amount not less than the amount of unpaid tax
chargeable at any one time against the bond. A manufacturer who will
defer payment of tax for a shipment of tobacco products or cigarette
papers or tubes under the provisions of this subpart must have
sufficient credit in this account to cover the taxes prior to making the
shipment to the United States. The maximum and minimum amounts of such
bond or bonds are as follows:

------------------------------------------------------------------------
Bond amount Bond amount
Taxable article maximum minimum
------------------------------------------------------------------------
(1) Cigarettes.......................... $250,000 $1,000
(2) Any combination of taxable articles. 250,000 1,000
(3) One kind of taxable article other 150,000 1,000
than cigarettes........................
------------------------------------------------------------------------

(b) Bond Account. Where the amount of a bonded manufacturer's bond
is less than the maximum amount prescribed in paragraph (a) of this
section, a bonded manufacturer must maintain an account reflecting all
outstanding taxes with which the manufacturer's bond is chargeable. A
manufacturer must debit such account with the amount of tax that was
agreed to be paid under Sec. 41.111 or is otherwise chargeable against
such bond and then must credit the account for the amount paid on Form
5000.25 or other TTB-prescribed document, at the time it is filed.

(Approved by the Office of Management and Budget under control number
1512-0560)

[T.D. ATF-444, 66 FR 13851, Mar. 8, 2001. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.122 Strengthening bond.

Where the amount of any bond is no longer sufficient under the
provisions of Sec. 41.121, the bonded manufacturer shall immediately
file a strengthening bond in an appropriate amount with the same surety
as that on the bond already in effect, unless a superseding bond is
filed pursuant to Sec. 41.123. A strengthening bond will not be
approved where any notation is made thereon which is intended, or which
may be construed, as a release of any former bond, or as limiting the
amount of either bond to less than its full amount.

[26 FR 8195, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425,
Aug. 26, 2004]

Sec. 41.123 Superseding bond.

A bonded manufacturer shall immediately file a new bond to supersede
his current bond when (a) the corporate surety on the current bond
becomes insolvent, (b) the appropriate TTB officer approves a request
from the surety on the current bond to terminate his liability under the
bond, (c) the payment of any liability under a bond is made by the
surety thereon, (d) the amount of the bond is no longer sufficient under
the provisions of Sec. 41.121 and a strengthening bond has not been
filed, or (e) the appropriate TTB officer considers a superseding bond
necessary for the protection of the revenue.

[26 FR 8195, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-251, 52 FR 19341, May 22, 1987. Redesignated and
amended by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.124 Extension of coverage of bond.

An extension of coverage of the bond of a bonded manufacturer shall
be required (a) as provided in Sec. 41.114a, and (b) in the case of any
change in the location of the factory as set forth in the bond. Such
extension of coverage of the bond shall be manifested on Form 2105 by
the bonded manufacturer and by the surety on the bond with the same
formality and proof of authority as required for the execution of the
bond.

[T.D. ATF-5, 38 FR 19689, July 23, 1973. Redesignated at 40 FR 16835,
Apr. 15, 1975, and further redesignated and amended by T.D. TTB-16, 69
FR 52424, 52425, Aug. 26, 2004]

[[Page 86]]

Sec. 41.125 Approval of bond and extension of coverage of bond.

The appropriate TTB officer is authorized to approve all bonds and
extensions of coverage of bonds (except under Sec. 41.136) filed under
this subpart. No manufacturer of tobacco products in Puerto Rico shall
defer taxes under this subpart until he receives from the appropriate
TTB officer notice of approval of the bond or of an appropriate
extension of coverage of the bond required under this subpart. Upon
receipt of the duplicate copy of an approved bond or extension of
coverage of bond from the appropriate TTB officer, such copy of the bond
or extension of coverage of bond shall be retained by the bonded
manufacturer and shall be made available for inspection by the
appropriate TTB officer upon his request.

[T.D. 6871, 31 FR 45, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19341, May 22,
1987. Redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425, Aug.
26, 2004]

Sec. 41.126 Termination of bond.

Any bond given under the provisions of this subpart may be
terminated as to future transactions, by the appropriate TTB officer,
(a) pursuant to application of surety as provided in Sec. 41.127; (b)
on approval of a superseding bond; (c) on notification by the bonded
manufacturer to the appropriate TTB officer that he has discontinued the
deferral of taxes under the bond; or (d) on notification by the bonded
manufacturer to the appropriate TTB officer that he has discontinued
business. When any bond is terminated, the appropriate TTB officer shall
notify both the bonded manufacturer and surety on such bond, in writing,
of such action.

[26 FR 8196, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-251, 52 FR 19341, May 22, 1987. Redesignated and
amended by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.127 Application of surety for relief from bond.

A surety on any bond given under the provisions of this subpart may
at any time in writing notify the bonded manufacturer and the
appropriate TTB officer that he desires, after a date named, to be
relieved of liability under said bond. Such date shall be not less than
10 days after the date the notice is received by the appropriate TTB
officer. The surety shall also file with the appropriate TTB officer an
acknowledgement or other proof of service on the bonded manufacturer. If
such notice is not thereafter in writing withdrawn, the rights of the
bonded manufacturer as supported by said bond shall be terminated on the
date named in the notice, and the surety shall be relieved from
liability to the extent set forth in Sec. 41.128.

Sec. 41.128 Relief of surety from bond.

Where the surety on a bond given under the provisions of this
subpart has filed application for relief from liability as provided in
Sec. 41.127, the surety shall be relieved from liability for
transactions occurring wholly subsequent to the date specified in the
notice, or the effective date of a new bond, if one is given.

[26 FR 8196, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr. 15, 1975,
and further redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425,
Aug. 26, 2004]

Sec. 41.129 Release of pledged securities.

Securities of the United States, pledged and deposited as provided
in Sec. 41.120, shall be released only in accordance with the
provisions of 31 CFR part 225. Such securities will not be released by
the appropriate TTB officer until the liability under the bond for which
they were pledged has been terminated. When the appropriate TTB officer
is satisfied that they may be released, he shall fix the date or dates
on which a part or all of such securities may be released. At any time
prior to the release of such securities, the appropriate TTB officer may
extend the

[[Page 87]]

date of release for such additional length of time as he deems
necessary.

(61 Stat. 650; 6 U.S.C. 15)

Sec. Sec. 41.135-41.138 [Reserved]

Sec. 41.139 Records.

Every manufacturer of tobacco products and cigarette papers and
tubes in the United States who receives tobacco products or cigarette
papers or tubes or Puerto Rican manufacture, without payment of internal
revenue tax, under his bond, shall keep separate records of all items
received, removed subject to tax, removed for tax-exempt purposes, and
otherwise disposed of, showing the following information:
(a) Date, quantity, kind of cigars, cigarettes, smokeless tobacco,
pipe tobacco and roll-your-own tobacco (number of small cigars--large
cigars; number of small cigarettes--large cigarettes; pounds and ounces
of chewing tobacco--snuff; pounds and ounces of pipe tobacco--roll-your-
own tobacco).
(b) The sale price of large cigars removed subject to tax, except
that if the price is more than $235.294 per thousand, it may be shown as
if it were $236 per thousand.
(c) Cigarette papers:
(1) Before January 1, 2000, the date and number of books or sets of
cigarette papers of each numerical content.
(2) On and after January 1, 2000, the date and number of cigarette
papers.
(d) The date and number of cigarette tubes.

(Approved by the Office of Management and Budget under control number
1512-0362)

(Sec. 2128(c), Pub. L. 94-455, 90 Stat. 1921 (26 U.S.C. 5741))

[T.D. ATF-80, 46 FR 18311, Mar. 24, 1981, as amended by T.D. ATF-172, 49
FR 14943, Apr. 16, 1984; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-289, 54 FR 48841, Nov. 27, 1989; T.D. ATF-307, 55 FR 52745, Dec. 21,
1990; T.D. ATF-424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-420, 64 FR
71944, Dec. 22, 1999]

Sec. 41.140 Taxpayment in the United States.

Every manufacturer of tobacco products or cigarette papers or tubes
in the United States who receives Puerto Rican tobacco products or
cigarette papers or tubes without payment of internal revenue tax, under
his bond, and subsequently removes such products, subject to tax, must
pay the tax imposed on such products by 26 U.S.C. 7652(a), at the rates
prescribed in 26 U.S.C. 5701, on the basis of a return under the
provisions of part 40 of this chapter applicable to the taxpayment of
tobacco products. Similarly, every manufacturer of cigarette papers and
tubes in the United States who receives Puerto Rican cigarette papers
and tubes and subsequently removes such articles, shall pay the tax
imposed on such articles by 26 U.S.C. 7652(a), at the rates prescribed
in 26 U.S.C. 5701, on the basis of a return under the provisions of part
40 of this chapter applicable to taxpayment of cigarette papers and
tubes. Such tobacco products and cigarettes papers and tubes shall be
separately listed and identified as articles of Puerto Rican manufacture
on Form 5000.24. The amount of tax paid on such articles shall be
separately stated on Form 5000.24.

[T.D. 6871, 31 FR 45, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28086, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-384, 61 FR 54095, Oct. 17, 1996; T.D. ATF-424, 64 FR
71933, Dec. 22, 1999; T.D. ATF-422, 64 FR 71951, Dec. 22, 1999]

Sec. 41.141 Reports.

Every manufacturer of tobacco products or cigarette papers or tubes
in the United States who receives Puerto Rican tobacco products, or
cigarette papers or tubes without payment of internal revenue tax, under
his bond, must report the receipt and disposition of such tobacco
products and cigarette papers and tubes on supplemental monthly reports.
Such supplemental reports shall be made on Form 5210.5 or Form 2138 and
shall have inserted thereon the heading, ``Cigars and Cigarettes of
Puerto Rican Manufacture'' or ``Cigarette Papers and Tubes of Puerto
Rican Manufacture,'' as the

[[Page 88]]

case may be. The original of such supplemental report shall be attached
to the manufacturer's regular monthly report when filed.

(72 Stat. 1422; 26 U.S.C. 5722)

[T.D. 6871, 31 FR 46, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986; T.D. ATF-424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-
422, 64 FR 71951, Dec. 22, 1999]

Subpart H [Reserved]

Sec. Sec. 41.151-41.153 [Reserved]

Subpart I_Claims

General

Sec. 41.161 Abatement of assessment.

A claim for abatement of the unpaid portion of the assessment of any
tax on tobacco products and cigarette papers and tubes, or any liability
in respect thereof, may be allowed to the extent that such assessment is
excessive in amount, is assessed after expiration of the applicable
period of limitation, or is erroneously or illegally assessed. Any claim
under this section shall be prepared on Form 2635 (5620.8), in
duplicate, and shall set forth the particulars under which the claim is
filed. The original of the claim, accompanied by such evidence as is
necessary to establish to the satisfaction of the appropriate TTB
officer that the claim is valid, shall be filed with the appropriate TTB
officer, and the duplicate of the claim shall be retained by the
claimant.

(68A Stat. 792; 26 U.S.C. 6404)

[T.D. 6871, 31 FR 46, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19341, May 22,
1987. Redesignated and amended by T.D. TTB-16, 69 FR 52424, 52425, Aug.
26, 2004]

Sec. 41.162 Losses caused by disaster occurring after September 2, 1958.

Claims involving internal revenue tax paid or determined and customs
duty paid on tobacco products and cigarette papers and tubes removed,
which are lost, rendered unmarketable, or condemned by a duly authorized
official by reason of a ``major disaster'' occurring in the United
States after September 2, 1958, shall be filed in accordance with the
provisions of subpart C of part 46 of this chapter.

(72 Stat. 1420; 26 U.S.C. 5708)

Sec. 41.163 Refund of tax.

The taxes paid on tobacco products and cigarette papers and tubes
imported or brought into the United States may be refunded (without
interest) to the taxpayer on proof satisfactory to the appropriate TTB
officer that the taxpayer has paid the tax on tobacco products and
cigarette papers and tubes lost (otherwise than by theft) or destroyed,
by fire, casualty, or act of God, while in the possession or ownership
of such taxpayer, or withdrawn by him from the market. Any claim for
refund of tax under this section shall be prepared on Form 2635
(5620.8), in duplicate, and shall include a statement that the tax
imposed on tobacco products and cigarette papers and tubes by 26 U.S.C.
7652 or chapter 52, as applicable, has been paid in respect to the
articles covered in the claim, and that the articles were lost,
destroyed, or withdrawn from the market, within six months preceding the
date the claim is filed and shall be executed under the penalties of
perjury. A claim for refund relating to articles lost or destroyed shall
be supported as prescribed in Sec. 41.165, and a claim relating to
articles withdrawn from the market shall include a schedule prepared and
verified as prescribed in Sec. Sec. 41.170 and 41.171 or Sec. Sec.
41.172 and 41.173. The original of the claim shall be filed with the
appropriate TTB officer. The duplicate of the claim, with the copy of

[[Page 89]]

any verified supporting schedules, shall be retained by the claimant.

(68A Stat. 907, as amended, 72 Stat. 1419, as amended; 26 U.S.C. 7652,
5705)

[T.D. 6871, 31 FR 46, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55855, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28086, Aug. 5, 1986; T.D. ATF-243, 52 FR 43194, Dec. 1,
1986; T.D. ATF-251, 52 FR 19341, May 22, 1987. Redesignated and amended
by T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Tobacco Products and Cigarette Papers and Tubes Lost or Destroyed

Sec. 41.165 Action by taxpayer.

Where tobacco products and cigarette papers and tubes which have
been imported or brought into the United States are lost (otherwise than
by theft) or destroyed, by fire, casualty, or act of God, and the
taxpayer desires to file claim for refund of the tax on such articles,
he shall, in addition to complying with the requirements of Sec.
41.163, indicate on the claim the nature, date, place, and extent of
such loss or destruction. The claim shall be accompanied by such
evidence as is necessary to establish to the satisfaction of the
appropriate TTB officer that the claim is valid.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6871, 31 FR 46, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28086, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Tobacco Products and Cigarette Papers and Tubes Withdrawn From the
Market

Sec. 41.170 Reduction of tobacco products to materials; TTB action.

(a) General. Where tobacco products and cigarette papers and tubes
which have been imported or brought into the United States are withdrawn
from the market and the taxpayer desires to file claim for refund of the
tax on the articles, he shall, in addition to the requirements of Sec.
41.163, assemble the articles at any suitable place, if they are to be
destroyed or reduced to tobacco. The taxpayer shall group the articles
according to the rates of tax applicable to the articles, and shall
prepare a schedule of the articles on TTB Form 5200.7, in triplicate.
All copies of the schedule shall be forwarded to the appropriate TTB
officer.
(b) Large cigars. Refund or credit of tax on large cigars withdrawn
from the market is limited to the lowest tax applicable to that brand
and size of cigar during the required record retention period (see Sec.
41.22) except where the importer establishes that a greater amount was
actually paid. For each claim involving large cigars withdrawn from the
market, the importer must include a certification on either TTB Form
5200.7 or TTB Form 2635 (5620.8) to read as follows:

(See 26 U.S.C. 5705)

[T.D. ATF-80, 46 FR 18311, Mar. 24, 1981, as amended by T.D. ATF-232, 51
FR 28086, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-251, 52 FR 19341, May 22, 1987; T.D. ATF-307, 55 FR 52745, Dec. 21,
1990; T.D. ATF-424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-420, 64 FR
71944, Dec. 22, 1999. Redesignated and amended by T.D. TTB-16, 69 FR
52424, 52425, Aug. 26, 2004]

Sec. 41.171 Reduction of tobacco products to materials, action by

appropriate TTB officer.

[[Page 90]]

original and one copy of the schedule returned to the taxpayer.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6871, 31 FR 46, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28087, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.172 Return to nontaxpaid status, action by taxpayer.

(a) General. Where tobacco products and cigarette papers and tubes
which have been imported or brought into the United States are withdrawn
from the market and the taxpayer desires to file a claim for refund of
the tax on the articles and return them to a nontaxpaid status, he
shall, in addition to the requirements of Sec. 41.163, assemble the
articles in or adjacent to the factory in which the articles are to be
retained or received in a nontaxpaid status. The taxpayer shall group
the articles according to the rates of tax applicable to the articles,
and shall prepare a schedule of the articles, on Form 5200.7, in
triplicate. All copies of the schedule shall be forwarded to the
appropriate TTB officer.
(b) Large cigars. Refund or credit of tax on large cigars withdrawn
from the market is limited to the lowest tax applicable to that brand
and size of cigar during the required record retention period (see Sec.
41.22) except where the importer establishes that a greater amount was
actually paid. For each claim involving large cigars withdrawn from the
market, the importer must include a certification on either TTB Form
5200.7 or TTB Form 2635 (5620.8) to read as follows:

(See 26 U.S.C. 5705)

[T.D. ATF-80, 46 FR 18311, Mar. 24, 1981, and amended by T.D. ATF-232,
51 FR 28087, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-251, 52 FR 19341, May 22, 1987; T.D. ATF-307, 55 FR 52745, Dec. 21,
1990; T.D. ATF-424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-420, 64 FR
71944, Dec. 22, 1999. Redesignated and amended by T.D. TTB-16, 69 FR
52424, 52425, Aug. 26, 2004]

Sec. 41.173 Return to nontaxpaid status, action by appropriate TTB officer.

Upon receipt of a schedule of tobacco products and cigarette papers
and tubes which have been imported or brought into the United States and
which are withdrawn from the market by a taxpayer who desires to return
such articles to a nontaxpaid status, the appropriate TTB to officer may
verify the schedule and supervise disposition of the articles (and
destruction of the stamps, if any) or the appropriate TTB officer may
authorize the receiving manufacturer to verify the schedule and
disposition of the articles (and destruction of the stamps, if any)
covered therein, without supervision, by so stating on the original and
one copy of the schedule returned to the manufacturer. Where the receipt
in a factory of tobacco products and cigarette papers and tubes has been
verified, such articles shall be treated by the receiving manufacturer
as nontaxpaid and shall be covered by the manufacturer's bond.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6871, 31 FR 47, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28087, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986. Redesignated and amended by T.D.
TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.174 Disposition of tobacco products and cigarette papers and tubes,

and schedule.

When the appropriate TTB officer is assigned to verify the schedule
and supervise destruction or other disposition of tobacco products and
cigarette papers and tubes which have been imported or brought into the
United

[[Page 91]]

States, such officer shall, upon completion of his assignment, execute a
certificate on all copies of the schedule to show the disposition and
the date of disposition of such articles. The appropriate TTB officer
shall return the original and one copy of the certified schedule to the
taxpayer. When a taxpayer destroys such articles (and stamps, if any) or
reduces tobacco products to materials, or a receiving manufacturer
verifies the schedule and disposition of such articles (and stamps, if
any), he shall execute a certificate on the original and the copy of the
schedule returned to him, to show the disposition and the date of
disposition of the articles. The taxpayer shall attach the original of
the certified schedule to his claim for refund.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

Subpart J_Records and Reports

Source: T.D. ATF-40, 42 FR 5007, Jan. 26, 1977, unless otherwise
noted.

Sec. 41.181 Records of large cigars.

Every person who imports large cigars for sale within the United
States must keep such records as are necessary to establish and verify
the sale price that applies to large cigars removed (entered or
withdrawn).
(a) Basic record. The importer must keep a record to show each sale
price (as determined under Sec. 41.39), which is applicable to large
cigars removed. No later than the tenth business day in January of each
year the importer must prepare such a record to show the sale price in
effect on the first day of that year for each brand and size of large
cigars. The importer must note any change in a price from that shown in
the record within ten business days after such change in price. The
record must be a continuing one for each brand and size of cigar (and
type of packaging, if pertinent), so that the taxable price on any date
may be readily ascertained. If an importer removes new types of large
cigars after the beginning of the year, the importer must enter the sale
price and its effective date for such large cigars in the basic record
within ten business days after such removal.
(b) Copies of price announcements. The importer must keep a copy of
each general announcement that is issued internally or to the trade
about establishment or change of large cigar sale prices. If the copy
does not show the actual date when issued it must be annotated to show
this information.
(c) Copies of entry and withdrawal forms. The importer must keep a
copy of each customs entry or withdrawal form on which internal revenue
tax for large cigars is declared pursuant to Sec. 41.81.
(d) Alternative record. If an importer has so few import
transactions and/or brands and sizes of large cigars that retention of
an appropriate copy of each entry and withdrawal form required under
paragraph (c) of this section will provide an adequate record of sale
prices, then the record required under paragraph (a) of this section
need not be kept. In such case the entry and withdrawal forms must
identify the brands and sizes of cigars covered and show the
corresponding quantity and sale price for each. If such information was
not originally entered on the form it may be included by annotation.
Whenever the appropriate TTB officer finds that alternative records
being kept pursuant to this paragraph are inadequate for the intended
purpose, he or she may so notify the importer in writing, after which
time the importer must keep the record required under paragraph (a) of
this section.

(Approved by the Office of Management and Budget under control number
1512-0368)

[T.D. ATF-420, 64 FR 71944, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.182 Availability of records.

The records required under Sec. 41.181 shall be kept by the
importer at his usual place of business unless otherwise authorized in
writing by the appropriate TTB officer, and shall be made available for
inspection by the

[[Page 92]]

appropriate TTB officer upon his request. (For retention period, see
Sec. 41.22.)

[T.D. ATF-40, 42 FR 5007, Jan. 26, 1977. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.183 [Reserved]

Subpart K_Tobacco Products Importers

Source: T.D. ATF-422, 64 FR 71951, Dec. 22, 1999, unless otherwise
noted.

Sec. 41.190 Persons required to qualify.

Any person who engages in the business as an importer of tobacco
products must qualify as an importer of tobacco products in accordance
with the provisions of this part. Any person eligible for the exemption
in Sec. 41.50 is not engaged in the business as an importer of tobacco
products.
Persons importing tobacco products and cigarette papers and tubes
for personal use, in such quantities as may be allowed by Customs
without payment of tax, do not require an importer's permit.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.191 Application for permit.

Except as provided in Sec. 41.192, every person, before commencing
business as an importer of tobacco products as defined in Sec. 41.11,
must make application for, and obtain, the permit provided by this
subpart K. Such application must be made on TTB Form 5230.4, according
to the instructions for the form. All documents required under this part
to be furnished with such application must be made a part thereof.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.192 Transitional rule.

Any person who--
(a) Was engaged in the business as an importer of tobacco products
before January 1, 2000, and
(b) Who files an application with TTB before January 1, 2000, may
continue to import tobacco products and cigarette papers and tubes
pending action on their application by TTB. Pending such final action,
all provisions of chapter 52 of the Internal Revenue Code of 1986 will
apply to such applicant.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.193 Corporate documents.

Every corporation, before commencing business as an importer of
tobacco products, must furnish with its application for permit, required
by Sec. 41.191, a true copy of the corporate charter or a certificate
of corporate existence or incorporation executed by the appropriate
officer of the State in which incorporated. The corporation must
likewise furnish duly authenticated extracts of the stockholders'
meetings, bylaws, or directors' meetings, listing the offices the
incumbents of which are authorized to sign documents or otherwise act in
behalf of the corporation in matters relating to 26 U.S.C. chapter 52,
and regulations issued thereunder. The corporation must also furnish
evidence, in duplicate, of the identity of the officers and directors
and each person who holds more than ten percent of the stock of such
corporation. Where any of the information required by this section has
previously been filed with the appropriate TTB officer, and such
information is currently complete and accurate, a written statement to
that effect, in duplicate, will be sufficient for the purpose of this
section.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.194 Articles of partnership or association.

Every partnership or association, before commencing business as an
importer of tobacco products, must furnish with its application for
permit required by Sec. 41.191 a true copy of the articles of
partnership or association, if any, or certificate of partnership or
association where required to be filed by any State, county, or
municipality. Where a partnership or association has previously filed
such documents with the appropriate TTB officer and such documents are
currently complete and

[[Page 93]]

accurate, a written statement, in duplicate, to that effect by the
partnership or association will be sufficient for the purpose of this
section.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.195 Trade name certificate.

Every person, before commencing business under a trade name as an
importer of tobacco products, must furnish with his application for a
permit, required by Sec. 41.191, a true copy of the certificate or
other document, if any, issued by a State, county, or municipal
authority in connection with the transaction of business under such
trade name. If no such true copy of the certificate or other document is
so required, a written statement, in duplicate, to that effect by such
person will be sufficient for the purpose of this section.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.196 Power of attorney.

If the application for permit or any report, return, notice,
schedule, or other document required to be executed is to be signed by
an individual (including one of the partners for a partnership or one of
the members of an association) as an attorney in fact for any person, or
if an individual is to otherwise officially represent such person, power
of attorney on Form 1534 must be furnished to the appropriate TTB
officer. (For power of attorney in connection with conference and
practice requirements see subpart E, part 70 of this chapter.) Such
power of attorney is not required for persons whose authority is
furnished with the corporate documents as required by Sec. 41.194. Form
1534 does not have to be filed again with the appropriate TTB officer if
such form has previously been submitted to TTB and is still in effect.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.197 Additional information.

The appropriate TTB officer may require such additional information
as may be deemed necessary to determine whether the applicant is
entitled to a permit under the provisions of this part. The applicant
must, when required by the appropriate TTB officer, furnish as a part of
his application for such permit such additional information as the
appropriate TTB officer deems necessary to determine whether the
applicant is entitled to a permit.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.198 Investigation of applicant.

Appropriate TTB officers may inquire or investigate to verify the
information in connection with an application for a permit. The
investigation will ascertain whether the applicant is, by reason of his
business experience, financial standing, and trade connections, likely
to maintain operations in compliance with 26 U.S.C. chapter 52, and
regulations thereunder; whether the applicant has disclosed all material
information required, or whether the applicant has made any material
false statement in the application for such permit.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.199 Notice of contemplated disapproval.

If the appropriate TTB officer has reason to believe that the
applicant is not entitled to a permit, the appropriate TTB officer will
promptly give to the applicant a notice of the contemplated disapproval
of the application and opportunity for hearing thereon in accordance
with part 71 of this chapter. If, after such notice and opportunity for
hearing, the appropriate TTB officer finds that the applicant is not
entitled to a permit, an order will be prepared stating the findings on
which the permit request is denied.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999, as amended by T.D. ATF-463,
66 FR 42734, Aug. 15, 2001. Redesignated and amended by T.D. TTB-16, 69
FR 52424, 52425, Aug. 26, 2004]

Sec. 41.200 Issuance of permit.

If the application for permit, together with the required supporting

[[Page 94]]

documents, is approved, the appropriate TTB officer will issue a permit
on TTB F 5200.24 to the applicant as an importer of tobacco products.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.201 Duration of permit.

(a) Permits other than temporary permits issued under paragraph (b)
of this section will be valid for a period of three years from the
effective date shown on the permit, TTB F 5200.24.
(b) Temporary permits will be issued for a one-year period to those
applicants described in Sec. 41.192.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.202 Renewal of permit.

Importers wishing to continue operations beyond the expiration of
their current permit must renew their permit by making application
within 30 days of such expiration on TTB F 5200.24, in accordance with
instructions for the form. The expiring permit will continue in effect
until final action is taken by TTB on the application for renewal,
provided a timely application for renewal is filed.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.203 Retention of permit and supporting documents.

The importer must retain the permit, together with the copy of the
application and supporting documents returned with the permit, at the
same place where the records required by this part are kept. The permit
and supporting documents must be made available for inspection by any
appropriate TTB officer upon request.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Required Records and Reports

Sec. 41.204 General.

Every tobacco products importer must keep such records and, when
required by this part, submit such reports, of the physical receipt and
disposition of tobacco products. Records and reports will not be
required under this part with respect to tobacco products while in
customs custody.

Sec. 41.205 Recordkeeping requirements.

Any owner, importer, consignee, or their agent who imports, or
knowingly causes to be imported, any tobacco product or cigarette papers
or tubes must make and keep records. A person purchasing a tobacco
product from the importer in a domestic transaction and who does not
knowingly cause merchandise to be imported is not required to make and
keep records unless:
(a) The terms and conditions of the importation are controlled by
the person placing the order with the importer (e.g., the importer is
not an independent contractor but the agent of the person placing the
order).
(b) The tobacco products purchased from the importer include more
than 60,000 cigarettes, in which case the importer and the person
placing the order with the importer must keep the records required by 27
CFR Part 46, Subpart F, Distribution of Cigarettes. Dividing a single
shipment of more than 60,000 cigarettes into smaller components of
60,000 cigarettes or less does not exempt any person from the
recordkeeping requirements of this subpart.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999, as amended by T.D. ATF-457,
66 FR 32220, June 14, 2001]

Filing and Retention of Records and Reports

Sec. 41.206 Reports.

(a) Importers must file a monthly report on TTB F 5220.6 in
accordance with the format and instructions for the form.
(b) The first report(s) must be submitted by the 15th day of the
month following the month in which the permit is issued; all previous
months beginning January 1, 2000, must also be reported at that time.

For example:

An importer who is issued a permit with a date of August 17, 2000,
would be required to submit by September 15, 2000, a total of eight
reports for the months January-August, 2000.

[[Page 95]]

(c) Reports with the notation ``No Activity'' must be made for those
months in which no activity occurs.
(d) When a transfer of ownership of the business of an importer of
tobacco products described in Sec. 41.224, or when a change in control
of a corporation described in Sec. 41.226 occurs, a concluding report
with the notation ``Concluding Report'' must be made for the month or
partial month during which the transfer of ownership or change in
control becomes effective.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.207 Filing.

All records and reports required by this part will be maintained
separately, chronologically by transaction or reporting date, at the
importer's place of business. The appropriate TTB officer may, pursuant
to an application, authorize files, or an individual file, to be
maintained at another business location under the control of the
importer, if the alternative location does not cause undue inconvenience
to TTB or Customs officers desiring to examine the files or delay in the
timely transmittal of any documents required to be submitted.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.208 Retention.

(a) All records and reports required by this part, documents or
copies of documents supporting these records or reports, and file copies
of reports required by this part to be submitted to TTB must be retained
for not less than three years following the close of the calendar year
in which filed or made, and during this period must be available for
inspection and copying by TTB during business hours.
(b) Furthermore, the appropriate TTB officer may require these
records to be kept for an additional period of not more than three years
in any case where it is determined that such record retention is
necessary to protect the revenue. Any records, or copies thereof,
containing any of the information required by this part to be prepared,
wherever kept, must also be made available for inspection and copying.

[T.D. ATF-422, 64 FR 71951, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Subpart L_Changes After Original Qualification of Importers

Source: T.D. ATF-422, 64 FR 71953, Dec. 22, 1999, unless otherwise
noted.

Changes in Name

Sec. 41.220 Change in individual name.

Where there is a change in the name of an individual operating as an
importer of tobacco products, the importer must make application on TTB
Form 5230.5 for an amended permit within 30 days of such change.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.221 Change in trade name.

Where there is a change in, or an addition or discontinuance of, a
trade name used by an importer of tobacco products in connection with
operations authorized by the permit, the importer must make application
on TTB Form 5230.5 for an amended permit to reflect such change within
30 days of such change. The importer must also furnish a true copy of
any new trade name certificate or document issued to the business, or
statement in lieu thereof, required by Sec. 41.195.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.222 Change in corporate name.

Where there is a change in the corporate name of an importer of
tobacco products, the importer must make application on TTB Form 5230.5
for an amended permit within 30 days of such change. The importer must
also furnish such documents as may be necessary to establish that the
corporate name has been changed.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

[[Page 96]]

Changes in Ownership and Control

Sec. 41.223 Fiduciary successor.

If an administrator, executor, receiver, trustee, assignee, or other
fiduciary, is to take over the business of an importer of tobacco
products, as a continuing operation, such fiduciary must make
application for permit, before commencing operations as required by
subpart K of this part, furnish certified copies, in duplicate, of the
order of the court, or other pertinent documents, showing his
appointment and qualification as such fiduciary. However, where a
fiduciary intends only to liquidate the business, qualification as an
importer of tobacco products will not be required if the fiduciary
promptly files with the appropriate TTB officer a written statement to
that effect.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.224 Transfer of ownership.

If a transfer is to be made in ownership of the business of an
importer of tobacco products (including a change of any member of a
partnership or association), such importer must give notice, in writing,
to the appropriate TTB officer, naming the proposed successor and the
desired effective date of such transfer. The proposed successor must
qualify as an importer of tobacco products, before commencing
operations, in accordance with the applicable provisions of subpart K of
this part. The importer must give such notice of transfer, and the
proposed successor must make application for permit in ample time for
examination and approval thereof before the desired date of such change.
The predecessor must make a concluding report, in accordance with the
provisions of Sec. 41.205, and surrender the permit with such report.
The successor must make a commencing report, in accordance with the
provisions of Sec. 41.206.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.225 Change in officers, directors, or stockholders of a corporation.

Upon election or appointment (excluding successive reelection or
reappointment) of any officer or director of a corporation operating the
business of an importer of tobacco products, or upon any occurrence
which results in a person acquiring ownership or control of more than
ten percent in aggregate of the outstanding stock of such corporation,
the importer must, within 30 days of such action, so notify the
appropriate TTB officer in writing, giving the identity of such person.
In the event that the acquisition of ten or more percent in aggregate of
the outstanding stock of such corporation results in a change of control
of such corporation, the provisions of Sec. 41.226 will apply. When
there is any change in the authority furnished under Sec. 41.196 for
officers to act on behalf of the corporation the importer must
immediately so notify the appropriate TTB officer in writing.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41.226 Change in control of a corporation.

Where the issuance, sale, or transfer of the stock of a corporation
operating as an importer of tobacco products results in a change in the
identity of the principal stockholders exercising actual or legal
control of the operations of the corporation, the corporate importer
must make application on TTB Form 5230.4 for a new permit within 30 days
after the change occurs. Otherwise, the present permit will be
automatically terminated at the expiration of such 30-day period, and
the importer will dispose of all tobacco products on hand, in accordance
with this part, make a concluding report, in accordance with the
provisions of Sec. 41.206, and surrender his permit with such report.
If the application for a new permit is timely made, the present permit
will continue in effect pending final action with respect to such
application.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

[[Page 97]]

Changes in Location or Address

Sec. 41.227 Change in location.

Whenever an importer of tobacco products intends to relocate the
principal business office, the importer must, before commencing
operations at the new location, make application on TTB Form 5230.5 for,
and obtain, an amended permit.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

Sec. 41. 228 Change in address.

Whenever any change occurs in the address, but not the location, of
the principal business office of an importer of tobacco products, as a
result of action of local authorities, the importer must make
application on TTB Form 5230.5 for an amended permit within 30 days of
such change.

[T.D. ATF-422, 64 FR 71953, Dec. 22, 1999. Redesignated and amended by
T.D. TTB-16, 69 FR 52424, 52425, Aug. 26, 2004]

PART 44_EXPORTATION OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES,

WITHOUT PAYMENT OF TAX, OR WITH DRAWBACK OF TAX--Table of Contents

Subpart A_Scope of Regulations

Sec.
44.1 Exportation of tobacco products, and cigarette papers and tubes,
without payment of tax, or with drawback of tax.
44.2 Forms prescribed.
44.3 Delegations of the Administrator.

Subpart B_Definitions

44.11 Meaning of terms.

Subpart Ba_Special (Occupational) Taxes

44.31 Liability for special tax.
44.32 Rate of special tax.
44.33 Special tax returns.
44.34 Employer identification number.
44.35 Issuance, distribution, and examination of special tax stamps.
44.36 Changes in special tax stamps.

Subpart C_General

44.61 Removals, withdrawals, and shipments authorized.
44.61a Deliveries to foreign-trade zones--export status.
44.62 Restrictions on deliveries of tobacco products, and cigarette
papers and tubes to vessels and aircraft, as supplies.
44.63 Restrictions on disposal of tobacco products, and cigarette papers
and tubes on vessels and aircraft.
44.64 Responsibility for delivery or exportation of tobacco products,
and cigarette papers and tubes.
44.65 Liability for tax on tobacco products, and cigarette papers and
tubes.
44.66 Relief from liability for tax.
44.67 Payment of tax.
44.68 [Reserved]
44.69 Assessment.
44.70 Authority of appropriate TTB officers to enter premises.
44.71 Interference with administration.

Variations From Requirements

44.72 Alternate methods or procedures.
44.73 Emergency variations from requirements.

Subpart D_Qualification Requirements for Export Warehouse Proprietors

44.81 Persons required to qualify.
44.82 Application for permit.
44.83 Corporate documents.
44.84 Articles of partnership or association.
44.85 Trade name certificate.
44.86 Bond.
44.87 Power of attorney.
44.88 Description and diagram of premises.
44.89 Separation of premises.
44.90 Restrictions relating to export warehouse premises.
44.91 Additional information.
44.92 Investigation of applicant.
44.93 Issuance of permit.

Subpart E_Changes Subsequent to Original Qualification of Export
Warehouse Proprietors

Changes in Name

44.101 Change in individual name.
44.102 Change in trade name.
44.103 Change in corporate name.

Changes in Ownership and Control

44.104 Fiduciary successor.
44.105 Transfer of ownership.
44.106 Change in officers or directors of a corporation.
44.107 Change in stockholders of a corporation.

Changes in Location and Premises

44.108 Change in location.
44.109 Change in address.
44.110 [Reserved]
44.111 Change in export warehouse premises.
44.112 Emergency premises.

[[Page 98]]

Subpart F_Bonds and Extensions of Coverage of Bonds

44.121 Corporate surety.
44.122 Deposits of bonds, notes, or obligations in lieu of corporate
surety.
44.123 Amount of bond.
44.124 Strengthening bond.
44.125 Superseding bond.
44.126 Extension of coverage of bond.
44.127 Approval of bond and extension of coverage of bond.
44.128 Termination of liability of surety under bond.
44.129 Release of bonds, notes, and obligations.

Subpart G_Operations by Export Warehouse Proprietors

44.141 Sign.
44.142 Records.

Inventories

44.143 General.
44.144 Opening.
44.145 Special.
44.146 Closing.

Reports

44.147 General.
44.148 Opening.
44.149 Monthly.
44.150 Special.
44.151 Closing.

Claims

44.152 Claim for remission of tax liability.
44.153 Claim for abatement of assessment.
44.154 Claim for refund of tax.

Subpart H_Suspension and Discontinuance of Operations

44.161 Discontinuance of operations.
44.162 Suspension and revocation of permit.

Subpart I [Reserved]

Subpart J_Removal of Shipments of Tobacco Products and Cigarette Papers
and Tubes by Manufacturers and Export Warehouse Proprietors

Packaging Requirements

44.181 Packages.
44.182 Lottery features.
44.183 Indecent or immoral material.
44.184 Mark.
44.185 Label or notice.
44.186 Tax classification for cigars.
44.187 Shipping containers.

Consignment of Shipment

44.188 General.
44.189 Transfers between factories and export warehouses.
44.190 Return of shipment to a manufacturer or customs warehouse
proprietor.
44.191 To officers of the armed forces for subsequent exportation.
44.192 To vessels and aircraft for shipment to noncontiguous foreign
countries and possessions of the United States.
44.193 To a Federal department or agency.
44.194 To district director of customs for shipment to contiguous
foreign countries.
44.195 To Government vessels and aircraft for consumption as supplies.
44.196 To district director of customs for consumption as supplies on
commercial vessels and aircraft.
44.196a To a foreign-trade zone.
44.197 For export by parcel post.

Notice of Removal of Shipment

44.198 Preparation.
44.199 Disposition.
44.200 Transfers between factories and export warehouses.
44.201 Return to manufacturer or customs warehouse proprietor.
44.202 To officers of the armed forces for subsequent exportation.
44.203 To noncontiguous foreign countries and possessions of the United
States.
44.204 To a Federal department or agency.
44.205 To contiguous foreign countries.
44.206 To Government vessels and aircraft for consumption as supplies.
44.207 To commercial vessels and aircraft for consumption as supplies.
44.207a To a foreign-trade zone.
44.208 For export by parcel post.

Miscellaneous Provisions

44.209 Diversion of shipment to another consignee.
44.210 Return of shipment to factory or export warehouse.
44.211 [Reserved]
44.212 Delay in lading at port of exportation.
44.213 Destruction of tobacco products, and cigarette papers and tubes.

Subpart K_Drawback of Tax

44.221 Application of drawback of tax.
44.222 Claim.
44.223 Drawback bond.
44.224 Inspection by an appropriate TTB officer.
44.225 Delivery of tobacco products, or cigarette papers or tubes for
export other than by parcel post.
44.226 Delivery of tobacco products, and cigarette papers and tubes for
export by parcel post.
44.227 Customs procedure.
44.228 Landing certificate.

[[Page 99]]

44.229 Collateral evidence as to landing.
44.230 Proof of loss.
44.231 Extension of time.
44.232 Allowance of claim.

Subpart L_Withdrawal of Cigars From Customs Warehouses

44.241 Shipment restricted.
44.242 Responsibility for tax on cigars.

Bonds

44.243 Bond required.
44.244 Amount of bond.
44.245 Strengthening bond.
44.246 Superseding bond.
44.247 Termination of liability of surety under bond.

Packaging Requirements

44.248 Packages.
44.249 Lottery features.
44.250 Indecent or immoral material.
44.251 Mark.
44.252 Label or notice.
44.253 Tax classification for cigars.
44.254 Shipping containers.

Consignment of Shipment

44.255 Consignment of cigars.

Notice of Removal of Shipment

44.256 Preparation.
44.257 Disposition.
44.258 To officers of the armed forces for subsequent exportation.
44.259 To noncontiguous foreign countries and possessions of the United
States.
44.260 To a Federal department or agency.
44.261 To contiguous foreign countries.
44.262 To Government vessels and aircraft for consumption as supplies.
44.263 To commercial vessels and aircraft for consumption as supplies.
44.264 To export warehouses.
44.264a To a foreign-trade zone.
44.265 For export by parcel post.

Return of Shipment

44.266 Return of cigars from export warehouses.
44.267 Return of cigars from other sources.

Authority: 26 U.S.C. 5142, 5143, 5146, 5701, 5703-5705, 5711-5713,
5721-5723, 5731, 5741, 5751, 5754, 6061, 6065, 6151, 6402, 6404, 6806,
7011, 7212, 7342, 7606, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.

Source: Redesignated by T.D. ATF-464, 66 FR 43480, Aug. 20, 2001.

Editorial Note: Nomenclature changes to part 44 appear by T.D. ATF-
464, 66 FR 43480, Aug. 20, 2001, and T.D. ATF-480, 67 FR 30801-30803,
May 8, 2002.

Subpart A_Scope of Regulations

Sec. 44.1 Exportation of tobacco products, and cigarette papers and tubes,

without payment of tax, or with drawback of tax.

This part contains the regulations relating to the exportation
(including supplies for vessels and aircraft) of tobacco products and
cigarette papers and tubes, without payment of tax; the qualification
of, and operations by, export warehouse proprietors; and the allowance
of drawback of tax paid on tobacco products, and cigarette papers and
tubes exported.

[T.D. 6871, 31 FR 48, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28087, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.2 Forms prescribed.

(a) The appropriate appropriate TTB officer is authorized to
prescribe all forms required by this part. All of the information called
for in each form shall be furnished as indicated by the headings on the
form and the instructions on or pertaining to the form. In addition,
information called for in each form shall be furnished as required by
this part. The form will be filed in accordance with the instructions
for the form.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National Revenue Center, 550
Main Street, Room 1516, Cincinnati, OH 45202.

(5 U.S.C. 552(a) (80 Stat. 383, as amended))

[T.D. ATF-92, 46 FR 46922, Sept. 23, 1981, as amended by T.D. ATF-232,
51 FR 28087, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-372, 61 FR 20725, May 8, 1996; T.D. ATF-480, 67 FR 30801, May 8,
2002; T.D. TTB-44, 71 FR 16952, Apr. 4, 2006]

Sec. 44.3 Delegations of the Administrator.

Most of the regulatory authorities of the Administrator contained in
this part are delegated to appropriate TTB officers. These TTB officers
are specified in TTB Order 1135.44, Delegation of the Administrator's
Authorities in 27 CFR Part 44, Exportation of Tobacco

[[Page 100]]

Products and Cigarette Papers and Tubes, Without Payment of Tax, or With
Drawback of Tax. You may obtain a copy of this order by accessing the
TTB Web site (http://www.ttb.gov) or by mailing a request to the Alcohol
and Tobacco Tax and Trade Bureau, National Revenue Center, 550 Main
Street, Room 1516, Cincinnati, OH 45202.

[T.D. TTB-44, 71 FR 16952, Apr. 4, 2006]

Subpart B_Definitions

Sec. 44.11 Meaning of terms.

When used in this part and in forms prescribed under this part, the
following terms shall have the meanings given in this section, unless
the context clearly indicates otherwise. Words in the plural form shall
include the singular, and vice versa, and words indicating the masculine
gender shall include the feminine. The terms ``includes'' and
``including'' do not exclude things not listed which are in the same
general class.
Administrator. The Administrator, Alcohol and Tobacco Tax and Trade
Bureau, Department of the Treasury, Washington, DC.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.44, Delegation of the Administrator's Authorities in 27 CFR Part
44, Exportation of Tobacco Products and Cigarette Papers and Tubes,
Without Payment of Tax, or With Drawback of Tax.
Chewing tobacco. Any leaf tobacco that is not intended to be smoked.
Cigar. Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco which is a
cigarette within the definition of ``cigarette'' given in this section).
Cigarette. (a) Any roll of tobacco wrapped in paper or in any
substance not containing tobacco, and
(b) Any roll of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (a) of
this definition.
Cigarette paper. Paper, or other material except tobacco, prepared
for use as a cigarette wrapper.
Cigarette tube. Cigarette paper made into a hollow cylinder for use
in making cigarettes.
Customs warehouse. A customs bonded manufacturing warehouse, class
6, where cigars are manufactured of imported tobacco.
District director of customs. The district director of customs at a
headquarters port of the district (except the district of New York,
N.Y.); the area directors of customs in the district of New York, N.Y.;
and the port director at a port not designated as a headquarters port.
Exportation or export. A severance of tobacco products or cigarette
papers or tubes from the mass of things belonging to the United States
with the intention of uniting them to the mass of things belonging to
some foreign country. For the purposes of this part, shipment from the
United States to Puerto Rico, the Virgin Islands, or a possession of the
United States, shall be deemed exportation, as will the clearance from
the United States of tobacco products and cigarette papers and tubes for
consumption beyond the jurisdiction of the internal revenue laws of the
United States, i.e., beyond the 3-mile limit or international boundary,
as the case may be.
Export warehouse. A bonded internal revenue warehouse for the
storage of tobacco products and cigarette papers and tubes, upon which
the internal revenue tax has not been paid, for subsequent shipment to a
foreign country, Puerto Rico, the Virgin Islands, or a possession of the
United States, or for consumption beyond the jurisdiction of the
internal revenue laws of the United States.
Export warehouse proprietor. Any person who operates an export
warehouse.
Factory. The premises of a manufacturer of tobacco products or
cigarette papers and tubes in which he carries on such business.
Foreign-trade zone. A foreign-trade zone established and operated
pursuant to the Act of June 18, 1934, as amended.

[[Page 101]]

In bond. The status of tobacco products and cigarette papers and
tubes, which come within the coverage of a bond securing the payment of
internal revenue taxes imposed by 26 U.S.C. 5701 or 7652, and in respect
to which such taxes have not been determined as provided by regulations
in this chapter, including (a) such articles in a factory or an export
warehouse, (b) such articles removed, transferred, or released, pursuant
to 26 U.S.C. 5704, and with respect to which relief from the tax
liability has not occurred, and (c) such articles on which the tax has
been determined, or with respect to which relief from the tax liability
has occurred, which have been returned to the coverage of a bond.
Manufacturer of cigarette papers and tubes. Any person who
manufactures cigarette paper, or makes up cigarette paper into tubes,
except for his own personal use or consumption.
Manufacturer of tobacco products. Any person who manufactures
cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own
tobacco but does not include:
(1) A person who produces tobacco products solely for that person's
own consumption or use; or
(2) A proprietor of a Customs bonded manufacturing warehouse with
respect to the operation of such warehouse.
Package. The container in which tobacco products or cigarette papers
or tubes are put up by the manufacturer and delivered to the consumer.
Person. An individual, partnership, association, company,
corporation, estate, or trust.
Pipe tobacco. 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 to be smoked in a pipe.
Removal or remove. The removal of tobacco products or cigarette
papers or tubes from either the factory or the export warehouse covered
by the bond of the manufacturer or proprietor.
Roll-your-own tobacco. 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.
Sale price. The price for which large cigars are sold by the
manufacturer, determined in accordance with Sec. Sec. 40.22 or 41.39.
State. ``State'' shall, for the purposes of this part, be construed
to include the District of Columbia.
Smokeless tobacco. Any snuff or chewing tobacco.
Snuff. Any finely cut, ground, or powdered tobacco that is not
intended to be smoked.
Tobacco products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
United States. ``United States'' when used in a geographical sense
shall include only the States and the District of Columbia.
U.S.C. The United States Code.
Zone operator. The person to whom the privilege of establishing,
operating, and maintaining a foreign-trade zone has been granted by the
Foreign-Trade Zones Board created by the Act of June 18, 1934, as
amended.
Zone restricted status. Tobacco products, cigarette papers and
cigarette tubes which have been taken into a foreign trade zone from the
United States Customs territory for the sole purpose of exportation or
storage until exported.

[T.D. ATF-48, 43 FR 13556, Mar. 31, 1978; 44 FR 55856, Sept. 28, 1979,
as amended by T.D. ATF-232, 51 FR 28087, Aug. 5, 1986; T.D. ATF-243, 51
FR 43194, Dec. 1, 1986; T.D. ATF-289, 54 FR 48841, Nov. 27, 1989; T.D.
ATF-421, 64 FR 71925, Dec. 22, 1999; T.D. ATF-424, 64 FR 71933, Dec. 22,
1999; T.D. ATF-420, 64 FR 71945, Dec. 22, 1999; T.D. ATF-460, 66 FR
39093, July 27, 2001; T.D. ATF-467, 66 FR 49532, Sept. 28, 2001; T.D.
ATF-480, 67 FR 30801, May 8, 2002; T.D. TTB-16, 69 FR 52423, Aug. 26,
2004; T.D. TTB-44, 71 FR 16952, Apr. 4, 2006]

Subpart Ba_Special (Occupational) Taxes

Source: T.D. ATF-271, 53 FR 17563, May 17, 1988, unless otherwise
noted.

Sec. 44.31 Liability for special tax.

(a) Export warehouse proprietor. Every export warehouse proprietor
shall pay a special (occupational) tax at a rate specified by Sec.
44.32. The tax shall be paid on or before the date of commencing the
business of an export

[[Page 102]]

warehouseman, and thereafter every year on or before July 1. On
commencing business, the tax shall be computed from the first day of the
month in which liability is incurred, through the following June 30.
Thereafter, the tax shall be computed for the entire year (July 1
through June 30).
(b) Transition rule. For purposes of paragraph (a) of this section,
a proprietor engaged in the business of an export warehouseman on
January 1, 1988, shall be treated as having commenced business on that
date. The special tax imposed by this transition rule shall cover the
period January 1, 1988, through June 30, 1988, and shall be paid on or
before April 1, 1988.
(c) Each place of business taxable. An export warehouse proprietor
under this part incurs special tax liability at each place of business
in which an occupation subject to special tax is conducted. A place of
business means the entire office, plant or area of the business in any
one location under the same proprietorship. Passageways, streets,
highways, rail crossings, waterways, or partitions dividing the premises
are not sufficient separation to require additional special tax, if the
divisions of the premises are otherwise contiguous.

(26 U.S.C. 5143, 5731)

Sec. 44.32 Rate of special tax.

(a) General. Title 26 U.S.C. 5731(a)(3) imposes a special tax of
$1,000 per year on every export warehouse proprietor.
(b) Reduced rate for small proprietors. Title 26 U.S.C. 5731(b)
provides for a reduced rate of $500 per year with respect to any export
warehouse proprietor whose gross receipts (for the most recent taxable
year ending before the first day of the taxable period to which the
special tax imposed by Sec. 44.31 relates) are less than $500,000. The
``taxable year'' to be used for determining gross receipts is the
taxpayer's income tax year. All gross receipts of the taxpayer shall be
included, not just the gross receipts of the business subject to special
tax. Proprietors of new businesses that have not yet begun a taxable
year, as well as proprietors of existing businesses that have not yet
ended a taxable year, who commence a new activity subject to special
tax, qualify for the reduced special (occupational) tax rate, unless the
business is a member of a ``controlled group''; in that case, the rules
of paragraph (c) of this section shall apply.
(c) Controlled group. All persons treated as one taxpayer under 26
U.S.C. 5061(e)(3) shall be treated as one taxpayer for the purpose of
determining gross receipts under paragraph (b) of this section.
``Controlled group'' means a controlled group of corporations, as
defined in 26 U.S.C. 1563 and implementing regulations in 26 CFR 1.1563-
1 through 1.1563-4, except that the words ``at least 80 percent'' shall
be replaced by the words ``more than 50 percent'' in each place they
appear in subsection (a) of 26 U.S.C. 1563, as well as in the
implementing regulations. Also, the rules for a ``controlled group of
corporations'' apply in a similar fashion to groups which include
partnerships and/or sole proprietorships. If one entity maintains more
than 50% control over a group consisting of corporations and one, or
more, partnerships and/or sole proprietorships, all of the members of
the controlled group are one taxpayer for the purpose of this section.
(d) Short taxable year. Gross receipts for any taxable year of less
than 12 months shall be annualized by multiplying the gross receipts for
the short period by 12 and dividing the result by the number of months
in the short period as required by 26 U.S.C. 448(c)(3).
(e) Returns and allowances. Gross receipts for any taxable year
shall be reduced by returns and allowances made during such year under
26 U.S.C. 448(c)(3).

(26 U.S.C. 448, 5061, 5731)

Sec. 44.33 Special tax returns.

[[Page 103]]

(3) The employer identification number (see Sec. 44.34).
(4) The exact location of the place of business, by name and number
of building or street, or if these do not exist, by some description in
addition to the post office address. In the case of one return for two
or more locations, the address to be shown shall be the taxpayer's
principal place of business (or principal office, in the case of a
corporate taxpayer).
(5) The class(es) of special tax to which the taxpayer is subject.
(6) Ownership and control information: that is, the name, position,
and residence address of every owner of the business and of every person
having power to control its management and policies with respect to the
activity subject to special tax. ``Owner of the business'' shall include
every partner, if the taxpayer is a partnership, and every person owning
10% or more of its stock, if the taxpayer is a corporation. However, the
ownership and control information required by this paragraph need not be
stated if the same information has been previously provided to TTB in
connection with a permit application, and if the information previously
provided is still current.
(c) Multiple locations and/or classes of tax. A taxpayer subject to
special tax for the same period at more than one location or for more
than one class of tax shall--
(1) File one special tax return, TTB Form 5630.5, with payment of
tax, to cover all such locations and classes of tax; and
(2) Prepare, in duplicate, a list identified with the taxpayer's
name, address (as shown on TTB Form 5630.5), employer identification
number, and period covered by the return. The list shall show, by
States, the name, address, and tax class of each location for which
special tax is being paid. The original of the list shall be filed with
TTB in accordance with instructions on the return, and the copy shall be
retained at the taxpayer's principal place of business (or principal
office, in the case of a corporate taxpayer) for the period specified in
Sec. 44.142.
(d) Signing of TTB Forms 5630.5--(1) Ordinary returns. The return of
an individual proprietor shall be signed by the individual. The return
of a partnership shall be signed by a general partner. The return of a
corporation shall be signed by an officer. In each case, the person
signing the return shall designate his or her capacity as ``individual
owner,'' ``member of firm,'' or, in the case of a corporation, the title
of the officer.
(2) Fiduciaries. Receivers, trustees, assignees, executors,
administrators, and other legal representatives who continue the
business of a bankrupt, insolvent, deceased person, etc., shall indicate
the fiduciary capacity in which they act.
(3) Agent or attorney in fact. If a return is signed by an agent or
attorney in fact, the signature shall be preceded by the name of the
principal and followed by the title of the agent or attorney in fact. A
return signed by a person as agent will not be accepted unless there is
filed, with the TTB office with which the return is required to be
filed, a power of attorney authorizing the agent to perform the act.
(4) Perjury statement. TTB Forms 5630.5 shall contain or be verified
by a written declaration that the return has been executed under the
penalties of perjury.

(26 U.S.C. 6061, 6065, 6151, 7011)

Sec. 44.34 Employer identification number.

[[Page 104]]

for no later than 7 days after the filing of the taxpayer's first
special tax return. IRS Form SS-4 may be obtained from the director of
an IRS service center or from any IRS district director.
(c) Preparation and filing of IRS Form SS-4. The taxpayer shall
prepare and file IRS Form SS-4, together with any supplementary
statement, in accordance with the instructions on the form or issued in
respect to it.

(26 U.S.C. 6109)

[T.D. ATF-271, 53 FR 17563, May 17, 1988, as amended by T.D. ATF-301, 55
FR 47658, Nov. 14, 1990]

Sec. 44.35 Issuance, distribution, and examination of special tax stamps.

(a) Issuance of special tax stamps. Upon filing a properly executed
return on TTB Form 5630.5 together with the full remittance, the
taxpayer will be issued an appropriately designated special tax stamp.
If the return covers multiple locations, the taxpayer will be issued one
appropriately designated stamp for each location listed on the
attachment to TTB Form 5630.5 required by Sec. 44.33(c)(2), but
showing, as to name and address, only the name of the taxpayer and the
address of the taxpayer's principal place of business (or principal
office in the case of a corporate taxpayer).
(b) Distribution of special tax stamps for multiple locations. On
receipt of the special tax stamps, the taxpayer shall verify that there
is one stamp for each location listed on the attachment to TTB Form
5630.5. The taxpayer shall designate one stamp for each location and
type on each stamp the address of the business conducted at the location
for which that stamp is designated. The taxpayer shall then forward each
stamp to the place of business designated on the stamp.
(c) Examination of special tax stamps. All stamps denoting payment
of special tax shall be kept available for inspection by appropriate TTB
officers, at the location for which designated, during business hours.

(26 U.S.C. 5146, 6806)

Sec. 44.36 Changes in special tax stamps.

(a) Change in name. If there is a change in the corporate or firm
name, or in the trade name, as shown on TTB Form 5630.5, the export
warehouse proprietor shall file an amended special tax return as soon as
practicable after the change, covering the new corporate or firm name,
or trade names. No new special tax is required to be paid. The export
warehouse proprietor shall attach the special tax stamp for endorsement
of the change in name.
(b) Change in proprietorship--(1) General. If there is a change in
the proprietorship of an export warehouse, the successor shall pay a new
special tax and obtain the required special tax stamps.
(2) Exemption for certain successors. Persons having the right of
succession provided for in paragraph (c) of this section may carry on
the business for the remainder of the period for which the special tax
was paid, without paying a new special tax, if within 30 days after the
date on which the successor begins to carry on the business, the
successor files a special tax return on TTB Form 5630.5 with TTB, which
shows the basis of succession. A person who is a successor to a business
for which special tax has been paid and who fails to register the
succession is liable for special tax computed from the first day of the
calendar month in which he or she began to carry on the business.
(c) Persons having right of succession. Under the conditions
indicated in paragraph (b)(2) of this section, the right of succession
will pass to certain persons in the following cases:
(1) Death. The widowed spouse or child, or executor, administrator
or other legal representative of the taxpayer;
(2) Succession of spouse. A husband or wife succeeding to the
business of his or her spouse (living);
(3) Insolvency. A receiver or trustee in bankruptcy, or an assignee
for benefit of creditors;
(4) Withdrawal from firm. The partner or partners remaining after
death or withdrawal of a member.
(d) Change in location. If there is a change in location of a
taxable place of business, the export warehouse proprietor shall, within
30 days after the

[[Page 105]]

change, file with TTB an amended special tax return covering the new
location. The export warehouse proprietor shall attach the special tax
stamp or stamps, for endorsement of the change in location. No new
special tax is required to be paid. However, if the export warehouse
proprietor does not file the amended return within 30 days, he or she is
required to pay a new special tax and obtain a new special tax stamp.

(26 U.S.C. 5143, 7011)

Subpart C_General

Sec. 44.61 Removals, withdrawals, and shipments authorized.

(a) Tobacco products, and cigarette papers and tubes may be removed
from a factory or an export warehouse, and cigars may be withdrawn from
a customs warehouse, without payment of tax, for direct exportation or
for delivery for subsequent exportation, in accordance with the
provisions of this part.
(b) Tobacco products and cigarette papers and tubes are not eligible
for removal or transfer in bond under this part unless they bear the
marks, labels or notices required by this part.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. ATF-421, 64 FR 71925, Dec. 22, 1999]

Sec. 44.61a Deliveries to foreign-trade zones--export status.

Tobacco products, and cigarette papers and tubes may be removed from
a factory or an export warehouse and cigars may be withdrawn from a
customs warehouse, without payment of tax, for delivery to a foreign-
trade zone for exportation or storage pending exportation in accordance
with the provisions of this part. Such articles delivered to a foreign-
trade zone under this part shall be considered exported for the purpose
of the statutes and bonds under which removed and for the purposes of
the internal revenue laws generally and the regulations thereunder.
However, export status is not acquired until an application for
admission of the articles into the zone with zone restricted status has
been approved by the district director of customs pursuant to the
appropriate provisions of 19 CFR chapter I and the required certificate
of receipt of the articles in the zone has been made on Form 5200.14 as
prescribed in this part.

(48 Stat. 999, as amended, 72 Stat. 1418, as amended; 19 U.S.C. 81c; 26
U.S.C. 5704)

[T.D. 6961, 33 FR 9491, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28087, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71925, Dec. 22,
1999]

Sec. 44.62 Restrictions on deliveries of tobacco products, and cigarette

papers and tubes to vessels and aircraft, as supplies.

Tobacco products, and cigarette papers and tubes may be removed from
a factory or an export warehouse and cigars may be withdrawn from a
customs warehouse, without payment of tax, for delivery to vessels and
aircraft, as supplies, for consumption beyond the jurisdiction of the
internal revenue laws of the United States, subject to the applicable
provisions of this part. Deliveries may be made to vessels actually
engaged in foreign, intercoastal, or noncontiguous territory trade
(i.e., vessels operating on a regular schedule in trade or actually
transporting passengers and/or cargo (a) between a port in the United
States and a foreign port; (b) between the Atlantic and Pacific ports of
the United States; or (c) between a port on the mainland of the United
States and a port in Alaska, Hawaii, Puerto Rico, the Virgin Islands, or
a possession of the United States; between a port in Alaska and a port
in Hawaii; or between a port in Alaska or Hawaii and a port in Puerto
Rico, the Virgin Islands, or a possession of the United States); to
vessels clearing through customs for a port beyond the jurisdiction of
the internal revenue laws of the United States; to vessels of war or
other governmental activity; or to vessels of the United States
documented to engage in the fishing business (including the whaling
business), and foreign fishing (including whaling) vessels of 5 net tons
or over. Such deliveries to vessels shall be subject to lading under
customs supervision as provided in Sec. Sec. 44.207 and 44.263. As a
condition to the lading of the tobacco products, and cigarette papers
and tubes, the customs authorities at the

[[Page 106]]

port of lading may, if they deem it necessary in order to protect the
revenue, require assurances, satisfactory to them, from the master of
the receiving vessel that the quantities to be laden are reasonable,
considering the number of persons to be carried, the vessel's itinerary,
the duration of its intended voyage, etc., and that such articles are to
be used exclusively as supplies on the voyage. For this purpose, the
customs authorities may require the master of the receiving vessel to
submit for customs approval, prior to lading, customs documentation for
permission to lade the articles. Where the customs authorities allow
only a portion of a shipment to be laden, the remainder of the shipment
shall be returned to the bonded premises of the manufacturer, export
warehouse proprietor, or customs warehouse proprietor making the
shipment, or otherwise disposed of as approved by the appropriate TTB
officer. Deliveries may be made to aircraft clearing through customs en
route to a place or places beyond the jurisdiction of the internal
revenue laws of the United States, and to aircraft operating on a
regular schedule between U.S. customs areas as defined in the Air
Commerce Regulations (19 CFR part 122). Deliveries may not be made to a
vessel or aircraft stationed in the United States for an indefinite
period and where its schedule does not include operations outside such
jurisdiction.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 48, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71925, Dec. 22,
1999; T.D. ATF-480, 67 FR 30801, May 8, 2002]

Sec. 44.63 Restrictions on disposal of tobacco products, and cigarette

papers and tubes on vessels and aircraft.

Tobacco products, and cigarette papers and tubes delivered to a
vessel or aircraft, without payment of tax, pursuant to Sec. 44.62,
shall not be sold, offered for sale, or otherwise disposed of until the
vessel or aircraft is outside the jurisdiction of the internal revenue
laws of the United States, i.e., outside the 3-mile limit or
international boundary, as the case may be, of the United States. Where
the vessel or aircraft returns within the jurisdiction of the internal
revenue laws with such articles on board, the articles shall be subject
to treatment under the tariff laws of the United States.

(72 Stat. 1418, as amended; 26 U.S.C. 5704; 19 U.S.C. 1317)

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.64 Responsibility for delivery or exportation of tobacco products,

and cigarette papers and tubes.

Responsibility for compliance with the provisions of this part with
respect to the removal under bond of tobacco products, and cigarette
papers and tubes, without payment of tax, for export, and for the proper
delivery or exportation of such articles, and with respect to the
exportation of tobacco products, and cigarette papers and tubes with
benefit of drawback of tax, shall rest upon the manufacturer of such
articles or the proprietor of an export warehouse or customs warehouse
from whose premises such articles are removed for export, and upon the
exporter who exports tobacco products, and cigarette papers and tubes
with benefit of drawback of tax.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.65 Liability for tax on tobacco products, and cigarette papers and

tubes.

The manufacturer of tobacco products and cigarette papers and tubes
shall be liable for the taxes imposed thereon by 26 U.S.C. 5701:
Provided, That when tobacco products, and cigarette papers and tubes are
transferred, without payment of tax, pursuant to 26 U.S.C. 5704, between
the bonded premises of manufacturers and/or export warehouse
proprietors, the transferee shall become liable for the tax upon receipt
by him of such articles. Any person who possesses tobacco products, or
cigarette papers or tubes in violation

[[Page 107]]

of 26 U.S.C. 5751(a)(1) or (2), shall be liable for a tax equal to the
tax on such articles.

(72 Stat. 1417, 1424; 26 U.S.C. 5703, 5751)

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986]

Sec. 44.66 Relief from liability for tax.

A manufacturer of tobacco products or cigarette papers and tubes or
an export warehouse proprietor is relieved of the liability for tax on
tobacco products, or cigarette papers or tubes upon providing evidence
satisfactory to the appropriate TTB officer of exportation or proper
delivery. The evidence must comply with this part. Such evidence shall
be furnished within 90 days of the date of removal of the tobacco
products, or cigarette papers or tubes: Provided, That this period may
be extended for good cause shown.

(72 Stat. 1417; 26 U.S.C. 5703)

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986; T.D. ATF-480, 67 FR 30801, May 8, 2002]

Sec. 44.67 Payment of tax.

(a) General. The taxes on tobacco products, and cigarette papers and
tubes with respect to which the evidence described in Sec. 44.66 is not
timely furnished shall become immediately due and payable. The taxes
shall be paid to TTB, with sufficient information to identify the
taxpayer, the nature and purpose of the payment, and the articles
covered by the payment. (TTB Form 5000.24 may be used for this purpose.)
(b) Large cigars. The amount of tax liability on large cigars shall
be based on the maximum tax rate prescribed in Sec. 40.21 of this part,
unless the person liable for the tax establishes that a lower tax rate
is applicable.

(All recordkeeping requirements have been approved under OMB Control No.
1512-0180)

[T.D. ATF-80, 46 FR 18311, Mar. 24, 1981, as amended by T.D. ATF-232, 51
FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-251, 52 FR 19341, May 22, 1987; T.D. ATF-307, 55 FR 52745, Dec. 21,
1990; T.D. ATF-460, 66 FR 39093, July 27, 2001]

Sec. 44.68 [Reserved]

Sec. 44.69 Assessment.

Whenever any person required by law to pay tax on tobacco products,
and cigarette papers and tubes fails to pay such tax, the tax shall be
ascertained and assessed against such person, subject to the limitations
prescribed in 26 U.S.C. 6501. The tax so assessed shall be in addition
to the penalties imposed by law for failure to pay such tax when
required. Except in cases where delay may jeopardize collection of the
tax, or where the amount is nominal or the result of an evident
mathematical error, no such assessment shall be made until and after
notice has been afforded such person to show cause against assessment.
The person will be allowed 45 days from the date of such notice to show
cause, in writing, against such assessment.

(72 Stat. 1417; 26 U.S.C. 5703)

Sec. 44.70 Authority of appropriate TTB officers to enter premises.

Any appropriate TTB officer may enter in the daytime any premises
where tobacco products, or cigarette papers or tubes are produced or
kept, so far as it may be necessary for the purpose of examining such
articles. When such premises are open at night, any appropriate TTB
officer may enter them, while so open, in the performance of his
official duties. The owner of such premises, or person having the
superintendence of the same, who refuses to admit any appropriate TTB
officer or permit him to examine such articles

[[Page 108]]

shall be liable to the penalties prescribed by law for the offense.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.71 Interference with administration.

(68A Stat. 855; 26 U.S.C. 7212)

[25 FR 4716, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975]

Variations From Requirements

Sec. 44.72 Alternate methods or procedures.

A manufacturer of tobacco products, an export warehouse proprietor,
or a customs warehouse proprietor, on specific approval by the
appropriate TTB officer as provided in this section, may use an
alternate method or procedure in lieu of a method or procedure
specifically prescribed in this part. The appropriate TTB officer may
approve an alternate method or procedure, subject to stated conditions,
when he finds that--
(a) Good cause has been shown for the use of the alternate method or
procedure.
(b) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue, and
(c) The alternate method or procedure will not be contrary to any
provision of law, and will not result in an increase in cost to the
Government or hinder the effective administration of this part. No
alternate method or procedure relating to the giving of any bond or to
the assessment, payment, or collection of tax, shall be authorized under
this section. Where a manufacturer or proprietor desires to employ an
alternate method or procedure, he shall submit a written application to
the appropriate TTB officer. The application shall specifically describe
the proposed alternate method or procedure, and shall set forth the
reasons therefor. Alternate methods or procedures shall not be employed
until the application has been approved by the appropriate TTB officer.
The manufacturer or proprietor shall, during the period of authorization
of an alternate method or procedure, comply with the terms of the
approved application. Authorization for any alternate method or
procedure may be withdrawn whenever in the judgment of the appropriate
TTB officer the revenue is jeopardized or the effective administration
of this part is hindered. The manufacturer or proprietor shall retain,
as part of his records, any authorization of the appropriate TTB officer
under this section.

[T.D. 6871, 31 FR 49, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-480, 67 FR 30801, May 8, 2002]

Sec. 44.73 Emergency variations from requirements.

The appropriate TTB officer may approve methods of operation other
than as specified in this part, where he finds that an emergency exists
and the proposed variations from the specified requirements are
necessary, and the proposed variations--
(a) Will afford the security and protection to the revenue intended
by the prescribed specifications,
(b) Will not hinder the effective administration of this part, and
(c) Will not be contrary to any provision of law. Variations from
requirements granted under this section are conditioned on compliance
with the procedures, conditions, and limitations set forth in the
approval of the application. Failure to comply in good faith with such
procedures, conditions, and limitations shall automatically terminate
the authority for such variations

[[Page 109]]

and the manufacturer, export warehouse proprietor, or customs warehouse
proprietor, thereupon shall fully comply with the prescribed
requirements of regulations from which the variations were authorized.
Authority for any variations may be withdrawn whenever in the judgment
of the appropriate TTB officer the revenue is jeopardized or the
effective administration of this part is hindered by the continuation of
such variation. Where a manufacturer or proprietor desires to employ
such variation, he shall submit a written application to the appropriate
TTB officer. The application shall describe the proposed variations and
set forth the reasons therefor. Variations shall not be employed until
the application has been approved. The manufacturer or proprietor shall
retain, as part of his records, any authorization of the appropriate TTB
officer under this section.

[T.D. 6871, 31 FR 50, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-480, 67 FR 30801, May 8, 2002]

Subpart D_Qualification Requirements for Export Warehouse Proprietors

Source: 25 FR 4716, May 28, 1960, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

Sec. 44.81 Persons required to qualify.

Every person who intends to engage in business as an export
warehouse proprietor, as defined in this part, shall qualify as such in
accordance with the provisions of this part.

(72 Stat. 1421; 26 U.S.C. 5711, 5712, 5713)

Sec. 44.82 Application for permit.

Every person, before commencing business as an export warehouse
proprietor, must apply on TTB Form 2093 (5200.3) and obtain the permit
provided for in Sec. 44.93. All documents required under this part to
be furnished with such application shall be made a part thereof.

(72 Stat. 1421; 26 U.S.C. 5712)

[25 FR 4716, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30801, May 8, 2002]

Sec. 44.83 Corporate documents.

Every corporation, before commencing business as an export warehouse
proprietor, shall furnish with its application for permit required by
Sec. 44.82, a true copy of the corporate charter or a certificate of
corporate existence or incorporation, executed by the appropriate
officer of the State in which incorporated. The corporation shall also
furnish, in duplicate, evidence which will establish the authority of
the officer or other person who executes the application for permit to
execute the same; the authority of persons to sign other documents,
required by this part, for the corporation; and the identity of the
officers and directors, and each person who holds more than ten percent
of the stock of such corporation. Where a corporation has previously
filed such documents or evidence with the appropriate TTB officer, a
written statement by the corporation, in duplicate, to that effect will
be sufficient for the purpose of this section.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 44.84 Articles of partnership or association.

Every partnership or association, before commencing business as an
export warehouse proprietor, shall furnish with its application for
permit, required by Sec. 44.82 a true copy of the articles of
partnership or association, if any, or certificate of partnership or
association where required to be filed by any State, county, or
municipality. Where a partnership or association has previously filed
such documents with the appropriate TTB officer, a written statement by
the partnership or association, in duplicate, to that effect will be
sufficient for the purpose of this section.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 44.85 Trade name certificate.

Every person, before commencing business under a trade name as an
export warehouse proprietor, shall furnish with his application for
permit, required by Sec. 44.82, a true copy of the certificate or other
document, if any, issued by a State, county, or municipal

[[Page 110]]

authority in connection with the transaction of business under such
trade name. If no such certificate or other document is so required a
written statement, in duplicate, to that effect by such person will be
sufficient for the purpose of this section.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961, 33 FR 9491, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.86 Bond.

Every person, before commencing business as an export warehouse
proprietor, shall file, in connection with his application for permit, a
bond, Form 2103 (5220.5), in accordance with the applicable provisions
of Sec. 44.88 and subpart F, conditioned upon compliance with the
provisions of chapter 52, I.R.C., and regulations thereunder, including,
but not limited to, the timely payment of taxes imposed by such chapter
and penalties and interest in connection therewith for which he may
become liable to the United States.

(72 Stat. 1421; 26 U.S.C. 5711)

[25 FR 4716, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30801, May 8, 2002]

Sec. 44.87 Power of attorney.

If the application for permit or other qualifying documents are
signed by an attorney in fact for an individual, partnership,
association, company, or corporation, or by one of the partners for a
partnership, or by an officer of an association or company, or, in the
case of a corporation, by an officer or other person not authorized to
sign by the corporate documents described in Sec. 44.83, power of
attorney conferring authority upon the person signing the documents
shall be manifested on Form 5000.8 in accordance with its instructions.

[25 FR 4716, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.88 Description and diagram of premises.

The premises to be used by an export warehouse proprietor as his
warehouse shall be described, in the application for permit required by
Sec. 44.82, and bond required by Sec. 44.86, by number, street, and
city, town, or village, and State. Such premises may consist of more
than one building, which need not be contiguous: Provided, That such
premises are located in the same city, town, or village and each located
is described in the application for permit and the bond by number and
street. Where such premises consist of less than an entire building, a
diagram, in duplicate, shall also be furnished showing the particular
floor or floors, or room or rooms, comprising the warehouse.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 44.89 Separation of premises.

Where the export warehouse premises consist of less than an entire
building, the premises shall be completely separated from adjoining
portions of the building, which separation shall be constructed of
materials generally used in the construction of buildings and may
include any necessary doors or other openings.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 44.90 Restrictions relating to export warehouse premises.

Export warehouse premises shall be used exclusively for the storage
of tobacco products and cigarette papers and tubes, upon which the
internal revenue tax has not been paid, for subsequent removal under
this part: Provided, That smoking tobacco may also be stored in an
export warehouse.

[T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986]

Sec. 44.91 Additional information.

The appropriate TTB officer may require such additional information
as may be deemed necessary to determine whether the applicant is
entitled to a permit. The applicant shall, when required by the
appropriate TTB officer, furnish as a part of his application for permit
such additional information as may be necessary for the appropriate TTB
officer to determine whether the applicant is entitled to a permit.

[[Page 111]]

Sec. 44.92 Investigation of applicant.

The appropriate TTB officer shall promptly cause such inquiry or
investigation to be made, as he deems necessary, to verify the
information furnished in connection with an application for permit and
to ascertain whether the applicant is, by reason of his business
experience, financial standing, and trade connections, likely to
maintain operations in compliance with 26 U.S.C. chapter 52, and
regulations thereunder; whether such person has disclosed all material
information required or made any material false statement in the
application for such permit; and whether the premises on which it is
proposed to establish the export warehouse are adequate to protect the
revenue. If the appropriate TTB officer has reason to believe that the
applicant is not entitled to a permit, he shall promptly give the
applicant notice of the contemplated disapproval of his application and
opportunity for hearing thereon in accordance with part 71 of this
chapter, which part (including the provisions relating to the
recommended decision and to appeals) is made applicable to such
proceedings. If, after such notice and opportunity for hearing, the
appropriate TTB officer finds that the applicant is not entitled to a
permit, he shall, by order stating the findings on which his decision is
based, deny the permit.

(72 Stat. 1421; 26 U.S.C. 5712)

[25 FR 4716, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D. ATF-463,
66 FR 42734, Aug. 15, 2001]

Sec. 44.93 Issuance of permit.

After the application for permit, bond, and supporting documents, as
required under this part, has been approved, the appropriate TTB officer
will issue a permit to the export warehouse proprietor. The proprietor
must keep such permit at the export warehouse and make it available for
inspection by an appropriate TTB officer.

[T.D. ATF-480, 67 FR 30802, May 8, 2002]

Subpart E_Changes Subsequent to Original Qualification of Export
Warehouse Proprietors

Source: 25 FR 4717, May 28, 1960, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

Changes in Name

Sec. 44.101 Change in individual name.

Where there is a change in the name of an individual operating as an
export warehouse proprietor he shall, within 30 days of such change,
make application on Form 2098 (5200.16) for an amended permit.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961, 33 FR 9491, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.102 Change in trade name.

Where there is a change in, or an addition or discontinuance of, a
trade name used by an export warehouse proprietor in connection with
operations authorized by his permit, the proprietor shall, within 30
days of such change, addition, or discontinuance, make application on
Form 2098 (5200.16) for an amended permit to reflect such change. The
proprietor shall also furnish a true copy of any new trade name
certificate or document issued to him, or statement in lieu thereof,
required by Sec. 44.85.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961, 33 FR 9491, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.103 Change in corporate name.

Where there is a change in the name of a corporate export warehouse
proprietor the proprietor shall, within 30 days of such change, make
application on Form 2098 (5200.16) for an amended permit. The proprietor
shall also furnish such documents as may be necessary to establish that
the corporate name has been changed.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961, 33 FR 9491, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

[[Page 112]]

Changes in Ownership and Control

Sec. 44.104 Fiduciary successor.

If an administrator, executor, receiver, trustee, assignee, or other
fiduciary, is to take over the business of an export warehouse
proprietor, as a continuing operation, such fiduciary shall, before
commencing operations, make application for permit and file bond as
required by subpart D of this part, furnish certified copies, in
duplicate, of the order of the court, or other pertinent documents,
showing his appointment and qualification as such fiduciary, and make an
opening inventory, in accordance with the provisions of Sec. 44.144;
Provided, That where a diagram has been furnished by the predecessor, in
accordance with the provisions of Sec. 44.88, the successor may adopt
such diagram. However, where a fiduciary intends merely to liquidate the
business, qualification as an export warehouse proprietor will not be
required if he promptly files with the appropriate TTB officer a
statement to that effect, together with an extension of coverage of the
predecessor's bond, executed by the fiduciary, also by the surety on
such bond, in accordance with the provisions of Sec. 44.126.

(72 Stat. 1421, 1422; 26 U.S.C. 5711, 5712, 5721)

Sec. 44.105 Transfer of ownership.

If a transfer is to be made in ownership of the business of an
export warehouse proprietor (including a change in the identity of the
members of a partnership or association), such proprietor shall give
notice, in writing, to the appropriate TTB officer, naming the proposed
successor and the desired effective date of such transfer. The proposed
successor shall, before commencing operations, qualify as a proprietor,
in accordance with the applicable provisions of subpart D of this part:
Provided, That where a diagram has been furnished by the proprietor in
accordance with the provisions of Sec. 44.88, the proposed successor
may adopt such diagram. The proprietor shall give such notice of
transfer, and the proposed successor shall make application for permit
and file bond, as required, in ample time for examination and approval
thereof before the desired date of such change. The predecessor shall
make a closing inventory and closing report, in accordance with the
provisions of Sec. Sec. 44.146 and 44.151, respectively, and surrender,
with such inventory and report, his permit, and the successor shall make
an opening inventory, in accordance with the provisions of Sec. 44.144.

(72 Stat. 1421, 1422; 26 U.S.C. 5712, 5713, 5721, 5722)

Sec. 44.106 Change in officers or directors of a corporation.

Where there is any change in the officers or directors of a
corporation operating the business of an export warehouse proprietor,
the proprietor shall furnish to the appropriate TTB officer notice, in
writing, of the election of the new officers or directors within 30 days
after such election.

(72 Stat. 1421; 26 U.S.C. 5712)

Sec. 44.107 Change in stockholders of a corporation.

Where the issuance, sale, or transfer of the stock of a corporation,
operating as an export warehouse proprietor, results in a change in the
identity of the principal stockholders exercising actual or legal
control of the operations of the corporation, the corporate proprietor
shall, within 30 days after the change occurs, make application for a
new permit; otherwise, the present permit shall be automatically
terminated at the expiration of such 30-day period, and the proprietor
shall dispose of all cigars, cigarettes, and cigarette papers and tubes
on hand, in accordance with this part, make a closing inventory and
closing report, in accordance with the provisions of Sec. Sec. 44.146
and 44.151, respectively, and surrender his permit with such inventory
and report. If the application for a new permit is timely made, the
present permit shall continue in effect pending final action with
respect to such application.

(72 Stat. 1421, 1422; 26 U.S.C. 5712, 5713, 5721, 5722)

[T.D. 6871, 31 FR 50, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975]

[[Page 113]]

Changes in Location and Premises

Sec. 44.108 Change in location.

Whenever an export warehouse proprietor contemplates changing the
location of his warehouse, the proprietor shall, before commencing
operations at the new location, make an application, on Form 2098
(5200.16) for an amended permit. The application shall be supported by
an extension of coverage of the bond filed under this part, in
accordance with the provisions of Sec. 44.126.

(72 Stat. 1421; 26 U.S.C. 5711, 5712)

[25 FR 4717, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.109 Change in address.

Whenever any change occurs in the address, but not the location, of
the warehouse of an export warehouse proprietor, as a result of action
of local authorities, the proprietor shall, within 30 days of such
change, make application on Form 2098 (5200.16) for an amended permit.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961, 33 FR 9492, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.110 [Reserved]

Sec. 44.111 Change in export warehouse premises.

Where an export warehouse is to be changed to an extent which will
make inaccurate the description of the warehouse as set forth in the
last application by the proprietor for permit, or the diagram, if any,
furnished with such application, the proprietor shall first make
application on Form 2098 (5200.16) for, and obtain, an amended permit.
Such application shall describe the proposed change in the warehouse and
shall be accompanied by a new diagram if required under Sec. 44.88.

(72 Stat. 1421; 26 U.S.C. 5712)

[T.D. 6961 33 FR 9492, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.112 Emergency premises.

In cases of emergency, the appropriate TTB officer may authorize,
for a stated period, the temporary use of a place for the temporary
storage of tobacco products, and cigarette papers and tubes, without
making the application or furnishing the extension of coverage of bond
required under Sec. Sec. 44.111 and 44.126, or the temporary separation
of warehouse premises by means other than those specified in Sec.
44.89, where such action will not hinder the effective administration of
this part, is not contrary to law, and will not jeopardize the revenue.

[T.D. 6871, 31 FR 50, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Subpart F_Bonds and Extensions of Coverage of Bonds

Source: 25 FR 4718, May 28, 1960, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

Sec. 44.121 Corporate surety.

(a) Surety bonds required under the provisions of this part may be
given only with corporate sureties holding certificates of authority
from the Secretary of the Treasury as acceptable sureties on Federal
bonds. Limitations concerning corporate sureties are prescribed by the
Secretary in Treasury Department Circular No. 570, as revised (see
paragraph (c) of this section). The surety shall have no interest
whatever in the business covered by the bond.
(b) Each bond and each extension of coverage of bond shall at the
time of filing be accompanied by a power of attorney authorizing the
agent or officer who executed the bond to so act on behalf of the
surety. The appropriate TTB officer who is authorized to approve the
bond may, whenever he deems it necessary, require additional evidence of
the authority of the agent or officer to execute the bond or extension
of coverage of bond. The power of attorney shall be prepared on a form
provided by the surety company and executed under the corporate seal of
the company. If the power of attorney submitted is other than a manually
signed document, it shall be accompanied by a certificate of its
validity.
(c) Treasury Department Circular No. 570 (Companies Holding
Certificates of Authority as Acceptable Sureties on

[[Page 114]]

Federal Bonds and as Acceptable Reinsuring Companies) is published in
the Federal Register annually as of the first workday in July. As they
occur, interim revisions of the circular are published in the Federal
Register. Copies may be obtained from the Audit Staff, Bureau of
Government Financial Operations, Department of the Treasury, Washington,
DC 20226.

(July 30, 1947, ch. 390, 61 Stat. 648, as amended (6 U.S.C. 6, 7); sec.
202, Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C. 5711))

[T.D. ATF-92, 46 FR 46923, Sept. 23, 1981]

Sec. 44.122 Deposits of bonds, notes, or obligations in lieu of corporate surety.

Bonds or notes of the United States, or other obligations which are
unconditionally guaranteed as to both interest and principal by the
United States, may be pledged and deposited by the export warehouse
proprietor as security in connection with bond to cover his operations,
in lieu of the corporate surety, in accordance with the provisions of
Treasury Department Circular No. 154, revised (31 CFR part 225). Such
bonds or notes which are nontransferable, or the pledging of which will
not be recognized by the Treasury Department, are not acceptable as
security in lieu of corporate surety.

(72 Stat. 1421, 61 Stat. 650; 26 U.S.C. 5711, 6 U.S.C. 15)

Sec. 44.123 Amount of bond.

The amount of the bond filed by the export warehouse proprietor, as
required by Sec. 44.86, shall be not less than the estimated amount of
tax which may at any time constitute a charge against the bond:
Provided, That the amount of any such bond (or the total amount where
original and strengthening bonds are filed) shall not exceed $200,000
nor be less than $1,000. The charge against such bond shall be subject
to increase upon receipt of tobacco products, and cigarette papers and
tubes into the export warehouse and to decrease as satisfactory evidence
of exportation, or satisfactory evidence of such other disposition as
may be used as the lawful basis for crediting such bond, is received by
the appropriate TTB officer with respect to such articles transferred or
removed. When the limit of liability under a bond given in less than the
maximum amount has been reached, no additional shipments shall be
received into the warehouse until a strengthening or superseding bond is
filed, as required by Sec. 44.124 or Sec. 44.125.

(72 Stat. 1421, as amended; 26 U.S.C. 5711)

[T.D. 6871, 31 FR 50, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.124 Strengthening bond.

Where the appropriate TTB officer determines that the amount of the
bond, under which an export warehouse proprietor is currently carrying
on business, no longer adequately protects the revenue, and such bond is
in an amount of less than $200,000, the appropriate TTB officer may
require the proprietor to file a strengthening bond in an appropriate
amount with the same surety as that on the bond already in effect, in
lieu of a superseding bond to cover the full liability on the basis of
Sec. 44.123. The appropriate TTB officer shall refuse to approve any
strengthening bond where any notation is made thereon which is intended
or which may be construed as a release of any former bond, or as
limiting the amount of either bond to less than its full amount.

(72 Stat. 1421; 26 U.S.C. 5711)

[25 FR 4718, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002.

Sec. 44.125 Superseding bond.

An export warehouse proprietor shall file a new bond to supersede
his current bond, immediately when (a) the corporate surety on the
current bond becomes insolvent, (b) the appropriate TTB officer approves
a request from the surety on the current bond to terminate his liability
under the bond, (c) payment of any liability under a bond is made by the
surety thereon, or (d) the appropriate TTB officer considers such a
superseding bond necessary for the protection of the revenue.

(72 Stat. 1421; 26 U.S.C. 5711)

[[Page 115]]

Sec. 44.126 Extension of coverage of bond.

An extension of the coverage of any bond filed under this part shall
be manifested on Form 2105 (5000.7) by the export warehouse proprietor
and by the surety on the bond with the same formality and proof of
authority as required for the execution of the bond.

(72 Stat. 1421; 26 U.S.C. 5711)

[25 FR 4718, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002.

Sec. 44.127 Approval of bond and extension of coverage of bond.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 44.128 Termination of liability of surety under bond.

The liability of a surety on any bond required by this part shall be
terminated only as to operations on and after the effective date of a
superseding bond, or the date of approval of the discontinuance of
operations by the export warehouse proprietor, or otherwise in
accordance with the termination provisions of the bond. The surety shall
remain bound in respect of any liability for unpaid taxes, penalties,
and interest, not in excess of the amount of the bond, incurred by the
proprietor while the bond is in force.

(72 Stat. 1421; 26 U.S.C. 5711)

Sec. 44.129 Release of bonds, notes, and obligations.

(a) Bonds, notes, and other obligations of the United States,
pledged and deposited as security in connection with bonds required by
this part, shall be released only in accordance with the provisions of
Treasury Department Circular No. 154 (31 CFR Part 225--Acceptance of
Bonds, Notes or Other Obligations Issued or Guaranteed by the United
States as Security in Lieu of Surety or Sureties on Penal Bonds). When
the appropriate TTB officer is satisfied that it is no longer necessary
to hold such security, he shall fix the date or dates on which a part or
all of such security may be released. At any time prior to the release
of such security, the appropriate TTB officer may, for proper cause,
extend the date of release of such security for such additional length
of time as in his judgment may be appropriate.
(b) Treasury Department Circular No. 154 is periodically revised and
contains the provisions of 31 CFR part 225 and the forms prescribed in
31 CFR part 225. Copies of the circular may be obtained from the Audit
Staff, Bureau of Government Financial Operations, Department of the
Treasury, Washington, DC 20226.

(Sec. 202, Pub. L. 85-859, 72 Stat. 1421 (26 U.S.C. 5711); July 30,
1947, ch. 390, 61 Stat. 650 (6 U.S.C. 15))

[T.D. ATF-92, 46 FR 46923, Sept. 23, 1981; 46 FR 48644, Oct. 2, 1981]

Subpart G_Operations by Export Warehouse Proprietors

Source: 25 FR 4719, May 28, 1960, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

Sec. 44.141 Sign.

Every export warehouse proprietor shall place and keep, on the
outside of the building in which his warehouse is located, or at the
entrance of his warehouse, where it can be plainly seen, a sign, in
plain and legible letters, exhibiting the name under which he operates
and (a) the type of business (``Export Warehouse Proprietor'') or (b)
the number of the permit issued to the export warehouse proprietor under
this part.

Sec. 44.142 Records.

Every export warehouse proprietor must keep in such warehouse
complete and concise records, containing the:
(a) Number of containers;
(b) Unit type (e. g., cartons, cases);
(c) Kind of articles (e. g., small cigarettes);
(d) Name of manufacturer and brand; and,
(e) Quantity of tobacco products, cigarette papers and tubes
received, removed, transferred, destroyed, lost or

[[Page 116]]

returned to manufacturers or to customs warehouse proprietors. In
addition to such records, the export warehouse proprietor shall retain a
copy of each Form 5200.14 received from a manufacturer, another export
warehouse proprietor, or customs warehouse proprietor, from whom tobacco
products and cigarette papers and tubes are received and a copy of each
Form 5200.14 covering the tobacco products, and cigarette papers and
tubes removed from the warehouse. The entries for each day in the
records maintained or kept under this section shall be made by the close
of the business day following that on which the transactions occur. No
particular form of records is prescribed, but the information required
shall be readily ascertainable. The records and copies of Form 5200.14
shall be retained for 3 years following the close of the calendar year
in which the shipments were received or removed and shall be made
available for inspection by any appropriate TTB officer upon request.

(Approved by the Office of Management and Budget under control number
1512-0367)

(72 Stat. 1423, as amended; 26 U.S.C. 5741)

[T.D. ATF-421, 64 FR 71925, Dec. 22, 1999]

Inventories

Sec. 44.143 General.

(a) Every export warehouse proprietor shall at the times specified
in this subpart make a true and accurate inventory of products held on
TTB Form 5220.3 (3373).
(b) This inventory shall be subject to verification by an
appropriate TTB officer. A copy of each inventory shall be retained by
the export warehouse proprietor for 3 years following the close of the
calendar year in which the inventory is made and shall be made available
for inspection by any appropriate TTB officer upon request.

[T.D. ATF-289, 54 FR 48841, Nov. 27, 1989, as amended by T.D. ATF-421,
64 FR 71925, Dec. 22, 1999; T.D. ATF-424, 64 FR 71933, Dec. 22, 1999;
T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.144 Opening.

An opening inventory shall be made by the export warehouse
proprietor at the time of commencing business. The date of commencing
business under this part shall be the effective date indicated on the
permit issued under Sec. 44.93. A similar inventory shall be made by
the export warehouse proprietor when he files a superseding bond. The
date of such inventory shall be the effective date of such superseding
bond.

(72 Stat. 1422; 26 U.S.C. 5721)

[25 FR 4719, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.145 Special.

A special inventory shall be made by the export warehouse proprietor
whenever required by any appropriate TTB officer.

(72 Stat. 1422; 26 U.S.C. 5721)

Sec. 44.146 Closing.

A closing inventory shall be made by the export warehouse proprietor
when he transfers ownership or concludes business. Where the proprietor
transfers ownership the closing inventory shall be made as of the day
preceding the date of the opening inventory of the successor.

(72 Stat. 1422; 26 U.S.C. 5721)

[25 FR 4719, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30802, May 8, 2002]

Reports

Sec. 44.147 General.

Every export warehouse proprietor shall make a report on Form 5220.4
of all tobacco products, and cigarette papers and tubes on hand,
received, removed, transferred, and lost or destroyed. Such report shall
be made at the times specified in this subpart and shall be made whether
or not any operations or transactions occurred during the period covered
by the report. A copy of each report shall be retained by the export
warehouse proprietor at his warehouse for 3 years following the close of
the calendar year covered in

[[Page 117]]

such reports, and made available for inspection by any appropriate TTB
officer upon his request.

(72 Stat. 1422; 26 U.S.C. 5722)

[T.D. 6871, 31 FR 51, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR
43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71925, Dec. 22, 1999; T.D. ATF-
424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.148 Opening.

An opening report, covering the period from the date of the opening
inventory, or inventory made in connection with a superseding bond, to
the end of the month, shall be made on or before the 20th day following
the end of the month in which the business was commenced.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 44.149 Monthly.

A report for each full month shall be made on or before the 20th day
following the end of the month covered in the report.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 44.150 Special.

A special report, covering the unreported period to the day
preceding the date of any special inventory required by an appropriate
TTB officer, shall be made with such inventory. Another report, covering
the period from the date of such inventory to the end of the month,
shall be made on or before the 20th day following the end of the month
in which the inventory was made.

(72 Stat. 1422; 26 U.S.C. 5722)

Sec. 44.151 Closing.

A closing report, covering the period from the first of the month to
the date of the closing inventory, or the day preceding the date of an
inventory made in connection with a superseding bond, shall be made with
such inventory.

(72 Stat. 1422; 26 U.S.C. 5722)

Claims

Sec. 44.152 Claim for remission of tax liability.

Remission of the tax liability on tobacco products, and cigarette
papers and tubes may be extended to the export warehouse proprietor
liable for the tax where such articles in bond are lost (otherwise than
by theft) or destroyed, by fire, casualty, or act of God, while in the
possession or ownership of such proprietor. Where articles are so lost
or destroyed the proprietor shall report promptly such fact, and the
circumstances, to the appropriate TTB officer. If the proprietor wishes
to be relieved of the tax liability, the proprietor must prepare and
file a claim on TTB Form 5620.8. The nature, date, place, and extent of
the loss or destruction must be stated in such claim. The claim must be
accompanied by such evidence as is necessary to establish to the
satisfaction of the appropriate TTB officer that the claim is valid.
When the appropriate TTB officer has acted on the claim, such officer
will return a copy of TTB Form 5620.8 to the proprietor as notice of
such action. The proprietor must keep the copy of TTB Form 5620.8 for 3
years following the close of the calendar year in which the claim is
filed.

(72 Stat. 1419, as amended; 26 U.S.C. 5705)

[T.D. 6961, 33 FR 9492, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71925, Dec. 22,
1999; T.D. ATF-480, 67 FR 30802, May 8, 2002]

Sec. 44.153 Claim for abatement of assessment.

A claim for abatement of the unpaid portion of the assessment of any
tax on tobacco products, and cigarette papers and tubes, or any
liability in respect of such tax, alleged to be excessive in amount,
assessed after the expiration of the period of limitation applicable
thereto, or erroneously or illegally assessed, shall be filed on Form
5620.8. Such claim shall set forth the reasons relied upon for the
allowance of the claim and shall be supported by such evidence as is
necessary to establish to

[[Page 118]]

the satisfaction of the appropriate TTB officer that the claim is valid.

(68A Stat. 792; 26 U.S.C. 6404)

[T.D. 6871, 31 FR 51, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-251, 52 FR 19341, May 22,
1987; T.D. ATF-421, 64 FR 71925, Dec. 22, 1999; T.D. ATF-480, 67 FR
30802, May 8, 2002]

Sec. 44.154 Claim for refund of tax.

The taxes paid on tobacco products, and cigarette papers and tubes
may be refunded (without interest) to an export warehouse proprietor on
proof satisfactory to the appropriate TTB officer that the claimant
proprietor paid the tax on such articles which were after taxpayment
lost (otherwise than by theft) or destroyed, by fire, casualty, or act
of God, while in the possession or ownership of such export warehouse
proprietor, or withdrawn by him from the market. Any claim for refund
under this section shall be prepared on Form 5620.8, in duplicate, and
shall include a statement that the tax imposed by 26 U.S.C. 7652 or
chapter 52, was paid in respect to the articles covered by the claim,
and that the articles were lost, destroyed, or withdrawn from the market
within 6 months preceding the date the claim is filed. The claim must be
filed on TTB Form 5620.8 and supported by such evidence as is necessary
to establish to the satisfaction of the appropriate TTB officer that the
claim is valid. The duplicate of the claim shall be retained by the
export warehouse proprietor for 3 years following the close of the
calendar year in which the claim is filed. Where an export warehouse
proprietor has paid the tax on tobacco products, or cigarette papers or
tubes, he may file claim for refund of an overpayment of tax under
subpart A of part 46 of this chapter if, at the time the tax was paid,
these articles had been exported, destroyed, or otherwise disposed of in
such a manner that tax was not due and payable.

(68A Stat. 791, 72 Stat. 9, 1419, as amended; 26 U.S.C. 6402, 6423,
5705)

[T.D. 6961, 33 FR 9492, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28088, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986; T.D. ATF-251, 52 FR 19341, May 22, 1987; T.D. ATF-421, 64 FR
71925, Dec. 22, 1999; T.D. ATF-457, 66 FR 32220, June 14, 2001; T.D.
ATF-480, 67 FR 30802, May 8, 2002]

Subpart H_Suspension and Discontinuance of Operations

Sec. 44.161 Discontinuance of operations.

Every export warehouse proprietor who desires to discontinue
operations and close out his warehouse shall dispose of all cigars,
cigarettes, and cigarette papers and tubes on hand, in accordance with
this part, making a closing inventory and closing report, in accordance
with the provisions of Sec. Sec. 44.146 and 44.151, respectively, and
surrender, with such inventory and report, his permit to the appropriate
TTB officer as notice of such discontinuance, in order that the
appropriate TTB officer may terminate the liability of the surety on the
bond of the export warehouse proprietor.

(72 Stat. 1422; 26 U.S.C. 5721, 5722)

[T.D. 6871, 31 FR 51, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975]

Sec. 44.162 Suspension and revocation of permit.

Where the appropriate TTB officer has reason to believe that an
export warehouse proprietor has not in good faith complied with the
provisions of 26 U.S.C. chapter 52, and regulations thereunder, or with
any other provision of 26 U.S.C. with intent to defraud, or has violated
any condition of his permit, or has failed to disclose any material
information required or made any material false statement in the
application for permit, or has failed to maintain his premises, in such
manner as to protect the revenue, the appropriate TTB officer shall
issue an order, stating the facts charged, citing such export warehouse
proprietor to show cause why his permit should not be

[[Page 119]]

suspended or revoked after hearing thereon in accordance with part 71 of
this chapter, which part (including the provisions relating to appeals)
is made applicable to such proceedings. If the hearing examiner, or the
Administrator, on appeal, decides the permit should be suspended, for
such time as to him seems proper, or be revoked, the appropriate TTB
officer shall by order give effect to such decision.

(72 Stat. 1421; 26 U.S.C. 5713)

[25 FR 4720, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D. ATF-463,
66 FR 42734, Aug. 15, 2001]

Subpart I [Reserved]

Subpart J_Removal of Shipments of Tobacco Products and Cigarette Papers
and Tubes by Manufacturers and Export Warehouse Proprietors

Packaging Requirements

Sec. 44.181 Packages.

All tobacco products, and cigarette papers and tubes will, before
removal or transfer under this subpart, be put up by the manufacturer in
packages which shall bear the label or notice, tax classification, and
mark, as required by this subpart. For purposes of this subpart, the
package does not include the cellophane wrapping material.

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-421, 64 FR 71925, Dec. 22, 1999]

Sec. 44.182 Lottery features.

No certificate, coupon, or other device purporting to be or to
represent a ticket, chance, share, or an interest in, or dependent on,
the event of a lottery shall be contained in, attached to, or stamped,
marked, written, or printed on any package of tobacco products, or
cigarette papers or tubes.

(72 Stat. 1422; 26 U.S.C. 5723, 18 U.S.C. 1301)

[T.D. 6871, 31 FR 51, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.183 Indecent or immoral material.

No indecent or immoral picture, print, or representation shall be
contained in, attached to, or stamped, marked, written, or printed on
any package of tobacco products, or cigarette papers or tubes.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 51, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.184 Mark.

Every package of tobacco products shall, before removal from the
factory under this subpart, have adequately imprinted thereon, or on a
label securely affixed thereto, a mark as specified in this section. The
mark may consist of the name of the manufacturer removing the product
and the location (by city and State) of the factory from which the
products are to be so removed, or may consist of the permit number of
the factory from which the products are to be so removed. Any trade name
of the manufacturer approved as provided in Sec. 40.65 of this chapter
may be used in the mark as the name of the manufacturer.) As an
alternative, where tobacco products are both packaged and removed by the
same manufacturer, either at the same or different factories, the mark
may consist of the name of such manufacturer if the factory where
package is identified on or in the package by a means approved by the
appropriate TTB officer. Before using the alternative, the manufacturer
shall notify the appropriate TTB officer in writing of the name to be
used as the name of the manufacturer and the means to be used for
identifying the factory where

[[Page 120]]

packaged. If approved by him the appropriate TTB officer shall return
approved copies of the notice to the manufacturer. A copy of the
approved notice shall be retained as part of the factory records at each
of the factories operated by the manufacturer.

(72 Stat. 1422; 26 U.S.C. 5723)

Sec. 44.185 Label or notice.

Every package of tobacco products shall, before removal from the
factory under this subpart, have adequately imprinted thereon, or on a
label securely affixed thereto, the words ``Tax-exempt. For use outside
U.S.'' or the words ``U.S. Tax-exempt. For use outside U.S.'' except
where a stamp, sticker, or notice, required by a foreign country or a
possession of the United States, which identifies such country or
possession, is so imprinted or affixed.

(26 U.S.C. 5704, 5723)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-465, 66 FR 45618, Aug. 29,
2001]

Sec. 44.186 Tax classification for cigars.

Before removal from a factory under this subpart, every package of
cigars shall have adequately imprinted on it, or on a label securely
affixed to it--
(a) The designation ``cigars'';
(b) The quantity of cigars contained in the package; and
(c) For small cigars, the classification of the product for tax
purposes; (i.e., either ``small'' or ``little'').

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-80, 46 FR 18312, Mar. 24, 1981]

Sec. 44.187 Shipping containers.

Each shipping case, crate, or other container in which tobacco
products, or cigarette papers or tubes are to be shipped or removed,
under this part, shall bear a distinguishing number, such number to be
assigned by the manufacturer or export warehouse proprietor. Removals of
tobacco products, and cigarette papers and tubes from an export
warehouse shall be made, insofar as practicable, in the same containers
in which they were received from the factory.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Consignment of Shipment

Sec. 44.188 General.

Tobacco products, and cigarette papers and tubes transferred or
removed from a factory or an export warehouse, under this part, without
payment of tax, shall be consigned as required by this subpart.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.189 Transfers between factories and export warehouses.

Where tobacco products, and cigarette papers and tubes are
transferred, without payment of tax, from a factory to an export
warehouse or between export warehouses, such articles shall be consigned
to the export warehouse proprietor to whom such articles are to be
delivered.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.190 Return of shipment to a manufacturer or customs warehouse

proprietor.

Where tobacco products, and cigarette papers and tubes are returned
by an export warehouse proprietor to a manufacturer or where cigars are
so returned to a customs warehouse proprietor, such articles shall be
consigned to

[[Page 121]]

the manufacturer or customs warehouse proprietor to whom the shipment is
to be returned.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.191 To officers of the armed forces for subsequent exportation.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse for delivery to officers of the
armed forces of the United States in this country for subsequent
shipment to, and use by, the armed forces outside the United States, the
manufacturer or export warehouse proprietor shall consign such articles
to the receiving officer at the armed forces base or installation, in
this country, to which they are to be delivered.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.192 To vessels and aircraft for shipment to noncontiguous foreign

countries and possessions of the United States.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse, for direct delivery to a vessel
or aircraft for transportation to a noncontiguous foreign country,
Puerto Rico, the Virgin Islands, or a possession of the United States,
the manufacturer or export warehouse proprietor shall consign the
shipment directly to the vessel or aircraft, or to his agent at the port
for delivery to the vessel or aircraft.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.193 To a Federal department or agency.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28088, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.194 To district director of customs for shipment to contiguous

foreign countries.

Where tobacco products, or cigarette papers or tubes are removed
from a factory or an export warehouse for export to a contiguous foreign
country, the manufacturer or export warehouse proprietor shall consign
the shipment to the district director of customs at the border or other
port of exit.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6961, 33 FR 9492, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.195 To Government vessels and aircraft for consumption as supplies.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse for delivery to a vessel or
aircraft engaged in an activity for the Government of the United States
or a foreign

[[Page 122]]

government, for consumption as supplies beyond the jurisdiction of the
internal revenue laws of the United States, the manufacturer or export
warehouse proprietor shall consign the shipment to the proper officer on
board the vessel or aircraft to which the shipment is to be delivered.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 52, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.196 To district director of customs for consumption as supplies on

commercial vessels and aircraft.

Where tobacco products, or cigarette papers or tubes are removed
from a factory or an export warehouse for consumption as supplies beyond
the jurisdiction of the internal revenue laws of the United States, the
manufacturer or export warehouse proprietor shall consign the shipment
to the district director of customs at the port at which the shipment is
to be laden.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6961, 33 FR 9493, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.196a To a foreign-trade zone.

(48 Stat. 999, as amended, 72 Stat. 1418, as amended; 19 U.S.C. 81c, 26
U.S.C. 5704)

[T.D. 6871, 31 FR 53, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.197 For export by parcel post.

Tobacco products, and cigarette papers and tubes removed from a
factory or an export warehouse, for export by parcel post to a person in
a foreign country, Puerto Rico, the Virgin Islands, or a possession of
the United States, shall be addressed and consigned to such person when
the articles are deposited in the mails. Waiver of his right to withdraw
such articles from the mails shall be stamped or written on each
shipping container and be signed by the manufacturer or export warehouse
proprietor making the shipment.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 53, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Notice of Removal of Shipment

Sec. 44.198 Preparation.

For each shipment of tobacco products, and cigarette papers and
tubes transferred or removed from his factory, under bond and this part,
the manufacturer shall prepare a notice of removal, Form 5200.14, and
for each shipment of tobacco products, and cigarette papers and tubes
transferred or removed from his export warehouse, under bond and this
part, the export warehouse proprietor shall prepare a notice of removal,
Form 5200.14. Each such notice shall be given a serial number by the
manufacturer or export warehouse proprietor in a series beginning with
number 1, with respect to the first shipment removed from the factory or
export warehouse under this part and commencing again with number 1 on
January 1 of each year thereafter.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 53, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71925, Dec. 22,
1999]

Sec. 44.199 Disposition.

After actual removal from his factory or export warehouse of the
shipment described on the notice of removal, Form 5200.14, the
manufacturer or export warehouse proprietor shall, except where the
shipment is to be exported by parcel post, promptly forward one copy of
the notice of removal

[[Page 123]]

to the appropriate TTB officer. A copy of each such notice shall be
retained by the manufacturer or export warehouse proprietor as a part of
his records, for 3 years following the close of the calendar year in
which the shipment was removed and shall be made available for
inspection by any appropriate TTB officer upon his request. The
manufacturer or export warehouse proprietor shall dispose of the other
copies of each notice of removal as required by this subpart.

(72 Stat. 1418; 26 U.S.C. 5704)

[25 FR 4722, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975;
T.D. ATF-421, 64 FR 71926, Dec. 22, 1999; T.D. ATF-480, 67 FR 30802, May
8, 2002]

Sec. 44.200 Transfers between factories and export warehouses.

Where tobacco products, and cigarette papers and tubes are
transferred from a factory to an export warehouse or between export
warehouses, the manufacturer or export warehouse proprietor making the
shipment shall forward three copies of the notice of removal, Form
5200.14 to the export warehouse proprietor to whom the shipment is
consigned. Immediately upon receipt of the shipment at his warehouse,
the export warehouse proprietor shall properly execute the certificate
of receipt on each copy of the notice of removal, noting thereon any
discrepancy; return one copy to the manufacturer or export warehouse
proprietor making the shipment for filing with the appropriate TTB
officer; retain one copy at his warehouse as a part of his records; and
file the remaining copy with his report, required by Sec. 44.147.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.201 Return to manufacturer or customs warehouse proprietor.

Where tobacco products, and cigarette papers and tubes are removed
from an export warehouse for return to the factory, or cigars are
removed from such a warehouse for return to a customs warehouse, the
export warehouse proprietor making the shipment shall forward two copies
of the notice of removal, Form 5200.14, to the manufacturer or customs
warehouse proprietor to whom the shipment is consigned. Immediately upon
receipt of the shipment at his factory or warehouse, the manufacturer or
customs warehouse proprietor shall properly execute the certificate of
receipt on both copies of the notice of removal, noting thereon any
discrepancy, and return one copy to the export warehouse proprietor
making the shipment for filing with the appropriate TTB officer. The
other copy of the notice of removal shall be retained by the
manufacturer or customs warehouse proprietor, as a part of his records,
for 3 years following the close of the calendar year in which the
shipment was received and shall be made available for inspection by any
appropriate TTB officer upon his request.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.202 To officers of the armed forces for subsequent exportation.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse for delivery to officers of the
armed forces of the United States in this country for subsequent
shipment to, and use by, the armed forces outside the United States, the
manufacturer or export warehouse proprietor making the removal shall
forward a copy of the notice of removal, Form 5200.14, to the officer at
the base or installation authorized to receive the articles described on
the notice of removal. Upon execution by the armed forces receiving
officer of the certificate of receipt on the copy of the notice of
removal,

[[Page 124]]

he shall return such copy to the manufacturer or export warehouse
proprietor making the shipment for filing with the appropriate TTB
officer.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.203 To noncontiguous foreign countries and possessions of the United

States.

Where tobacco products, or cigarette papers or tubes are removed
from a factory or an export warehouse for direct delivery to a vessel or
aircraft for transportation to a noncontiguous foreign country, Puerto
Rico, the Virgin Islands, or a possession of the United States, the
manufacturer or export warehouse proprietor making the shipment shall
file two copies of the notice of removal, Form 5200.14, with the office
of the district director of customs at the port where the shipment is to
be laden. Such copies of the notice of removal should be filed with the
related shipper's export declaration, Commerce Form 7525-V. In the event
the copies of the notice of removal are not filed with the shipper's
export declaration, when the copies of the notice are filed with the
district director of customs they shall show all particulars necessary
to enable that officer to associate the notice with the related
shipper's export declaration and any other documents filed with his
office in connection with the shipment. After the vessel or aircraft on
which the shipment has been laden clears or departs from the port of
lading the customs authority shall execute the certificate of
exportation on both copies of the notice of removal, retain one copy for
his records, and deliver or transmit the other copy to the manufacturer
or export warehouse proprietor making the shipment for filing with the
appropriate TTB officer.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6961, 33 FR 9493, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71926, Dec. 22,
1999]

Sec. 44.204 To a Federal department or agency.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse and are destined for ultimate
delivery in a noncontiguous foreign country, Puerto Rico, the Virgin
Islands, or a possession of the United States, but the shipment is to be
delivered to a Federal department or agency, or to an authorized
dispatch agent, transportation officer, or port director of such a
department or agency for forwarding on to the place of destination of
the shipment, the manufacturer or export warehouse proprietor making the
shipment shall furnish a copy of the notice of removal, Form 5200.14, to
the Federal department or agency, or an officer thereof at the port,
receiving the shipment for ultimate transmittal to the place of
destination, in order that such department, agency, or officer can
properly execute the certificate of receipt on such notice to evidence
receipt of the shipment for transmittal to a place beyond the
jurisdiction of the internal revenue laws of the United States. After
completing such certificate, the Federal department, agency, or officer
shall return the copy of the notice of removal, so executed, to the
manufacturer or export warehouse proprietor making the shipment for
filing with the appropriate TTB officer.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.205 To contiguous foreign countries.

(a) Where tobacco products, or cigarette papers or tubes are removed
from a factory or an export warehouse for export to a contiguous foreign
country, the manufacturer or export warehouse proprietor making the
shipment shall--
(1) Furnish to the district director of Customs at the port of exit
two copies of the notice of removal, Form 5200.14, together with the
related shipper's export declaration, Commerce Form 7525-V (if
required); and,
(2) If copies of the notice of removal are not filed with the
shippers export

[[Page 125]]

declaration, or if a shipment is for the armed forces of the United
States in the contiguous foreign country and a shipper's export
declaration is not required, show all the information on the notice of
removal when it is filed so that the Customs officer is able to
associate the notice with the related shipper's export declaration (if
any) or other documents filed with Customs for the shipment.
(b) When a shipment has been cleared by Customs from the United
States, and when the Customs officer at the port of exit is satisfied
that the products have departed from the United States, he shall--
(1) Complete the certificate of exportation on both copies of the
notice of removal;
(2) Retain one copy of the notice of removal for his records; and,
(3) Return the other copy to the manufacturer or export warehouse
proprietor making the shipment for filing with the appropriate TTB
officer.
(c) The Customs officer may, when he considers it necessary to
establish that the merchandise was actually exported, require a landing
certificate before he completes the certificate of exportation specified
in paragraph (b)(1) of this section. If practical, the Customs officer
will give advance notice to the manufacturer or export warehouse
proprietor of the type of transactions for which a landing certificate
will be required. However, failure to notify the manufacturer or
proprietor in advance will not prevent the Customs officer from
requiring a landing certificate for specific exportations when he
considers it necessary to protect the revenue. In any case, the Customs
officer will advise the manufacturer or proprietor before departure of
the shipment from the United States as to those exports for which a
landing certificate will be required.
(d) The provisions of this section relating to landing certificates
also apply when a Form 5200.14 is not required for each transaction (for
example: When multiple exportations, individually documented by
commercial records, are consolidated on a single Form 5200.14 pursuant
to an approved alternate procedure under Sec. 44.72). The provisions
apply to each transaction, regardless of the manner in which it is
documented, unless specifically provided otherwise in the alternate
procedure.

(Sec. 202, Pub. L. 85-859, 72 Stat. 1418; (26 U.S.C. 5704); Sec. 622,
Act of June 17, 1930, 49 Stat. 759 (19 U.S.C. 1622))

[T.D. ATF-52, 43 FR 59287, Dec. 19, 1978, as amended by T.D. ATF-232, 51
FR 28089, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.206 To Government vessels and aircraft for consumption as supplies.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse for direct delivery to a vessel or
aircraft, engaged in an activity for the Government of the United States
or a foreign government, for consumption as supplies beyond the
jurisdiction of the internal revenue laws of the United States, the
manufacturer or export warehouse proprietor making the shipment shall
forward a copy of the notice of removal, Form 5200.14, to the officer of
the vessel or aircraft authorized to receive the shipment. Upon
execution by the receiving officer of the vessel or aircraft of the
certificate of receipt on the copy of the notice of removal, he shall
return such copy to the manufacturer or export warehouse proprietor
making the shipment for filing with the appropriate TTB officer.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 54, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71926, Dec. 22,
1999]

Sec. 44.207 To commercial vessels and aircraft for consumption as supplies.

Where tobacco products, or cigarette papers or tubes are removed
from a factory or an export warehouse for delivery to a vessel or
aircraft entitled to receive such articles for consumption as supplies
beyond the jurisdiction of the internal revenue laws of the United
States, the manufacturer or export warehouse proprietor making the
shipment shall file two copies of the notice of removal, Form 5200.14,
with the district director of customs at the port where the shipment is
to be laden in

[[Page 126]]

sufficient time to permit delivery of the two copies of the notice of
removal to the customs officer who will inspect the shipment and
supervise its lading. After inspection and lading of the shipment the
customs officer shall note on the copies of the notice of removal any
discrepancy between the shipment inspected and laden under his
supervision and that described on the notice of removal or any
limitation on the quantity to be laden; complete and sign the
certificate of inspection and lading; and return both copies of the
notice of removal to the district director of customs. The district
director of customs shall execute the certificate of clearance on both
copies of the notice of removal, retain one copy for his records, and
forward the other copy to the manufacturer or export warehouse
proprietor making the shipment for filing with the appropriate TTB
officer. Where the vessel or aircraft does not clear from the port at
which the shipment is laden, the customs officer supervising the lading
of the shipment shall require the person on board the vessel or aircraft
authorized to receive the shipment to execute the certificate of receipt
on both copies of the notice of removal to indicate the trade or
activity in which the vessel or aircraft is engaged.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.207a To a foreign-trade zone.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse for delivery to a foreign-trade
zone, under zone restricted status for the purpose of exportation or
storage, the manufacturer or export warehouse proprietor making the
shipment shall forward two copies of the notice of removal, Form
5200.14, to the customs officer in charge of the zone. Upon receipt of
the shipment, the customs officer shall execute the certificate of
receipt on each copy of the form, noting thereon any discrepancy, retain
one copy for his records, and forward the other copy to the manufacturer
or export warehouse proprietor making the shipment for filing with the
appropriate TTB officer.

(48 Stat. 999, as amended, 72 Stat. 1418, as amended; 19 U.S.C. 81c, 26
U.S.C. 5704)

Sec. 44.208 For export by parcel post.

Where tobacco products, and cigarette papers and tubes are removed
from a factory or an export warehouse, for export by parcel post, the
manufacturer or export warehouse proprietor shall present one copy of
the notice of removal, Form 5200.14, together with the shipping
containers, to the postal authorities with the request that the
postmaster or his agent execute the certificate of mailing on the form.
Where the manufacturer or export warehouse proprietor so desires, he may
cover under one notice of removal all the merchandise removed under this
part for export by parcel post which is delivered at one time to the
postal service for that purpose. The manufacturer or export warehouse
proprietor shall immediately file the receipted copy of the notice of
removal with the appropriate TTB officer.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Miscellaneous Provisions

Sec. 44.209 Diversion of shipment to another consignee.

If, after removal of a shipment from a factory or an export
warehouse, the manufacturer or export warehouse proprietor desires to
divert the shipment to another consignee, he shall so notify the
appropriate TTB officer. The manufacturer or export warehouse proprietor
shall describe the shipment, set forth the serial number and date of the
notice of removal under which the shipment was removed from his factory
or export warehouse, and furnish the name and address of the new
consignee,

[[Page 127]]

who shall comply with all applicable provisions of this part.

(72 Stat. 1418; 26 U.S.C. 5704)

[25 FR 4723, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975]

Sec. 44.210 Return of shipment to factory or export warehouse.

A manufacturer or export warehouse proprietor may return to his
factory or export warehouse, without internal revenue supervision when
so authorized by the appropriate TTB officer, tobacco products, and
cigarette papers and tubes previously removed therefrom, under this
part, but not yet exported. The manufacturer or export warehouse
proprietor shall, prior to returning the articles to his factory or
export warehouse, make application to the appropriate TTB officer for
permission so to do, which application shall be accompanied by two
copies of the notice of removal, Form 5200.14, under which the articles
were originally removed. If less than the entire shipment is intended to
be returned to the factory or export warehouse, the application shall
set forth accurately the articles to be returned and shall show what
disposition was made of the remainder of the original shipment and any
other facts pertinent to such shipment. Where the appropriate TTB
officer approves the application, he shall so indicate by endorsement to
that effect on each of the copies of the notice of removal, set forth
the articles for which return is approved, and return both copies of the
notice of removal to the manufacturer or export warehouse proprietor
concerned. Upon receipt of the copies of the notice of removal bearing
the endorsement of the appropriate TTB officer, the manufacturer or
export warehouse proprietor shall return the articles to his factory or
export warehouse, properly modify and execute the certificate of receipt
on each copy of the notice of removal, return one such copy to the
appropriate TTB officer, and retain the other copy as a part of his
records.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

Sec. 44.211 [Reserved]

Sec. 44.212 Delay in lading at port of exportation.

If, on arrival of tobacco products, and cigarette papers and tubes
at the port of exportation, the vessel or aircraft for which they are
intended is not prepared to receive the articles, they may be properly
stored at the port for not more than 30 days. In the event of any
further delay, the facts shall be reported by the manufacturer or export
warehouse proprietor to the appropriate TTB officer and unless such
officer approves an extension of time in which to effect lading and
clearance of the shipment it must be returned to the factory or export
warehouse.

[T.D. 6871, 31 FR 55, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1987; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-480, 67 FR 30802, May 8,
2002]

Sec. 44.213 Destruction of tobacco products, and cigarette papers and tubes.

Where an export warehouse proprietor desires to destroy any of the
tobacco products, or cigarette papers or tubes stored in his warehouse,
he shall notify the appropriate TTB officer of the kind and quantity of
such articles to be destroyed and the date on which he desires the
destruction to take place in order that the appropriate TTB officer may
assign an appropriate TTB officer to inspect the articles and supervise
their destruction. The export warehouse proprietor shall prepare a
notice of removal, Form 5200.14, describing the articles to be
destroyed. After witnessing the destruction of the articles, the
appropriate TTB officer shall certify to their destruction on two copies
of the notice of removal and return them to the export warehouse
proprietor, who shall retain one copy

[[Page 128]]

for his records and file the other copy with the appropriate TTB
officer.

[T.D. 6871, 31 FR 55, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-421, 64 FR 71926, Dec. 22,
1999]

Subpart K_Drawback of Tax

Sec. 44.221 Application of drawback of tax.

Allowance of drawback of tax shall apply only to tobacco products,
and cigarette papers and tubes, on which tax has been paid, when such
articles are shipped to a foreign country, Puerto Rico, the Virgin
Islands, or a possession of the United States. Such drawback shall be
allowed only to the person who paid the tax on such articles and who
files claim and otherwise complies with the provisions of this subpart.

(72 Stat. 1419, 68A Stat. 908; 26 U.S.C. 5706, 7653)

[T.D. 6871, 31 FR 55, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.222 Claim.

Claim for allowance of drawback of tax, under this subpart, must be
filed on Form 5620.7. Such claim must be filed in sufficient time to
permit the appropriate TTB officer to detail an appropriate TTB officer
to inspect the articles and supervise the affixture of a label or notice
bearing the legend ``For Export With Drawback of Tax.'' Upon receipt of
a claim supported by satisfactory bond, as required by this subpart, an
appropriate TTB officer will proceed to the place where the articles
involved are held and there perform the functions required in Sec.
44.224.

[T.D. ATF-480, 67 FR 30803, May 8, 2002]

Sec. 44.223 Drawback bond.

Each claim for allowance of drawback of tax, under this subpart,
shall be accompanied by a bond, Form 2148 (5200.17), satisfactory to the
appropriate TTB officer with whom the claim is filed. Such bond shall be
in an amount not less than the amount of tax for which drawback is
claimed, conditioned that the claimant shall furnish, within a
reasonable time, evidence satisfactory to the appropriate TTB officer
that the tobacco products, and cigarette papers and tubes have been
landed at some port beyond the jurisdiction of the internal revenue laws
of the United States, or that after clearance from the United States,
the articles were lost (otherwise than by theft) or destroyed, by fire,
casualty, or act of God, and have not been relanded within the limits of
the United States. The provisions of Sec. Sec. 44.121 and 44.122 are
applicable with respect to any drawback bond required under this
section.

(72 Stat. 1419; 26 U.S.C. 5706)

Sec. 44.224 Inspection by an appropriate TTB officer.

(a) Examination. An appropriate TTB officer will examine the tobacco
products, and cigarette papers and tubes listed on TTB Form 5620.7. Such
officer will verify the accuracy of the schedule of such articles on TTB
Form 5620.7.
(b) Label or notice. If the tax on such articles has been paid by
return, the appropriate TTB officer must be satisfied that the articles
have in fact been taxpaid and each package bears the label or notice
required by Sec. 44.222.
(c) Shipping containers. The appropriate officer will supervise the
packing of such articles in shipping containers. Each container must be
numbered and have affixed to it the notice:

Drawback of tax claimed on contents.
Sale, consumption, or use in U.S. prohibited.

(d) Disposition of TTB Form 5620.7. After the appropriate TTB
officer completes the report of inspection on TTB Form 5620.7, such
officer will return two copies to the claimant and send a copy to the
TTB office listed on the form.
(e) Release. After executing the report of inspection on TTB Form
5620.7, the appropriate TTB office will release the

[[Page 129]]

shipment to the claimant for delivery to the port of exportation.

[T.D. ATF-480, 67 FR 30803, May 8, 2002]

Sec. 44.225 Delivery of tobacco products, or cigarette papers or tubes for

export other than by parcel post.

The claimant, upon release of the tobacco products, or cigarette
papers or tubes by the appropriate TTB officer for exportation with
benefit of drawback of tax under this subpart, shall be responsible for
delivery of such articles to the port of exportation for customs
inspection, supervision of lading, and clearance of the articles. The
claimant shall file with the district director of customs at the port of
exportation the two copies of Form 5620.7 returned to the claimant by
the appropriate TTB officer in accordance with Sec. 44.224. Such copies
shall be filed in sufficient time prior to lading to permit customs
inspection and supervision of lading of the tobacco products, or
cigarette papers or tubes.

(72 Stat. 1419; 26 U.S.C. 5706)

Sec. 44.226 Delivery of tobacco products, and cigarette papers and tubes for

export by parcel post.

Where the tobacco products, and cigarette papers and tubes are to be
shipped by parcel post to a destination in a foreign country, Puerto
Rico, the Virgin Islands, or a possession of the United States, a waiver
of his right to withdraw such articles from the mails shall be stamped
or written on each shipping container and be signed by the claimant,
after which the claimant shall present the shipment to the post office.
The claimant shall request the postmaster or his agent to execute the
certificate of mailing on the copy of the claim, Form 5620.7, returned
to the claimant by the appropriate TTB officer in accordance with Sec.
44.224. When so executed by the postal authorities, the Form 5620.7
shall be transmitted at once to the appropriate TTB officer with whom
the form was previously filed.

(72 Stat. 1419; 26 U.S.C. 5706)

Sec. 44.227 Customs procedure.

The customs officer shall satisfy himself that the tobacco products,
and cigarette papers and tubes described on the Form 5620.7 and those
inspected by him are the same and shall note on the form any
discrepancy. After having inspected the articles and supervised the
lading thereof on the export carrier, the customs officer shall complete
and sign the certificate of inspection and lading on both copies of Form
5620.7 and deliver or transmit such copies to the office of his district
director of customs for further processing. After clearance from the
port of the export carrier on which the articles are laden, the district
director of customs shall execute the certificate of exportation on both
copies of Form 5620.7. The district director of customs shall retain one
copy of the form for his records and transmit the other copy to the
appropriate TTB officer.

(72 Stat. 1419; 26 U.S.C. 5706)

Sec. 44.228 Landing certificate.

Each claimant for drawback under this subpart agrees in the bond
filed by him that he will furnish, within a reasonable time, evidence
satisfactory to the appropriate TTB officer that the tobacco products,
and cigarette papers and tubes covered by his claim have been landed at
some port beyond the jurisdiction of the internal revenue laws of the
United States, or that after shipment from the United States the
articles were lost, and have not been relanded within the limits of the
United States. The landing certificate shall accurately describe the
articles involved, so as to readily identify the

[[Page 130]]

drawback claim to which it relates. The landing certificate shall be
signed by a revenue officer at the place of destination, unless it is
shown that no such officer can furnish such landing certificate, in
which case the certificate of landing shall be signed by the consignee,
or by the vessel's agent at the place of landing, and shall be sworn to
before a notary public or other officer authorized to administer oaths
and having an official seal. The landing certificate shall be filed with
the appropriate TTB officer, with whom the drawback claim was filed,
within 6 months from the date of clearance of the tobacco products, and
cigarette papers and tubes from the United States. A landing certificate
prepared in a foreign language shall be accompanied by an accurate
translation thereof in English.

(72 Stat. 1419; 26 U.S.C. 5706)

[T.D. 6871, 31 FR 56, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.229 Collateral evidence as to landing.

In case of inability to furnish the prescribed evidence of landing,
application for relief shall be promptly made by the claimant to the
appropriate TTB officer. Such application shall set forth the facts
connected with the alleged exportation, and indicate the date of
shipment, the kind, quantity, and value of tobacco products and
cigarette papers and tubes shipped, the name of the consignee, the name
of the vessel, the port or place of destination to which the shipment
was made, and the date and amount of the bond covering such shipment.
The application shall also state in what particular the provisions of
this subpart, respecting the proofs of landing, have not been complied
with, and the cause of failure to furnish such proofs; that such failure
was not occasioned by any lack of diligence on the part of the claimant,
or that of his agents; and that he is unable to furnish any other or
better evidence than that furnished with his application. Each such
application shall be supported by the best collateral evidence the
claimant may be able to submit. The evidence may consist of the original
or verified copies of letters from the consignee advising the claimant
of the arrival or sale of the tobacco products, and cigarette papers and
tubes, with such other statements respecting the failure to furnish the
prescribed evidence of landing as may be obtained from the consignee or
other persons having knowledge thereof. Such letters and other documents
in a foreign language shall be accompanied by accurate translations
thereof in English, and, when the letters fail to identify sufficiently
the tobacco products, and cigarette papers and tubes, the original sales
account must be produced.

(72 Stat. 1419; 26 U.S.C. 5706)

[T.D. 6871, 31 FR 56, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-480, 67 FR 30803, May 8,
2002]

Sec. 44.230 Proof of loss.

When the claimant is unable to procure a certificate of landing, in
accordance with the provisions of Sec. 44.228, in consequence of loss
of the tobacco products, and cigarette papers and tubes, his application
for relief shall set forth the extent of the loss and, if possible, the
location and manner of shipwreck or other casualty and the time of its
occurrence. When obtainable, affidavits of the vessel's owners should be
furnished detailing the manner and extent of the loss and the time and
location of the disaster. If the tobacco products, and cigarette papers
and tubes were insured, the claimant shall furnish certificates by
officers of the insurance companies that the insurance has been paid,
and that, to the best of their knowledge and belief, the tobacco
products, and cigarette papers and tubes were actually destroyed. The
aforesaid proof shall be furnished to the appropriate TTB officer within
6 months from the date of clearance of

[[Page 131]]

the tobacco products, and cigarette papers and tubes from the United
States.

(72 Stat. 1419; 26 U.S.C. 5706)

[T.D. 6871, 31 FR 56, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 44.231 Extension of time.

In case the claimant, from causes beyond his control, is unable to
furnish the landing certificate or proof of loss, within the time
prescribed therefor, he may make an application to the appropriate TTB
officer for an extension of time in which to do so. Such application
must state specifically the cause of failure to furnish the evidence.
Two extensions of three months each may be granted by the appropriate
TTB officer, provided the surety on the drawback bond of the claimant
assents in writing thereto.

(72 Stat. 1419; 26 U.S.C. 5706)

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975]

Sec. 44.232 Allowance of claim.

On receipt of the executed Form 5620.7 from the district director of
customs, the appropriate TTB officer will allow or disallow the claim in
accordance with existing law and regulations. If the claim is not
allowed in full the appropriate TTB officer will notify the claimant, in
writing, of the reasons for any disallowance.

(72 Stat. 1419; 26 U.S.C. 5706)

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-424, 64 FR 71933, Dec. 22, 1999]

Subpart L_Withdrawal of Cigars From Customs Warehouses

Source: 25 FR 4725, May 28, 1960, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

Sec. 44.241 Shipment restricted.

Cigars produced in a customs warehouse in accordance with customs
laws and regulations may be withdrawn under this subpart, without
payment of tax, for export or for delivery for subsequent exportation.
Duties paid on the tobacco used in the manufacture of such cigars may
not be recovered on the exportation of the cigars under this subpart.

Sec. 44.242 Responsibility for tax on cigars.

A customs warehouse proprietor who withdraws cigars for export under
his bond, without payment of tax, in accordance with the provisions of
this part, shall be responsible for payment of such tax until he is
relieved of such responsibility by furnishing the appropriate TTB
officer evidence satisfactory to the appropriate TTB officer of
exportation or proper delivery, as required by this subpart, or
satisfactory evidence of such other disposition as may be used as the
lawful basis for such relief. Such evidence shall be furnished within 90
days of the date of withdrawal of the cigars: Provided, That this period
may be extended for good cause shown.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-480, 67 FR 30803, May 8, 2002]

Bonds

Sec. 44.243 Bond required.

Where the customs warehouse proprietor desires to withdraw cigars
from his warehouse, without payment of tax, under this subpart, he
shall, prior to making the first withdrawal, file a bond, Form 2104
(5200.15), conditioned upon compliance with the provisions of 26 U.S.C.
chapter 52, and regulations thereunder, including, but not limited to,
the timely payment of taxes imposed by such chapter, for which he may be
responsible to the United States, and penalties and interest in
connection therewith. The provisions of Sec. Sec. 44.121 and 44.122 are
applicable to the bond required under this section.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D. ATF-460,
66 FR 39093, July 27, 2001; T.D. ATF-480, 67 FR 30803, May 8, 2002]

Sec. 44.244 Amount of bond.

The amount of the bond filed by the customs warehouse proprietor, as
required by Sec. 44.243, shall be not less than the estimated amount of
tax which

[[Page 132]]

may at any time constitute a charge against the bond: Provided, That the
amount of any such bond (or the total amount where original and
strengthening bonds are filed) shall not exceed $25,000 nor be less than
$1,000. The charges against such bond shall be subject to increase as
withdrawals are made and decrease as required evidence of exportation is
received by the appropriate TTB officer with respect to cigars
withdrawn. When the limit of liability under a bond given in less than
the maximum amount has been reached, further withdrawals shall not be
made thereunder until a strengthening or superseding bond is filed as
required by Sec. 44.245 or Sec. 44.246.

Sec. 44.245 Strengthening bond.

Where the appropriate TTB officer determines that the amount of the
bond, under which the customs warehouse proprietor is withdrawing cigars
for shipment under this subpart, no longer adequately protects the
revenue, and such bond is in an amount of less than $25,000, the
appropriate TTB officer may require the proprietor to file a
strengthening bond in an appropriate amount with the same surety as that
on the bond already in effect, in lieu of a superseding bond to cover
the full liability on the basis of Sec. 44.244. The appropriate TTB
officer shall refuse to approve any strengthening bond where any
notation is made thereon which is intended or which may be construed as
a release of any former bond, or as limiting the amount of either bond
to less than its full amount.

Sec. 44.246 Superseding bond.

The customs warehouse proprietor shall file a new bond to supersede
his current bond, immediately when (a) the corporate surety on the
current bond becomes insolvent, (b) the appropriate TTB officer approves
a request from the surety on the current bond to terminate his liability
under the bond, (c) payment of any liability under a bond is made by the
surety thereon, or (d) the appropriate TTB officer considers such a
superseding bond necessary for the protection of the revenue.

Sec. 44.247 Termination of liability of surety under bond.

The liability of a surety on any bond required by this subpart shall
be terminated only as to operations on and after the effective date of a
superseding bond, or the date of approval of the customs warehouse
proprietor's request for termination, or otherwise, in accordance with
the termination provisions of the bond. The surety shall remain bound in
respect of any liability for unpaid taxes, penalties, and interest, not
in excess of the amount of the bond, incurred by the proprietor while
the bond is in force.

Packaging Requirements

Sec. 44.248 Packages.

Cigars shall, before withdrawal under this part, be put up by the
customs warehouse proprietor in packages which shall bear the label or
notice, tax classification, and mark, as required by this subpart.

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-40, 42 FR 5009, Jan. 26, 1977]

Sec. 44.249 Lottery features.

(72 Stat. 1422; 26 U.S.C. 5723; 18 U.S.C. 1301)

Sec. 44.250 Indecent or immoral material.

No indecent or immoral picture, print, or representation shall be
contained in, attached to, or stamped, marked, written, or printed on
any package of cigars withdrawn under this subpart.

(72 Stat. 1422; 26 U.S.C. 5723)

Sec. 44.251 Mark.

Every package of cigars shall, before withdrawal from the customs
warehouse under this subpart, have adequately imprinted thereon, or on a
label securely affixed thereto, the

[[Page 133]]

name and location of the manufacturer. There shall also be adequately
stated on each such package the number of cigars contained in the
package.

(72 Stat. 1422; 26 U.S.C. 5723)

Sec. 44.252 Label or notice.

Every package of cigars shall, before withdrawal from the customs
warehouse under this subpart, have adequately imprinted thereon, or on a
label securely affixed the words ``Tax-exempt. For use outside U.S.'' or
the words ``U.S. Tax-exempt. For use outside U.S.'', except where a
stamp, sticker, or notice, required by a foreign country or a possession
of the United States, which identifies such country or possession, is so
imprinted or affixed.

(72 Stat. 1422; 26 U.S.C. 5723)

Sec. 44.253 Tax classification for cigars.

Before withdrawal of cigars from a customs warehouse under this
subpart, every package of cigars shall have adequately imprinted on it,
or on a label securely affixed to it--
(a) The designation ``cigars'';
(b) The quantity of cigars contained in the package; and
(c) For small cigars, the classification of the product for tax
purposes (i.e., either ``small'' or ``little'').

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-80, 46 FR 18312, Mar. 24, 1981]

Sec. 44.254 Shipping containers.

Each shipping case, crate, or other container, in which cigars are
to be withdrawn, under this subpart, shall bear a distinguishing number,
such number to be assigned by the customs warehouse proprietor.

Consignment of Shipment

Sec. 44.255 Consignment of cigars.

Cigars withdrawn from a customs warehouse, without payment of tax,
under internal revenue bond and this part, shall be consigned in the
same manner as provided by subpart J of this part with respect to the
removal of tobacco products, and cigarette papers and tubes from a
factory or an export warehouse.

[T.D. 6871, 31 FR 56, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28089, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Notice of Removal of Shipment

Sec. 44.256 Preparation.

For each shipment to be withdrawn under this subpart, the customs
warehouse proprietor shall prepare a notice of removal, Form 5200.14.
Each such notice shall be given a serial number by the proprietor in a
series beginning with number 1, with respect to the first shipment
withdrawn under this subpart and commencing again with number 1 on
January 1 of each year thereafter.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.257 Disposition.

After actual withdrawal from his warehouse of the shipment described
on the notice of removal, Form 5200.14, the customs warehouse proprietor
shall, except where the shipment is to be exported by parcel post,
promptly forward one copy of the notice of removal to the appropriate
TTB officer. A copy of each such notice shall be retained by the customs
warehouse proprietor as a part of his records, for 3 years following the
close of the calendar year in which the shipment was withdrawn, and
shall be made available for inspection by any appropriate TTB officer
upon his request. The proprietor shall dispose of the other copies of
each notice of removal as required by this subpart.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999; T.D. ATF-480, 67
FR 30803, May 8, 2002]

Sec. 44.258 To officers of the armed forces for subsequent exportation.

Where cigars are withdrawn from a customs warehouse for delivery to
officers of the armed forces of the United States in this country for
subsequent shipment to, and use by, the armed forces outside the United
States, the customs warehouse proprietor making

[[Page 134]]

the shipment shall forward a copy of the notice of removal, Form
5200.14, to the officer at the base or installation authorized to
receive the cigars described on the notice of removal. Upon execution by
the armed forces receiving officer of the certificate of receipt on the
copy of the notice of removal, he shall return such copy to the customs
warehouse proprietor making the shipment for filing with the appropriate
TTB officer.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.259 To noncontiguous foreign countries and possessions of the United States.

Where cigars are withdrawn from a customs warehouse for direct
delivery to a vessel or aircraft for transportation to a noncontiguous
foreign country, Puerto Rico, the Virgin Islands, or a possession of the
United States, the customs warehouse proprietor making the withdrawal
shall file two copies of the notice of removal, Form 5200.14, with the
office of the district director of customs at the port where the
shipment is to be laden. Such copies of the notice of removal should be
filed with the related shipper's export declaration, Commerce Form 7525-
V. In the event the copies of the notice of removal are not filed with
the shipper's export declaration, when the copies of the notice are
filed with the district director of customs they shall show all
particulars necessary to enable that officer to associate the notice
with the related shipper's export declaration and any other documents
filed with his office in connection with the shipment. After the vessel
or aircraft on which the shipment has been laden clears or departs from
the port of lading the customs authority shall execute the certificate
of exportation on both copies of the notice of removal, retain one copy
for his records, and deliver or transmit the other copy to the customs
warehouse proprietor making the shipment for filing with the appropriate
TTB officer.

[T.D. 6961, 33 FR 9494, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.260 To a Federal department or agency.

Where cigars are withdrawn from a customs warehouse and are destined
for ultimate delivery in a noncontiguous foreign country, Puerto Rico,
the Virgin Islands, or a possession of the United States, but the
shipment is to be delivered to a Federal department or agency, or to an
authorized dispatch agent, transportation officer, or port director of
such a department or agency for forwarding on to the place of
destination of the shipment, the customs warehouse proprietor making the
shipment shall furnish a copy of the notice of removal, Form 5200.14, to
the Federal department or agency, or an officer thereof at the port,
receiving the shipment for ultimate transmittal to the place of
destination, in order that such department, agency, or officer, can
properly execute the certificate of receipt on such notice to evidence
receipt of the shipment for transmittal to a place beyond the
jurisdiction of the internal revenue laws of the United States. After
completing such certificate, the Federal department, agency, or officer,
shall return the copy of the notice of removal, so executed, to the
customs warehouse proprietor making the shipment for filing with the
appropriate TTB officer.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.261 To contiguous foreign countries.

Where cigars are withdrawn from a customs warehouse for export to a
contiguous foreign country, the customs warehouse proprietor making the
shipment shall furnish to the district director of customs at the border
or other port of exit two copies of the notice of removal, Form 5200.14,
together with the related shipper's export declaration, Commerce Form
7525-V. In the event the copies of the notice of removal are not filed
with the shipper's export declaration or, in the case of a shipment for
the armed forces of the United States in the contiguous foreign country
where no shipper's export declaration is required, the copies of the

[[Page 135]]

notice when filed with the district director of customs shall show all
particulars necessary to enable that officer to associate the notice
with the related shipper's export declaration, if any, and any other
documents filed with his office in connection with the shipment. After
the shipment has been cleared by customs from the United States, the
customs authority at the port of exit shall complete the certificate of
exportation on both copies of the notice of removal, retain one copy for
his records, and transmit the other copy to the customs warehouse
proprietor making the shipment for filing with the appropriate TTB
officer.

[T.D. 6961, 33 FR 9494, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.262 To Government vessels and aircraft for consumption as supplies.

Where cigars are withdrawn from a customs warehouse for direct
delivery to a vessel or aircraft, engaged in an activity for the
Government of the United States or a foreign government, for consumption
as supplies beyond the jurisdiction of the internal revenue laws of the
United States, the customs warehouse proprietor making the shipment
shall forward a copy of the notice of removal, Form 5200.14, to the
officer of the vessel or aircraft authorized to receive the shipment.
Upon execution by the receiving officer of the vessel or aircraft of the
certificate of receipt on the copy of the notice of removal, he shall
return such copy to the customs warehouse proprietor making the shipment
for filing with the appropriate TTB officer.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.263 To commercial vessels and aircraft for consumption as supplies.

Where cigars are withdrawn from a customs warehouse for delivery to
a vessel or aircraft entitled to receive such articles for consumption
as supplies beyond the jurisdiction of the internal revenue laws of the
United States, the customs warehouse proprietor making shipment shall
file two copies of the notice of removal, Form 5200.14, with the
district director of customs at the port where the shipment is to be
laden in sufficient time to permit delivery of the two copies of the
notice of removal to the customs officer who will inspect the shipment
and supervise its lading. After inspection and lading of the shipment
the customs officer shall note on the copies of the notice of removal
any discrepancy between the shipment inspected and laden under his
supervision and that described on the notice of removal or any
limitation on the quantity to be laden; complete and sign the
certificate of inspection and lading; and return both copies of the
notice of removal to the district director of customs. The district
director of customs shall execute the certificate of clearance on both
copies of the notice of removal, retain one copy for his records, and
forward the other copy to the customs warehouse proprietor making the
shipment for filing with the appropriate TTB officer. Where the vessel
or aircraft does not clear from the port at which the shipment is laden,
the customs officer supervising the lading of the shipment shall require
the person on board the vessel or aircraft authorized to receive the
shipment to execute the certificate of receipt on both copies of the
notice of removal to indicate the trade or activity in which the vessel
or aircraft is engaged.

[T.D. 6961, 33 FR 9494, June 28, 1968. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.264 To export warehouses.

Where cigars are withdrawn from a customs warehouse for delivery to
an export warehouse, the proprietor of the customs warehouse shall
forward to the proprietor of the export warehouse three copies of the
notice of removal, Form 5200.14, covering the shipment, for execution
and disposition in accordance with procedure similar to that set forth
in Sec. 44.200 in connection with a shipment of tobacco products, and
cigarette papers and tubes from a factory to an export warehouse. The
executed copy of the notice of removal, Form

[[Page 136]]

5200.14, returned to the customs warehouse proprietor by the export
warehouse proprietor shall be filed with the appropriate TTB officer.

[T.D. ATF-48, 44 FR 55856, Sept. 28, 1979, as amended by T.D. ATF-232,
51 FR 28089, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1, 1986; T.D.
ATF-421, 64 FR 71926, Dec. 22, 1999; T.D. ATF-480, 67 FR 30803, May 8,
2002]

Sec. 44.264a To a foreign-trade zone.

Where cigars are withdrawn from a customs warehouse for delivery to
a foreign-trade zone, under zone restricted status for the purpose of
exportation or storage, the customs warehouse proprietor making the
shipment shall forward two copies of the notice of removal, Form
5200.14, to the customs officer in charge of the zone. Upon receipt of
the shipment, the customs officer shall execute the certificate of
receipt on each copy of the form, noting thereon any discrepancy, retain
one copy for his records, and forward the other copy to the customs
warehouse proprietor making the shipment for filing with the appropriate
TTB officer.

[T.D. 6564, 26 FR 4362, May 19, 1961. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Sec. 44.265 For export by parcel post.

Where cigars are withdrawn from a customs warehouse for export by
parcel post, the customs warehouse proprietor shall present one copy of
the notice of removal, Form 5200.14, together with the shipping
containers, to the postal authorities with the request that the
postmaster or his agent execute the certificate of mailing on the form.
Where a customs warehouse proprietor so desires, he may cover under one
notice of removal all the cigars removed under this part for export by
parcel post which are delivered at one time to the postal service for
that purpose. The customs warehouse proprietor shall immediately file
the receipted copy of the notice of removal with the appropriate TTB
officer.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

Return of Shipment

Sec. 44.266 Return of cigars from export warehouses.

Where cigars are returned to a customs warehouse from an export
warehouse, the officer in charge of the customs warehouse shall execute
the certificate of receipt on each of the copies of the related Form
5200.14 received from the export warehouse proprietor, after checking
the containers to determine whether all the cigars described on the
notice have been received. Thereafter, both copies of the Form 5200.14
shall be turned over to the proprietor of the customs warehouse who
shall return one copy to the export warehouse proprietor for disposition
as provided in Sec. 44.201. The customs warehouse proprietor shall
retain the other copy of the notice of removal, as a part of his
records, for 3 years following the close of the calendar year in which
the shipment was received. Such copy shall be made available for
inspection by any appropriate TTB officer upon his request.

[T.D. ATF-48, 44 FR 55856, Sept. 28, 1979, as amended by T.D. ATF-421,
64 FR 71926, Dec. 22, 1999]

Sec. 44.267 Return of cigars from other sources.

A customs warehouse proprietor may return to his warehouse cigars
previously withdrawn therefrom, under this subpart, provided he promptly
files with the appropriate TTB officer a copy of the Form 5200.14 under
which the cigars were originally withdrawn, with the certificate of
receipt properly modified and executed by the customs officer in charge
of the warehouse to show return of the shipment. If less than the entire
shipment is returned to the warehouse, the form shall state what
disposition was made of the remainder of the original shipment and any
other facts pertinent to such shipment. The customs warehouse proprietor
shall retain a copy of such form as a part of his records for 3 years
after the close of the calendar year in which the shipment was returned.
Such copy shall be made available for inspection

[[Page 137]]

by any appropriate TTB officer upon request.

[25 FR 4725, May 28, 1960. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-421, 64 FR 71926, Dec. 22, 1999]

PART 45_REMOVAL OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES, WITHOUT

PAYMENT OF TAX, FOR USE OF THE UNITED STATES--Table of Contents

Subpart A_Scope of Regulations

Sec.
45.1 Removal of tobacco products, and cigarette papers and tubes,
without payment of tax, for use of the United States.

Subpart B_Definitions

45.11 Meaning of terms.

Subpart C_Administrative Provisions

45.21 Alternate methods or procedures.
45.22 Emergency variations from requirements.
45.23 Authority of appropriate ATF officerAppropriate TTB officers to
enter premises.
45.24 Interference with administration.
45.25 Unlawful purchase, receipt, possession, or sale of tobacco
products, or cigarette papers or tubes, after removal.
45.26 Delegations of the Administrator.
45.27 Forms prescribed.

Subpart D_Removals

45.31 Restrictions.
45.32 Under manufacturer's bond.
45.33 Return of shipment to factory.
45.34 Loss or shortage in shipment.
45.35 Liability for tax.
45.36 Payment of tax.
45.37 Assessment.

Subpart E_Packaging Requirements

45.41 Packages.
45.42 Mark.
45.43 Notice for smokeless tobacco.
45.44 Notice for cigars.
45.45 Notice for cigarettes.
45.45a Notice for pipe tobacco.
45.45b Notice for roll-your-own tobacco.
45.45c Package use-up rule.
45.46 Tax-exempt label.

Subpart F_Records

45.51 Supporting records.

Authority: 26 U.S.C. 5703, 5704, 5705, 5723, 5741, 5751, 5762, 5763,
6313, 7212, 7342, 7606, 7805, 44 U.S.C. 3504(h).

Source: Redesignated by T.D. ATF-469, 66 FR 56758, Nov. 13, 2001.

Editorial Note: Nomenclature changes to part 45 appear by T.D. ATF-
460, 66 FR 39093, July 27, 2001.

Subpart A_Scope of Regulations

Sec. 45.1 Removal of tobacco products, and cigarette papers and tubes,

without payment of tax, for use of the United States.

This part contains the regulations relating to the removal of
tobacco products, and cigarette papers and tubes, without payment of
tax, for use of the United States.

[T.D. 6871, 31 FR 57, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Subpart B_Definitions

Sec. 45.11 Meaning of terms.

[[Page 138]]

Charge of the United States. A patient in a hospital or similar
institution, or a Federal prisoner, if the hospital, institution, or
prison is operated by a Federal agency and the support or care of such
person results in a charge on, or an expense to, the United States
Government.
Chewing tobacco. Any leaf tobacco that is not intended to be smoked.
Cigar. Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco which is a
cigarette within the meaning of paragraph (2) of the definition for
cigarette).
Cigarette. (1) Any roll of tobacco wrapped in paper or in any
substance not containing tobacco, and
(2) Any roll of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (1) of
this definition.
Cigarette paper. Paper, or any other material except tobacco,
prepared for use as a cigarette wrapper.
Cigarette tube. Cigarette paper made into a hollow cylinder for use
in making cigarettes.
District directorAdministrator. A district directorAdministrator of
internal revenue.
Factory. The premises of a manufacturer of tobacco products or
cigarette papers and tubes in which he carries on such business.
Federal agency. A department or agency of the United States
Government, including the American National Red Cross, and the U.S.
Soldiers Home, Washington, D.C.
Large cigarettes. Cigarettes weighing more than three pounds per
thousand.
Large cigars. Cigars weighing more than three pounds per thousand.
Manufacturer of cigarette papers and tubes. Any person who
manufactures cigarette paper, or makes up cigarette paper into tubes,
except for his own personal use or consumption.
Manufacturer of tobacco products. Any person who manufactures
cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own
tobacco but does not include:
(1) A person who produces tobacco products solely for that person's
own consumption or use; or
(2) A proprietor of a Customs bonded manufacturing warehouse with
respect to the operation of such warehouse.
Package. The container in which tobacco products or cigarette papers
or tubes are put up by the manufacturer and offered for sale or delivery
to the consumer.
Person. An individual, partnership, association, company,
corporation, estate, or trust.
Pipe tobacco. 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 to be smoked in a pipe.
Removal or remove. The removal of tobacco products or cigarette
papers or tubes from the factory.
Roll-your-own tobacco. 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.
Sale price. The price for which large cigars are sold by the
manufacturer or importer, determined in accordance with Sec. Sec. 40.22
or 41.39 and used in computation of the tax.
Small cigarettes. Cigarettes weighing not more than three pounds per
thousand.
Small cigars. Cigars weighing not more than three pounds per
thousand.
Smokeless tobacco. Any chewing tobacco or snuff.
Snuff. Any finely cut, ground, or powdered tobacco that is not
intended to be smoked.
This chapter. Chapter I, title 26, Code of Federal Regulations.
Tobacco products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
United States. When used in a geographical sense shall include only
the States and the District of Columbia.

[[Page 139]]

U.S.C. The United States Code.

[T.D. ATF-48, 43 FR 13557, Mar. 31, 1978; 44 FR 55856, Sept. 28, 1979,
as amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D. ATF-243, 51
FR 43194, Dec. 1, 1986; T.D. ATF-289, 54 FR 48842, Nov. 27, 1989; T.D.
ATF-424, 64 FR 71933, Dec. 22, 1999; T.D. ATF-420, 64 FR 71945, Dec. 22,
1999; T.D. ATF-467, 66 FR 49532, Sept. 28, 2001; T.D. ATF-472, 67 FR
8880, Feb. 27, 2002; T.D. TTB-16, 69 FR 52423, Aug. 26, 2004; T.D. TTB-
44, 71 FR 16954, Apr. 4, 2006]

Subpart C_Administrative Provisions

Sec. 45.21 Alternate methods or procedures.

A manufacturer, on specific approval by the appropriate TTB officer
as provided in this section, may use an alternate method or procedure in
lieu of a method or procedure specifically prescribed in this part. The
appropriate TTB officer may approve an alternate method or procedure,
subject to stated conditions, when he finds that:
(a) Good cause has been shown for the use of the alternate method or
procedure.
(b) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue, and
(c) The alternate method or procedure will not be contrary to any
provision of law, and will not result in an increase in cost to the
Government or hinder the effective administration of this part.

No alternate method or procedure relating to the giving of any bond or
to the assessment, payment, or collection of tax, shall be authorized
under this section. Where a manufacturer desires to employ an alternate
method or procedure, the manufacturer must submit a written application
to the appropriate TTB officer. The application shall specifically
describe the proposed alternate method or procedure, and shall set forth
the reasons therefor. Alternate methods or procedures shall not be
employed until the application has been approved by the appropriate TTB
officer. The manufacturer shall, during the period of authorization of
an alternate method or procedure, comply with the terms of the approved
application. Authorization for any alternate method or procedure may be
withdrawn whenever in the judgment of the appropriate TTB officer the
revenue is jeopardized or the effective administration of this part is
hindered. The manufacturer shall retain, as part of his records, any
authorization of the appropriate TTB officer under this section for
three years following the close of the calendar year in which the
operation under such authorization is concluded.

[Redesignated by T.D. ATF-469, 66 FR 56758, Nov. 13, 2001, as amended by
T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 45.22 Emergency variations from requirements.

Variations from requirements granted under this section are conditioned
on compliance with the procedures, conditions, and limitations set forth
in the approval of the application. Failure to comply in good faith with
such procedures, conditions, and limitations shall automatically
terminate the authority for such variations and the manufacturer
thereupon shall fully comply with the prescribed requirements of
regulations from which the variations were authorized. Authority for any
variations may be withdrawn whenever in the judgment of the appropriate
TTB officer the revenue is jeopardized or the effective administration
of this part is hindered by the continuation of such variation. Where a
manufacturer desires to employ such variation, the manufacturer must
submit a written application to the appropriate TTB officer. The
application shall describe the proposed variations and set forth the
reasons therefor. Variations shall

[[Page 140]]

not be employed until the application has been approved. The
manufacturer shall retain, as part of his records, any authorization of
the appropriate TTB officer under this section for three years following
the close of the calendar year in which the operation under such
authorization is concluded.

[27 FR 4476, May 10, 1962. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 45.23 Authority of appropriate TTB officers to enter premises.

Any appropriate TTB officer may enter in the daytime any premises
where tobacco products, or cigarette papers or tubes removed under this
part are kept, so far as it may be necessary for the purpose of
examining such articles. When such premises are open at night, any
appropriate TTB officer may enter them, while so open, in the
performance of his official duties. The owner of such premises, or
person having the superintendence of the same, who refuses to admit any
appropriate TTB officer or permit him to examine the articles removed
under this part shall be liable to the penalties prescribed by law for
the offense.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 57, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-472, 67 FR 8880, Feb. 27,
2002]

Sec. 45.24 Interference with administration.

(68A Stat. 855; 26 U.S.C. 7212)

[27 FR 4476, May 10, 1962. Redesignated at 40 FR 16835, Apr. 15, 1975,
as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 45.25 Unlawful purchase, receipt, possession, or sale of tobacco

products, or cigarette papers or tubes, after removal.

Any person who, with intent to defraud the United States, purchases,
receives, possesses, offers for sale, or sells or otherwise disposes of
tobacco products, or cigarette papers or tubes which, after removal
under this part, without payment of tax, have been diverted from the
purpose or use specified in this part, shall be subject to the criminal
penalties and provisions for forfeiture prescribed by law.

(72 Stat. 1424, 1425, as amended, 1426; 26 U.S.C. 5751, 5762, 5763)

[T.D. 6871, 31 FR 57, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 45.26 Delegations of the Administrator.

The regulatory authorities of the Administrator contained in this
part are delegated to appropriate TTB officers. These TTB officers are
specified in TTB Order 1135.45, Delegation of the Administrator's
Authorities in 27 CFR Part 45, Removal of Tobacco Products and Cigarette
Papers and Tubes, Without Payment of Tax, for Use of the United States.
You may obtain a copy of this order by accessing the TTB Web site
(http://www.ttb.gov) or by mailing a request to the Alcohol and Tobacco
Tax and Trade Bureau, National Revenue Center, 550 Main Street, Room
1516, Cincinnati, OH 45202.

[T.D. TTB-44, 71 FR 16955, Apr. 4, 2006]

Sec. 45.27 Forms prescribed.

(a) The appropriate TTB officer is authorized to prescribe all forms
required by this part. You must furnish all of the information required
by each form as indicated by the headings on the form and the
instructions for the form, and as required by this part. You must file
each form in accordance with its instructions.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National

[[Page 141]]

Revenue Center, 550 Main Street, Room 1516, Cincinnati, OH 45202.

[T.D. ATF-472, 67 FR 8880, Feb. 27, 2002, as amended by T.D. TTB-44, 71
FR 16955, Apr. 4, 2006]

Subpart D_Removals

Source: T.D. 6871, 31 FR 57, Jan. 14, 1966. Redesignated at 40 FR
16835, Apr. 15, 1975.

Sec. 45.31 Removals for delivery to a Federal agency.

(a) Removal of articles. A manufacturer may remove tobacco products
or cigarette papers and tubes without payment of tax, in accordance with
this part, for delivery to a Federal agency if:
(1) The removed articles were purchased by the Federal agency with
funds appropriated by the Congress of the United States and are for
gratuitous distribution under the supervision of the Federal agency;
(2) The removed articles were purchased by a donor from the
manufacturer, or donated directly by the manufacturer, for gratuitous
distribution under the supervision of the Federal agency to:
(i) Charges of the United States; or
(ii) Patients in a hospital or institution operated by the
Government of a State or the District of Columbia where the Federal
agency maintains a program for distribution to members or veterans of
the armed forces of the United States in the hospital or institution; or
(3) The removed articles are intended for use by the Federal agency
in an investigation or other Federal law enforcement activity.
(b) Sale prohibited. Except in the case of articles described in
paragraph (a)(3) of this section where a sale is incident to the Federal
law enforcement activity, tobacco products and cigarette papers and
tubes removed under this section may not be sold after their removal.

[T.D. TTB-26, 70 FR 19890, Apr. 15, 2005]

Sec. 45.32 Under manufacturer's bond.

Removals of tobacco products, and cigarette papers and tubes under
this part shall be made under the bond filed by the manufacturer of such
articles to cover the operations of his factory as required by section
5711, I.R.C., and regulations issued thereunder.

(72 Stat. 1418, as amended, 1421, as amended; 26 U.S.C. 5704, 5711)

[T.D. 6871, 31 FR 57, as amended by T.D. ATF-243, 51 FR 28090, Aug. 5,
1986; 51 FR 43194, Dec. 1, 1986]

Sec. 45.33 Return of shipment to factory.

Tobacco products, and cigarette papers and tubes which have been
removed, under this part, may be returned to the factory without
internal revenue supervision.

(72 Stat. 1418, as amended; 26 U.S.C. 5704)

[T.D. 6871, 31 FR 57, as amended by T.D. ATF-243, 51 FR 28090, Aug. 5,
1986; 51 FR 43194, Dec. 1, 1986]

Sec. 45.34 Loss or shortage in shipment.

Immediately upon receipt of information of a loss of all or part of
a shipment, or of a shortage therein, of tobacco products, or cigarette
papers or tubes removed under this part, the manufacturer shall notify
the appropriate TTB officer, furnish all pertinent details with respect
to the loss or shortage, and either pay the tax due thereon in
accordance with the provisions of Sec. 45.36, or file claim for
remission of the tax liability under the provisions of part 40 of this
chapter, as the case may be.

(72 Stat. 1417, 1419, as amended; 26 U.S.C. 5703, 5705)

[T.D. 6871, 31 FR 57, as amended by T.D. ATF-243, 51 FR 28090, Aug. 5,
1986; 51 FR 43194, Dec. 1, 1986; T.D. ATF-384, 61 FR 54096, Oct. 17,
1996; T.D. ATF-469, 66 FR 56758, Nov. 13, 2001; T.D. ATF-472, 67 FR
8880, Feb. 27, 2002]

Sec. 45.35 Liability for tax.

The manufacturer who removes tobacco products, or cigarette papers
or tubes under this part shall be liable for the taxes imposed thereon
by 26 U.S.C. 5701, until such tobacco products, or cigarette papers or
tubes are received by the Federal agency. Any person who possesses
tobacco products, or cigarette papers or tubes in violation of 26 U.S.C.
5751(a)(1) or (2), shall be liable

[[Page 142]]

for a tax equal to the tax on such articles.

(72 Stat. 1417, 1424; 26 U.S.C. 5703, 5751)

[T.D. 6871, 31 FR 57, Jan. 14, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55856, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28090, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986]

Sec. 45.36 Payment of tax.

Any tax which becomes due and payable on tobacco products, and
cigarette papers and tubes removed under this part shall be paid to
appropriate TTB officer, with sufficient information to identify the
taxpayer, the nature and purpose of the payment, and the articles
covered by the payment: Provided, That a manufacturer of tobacco
products or cigarette papers or tubes may pay any tax for which he
becomes liable under this part by an appropriate adjustment in his
current tax return Form 5000.24. In paying the tax, a fractional part of
a cent shall be disregarded unless it amounts to one-half cent or more,
in which case it shall be increased to one cent.

[T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986, as amended by T.D. ATF-251, 52 FR 19341, May 22, 1987;
T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 45.37 Assessment.

(72 Stat. 1417; 26 U.S.C. 5703)

Subpart E_Packaging Requirements

Sec. 45.41 Packages.

All tobacco products, and cigarette papers and tubes shall, before
removal under this part, be put up by the manufacturer in packages which
shall be of such construction as will securely contain the articles
therein and maintain the mark, notice, and label thereon, as required by
this subpart. No package of tobacco products, or cigarette papers or
tubes shall have contained therein, attached thereto, or stamped,
marked, written, or printed thereon (a) any certificate, coupon, or
other device purporting to be or to represent a ticket, chance, share,
or an interest in, or dependent on, the event of a lottery, or (b) any
indecent or immoral picture, print, or representation.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 58, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 45.42 Mark.

Every package of tobacco products shall before removal from the
factory under this part, have adequately imprinted thereon, or on a
label securely affixed thereto, a mark as specified in this section. The
mark may consist of the name of the manufacturer removing the product
and the location (by city and State) of the factory from which the
products are to be so removed, or may consist of the permit number of
the factory from which the products are to be so removed. (Any trade
name of the manufacturer approved as provided in Sec. 40.65 of this
chapter may be used in the mark as the name of the manufacturer.) As an
alternative, where tobacco products are both packaged and removed by the
same manufacturer, either at the same

[[Page 143]]

or different factories, the mark may consist of the name of such
manufacturer if the factory where packaged is identified on or in the
package by a means approved by the appropriate TTB officer. Before using
the alternative, the manufacturer shall notify the appropriate TTB
officer in writing of the name to be used as the name of the
manufacturer and the means to be used for identifying the factory where
packaged. If approved by him the appropriate TTB officer shall return
approved copies of the notice to the manufacturer. A copy of the
approved notice shall be retained as part of the factory records at each
of the factories operated by the manufacturer.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 58, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-472, 67 FR 8880, Feb. 27,
2002]

Sec. 45.43 Notice for smokeless tobacco.

(a) Product designation. Every package of chewing tobacco or snuff
shall, before removal under this part, have adequately imprinted
thereon, or on a label securely affixed thereto, the designation
``chewing tobacco'' or ``snuff.'' As an alternative, packages of chewing
tobacco may be designated ``Tax Class C,'' and packages of snuff may be
designated ``Tax Class M.''
(b) Product weight. Every package of chewing tobacco or snuff shall,
before removal under this part, have adequately imprinted thereon, or on
a label securely affixed thereto, a clear statement of the actual pounds
and ounces of the product contained therein. As an alternative, the
shipping cases containing packages of chewing tobacco or snuff may,
before removal, have adequately imprinted thereon, or on a label
securely affixed thereto, a clear statement, in pounds and ounces, of
the total weight of the product, the tax class of the product, and the
total number of the packages of product contained therein.

(Approved by the Office of Management and Budget under control number
1512-0502)

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194,
Dec. 1, 1986; T.D. ATF-469, 66 FR 56758, Nov. 13, 2001]

Sec. 45.44 Notice for cigars.

Before removal under this part, every package of cigars shall have
adequately imprinted on it, or on a label securely affixed to it--
(a) The designation ``cigars'';
(b) The quantity of cigars contained in the package; and
(c) For small cigars, the classification of the product for tax
purposes (i.e., either ``small'' or ``little'').

(Sec. 202, Pub. L. 85-859, 72 Stat. 1422 (26 U.S.C. 5723))

[T.D. ATF-80, 46 FR 18312, Mar. 24, 1981]

Sec. 45.45 Notice for cigarettes.

Every package of cigarettes shall, before removal under this part,
have adequately imprinted thereon, or on a label securely affixed
thereto, the designation ``cigarettes'', the quantity of such product
contained therein, and the classification for tax purposes, i.e., for
small cigarettes, either ``small'' or ``Class A'', and for large
cigarettes, either ``large'' or ``Class B''.

(72 Stat. 1422; 26 U.S.C. 5723)

[27 FR 4478, May 10, 1962. Redesignated at 40 FR 16835, Apr. 15, 1975]

Sec. 45.45a Notice for pipe tobacco.

[T.D. ATF-289, 54 FR 48842, Nov. 27, 1989]

[[Page 144]]

Sec. 45.45b Notice for roll-your-own tobacco.

(a) Product designation. Before removal subject to tax, roll-your-
own tobacco must have adequately imprinted on, or on a label securely
affixed to, the package, the designation roll-your-own tobacco'' or
``cigarette tobacco'' or ``Tax Class J.''
(b) Product weight. Before removal subject to tax, roll-your-own
tobacco must have a clear statement of the actual weight in pounds and
ounces of the product in the package. This statement must be adequately
imprinted on, or on a label securely affixed to, the package.

(Approved by the Office of Management and Budget under control number
1512-0502)

[T.D. ATF-429, 65 FR 57547, Sept. 25, 2000]

Sec. 45.45c Package use-up rule.

(a) A manufacturer must have used such packaging for roll-your-own
tobacco before January 1, 2000.
(b) A manufacturer of roll-your-own tobacco, may continue to place
roll-your-own tobacco in packages that do not meet the marking
requirements of Sec. Sec. 40.212 and 40.216b(b) until April 1, 2000.
(c) A manufacturer of roll-your-own tobacco may continue to place
roll-your-own tobacco in packages that do not meet the marking
requirements of Sec. 40.216b(a) until October 1, 2000.

[T.D. ATF-427, 65 FR 40051, June 29, 2000]

Sec. 45.46 Tax-exempt label.

Except in the case of articles described in Sec. 45.31(a)(3), every
package of tobacco products, and cigarette papers and tubes removed
under this part shall have the words ``Tax-Exempt. For Use of U.S. Not
To Be Sold.'' adequately imprinted on the package or on a label securely
affixed thereto.

(72 Stat. 1422; 26 U.S.C. 5723)

[T.D. 6871, 31 FR 58, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975; and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. TTB-26, 70 FR 19890, Apr. 15,
2005]

Subpart F_Records

Sec. 45.51 Supporting records.

(a) Records of removals. Every manufacturer who removes tobacco
products, and cigarette papers and tubes under this part must, in
addition to the records kept under part 40 of this chapter, keep a
supporting record of such removals and must make appropriate entries
therein at the time of removal. The supporting record for each removal
must show:
(1) The date of removal;
(2) The name and address of the Federal agency to which shipped or
delivered;
(3) The kind and quantity and,
(4) for large cigars, the sale price.
(b) Records of returns. If any tobacco products, or cigarette papers
or tubes removed under this part are returned to the factory, such
returns must be noted in the supporting record.
(c) Commercial records. Where the manufacturer keeps, at the
factory, copies of invoices or other commercial records containing the
information required as to each removal, in such manner that the
information may be readily ascertained therefrom, such copies will be
considered the supporting record required by this section.
(d) Retention period. The manufacturer must retain the supporting
record for 3 years following the close of the year covered therein. The
record must be made available for inspection by any appropriate TTB
officer upon request.

(Approved by the Office of Management and Budget under control number
1512-0363)

(See 26 U.S.C. 5741)

[T.D. ATF-420, 64 FR 71945, Dec. 22, 1999, as amended by T.D. ATF-472,
Feb. 27, 2002]

PART 46_MISCELLANEOUS REGULATIONS RELATING TO TOBACCO PRODUCTS AND CIGARETTE

PAPERS AND TUBES--Table of Contents

Subpart A_Application of 26 U.S.C. 6423, as Amended, to Refund or Credit
of Tax on Tobacco Products, and Cigarette Papers and Tubes

General

Sec.

[[Page 145]]

46.1 Scope of regulations in this subpart.
46.2 Meaning of terms.
46.3 Applicability to certain credits or refunds.
46.4 Ultimate burden.
46.5 Conditions to allowance of credit or refund.
46.6 Requirements for persons intending to file claim.

Claim Procedure

46.7 Execution and filing of claim.
46.8 Data to be shown in claim.
46.9 Time for filing claim.

Bond

46.10 Bond, Form 2490.
46.11 Corporate surety.
46.12 Deposit of securities in lieu of corporate surety.
46.13 Authority to approve bonds.
46.14 Termination of liability.
46.15 Release of pledged securities.

Penalties

46.16 Penalties.

Subpart B_Administrative Provisions

46.21 Delegations of the Administrator.
46.22 Forms prescribed.

Subpart C_Disaster Loss Claims

46.71 Scope of subpart.

Definitions

46.72 Meaning of terms.

Payments

46.73 Circumstances under which payment may be made.

Claims Procedure

46.74 Execution of claims.
46.75 Required information for claim.
46.76 Supporting evidence.
46.77 Time and place of filing.
46.78 Action by appropriate ATF officerAppropriate TTB officer.

Destruction of Tobacco Products, and Cigarette Papers and Tubes

46.79 Supervision.

Penalties

46.80 Penalties.

Administrative Provisions

46.81 [Reserved]

Subparts D-F [Reserved]

Subpart G_Dealers in Tobacco Products

46.161 Scope of subpart.
46.162 Territorial extent.
46.163 Meaning of terms.
46.164 Authority of ATF officerAppropriate TTB officers to enter
premises.
46.165 Interference with administration.
46.166 Dealing in tobacco products.
46.167 Liability to tax.
46.168 Liability to penalties and forfeitures.

Subpart H [Reserved]

Subpart I_Floor Stocks Tax on Cigarettes Held for Sale on January 1,
2000 and on January 1, 2002

General

46.191 Purpose of this subpart.
46.192 Terms used in this subpart.
46.193 Floor stocks tax defined.
46.194 Persons liable for this tax.
46.195 Persons not liable for this tax.
46.196 Floor stocks requirements.

Inventories

46.201 Establish quantities of cigarettes.
46.202 Inventory for cigarettes with export markings.
46.203 How to identify cigarettes with export markings.
46.204 When to take inventory.
46.205 Physical inventory requirements.
46.206 Book or record inventory requirements.
46.207 Cigarettes in transit.
46.208 Guidelines to determine title of cigarettes in transit.
46.209 Cigarettes in a foreign trade zone.
46.210 Cigarettes held in bond.
46.211 Unmerchantable cigarettes.
46.212 Cigarettes in vending machines.
46.213 Cigarettes marked ``not for sale'' or ``complimentary''.

Compute Tax Liability

46.221 Determine amount of tax due.
46.222 Floor stocks tax rates.
46.223 Apply tax credit.

Filing Requirements

46.231 How to obtain a tax return.
46.232 Prepare tax return.
46.233 How to pay.
46.234 Tax return due dates.
46.235 Filing requirements for multiple locations.
46.236 Cigarettes in a warehouse.
46.237 Controlled group members.

Records

46.241 Required records.
46.242 Period for maintaining records.
46.243 Cigarettes at multiple locations.
46.244 Where records must be maintained.
46.245 Errors in records.

[[Page 146]]

Claims

46.251 Before filing a claim.
46.252 When to file a claim for errors on return.
46.253 How to file a claim for errors on return.
46.254 Destruction of cigarettes by a Presidentially-declared major
disaster.
46.255 Additional reasons for filing a claim.

Alternate Methods or Procedures

46.261 Purpose of an alternate method or procedure.
46.262 How to apply for approval.
46.263 Conditions for approval.
46.264 Withdrawal of an alternate method or procedure.

TTB Authorities

46.270 [Reserved]
46.271 Entry, examination and testimony.
46.272 Issuance of summons.
46.273 Refusing entry or examination.
46.274 Penalties for failure to comply.

Authority: 18 U.S.C. 2341-2346, 26 U.S.C. 5704, 5708, 5751, 5754,
5761-5763, 6001, 6601, 6621, 6622, 7212, 7342, 7602, 7606, 7805; 44
U.S.C. 3504(h), 49 U.S.C. 782, unless otherwise noted.

Source: Redesignated by T.D. ATF-457, 66 FR 32220, June 14, 2001.

Editorial Note: Nomenclature changes to part 46 appear by T.D. ATF-
457, 66 FR 32220, 32221, June 14, 2001.

Cross Reference: For exportation of tobacco materials, tobacco
products, and cigarette papers and tubes, without payment of tax, or
with drawback of tax, see part 44.

Subpart A_Application of 26 U.S.C. 6423, as Amended, to Refund or Credit
of Tax on Tobacco Products, and Cigarette Papers and Tubes

Source: T.D. 6395, 24 FR 599, Jan. 28, 1959, unless otherwise noted.
Redesignated at 40 FR 16835, Apr. 15, 1975.

General

Sec. 46.1 Scope of regulations in this subpart.

The regulations in this subpart relate to the limitations imposed by
26 U.S.C. 6423, on the refund or credit of tax paid or collected in
respect to any article of a kind subject to a tax imposed by 26 U.S.C.
chapter 52.

[T.D. ATF-48, 44 FR 55857, Sept. 28, 1979]

Sec. 46.2 Meaning of terms.

When used in this subpart, where not otherwise distinctly expressed
or manifestly incompatible with the intent thereof, terms shall have the
meaning ascribed in this section.
Administrator. The Administrator, Alcohol and Tobacco Tax and Trade
Bureau, Department of the Treasury, Washington, DC.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.46, Delegation of the Administrator's Authorities in 27 CFR Part
46, Miscellaneous Regulations Relating to Tobacco Products and Cigarette
Papers and Tubes.
Article. The commodity in respect to which the amount claimed was
paid or collected as a tax.
Claimant. Any person who files a claim for a refund or credit of tax
under this subpart.
Owner. A person who, by reason of a proprietary interest in the
article, furnished the amount claimed to the claimant for the purpose of
paying the tax.
Person. An individual, a trust, estate, partnership, association,
company, or corporation.
Tax. Any tax imposed by 26 U.S.C. chapter 52, or by any
corresponding provision of prior internal revenue laws, and in the case
of any commodity of a kind subject to a tax under such chapter, any tax
equal to any such tax, any additional tax, or any floor stocks tax. The
term includes an exaction denominated a ``tax'', and any penalty,
addition to tax, additional amount, or interest applicable to any such
tax.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975]

Editorial Note: For Federal Register citations affecting Sec. 46.2,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.

Sec. 46.3 Applicability to certain credits or refunds.

The provisions of this subpart apply only where the credit or refund
is claimed on the grounds that an amount

[[Page 147]]

of tax was assessed or collected erroneously, illegally, without
authority, or in any manner wrongfully, or on the grounds that such
amount was excessive. This subpart does not apply to:
(a) Any claim for drawback,
(b) Any claim made in accordance with any law expressly providing
for credit or refund where an article is withdrawn from the market,
returned to bond, lost, or destroyed, and
(c) Any claim based solely on errors in computation of the quantity
of an article subject to tax or on mathematical errors in computation of
the amount of the tax due, or to any claim in respect of tax collected
or paid on an article seized and forfeited, or destroyed, as contraband.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-42, 42 FR 8372, Feb. 10, 1977]

Sec. 46.4 Ultimate burden.

For the purposes of this subpart, the claimant, or owner, shall be
treated as having borne the ultimate burden of an amount of tax only if:
(a) He has not, directly or indirectly, been relieved of such burden
or shifted such burden to any other person,
(b) No understanding or agreement exists for any such relief or
shifting, and
(c) If he has neither sold nor contracted to sell the articles
involved in such claim, he agrees that there will be no such relief or
shifting, and furnishes bond as provided in Sec. 46.10.

Sec. 46.5 Conditions to allowance of credit or refund.

No credit or refund to which this subpart is applicable shall be
allowed or made, pursuant to a court decision or otherwise, of any
amount paid or collected as a tax unless a claim therefor has been
filed, as provided in this subpart, by the person who paid the tax and
the claimant, in addition to establishing that he is otherwise legally
entitled to credit or refund of the amount claimed, establishes:
(a) That he bore the ultimate burden of the amount claimed, or
(b) That he has unconditionally repaid the amount claimed to the
person who bore the ultimate burden of such amount, or
(c) That (1) the owner of the article furnished him the amount
claimed for payment of the tax, (2) he has filed with the appropriate
TTB officer the written consent of such owner to the allowance to the
claimant of the credit or refund, and (3) such owner satisfies the
requirements of paragraph (a) or (b) of this section.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 46.6 Requirements for persons intending to file claim.

Any person who, having paid the tax with respect to an article,
desires to claim refund or credit of any amount of such tax to which the
provisions of this subpart are applicable must:
(a) File a claim, as provided in Sec. 46.7,
(b) Comply with any other provisions of law or regulations which may
apply to the claim, and
(c) If, at the time of filing the claim, neither he nor the owner
has sold or contracted to sell the articles involved in the claim, file
a bond on TTB Form 5620.10, as provided by Sec. 46.10.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Claim Procedure

Sec. 46.7 Execution and filing of claim.

Claims to which this subpart is applicable must be executed on Form
2635 (5620.8) in accordance with instructions for the form. (For
provisions relating to hand-carried documents, see Sec. 70.304 of this
chapter.) The claim shall set forth each ground upon which the claim is
made in sufficient detail to apprise the appropriate TTB officer of the
exact basis therefor. Allegations pertaining to the bearing of the
ultimate burden relate to additional conditions which must be
established for a claim to be allowed and are not in themselves legal
grounds for allowance of a claim. There shall also be attached to the
form and made a part of the claim the supporting data required by Sec.
46.8. All evidence relied upon in support of such

[[Page 148]]

claim shall be clearly set forth and submitted with the claim.

[T.D. 7008, 34 FR 3672, Mar. 1, 1969. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55857, Sept. 28, 1979; T.D.
ATF-251, 52 FR 19342, May 22, 1987; T.D. ATF-301, 55 FR 47658, Nov. 14,
1990; T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 46.8 Data to be shown in claim.

Claims to which this subpart is applicable, in addition to the
requirements of Sec. 46.7, must set forth or contain the following:
(a) A statement that the claimant paid the amount claimed as a
``tax'' as defined in this subpart.
(b) Full identification (by specific reference to the form number,
the date of filing, the place of filing, and the amount paid on the
basis of the particular form or return) of the tax forms or returns
covering the payments for which refund or credit is claimed.
(c) The written consent of the owner to allow the refund or credit
to the claimant (where the owner of the article on which the tax was
paid has furnished the claimant the amount claimed for the purpose of
paying the tax).
(d) If the claimant or the owner, as the case may be, has neither
sold nor contracted to sell the articles involved in the claim, a
statement that the claimant or the owner, as the case may be, agrees not
to shift, directly or indirectly in any manner whatsoever, the burden of
the tax to any other person.
(e) If the claim is for refund of a floor stocks tax, or of an
amount resulting from an increase in rate of tax applicable to an
article, a statement as to whether the price of the article was
increased on or following the effective date of such floor stocks tax or
rate increase, and, if so, the date of the increase, together with full
information as to the amount of such price increase.
(f) Specific evidence (such as relevant records, invoices, or other
documents, or affidavits of individuals having personal knowledge of
pertinent facts) which will satisfactorily establish the conditions of
allowance set forth in Sec. 46.5.

The appropriate TTB officer may require the claimant to furnish as a
part of the claim such additional information as he may deem necessary.

[T.D. ATF-42, 42 FR 8372, Feb. 10, 1977, as amended by T.D. ATF-472a, 67
FR 63544, Oct. 15, 2002]

Sec. 46.9 Time for filing claim.

No credit or refund of any amount of tax to which the provisions of
this subpart apply shall be made unless the claimant files a claim
therefor within the time prescribed by law and in accordance with the
provisions of this subpart.

[T.D. ATF-42, 42 FR 8373, Feb. 10, 1977]

Bond

Sec. 46.10 Bond, Form 2490.

Each claim for a refund or credit of tax on articles which the
claimant or the owner, as the case may be, has neither sold nor
contracted to sell at the time of filing of the claim must be
accompanied by a bond on TTB Form 5620.10. The bond shall be executed by
the claimant or the owner of the articles, as the case may be, in
accordance with the provisions of this subpart and the instructions
printed on the form. Such bond shall be conditioned that there will be
no relief or shifting of the ultimate burden of the tax to any other
person. The penal sum shall not be less than the amount of tax claimed
on all articles which have not been sold or contracted for sale at the
time of filing of the claim. Bonds required by this subpart shall be
given with corporate surety or with collateral security. A separate bond
must be filed for each claim.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 46.11 Corporate surety.

(a) Surety bonds required under the provisions of this subpart may
be given only with corporate sureties holding certificates of authority
from the Secretary of the Treasury as acceptable sureties on Federal
bonds. Limitations concerning corporate sureties are prescribed by the
Secretary in the current revision of the Treasury Department Circular
No. 570 (refer to paragraph (c) of this section). The surety shall have

[[Page 149]]

no interest whatever in the business covered by the bond.
(b) Each bond and each extension of coverage of bond shall at the
time of filing be accompanied by a power of attorney authorizing the
agent or officer who executed the bond to so act on behalf of the
surety. The appropriate TTB officer who is authorized to approve the
bond may, whenever he deems it necessary, require additional evidence of
the authority of the agent or officer to execute the bond or extension
of coverage of bond. The power of attorney shall be prepared on a form
provided by the surety company and executed under the corporate seal of
the company. If the power of attorney submitted is other than a manually
signed document, it shall be accompanied by a certificate of its
validity.
(c) Treasury Department Circular No. 570 (Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as
Acceptable Reinsuring Companies) is published in the Federal Register
annually as of the first workday in July. As they occur, interim
revisions of the circular are published in the Federal Register. Copies
may be obtained from the Audit Staff, Bureau of Government Financial
Operations, Department of the Treasury, Washington, DC 20226.

(July 30, 1947, ch. 390, 61 Stat. 648, as amended (6 U.S.C. 6, 7); sec.
202, Pub. L. 85-859, 72 Stat. 1421, as amended (26 U.S.C. 5711))

[T.D. ATF-92, 46 FR 46923, Sept. 23, 1981, as amended by T.D. ATF-472,
67 FR 8880, Feb. 27, 2002]

Sec. 46.12 Deposit of securities in lieu of corporate surety.

In lieu of corporate surety, the principal may pledge and deposit
securities which are transferable and are guaranteed as to both interest
and principal by the United States, in accordance with the provisions of
31 CFR part 225.

Sec. 46.13 Authority to approve bonds.

An appropriate TTB officer may approve all bonds required by this
subpart.

[T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 46.14 Termination of liability.

Bonds on TTB Form 5620.10 will be terminated by the appropriate TTB
officer on receipt of satisfactory evidence that the person giving the
bond has disposed of the articles covered by the bond and that he bore
the ultimate burden of the amount claimed and that no understanding or
agreement exists whereby he will be relieved of such burden or shift
such burden to another person.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Sec. 46.15 Release of pledged securities.

Securities of the United States, pledged and deposited as provided
by Sec. 46.12, shall be released only in accordance with the provisions
of 31 CFR part 225. When the appropriate TTB officer is satisfied that
they may be released, he shall fix the date or dates on which a part or
all of such securities may be released. At any time prior to the release
of such securities, the appropriate TTB officer may, for proper cause,
extend the date of release for such additional length of time as he
deems necessary.

[T.D. 6395, 24 FR 599, Jan. 28, 1959. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, 67 FR 8880, Feb. 27, 2002]

Penalties

Sec. 46.16 Penalties.

It is an offense punishable by fine and imprisonment for anyone to
make or cause to be made any false or fraudulent claim upon the United
States, or to make any false or fraudulent statements, or
representations, in support of any claim, or to falsely or fraudulently
execute any documents required by the provisions of the internal revenue
laws, or any regulations made in pursuance thereof.

Subpart B_Administrative Provisions

Source: T.D. ATF-472, 67 FR 8880, Feb. 27, 2002, unless otherwise
noted.

[[Page 150]]

Sec. 46.21 Delegations of the Administrator.

The regulatory authorities of the Administrator contained in this
part are delegated to appropriate TTB officers. These TTB officers are
specified in TTB Order 1135.46, Delegation of the Administrator's
Authorities in 27 CFR Part 46, Miscellaneous Regulations Relating to
Tobacco Products and Cigarette Papers and Tubes. You may obtain a copy
of this order by accessing the TTB Web site (http://www.ttb.gov) or by
mailing a request to the Alcohol and Tobacco Tax and Trade Bureau,
National Revenue Center, 550 Main Street, Room 1516, Cincinnati, OH
45202.

[T.D. TTB-44, 71 FR 16955, Apr. 4, 2006]

Sec. 46.22 Forms prescribed.

[T.D. ATF-472, 67 FR 8880, Feb. 27, 2002, as amended by T.D. TTB-44, 71
FR 16955, Apr. 4, 2006]

Subpart C_Disaster Loss Claims

Sec. 46.71 Scope of subpart.

This subpart prescribes the requirements necessary to implement 26
U.S.C. 5708, concerning payments which may be made by the United States
in respect to the internal revenue taxes paid or determined and customs
duties paid on tobacco products, and cigarette papers and tubes removed,
which were lost, rendered unmarketable, or condemned by a duly
authorized official by reason of a disaster occurring in the United
States on or after September 3, 1958.

[T.D. 6871, 31 FR 59, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55857, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28090, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986]

Definitions

Sec. 46.72 Meaning of terms.

When used in this subpart, the following terms shall have the
meanings given in this section, unless the context clearly indicates
otherwise. Words in the plural form shall include the singular, and vice
versa, and words indicating the masculine gender shall include the
feminine. The terms ``includes'' and ``including'' do not exclude things
not listed which are in the same general class.
Act. The Excise Tax Technical Changes Act of 1958 (Pub. L. 85-859,
72 Stat. 1275), enacted September 2, 1958.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.46, Delegation of the Administrator's Authorities in 27 CFR Part
46, Miscellaneous Regulations Relating to Tobacco Products and Cigarette
Papers and Tubes.
Claimant. The person who held the tobacco products or cigarette
papers and tubes for sale at the time of the disaster and who files
claim under this subpart.
Commissioner of Customs. The Commissioner of Customs, U.S. Customs
Service, The Department of the Treasury, Washington, DC.
Disaster. A flood, fire, hurricane, earthquake, storm, or other
catastrophe which has occurred in any part of the United States on and
after the day following the date of enactment of the act and which the
President of the United States has determined, under the Act of
September 30, 1950 (64 Stat. 1109; 42 U.S.C. 1855), was a ``major
disaster'' as defined in such Act.
Duly authorized official. Any Federal, State, or local government
official in whom has been vested authority to

[[Page 151]]

condemn tobacco products and cigarette papers and tubes made the subject
of a claim under this subpart.
Duty or duties. Any duty or duties paid under the customs laws of
the United States.
Removal or remove. The removal of tobacco products or cigarette
papers or tubes from the factory, or release of such articles from
Customs custody.
Sale price. The price for which large cigars are sold by the
manufacturer or importer, determined in accordance with Sec. Sec. 40.22
or 41.39 and used in computation of the tax.
Tax paid or determined. The internal revenue tax on tobacco products
and cigarette papers and tubes which has acutally been paid, or which
has been determined pursuant to 26 U.S.C. 5703(b), and regulations
thereunder, at the time of their removal subject to tax payable on the
basis of a return.
Tobacco Products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
United States. When used in a geographical sense, includes only the
States, and the District of Columbia.

[T.D. 6392, 24 FR 5300, June 30, 1959]

Editorial Note: For Federal Register citations affecting Sec.
46.72, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.

Payments

Sec. 46.73 Circumstances under which payment may be made.

An appropriate TTB officer shall allow payment (without interest) of
an amount equal to the amount of tax paid or determined, and the
Commissioner of Customs shall allow payment (without interest) of an
amount equal to the amount of customs duty paid, on tobacco products,
and cigarette papers and tubes removed, which are lost, rendered
unmarketable, or condemned by a duly authorized official by reason of a
disaster occurring in the United States on and after September 3, 1958.
Such payments may be made only if, at the time of the disaster, such
tobacco products, or cigarette papers or tubes were being held for sale
by the claimant. No payment shall be made under this subpart with
respect to any amount of tax or duty claimed or to be claimed under any
other provision of law or regulations.

[T.D. 6871, 31 FR 59, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-232, 51 FR 28090, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-472, 67 FR 8881, Feb. 27,
2002]

Claims Procedure

Sec. 46.74 Execution of claims.

Disaster loss claims for tobacco products or cigarette papers or
tubes must be executed on TTB Form 2635 (5620.8), Claim--Alcohol,
Tobacco and Firearms Taxes, in accordance with the instructions on the
form. If a claim involves taxes on both domestic and imported products,
the quantities of each must be shown separately in the claim. Prepare a
separate claim in respect of customs duties.

[T.D. ATF-420, 64 FR 71945, Dec. 22, 1999]

Sec. 46.75 Required information for claim.

The claim should contain the following information:
(a) That the tax on such tobacco products, or cigarette papers or
tubes has been paid or determined and customs duty has been paid;
(b) That such tobacco products, or cigarette papers or tubes were
lost, rendered unmarketable, or condemned by a duly authorized official,
by reason of a disaster;
(c) The type and date of occurrence of the disaster and the location
of the tobacco products, or cigarette papers or tubes at that time;
(d) That the claimant was not indemnified by any valid claim of
insurance or otherwise in respect of the tax, or tax and duty, on the
tobacco products, or cigarette papers or tubes covered by the claim;
(e) That no amount of internal revenue tax or customs duty claimed
has been or will be otherwise claimed under any other provision of law
or regulations,
(f) That the claimant is entitled to payment under this subpart, and
(g) The claim must set forth the quantity and kind of tobacco
products and cigarette papers and tubes in sufficient detail to
calculate the amount of tax and duty paid on these products,

[[Page 152]]

substantially as shown in the examples below:

[Example using 1993-1999 Rates]
----------------------------------------------------------------------------------------------------------------
Quantity Article Rate of tax Amount
----------------------------------------------------------------------------------------------------------------
20,000................................ Small cigars.................. $1.125 per thousand........... $22.50
1,000................................. Large cigars--sale price $100/ 12.75% of sale price.......... 12.75
thousand.
500................................... Large cigars--sale price $236/ $30 per thousand.............. 15.00
thousand.
10,000................................ Small cigarettes.............. $12 per thousand.............. 120.00
5,000................................. Large cigarettes.............. $25.20 per thousand........... 126.00
2,000 sets............................ Cigarette papers--50 per set.. $0.0075 per set............... 15.00
1,000 sets............................ Cigarette papers--100 per set. $0.015 per set................ 15.00
1,000................................. Cigarette tubes............... $0.015 per 50 tubes........... 0.30
100 lbs............................... Chewing tobacco............... $0.12 per pound............... 12.00
200 lbs............................... Snuff......................... $0.36 per pound............... 72.00
100 lbs............................... Pipe tobacco.................. $0.675 per pound.............. 67.50
300 lbs............................... Roll-your-own tobacco......... $0 per pound.................. ........
Total claimed..................... .............................. .............................. 478.05
----------------------------------------------------------------------------------------------------------------

[Example using 2000-2001 Rates]
----------------------------------------------------------------------------------------------------------------
Quantity Article Rate of tax Amount
----------------------------------------------------------------------------------------------------------------
20,000................................ Small cigars.................. $1.594 per thousand........... $31.88
1,000................................. Large cigars--sale price $100/ 18.063% of sale price......... 18.06
thousand.
500................................... Large cigars--sale price $236/ $42.50 per thousand........... 21.25
thousand.
10,000................................ Small cigarettes.............. $17.00 per thousand........... 170.00
5,000................................. Large cigarettes.............. $35.70 per thousand........... 178.50
199,975............................... Cigarette papers.............. $0.0106 per 50 papers......... 42.40
1,000................................. Cigarette tubes............... $0.0213 per 50 tubes.......... 0.43
100 lbs............................... Chewing tobacco............... $0.17 per pound............... 17.00
200 lbs............................... Snuff......................... $0.51 per pound............... 102.00
100 lbs............................... Pipe tobacco.................. $0.9567 per pound............. 95.67
300 lbs............................... Roll-your-own tobacco......... $0.9567 per pound............. 287.01
Total claimed..................... .............................. .............................. 964.20
----------------------------------------------------------------------------------------------------------------

[Example using rates for 2002 and After]
----------------------------------------------------------------------------------------------------------------
Quantity Article Rate of tax Amount
----------------------------------------------------------------------------------------------------------------
20,000................................ Small cigars.................. $1.828 per thousand........... 36.56
1,000................................. Large cigars--sale price $100/ 20.719% of sale price......... 20.72
thousand.
500................................... Large cigars--sale price $236/ $48.75 per thousand........... 24.38
thousand.
10,000................................ Small cigarettes.............. $19.50 per thousand........... 195.00
5,000................................. Large cigarettes.............. $40.95 per thousand........... 204.75
199,975............................... Cigarette papers.............. $0.0122 per 50 papers......... 48.80
1,000................................. Cigarette tubes............... $0.0244 per 50 tubes.......... 0.49
100 lbs............................... Chewing tobacco............... $0.195 per pound.............. 19.50
200 lbs............................... Snuff......................... $0.585 per pound.............. 117.00
100 lbs............................... Pipe tobacco.................. $1.0969 per pound............. 109.69
300 lbs............................... Roll-your-own tobacco......... $1.0969 per pound............. 329.07
Total claimed..................... .............................. .............................. 1,105.96
----------------------------------------------------------------------------------------------------------------

[T.D. ATF-420, 64 FR 71945, Dec. 22, 1999]

Sec. 46.76 Supporting evidence.

The claimant must support the claim with any available evidence
(such as inventories, statements, invoices, bills, records, stamps, and
labels), relating to the tobacco products or cigarette papers or tubes
on hand at the time of the disaster and claimed to have been lost,
rendered unmarketable, or condemned as a result thereof. If the claim is
for refund of duty, the claimant

[[Page 153]]

must furnish, if practicable, the customs entry number, date of entry,
and the name of the port of entry.

[T.D. ATF-420, 64 FR 71946, Dec. 22, 1999]

Sec. 46.77 Time and place of filing.

Disaster loss claims must be filed within 6 months after the date on
which the President makes the determination that the disaster has
occurred. All forms, including claims for duty on imported products,
must be filed with the appropriate TTB officer.

[T.D. ATF-420, 64 FR 71946, Dec. 22, 1999]

Sec. 46.78 Action by appropriate TTB officer.

The appropriate TTB officer must act upon each claim for payment
(without interest) of an amount equal to the tax paid or determined
filed under this subpart and must notify the claimant. Claims and
supporting data involving customs duties will be forwarded to the
Commissioner of Customs with a summary statement of such officer's
findings.

[T.D. ATF-472, 67 FR 8881, Feb. 27, 2002]

Destruction of Tobacco Products, and Cigarette Papers and Tubes

Sec. 46.79 Supervision.

Before payment is made under this subpart in respect of the tax, or
tax and duty, on tobacco products, or cigarette papers or tubes rendered
unmarketable or condemned by a duly authorized official, such tobacco
products, or cigarette papers or tubes must be destroyed by suitable
means under the supervision of an appropriate TTB officer who will be
assigned for that purpose by another appropriate TTB officer. However,
if the destruction of such tobacco products, or cigarette papers or
tubes has already occurred, and if the appropriate TTB officer who acts
on the claim is satisfied with the supervision of such destruction, TTB
supervision will not be required.

[T.D. ATF-472, 67 FR 8881, Feb. 27, 2002]

Penalties

Sec. 46.80 Penalties.

Penalties are provided in 26 U.S.C. 7206 and 7207 for the execution
under the penalties of perjury of any false or fraudulent statement in
support of any claim and for the filing of any false or fraudulent
document under this subpart. All provisions of law, including penalties,
applicable in respect of internal revenue taxes on tobacco products, and
cigarette papers and tubes shall, insofar as applicable and not
inconsistent with this subpart, be applied in respect of the payments
provided for in this subpart to the same extent as if such payments
constituted refunds of such taxes.

[T.D. 6871, 31 FR 60, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975, and amended by T.D. ATF-48, 44 FR 55857, Sept. 28, 1979; T.D.
ATF-232, 51 FR 28092, Aug. 5, 1986; T.D. ATF-243, 51 FR 43194, Dec. 1,
1986]

Admimistrative Provisions

Sec. 46.81 [Reserved]

Subparts D-F [Reserved]

Subpart G_Dealers in Tobacco Products

Source: T.D. 6573, 26 FR 8202, Aug. 31, 1961, unless otherwise
noted. Redesignated at 40 FR 16835, Apr. 15, 1975.

Sec. 46.161 Scope of subpart.

The regulations in this subpart relate to the purchase, receipt,
possession, offering for sale, or sale or other disposition of tobacco
products by dealers in such products.

[T.D. 6871, 81 FR 60, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-232, 51 FR 28092, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986]

Sec. 46.162 Territorial extent.

The provisions of the regulations in this subpart shall apply in the
several States of the United States and the District of Columbia.

Sec. 46.163 Meaning of terms.

When used in this subpart, where not otherwise distinctly expressed
or manifestly incompatible with the intent thereof, each of the
following terms shall have the meaning ascribed in this section. Words
in the plural form shall include the singular, words in the singular
form shall include the plural, and

[[Page 154]]

words importing the masculine gender shall include the feminine. The
terms ``includes'' and ``including'' do not exclude things not
enumerated which are in the same general class.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.46, Delegation of the Administrator's Authorities in 27 CFR Part
46, Miscellaneous Regulations Relating to Tobacco Products and Cigarette
Papers and Tubes.
Dealer. Any person who sells, or offers for sale, at wholesale or
retail levels, any cigars or cigarettes after removal.
Manufacturer of tobacco products. Any person who manufactures
cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own
tobacco but does not include:
(1) A person who produces tobacco products solely for that person's
own consumption or use; or
(2) A proprietor of a Customs bonded manufacturing warehouse with
respect to the operation of such warehouse.
Package. The container in which tobacco products are put up by the
manufacturer or the importer and offered for delivery to the consumer.
Person. An individual, partnership, association, company,
corporation, estate, or trust.
Removal or remove. The removal of tobacco products from the factory
or release from Customs custody, including the smuggling or other
unlawful importation of such articles into the United States.
Tobacco Products. Cigars, cigarettes, smokeless tobacco, pipe
tobacco, and roll-your-own tobacco.
U.S.C. The United States Code.

[T.D. 6573, 26 FR 8202, Aug. 31, 1961, as amended by T.D. 6871, 31 FR
60, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr. 15, 1975]

Editorial Note: For Federal Register citations affecting Sec.
46.163, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.

Sec. 46.164 Authority of TTB officers to enter premises.

Any appropriate TTB officer may enter in the daytime any premises
where tobacco products are kept or stored, so far as it may be necessary
for the purpose of examining such products. When such premises are open
at night, any appropriate TTB officer may enter them, while so open, in
the performance of his official duties. The owner of such premises, or
person having the superintendence of the same, who refuses to admit any
appropriate TTB officer or permit him to examine such products shall be
liable to the penalties prescribed by law for the offense. Operators of
vending machines shall make the tobacco products in their machines
available for inspection upon the request of any appropriate TTB
officer.

(68A Stat. 872, 903; 26 U.S.C. 7342, 7606)

[T.D. 6871, 31 FR 60, Jan. 4, 1966. Redesignated at 40 FR 16835, Apr.
15, 1975 and amended by T.D. ATF-232, 51 FR 28092, Aug. 5, 1986; T.D.
ATF-243, 51 FR 43194, Dec. 1, 1986; T.D. ATF-472, 67 FR 8881, Feb. 27,
2002]

Sec. 46.165 Interference with administration.

Whoever, corruptly or by force or threats of force, endeavors to
hinder or obstruct the administration of this subpart, or endeavors to
intimidate or impede any appropriate TTB officer acting in his official
capacity, or forcibly rescues or attempts to rescue or causes to be
rescued any property, after it has been duly seized for forfeiture to
the United States in connection with a violation of the internal revenue
laws, shall be liable to the penalties prescribed by law.

(68A Stat. 855; 26 U.S.C. 7212)

[T.D. 6573, 26 FR 8202, Aug. 31, 1961. Redesignated at 40 FR 16835, Apr.
15, 1975, as amended by T.D. ATF-472, Feb. 27, 2002]

Sec. 46.166 Dealing in tobacco products.

(a) All tobacco products purchased, received, possessed, offered for
sale, sold or otherwise disposed of, by any dealer must be in proper
packages which bear the mark or notice as prescribed in parts 40 and 41
of this chapter. Tobacco products may be sold, or offered for sale, at
retail from such

[[Page 155]]

packages, provided the products remain in the packages until removed by
the customer or in the presence of the customer. Where a vending machine
is used, tobacco products must similarly be vended in proper packages or
directly from such packages.
(b) Tobacco products manufactured in the United States and labeled
for exportation under chapter 52 of title 26, U.S.C. may not be sold or
held for sale for domestic consumption in the United States unless such
articles are removed from their export packaging and repackaged by the
original manufacturer into new packaging that does not contain an export
label. This applies to articles labeled for export even if the packaging
or the appearance of such packaging to the consumer of such articles has
been modified or altered by a person other than the original
manufacturer so as to remove or conceal or attempt to remove or conceal
(including by placement of a sticker over) the export label.
(c) For penalty and forfeiture provisions applicable to the selling,
relanding or receipt of articles which have been labeled or shipped for
exportation, see Sec. 41.83 of this chapter.

[T.D. ATF-465, 66 FR 45618, Aug. 29, 2001, as amended by T.D. TTB-16, 69
FR 52423, Aug. 26, 2004]

Sec. 46.167 Liability to tax.

Any dealer who, with intent to defraud the United States, possesses
tobacco products (a) upon which the tax has not been paid or determined
in the manner and at the time prescribed in parts 40 and 41 of this
chapter or (b) which, after removal without payment of tax pursuant to
section 5704, I.R.C., and regulations issued thereunder, have been
diverted from the applicable purpose or use specified in that section or
(c) which are not put up in packages prescribed in parts 40 and 41 of
this chapter or are put up in packages not bearing the marks and notices
prescribed in such regulations shall be liable for a tax equal to the
tax on such products.

(72 Stat. 1424; 26 U.S.C. 5751)

Sec. 46.168 Liability to penalties and forfeitures.

Any dealer who fails to comply with the provisions of this subpart
becomes liable to the civil and criminal penalties, and forfeitures,
provided by law.

(72 Stat. 1425, 1426; 26 U.S.C. 5761, 5762, and 5763)

Subpart H [Reserved]

Subpart I_Floor Stocks Tax on Cigarettes Held for Sale on January 1,
2000 and on January 1, 2002

Authority: Section 9302, Pub.L. 105-33, 111 Stat. 251, unless
otherwise noted.

Source: T.D. ATF-423, 64 FR 71958, Dec. 22, 1999, unless otherwise
noted.

General

Sec. 46.191 Purpose of this subpart.

The regulations in this subpart implement the floor stocks tax on
cigarettes held for sale the first moment on January 1, 2000 and on
January 1, 2002.

Sec. 46.192 Terms used in this subpart.

(a) Appropriate TTB officer. An officer or employee of the Alcohol
and Tobacco Tax and Trade Bureau (TTB) authorized to perform any
functions relating to the administration or enforcement of this part by
TTB Order 1135.46, Delegation of the Administrator's Authorities in 27
CFR 46, Miscellaneous Regulations Relating to Tobacco Products and
Cigarette Papers and Tubes.
(b) Controlled group. Pursuant to 26 U.S.C. 5061(e)(3), the term
``controlled group'' means a controlled group of corporations, as
defined in 26 U.S.C. 1563, and implementing regulations in 26 CFR
1.1563-1 through 1.1563-4, except that the words ``at least 80 percent''

[[Page 156]]

shall be replaced by the words ``more than 50 percent'' in each place
they appear in subsection (a) of 26 U.S.C. 1563, as well as in the
implementing regulations. Controlled groups of corporations include, but
are not limited to:
(1) Parent-subsidiary controlled groups as defined in 26 CFR 1.1563-
1 (a)(2).
(2) Brother-sister controlled groups as defined in 26 CFR 1.1563-
1(a)(3).
(3) Combined groups as defined in 26 CFR 1.1563-1(a)(4). Also, the
rules for a controlled group of corporations apply in a similar fashion
to groups which include partnerships and/or sole proprietorships. If one
entity maintains more than 50% control over a group consisting of
corporations and one, or more, partnerships and/or sole proprietorships,
all are members of a controlled group.
(c) Foreign trade zone. A foreign trade zone established and
operated pursuant to the Act of June 18, 1934, as amended, 19 U.S.C.
81a.
(d) Large cigarettes. Cigarettes weighing more than three pounds per
thousand.
(e) Person. When the term ``person'' is used in this subpart, it
refers to an individual, partnership, association, company, corporation,
a trust, or an estate. It also includes any State or political
subdivision.
(f) Small cigarettes. Cigarettes weighing not more than three pounds
per thousand.
(g) Tax increase dates. For the purposes of this floor stocks tax,
the tax increase dates are January 1, 2000 and January 1, 2002.

[T.D. ATF-423, 64 FR 71958, Dec. 22, 1999, as amended by ATF-457, 66 FR
32220, June 14, 2001; T.D. ATF-472, 67 FR 8881, Feb. 27, 2002; T.D. TTB-
44, 71 FR 16956, Apr. 4, 2006]

Sec. 46.193 Floor stocks tax defined.

Floor stocks tax is a tax imposed on all Federally taxpaid or tax
determined cigarettes held for sale on the first moment a tax increase
becomes effective. The tax is the difference between the previous excise
tax rate and the new tax rate.

Sec. 46.194 Persons liable for this tax.

You are liable for this tax if you hold for sale any taxpaid or
taxdetermined cigarettes at the moment a tax increase is effective. You
are liable for floor stocks tax on cigarettes that you own that may be
in transit (refer to Sec. Sec. 46.207 and 46.208). You may also be
liable if you hold cigarettes in a foreign trade zone (refer to Sec.
46.209).

Sec. 46.195 Persons not liable for this tax.

If you do not hold any taxpaid or taxdetermined cigarettes for sale
at the moment a tax increase is effective, you are not liable for this
tax.

Sec. 46.196 Floor stocks requirements.

(a) Take an inventory. Establish the quantity of cigarettes subject
to the floor stocks tax held for sale at the beginning of the tax
increase dates (January 1, 2000 and January 1, 2002). You may take a
physical inventory or you may use a book or record inventory, as
specified in Sec. Sec. 46.205 and 46.206.
(b) Compute tax amount. Compute the amount of tax for the cigarettes
held for sale at the start of each of the tax increase dates. Refer to
the table shown in Sec. 46.222. Apply the tax credit as provided by
Sec. 46.223.
(c) File tax return. After you have computed the floor stocks tax,
you must file a return for each tax increase date if tax is due.
(d) Maintain records. Maintain all records used to determine the
quantity of cigarettes on hand at the start of each tax increase date.
You must also maintain all computations used to determine the amount of
tax owed. Refer to Sec. 46.241.

(Approved by the Office of Management and Budget under control number
1512-0554)

Inventories

Sec. 46.201 Establish quantities of cigarettes.

You must take an inventory to establish the quantity of cigarettes
subject to the floor stocks tax. You may take a physical inventory or a
book or record inventory.

Sec. 46.202 Inventory for cigarettes with export markings.

Your inventory of cigarettes must count separately cigarettes that
have been labeled for export from the United States.

[[Page 157]]

Sec. 46.203 How to identify cigarettes with export markings.

Each package (the container in which cigarettes are put up by the
manufacturer and delivered to the consumer) of cigarettes will have:
(a) A mark or a label with the words ``Tax-exempt. For use outside
U.S.'' or ``U.S. Tax Exempt. For use outside U.S.''; or
(b) A stamp, sticker, or notice, required by a foreign country or
possession of the United States, which identifies such country or
possession.

Sec. 46.204 When to take inventory.

You must take your physical inventory or book or record inventory
during the periods noted in the table to this section.

------------------------------------------------------------------------
Date of floor stocks tax Not earlier than No later than
------------------------------------------------------------------------
January 1, 2000............. December 26, 1999... January 10, 2000.
January 1, 2002............. December 26, 2001... January 10, 2002.
------------------------------------------------------------------------

Sec. 46.205 Physical inventory requirements.

Your physical inventory must include a written record of:
(a) Quantity and Type. You must record the quantity and type of
cigarettes in sufficient detail to determine the tax rate as stated in
Sec. 46.222 and whether the cigarettes have export markings as stated
in Sec. 46.203. The following chart provides the type of cigarette and
method to use to determine quantities:

------------------------------------------------------------------------
Type or kind Inventory method
------------------------------------------------------------------------
Small cigarettes (Class A)... Count the:
Number of cigarettes
without export markings.
Number of cigarettes
with export markings.
Large cigarettes (Class B)... Count the:
Number of large
cigarettes 6.5 or less in
length without export markings.
Number of large
cigarettes 6.5 or less in
length with export markings.
Number of each size
of large cigarettes more than 6.5 in length without export markings.
Number of each size
of large cigarettes more than 6.5 in length with export markings.
------------------------------------------------------------------------

(b) Date. Date(s) the inventory was taken.
(c) Name. Name of individual(s) conducting the inventory and the
name of the person for whom the inventory was taken.
(d) Location. Record where the inventory was taken (street address,
city and State).
(e) Time. The physical inventory must be taken between the dates
shown in Sec. 46.204. If you do not take the physical inventory as of
the close of business on the last respective business days of 1999 and
2001, the records must be reconciled. The inventory records must be
reconciled to reflect the actual quantity of cigarettes held as of the
first moment of January 1, 2000 and January 1, 2002, respectively. These
records must include all supporting records of receipt and disposition.

Sec. 46.206 Book or record inventory requirements.

You may use a book or record inventory if you have source records
that show:
(a) The quantity of receipts and dispositions of all cigarettes.
(b) The actual type and quantities of cigarettes on hand as if a
physical inventory had taken place the moment the tax increase became
effective. Refer to Sec. 46.205(a).
(c) The name and address of the consignor and consignee.
(d) The date of receipt or disposition of the cigarettes.
(e) The brand name of each product.

[[Page 158]]

(f) If you do not take the inventory as of the close of business on
the last respective business days of 1999 and 2001, the records must be
reconciled as described in Sec. 46.205(e).

Sec. 46.207 Cigarettes in transit.

Cigarettes in transit must be included in your inventory if you hold
title to the cigarettes. If you have transferred the title, you must
document the title transfer in writing. For example, you may mark the
bill of lading with a written statement that indicates the time and
place of the title transfer.

Sec. 46.208 Guidelines to determine title of cigarettes in transit.

You may use the following guidelines to establish who holds title to
cigarettes in transit.
(a) If State law mandates the change in title, then no agreement or
contract between seller and buyer can alter it.
(b) In the absence of State law governing the change of title
between seller and buyer, the Uniform Commercial Code allows the seller
and buyer to agree when title passes.
(c) If there is no State law or agreement between the seller and
buyer, the Uniform Commercial Code states that title transfer depends on
how the seller ships the cigarettes.
(1) Freight on board (F.O.B.) destination. The title transfer occurs
when the seller completes the performance of the physical delivery of
the cigarettes.
(2) Freight on board (F.O.B.) shipping point. The title transfer
occurs when the seller transfers the title at the time and place of
shipment, which is generally by common carrier.

Sec. 46.209 Cigarettes in a foreign trade zone.

You are liable for the tax and must take an inventory when either of
the following conditions apply:
(a) Internal revenue taxes have been determined or Customs duties
liquidated, with respect to cigarettes pursuant to the first proviso of
section 3(a) of the Act of June 18, 1934 (48 Stat. 998, 19 U.S.C. 81a),
or
(b) Cigarettes are held by a Customs officer pursuant to the second
proviso of section 3(a) of the Act of June 18, 1934 (48 Stat. 998, 19
U.S.C. 81a).

Sec. 46.210 Cigarettes held in bond.

If you are a manufacturer or an export warehouse proprietor and hold
cigarettes in TTB bond on the tax increase dates, the floor stocks tax
does not apply to those cigarettes. Likewise, if you have cigarettes
held in a Customs bonded warehouse, the floor stocks tax does not apply
on those cigarettes.

Sec. 46.211 Unmerchantable cigarettes.

Any cigarettes that you hold for return to a supplier because of
some defect are not subject to the floor stocks tax. You must prepare a
separate list of these items. You cannot include as unmerchantable any
items that may be held because of poor market demand or to reduce your
inventory.

Sec. 46.212 Cigarettes in vending machines.

You do not have to inventory cigarettes held in a vending machine
for retail sale, provided:
(a) The vending machine holding the cigarettes is placed at a
location where retail sales occur, and
(b) The cigarettes are ready to be dispensed by a consumer.

Sec. 46.213 Cigarettes marked ``not for sale'' or ``complimentary''.

Cigarettes marked ``not for sale'' or ``complimentary'' that are
part of a sale (for example, buy two packs and get one pack free) are
subject to the floor stocks tax and must be included in the book or
record inventory as required by Sec. Sec. 46.205 and 46.206. Cigarettes
that are marked ``not for sale'' or ``complimentary'' and are intended
to be given away and not in conjunction with any sale are not subject to
the floor stocks tax.

Compute Tax Liability

Sec. 46.221 Determine amount of tax due.

After you have taken your inventory, apply the applicable tax rate
for each type of cigarette using the table in Sec. 46.222. Multiply the
amount of each type of cigarette by the applicable tax rate.

[[Page 159]]

Sec. 46.222 Floor stocks tax rates.

------------------------------------------------------------------------
Type or kind January 1, 2000 January 1, 2002
------------------------------------------------------------------------
Small Cigarettes (3 pounds or $5 per 1,000 or 10 $2.50 per 1,000 or
less per 1,000). cents per 20. 5 cents per 20
Large Cigarettes (more than 3 $10.50 per 1,000 $5.25 per 1,000 or
pounds per 1,000). or 21 cents per 10.5 cents per 20
20.
------------------------------------------------------------------------
Special rule: For large
cigarettes over 6\1/2\ inches
long determine the rate for
each length. Multiply the
rate prescribed for small
cigarettes by the whole
number that represents the
addition of each 2\3/4\
inches and any fraction of
the length, as one (1)
------------------------------------------------------------------------

Sec. 46.223 Apply tax credit.

You are allowed a credit against your floor stocks tax of up to
$500. However, controlled groups are eligible for only one credit for
the entire group. The credit may be divided equally among the members or
apportioned in any other manner agreeable to the members.

Filing Requirements

Sec. 46.231 How to obtain a tax return.

Form 5000.28T, Floor Stocks Tax Return for Cigarettes, is available
for printing through the TTB Web site (http://www.ttb.gov) or by mailing
a request to the Alcohol and Tobacco Tax and Trade Bureau, National
Revenue Center, 550 Main Street, Room 1516, Cincinnati, OH 45202.

[T. D. TTB-44, 71 FR 16956, Apr. 4, 2006]

Sec. 46.232 Prepare tax return.

If your tax liability is zero, you do not have to complete or file a
tax return. Otherwise, complete and file the floor stocks tax return in
accordance with the instructions for the form.

Sec. 46.233 How to pay.

(a) Check or money order. Your payment must be in the form of a
check or money order and sent with Form 5000.28T unless you are required
to file by electronic fund transfer as described in paragraph (b) of
this section.
(b) Electronic fund transfer. If you pay any other excise taxes
collected by TTB by electronic fund transfer, then you must also send
your payment for this floor stocks tax by an electronic fund transfer.
Publication 5000.10, Payment by Electronic Funds Transfer, specifies how
to make an electronic fund transfer. Publication 5000.10 is available
for printing through the TTB Web site (http://www.ttb.gov) or by mailing
a request to the Alcohol and Tobacco Tax and Trade Bureau, National
Revenue Center, 550 Main Street, Room 1516, Cincinnati, OH 45202.

[T. D. TTB-44, 71 FR 16956, Apr. 4, 2006]

Sec. 46.234 Tax return due dates.

------------------------------------------------------------------------
Tax increase date File tax return no later than:
------------------------------------------------------------------------
January 1, 2000........................ March 31, 2000 \1\
January 1, 2002........................ April 1, 2002
------------------------------------------------------------------------
\1\ Section 9302(j) of P.L. 105-33 states that the due date is April 1,
2000. However, section 5703(b)(2)(E) of the Internal Revenue Code
requires that when a due date falls on a Saturday, Sunday or a legal
holiday, the preceding day that is not a Saturday, Sunday or legal
holiday will be the due date. Therefore, the floor stocks tax for this
period is due on March 31, 2000 since April 1, 2000, falls on a
Saturday.

Sec. 46.235 Filing requirements for multiple locations.

You may file a consolidated return if all locations or places of
business have the same employer identification number. You also have the
option of filing a separate return for each place of business or
location.

Sec. 46.236 Cigarettes in a warehouse.

(a) Cigarettes warehoused at one or more locations must be reported
on the tax return representing the location where the cigarettes will be
offered for sale.
(b) Cigarettes offered for sale at several locations must be
reported on a tax return filed by one or more of the locations. The
cigarettes can be reported by a single location or apportioned among
several locations.

Sec. 46.237 Controlled group members.

If you are a member of a controlled group, you must file if the
combined liability with other members is more

[[Page 160]]

than $500. If you have your own employer identification number, you must
file a separate tax return. You may take the tax credit discussed in
Sec. 46.223 if it is apportioned to you as a member of the controlled
group.

Records

Sec. 46.241 Required records.

You must maintain:
(a) Inventory records.
(b) Tax computations.
(c) Names, addresses and employer identification number of all
controlled group members, if applicable.
(d) Copy of tax return, if you filed one.
(e) List of locations and warehouses covered by the tax return.
(f) Any approved alternate method or procedure under 46.263.

Sec. 46.242 Period for maintaining records.

An appropriate TTB officer may require, in writing, that you keep
records and any tax returns for an additional period of not more than 3
years. Keep your records in accordance with time frames shown in the
table to this section.

------------------------------------------------------------------------
Maintain your records for at
If you have: least:
------------------------------------------------------------------------
Taken an inventory but are not required 3 years from the tax increase
to file a tax return. date.
Filed a tax return on or before the due 3 years from the due date of
date of the return. the tax return, as specified
in Sec. 46.234.
Filed a tax return after the due date 3 years from the date of filing
of the tax return. the tax return.
------------------------------------------------------------------------

Sec. 46.243 Cigarettes at multiple locations.

You must maintain a list of each place where you hold cigarettes
subject to the floor stocks tax. This list must include:
(a) Address.
(b) Name of the proprietor (if different).
(c) The employer identification number (if different).
(d) Quantity and classification of all cigarettes held at each
location.

Sec. 46.244 Where records must be maintained.

Keep your inventory records at your principal place of business. All
records must be made available to an appropriate TTB officer upon
demand.

Sec. 46.245 Errors in records.

If your inventory records or tax computation records contain an
error that resulted in an overpayment of tax, you can file a claim for
refund. If your inventory or tax computation records contain an error
that resulted in an underpayment of tax, you must file an additional tax
return on which you show and pay the additional tax, interest and any
applicable penalties.

Claims

Sec. 46.251 Before filing a claim.

Before you can file a claim for refund, you must have paid your
floor stocks tax on TTB F 5200.28T and subsequently determined that you
overpaid the tax.

Sec. 46.252 When to file a claim for errors on return.

You must file the claim within 3 years from the due date of filing
the tax return or 2 years from the time the tax was paid, whichever is
later.

Sec. 46.253 How to file a claim for errors on return.

Your claim must be filed on TTB Form 2635 (5620.8). The claim must
include detailed and sufficient evidence to support why you believe the
tax was overpaid. The claim and supporting documentation must be mailed
or delivered to the address shown on the form.

(Approved by the Office of Management and Budget under control number
1512-0554)

Sec. 46.254 Destruction of cigarettes by a Presidentially-declared major

disaster.

After you have paid the floor stocks tax, you may file a claim for
refund of

[[Page 161]]

tax on cigarettes lost, rendered unmarketable, or condemned because of a
Presidentially-declared major disaster. Refer to subpart C of this part
for the time, evidence and procedures for filing a claim.

Sec. 46.255 Additional reasons for filing a claim.

(a) Manufacturer. 27 CFR part 40, subparts I and K state the times,
reasons and procedures for filing a claim for refund.
(b) Export warehouse proprietor. 27 CFR part 44, subpart G, states
the time, evidence and procedures for filing a claim for refund.
(c) Exported taxpaid. If cigarettes are shipped from the United
States, you may file a claim for drawback of taxes under subpart K of 27
CFR part 44.
(d) Importer. An importer may follow the procedures for filing a
claim as described in 27 CFR part 41, subpart I.

[T.D. ATF-423, 64 FR 71958, Dec. 22, 1999, as amended by T.D. ATF-460,
66 FR 39093, July 27, 2001; T.D. ATF-464, 66 FR 43479, Aug. 20, 2001;
T.D. TTB-16, 69 FR 52423, Aug. 26, 2004]

Alternate Methods or Procedures

Sec. 46.261 Purpose of an alternate method or procedure.

An alternate method or procedure is a different way of performing a
requirement than is provided in this subpart of regulations. You would
only make a request if you wanted to perform a requirement in a
different way than is provided in this subpart.

Sec. 46.262 How to apply for approval.

You must apply in writing to the National Revenue Center, 550 Main
Street, Cincinnati, Ohio 45202-3263. You must describe the alternate
method or procedure and reasons you wish to use it. You cannot use the
alternate method until you receive written approval from the appropriate
TTB officer.

(Approved by the Office of Management and Budget under control number
1512-0554)

Sec. 46.263 Conditions for approval.

The alternate method or procedure may be approved if it meets all of
the following conditions:
(a) There is good cause for its use.
(b) It is consistent with the purpose and effect intended by the
prescribed method or procedure.
(c) It affords equivalent security to the revenue.
(d) It is not contrary to any provision of law.
(e) It will not result in an increase in cost to the Government.
(f) It will not hinder the effective administration of this subpart
such as delaying timely payment of taxes.
(g) It is not a method or procedure that relates to the payment or
collection of tax.

Sec. 46.264 Withdrawal of an alternate method or procedure.

The approval will be withdrawn if revenue is jeopardized or
administration of this subpart is hindered. The appropriate TTB officer
will give you a written notice of the withdrawal.

TTB Authorities

Sec. 46.270 [Reserved]

Sec. 46.271 Entry, examination and testimony.

Appropriate TTB officers, in performing official duties, may enter
any premises to examine cigarettes subject to floor stocks tax. They may
enter the premises during the day or may also enter at night if the
premises are open. Appropriate TTB officers may audit and examine all
cigarettes, inventory records, books, papers, or other resource data for
the purpose of ascertaining, determining or collecting floor stocks tax.
They may take testimony (under oath) of any person when inquiring as to
proper payment of floor stocks taxes.

Sec. 46.272 Issuance of summons.

Appropriate TTB officers can issue summonses when there is no
Justice Department referral under the authority stated in 27 CFR 70.22.
The summons will state a place and time for such items or person to
appear. TTB will issue a summons to require:
(a) Any books of account or other data pertaining to liability of
floor stocks tax.
(b) Any person liable for the floor stocks tax or having possession
of books of account or other data.

[[Page 162]]

Sec. 46.273 Refusing entry or examination.

If you or another person in charge of the premises refuses to admit
any appropriate TTB officer or prevents any appropriate TTB officer from
examining the records or cigarettes, you may be liable for the penalties
described in 26 U.S.C. 7342 and 7212, respectively.

Sec. 46.274 Penalties for failure to comply.

If you fail to follow these regulations, TTB may apply applicable
civil and criminal penalties under the Internal Revenue Code of 1986.
For example, failure to file and failure to pay penalties may be
assessed against you if you do not timely file your tax return or timely
pay the taxes due. In addition, interest under 26 U.S.C. 6621 accrues
for any underpayment of tax and on all assessed penalties until paid.

[[Page 163]]

SUBCHAPTER C_FIREARMS

PART 53_MANUFACTURERS EXCISE TAXES_FIREARMS AND AMMUNITION--Table of Contents

Subpart A_Introduction

Sec.
53.1 Introduction.
53.2 Attachment of tax.
53.3 Exemption certificates.

Subpart B_Definitions

53.11 Meaning of terms.

Subpart C_Administrative and Miscellaneous Provisions

53.20 Delegations of the Administrator.
53.21 Forms prescribed.
53.22 Employer identification number.
53.23 Alternate methods or procedures.
53.24 Records.

Subparts D-F [Reserved]

Subpart G_Tax Rates

53.61 Imposition and rates of tax.
53.62 Exemptions.
53.63 Other tax-free sales.

Subparts H-I [Reserved]

Subpart J_Special Provisions Applicable to Manufacturers Taxes

53.91 Charges to be included in sale price.
53.92 Exclusions from sale price.
53.93 Other items relating to tax on sale price.
53.94 Constructive sale price; scope and application.
53.95 Constructive sale price; basic rules.
53.96 Constructive sale price; special rule for arm's length sales.
53.97 Constructive sale price; affiliated corporations.
53.98 Computation of tax on leases and installment sales.
53.99 Sales of installment accounts.
53.100 Exclusion of local advertising charges from sale price.
53.101 Limitation on aggregate of exclusions and price readjustments.
53.102 No exclusion or readjustment for other advertising charges or
reimbursements.
53.103 Lease considered as sale.
53.104 Limitation on amount of tax applicable to certain leases.

Use by Manufacturer or Importer Considered Sale

53.111 Tax on use by manufacturer, producer, or importer.
53.112 Business or personal use of articles.
53.113 Events subsequent to taxable use of article.
53.114 Use in further manufacture.
53.115 Computation of tax.

Application of Tax in Case of Sales by Other Than Manufacturer or
Importer

53.121 Sales of taxable articles by a person other than the
manufacturer, producer, or importer.

Subpart K_Exemptions, Registration, Etc.

53.131 Tax-free sales; general rule.
53.132 Tax-free sale of articles to be used for, or resold for, further
manufacture.
53.133 Tax-free sale of articles for export, or for resale by the
purchaser to a second purchaser for export.
53.134 Tax-free sale of articles for use by the purchaser as supplies
for vessels or aircraft.
53.135 Tax-free sale of articles to State and local governments for
their exclusive use.
53.136 Tax-free sales of articles to nonprofit educational
organizations.
53.137-53.139 [Reserved]
53.140 Registration.
53.141 Exceptions to the requirement for registration.
53.142 Denial, revocation or suspension of registration.
53.143 Special rules relating to further manufacture.

Subpart L_Refunds and Other Administrative Provisions of Special
Application to Manufacturers Taxes

53.151 Returns.
53.152 Final returns.
53.153 Time for filing returns.
53.154 Manner of filing returns.
53.155 Extension of time for filing returns.
53.156 Extension of time for paying tax shown on return.
53.157 Deposit requirement for deposits made for calendar quarters prior
to July 1, 1995.
53.158 Payment of tax by electronic fund transfer.
53.159 Deposit requirement for deposits made for calendar quarters
beginning on or after July 1, 1995.
53.161 Authority to make credits or refunds.
53.162 Abatements.
53.163-53.170 [Reserved]

[[Page 164]]

53.171 Claims for credit or refund of overpayments of manufacturers
taxes.
53.172 Credit or refund of manufacturers tax under chapter 32.
53.173 Price readjustments causing overpayments of manufacturers tax.
53.174 Determination of price readjustments.
53.175 Readjustment for local advertising charges.
53.176 Supporting evidence required in case of price readjustments.
53.177 Certain exportations, uses, sales, or resales causing
overpayments of tax.
53.178 Exportations, uses, sales, and resales included.
53.179 Supporting evidence required in case of manufacturers tax
involving exportations, uses, sales, or resales.
53.180 Tax-paid articles used for further manufacture and causing
overpayments of tax.
53.181 Further manufacture included.
53.182 Supporting evidence required in case of tax-paid articles used
for further manufacture.
53.183 Return of installment accounts causing overpayments of tax.
53.184 Refund to exporter or shipper.
53.185 Credit on returns.
53.186 Accounting procedures for like articles.
53.187 OMB control numbers.

Authority: 26 U.S.C. 4181, 4182, 4216-4219, 4221-4223, 4225, 6001,
6011, 6020, 6021, 6061, 6071, 6081, 6091, 6101-6104, 6109, 6151, 6155,
6161, 6301-6303, 6311, 6402, 6404, 6416, 7502.

Source: T.D. ATF-308, 56 FR 303, Jan. 3, 1991, unless otherwise
noted.

Editorial Note: Nomenclature changes to part 53 appear by T.D. ATF-
447, 66 FR 19088, Apr. 13, 2001.

Subpart A_Introduction

Sec. 53.1 Introduction.

The regulations in this part (part 53, subchapter C, chapter I,
title 27, Code of Federal Regulations) are designated ``Manufacturers
Excise Taxes--Firearms and Ammunition.'' The regulations relate to the
tax on the sale of firearms and ammunition imposed by section 4181 of
the Internal Revenue Code of 1986, and to certain related administrative
provisions of chapter 32, subchapter F, of the Code. Chapter 32,
subchapter D of the Code imposes taxes on the sale or use by the
manufacturer, producer, or importer of certain recreational equipment
specified in that chapter. References in the regulations in this part to
the ``Internal Revenue Code'' or the ``Code'' are references to the
Internal Revenue Code of 1986 (United States Code of 1986), as amended,
unless otherwise indicated. References to a section or other provision
of law are references to a section or other provision of the Internal
Revenue Code of 1986, as amended, unless otherwise indicated.

Sec. 53.2 Attachment of tax.

(a) For purposes of this part, the manufacturers excise tax
generally attaches when the title to the article sold passes from the
manufacturer to a purchaser.
(b) When title passes is dependent upon the intention of the parties
as gathered from the contract of sale and the attendant circumstances.
In the absence of expressed intention, the legal rules of presumption
followed in the jurisdiction where the sale is made govern in
determining when title passes.
(c) In the case of a sale on credit, the tax attaches whether or not
the purchase price is actually collected.
(d) Where a consignor (such as a manufacturer) consigns articles to
a consignee (such as a dealer), retaining ownership in them until they
are disposed of by the consignee, title does not pass, and the tax does
not attach until sale by the consignee. Where the relationship between a
manufacturer and a dealer is that of principal and agent, title does not
pass, and the tax does not attach, until sale by the dealer.
(e) In the case of a lease, an installment sale, a conditional sale,
or a chattel mortgage arrangement or similar arrangement creating a
security interest, a proportionate part of the tax attaches to each
payment. See section 4217 and Sec. Sec. 53.103 and 53.104 for a
limitation on the amount of tax payable on lease payments.
(f) In the case of use by the manufacturer, the tax attaches at the
time the use begins.

[[Page 165]]

Sec. 53.3 Exemption certificates.

Several provisions of this part, relating to sales exempt from
manufacturers excise tax, require the manufacturer to obtain an
exemption certificate from the purchaser to substantiate the exempt
character of the sale. Any form of exemption certificate will be
acceptable if it includes all the information required by the provisions
of this part. These certificates are available as preprinted documents,
which may be ordered by mailing a request to the Alcohol and Tobacco Tax
and Trade Bureau, National Revenue Center, 550 Main Street, Room 1516,
Cincinnati, OH 45202. The preprinted certificates may be reproduced as
needed.

[T.D. TTB-44, 71 FR 16957, Apr. 4, 2006]

Subpart B_Definitions

Sec. 53.11 Meaning of terms.

When used in this part and in forms prescribed under this part,
where not otherwise distinctly expressed or manifestly incompatible with
the intent thereof, terms shall have the meanings ascribed in this
section. Words in the plural form shall include the singular, and vice
versa, and words importing the masculine gender shall include the
feminine. The terms ``includes'' and ``including'' do not exclude other
things not enumerated which are in the same general class or are
otherwise within the scope thereof.
Administrator. The Administrator, Alcohol and Tobacco Tax and Trade
Bureau, Department of the Treasury, Washington, DC.
Appropriate TTB officer. An officer or employee of the Alcohol and
Tobacco Tax and Trade Bureau (TTB) authorized to perform any functions
relating to the administration or enforcement of this part by TTB Order
1135.53, Delegation of the Administrator's Authorities in 27 CFR Part
53, Manufacturers Excise Taxes--Firearms and Ammunition.
Calendar quarter. A period of 3 calendar months ending on March 31,
June 30, September 30, or December 31.
Calendar year. The period which begins January 1 and ends on the
following December 31.
Chapter 32. For purposes of this part chapter 32 means section 4181,
chapter 32, of the Internal Revenue Code of 1986, as amended.
Code. Internal Revenue Code of 1986, as amended.
Electronic fund transfer (EFT). Any transfer of funds effected by a
taxpayer's financial institution, either directly or through a
correspondent banking relationship, via the Federal Reserve
Communications System (FRCS) or Fedwire to the Treasury Account at the
Federal Reserve Bank.
Exportation. The severance of an article from the mass of things
belonging within the United States with the intention of uniting it with
the mass of things belonging within some foreign country or within a
possession of the United States.
Exporter. The person named as shipper or consignor in the export
bill of lading.
Financial institution. A bank or other financial institution,
whether or not a member of the Federal Reserve System, which has access
to the Federal Reserve Communications Systems (FRCS) or Fedwire. The
``FRCS'' or ``Fedwire'' is a communications network that allows Federal
Reserve System member financial institutions to effect a transfer of
funds for their customers (or other financial institutions) to the
Treasury Account at the Federal Reserve Bank.
Firearms. Any portable weapons, such as rifles, carbines, machine
guns, shotguns, or fowling pieces, from which a shot, bullet, or other
projectile may be discharged by an explosive.
Importer. Any person who brings a taxable article into the United
States from a source outside the United States, or who withdraws such an
article from a customs bonded warehouse for sale or use in the United
States. If the nominal importer of a taxable article is not its
beneficial owner (for example, the nominal importer is a customs broker
engaged by the beneficial owner), the beneficial owner is the
``importer'' of the article for purposes of chapter 32 of the Code and
is liable for tax on his sale or use of the article in the United
States. See section 4219 of the Code and 27 CFR 53.121 for the
circumstances under which sales by

[[Page 166]]

persons other than the manufacturer or importer are subject to the
manufacturers excise tax.
Knockdown condition. A taxable article that is unassembled but
complete as to all component parts.
Manufacturer. Includes any person who produces a taxable article
from scrap, salvage, or junk material, or from new or raw material, by
processing, manipulating, or changing the form of an article or by
combining or assembling two or more articles. The term also includes a
``producer'' and an ``importer.'' Under certain circumstances, as where
a person manufactures or produces a taxable article for another person
who furnishes materials under an agreement whereby the person who
furnished the materials retains title thereto and to the finished
article, the person for whom the taxable article is manufactured or
produced, and not the person who actually manufactures or produces it,
will be considered the manufacturer.
A manufacturer who sells a taxable article in a knockdown condition
is liable for the tax as a manufacturer. Whether the person who buys
such component parts or accessories and assembles a taxable article from
them will be liable for tax as a manufacturer of a taxable article will
depend on the relative amount of labor, material, and overhead required
to assemble the completed article and on whether the article is
assembled for business or personal use.
Person. An individual, trust, estate, partnership, association,
company, or corporation. When used in connection with penalties,
seizures, and forfeitures, the term includes an officer or employee of a
partnership, who as an officer, employee or member, is under a duty to
perform the act in respect of which the violation occurs.
Pistols. Small projectile firearms which have a short one-hand stock
or butt at an angle to the line of bore and a short barrel or barrels,
and which are designed, made, and intended to be aimed and fired from
one hand. The term does not include gadget devices, guns altered or
converted to resemble pistols, or small portable guns erroneously
referred to as pistols, as, for example, Nazi belt buckle pistols, glove
pistols, or one-hand stock guns firing fixed shotgun or fixed rifle
ammunition.
Possession of the United States. Includes Guam, the Midway Islands,
Palmyra, the Panama Canal Zone, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, and Wake Island.
Purchaser. Includes a lessee where the lessor is also the
manufacturer of the article.
Revolvers. Small projectile firearms of the pistol type, having a
breech-loading chambered cylinder so arranged that the cocking of the
hammer or movement of the trigger rotates it and brings the next
cartridge in line with the barrel for firing.
Sale. An agreement whereby the seller transfers the property (that
is, the title or the substantial incidents of ownership in goods) to the
buyer for a consideration called the price, which may consist of money,
services, or other things.
Secretary. The Secretary of the Treasury or his delegate.
Shells and cartridges. Include any article consisting of a
projectile, explosive, and container that is designed, assembled, and
ready for use without further manufacture in firearms, pistols or
revolvers. A person who reloads used shell or cartridge casings is a
manufacturer of shells or cartridges within the meaning of section 4181
if such reloaded shells or cartridges are sold by the reloader. However,
the reloader is not a manufacturer of shells or cartridges if, in return
for a fee and expenses, he reloads casings of shells or cartridges
submitted by a customer and returns the reloaded shells or cartridges
with the identical casings provided by the customer to that customer.
Under such circumstances, the customer would be the manufacturer of the
shells or cartridges and may be liable for tax on the sale of articles.
See section 4218 of the Code and Sec. 53.112.
Taxable article. Any article taxable under section 4181 of the Code.
Treasury Account. The Department of Treasury's General Account at
the Federal Reserve Bank of New York.

[[Page 167]]

Vendor. Includes a lessor where the lessor is also the manufacturer
of the article.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31083, July 9, 1991; T.D. ATF-330, 57 FR 40325, Sept. 3, 1992; T.D.
ATF-365, 60 FR 33670, June 28, 1995; T.D. ATF-404, 63 FR 52603, Oct. 1,
1998; T.D. ATF-447, 66 FR 19088, Apr. 13, 2001; T.D. TTB-44, 71 FR
16957, Apr. 4, 2006]

Subpart C_Administrative and Miscellaneous Provisions

Sec. 53.20 Delegations of the Administrator.

The regulatory authorities of the Administrator contained in this
part are delegated to appropriate TTB officers. These TTB officers are
specified in TTB Order 1135.53, Delegation of the Administrator's
Authorities in 27 CFR Part 53, Manufacturers Excise Taxes--Firearms and
Ammunition. You may obtain a copy of this order by accessing the TTB Web
site (http://www.ttb.gov) or by mailing a request to the Alcohol and
Tobacco Tax and Trade Bureau, National Revenue Center, 550 Main Street,
Room 1516, Cincinnati, OH 45202.

[T.D. TTB-44, 71 FR 16957, Apr. 4, 2006]

Sec. 53.21 Forms prescribed.

(a) The appropriate TTB officer is authorized to prescribe all forms
required by this part. All of the information called for in each form
shall be furnished as indicated by the headings on the form and the
instructions on or pertaining to the form. In addition, information
called for in each form shall be furnished as required by this part. The
form will be filed in accordance with the instructions on the form.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National Revenue Center, 550
Main Street, Room 1516, Cincinnati, OH 45202.
(c) Signature authorization. An individual's signature on a return,
statement, or other document made by or for a corporation or a
partnership shall be prima facie evidence that the individual is
authorized to sign the return, statement, or other document.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991. Redesignated in part by T.D.
ATF-365, 60 FR 33670, June 28, 1995, as amended by T.D. 372, 61 FR
20724, May 8, 1996; T.D. ATF-447, 66 FR 19088, Apr. 13, 2001; T.D. TTB-
44, 71 FR 16957, Apr. 4, 2006]

Sec. 53.22 Employer identification number.

(a) Requirement of application. (1) Except for one-time or
occasional filers, every person who makes a sale or use of an article
with respect to which a tax is imposed by section 4181 of the Code, and
who has not earlier been assigned an employer identification number or
has not applied for one, shall make an application on Form SS-4 for an
employer identification number. The application and any supplementary
statement accompanying it shall be prepared in accordance with the
applicable form, instructions, and regulations and shall set forth fully
and clearly the data therein called for. Form SS-4 may be obtained from
any internal revenue district office or internal revenue service center.
The application shall be filed with the internal revenue officer
designated in the instructions applicable to Form SS-4. The application
shall be signed by:
(i) The individual if the person is an individual;
(ii) The president, vice-president, or other principal officer, if
the person is a corporation;
(iii) A responsible and duly authorized member or officer having
knowledge of its affairs, if the person is a partnership or other
unincorporated organization; or
(iv) The fiduciary, if the person is a trust or estate.
An employer identification number will be assigned to the person in
due course upon the basis of information reported on the application
required under this section.
(2) Time for filing Form SS-4. The application for an employer
identification number shall be filed no later than the seventh day after
the date of the first sale or use of an article with respect to which a
tax is imposed by chapter 32 of the Code. However, the application
should be filed far enough

[[Page 168]]

in advance of the first required use of such number to permit issuance
of the number in time for compliance with such requirement.
(3) One-time or occasional filers. A person who files a return under
the provisions of section 53.151(a)(5) is not required to make
application for an employer identification number. Such persons may use
their social security number on any return, statement or other document
submitted to TTB by that person in lieu of an employer identification
number.
(b) Use of employer identification number. The employer
identification number assigned to a person liable for a tax imposed by
chapter 32 of the Code shall be shown on any return, statement, or other
document submitted to TTB by the person.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-365, 60
FR 33670, June 28, 1995; T.D. ATF-447, 66 FR 19088, Apr. 13, 2001]

Sec. 53.23 Alternate methods or procedures.

(a) A taxpayer, on specific approval by the appropriate TTB officer
as provided in this section, may use an alternate method or procedure in
lieu of a method or procedure specifically prescribed in this part. The
appropriate TTB officer may approve an alternate method or procedure,
subject to stated conditions, when--
(1) Good cause has been shown for the use of the alternate method or
procedure;
(2) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the specifically prescribed
method or procedure, and affords equivalent security to the revenue; and
(3) The alternate method or procedure will not be contrary to any
provision of law and will not result in an increase in cost to the
Government or hinder the effective administration of this part. No
alternate method or procedure relating to the assessment, payment, or
collection of tax shall be authorized under this paragraph.
(b) Where the taxpayer desires to employ an alternate method or
procedure, a written application to do so must be submitted. The
application must specifically describe the proposed alternate method or
procedure and must set forth the reasons therefor. Alternate methods or
procedures must not be employed until the appropriate TTB officer has
approved the application. The taxpayer must, during the period of
authorization of an alternate method or procedure, comply with the terms
of the approved application. Authorization for any alternate method or
procedure may be withdrawn whenever, in the judgment of the appropriate
TTB officer, the revenue is jeopardized or the effective administration
of this part is hindered by the continuation of such authorization.

[T.D. ATF-365, 60 FR 33670, June 28, 1995, as amended by T.D. ATF-447,
66 FR 19088, Apr. 13, 2001]

Sec. 53.24 Records.

(a) In general--(1) Form of records. The records required by the
regulations in this part shall be kept accurately, but no particular
form is required for keeping the records. Such forms and systems of
accounting shall be used as will enable appropriate TTB officers to
ascertain whether liability for tax is incurred and, if so, the amount
thereof.
(2) [Reserved]
(b) Copies of returns, schedules, and statements. Every person who
is required, by the regulations in this part or by instructions
applicable to any form prescribed thereunder, to keep any copy of any
return, schedule, statement, or other document, shall keep such copy as
a part of the records.
(c) Records of claimants. Any person who, pursuant to the
regulations in this part, claims a refund, credit, or abatement, shall
keep a complete and detailed record with respect to the tax, interest,
addition to the tax, additional amount, or assessable penalty to which
the claim relates. Such record shall include any records required of the
claimant by paragraph (b) of this section and subpart L of this part.
(d) Place and period for keeping records. (1) All records required
by this part shall be prepared and kept by the person required to keep
them, at one or more convenient and safe locations accessible to
appropriate TTB officers, and shall at all times be immediately

[[Page 169]]

available for inspection by such officers.
(2) Except as otherwise provided in this subparagraph, every person
required by the regulations in this part to keep records in respect of a
tax shall maintain such records for at least three years after the due
date of such tax for the return period to which the records relate, or
the date such tax is paid, whichever is later. The records of claimants
required by paragraph (c) of this section shall be maintained for a
period of at least three years after the date the claim is filed.
(e) Reproduction of original records. (1) General books of account,
such as cash books, journals, voucher registers, ledgers, etc., shall be
maintained and preserved in their original form. However, reproductions
of supporting records of details, such as invoices, vouchers, production
reports, sales records, certificates, proofs of exportation, etc., may
be kept in lieu of the original records. Any process may be used which
accurately and timely reproduces the original record, and which forms a
durable medium for reproducing and preserving the original record.
(2) Copies of records treated as original records. Whenever records
are reproduced under this section, the reproduced records shall be
preserved in conveniently accessible files, and provisions shall be made
for examining, viewing, and using the reproduced records the same as if
they were the original record. Such reproduced records shall be treated
and considered for all purposes as though they were the original record.
All provisions of law and regulations applicable to the original record
are applicable to the reproduced record.

[T.D. ATF-365, 60 FR 33670, June 28, 1995, as amended by T.D. ATF-447,
66 FR 19088, Apr. 13, 2001]

Subparts D-F [Reserved]

Subpart G_Tax Rates

Sec. 53.61 Imposition and rates of tax.

(a) Imposition of tax. Section 4181 of the Code imposes a tax on the
sale of the following articles by the manufacturer, producer, or
importer thereof:
(1) Pistols;
(2) Revolvers;
(3) Firearms (other than pistols and revolvers); and
(4) Shells and cartridges.
(b) Parts or accessories--(1) In general. No tax is imposed by
section 4181 of the Code on the sale of parts or accessories of
firearms, pistols, revolvers, shells, and cartridges when sold
separately or when sold with a complete firearm for use as spare parts
or accessories. The tax does attach, however, to sales of completed
firearms, pistols, revolvers, shells, and cartridges, and to sale of
such articles that, although in knockdown condition, are complete as to
all component parts.
(2) Component parts. Component parts are items that would ordinarily
be attached to a firearm during use and, in the ordinary course of
trade, are packaged with the firearm at the time of sale by the
manufacturer or importer. All component parts for firearms are
includible in the price for which the article is sold.
(3) Nontaxable parts. Parts sold with firearms that duplicate
component parts that are not includible in the price for which the
article is sold.
(4) Nontaxable accessories. Items that are not designed to be
attached to a firearm during use or that are not, in the ordinary course
of trade, provided with the firearm at the time of the sale by the
manufacturer or importer are not includible in the price for which the
article is sold.
(5) Examples--(i) In general. The following examples are provided as
guidelines and are not meant to be all inclusive.
(ii) Component parts. Component parts include items such as a frame
or receiver, breech mechanism, trigger mechanism, barrel, buttstock,
forestock, handguard, grips, buttplate, fore end cap, trigger guard,
sight or set of sights (iron or optical), sight mount or set of sight
mounts, a choke, a flash hider, a muzzle brake, a magazine, a

[[Page 170]]

set of sling swivels, and/or an attachable ramrod for muzzle loading
firearms when provided by the manufacturer or importer for use with the
firearm in the ordinary course of commercial trade. Component parts also
include any part provided with the firearm that would affect the tax
status of the firearm, such as an attachable shoulder stock.
(iii) Nontaxable parts. Nontaxable parts include items such as extra
barrels, extra sights, optical sights and mounts (in addition to iron
sights), spare magazines, spare cylinders, extra choke tubes, and spare
pins.
(iv) Nontaxable accessories. Nontaxable accessories include items
such as cleaning equipment, slings, slip on recoil pads (in addition to
standard buttplate), tools, gun cases for storage or transportation,
separate items such as knives, belt buckles, or medallions. Nontaxable
accessories also include optional items purchased by the customer at the
time of retail sale that do not change the tax classification of the
firearm, such as telescopic sights and mounts, recoil pads, slings,
sling swivels, chokes, and flash hiders/muzzle brakes of a type not
provided by the manufacturer or importer of the firearm in the ordinary
course of commercial trade.
(c) Rates of tax. Tax is imposed on the sale of the articles
specified in section 4181 of the Code at the rates indicated below.

------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
(1) Pistols.................................................. 10
(2) Revolvers................................................ 10
(3) Firearms (other than pistols and revolvers).............. 11
(4) Shells and cartridges.................................... 11
------------------------------------------------------------------------

(d) Computation of tax. The tax is computed by applying to the price
for which the article is sold the applicable rate. For definition of the
term ``price'' see section 4216 of the Code and the regulations
contained in subpart J of this part.
(e) Liability for tax. The tax imposed by section 4181 of the Code
is payable by the manufacturer, producer, or importer making the sale.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-404, 63
FR 52603, Oct. 1, 1998]

Sec. 53.62 Exemptions.

(a) Firearms subject to the National Firearms Act. Section 4182(a)
provides that the tax imposed by section 4181 of the Code shall not
attach to the sale of any firearms on which the tax imposed by section
5811 of the Code (relating to tax on the transfer of machine guns,
short-barreled firearms, and other weapons) has been paid. Any
manufacturer, producer, or importer claiming such an exemption from the
tax imposed by section 4181 of the Code must maintain such records and
be prepared to produce such evidence as will establish the right to the
exemption.
(b) Sales to Defense Department or to U.S. Coast Guard--(1) Military
department. Section 4182(b) of the Code provides that the tax imposed by
section 4181 of the Code shall not attach to the sale of firearms,
pistols, revolvers, shells, or cartridges that are purchased with funds
appropriated for a military department of the United States. For this
purpose, the term ``military department'' means the Department of the
Army, the Department of the Navy, and Department of the Air Force.
Included in the Department of the Navy are naval aviation and the Marine
Corps.
(2) Coast Guard. Section 655, title 14, U.S.C., provides that no tax
on the sale or transfer of firearms, pistols, revolvers, shells, or
cartridges may be imposed on such articles when bought with funds
appropriated for the United States Coast Guard.
(3) Supporting evidence. Any manufacturer, producer, or importer
claiming an exemption from the tax imposed by section 4181 of the Code
by reason of section 4182(b) and section 655, title 14 of the Code must
maintain such records and be prepared to produce such evidence as will
establish the right to the exemption. Generally, clearly identified
orders or contracts of a military department signed by an authorized
officer of the military department will be sufficient to establish the
right to the exemption. In the absence of such orders or contracts, a
statement, signed by an authorized officer of a military department or
the Coast Guard, that the prescribed articles were purchased with funds
appropriated for that military department or

[[Page 171]]

the Coast Guard will constitute satisfactory evidence of the right to an
exemption.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-344, 58
FR 40354, July 28, 1993]

Sec. 53.63 Other tax-free sales.

For provisions relating to tax-free sales of firearms and ammunition
see:
(a) Section 4221 and 27 CFR 53.131, ``Tax-free sales; general
rule''.
(b) Section 4223 and 27 CFR 53.132, ``Tax-free sale of articles to
be used for, or resold for, further manufacture''.
(c) Section 4222 and 27 CFR 53.140, ``Registration''.

Subparts H-I [Reserved]

Subpart J_Special Provisions Applicable to Manufacturers Taxes

Sec. 53.91 Charges to be included in sale price.

(a) In general. The ``price'' for which an article is sold includes
the total consideration paid for the article, whether that consideration
is in the form of money, services, or other things. However, for
purposes of the taxes imposed under chapter 32 of the Code, certain
collateral charges made in connection with the sale of a taxable article
must be included in the taxable sale price, whereas others may be
excluded. Any charge which is required by a manufacturer, producer, or
importer to be paid as a condition of its sale of a taxable article and
which is not attributable to an expense falling within one of the
exclusions provided in section 4216 of the Code or the regulations
thereunder is includable in the taxable sale price. It is immaterial for
this purpose that the charge may be paid to a person other than the
manufacturer, producer, or importer, or that it may be separately billed
to the purchaser as a charge earmarked for expenses incurred or to be
incurred in his behalf, such as charges for demonstration or display of
the article, for sales promotion programs, or otherwise. With respect to
the rules relating to exclusion of charges for local advertising of a
manufacturer's products, see section 4216(e) of the Code and Sec.
53.100. In the case of sales on credit, a carrying, finance, or service
charge is excludable from the sale price if it is reasonably related to
the costs of carrying the deferred portion of the sale price (such as
interest on the deferred portion of the sale price, expenses of
bookkeeping necessary to keep the records of such sales, and expenses of
correspondence and other communication in connection with collection).
(b) Tools and dies. Separate charges for tools and dies used in the
manufacture or production of a taxable article are to be included, in
whole or in part, in the sale price on which the tax is based. It is
immaterial whether the charges for such items are billed in a lump sum
or are amortized or allocated to each of the taxable articles. If, at
the termination of a contract to manufacture taxable articles, the tools
and dies used in production pass to the purchaser, only the amount of
depreciation of the tools and dies incurred in production, computed on a
``production output'' basis, should be included in the sale price. If
the purchaser furnishes the tools and dies, the amount of the cost
thereof, to the extent that such cost has been depreciated in the
production of the taxable articles (computed on a ``production output''
basis), shall be included in determining the sale price of the articles
for purposes of computing the tax.
(c) Charges for warranty. A charge for a warranty of an article
which the manufacturer, producer, or importer requires the purchaser to
pay in order to obtain the article shall be included in the sale price
of the article on which the tax is computed. On the other hand, a charge
for a warranty of a taxable article paid at the purchaser's option shall
not be included in the sale price for purposes of computing tax thereon.
(d) Charges for coverings, containers, and packing. Any charge by
the manufacturer, producer, or importer for coverings and containers of
whatever nature used to pack an article for shipment shall be included
as part of the sale price for the purpose of computing the tax, whether
or not the charges are identified as such on the invoice or are billed
separately. Even though there is

[[Page 172]]

an agreement that the manufacturer, producer, or importer will repay all
or a portion of the charge for the coverings or containers upon the
return thereof, the full charge nevertheless shall be included in the
sale price. It is immaterial whether the charge made at the time of sale
is more or less than the actual value of the covering or container. See
Sec. 53.173(b)(4) for provisions relating to the claiming of a credit
or refund in the case of a price readjustment due to the return or
repossession of a covering or container. Packing charges are to be
included in the sale price whether the charges cover normal packing or
special packing services, such as for extra protection of the article or
for odd-lot quantities. This rule shall apply whether the packing
services are initiated by the manufacturer, producer, or importer or are
furnished at the request of the purchaser and whether the packing is
performed by the manufacturer, producer, or importer or by another
person at his request. If the purchaser supplies packing materials, the
fair market value of such materials must be included in the tax base
when computing tax liability on the sale of the article.
(e) Taxable and nontaxable articles sold as a unit. Where a taxable
article and a nontaxable article are sold by the manufacturer as a unit,
the tax attaches to that portion of the manufacturer's sale price of the
unit which is properly allocable to the taxable article. Normally, the
taxable portion of such a unit may be determined by applying to the
manufacturer's sale price of the unit the ratio which the manufacturer's
separate sale price of the taxable article bears to the sum of the sale
prices of both the taxable and nontaxable articles, if such articles are
sold separately by the manufacturer. Where the articles (or either one
of them) are not sold separately by the manufacturer and do not have
established sale prices, the taxable portion is to be determined from a
comparison of the actual costs of the articles to the manufacturer.
Thus, if the cost of the taxable article represents four-fifths of the
total cost of the complete unit, the tax applies to four-fifths of the
price charged by the manufacturer for the unit.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31083, July 9, 1991]

Sec. 53.92 Exclusions from sale price.

(a) Tax--(1) Tax not part of taxable sale price. The tax imposed by
chapter 32 of the Code on the sale of an article is not part of the
taxable sale price of the article. Thus, if a manufacturer computes the
tax on a sale price which is determined without regard to the tax, and
it charges the proper tax as a separate item, the amount of tax so
charged does not become a part of the taxable sale price and no tax is
due on the tax so charged. Where no separate charge is made as tax, it
will be presumed that the price charged to the purchaser for the article
includes the proper tax, and the proper percentage of such price will be
allocated to the tax.
(2) Computation of tax. If an article subject to tax at the rate of
10 percent is sold for $100 and an additional item of $10 is billed as
tax, $100 is the taxable selling price and $10 is the amount of tax due
thereon. However, if the article is sold for $100 with no separate
billing or indication of the amount of the tax, it will be presumed that
the tax is included in the $100, and a computation will be necessary to
determine what portion of the total amount represents the sale price of
the article and what portion represents the tax. The computation is as
follows:
[GRAPHIC] [TIFF OMITTED] TR25SE06.035

Thus, if the tax rate is 10 percent and the sale price including tax is
$100, the taxable sale price is $90.91 (that is, $100

[[Page 173]]

divided by (100+10)), and the tax is 10 percent of $90.91, or $9.09.
(b) Transportation, delivery, insurance, or installation charges--
(1) Charges incurred pursuant to sale. Charges for transportation,
delivery, insurance, installation, and other expenses actually incurred
in connection with the delivery of an article to a purchaser pursuant to
a bona fide sale shall be excluded from the sale price in computing the
tax. Such charges include all items of transportation, delivery,
insurance, installation, and similar expense incurred after shipment to
a customer begins, in response to the customer's order, pursuant to a
bona fide sale. However, costs of such nature incurred by a
manufacturer, producer, or importer in transporting, in the normal
course of business and for its benefit and convenience, articles from a
factory or port of entry to a warehouse or other facility (regardless of
the location of such warehouse or facility) are not considered as being
incurred in connection with the delivery of an article to a purchaser
pursuant to a bona fide sale, and charges therefor cannot be excluded
from the sale price in computing tax liability. Similarly, an allowance
granted by a manufacturer as reimbursement for expenses incurred by the
purchaser in shipping used articles to the manufacturer for credit
against the purchase price of taxable articles shall not be excluded
from the sale price when computing tax due on the sale of the taxable
articles. In any event, no charge may be excluded from the sale price
unless the conditions set forth in paragraph (b)(2) of this section are
complied with. Said conditions are prescribed under the authority
granted the Secretary in section 4216(a) of the Code.
(2) Only actual expenses to be excluded. Where a separate charge is
made for transportation or other expenses incurred in connection with
the delivery of an article to the purchaser pursuant to a bona fide
sale, there shall be excluded in arriving at the sale price subject to
tax only that portion of the charge which represents the actual expenses
incurred for the transportation or other excludable expenses. Where a
separate charge is less than the actual expense, the difference is
presumed to be included in the billed price. Such difference, together
with the separate charge, shall be excluded in arriving at the sale
price on which the tax is computed. Similarly, where no separate charge
is made but the manufacturer, producer, or importer incurs an expense of
the type to which this paragraph has application, the amount of such
expense actually incurred shall be excluded from the sale price on which
the tax is computed. Where transportation expense is incurred in
conjunction with a shipment composed of both taxable and nontaxable
articles, only the portion of the expense allocable to the taxable
articles shall be excludable. In general, unless the taxpayer
establishes to the satisfaction of the appropriate TTB officer that
another method reasonably apportions such freight expense between
taxable and nontaxable articles, such expense should be apportioned on
the basis of the relative weights (or, if available, the relative
published tariff rates) applicable to the taxable and nontaxable
articles. Where it is not feasible to apportion such expense on the
basis of relative weights or tariff rates, the expense shall be
apportioned on another reasonable basis; for example, in the case of a
shipment including both taxable and nontaxable articles which are
subject to the same tariff rate, it may be appropriate to apportion the
transportation expense on the basis of the relative sale prices. A
charge for insurance in connection with the delivery of an article to a
purchaser is considered to represent an expense actually incurred only
to the extent that an amount equivalent to such charge is paid or
payable by the manufacturer to a person authorized to assume such
insurance risk.
(3) Transportation, delivery, or installation services performed by
manufacturer. For purposes of computing the taxable sale price of
articles, it is immaterial whether the transportation, delivery, or
other services of the type to which this paragraph has application are
performed by a common carrier or independent agency for or on behalf of
the manufacturer, producer, or importer, or are performed by the
manufacturer, producer, or importer with the use of its own vehicles or
other facilities.

[[Page 174]]

Thus, where a manufacturer, producer, or importer performs the
transportation, delivery, or other services with its equipment, tools,
employees, etc., the cost of such services allocable to the sale of the
taxable article shall be excluded. In determining whether an expense is
an excludable transportation or delivery expense, only those expenses
incurred by reason of the fact that the purchaser accepts delivery at
some point other than the manufacturer's place of business shall be
considered excludable transportation or delivery expenses. All expenses
incurred in placing an article packed, ready for shipment on the loading
dock at the manufacturer's factory are not excludable transportation or
delivery expenses. An allowance granted by the manufacturer, producer,
or importer to the purchaser for transportation, delivery, or other
expenses incurred or to be incurred by the purchaser in connection with
the sale shall be excluded in computing the taxable sale price, if
charges for similar expenses would be excludable if incurred by the
manufacturer.
(4) Records in support of exclusion. Every manufacturer, producer,
or importer making sales of taxable articles shall keep records which
will disclose the amount of transportation, delivery, insurance,
installation or other expense actually incurred by it in connection with
the delivery of a taxable article to a purchaser pursuant to a bona fide
sale.
(c) Other charges. A charge or expense not within the scope of
paragraph (a) or (b) of this section, whether or not separately stated,
may not be excluded in computing the taxable sale price unless it can be
shown by adequate records that the charge or expense is not properly
included as a manufacturing or selling expense or is in no way
incidental to placing the article in condition packed ready for
shipment. Commissions to manufacturers' agents, or allowances, payments,
or adjustments made to, and for the benefit of, persons other than the
purchaser may not be excluded or deducted, under any condition, in
computing the sale price upon which the tax is computed.

Sec. 53.93 Other items relating to tax on sale price.

(a) Exchanges. If, in connection with the sale of an article subject
to a tax imposed under chapter 32 of the Code on the price for which
sold, a manufacturer receives from its vendee another article in
exchange, the tax on the manufacturer's sale shall be computed on the
basis of the amount allowed for the article received from the vendee,
plus any additional amount charged the vendee.
(b) Replacements under warranty. If an article, subject to a tax
imposed under chapter 32 of the Code on the price for which sold, is
returned to the manufacturer by reason of the failure of the article
under a warranty as to its quality or service, and a new article is
given by the manufacturer, free, or at a reduced price, the tax on the
new article shall be computed on the actual amount, if any, to be paid
to the manufacturer for the new article. See Sec. 53.174(b) for the
circumstances under which the allowance made by the manufacturer,
producer, or importer upon the return of the first article constitutes a
price readjustment of the sale price of the first article and the
extent, if any, to which a credit may be allowed, or refund made, of the
tax paid by the manufacturer, producer, or importer on the sale of the
first article.
(c) Readjustments in sale price. Readjustment in sale price (such as
allowable discounts, rebates, bonuses, etc.) cannot be anticipated. The
tax must be based upon the original price unless the readjustments have
actually been made prior to the close of the period for which the tax
upon the sale is returned. However, if the price upon which the tax was
computed is subsequently readjusted, credit may be taken against the tax
due on a subsequent return or a claim for refund filed as provided by
section 6416(b)(1) of the Code and Sec. Sec. 53.174-53.176.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-344, 58
FR 40354, July 28, 1993]

Sec. 53.94 Constructive sale price; scope and application.

(a) In general. Section 4216(b) of the Code pertains to those taxes
imposed under chapter 32 of the Code that are

[[Page 175]]

based on the price for which an article is sold, and contains the
provisions for constructing a tax base other than the actual sale price
of the article, under certain defined conditions.
(b) Specific applications. (1) Section 4216(b)(1) of the Code
applies to:
(i) Arm's-length sales at retail or on consignment, other than those
sales at retail and to retailers to which section 4216(b)(2) of the Code
and Sec. 53.96 apply; and
(ii) Sales otherwise than at arm's length, and at less than fair
market price.
(2) Section 4216(b)(2) of the Code applies generally to arm's-length
sales of an article at retail or to retailers, or both, where the
manufacturer also sells the same article to wholesale distributors.
(3) Section 4216(b)(3) of the Code provides a formula for
determining a constructive sale price for sales of taxable articles
between members of an affiliated group of corporations (as ``affiliated
group'' is defined in section 1504(a) of the Code) in those instances
where the purchasing corporation regularly resells to retailers but does
not regularly resell to wholesale distributors, and except for
situations where section 4216(b)(4) of the Code applies.
(4) Section 4216(b)(4) of the Code provides a special method for
computing a constructive sale price for sales of taxable articles
between affiliated corporations where the purchasing corporation sells
only to retailers, and the normal method of selling within the industry
is for manufacturers to sell to wholesale distributors.
(c) Definitions. For purposes of section 4216(b) of the Code and
Sec. Sec. 53.94-53.97 and unless otherwise indicated:
(1) Sale at retail. A ``sale at retail,'' or a ``retail sale'', is a
sale of an article to a purchaser who intends to use or lease the
article rather than resell it. The fact that articles are sold in
wholesale lots, or at wholesale prices, will not change the character of
such sales as ``sales at retail'' if the purchaser is not engaged in the
business of reselling such articles, and acquires them for the purpose
of using them rather than reselling them.
(2) Retail dealers. A ``retail dealer'', or ``retailer'', is a
person engaged in the business of selling articles at retail.
(3) Wholesale distributor. The term ``wholesale distributor'' means
a person engaged in the business of selling articles to persons engaged
in the business of reselling such articles.

Sec. 53.95 Constructive sale price; basic rules.

(a) In general. Section 4216(b)(1) of the Code sets forth the
conditions that require the Secretary to construct a sale price on which
to compute a tax imposed under chapter 32 of the Code on the price for
which an article is sold. The section requires a constructive sale price
to be established where a taxable article is:
(1) Sold at retail;
(2) Sold while on consignment; or,
(3) Sold otherwise than through an arm's-length transaction at less
than fair market price.
(b) Sales at retail. Section 4216(b)(1)(A) of the Code relates to
the determination of a constructive sale price for sales of taxable
articles sold at arm's-length and at retail. In the case of such sales,
the constructive sale price is the highest price for which such articles
are sold to wholesale distributors, in the ordinary course of trade, by
manufacturers or producers thereof, as determined by the Secretary. If
the constructive sale price is less than the actual sale price, the
constructive sale price shall be used as the tax base. If the
constructive sale price is not less than the actual sale price, the
actual sale price shall be considered as not less than fair market, and
shall be used as the tax base. In determining the highest price for
which articles are sold by manufacturers to wholesale distributors,
there must be taken into consideration the normal industry practices
with respect to inclusions and exclusions under section 4216(a) of the
Code. However, once a constructive sale price has been determined by the
Secretary, no further adjustment of such price shall be made. The
provisions of section 4216(b)(1)(A) of the Code and this paragraph shall
not apply in those instances where the provisions of section 4216(b)(2)
of the Code and Sec. 53.96 apply.

[[Page 176]]

(c) Sales on consignment. As in the case of sales at retail, the
constructive sale price for sales on consignment shall be the price for
which such articles are sold, in the ordinary course for trade, by
manufacturers or producers thereof, as determined by the Secretary. For
purposes of section 4216(b)(1)(B) of the Code and this paragraph, an
article is considered to be sold on consignment if it is sold while it
is on consignment to a person which has the right to sell, and does
sell, such article in its own name, but never receives title to the
article from the manufacturer. Ordinarily, the constructive sale price
of an article sold on consignment is the net price received by the
manufacturer from the consignee. The provisions of section 4216(b)(1)(B)
of the Code and this paragraph shall not apply if the provisions of
section 4216(b)(2) of the Code and Sec. 53.96 apply.
(d) Sales not at arm's-length. For purposes of section 4216(b)(1)(C)
of the Code and this paragraph, a sale is considered to be made under
circumstances otherwise than at ``arm's-length'' if:
(1) One of the parties is controlled (in law or in fact) by the
other, or there is common control, whether or not such control is
actually exercised to influence the sale price, or
(2) The sale is made pursuant to special arrangements between a
manufacturer and a purchaser.

In case of an article sold otherwise than at arm's-length, and at less
than fair market price, the constructive sale price shall be the price
for which such articles are sold, in the ordinary course of trade, by
manufacturers or producers thereof, as determined by the Secretary. Once
such a constructive sale price has been determined, no further
adjustment of such price shall be made. See sections 4216(b) (3) and (4)
of the Code, and Sec. 53.97, for specific methods for determining
constructive sale prices for intercompany sales under certain defined
conditions.

Sec. 53.96 Constructive sale price; special rule for arm's-length sales.

(a) In general. Section 4216(b)(2) of the Code provides a special
rule under which a manufacturer shall determine a constructive sale
price for this sale of taxable articles at retail, and to retail
dealers, under certain conditions. The rule is applicable where:
(1) The manufacturer regularly sells such articles at retail, or to
retailers, or both, as the case may be,
(2) The manufacturer also regularly sells such articles to one or
more wholesale distributors in arm's-length transactions, and the
manufacturer establishes that its prices in such cases are determined
without regard to any benefit to be derived under section 4216(b)(2) of
the Code, and
(3) The transactions are arm's-length transactions.
(4) A manufacturer meeting the foregoing requirements shall base its
tax liability for sales at retail and sales to retailers on the lower of
its actual sale price or the highest price for which it sells the same
articles under the same conditions to wholesale distributors.
(b) Definitions. For purposes of section 4216(b)(2) of the Code and
this section:
(1) Actual sale price. ``Actual sale price'' means the actual
selling price for an article determined in the same manner as sale price
is determined for a taxable sale. Accordingly, such price must reflect
the inclusions and exclusions set forth in section 4216(a) of the Code,
and any price adjustments described in section 6416(b)(1) of the Code.
(2) Highest price to wholesale distributors. The ``highest price''
charged wholesale distributors for an article by a manufacturer,
producer, or importer thereof, is the highest price at which the
manufacturer, producer, or importer sells the article to wholesale
distributors, determined without regard to quantity. Such price shall be
determined in the same manner as sale price is determined for a taxable
sale with respect to the inclusions and exclusions under section 4216(a)
of the Code; however, since the price is to be a ``highest'' price, no
further adjustment may be made for price readjustments under section
6416(b)(1) of the Code.
(3) Regular sales. An article is considered to be sold ``regularly''
at retail or to retailers if sales are made at retail or to retailers
periodically and recurringly as a regular part of the

[[Page 177]]

seller's business. If a seller makes only isolated or casual sales of an
article at retail or to retailers, it is not considered to be selling
``regularly'' at retail or to retailers. Similarly, a manufacturer is
considered to be making regular sales of an article to one or more
distributors if it sells the article to at least one distributor
periodically and recurringly as a regular part of its business.
(4) Normal method of sales in industry. In the absence of a showing
to the appropriate TTB officer of a more appropriate manner of
determining the normal method of sales within an industry which is
practical in application, the normal method of sales within an industry
shall be regarded as not being at retail or to retailers, or both, if
the industry dollar volume of sales which are at retail or to retailers,
or both, is less than half the total industry dollar volume of sales at
all levels of distribution by manufacturers, producers, or importers,
including sales to other manufacturers, producers, or importers.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31083, July 9, 1991]

Sec. 53.97 Constructive sale price; affiliated corporations.

(a) In general. Sections 4216(b) (3) and (4) of the Code establish
procedures for determining a constructive sale price under section
4216(b)(1)(C) of the Code for sales between corporations that are
members of the same ``affiliated group'', as that term is defined in
section 1504(a) of the Code.
(b) Sales to which section 4216(b)(3) of the Code applies. Section
4216(b)(3) of the Code provides a procedure for determining a
constructive sale price under section 4216(b)(1)(C) of the Code in those
instances where:
(1) A manufacturer, producer or importer regularly sells a taxable
article to a wholesale distributor which is a member of the same
affiliated group as the manufacturer, producers or importer, and
(2) The wholesale distributor regularly sells such article to one or
more independent retailers, but does not regularly sell to wholesale
distributors. Under such circumstances the constructive sale price for
the article shall be an amount equal to 90 percent of the lowest price
for which the distributor regularly sells the article in arm's-length
transactions to such independent retailers. Once the constructive sale
price has been determined, no adjustment shall be made for inclusions or
exclusions under section 4216(a) of the Code or price readjustments
under section 6416(b)(1) of the Code. If both sections 4216(b)(3) and
4216(b)(4) of the Code apply with respect to the sale of an article, the
constructive sale price for such article shall be the lower of the
prices computed under sections 4216(b)(3) and 4216(b)(4).
(c) Sales to which section 4216(b)(4) of the Code applies. Section
4216(b)(4) of the Code provides a procedure for determining a
constructive sale price under section 4216(b)(1)(C) of the Code in those
instance where:
(1) A manufacturer, producer, or importer regularly sells (except
for tax-free sales) a taxable article only to a wholesale distributor
which is a member of the same affiliated group as the manufacturer,
producer, or importer,
(2) The distributor regularly sells (except for tax-free sales) such
article only to retail dealers, and
(3) The normal method of sales for such articles within the industry
is to sell such articles in arm's-length transactions to wholesale
distributors.
(4) Under section 4216(b)(4) of the Code, the constructive sale
price of such article shall be the median price at which the
distributor, at the time of the sale by the manufacturer, resells the
article to retail dealers, reduced by a percentage of such price equal
to the percentage which:
(i) The difference between the median price for which comparable
articles are sold to wholesale distributors, in the ordinary course of
trade, by manufacturers of producers thereof, and the median price at
which such wholesale distributors in arm's-length transactions sell such
comparable articles to retailers, is of
(ii) The median price at which such wholesale distributors in arm's-
length transactions sell such comparable articles to retailers.

[[Page 178]]

(iii) For purposes of this paragraph, the ``median price'' for which
an article is sold at a particular level of distribution is the price
midway between the highest and lowest prices charged vendees at the
particular level of distribution. Where only one price is charged at a
level of distribution, ``median price'' is equivalent to ``actual
price''. All sale prices referred to in paragraphs (c) and (d) of this
section are prices that must reflect the inclusions and exclusions set
forth in section 4216(a) of the Code. However, once a constructive sale
price has been determined under these paragraphs, no further adjustment
of such price is allowed.
(d) Application of section 4216(b)(4) of the Code. The application
of section 4216(b)(4) of the Code and paragraph (c) of this section may
be illustrated by the following example:

Example. M, a corporation engaged in the manufacture of article X,
sold 100 of such articles at $10.00 per article to a wholesale
distributor N, a corporation engaged in the business of selling X
articles to independent retail dealers. N is a member of the same
affiliated group of corporations as M. M sells X articles only to N. The
normal method of manufacturers' sales of X articles in the industry is
to sell to independent wholesale distributors. N corporation sells X
articles to retailers for $15.00 each. The price for which comparable X
articles are sold to wholesale distributors in the ordinary course of
trade by manufacturers thereof is $12.00 per article. Wholesale
distributors sell X articles to retailers in the ordinary course of
trade for $16.00 per article. Under the foregoing facts the constructive
sale price determined under section 4216(b)(4) of the Code and this
paragraph is $11.25, computed as follows:
[GRAPHIC] [TIFF OMITTED] TC05OC91.020

(e) Determination of ``lowest price''. In addition to other
considerations, in determining a ``lowest price'' for purposes of
sections 4216(b) (1) and (3) of the Code and Sec. 53.97, such price
shall be determined:
(1) Without requiring that a given percentage of sales be made at
that price (provided that the volume of sales made at that price is
great enough to indicate that those sales have not been engaged in
primarily to establish a lower tax base), and
(2) Without including any charge for a fixed amount that the
purchaser has an unconditional right to recover on the basis of a
contractual arrangement existing at the time of sale.
(f) Definitions. For purposes of this section and paragraphs (3) and
(4) of section 4216(b) of the Code, the term ``regularly sells'' has the
same meaning as that accorded the term ``regular sales'' in Sec.
53.96(b)(3), and the term ``normal method of sales in the industry'' has
the same meaning as accorded that term in Sec. 53.96(b)(4).

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31083, July 9, 1991]

Sec. 53.98 Computation of tax on leases and installment sales.

(a) Leases. When a taxable article is leased by a manufacturer,
producer, or importer, liability for tax is incurred, except as provided
by section 4217(b) of the Code and Sec. 53.104, on each payment made
with respect to such lease. Tax is payable on each lease payment as long
as the article is leased by the manufacturer, producer, or importer. The
tax payable with respect to each lease payment is a percentage of each
payment based on the rate of tax, if any, in effect on the date the
lease payment is due. If the article is subsequently sold by the
manufacturer, producer, or importer, the tax applies also to such sale,
without regard to the tax paid when the article was leased. For
definition of the term ``lease'', see Sec. 53.103.
(b) Installment sales. When a taxable article is sold under an
installment payment contract with title reserved in the seller, or under
a conditional sale contract, chattel mortgage arrangement or other
arrangement creating a security interest with payments to be made in
installments, tax shall be computed and paid on each payment made by the
purchaser. The tax payable with each payment is a percentage of each
payment based on the rate of tax, if any, in effect on the date the
payment is due. The part of each payment that is subject to tax is that
portion of the payment equal to the percentage of the total portion of
the payment equal to the percentage of the total charge for the article
that is subject to tax. For example, if the

[[Page 179]]

total charge for the article is $1,000, and of the total amount charged
only 90 percent thereof, or $900, is subject to tax by reason of
exclusions, then only 90 percent of the installment payment is subject
to tax. If the tax base is a constructive sale price computed under
section 4216(b) of the Code that is less than the actual sale price of
the article, the portion of each payment subject to tax is the
percentage of such payment equal to the percentage that the constructive
sale price bears to the actual sale price. For example, if an article is
sold at retail for $100, and the constructive sale price for such an
article computed under the provisions of section 4216(b)(1)(A) of the
Code is $75, the percentage which the constructive sale price bears to
the actual sale price is 75 percent. Accordingly, only 75 percent of
each installment payment is subject to tax.
(c) Sales on credit. Where articles are sold on credit under
conditions other than those specified in paragraph (b) of this section,
the entire tax shall be reported and paid with the return covering the
period in which the sale is made, even though the price may not be paid
to the manufacturer, producer, or importer until a later date, or not
paid at all.

Sec. 53.99 Sales of installment accounts.

(a) In general. Except as provided in paragraph (d) of this section,
in case of a sale or other disposition by a manufacturer, producer, or
importer of an installment account of the type specified in section
4216(c) of the Code, the tax shall not apply to subsequent installment
payments on such account. Instead, there shall be paid an amount equal
to the difference between the tax previously paid on such installment
account and the total tax computed by applying:
(1) To each installment due before the sale of the installment
account, the rate of tax applicable at the time payment thereof was due,
and
(2) To each installment, the time for payment of which has not
arrived, the rate of tax which, under the provisions of chapter 32 of
the Code as in effect on the date of the sale of the installment
account, is (or is to be) in effect on the date such installment is due.
However, see paragraph (b) of this section if the sale is made in a
bankruptcy or insolvency proceeding. The tax due under this paragraph
shall be included in the return for the period in which the account is
sold.
(b) Sale in bankruptcy or insolvency proceeding. In the case of a
sale of an installment account of a manufacturer, producer, or importer
pursuant to the order of, or subject to the approval of, a court of
competent jurisdiction in a bankruptcy or insolvency proceeding, the
amount of tax due shall be computed and paid as provided in paragraph
(a) of this section but shall not exceed the amount of tax computed by
multiplying:
(1) The proportionate share of the amount for which such accounts
are sold which is allocable to each unpaid installment payment, by
(2) The rate of tax which, under the provisions of chapter 32 of the
Code as in effect on the date of the sale of the installment account, is
(or is to be) in effect on the date such payment is due.
(c) Collection of installment accounts on behalf of the
manufacturer. Where a manufacturer, producer, or importer retains title
to an installment account but turns it over to another person for
collection on a fee basis, no sale of such account (or other disposition
as contemplated in section 4216(d) of the Code) has been made. The tax
shall continue to be paid as provided by section 4216(c) of the Code.
(d) Returned installment accounts. Where an installment account
which has been sold or otherwise disposed of is returned to the
manufacturer, producer, or importer who sold it under an agreement under
which the account was sold, and credit or refund has been allowed under
section 6416(b)(5) of the Code and Sec. 53.183, the manufacturer,
producer, or importer shall pay tax as provided by section 4216(c) of
the Code and Sec. 53.98 on any subsequent payments made on such
returned installment account until such time as there shall have been
paid the total tax liability with respect to the account as computed
under paragraph (a) of this section.
(e) Limitation. The sum of the amounts payable under this section
and Sec. 53.98 or an installment account

[[Page 180]]

shall not exceed the total amount of tax which would be payable if such
installment account had not been sold or otherwise disposed of (computed
as provided in subsection (c)).

Sec. 53.100 Exclusion of local advertising charges from sale price.

(a) In general. Section 4216(e) of the Code deals with the treatment
to be accorded charges made by a manufacturer for, and reimbursements by
a manufacturer or expenditures in connection with the advertising of
certain articles subject to excise tax under chapter 32 of the Code.
Section 4216(e) of the Code provides an exclusion (which is in addition
to the exclusions provided by section 4216(a) of the Code and Sec.
53.92) in respect of charges for local advertising, as defined in
paragraph (b) of this section, for purposes of determining the price for
which an article is sold. See paragraph (c) of this section. The
exclusion provided by section 4216(e) of the Code and paragraph (c) of
this section has application only if the advertising is broadcast over a
radio or television station, appears in a newspaper or magazine, or is
displayed by means of an outdoor advertising sign or poster. Section
4216(e) of the Code also provides an overall limitation in respect of
the sum of the amount of the exclusions from price as charges for local
advertising and the amount of the readjustments authorized under section
6416(b)(1) of the Code (relating to credits or refunds for price
readjustments) in respect of reimbursements by a manufacturer of
expenditures for local advertising. See Sec. 53.101. For provisions
prohibiting exclusion from price or readjustment of price in respect of
charges for, and reimbursements of expenditures for, advertising other
than local advertising, see Sec. 53.102.
(b) Definition of local advertising--(1) In general. For purposes of
the regulations under sections 4216(e) and 6416(b)(1) of the Code
(Sec. Sec. 53.100-53.102 and 53.173-53.176), the term ``local
advertising'' means advertising which relates to an article with respect
to which tax is imposed under chapter 32 of the Code on the price for
which sold and which:
(i) Is initiated or obtained by the purchaser or any subsequent
vendee,
(ii) Names the article for which the price is determinable under
section 4216 and states the location at which such article may be
purchased at retail, and
(iii) Is broadcast over a radio station or television station,
appears in a newspaper or magazine, or is displayed by means of an
outdoor advertising sign or poster.
(2) Initiating or obtaining advertising. For purposes of paragraph
(b)(1) of this section, the advertising must be initiated or obtained by
one or more of the persons in the chain of distribution of the article
(wholesale distributor, jobber, dealer, etc.) who purchased the article
for resale. For purposes of this subparagraph, the manufacturer is not
considered to be one of the persons in the chain of distribution of the
article. In general, advertising of an article is considered to be
initiated or obtained by one or more persons in the chain of
distribution of the article if any such person:
(i) Takes an active part in the actual planning and development, or
in the arrangements or negotiations leading to the development, of the
form and content of the advertising, or
(ii) Contracts for the placement of the advertising.

The participation by the manufacturer of the article in the planning,
development, or placement of the advertising is immaterial provided the
advertising is in fact initiated or obtained by one or more persons in
the chain of distribution of the article. Furthermore, it is immaterial
whether or not the advertising is subject to the approval of the
manufacturer of the article. However, if no person in the chain of
distribution of the article takes an active part in the actual planning
and development, or in the arrangements or negotiations leading to the
development, of the form and content of the advertising, but, rather,
all such planning, development, arrangements, and negotiations are
accomplished by the manufacturer of the article, then such manufacturer
is considered to have initiated the advertising, and if he also
contracts for the placement of the advertising, such advertising does
not qualify as ``local advertising''.

[[Page 181]]

(3) Identification of article and sales location. To meet the
requirements of paragraph (b)(1) of this section, the advertising must
identify the article for which the price is determinable under section
4216 of the Code and give the location or locations at which the article
may be purchased at retail. All products taxable at the same rate under
the same section of chapter 32 of the Code shall be considered to be an
``article'' for purposes of the preceding sentence. No specific method
or means of identification is prescribed. The identification of the
article may be made through the use of the name of the manufacturer or
the use of an established trade-mark, such as a seal, picture, letter or
letters, etc., or a combination thereof. The advertising must identify
the particular retail establishment or establishments at which the
article may be purchased at retail but need not specify the location of
any such establishment in terms of the number by which the premises are
designated or the name of the street on which the retail premises are
situated. However, the location of the retail premises must be described
sufficiently, as, for example, by reference to a particular named
shopping area or shopping center, to enable customers to find the retail
establishment.
(4) Determination of costs of local advertising. Where an
advertisement identifies more than one article, and all such articles
are not taxable, or are not taxable at the same rate under the same
section of chapter 32 of the Code, a reasonable allocation of the cost
of the advertisement must be made among:
(i) Articles taxable at the same rate under the same section of the
Code, and
(ii) Articles which are not taxable under chapter 32 of the Code.

For example, in the case of a single page newspaper or magazine
advertisement, an allocation of costs reflecting the lineage or space
devoted to the specified categories will be considered to reflect a
reasonable allocation of the cost of advertising the different articles.
As a general rule, only the cost of the ``spot'' portion identifying the
retail establishment is considered ``local advertising'' in the case of
national television or radio programs.
(5) Meaning of ``newspaper''. The term newspaper, as used in
paragraph (b)(1) of this section, is limited to those publications which
are commonly understood to be newspapers and which are printed and
distributed periodically at daily, weekly, or other short intervals for
the dissemination of news of a general character and of a general
interest. The term does not include handbills, circulars, flyers, or the
like, unless printed and distributed as a part of a publication which
constitutes a newspaper within the meaning of this subparagraph. Neither
does the term include any publication which is issued to supply
information on certain subjects of interest to particular groups unless
such publication otherwise qualifies as a newspaper within the meaning
of this subparagraph. For purposes of this subparagraph, advertising is
not considered to be news of a general character and of a general
interest.
(6) Meaning of ``magazine''. The term magazine, as used in paragraph
(b)(1) of this section, is limited to those publications which are:
(i) Commonly understood to be magazines,
(ii) Printed and distributed periodically at least twice a year, and
(iii) Published for the dissemination of information of a general
nature or of special interest to particular groups.
(iv) The term does not include handbills, circulars, flyers or the
like, unless printed and distributed as a part of a publication which
constitutes a magazine within the meaning of this subparagraph. For
purposes of this subparagraph, advertising is not considered to be
information of a general nature or information of special interest to
particular groups within the contemplation of paragraph (b)(6)(iii) of
this section.
(7) Meaning of ``outdoor advertising sign or poster''. The term
``outdoor advertising sign or poster'', as used in paragraph (b)(1) of
this section, means a sign or poster displaying advertising matter,
which is located outside of a roofed enclosure. This term includes both
signs or posters on billboards, whether placed on or affixed to land,

[[Page 182]]

buildings, or other structures, and those which are displayed on or
attached to moving objects, provided the signs or posters are located
outside of a roofed enclosure. The term ``roofed enclosure'' means a
roof structure which is enclosed on more than one-half of its sides by
walls, fences, or other barriers.
(c) Exclusion--(1) Conditions and limitations. A charge for local
advertising which is required by a manufacturer to be paid as a
condition to his sale of an article is not a part of the taxable price
of the article, to the extent that such charge meets each of the
following conditions and limitations:
(i) Such charge does not exceed 5 percent of the difference between:
(A) An amount which would constitute the taxable price of the
article (computed at the time of the sale of the article) if no part of
any charge for local advertising were excludable in computing taxable
price, and
(B) The amount of any separate charge for local advertising,
whatever the amount of such charge may be,
(ii) Such charge is specifically shown as a separate charge for
local advertising on the invoice or statement covering the sale of the
article.
(iii) Such charge is billed by the manufacturer with the intention
on his part of repaying the amount of the charge to the person
purchasing the article from him, or to any person who subsequently
purchases the article for resale, in reimbursement of costs incurred for
local advertising of such article or some other article or articles
taxable at the same rate under the same section of the Code. In the
absence of evidence to the contrary, the fact of such intention will be
assumed in all cases where the manufacturer and his vendees are parties
to an advertising plan which calls for such repayments, or the
manufacturer can otherwise establish that the vendees to whom he bills
such charges understand and expect that such repayments will be made.
(2) When exclusion ceases to apply. To the extent that charges for
local advertising meet the conditions and limitations stated in
paragraph (c)(1) of this section, such charge is excludable in computing
the taxable price of the article in respect of which the charge was
made. However, the exclusion will cease to apply in respect of any part
of such charge which the manufacturer fails to repay before May 1 of the
calendar year following the calendar year in which the article was sold,
to the person who purchased the article from him, or to some other
person who subsequently purchases the article for resale, in
reimbursement of costs incurred for local advertising of such article or
some other article or articles taxable at the same rate under the same
section of the Code. If, before such May 1, any part of the charge so
excluded has not been so repaid, the manufacturer becomes liable for tax
on such May 1 in the same manner as if an article taxable under such
section of the Code had been sold by him on such May 1 at a taxable
price equivalent to that part of the charge not so repaid. However, see
paragraph (b)(2) of Sec. 53.175, relating to price readjustments in
cases where local advertising charges are not repaid before such May 1
but are subsequently paid over by the manufacturer to his vendees in
reimbursement of costs for local advertising. For provisions relating to
the method of determining whether a payment by a manufacturer is or is
not attributable to an excluded local advertising charge, see paragraph
(b)(3) of Sec. 53.101. In any case where the payment is determined to
be attributable to such a charge, the date of the sale in connection
with which the charge was made shall be determined on a first-in-first-
out basis in respect of the vendee to whom the charge was billed by the
manufacturer.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31083, July 9, 1991]

Sec. 53.101 Limitation on aggregate of exclusions and price readjustments.

(a) In general. The sum of the amount excluded from taxable price in
respect of charges for local advertising, as provided in section
4216(e)(1) of the Code and Sec. 53.100, plus the amount of the
readjustments for which credits or refunds may be claimed in respect of
local advertising, as provided in section 6416(b)(1) of the Code and
Sec. 53.175, is subject to an overall 5 percent limitation. This
limitation applies to each

[[Page 183]]

manufacturer, as of the close of each calendar quarter, in respect of
all articles taxable under the same section of chapter 32 of the Code
which were sold by such manufacturer in such quarter (and the preceding
quarter or quarters, if any, in the calendar year).
(b) Computation of overall 5 percent limitation--(1) In general. The
limitation prescribed by section 4216(e)(2) of the Code (the ``overall 5
percent limitation'' referred to in paragraph (a) of this section) as to
the total of the exclusions from price and readjustments of price which
may be claimed for local advertising in respect of all articles taxable
under the same section of Chapter 32 of the Code shall be computed as of
the close of each calendar quarter of the calendar year. The overall 5
percent limitation is 5 percent of the difference between:
(i) The amount which would constitute the total taxable price
(computed at the time of sale) of all articles taxable under the same
section of chapter 32 of the Code sold by the manufacturer during the
elapsed calendar quarters of the calendar year, if no part of any charge
for local advertising were excludable in computing taxable price, and
(ii) The total of all amounts billed as separate charges for local
advertising of such articles (whatever the amount of any single charge
of the total of all charges).
(iii) In making the computations under paragraphs (b)(1) (i) and
(ii) of this section, credits or refunds under section 6416(b) of the
Code of tax paid on the sale of any such articles are to be disregarded
and articles sold tax-free by the manufacturer are to be excluded. The
amount by which the overall 5 percent limitation computed as of the
close of a particular calendar quarter in respect of articles taxable
under the same section of chapter 32 of the Code exceeds the sum of the
charges for local advertising excluded in computing the taxable price
and the amount of reimbursements for local advertising of such articles
made during the elapsed calendar quarters of the calendar year, in
respect of which credit or refund has been claimed, represents the
unused portion of the overall 5 percent limitation. Such unused portion
is the maximum amount of reimbursements for local advertising in respect
of which credit or refund may be claimed at the close of the particular
calendar quarter, subject to the applicable conditions and limitations
governing the right to claim a credit or refund in respect of local
advertising (see Sec. 53.175). The unused portion of the overall 5
percent limitation as of the close of the fourth calendar quarter of a
calendar year in respect of which credit or refund may not be claimed as
of the close of such quarter must be disregarded in computing the
overall 5 percent limitation for any subsequent calendar quarter.
Moreover, the amount of any reimbursements for local advertising made by
a manufacturer in a calendar year which is in excess of the amount of
such reimbursements in respect of which credit or refund may be claimed,
within the overall limitation, as of the close of the calendar year, may
not subsequently serve as the basis for a credit or refund.
(2) Alternative method of computation in certain cases. If during
the portion of the calendar year ending with the date as of which the
overall 5 percent limitation is being computed the amount of the local
advertising charge separately billed by the manufacturer has not, in
respect of any sale of any articles taxable under the same section of
chapter 32 of the Code, exceeded the amount excludable pursuant to Sec.
53.100 in computing taxable price, the overall 5 percent limitation as
of the close of a particular calendar quarter in respect of articles
taxable under such section is 5 percent of the total taxable price
(computed at the time of the sale) of all such articles sold taxpaid
during the calendar year.
(3) Allocation of amounts paid in reimbursement of expenditures for
local advertising. If a manufacturer makes contributions to a local
advertising program in connection with which he makes excludable local
advertising charges, it is necessary that reimbursements by the
manufacturer for local advertising be attributed to the charges for
local advertising, to the manufacturer's contributions, or allocated
between them. Whether an

[[Page 184]]

amount paid by a manufacturer in reimbursement of expenses for local
advertising is or is not a repayment of a local advertising charge which
was excluded from taxable price under section 4216(e)(1) of the Code and
Sec. 53.100, shall be determined on the basis of an allocation made
under the agreement between the manufacturer and his vendee (or any
subsequent vendee).
(c) Examples. The application of paragraphs (a) and (b) of this
section may be illustrated by the following examples:

Example (1). During the first and second calendar quarters of the
year, a manufacturer makes sales of articles taxable under section 4181
to his distributors. The total charges for such sales, exclusive of the
tax, transportation charges, delivery charges, or other charges which
are excludable, pursuant to section 4216(a) of the Code, in computing
taxable price, are as follows:

First Quarter:
Articles taxable under Section 4181...................... $100,000
Local advertising charges................................ 3,000
------------
Total Charges........................................ 103,000

Second Quarter:
Articles taxable under Section 4181...................... $150,000
Local advertising charges................................ 4,000
------------
Total Charges........................................ 154,000

Assume further that the manufacturer contributes to the advertising
plan and that the manufacturer pays $5,500 and $1,000 during the first
and second calendar quarters of the year, respectively, to his
distributors in reimbursement of expenses incurred by them for local
advertising of the articles purchased from the manufacturer.

Computation as of close of first calendar quarter:
1. Amount which would constitute total taxable price $103,000
(computed at time of sale) if no part of any charge for
local advertising were excludable in computing taxable
price...................................................
2. Amounts billed as separate charges for local -3,000
advertising.............................................
------------
3. Difference............................................ 100,000
4. Overall 5 percent limitation (5 percent of item 3).... $5,000
5. Amount excluded in computing taxable price............ -3,000
------------
6. Unused portion of limitation.......................... 2,000
7. Allocation, pursuant to agreement, of $5,500 paid to
distributors:
Charges for local advertising.......................... $3,000
Contributions by manufacturer.......................... $2,500

Readjustment may be claimed in respect of that portion of the total
amount repaid to the distributors which is allocated to the
manufacturer's contribution ($2,500) to the extent that such portion
does not exceed the unused portion of the overall 5 percent limitation
($2,000). Accordingly, as of the close of the first calendar quarter the
manufacturer may claim credit or refund in respect of a readjustment of
price in the amount of $2,000.

Computation as of close of second calendar quarter:
1. Amount which would constitute total taxable price $257,000
(computed at time of sale) if no part of any charge for
local advertising were excludable in computing taxable
price ($103,000+$154,000)...............................
2. Amounts billed as separate charges for local -7,000
advertising ($3,000+$4,000).............................
------------
3. Difference............................................ 250,000
4. Overall 5 percent limitation (5 percent of item 3).... $12,500
5. Amount excluded in computing taxable price -9,000
($3,000+$4,000) plus readjustment claimed at end of
first calendar quarter ($2,000).........................
------------
6. Unused portion of limitation.......................... 3,500
7. Allocation, pursuant to agreement, of $6,500
($5,500+$1,000) paid to distributors:
Charges for local advertising.......................... $3,500
Contributions by manufacturer.......................... $3,000

Although the total reimbursements for local advertising expenses
attributable to contributions by the manufacturer ($3,000) does not
exceed the unused portion of the overall 5 percent limitation ($3,500),
the manufacturer, having taken, at the close of the first calendar
quarter, a price readjustment in the amount of $2,000 in respect to his
contributions, is entitled at the close of the second calendar quarter
to claim credit or refund in respect of a price readjustment in the
amount of $1,000 ($3,000-$2,000).
Example (2). During the first calendar quarter of the year, a
manufacturer sold articles

[[Page 185]]

taxable under section 4181 to his distributors at a total charge of
$106,000, exclusive of the tax, transportation charges, delivery
charges, or other charges which are excludable, pursuant to section
4216(a) of the Code, in computing taxable price. This total charge of
$106,000 was billed as follows:

Total Charge:
Articles taxable under Section 4181...................... $100,000
Local advertising charges................................ 6,000
------------
Total charges........................................ 106,000

Assume further that the manufacturer contributes to the advertising
plan and that the manufacturer pays $3,000 during the first calendar
quarter of the year to his distributors in reimbursement of expenses
incurred by them for local advertising of the articles purchased from
the manufacturer.

Computation as of close of first calendar quarter:
1. Amount which would constitute total taxable price $106,000
(computed at time of sale) if no part of any charge for
local advertising were excludable in computing taxable
price...................................................
2. Amounts billed as separate charges for local -6,000
advertising.............................................
------------
d. Difference............................................ 100,000
4. Overall 5 percent limitation (5 percent of item 3).... 5,000
5. Amount excluded in computing taxable price (see -5,000
paragraph (c) of Sec. 53.100..........................
------------
6. Unused portion of limitation.......................... 0
7. Allocation, pursuant to agreement, of $3,000 paid to ...........
distributors:
Charges for local advertising.......................... 2,000
Contributions by manufacturer.......................... 1,000

Credit or refund may not be claimed in respect of that portion of
the total amount repaid to the distributors ($3,000) which is allocated
to the manufacturer's contribution ($1,000) since the amount excluded in
computing taxable price is equal to the overall 5 percent limitation.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.102 No exclusion or readjustment for other advertising charges or

reimbursements.

(a) Exclusions from price. No exclusion in computing the taxable
price of any article sold by the manufacturer may be allowed in respect
of any charge for advertising if, and to the extent that, such charge:
(1) Is for advertising which does not qualify as local advertising
within the meaning of section 4216(e)(4) of the Code and paragraphs (a)
and (b) of Sec. 53.100, or
(2) Does not satisfy all of the conditions and limitations stated in
section 4216(e)(1) of the Code and paragraph (c) of Sec. 53.100.
(b) Readjustments of price. No credit or refund under section
6416(b)(1) of the Code may be allowed in respect of any amount which was
included in the taxable price of an article sold by the manufacturer and
which was later paid by him to his vendee in reimbursement of costs
incurred for advertising, if, and to the extent that, the amount so
paid:
(1) Is for advertising which does not qualify as local advertising
within the meaning of section 4216(e)(4) of the Code and paragraph (b)
of Sec. 53.100, or
(2) Is not within the limitation provided in section 4216(e)(2) of
the Code, as computed in accordance with Sec. 53.101, as of the close
of the calendar quarter in which the amount is so paid over or as of the
close of any subsequent calendar quarter in the same calendar year. See,
however, Sec. 53.175, relating to redetermination of price
readjustments in cases where local advertising charges excluded from
taxable price in one calendar year become taxable as of May 1 of the
following calendar year.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.103 Lease considered as sale.

For purposes of chapter 32 of the Code, the lease of an article by a
manufacturer, producer, or importer shall be considered a sale of the
article. The term lease means a contract or agreement, written or
verbal, which gives the lessee an exclusive, continuous right to the
possession or use of a particular article for a period of time. The

[[Page 186]]

term includes any renewal or extension of a lease or any subsequent
lease of the article.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991; T.D. 372, 61 FR 20724, May 8, 1996]

Sec. 53.104 Limitation on amount of tax applicable to certain leases.

(a) Conditions for eligibility. Section 4217(b) of the Code provides
for a limitation on the amount of tax that shall apply to the lease, any
renewal, or further lease, of an article which, if sold, would be
subject to tax on the basis of sale price. Such limitation on the amount
of the tax applies with respect to the lease of an article only if, at
the time of making the lease, the lessor is engaged in the business of
selling in arm's length transactions the same type and model of article.
In case of a lease to which section 4217(b) of the Code does not apply,
tax shall be computed and paid as provided in section 4216(c) of the
Code and paragraph (a) of Sec. 53.98.
(b) Lessor engaged in business of selling. The lessor will be
regarded as being engaged in the business of selling in arm's length
transactions the same type and model of an article as the one being
leased if it periodically and recurringly makes bona fide offers for
sale of such articles in the regular course of operation of its
business, which offers if accepted would constitute sales at arm's
length. Whether the offers are bona fide shall be determined on the
basis of the facts in each case, such as sales actually made, the nature
of the advertising, sales literature, and other means used to effectuate
sales. It is not necessary that the offers for sale be made to the same
class of purchasers as those to whom the article is being leased.
(c) Same type and model of article. To qualify as the ``same type
and model of article'', the article offered for sale must be an unused
article essentially the same in size, design, and function as the
article being leased. Slight differences in appearance or accessories
will not render articles dissimilar which are identical in all other
respects.
(d) Basis for tax--(1) Tax payable until total tax in paid. In case
of a lease of an article to which section 4217(b) of the Code applies,
tax shall be paid on each lease payment in an amount computed by
applying to such lease payment a percentage equal to the rate of tax in
effect on the date of the lease payment. Such tax payments shall
continue to be made under such lease, or any subsequent lease of the
article, until the cumulative total of the tax payments equals the total
tax. Lease payments made thereafter with respect to that article shall
not be subject to tax. For definition of the term ``total tax,'' see
paragraph (e) of this section.
(2) Changes in tax rates. If the rate of tax is increased or
decreased during a lease period, the new rate shall apply to the lease
payments made on and after the date of the change, but the amount of the
total tax shall remain the same.
(e) Total tax. For purposes of this section, the term ``total tax''
means the amount of tax, computed at the rate in effect on the date of
the first lease of the article to which section 4217(b) of the Code
applies, which would be due on the constructive sale price of the
article as determined under section 4216(b) of the Code and Sec. 53.95,
as if the article had been sold by a manufacturer at retail on such
date.
(f) Sale of article before total tax becomes payable. If the lessor
sells the article before the total tax has become payable, the tax
payable on the sale shall be the lesser of the following amounts:
(1) The difference between:
(i) The total tax, and
(ii) The aggregate tax applicable to lease payments already
received; or
(2) A tax computed, at the rate in effect on the date of the sale,
on the price for which the article is sold. For purposes of (f)(2) of
this section, the provisions of section 4216(b) of the Code for
determining a constructive sale price shall not apply if the sale is at
arm's length. If the sale is not at arm's length, the tax referred to in
(f)(2) of this section shall be computed on a constructive sale price as
provided in Sec. 53.95.
(g) Sale of article after total tax has become payable. If the
lessor sells an article after the total tax has become payable, the tax
imposed under chapter 32

[[Page 187]]

of the Code shall not apply to such sale.

Use by Manufacturer or Importer Considered Sale

Sec. 53.111 Tax on use by manufacturer, producer, or importer.

(a) In general. Section 4218 of the Code imposes tax in respect of
certain uses of articles by the actual manufacturer, producer, or
importer thereof. This section also applies in respect of the use of
articles by any other person who, pursuant to a provision of chapter 32
of the Code, is considered to be, or is treated as, the manufacturer or
producer of the articles. See, for example, section 4223 of the Code
relating to articles purchased tax free for use in further manufacture.
(b) Taxable articles in general--(1) Application of tax. If the
manufacturer, producer, or importer of an article taxable under chapter
32 of the Code uses the article for any purpose other than that
indicated in paragraph (b) (3) of this section, he shall be liable for
tax with respect to the use of such article in the same manner as if the
article were sold by him.
(2) Taxable use in manufacturer of nontaxable articles--(i) In
general. In the case of an article to which paragraph (b)(1) of this
section applies, tax attaches when the manufacturer, producer, or
importer of the articles uses it as material in the manufacture or
production of, or as a component part of, another article which is not
taxable under chapter 32 of the Code, regardless of the disposition made
of such other article. (See paragraph (c) of Sec. 53.115 for
computation of tax on such use.)
(ii) Types of use in manufacture of nontaxable articles. Taxable use
may consist of the incorporation of a taxable article into a nontaxable
article. Taxable use may also result from the combining of a taxable
article (or the components thereof) with a nontaxable article (or the
components of a nontaxable article) resulting in a combination end
article which itself is not taxable. Although the taxable article may
not be a completely separable unit, within the contemplation of the law
a taxable article has been produced and incorporated in the combination
end article.
(3) Nontaxable use in manufacturer of taxable articles. The tax on
the use of an article to which paragraph (b)(1) of this section has
application shall not apply if the article is used by the manufacturer,
producer, or importer thereof as material in the manufacturer or
production of, or as a component part of, another article taxable under
chapter 32 of the Code to be manfactured or produced by him. It is
immaterial what disposition is made of such other article.
(c) Use after lease. If the manufacturer, producer, or importer of a
taxable article leases such article and thereafter uses the article, he
incurs liability for tax on such use as provided in these regulations to
the same extent as if the article were sold after being leased. See
section 4217 of the Code and the regulations thereunder in this subpart
for application and computation of tax in case of leased articles.
(d) Time of application of tax. In the case of a taxable use of an
article by the manufacturer, producer, or importer thereof, the tax
attaches at the time such use begins. If tax applies by reason of the
sale of an article by the manufacturer, producer, or importer thereof on
or in connection with his sale of another article, the tax attaches at
the time of the sale of such other article.
(e) Exemptions because of other statutory provisions. Tax does not
apply on the use of an article by the manufacturer, producer, or
importer thereof if under the applicable provisions of the Code the sale
of the article for a similar use would not be subject to tax. Also, tax
need not be paid with respect to the use of an article by the
manufacturer, producer, or importer thereof if such use would qualify,
under the provisions of section 6416(b) of the Code, for credit or
refund of the tax paid.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991]

Editorial Note: At 56 FR 31084, July 9, 1991, Sec. 53.111 was
amended by removing the word ``manufacturer'' and adding the word
``manufacture'' in the heading of paragraph (a)(2), and removing the
word ``manufacturer'' and adding the word ``manufacture''

[[Page 188]]

in the first sentence of paragraph (a)(3), effective July 9, 1991;
however, these sub-paragraph designations are not included in Sec.
53.111(a). The issuing agency will publish a correction in the Federal
Register at a later date.

Sec. 53.112 Business or personal use of articles.

(a) Business use. Section 4218 of the Code applies to the use by a
person, in the operation of any business in which he is engaged, of a
taxable article which has been manufactured, produced, or imported by
him or his agent.
(b) Personal use. The tax on use of a taxable article does not
attach in cases where an individual incidentially manufacturers,
produces, or imports a taxable article for his personal use or causes a
taxable article to be manufactured, produced, or imported for his
personal use.

Sec. 53.113 Events subsequent to taxable use of article.

Liability for tax incurred on the use of an article is not
extinguished or reduced because of any subsequent sale or lease of the
article even if such sale or lease would have been exempt if the article
had been so sold or leased prior to use. If a manufacturer, producer, or
importer of an article incurs liability for tax on his use thereof, and
thereafter sells or leases the article in a transaction which otherwise
would be subject to tax, liability for tax is not incurred on such sale
or lease.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.114 Use in further manufacture.

For purposes of section 4218 and Sec. 53.111, an article is used as
material in the manufacture or production of, or as a component part of,
another article, if it is incorporated in, or is a part or accessory of,
the other article. In addition, an article is considered to be used as
material in the manufacturer of another article if it is partly or
entirely consumed in testing such other article; for example, shells or
cartridges used in testing new firearms. Similarly, if an article is
partly or wholly consumed in quality testing a production run of like
articles, such article is also considered to have been used as material
in the manufacture of another article. However, if a taxable article
that has been used tax free and only partly consumed in testing is later
sold, or put to a taxable use by the manufacturer, tax attaches to such
sale or use. An article that is consumed in the manufacturing process
other than in testing, so that it is not a physical part of the
manufactured article, is not used as material in the manufacture or
production of or as a component part of, such other article.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.115 Computation of tax.

(a) Tax based on price. Tax liability incurred on the use of an
article shall be computed on the price at which such or similar articles
are sold in the ordinary course of trade by manufacturers, producers, or
importers thereof and in the absence of special arrangements. For
additional provisions applicable in computing the tax in the case of the
use of an article by a manufacturer and producer who purchased the
article free of tax under section 4221(a)(1) of the Code for use by him
in further manufacture, see section 4223(b) of the Code and the
regulations thereunder (Sec. 53.143).
(b) Articles regularly sold by manufacturer. If the manufacturer,
producer, or importer of an article regularly sells such articles at
wholesale in arm's length transactions, tax liability on his use of any
such article shall be computed on his lowest established wholesale price
for such articles in effect at the time of the taxable use. In
establishing such price, there shall be included and excluded, as
applicable, the charges and readjustments specified in sections 4216(a)
and 6416(b)(1) of the Code, as in effect at the time tax liability on
the use of the article is incurred, and the regulations thereunder
contained in this subpart and subpart L (Sec. Sec. 53.91-53.94 and
53.173-53.176). If the manufacturer, producer, or importer of an article
does not regularly sell such articles at wholesale in arm's length
transactions, a constructive price on which the use tax shall be
computed will be determined by the appropriate

[[Page 189]]

TTB officer. This price will be established after considering the
selling practices and price structures of manfacturers, producers, and
importers of similar articles.
(c) Articles governed by section 4218(a) used in manufacture of
nontaxable combination articles. If the manufacturer, producer, or
importer of an article to which section 4218(a) of the Code applies does
not regularly sell such article separately but uses it as material in
the manufacture or production of, or as a component part of, a
nontaxable combination article consisting of a taxable and nontaxable
article, liability for tax on his use shall be computed on the
constructive price of the taxable article at the time of use. To
determine the constructive price of the taxable article in such case,
the combination article is considered to be composed of:
(1) Parts used exclusively in the functioning of the taxable article
in the combination;
(2) Parts used exclusively in the functioning of the nontaxable
article in the combination, and
(3) Parts, called common parts, which serve a dual function in
connection with the parts in both paragraphs (c) (1) and (2) of this
section.

The ratio which the cost of the parts in paragraph (c)(1) of this
section bears to the sum of the cost of such parts and the parts in
paragraph (c)(2) of this section is applied to the lowest established
wholesale price for which like combination articles are at the time of
the taxable use being sold by the manufacturer or producer in the
ordinary course of trade. The resulting amount is the constructive sale
price for the taxable article on which tax is to be computed. The cost
of the common parts is allocable to the parts in paragraphs (c) (1) and
(2) of this section in the same ratio, and, therefore, need not be taken
into account in the computation since the inclusion and allocation of
the cost of such parts in the determination would not result in a
different ratio. In determining the lowest establishment wholesale price
for the combination article, there shall be included and excluded, as
applicable, the charges and readjustments specified in sections 4216(a)
and 6416(b)(1) of the Code, as in effect at the time tax liability on
the use of the taxable article is incurred, and the regulations
thereunder contained in this subpart and subpart L of this part
(Sec. Sec. 53.91-53.94 and Sec. Sec. 53.173-53.176). The tax
applicable to the use of the article for which a constructive sale price
has been computed is not affected by any charges or readjustments of the
price for which the nontaxable combination article is sold, whether by
reason of the return or repossession of the nontaxable article or its
covering or container, or by a bona fide discount, rebate, allowance, or
other factor.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Application of Tax in Case of Sales by Other Than Manufacturer or
Importer

Sec. 53.121 Sales of taxable articles by a person other than the

manufacturer, producer, or importer.

(a) General rule. If the title to, or ownership of, an article
taxable under chapter 32 of the Code is transferred from the
manufacturer, producer, or importer thereof, and, under the law, no tax
attaches to such transfer, the subsequent sale, lease, or use of such
article by the transferee is subject to tax to the same extent and
manner as if such transferee were the manufacturer, producer, or
importer of the article. The following examples illustrate this rule:
(1) The surviving spouse, child or children, executors or
administrators, or other legal representatives, as the case may be, of a
deceased manufacturer, producer, or importer of taxable articles, incur
liability for tax on all such articles sold by them.
(2) A receiver or trustee in bankruptcy who under a court order
conducts or liquidates the business of a manufacturer, producer, or
importer of taxable articles, incurs liability for tax on all taxable
articles sold by him, regardless of whether the articles were
manufactured, produced, or imported before or after he took charge of
the business.
(3) An assignee for the benefit of creditors of a manufacturer,
producer, or importer incurs liability for tax

[[Page 190]]

with respect to all taxable articles sold by him as such assignee.
(4) If one or more member of a partnership withdraw, or if new
partners are admitted, the new partnership so constituted incurs
liability for tax on all taxable articles sold by it regardless of when
such articles were manufactured, produced, or imported.
(5) A person who acquires title to taxable articles as a result of
default of the manufacturer, producer, or importer pursuant to an
agreement under the terms of which the articles were pledged as
collateral incurs liability for tax with respect to his sale of the
articles so acquired.
(6) A person who succeeds to the business of a manufacturer,
producer, or importer of taxable articles, such as:
(i) A corporation which results from a consolidation, merger, or
reorganization;
(ii) A corporation which acquires the business of an individual or
partnership; or
(iii) A stockholder in a corporation who, after its dissolution,
continues the business;

incurs liability for the tax on all taxable articles sold by such
person. However, where a manufacturer, producer, or importer sells only
his assets, rather than ownership of his business, he incurs liability
for tax on the sale of any taxable articles included in such assets.
(b) Transfer of title to damaged articles. If title to a damaged
taxable article is transferred by the manufacturer, producer, or
importer thereof to a carrier or insurance company in adjustment of a
damage claim, such transfer is not considered a taxable sale of the
article. If the article is usable, even though damaged, the carrier or
insurance company incurs liability for tax on its sale, lease, or use of
the article. Where the article has been damaged to the extent that its
only value is as scrap, and it is not restored to usable condition, sale
thereof by the carrier or insurance company is not subject to tax.

Subpart K_Exemptions, Registration, Etc.

Sec. 53.131 Tax-free sales; general rule.

(a) In general. Section 4221(a) of the Code sets forth the following
exempt purposes for which an article subject to tax under chapter 32 of
the Code may be sold tax-free by the manufacturer, producer, or
importer:
(1) For use by the purchaser for further manufacture, or for resale
by the purchaser to a second purchaser for use by such second purchaser
in further manufacture,
(2) For export, or for resale by the purchaser to a second purchaser
for export,
(3) For use by the purchaser as supplies for vessels or aircraft,
(4) To a State or local government for the exclusive use of a State
or local government, and
(5) To a nonprofit educational organization for its exclusive use.

Section 4221(a) of the Code applies only in those cases where the
exportation or use referred to is to occur before any other use, and
where the seller, first purchaser, and second purchaser, as may be
appropriate, have registered as required under section 4222 of the Code
and paragraph (a) of Sec. 53.140. See paragraph (c) of this section for
provisions relating to evidence required in support of tax-free sales.
See Sec. 53.141 for exceptions to the requirement for
registration.Where tax is paid on the sale of an article, but the
article is used or resold for use for an exempt purpose, a claim for
credit or refund may be filed in accordance with and to the extent
provided in sections 6402(a) and 6416 of the Code, and the regulations
thereunder (Sec. Sec. 53.161 and 53.171-53.186).
(b) Manufacturer relieved of liability in certain cases--(1) General
rule. Under the provisions of section 4221(c) of the Code, if an article
subject to tax under Chapter 32 of the Code is sold free of tax by the
manufacturer of the article for an exempt purpose referred to in section
4221(c) of the Code and paragraph (b)(2) of this section, the
manufacturer shall be relieved of any tax liability under chapter 32 of
the Code with respect to such sale if the manufacturer in good faith
accepts a proper certification by the purchaser that the

[[Page 191]]

article or articles will be used by the purchaser in the stated exempt
manner. See paragraph (b)(2) of this section for a list of the exempt
purposes referred to in section 4221(c) of the Code.
(2) Situations wherein section 4221(c) of the Code is applicable.
The following are situations wherein section 4221(c) of the Code is
applicable with respect to sales made tax free on the assumption that
one of the following sections of the Code provides exemption for such
sales:
(i) Section 4221(a)(1) of the Code, to the extent that it relates to
sales for further manufacture by a first purchaser (see Sec. 53.132),
(ii) Section 4221(a)(3) of the Code, relating to supplies for
vessels and aircraft (see Sec. 53.134),
(iii) Section 4221(a)(4) of the Code, relating to sales to State or
local governments (see Sec. 53.135),
(iv) Section 4221(a)(5) of the Code, relating to sales to nonprofit
educational organizations (see Sec. 53.136).
(3) Situations wherein section 4221(c) of the Code is not
applicable. The relief from liability for the payment of tax provided by
section 4221(c) of the Code is not applicable with respect to sales made
tax free on the assumption that one of the following sections of the
Code provides exemption for such sales:
(i) Section 4221(a)(1) of the Code, to the extent that it relates to
sales for resale to a second purchaser for use by the second purchaser
in further manufacture (see Sec. 53.132),
(ii) Section 4221(a)(2) of the Code, relating to sales for export
(see Sec. 53.133).
(4) Duty of seller to ascertain validity of tax-free sale. If the
manufacturer at the time of its sale has reason to believe that the
article sold by it is not intended for the exempt purpose indicated by
the purchaser, or that the purchaser has failed to register as required,
the manufacturer is not considered to have accepted certification from
the purchaser in good faith, and is not relieved from liability under
the provisions of section 4221(c) of the Code.
(5) Information to be furnished to purchaser. A manufacturer selling
articles free of tax under this section shall indicate to the purchaser
that:
(i) Certain articles normally subject to tax are being sold tax
free, and
(ii) The purchaser is obtaining those articles tax free for an
exempt purpose under an exemption certificate or its equivalent.
(6) The manufacturer may transmit this information by any convenient
means, such as coding of sales invoices, provided that the information
is presented with sufficient particularity so that the purchaser is
informed that he has obtained the articles tax free and:
(i) The purchaser can compute and remit the tax due if an article
sold tax free for further manufacture is diverted to a taxable use,
(ii) The manufacturer can remit the tax due with respect to an
article purchased tax free for resale for use in further manufacture or
for export if, within the 6-month period described in Sec. 53.132(c) or
Sec. 53.133(c), the manufacturer does not receive proof that the
article has been exported or resold for use in further manufacturer, or
(iii) The purchaser can notify the manufacturer if an article
otherwise purchased tax free is diverted to a taxable use.
(c) Evidence required in support of tax-free sales--(1) Purchasers
required to be registered. Every purchaser who is required to be
registered (see Sec. 53.140) shall furnish to the seller, as evidence
in support of each tax-free sale made by the seller to such purchaser,
the exempt purpose for which the article or articles are being purchased
and the registration number of the purchaser. Such information must be
in writing and may be noted on the purchase order or other document
furnished by the purchaser to the seller in connection with each sale.
(2) Purchasers not required to be registered. For the evidence which
purchasers not required to register must furnish to the seller in
support of each tax-free sale made by the seller to such purchasers, see
paragraph (b) of Sec. 53.133 for sales or resales to a foreign
purchaser for export, paragraph (d) of Sec. 53.134 for sales of
supplies to vessels or aircraft, paragraph (c) of Sec. 53.135 for sales
to State and local governments,

[[Page 192]]

and paragraph (c) of Sec. 53.141 for sales and purchases by the United
States.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-380, 61
FR 37005, July 16, 1996]

Sec. 53.132 Tax-free sale of articles to be used for, or resold for, further

manufacture.

(a) Further manufacture--(1) In general. Under prescribed
conditions, an article subject to tax under Chapter 32 of the Code may
be sold tax free by the manufacturer, pursuant to section 4221(a)(1) of
the Code, for use by the purchaser in further manufacture, or for resale
by the purchaser to a second purchaser for use by the second purchaser
in further manufacture. See section 4221(d) (6) of the Code and
paragraph (b) of this section for the circumstances under which an
article is considered to have been sold for use in further manufacture.
See section 6416(b)(3) of the Code and Sec. 53.180 for the
circumstances under which credit or refund is available when tax-paid
articles are used in further manufacture.
(2) Proof of resale for use in further manufacture. See section
4221(b)(1) of the Code and paragraph (c) of this section for provisions
under which the exemption provided in section 4221(a)(1) of the Code
shall cease to apply in the case of an article sold by the manufacturer
to a purchaser for resale to a second purchaser for use in further
manufacture unless the manufacturer receives timely proof of resale for
further manufacture.
(b) Circumstances under which an article is considered to have been
sold for use in further manufacture. (1) For purposes of the exemption
from the manufacturers excise tax provided by section 4221(a)(1) of the
Code, an article shall be treated as sold for use in further manufacture
if the article is sold for use by the purchaser as material in the
manufacture or production of, or as a component part of, another article
taxable under chapter 32 of the Code;
(2) An article is used as material in the manufacture or production
of, or as a component of, another article if it is incorporated in, or
is a part or accessory of, the other article when the other article is
sold by the manufacturer. In addition, an article is considered to be
used as material in the manufacture of another article if it is consumed
in whole or in part in testing such other article; for example, shells
or cartridges that are used by the manufacturer of firearms to test new
firearms. However, an article that is consumed in the manufacturing
process other than in testing, so that it is not a physical part of the
manufactured article, is not considered to have been used as material in
the manufacture of, or as a component part of, another article.
(c) Proof of resale for further manufacture--(1) Cessation of
exemption. The exemption provided in section 4221(a)(1) of the Code and
described in paragraph (a) of this section in respect of an article sold
by the manufacturer to a purchaser for resale to a second purchaser for
use by the second purchaser in further manufacture shall cease to apply
on the first day following the close of the 6-month period which begins
on the date of the sale of such article by the manufacturer, or the date
of shipment of the article by the manufacturer, whichever is earlier,
unless, within such 6-month period, the manufacturer receives proof, in
the form prescribed by paragraph (c)(2) of this section, that the
article was actually resold by the purchaser to a second purchaser for
such use. If, on the first day following the close of the 6-month
period, such proof has not been received, the manufacturer shall become
liable for tax at that time at the rate in effect when the sale was made
but otherwise in the same manner as if the article had been sold by it
on such first day at a taxable price equivalent to that at which the
article was actually sold. If the manufacturer later obtains such proof,
it may file a claim for refund or credit of this tax. The payment of
this tax by the manufacturer is not considered an overpayment by the
subsequent manufacturer or producer for which the subsequent
manufacturer or producer is entitled to a credit or refund under section
6416(b)(3) of the Code. See section 4221(d)(6) of the Code and paragraph
(b) of this section for the circumstances under which an article is
considered to have been sold for use in further manufacture.

[[Page 193]]

(2) Proof of resale--(i) Certificate of purchaser. The proof of
resale to be received by the manufacturer, as required under section
4221(b)(1) of the Code, may consist of either a copy of the invoice of
the manufacturer's vendee directed to his purchaser which discloses the
certificate of registry number held by each party or a statement
described in this paragraph. In the case of an invoice of manufacturer's
vendee, it must appear from such invoice (or by statement attached
thereto) that the article was in fact resold for use in further
manufacture. In lieu of such an invoice, proof of resale may consist of
a statement, executed and signed by the manufacturer's vendee which
includes the following:
(A) Date statement was executed.
(B) Name and address of manufacturer's vendee (if other than the
person executing statement).
(C) Certificate of registry number held by vendee.
(D) Specify article(s) purchased tax-free, by whom purchased,
certificate of registry number of second purchaser, date of purchase(s),
whether articles were purchased as material in the manufacture or
production of, or as a component part or parts of, an article or
articles taxable under Chapter 32 of the Code.
(E) Statement that person executing statement or manufacturer's
vendee possesses proof of tax-free resale of the article(s) in the form
of purchase orders and sales invoices and identifying the person who
will maintain custody of such proof for 3 years from the date of the
statement and will make such proof available for inspection by TTB
during such 3 year period.
(F) Statement that a previous statement has not been executed in
respect of such certificate of resale and that the person signing the
statement is aware that fraudulent use of the statement may subject the
person signing the statement and all parties making fraudulent use of
the statement to all applicable criminal penalties under the Code.
(G) Name, signature, and title of individual executing statement.
(ii) Period covered. Any statement executed and signed by the
manufacturer's vendee, as provided in paragraph (c)(2)(i) of this
section, may be executed with respect to any one or more articles
purchased tax free from a manufacturer and resold for use in further
manufacture within the 6-month period prescribed in section 4221(a)(1)
of the Code and paragraph (c)(1) of this section. Such statement (or
other prescribed proof of resale) must be retained for inspection by the
appropriate TTB officer as provided in section 6001 of the Code.
(iii) TTB I 5600.37. A preprinted statement, TTB I 5600.37,
Statement of Manufacturer's Vendee, which is available as provided in
Sec. 53.21(b), when completed, contains all necessary information for a
properly executed statement. Extra copies of TTB I 5600.37 may be
reproduced as needed.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-380, 61
FR 37005, July 16, 1996]

Sec. 53.133 Tax-free sale of articles for export, or for resale by the

purchaser to a second purchaser for export.

(a) In general. (1) An article subject to tax under chapter 32 of
the Code may be sold tax free by the manufacturer, pursuant to section
4221(a)(2) of the Code and this section, for export, or for resale by
the purchaser to a second purchaser for export. See Sec. 53.11 for the
meaning of the term ``exportation''. An article may be sold tax free by
the manufacturer under the provisions of this section only if the person
to whom the manufacturer sells the article intends either to export the
article or to resell it to a person who intends to export it. An article
may not be sold tax free under the provisions of this section by a
manufacturer to a purchaser for resale to a second purchaser which does
not intend to export the article itself but plans to resell it to a
third purchaser for export. See section 6416(b)(2)(A) of the Code and
Sec. 53.177 for the circumstances under which credit or refund of tax
is available where tax-paid articles are exported from the United
States.
(2) If an article, otherwise taxable under chapter 32 of the Code:
(i) Is sold tax free by the manufacturer pursuant to section
4221(a)(2) of the Code and this section, and

[[Page 194]]

(ii) Is returned subsequently to the United States in an unused and
undamaged condition,

then the importer is liable for the tax imposed by chapter 32 of the
Code on the subsequent sale or use of the article in the United States.
The provisions of this paragraph (a)(2) of this section may be
illustrated by the following examples:

Example (1). Q, a U.S. manufacturer of shells and cartridges,
previously sold shells and cartridges to R, a company in Canada. The
sale was tax free under section 4221(a)(2). Prior to use, R sold the
shells and cartridges to S, who imports the articles into the United
States and sells them. The sale of the shells and cartridges subjects S
to an excise tax liability under section 4181.
Example (2). X, a U.S. firearms manufacturer, sold a rifle to Y
company in France. The sale was tax free under section 4221(a)(2). The
rifle was sold by Y to W, an individual in the City of Nice, France.
After initial use, W resold the rifle to X. X returned the rifle to the
United States where it was resold. The resale of the rifle by X does not
subject X to an excise tax liability under section 4181.

(b) Sales or resales to a foreign purchaser for export. In the case
of sales or resales to a foreign purchaser for export, if the first or
the second purchaser is located in a foreign country or possession of
the United States, such purchaser is not required to register as
provided in section 4222(a) of the Code and Sec. 53.140. To establish
the right to sell articles tax free for export to a purchaser who is not
registered and who is located in a foreign country or a possession of
the United States, the manufacturer must obtain from such purchaser at
the time title to the article passes or at the time of shipment,
whichever is earlier, either:
(1) A written order or contract of sale showing that the
manufacturer is to ship the article to a foreign destination; or
(2) Where delivery by the manufacturer is to be made within the
United States, a statement from the purchaser showing:
(i) That the article is purchased either to fill existing or future
orders for delivery to a foreign destination or for resale to another
person engaged in the business of exporting who will export the article,
and
(ii) That such article will be transported to its foreign
destination in due course prior to use or further manufacture and prior
to any resale except for export. See section 4221(b) of the Code and
paragraphs (c) and (d) of this section for requirements as to timely
proof of exportation and cessation of the exemption for export unless
the evidence to show actual exportation has been received by the
manufacturer.
(c) Cessation of exemption. The exemption provided in section
4221(a)(2) of the Code and paragraph (a) of this section for an article
sold by the manufacturer for export or for resale by the purchaser to a
second purchaser for export shall cease to apply on the first day
following the close of the 6-month period which begins on the date of
the sale of the article by the manufacturer, or the date of shipment of
the article by the manufacturer, whichever is earlier, unless within the
6-month period the manufacturer receives proof, in the form prescribed
by paragraph (d) of this section, that the article was actually
exported. If, on the first day following the close of the 6-month
period, the proof has not been received, the manufacturer shall become
liable for tax at that time at the rate in effect when the sale was made
but otherwise in the same manner as if the article had been sold by it
on such first day at a taxable price equivalent to that at which the
article was actually sold.
(d) Proof of exportation. (1) Exportation may be evidenced by:
(i) A copy of the export bill of lading issued by the delivering
carrier,
(ii) A certificate by the agent or representative of the export
carrier showing actual exportation of the article,
(iii) A certificate of landing signed by a customs officer of the
foreign country to which the article is exported,
(iv) Where the foreign country has no customs administration, a
statement of the foreign consignee showing receipt of the article, or
(v) Where a department or agency of the United States Government is
unable to furnish any one of the foregoing four types of proof of
exportation, a statement or certification on the department or agency
stationery, executed by an authorized officer, that the

[[Page 195]]

listed or identified articles have, in fact, been exported.
(2) In any case where the manufacturer is not the exporter, the
manufacturer must have in its possession a statement from the vendee to
whom the manufacturer sold the article stating the following:
(i) Date statement was executed.
(ii) Name and address of manufacturer's vendee (if other than the
person executing statement).
(iii) Certificate of registry number held by vendee.
(iv) Specify article(s) purchased tax-free, by whom purchased, and
date of purchase.
(v) Statement that article(s) was either exported in due course by
the vendee or was sold to another person who in due course exported the
article(s).
(vi) Name and address of vendee who will maintain possession of the
proof of exportation documents, description of the documents, and
statement that vendee will maintain documents for 3 years and make them
available to TTB for inspection.
(vii) Statement that a previous statement has not been executed in
respect of the articles covered by this statement and that fraudulent
use of this statement may subject person executing statement and all
parties making fraudulent use of statement to all applicable criminal
penalties under the Code.
(viii) Name, signature, title, and address of individual executing
certificate.
(3) The statement executed and signed by the manufacturer's vendee,
as provided in paragraph (d)(2) of this section, may be executed with
respect to any one or more articles purchased tax free from a
manufacturer and exported within the 6-month period prescribed in
section 4221(b)(2) of the Code and paragraph (c) of this section. Such
statement shall be kept for inspection by the appropriate TTB officer as
provided in section 6001 of the Code.
(4) TTB I 5600.36. A preprinted statement, TTB I 5600.36, Statement
of Manufacturer's Vendee, which is available as provided in Sec.
53.21(b), when completed, contains all necessary information for a
properly executed statement. Extra copies of TTB I 5600.36 may be
reproduced as needed.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-344, 58
FR 40354, July 28, 1993; T.D. 372, 61 FR 20724, May 8, 1996; T.D. ATF-
380, 61 FR 37006, July 16, 1996]

Sec. 53.134 Tax-free sale of articles for use by the purchaser as supplies

for vessels or aircraft.

(a) Supplies for vessels or aircraft--(1) In general. An article
subject to tax under chapter 32 of the Code may be sold tax free by the
manufacturer, pursuant to section 4221(a)(3) of the Code and this
section, for use by the purchaser as supplies for vessels or aircraft.
See paragraph (b) of this section for the meaning of the term ``supplies
for vessels or aircraft.'' An article may be sold tax free under the
provisions of this section only in those cases where the sale of an
article by the manufacturer is made directly to the owner, officer,
charterer, or authorized agent of a vessel or aircraft for use as
supplies for the vessel or aircraft. No sale may be made tax free to a
dealer for resale for use as supplies for vessels or aircraft, even
though it is known at the time of sale by the manufacturer that the
article will be so resold. See section 6416(b)(2)(B) of the Code and
paragraph (c) of Sec. 53.178 for circumstances under which credit or
refund of tax is available where tax-paid articles are used, or sold for
use, as supplies for vessels or aircraft. An article may not be sold tax
free under the provisions of this section by the manufacturer to
passengers or members of the crew of a vessel or aircraft.
(2) Civil aircraft of foreign registry. In the case of any article
sold by the manufacturer for use by the purchaser as supplies for civil
aircraft of foreign registry employed in foreign trade or in trade
between the United States and any of its possessions, the provisions of
this paragraph apply only if the reciprocity requirements of section
4221(e)(1) of the Code are met. See paragraph (c) of this section.
(b) Meaning of terms--(1) Supplies for vessels or aircraft. The term
``supplies for vessels or aircraft'' means fuel supplies, ships' stores,
sea stores, or legitimate equipment on vessels of war of

[[Page 196]]

the United States or of any foreign nation, vessels employed in the
fisheries or in the whaling business, or vessels actually engaged in
foreign trade or trade between the Atlantic and Pacific ports of the
United States or between the United States and any of its possessions.
(2) Fuel supplies, ships' stores, and legitimate equipment. The
terms ``fuel supplies'', ``ships' stores'', and ``legitimate equipment''
include all articles, materials, supplies, and equipment necessary for
the navigation, propulsion, and upkeep of vessels of war of the United
States or of any foreign nation, vessels employed in the fisheries or in
the whaling business, or vessels actually engaged in foreign trade or in
trade between the Atlantic and Pacific ports of the United States or
between the United States and any of its possessions, even though such
vessels may make intermediate stops in the United States. The term does
not include supplies for vessels engaged in trade:
(i) Between domestic ports in the Atlantic Ocean and the Gulf of
Mexico,
(ii) Between domestic ports on the Pacific Ocean,
(iii) Between domestic ports on the Great Lakes, or
(iv) On the inland waterways of the United States.
(3) Sea stores. The term sea stores includes any article purchased
for use or consumption by the passengers or crew, or both, of a vessel
during its voyage.
(4) Vessel. The term vessel includes:
(i) Every description of watercraft or other contrivance used, or
capable of being used, as a means of transportation on water,
(ii) Civil aircraft registered in the United States and employed in
foreign trade or in trade between the United States and any of its
possessions, and
(iii) Civil aircraft registered in a foreign country and employed in
foreign trade or trade between the U.S. and its possessions.
(5) Vessels of war of the United States or of any foreign nation.
The term vessels of war of the United States or of any foreign nation
includes:
(i) Every description of watercraft or other contrivance used, or
capable of being used, as a means of transportation on water and
constituting equipment of the armed forces (including the U.S. Coast
Guard and U.S. National Guard) of the United States or of a foreign
nation, and
(ii) Aircraft owned by the United States or by any foreign nation
and constituting equipment of the armed forces thereof.
(iii) For purposes of this section, vessels or aircraft owned by
armed forces are not considered to be equipment of such armed forces
while on lease or loan to an organization that is not part of the armed
forces.
(6) Vessels used in fisheries or whaling business. The exemption
provided by section 4221(a)(3) of the Code and paragraph (a) of this
section in the case of articles sold for the prescribed use on vessels
employed in the fisheries or whaling business is limited to articles
sold by the manufacturer for such use on vessels while employed, and to
the extent employed, exclusively in the fisheries or in the whaling
business. For purposes of this section, vessels engaged in sport fishing
are not considered to be employed in the fisheries business.
(7) Civil aircraft. The exemption provided by section 4221(a)(3) of
the Code and paragraph (a) of this section relating to supplies for
vessels or aircraft, with respect to civil aircraft, extends only to
civil aircraft when employed in foreign trade, or in trade between the
United States and any of its possessions. Sales of supplies to civil
aircraft when engaged in trade between the Atlantic and the Pacific
ports of the United States are not exempt from the tax imposed under
chapter 32 of the Code. See section 4221(e)(1) of the Code and paragraph
(c) of this section for requirement of reciprocal exemption in the case
of a civil aircraft registered in a foreign country.
(8) Trade. The term ``trade'' includes the transportation of persons
or property for hire and the making of the necessary preparations for
such transportation. The term ``trade'' also includes the transportation
of property on a vessel or aircraft owned or chartered by the owner of
the property in connection with the purchase, sale, or

[[Page 197]]

exchange of the property in a commercial business operation. However, a
vessel owned or chartered by a company and used in the transportation of
personnel or property of such company to or from its business properties
located in a foreign country, or in a possession of the United States,
is not engaged in ``trade''.
(c) Reciprocity required in the case of civil aircraft. The
exemption provided by section 4221(a)(3) of the Code and paragraph (a)
of this section with respect to the sales of supplies for civil aircraft
registered in a foreign country is further limited in that the privilege
of exemption may be granted only if the Secretary of Commerce advises
the Secretary of the Treasury that the foreign country allows, or will
allow, substantially the same reciprocal privileges. If a foreign
country discontinues the allowance of such substantially reciprocal
exemption, the exemption allowed by the United States will not apply
after the Secretary of the Treasury is notified by the Secretary of
Commerce of the discontinuance of the exemption allowed by the foreign
country.
(d) Evidence required to establish--(1) In general. The exemption
provided in section 4221(a)(3) of the Code and paragraph (a) of this
section for articles sold for use by the purchaser as supplies for
vessels or aircraft applies only:
(i) If both the manufacturer and purchaser are registered under the
provisions of section 4222 of the Code, or
(ii) The purchaser or both the manufacturer and the purchaser are
not registered but have satisfied the provisions of paragraph (d)(2) of
this section.

See paragraph (c) of Sec. 53.131 for the evidence required to establish
exemption where the purchaser is registered pursuant to section 4222 of
the Code and Sec. 53.140.
(2) Exemption certificates for use in support of tax-free sales of
supplies for vessels and aircraft. (i) In order to establish exemption
from tax under section 4221(a)(3) of the Code in those instances where
the purchaser or both the manufacturer and purchaser are not registered
under section 4222 of the Code, the manufacturer must obtain (prior to
or at the time of the sale) from the owner, charterer, or authorized
agent of the vessel or aircraft and retain in the manufacturer's
possession a properly executed exemption certificate in the form
prescribed by paragraph (d)(2)(iii) of this section. If articles are
sold tax-free for use as supplies for civil aircraft employed in foreign
trade or in trade between the United States and any of its possessions,
the exemption certificate must show the name of the country in which the
aircraft is registered.
(ii) Where only occasional sales of articles are made to a purchaser
for use as supplies for vessels or aircraft, a separate exemption
certificate shall be furnished for each order. However, where sales are
regularly or frequently made to a purchaser for such exempt use, a
certificate covering all orders for a specified period not to exceed 12
calendar quarters will be acceptable. Such certificates and proper
records of invoices, orders, etc., relative to tax-free sales must be
kept for inspection by the appropriate TTB officer as provided in
section 6001 of the Code.
(iii) Acceptable form of exemption certificate. A certificate of
exemption to support tax-free sales under this section must include the
following:
(A) Name of owner, charterer, or authorized agent.
(B) Name of company and vessel.
(C) List article(s) covered by the certificate or beginning and
ending dates during which orders will be placed (not to exceed 12
calendar quarters).
(D) Statement that articles will be used only for fuel supplies,
ships' stores, sea stores, or legitimate equipment on a vessel belonging
to one of the class of vessels to which section 4221 of the Code
applies. Identify class of vessel certificate covers (see paragraphs (a)
and (b) of this section).
(E) If articles are purchased for use on civil aircraft engaged in
foreign trade or trade between the United States and any of its
possessions, state the country in which the aircraft is registered.
(F) Statement that it is understood that if any articles are used
for any purpose other than as stated in the certificate, or are resold
or otherwise disposed of, the person executing the certificate must
notify the manufacturer.

[[Page 198]]

(G) Statement that the certificate shall not be used to purchase
tax-free articles for use as supplies, etc. on pleasure vessels or any
type of aircraft except:
(1) Civil aircraft employed in foreign trade or trade between the
United States and any of its possessions;
(2) Aircraft owned by the United States or any foreign country and
constituting a part of the armed forces thereof.
(H) Statement that it is understood that any fraudulent use of the
certificate may subject person executing certificate and all parties
making fraudulent use of the certificate to all applicable criminal
penalties under the Code.
(I) Statement that person executing certificate is prepared to
establish by satisfactory evidence the purpose for which the article(s)
was used.
(J) Date, name, signature, and address of person executing the
certificate.
(iv) TTB I 5600.34. A preprinted certificate, TTB I 5600.34,
Exemption Certificate, which is available as provided in Sec. 53.21(b),
when completed, contains all necessary information for a properly
executed certificate. Extra copies of TTB I 5600.34 may be reproduced as
needed.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-380, 61
FR 37006, July 16, 1996; T.D. TTB-44, 71 FR 16957, Apr. 4, 2006]

Sec. 53.135 Tax-free sale of articles to State and local governments for

their exclusive use.

(a) In general. An article subject to tax under Chapter 32 of the
Code may be sold tax free by the manufacturer, pursuant to section
4221(a)(4) of the code and this section, to a State or local government
for the exclusive use of such State or local government. See paragraph
(b) of this section for the meaning of the term ``State or local
government''. An article may be sold tax free by the manufacturer under
this paragraph only in those cases where the sale is made directly to a
State or local government for its exclusive use. Accordingly, no sale
may be made tax free to a dealer for resale to a State or local
government for its exclusive use, even though it is known at the time of
sale by the manufacturer that the article will be so resold. A sale of
an article to a State or local government for resale is not considered
to be a sale for the ``exclusive use'' of the State or local government,
within the meaning of section 4221(a)(4) of the Code, and, therefore,
such sales may not be made tax free. Such sales are not exempt
regardless of whether the resales are made to government employees, or
the fact that the article is an item of equipment the employee is
required to possess in carrying out his duties. For example, pistols or
revolvers may not be sold tax free to a State or local government for
resale to its police officers. See section 6416(b)(2)(C) of the Code,
and paragraph (d) of Sec. 53.178, for the circumstances under which
credit or refund of tax is available where tax-paid articles are sold
for the exclusive use of a State or local government.
(b) State or local government. The term State or local government
includes any State, the District of Columbia, and any political
subdivision of any of the foregoing. See, section 7871(a)(2)(B) of the
Code and 26 CFR 305.7701-1 et seq., which provide that an Indian tribal
government shall be treated as a State for purposes of exemption from an
excise tax imposed by chapter 32. Section 7871(b) of the Code provides
that the exemption from tax applies only if the transaction involves the
exercise of an essential governmental function of the Indian tribal
government.
(c) Evidence required in support of tax-free sales to State or local
governments. (1) In the case of a State or local government which is
registered (see Sec. 53.141 for provisions under which a State or local
government may register if it so desires), the provisions of paragraph
(c) of Sec. 53.131 have application as to the evidence required in
support of tax-free sales. If a State or local government is not
registered, the evidence required in support of a tax-free sale to the
State or local government shall, except as provided in paragraph (c)(2)
of this section, consist of a certificate, executed and signed by an
officer or employee

[[Page 199]]

authorized by the State or local government to execute and sign the
certificate. If it is impracticable to furnish a separate certificate
for each order or contract because of frequency of purchases, a
certificate covering all orders between given dates (such period not to
exceed 12 calendar quarters) will be acceptable. The certificates and
proper records of invoices, orders, etc., relative to tax-free sales
must be retained by the manufacturer as provided in Sec. 53.24(d). A
certificate of exemption to support tax-free sales under this section
must contain the following:
(i) Title of official executing certificate, branch of government,
date executed, and statement that official is authorized to execute
certificate.
(ii) List articles covered by the certificate or beginning and
ending dates during which orders will be placed by the purchaser (period
not to exceed 12 calendar quarters).
(iii) Name of manufacturer from which articles purchased.
(iv) Governmental unit purchasing articles.
(v) Statement that is understood that articles purchased under this
certificate of exemption are limited to use exclusively by the
purchasing governmental entity.
(vi) Statement that is understood that any fraudulent use of this
certificate may subject the person executing the certificate and all
parties making fraudulent use of the certificate to all applicable
criminal penalties under the Code.
(vii) Name, address, and signature of person executing the
certificate.
(2) A purchase order, provided that all of the information required
by paragraph (c)(1) of this section is included therein, is acceptable
in lieu of a separate exemption certificate.
(3) TTB I 5600.35. A preprinted certificate, TTB I 5600.35,
Exemption Certificate, which is available as provided in Sec. 53.21(b),
when completed, contains all necessary information for a properly
executed certificate. Extra copies of TTB I 5600.35 may be reproduced as
needed.
(d) Resale of articles purchased tax free by a State or local
government. If articles purchased tax free for the exclusive use of a
State or local government (whether on the basis of a registration number
or an exemption certificate) are, prior to use by the State or local
government, resold under circumstances that do not amount to an
exclusive use by the State or local government (such as pistols or
revolvers that are resold by a police department to its police
officers), the parties responsible in the State or local government are
required to inform the manufacturer, producer, or importer from whom the
articles were purchased that they were disposed of in a manner that did
not amount to an exclusive use by the State or local government. A
willful failure to supply the manufacturer, producer, or importer with
the information required by this subparagraph will subject responsible
parties to the penalties provided by section 7203 of the Code.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-380, 61
FR 37006, July 16, 1996]

Sec. 53.136 Tax-free sales of articles to nonprofit educational

organizations.

(a) In general. An article subject to tax under chapter 32 of the
Code may be sold tax free by the manufacturer, pursuant to section
4221(a)(5) of the Code and this section, to a nonprofit educational
organization for its exclusive use. See paragraph (b) of this section
for the meaning of the term ``nonprofit educational organization''. An
article may be sold tax free by the manufacturer under this paragraph
only in those cases where the sale of an article by the manufacturer is
made directly to a nonprofit educational organization for its exclusive
use. Accordingly, no sale may be made tax free to a dealer for resale to
a nonprofit educational organization for its exclusive use even though
it is known at the time of sale by the manufacturer that the article
will be so resold. See section 6416(b)(2)(D) of the Code, and paragraph
(e) of Sec. 53.178, for the circumstances under which credit or refund
of tax is available where tax-paid articles are sold for the exclusive
use of a nonprofit educational organization.

[[Page 200]]

(b) Nonprofit educational organization. The term ``nonprofit
educational organization'' means an organization described in section
170(b)(1)(A)(ii) of the Code that is exempt from income tax under
section 501(a) of the Code. Section 170(b)(1)(A)(ii) describes an
``educational organization'' as one that normally maintains a regular
faculty and curriculum and normally has a regularly enrolled body of
pupils or students in attendance at the place where its educational
activities are regularly carried on. The term also includes a school
operated as an activity of an organization described in section
501(c)(3) of the Code which is exempt from income tax under section
501(a) of the Code, provided the primary function of such school is the
presentation of formal instruction and provided such school normally
maintains a regular faculty and curriculum and normally has a regularly
enrolled body of pupils or students in attendance at the place where its
educational activities are regularly carried on.
(c) Evidence required in support of tax-free sales to nonprofit
educational organizations. Every nonprofit educational organization
purchasing tax free under section 4221(a)(5) of the Code must furnish
the following information to the seller:
(1) The tax exempt purpose for which the article or articles are
being purchased, and
(2) Its registration number. Such information must be in writing and
may be noted on the purchase order or other document furnished by the
purchaser to the seller in connection with each sale ``except that a
single notification containing the information described in this
paragraph may cover all sales by the seller to the purchaser made during
a designated period not to exceed 12 successive calendar quarters.''.
See paragraph (c) of Sec. 53.131 for the evidence required to establish
exemption.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-447, 66
FR 19088, Apr. 13, 2001]

Sec. Sec. 53.137-53.139 [Reserved]

Sec. 53.140 Registration.

(a) General rule. Except as provided in Sec. 53.141, tax-free sales
under section 4221 of the Code may be made only if the manufacturer,
first purchaser, and second purchaser, as the case may be, have
registered as required by this section. To secure a Certificate of
Registry, the applicant must furnish the information required in
paragraph (b) of this section.
(b) Information to be submitted. Except as provided in Sec. 53.141,
any person who is eligible to sell or purchase articles free of a tax
imposed by section 4181 of the Code and who has not registered with the
Commissioner of the Internal Revenue Service prior to January 1, 1991 or
with TTB in accordance with the provisions of this section shall, prior
to making a tax-free sale or purchase, file TTB Form 5300.28, in
duplicate, executed in accordance with the instructions contained on the
reverse of TTB Form 5300.28. The person who receives an approved
Certificate of Registry shall be considered to be registered for
purposes of selling or purchasing articles tax free as provided in this
section. In the case of a nonprofit educational organization,
information shall be furnished showing that the organization is an
educational organization described in section 170(b)(1)(A)(ii) of the
Code that is exempt from income tax under section 501(a) of the Code, or
is a school operated as an activity of an organization described in
section 501(c)(3) that is exempt from income tax under section 501(a).
(c) Evidence required in support of tax-free sales. See Sec.
53.131(c)(1) for evidence required in support of tax-free sales to
purchasers who are required to be registered.
(d) Failure to register. If either the seller or purchaser is not
registered as required by this section of the regulations, tax-free
sales may not be made, except as indicated in Sec. 53.141.
(e) Cross references. (1) For exceptions to the requirement for
registration, see section 4222(b) of the Code and Sec. 53.141.
(2) For revocation or suspension of registration, see Sec. 53.142.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by ATF-447, 66 FR
19088, Apr. 13, 2001]

[[Page 201]]

Sec. 53.141 Exceptions to the requirement for registration.

(a) State and local governments. (1) A State or local government
purchasing articles direct from the manufacturer for its exclusive use
may, but is not required to, register as provided in Sec. 53.140. To
establish the right to sell articles tax free to a State or local
government that is not registered, the manufacturer must obtain from an
authorized official of the State or local government and retain in the
manufacturer's possession either a properly executed exemption
certificate, or a purchase order that contains the same information
required to be furnished in an exemption certificate. See Sec.
53.135(c) for the information necessary to substantiate a tax-free sale
under such circumstances.
(2) Each State requesting registration will be assigned one
Certificate of Registry. The registration number shown on this
certificate may be used by all agencies, boards, and commissions of the
State that are authorized by the State to make purchases for the
exclusive use of the State. However, the registration number assigned to
a State may not be used by any political subdivision of that State, such
as a county or municipality. Each political subdivision of a State
desiring to obtain a Certificate of Registry must obtain a separate
registration number.
(b) Sales or resales to foreign purchasers for export. Persons whose
principal place of business is not within the United States may, but are
not required to, register in order to purchase articles tax free for
export. To establish the right to sell articles tax free for export to a
purchaser who is not registered and who is located in a foreign country
or a possession of the United States, the manufacturer must obtain the
evidence required by Sec. 53.133(b).
(c) United States. The registration requirements of the regulations
in this part do not apply to purchases and sales by the United States or
any of its agencies or instrumentalities. The evidence required in
support of such tax-free purchases and sales is a notation on the
purchase order or other document furnished to the seller clearly
indicating that the article or articles are being purchased tax free as
authorized by chapter 32 of the Code.
(d) Supplies for vessels and aircraft. An article subject to an
excise tax imposed by chapter 32 of the Code may be sold tax free by the
manufacturer under the provisions of Sec. 53.134 for use by the
purchaser as supplies for a vessel or aircraft if both the manufacturer
and the purchaser are registered under the provisions of Sec. 53.140.
The article also may be sold tax free for such use even though neither
the manufacturer nor the purchaser is so registered if the provisions of
paragraph (d) of Sec. 53.134 are satisfied.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.142 Denial, revocation or suspension of registration.

(a) The appropriate TTB officer is authorized to deny, revoke or
temporarily suspend, upon written notice, the registration of any person
and the right of such person to sell or purchase articles tax free under
section 4221 of the Code in any case in which he finds that:
(1) The registrant is not a bona fide manufacturer, or a purchaser
reselling direct to manufacturers or exporters;
(2) The registrant is for some other reason not eligible under these
regulations to retain a Certificate of Registry; or
(3) The registrant has used his registration to avoid payment of the
tax imposed by section 4181 of the Code, or to postpone or interfere in
any manner with the collection of such tax;
(4) Such denial, revocation, or suspension is necessary to protect
the revenue; or
(5) The registrant failed to comply with the requirements of
paragraph (c) of Sec. 53.140, relating to the evidence required to
support a tax-free sale.
(b) The denial, revocation, or suspension of registration is in
addition to any other penalty that may apply under the law for any act
or failure to act.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-365, 60
FR 33671, June 28, 1995]

[[Page 202]]

Sec. 53.143 Special rules relating to further manufacture.

(a) Purchasing manufacturer to be treated as the manufacturer. For
purposes of Chapter 32 of the Code, a manufacturer or producer to whom
an article is sold or resold tax free under section 4221(a)(1) of the
Code for use by it in further manufacture shall be treated as the
manufacturer or producer of such article. If a manufacturer who
purchases an article tax free for further manufacture does not use the
article for further manufacture, the sale of the article by it, or its
use of the article other than in further manufacture, shall, for
purposes of the taxes imposed by chapter 32 of the Code, be treated as a
sale or use of the article by the manufacturer thereof. See paragraphs
(b) and (c) of this section for determination of taxable sale price
where an article purchased tax free for further manufacture is resold,
or used other than in further manufacture.
(b) Computation of tax. Except as provided in paragraph (c) of this
section, the tax liability referred to in paragraph (a) of this section
shall be based on the price for which the article was sold by the
purchasing manufacturer, or, where the manufacturer uses the article for
a purpose other than that for which it was purchased, the tax shall be
based on the price at which such or similar articles are sold, in the
ordinary course of trade, by manufacturers, producers, or importers
thereof. See section 4218(e) of the Code and Sec. 53.115.
(c) Election. (1) Instead of computing the tax as described under
paragraph (b) of this section, the purchasing manufacturer who has
incurred liability for tax on its sale or use of an article as provided
by paragraph (a) of this section may compute the tax incurred under
chapter 32 of the Code by using as the tax base either the price for
which the article was sold to it by the first purchaser, if any, or the
price for which such article was sold by the actual manufacturer,
producer, or importer of such article. The purchasing manufacturer must
have in its possession information upon which to substantiate such basis
for tax. For purposes of this paragraph, the price for which the article
was sold by the actual manufacturer or by the first purchaser shall be
determined as provided in section 4216 of the Code and Sec. Sec. 53.91-
53.102. However, such price shall not be adjusted for any discount,
rebate, allowance, return, or repossession of a container or covering,
or otherwise.
(2) The election under this paragraph shall be in the form of a
statement attached to the return reporting the tax applicable to the
sale or use of the article which gave rise to such tax liability. Such
election, once made, may not be revoked.

Subpart L_Refunds and Other Administrative Provisions of Special
Application to Manufacturers Taxes

Sec. 53.151 Returns.

(a) In general. (1) Liability for tax imposed under chapter 32 of
the Code shall be reported on TTB Form 5300.26, Federal Firearms and
Ammunition Excise Tax Return. Except as provided in paragraphs (a)(2)
and (b) of this section, a return on Form 5300.26 shall be filed for a
period of one calendar quarter.
(2) Return periods after September 30, 1992. For return periods
after September 30, 1992, every person required to make a return on TTB
Form 5300.26 who does not incur any firearms and ammunition excise tax
liability in a given calandar quarter shall not be required to file a
return on TTB Form 5300.26 for that calandar quarter. Except as provided
in paragraph (a)(5) of this section, every person required to make a
return on TTB Form 5300.26 who does not incur any firearms and
ammunition excise tax liability for the entire calendar year and who has
not filed a final return in accordance with Sec. 53.152 shall file an
annual return on TTB Form 5300.26.
(3) Return periods prior to October 1, 1992. For return periods
prior to October 1, 1992, every person required to make a return on TTB
Form 5300.26 shall make a return for each calendar quarter (whether or
not liability was incurred for any tax reportable on the return for the
return period) until the person has filed a final return in accordance
with Sec. 53.152.

[[Page 203]]

(4) Forms, etc. Each return required under the regulations in this
part, together with any prescribed copies, records, or supporting data,
shall be completed in accordance with the applicable forms,
instructions, and regulations.
(5) Special rule for one-time or occasional filings for return
periods on or after July 1, 1995. One-time or occasional filers are not
required to file quarterly or annual returns pursuant to paragraph
(a)(2) of this section if the person reporting tax does not engage in
any activity with respect to which tax is reportable on the return in
the course of a trade or business. Such persons shall file and pay tax
for periods only when liability is incurred. See Sec. 53.159(b)(2),
providing that a deposit of taxes is not required for a one-time or
occasional filing.
(b) Monthly and semimonthly returns--(1) Requirement. If the
appropriate TTB officer determines that any taxpayer who is required to
deposit taxes under the provision of Sec. Sec. 53.157 or 53.159 has
failed to make deposits of those taxes, the taxpayer shall be required,
if so notified in writing by the appropriate TTB officer, to file a
monthly or semimonthly return on TTB Form 5300.26. Every person so
notified by the appropriate TTB officer shall file a return for the
calendar month or semimonthly period in which the notice is received and
for each calendar month or semimonthly period thereafter until the
person has filed a final return in accordance with Sec. 53.152 or is
required to file returns on the basis of a different return period
pursuant to notification as provided in paragraph (b)(2) of this
section.
(2) Change of requirement. The appropriate TTB officer may require
the taxpayer, by notice in writing, to file a quarterly or monthly
return, if the taxpayer has been filing returns for a semimonthly
period, or may require the taxpayer to file a quarterly or semimonthly
return, if the taxpayer has been filing monthly returns.
(3) Return for period change takes effect. (i) If a taxpayer who has
been filing quarterly returns receives notice to file a monthly or
semimonthly return, or a taxpayer who has been filing monthly returns
receives notice to file a semimonthly return, the first return required
pursuant to the notice shall be filed for the month or semimonthly
period in which the notice is received and all months or semimonthly
periods which are not includable in an earlier period for which the
taxpayer is required to file a return.
(ii) If a taxpayer who has been filing monthly or semimonthly
returns receives notice to file a quarterly return, the last month or
semimonthly period for which a return shall be filed is the last month
or semimonthly period of the calendar quarter in which the notice is
received.
(iii) If a taxpayer who has been filing semimonthly returns receives
notice to file a monthly return, the last semimonthly period for which a
return shall be made is the last semimonthly period of the month in
which the notice is received.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-330, 57
FR 40325, Sept. 3, 1992; T.D. ATF-365, 60 FR 33671, June 28, 1995]

Sec. 53.152 Final returns.

(a) In general. Any person who is required to make a return on TTB
Form 5300.26 pursuant to Sec. 53.151 and who in any return period
ceases operations in respect of which the person is required to make a
return on the form, shall make the return for that return period as a
final return. A return made as a final return shall be marked ``Final
Return'' by the person filing the return. A taxpayer who has only
temporarily ceased to incur liability for tax required to be reported on
TTB Form 5300.26 because of temporary or seasonal suspension of business
or for other reasons, shall not make a final return until such
operations are permanently ceased.
(b) Statement to accompany final return. Each final return shall
have attached a statement showing the address at which the records
required by the regulations in this part will be kept, the name of the
person keeping the records, and, if the business of the taxpayer has
been sold or otherwise transferred to another person, the name and
address of that person and the date on which the sale or transfer

[[Page 204]]

took place. If no sale or transfer occurred or if the taxpayer does not
know the name of the person to whom the business was sold or
transferred, that fact should be included in the statement.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-330, 57
FR 40325, Sept. 3, 1992. Redesignated in part by T.D. ATF-365, 60 FR
33670, June 28, 1995]

Sec. 53.153 Time for filing returns.

(a) Quarterly returns. Each return required to be made under Sec.
53.151(a) for a return period of one calendar quarter shall be filed on
or before the last day of the first calendar month following the close
of the period for which it is made. However, a return may be filed on or
before the 10th day of the second calendar month following the close of
the period if timely deposits under section 6302(c) of the Code and
Sec. 53.157 have been made in full payment of the taxes due for the
period. For purposes of the preceding sentence, a deposit which is not
required by regulations in respect of the return period may be made on
or before the last day of the first calendar month following the close
of the period.
(b) Monthly, semimonthly and annual returns--(1) Monthly returns.
Each return required to be made under Sec. 53.151(b) for a monthly
period shall be filed not later than the 15th day of the month following
the close of the period for which it is made.
(2) Semimonthly returns. Each return required to be made under Sec.
53.151(b) for a semimonthly period shall be filed not later than the
10th day of the semimonthly period following the close of the period for
which it is made.
(3) Annual returns. Each return filed under the provisions of Sec.
53.151(a) for a return period of one calendar year shall be filed not
later than the 31st day following the close of the calendar year.
(c) Last day for filing. If the due date falls on a Saturday,
Sunday, or legal holiday, the return and remittance shall be due on the
next succeeding day which is not a Saturday, Sunday, or legal holiday.
For purposes of this section, ``legal holiday'' is defined by section
7503 of the Code and 26 CFR 301.7503(b).
(d) Late filing. The taxpayer is subject to a penalty for failure to
file a return or to pay tax within the prescribed time as imposed by
section 6651 of the Code, if the return and remittance are not filed
before the close of business on the prescribed last day of filing. For
additions to the tax in the case of failure to file a return within the
prescribed time, see 27 CFR 70.96.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-330, 57
FR 40325, Sept. 3, 1992]

Sec. 53.154 Manner of filing returns.

(a) Each return on TTB Form 5300.26 shall be filed with TTB, in
accordance with the instructions on the form.
(b) When the taxpayer sends the return on TTB Form 5300.26 by U.S.
Mail, the official postmark of the U.S. Postal Service stamped on the
cover in which the return was mailed shall be considered the date of
delivery of the return. When the postmark on the cover is illegible, the
burden of proving when the postmark was made will be on the taxpayer.
When the taxpayer sends the return with or without remittance by
registered mail or by certified mail, the date of registry or the date
of the postmark on the sender's receipt of certified mail, as the case
may be, shall be treated as the date of delivery of the return and, if
accompanied, of the remittance.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-330, 57
FR 40325, Sept. 3, 1992]

Sec. 53.155 Extension of time for filing returns.

(a) In general. Ordinarily, no extension of time will be granted for
filing any return statement or other document required with respect to
the taxes impose by chapter 32, because the information required for the
filing of those documents is under normal circumstances readily
available. However, if because of temporary conditions beyond the
taxpayer's control, a taxpayer believes an extension of time for filing
is justified, the taxpayer may apply to the appropriate TTB officer for
an extension. An extension of time for filing a return does not operate
to extend the time for payment of the tax or any part of the tax unless
so specified in

[[Page 205]]

the extension. For extensions of time for payment of the tax, see Sec.
53.156.
(b) Application for extension of time. The application for an
extension of time for filing the return shall be addressed to the
appropriate TTB officer with whom the return is to be filed and must
contain a full recital of the causes for the delay. It should be made on
or before the due date of the return, and failure to do so many indicate
negligence and constitute sufficient cause for denial. It should, where
possible, be made sufficiently early to permit consideration of the
matter and reply before what otherwise would be the due date of the
return.
(c) Filing the return. If an extension of time for filing the return
is granted, a return shall be filed before the expiration of the period
of extension.

Sec. 53.156 Extension of time for paying tax shown on return.

(a) In general. (1) Ordinarily, no extensions of time will be
granted for payment of any tax imposed by Chapter 32 of the Code, and
shown or required to be shown on any return. However, if because of
temporary conditions beyond the taxpayer's control a taxpayer believes
an extension of time for payment is justified, the taxpayer may apply
for an extension filing TTB Form 5600.38. The period of an extension
shall not be in excess of 6 months from the date fixed for payment of
the tax, except that if the taxpayer is abroad the period of the
extension may be in excess of 6 months.
(2) The granting of an extension of time for filing a return does
not operate to extend the time for the payment of the tax or any part of
the tax unless so specified in the extension. See Sec. 53.155.
(b) Undue hardship required for extension. An extension of the time
for payment shall be granted only upon a satisfactory showing that
payment on the due date of the amount with respect to which the
extension is desired will result in an undue hardship. The extension
will not be granted upon a general statement of hardship. The term
``undue hardship'' means more than an inconvenience to the taxpayer. It
must appear that substantial financial loss, for example, loss due to
the sale of property at a sacrifice price, will result to the taxpayer
from making payment on the due date of the amount with respect to which
the extension is desired. If a market exists, the sale of property at
the current market price is not ordinarily considered as resulting in an
undue hardship.
(c) Application for extension. An application for an extension of
time for payment of the tax shown or required to be shown on any return
shall be made on TTB Form 5600.38, Application for Extension of Time for
Payment of Tax, and shall be accompanied by evidence showing the undue
hardship that would result to the taxpayer if the extension were
refused. The application shall also be accompanied by a statement of the
assets and liabilities of the taxpayer and an itemized statement showing
all receipts and disbursements for each of the 3 months immediately
preceding the due date of the amount to which the application relates.
The application, with supporting documents, must be filed on or before
the date prescribed for payment of the amount with respect to which the
extension is desired. The application will be examined, and within 30
days, if possible, will be denied, granted, or tentatively granted
subject to certain conditions of which the taxpayer will be notified. If
an additional extension is desired, the request for it must be made on
or before the expiration of the period for which the prior extension is
granted.
(d) Payment pursuant to extension. If an extension of time for
payment is granted, the payment shall be made on or before the
expiration of the period of the extension without the necessity of
notice and demand. The granting of an extension of time for payment of
the tax does not relieve the taxpayer from liability for the payment of
interest on the tax during the period of the extension. See section 6601
of the Code and 26 CFR 301.6601-1.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991; T.D. ATF-447, 66 FR 19088, Apr. 13, 2001]

[[Page 206]]

Sec. 53.157 Deposit requirement for deposits made for calendar quarters

prior to July 1, 1995.

Note: For deposit requirement for deposits made for calendar
quarters beginning on or after July 1, 1995, see Sec. 53.159.
(a) Monthly deposits. Except as provided in paragraph (b) of this
section, if for any calendar month (other than the last month of a
calendar quarter) any person required to file a quarterly excise tax
return on TTB Form 5300.26 has a total liability under this part of more
than $100 for all excise taxes reportable on that form, the amount of
liability for taxes shall be deposited by the person in accordance with
the instructions on TTB Form 5300.27 on or before the last day of the
month following the calendar month.
(b) Semimonthly deposits. (1) If any person required to file an
excise tax return on TTB Form 5300.26 for any calendar quarter has a
total liability under this part of more than $2,000 for all excise taxes
reportable on that form for any calendar month in the preceding calendar
quarter, the amount of that liability for taxes under this part for any
semimonthly period (as defined in paragraph (d)(1) of this section) in
the succeeding calendar quarter shall be deposited by the person in
accordance with the instructions on TTB Form 5300.27 on or before the
depositary date (as defined in paragraph (d)(2) of this section)
applicable to the semimonthly period.
(2) A person will be considered to have complied with the
requirements of paragraph (b)(1) of this section for a semimonthly
period if--
(i)(A) The person's deposit for the semimonthly period is not less
than 90 percent of the total amount of the excise taxes reportable by
the person on TTB Form 5300.26 for the period, and
(B) If the semimonthly period occurs in a calendar month other than
the last month in a calendar quarter, the person deposits any
underpayment for the month by the 9th day of the second month following
the calendar month; or
(ii)(A) The person's deposit for each semimonthly period in the
calendar month is not less than 45 percent of the total amount of the
excise taxes reportable by the person on TTB Form 5300.26 for the month,
and
(B) If such month is other than the last month in a calendar
quarter, the person deposits any underpayment for such month by the 9th
day of the second month following the calendar month; or
(iii)(A) The person's deposit for each semimonthly period in the
calendar month is not less than 50 percent of the total amount of the
excise taxes reportable by the person on TTB Form 5300.26 for the second
preceding calendar month, and
(B) If such month is other than the last month in a calendar
quarter, the person deposits any underpayment for such month by the 9th
day of the second month following the calendar month; or
(iv)(A) The requirements of paragraph (b)(2) (i)(A), (ii)(A), or
(iii)(A) of this section are satisfied for the first semimonthly period
of a calendar month after December 1990,
(B) If the person's deposit for the second semimonthly period of the
calendar month is, when added to the deposit for the first semimonthly
period, not less than 90 percent of the total amount of the excise taxes
reportable by the person on TTB Form 5300.26 for the calendar month, and
(C) If the semimonthly periods occur in a calendar month other than
the last month in a calendar quarter, the person deposits any
underpayment for the month by the 9th day of the second month following
the calendar month.
(3)(i) Paragraph (b)(2) (ii) and (iii) of this section shall not
apply to any person who normally incurs in the first semimonthly period
in each calendar month more than 75 percent of the person's total excise
tax liability under this part for the month.
(ii) Persons who make their deposits in accordance with paragraph
(b)(2) (ii), (iii), or (iv) of this section will find it unnecessary to
keep their books and records on a semimonthly basis.
(c) Deposit of certain excess undeposited amounts. Notwithstanding
paragraphs (a) and (b) of this section, if any person required to file
an excise tax return on TTB Form 5300.26 for any calendar quarter
beginning after December 31, 1990, has a total liability under this

[[Page 207]]

part for all excise taxes reportable on the form for the calendar
quarter which exceeds by more than $100 the total amount of taxes
deposited by the person pursuant to paragraph (a) or (b) of this section
for the calendar quarter, the person shall, on or before the last day of
the calendar month following the calendar quarter for which the return
is required to be filed, deposit in accordance with the instructions on
TTB Form 5300.27 the full amount by which the person's liability for all
excise taxes reportable on the return for that calendar quarter exceeds
the amount of excise taxes previously deposited by the person for that
calendar quarter.
(d) Definitions--(1) Semimonthly period. The term semimonthly period
means the first 15 days of a calendar month or the portion of a calendar
month following the 15th day of that month.
(2) Depositary date. The term depositary date means, in the case of
deposits for semimonthly periods beginning after December 31, 1990, the
9th day of the semimonthly period following the semimonthly period for
which the taxes are reportable.
(3) Lockbox financial institution. The term lockbox financial
institution means the financial institution designated as a depository
for the payment of excise taxes on TTB Form 5300.27, Federal Firearms
and Ammunition Excise Tax Deposit form.
(e) Depositary forms and procedures--(1) In general. Each remittance
of amounts required to be deposited for periods beginning after December
31, 1990 shall be accompanied by an TTB Form 5300.27, Federal Firearms
and Ammunition Excise Tax Deposit form, or TTB Form 5300.26, Federal
Firearms and Ammunition Excise Tax Return, which shall be prepared in
accordance with the applicable instructions. Taxpayers electing to remit
deposits by EFT pursuant to Sec. 53.158 shall prepare and submit TTB
Form 5300.26 or TTB Form 5300.27 in accordance with the instructions on
the form. The timeliness of the deposit will be determined by the date
it is received (or is deemed received under section 7502(e) and 26 CFR
301.7502-1) by the lockbox financial institution, or the TTB officer
designated on TTB Form 5300.27 or TTB Form 5300.26 accompanying the
deposit, or when made by electronic fund transfer, the Treasury Account.
Amounts deposited pursuant to this paragraph shall be considered to be
paid on the last day prescribed for filing the return in respect of the
tax (determined without regard to any extension of time for filing the
returns), or at the time deposited, whichever is later.
(2) Number of remittances. A person required by this section to make
deposits may make one or more remittances with respect to the amount
required to be deposited. An amount of tax which is not otherwise
required by this section to be deposited may, nevertheless, be deposited
if the person liable for the tax so desires.
(3) Information required. Each person making deposits pursuant to
this section shall report on the return for the period with respect to
which the deposits are made information regarding the deposits in
accordance with the instructions applicable to the return and pay (or
deposits by the due date of the return) the balance, if any, of the
taxes due for the period.
(4) Procurement of prescribed forms. Copies of the Federal Firearms
and Ammunition Excise Tax Deposit form will be furnished, so far as
possible, to persons required to make deposits under this section. Such
a person will not be excused from making a deposit, however, by the fact
that no form has been furnished. A person not supplied with the form is
required to apply for it in ample time to make the required deposits
within the time prescribed, supplying with the application the person's
name, employer identification number, address, and the taxable period to
which the deposits will relate. Copies of the Federal Firearms and
Ammunition Excise Tax Deposit form are available as provided in Sec.
53.21(b).
(f) Nonapplication to certain taxes. This section does not apply to
taxes for:
(1) Any month or semimonthly period in which the taxpayer receives
notice pursuant to Sec. 53.151(b) to file TTB Form 5300.26 or

[[Page 208]]

(2) Any subsequent month or semimonthly period for which a return on
TTB Form 5300.26 is required.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991; T.D. ATF-330, 57 FR 40325, Sept. 3, 1992; T.D.
ATF-365, 60 FR 33671, June 28, 1995; T.D. ATF-447, 66 FR 19088, Apr. 13,
2001; T.D. TTB-44, 71 FR 16958, Apr. 4, 2006]

Sec. 53.158 Payment of tax by electronic fund transfer.

(a) In general. For return periods after September 30, 1992, any
taxpayer liable for firearms and ammunition excise taxes incurred under
this part may elect to remit payments and deposits of the taxes
(taxpayments) by electronic fund transfer (EFT). A taxpayer who elects
to make remittance by EFT must use that method of remitting excise taxes
on firearms and ammunition for a minimum of four consecutive calendar
quarters. A taxpayer who makes remittance by EFT for a calendar quarter
may not use any other method of remitting and ammunition excise taxes
for that quarter.
(b) Requirements. (1) On or before the 10th day of the calendar
quarter preceding the calendar quarter in which the taxpayer will begin
remitting taxes by EFT, each taxpayer who elects to make remittances by
EFT of firearms and ammunition excise taxes incurred under this part
shall give written notice to the appropriate TTB officer, indicating
that remittances will be paid by EFT. Taxpayers who gave written
notification in a previous calendar quarter electing to make remittances
of tax by EFT are not required to give additional written notifications
to continue remitting tax by EFT for succeeding calendar quarters.
(2) For each deposit made or return filed in accordance with this
subpart, the taxpayer shall direct the taxpayer's financial institution
to make an EFT in the amount of the taxpayment to the Treasury Account
as provided in paragraph (e) of this section. The request will be made
to the financial institution early enough for the transfer of funds to
be made to the Treasury Account no later than the close of business on
the last day for making the deposit or filing the return as prescribed
in Sec. Sec. 53.157 or 53.159, and 53.153. The request will take into
account any time limit established by the financial institution.
(3) Taxpayers who elect to discontinue making remittances by EFT of
firearms and ammunition excise taxes may make such election at any time
following four consecutive calendar quarters in which tax is remitted by
EFT. Taxpayers electing to discontinue making remittances by EFT shall
remit the tax with the next deposit or return as prescribed in
Sec. Sec. 53.157 or 53.159, and 53.151 for remittances not made by EFT
and notify the appropriate TTB officer by attaching a written
notification to the tax deposit form or return stating that remittance
of firearms and ammunition excise taxes will no longer be made by EFT.
(c) Remittance. (1) Taxpayers who elect to make firearms and
ammunition excise taxpayments by EFT shall file the deposit form and/or
return with TTB in accordance with the applicable instructions on the
forms.
(2) Remittances will be considered as made when the taxpayment by
EFT is received by the Treasury Account when it is paid to a Federal
Reserve Bank.
(3) When the taxpayer directs the financial institution to effect an
electronic fund transfer message as required by paragraph (b)(2) of this
section, the transfer data record furnished to the taxpayer through
normal banking procedures will serve as the record of payment and will
be retained as part of the required records.
(d) Failure to make a taxpayment by EFT. The taxpayer is subject to
penalties imposed by 26 U.S.C. 6651 and 6656, as applicable, for failure
to make a payment or deposit of tax by EFT on or before the close of
business on the prescribed last day for making such payment or deposit.
(e) Procedure. Upon the notification required under paragraph (b)(1)
of this section, the appropriate TTB officer will issue to the taxpayer
an TTB Procedure entitled Payment of Tax by Electronic Fund Transfer.
This publication outlines the procedure a taxpayer follows when
preparing deposits,

[[Page 209]]

returns and EFT remittances in accordance with this subpart.

[T.D. ATF-330, 57 FR 40326, Sept. 3, 1992, as amended by T.D. ATF-365,
60 FR 33671, June 28, 1995; T.D. ATF-447, 66 FR 19088, Apr. 13, 2001]

Sec. 53.159 Deposit requirement for deposits made for calendar quarters

beginning on or after July 1, 1995.

(a) Definitions--(1) Definition of tax liability. For purposes of
this section, the term ``tax liability'' means the total tax liability
for the specified period plus or minus any allowable adjustments made in
accordance with the instructions applicable to the form on which the
return is made.
(2) Semimonthly period. Except as provided in paragraph (c)(4)(ii)
of this section, the term ``semimonthly period'' means the first 15 days
of a calendar month or the remaining portion of a calendar month
following the 15th day of that month.
(b) In general--(1) Semimonthly deposits. Except as provided in
paragraphs (b)(2), (c)(2), and (j) of this section, any person required
to file a quarterly excise tax return on TTB Form 5300.26 must make a
deposit of tax for each semimonthly period as prescribed in paragraph
(c) of this section.
(2) One-time or occasional filings. No deposit is required in the
case of any taxes reportable on a one-time or occasional filing (as
defined in Sec. 53.151(a)(5)).
(c) Amount of deposit--(1) In general. Except as provided in
paragraphs (c)(2), (c)(3) and (c)(6) of this section, the deposit of tax
for each semimonthly period must be equal to the amount of tax liability
incurred during that semimonthly period. Except as provided in paragraph
(c)(3) of this section, no deposit is required for any semimonthly
period in which no tax liability is incurred.
(2) De minimis exception. Except as provided in paragraph (c)(3) of
this section, any person who has a tax liability for the current
calendar quarter of $2,000 or less is not required to make deposits for
that quarter. However, semimonthly deposits of tax are required
beginning with the semimonthly period in which unpaid tax liability
exceeds $2,000 and for every semimonthly period thereafter in which tax
liability is incurred. The first deposit for the current quarter shall
be equal to the unpaid tax liability; thereafter, deposits shall be
equal to the amount of tax liability incurred during that semimonthly
period.
(3) Amount of deposit; safe harbor rule based on look-back quarter
liability; In general. Except as provided in paragraph (c)(6) of this
section, any person who made a return of tax on TTB Form 5300.26
reporting taxes for the second preceding calendar quarter (the ``look-
back quarter''), or who did not file a return for the look-back quarter
because of the provisions of Sec. 53.151(a)(2), is considered to have
complied with the requirement for deposit of taxes for the current
calendar quarter if--
(i) The deposit of taxes for each semimonthly period in the current
calendar quarter is an amount equal to not less than 1/6 (16.67 percent)
of the total tax liability incurred for the look-back quarter;
(ii) Each deposit is made on time; and
(iii) The amount of any underpayment of taxes for the current
calendar quarter is paid by the due date of the return.
(4) Modification for third calendar quarter. The safe harbor rule in
paragraph (c)(3) of this section does not apply for the third calendar
quarter unless--
(i) The deposit of taxes for the semimonthly period July 1-September
15 meets the requirements of paragraph (c)(3) of this section; and
(ii) Each deposit of taxes for the periods September 16-25 and
September 26-30 is not less than 1/12th (8.34 percent) of the total tax
liability incurred for the look-back quarter.
(5) Modification for tax rate increase--(i) Application. The safe
harbor rule as prescribed in paragraph (c)(3) is modified for the first
and second calendar quarters beginning on or after the effective date of
an increase in the rate of any tax prescribed by 26 U.S.C. 4181 to which
this part 53 applies.
(ii) Modification. The amount of deposit for calendar quarters
referred to in paragraph (c)(3) of this section must be adjusted so that
the deposit of taxes for each semimonthly period in the calendar quarter
is not less than 1/6 (16.67 percent) of the tax liability the person

[[Page 210]]

would have had with respect to the tax for the look-back quarter if the
increased rate of tax had been in effect for that look-back quarter.
(6) First time filers. Any person who did not file a return of tax
on TTB Form 5300.26 for the first and second preceding calendar quarters
because they were not engaged in any activity with respect to which tax
is reportable on the return in the course of a trade or business, is
considered to have complied with the requirement for deposit of taxes
for the current calendar quarter if--
(i) The deposit of taxes for each semimonthly period in the calendar
quarter is not less than 95 percent of the tax liability incurred with
respect to those taxes during the semimonthly period;
(ii) Each deposit is made on time; and
(iii) The amount of any underpayment of taxes for the current
calendar quarter is paid by the due date of the return.
(d) Failure to comply with deposit requirements. (1) If a person
fails to make deposits as required under this part, the appropriate TTB
officer may withdraw the person's right to use the safe harbor rule
provided by paragraph (c)(3) of this section.
(2) Cross reference. The appropriate TTB officer may also require a
taxpayer who fails to make deposits of tax to file a monthly or
semimonthly return, see Sec. 53.151(b)(1).
(e) Time for making deposit. Except for deposits for the period
September 16-25, each deposit required to be made by this section shall
be made not later than the 9th day of the semimonthly period following
the close of the period for which it is made. The deposit for the period
September 16-25 shall be made not later than September 28. The deposit
for the period September 26-30, is due not later than October 9.
(f) Last day for filing. (1) Except as provided by paragraph (f)(2)
of this section, if the due date of the deposit falls on a Saturday,
Sunday, or legal holiday, the deposit and remittance shall be due on the
next succeeding day which is not a Saturday, Sunday, or legal holiday.
For purposes of this section, ``legal holiday'' is defined by section
7503 of the Code and 27 CFR 70.306(b) of this chapter.
(2) If the required due date of the deposit for the period September
16-25 falls on a Saturday, the deposit and remittance shall be due on
the preceding day. If such required due date falls on a Sunday, the
return and remittance shall be due on the following day.
(g) Forms and procedures. Each remittance of amounts required to be
deposited shall be accompanied by Form 5300.27, Federal Firearms and
Ammunition Excise Tax Deposit form, or Form 5300.26, Federal Firearms
and Ammunition Excise Tax Return, which shall be prepared in accordance
with the applicable instructions. Taxpayers electing to remit deposits
by EFT pursuant to Sec. 53.158 shall prepare and submit Form 5300.26 or
Form 5300.27 in accordance with the instructions contained in Procedure
92-1, Publication 5000.11. The timeliness of the deposit will be
determined by the date it is received by the lockbox financial
institution, or the TTB officer designated on the form accompanying the
deposit, or the Treasury Account, when made by EFT. In order for
deposits of less than $20,000 made by U.S. Mail to be considered
received timely, the date of mailing must be on or before the second day
preceding the due date of the deposit as evidenced by the official
postmark of the U.S. Postal Service stamped on the cover in which the
deposit was mailed. When the postmark on the cover is illegible, the
burden of proving when the postmark was made will be on the taxpayer.
When the taxpayer sends the deposit by registered mail or by certified
mail, the date of registry or the date of the postmark on the sender's
receipt of certified mail, as the case may be, shall be treated as the
date of delivery of the deposit. Any deposit of $20,000 or more must be
received by the last day prescribed for making such deposit, regardless
of when mailed. Amounts deposited pursuant to this paragraph shall be
considered to be paid on the last day prescribed for filing the return
in respect of the tax (determined without regard to any extension of
time for filing the returns), or at the time deposited, whichever is
later.
(h) Number of remittances. A person required by this section to make
deposits shall make one deposit for a semimonthly period.

[[Page 211]]

(i) Procurement of prescribed forms. Copies of the Federal Firearms
and Ammunition Excise Tax Deposit form will be furnished, so far as
possible, to persons required to make deposits under this section. Such
a person will not be excused from making a deposit however, by the fact
that no form has been furnished. A person not supplied with the form is
required to obtain the form in ample time to make the required deposits
within the time prescribed. Copies of the Federal Firearms and
Ammunition Excise Tax Deposit form are available as provided in Sec.
53.21(b).
(j) Taxpayers required to file monthly or semimonthly returns. This
section does not apply to taxes for:
(1) Any month or semimonthly period in which the taxpayer receives
notice pursuant to section 53.151(b) to file TTB Form 5300.26; or
(2) Any subsequent month or semimonthly period for which a return on
TTB Form 5300.26 is required.
(3) Taxpayers required to file monthly returns shall make
semimonthly deposits of 100 percent of the liability incurred during
each semimonthly period by the 9th day of the month following the last
day of the semimonthly period. Taxpayers required to file semimonthly
returns shall pay any tax due for the semimonthly period with each
return.
(k) Examples.

Example 1. One-time filing or occasional filing--(1) Facts. On
October 18, 1995, A, an individual who lives in the United States
purchases a custom made rifle outside the United States and imports it
into the United States. A uses the rifle on October 20, 1995. A is
liable for the firearms excise tax imposed by sections 4181 and 4218(a).
Since A does not regularly sell rifles in arm's length transactions, a
constructive sale price of $20,000 is determined (Sec. 53.115(b)). The
amount of A's tax liability is $2200, 11 percent of the constructive
sale price of the rifle. The liability is incurred during the fourth
calendar quarter of 1995, the quarter during which the rifle is used
(Sec. 53.111(d)). A did not import the rifle in the course of its trade
or business and does not engage in any activities with respect to which
tax is reportable on TTB Form 5300.26 in the course of a trade or
business.
(2) Filing requirement. A must file a return on Form 5300.26 (Sec.
53.151(a)) for the fourth calendar quarter of 1995 reporting A's $2200
firearms excise tax liability. The Form 5300.26 is due by January 31,
1996, the last day of the first month following the calendar quarter
(Sec. 53.153(a)). Because A did not import the firearm in the course of
its trade or business and does not engage in any activities with respect
to which tax is reportable in the course of a trade or business, the
return is a one-time filing or occasional filing.
(3) Payment requirement. Because A's Form 5300.26 is a one-time
filing, A is not required to make deposits of tax (Sec. 53.159(b)(2)).
Instead, A pays the $2200 of tax with the return.
Example 2. Deposit requirement; based on look-back quarter
liability--(1) Facts. B is a manufacturer of firearms. B sells 75
pistols which have a taxable sale price of $500 each during the second
calendar quarter of 1996. B sold 50 of the pistols in the first
semimonthly period of May, 1996, and the other 25 pistols in the second
semimonthly period of April, 1996. B did not incur tax liability in any
other semimonthly period in the second quarter. The amount of B's tax
liability for the second calendar quarter is $3,750, 10 percent of the
taxable sale price of the pistols. B filed Form 5300.26 for the second
preceding calendar quarter, the look-back quarter, on January 31, 1996
reporting tax liability in the amount of $2,700.
(2) Deposit requirement. B is required to make deposits of tax for
each semimonthly period in the calendar quarter because B has incurred
more than $2,000 in liability for the current quarter. B may use the
safe harbor rule based on look-back quarter liability to determine the
amount of the required deposits (Sec. 53.159(c)(3)). Under this safe
harbor rule, B's deposit for each semimonthly period must equal at least
$450.00, 1/6 (16.67 percent) of the tax liability incurred for the look-
back quarter. B's deposit must be timely and B must pay the amount of
any underpayment by the due date of the return. Accordingly, B meets the
deposit requirement if B makes the following deposits:

------------------------------------------------------------------------
Amount of
Semimonthly period Deposit due by deposit
------------------------------------------------------------------------
April 1-15.......................... April 24, 1996......... $450.00
April 16-31......................... May 9, 1996............ 450.00
May 1-15............................ May 24, 1996........... 450.00
May 16-30........................... June 10, 1996.......... 450.00
June 1-15........................... June 24, 1996.......... 450.00
June 16-30.......................... July 9, 1996........... 450.00
------------------------------------------------------------------------

The deposit due on June 10, 1996, would ordinarily be due on June 9,
1996. However, because June 9, 1996 is a Sunday, under section 7503, B
has an additional day to make the required deposit.
(3) Filing requirement. B must file a return on Form 5300.26 for the
second calendar quarter of 1996 reporting B's $3750 tax liability (Sec.
53.151(a)). The form 5300.26 is due by July

[[Page 212]]

31, 1996, the last day of the first month following the calendar quarter
(Sec. 53.153(a)). B must also pay $1050.00, the underpayment amount by
which the total tax liability for the second calendar quarter exceeds
the total tax liability for the look-back quarter, by the due date of
the return.
Example 3. Deposit amount; no liability in look-back quarter--(1)
Facts. C, a manufacturer of ammunition, filed returns for the first,
second and third quarters of 1995 reporting C's tax liability. During
the fourth quarter of 1995, C did not make any taxable sales of shells
or cartridges, thereby incurring no tax liability for that return
period. C did not file Form 5300.26 for the fourth calendar quarter
since no tax liability was incurred (Sec. 53.151(a)(2)). C made taxable
sales in the second quarter of 1996 amounting to $25,500.00, incurring a
tax liability of $2805.
(2) Deposit requirement. Ordinarily, C would be required to make
deposits of tax for each semimonthly period in the calendar quarter
because C's total liability for the current calendar quarter exceeds
$2,000. However, since C incurred a tax liability of $0 in the second
preceding calendar quarter (the look-back quarter) (Sec. 53.159(c)(3)),
under the safe harbor rule, C is not required to make deposits of tax.
(3) Filing requirement. C is required to file a return on Form
5300.26 reporting C's $2805 ammunition excise tax liability. The form
5300.26 is due by July 31, 1996.
(4) Payment requirement. C must pay the $2805 tax with the return.
Example 4. Deposit requirement; First time Filer--(1) Facts. D, a
manufacturer of firearms, began business on 2/16/96. D sold 300 shotguns
which had a taxable sales price of $210 each during the first quarter of
1996. D sold 70 shotguns in the second semimonthly period of February,
1996, 130 shotguns in the first semimonthly period of March, 1996 and
100 shotguns in the second semimonthly period of March, 1996. The amount
of D's tax liability for the first quarter of 1996 is $6,930, 11 percent
of the taxable sale price of the shotguns.
(2) Deposit requirement. D is required to make a deposit of tax when
D's tax liability exceeds $2,000 (Sec. 53.159(c)(2)). Therefore, D must
make a deposit of tax beginning with the first semimonthly period in
March, the semimonthly period in which D's unpaid tax liability exceeded
$2,000. Because D, a first time filer, does not have an established
look-back quarter, D's deposit of tax must be at least 95 percent of the
incurred tax liability. D is required to make deposits of at least 95
percent of incurred tax liability for every semimonthly period in the
quarter thereafter. D's deposits must be timely and any underpayment of
tax must be paid by the due date of the return. Accordingly, D meets the
deposit requirement if D makes the following deposits:

The deposits due on March 11, 1996, and March 25, 1996, would
ordinarily be due on March 9, 1996, and March 24, 1996, respectively.
However, because March 9, 1996, is a Saturday, and March 24, 1996, is a
Sunday, under section 7503, D has until March 11, 1996, to make the
deposit due on March 9, 1996, and until March 25, 1996, to make the
deposit due on March 24, 1996.
(3) Filing requirement. D must file a return on Form 5300.26 for the
first calendar quarter of 1996 reporting D's $6,930 tax liability (Sec.
53.151(a)). The form 5300.26 is due by April 30, 1996, the last day of
the first month following the calendar quarter (Sec. 53.153(a)). D must
also pay $346.50, the amount by which the tax liability for the quarter
was underpaid, by the due date of the return.
Example 5. Deposit amount; third calendar quarter--(1) Facts. E, a
manufacturer of firearms, is a semimonthly depositor who makes deposits
of tax using the safe harbor rule based on the look-back quarter to
determine the amount of tax required to be deposited for the third
calendar quarter of 1995. E incurred a tax liability amounting to
$38,000 for the third quarter. E filed Form 5300.26 for the second
preceding calendar quarter, the look-back quarter on May 1, 1995,
reporting tax liability in the amount of $30,000.
(2) Deposit requirement. Because E has incurred more than $2,000 in
liability and has chosen to make deposits of tax based on the look-back
quarter, E is required to make deposits of tax equal to $5,000, 1/6
(16.67 percent) of the tax liability incurred in the look-back quarter,
for each semimonthly period in the calendar quarter. However, because of
the special rule which modifies the safe harbor rule for deposits of tax
for the month of September (Sec. 53.159(c)(4)), E must make deposits
equal to $2500.00 each, 1/12th (8.34 percent) of the tax liability
incurred in the look-back quarter for the periods September 16-25 and
September 26-30. E's deposits must be timely and E must pay the amount
of any underpayment by the due date of the return. Accordingly, E meets
the deposit requirement if E makes the following deposits:

------------------------------------------------------------------------
Amount of
Semimonthly period Deposit due by deposit
------------------------------------------------------------------------
July 1-15........................... July 24, 1995.......... $5000.00
July 16-31.......................... August 9, 1995......... 5000.00
Aug. 1-15........................... August 24, 1995........ 5000.00
Aug. 16-31.......................... Sept. 11, 1995......... 5000.00
Sept. 1-15.......................... Sept. 25, 1995......... 5000.00
Sept. 16-25......................... Sept. 28, 1995......... 2500.00
Sept. 26-30......................... October 9, 1995........ 2500.00
------------------------------------------------------------------------

[[Page 213]]

The deposits due on September 11, 1995, and September 25, 1995,
would ordinarily be due on September 9, 1995, and September 24, 1995,
respectively. However, because September 9, 1995, is a Saturday, and
September 24, 1995, is a Sunday, under section 7503, D has until
September 11, 1995, to make the deposit due on September 9, 1995, and
until September 25, 1995, to make the deposit due on September 24, 1995.
(3) Filing requirement. E must file a return on Form 5300.26 for the
third calendar quarter of 1995 reporting E's $38,000 tax liability
(Sec. 53.153(a)). E must also pay $8,000, the underpayment amount by
which the total tax liability for the third calendar quarter exceeds the
total tax liability for the look-back quarter, by the due date of the
return.

[T.D. ATF-365, 60 FR 33671, June 28, 1995, as amended by T.D. ATF-447,
66 FR 19089, Apr. 13, 2001; T.D. TTB-44, 71 FR 16958, Apr. 4, 2006]

Sec. 53.161 Authority to make credits or refunds.

For provisions relating to credits and refunds of certain taxes on
sales and services see section 6416 of the Code and Sec. Sec. 53.171-
53.186. For regulations under section 6402 of the Code of general
application in respect of credits or refunds, see 27 CFR 70.122, 70.123,
and 70.124 (Procedure and Administration).

Sec. 53.162 Abatements.

For regulations under section 6404 of the Code of general
application in respect of abatements of assessments to tax, see 27 CFR
70.125 (Procedure and Administration).

Sec. Sec. 53.163-53.170 [Reserved]

Sec. 53.171 Claims for credit or refund of overpayments of manufacturers

taxes.

Any claims for credit or refund of an overpayment of a tax imposed
by chapter 32 of the Code shall be made in accordance with the
applicable provisions of this subpart and the applicable provisions of
27 CFR 70.123 (Procedure and Administration). A claim on TTB Form 2635
(5620.8) is not required in the case of a claim for credit, but the
amount of the credit shall be claimed by entering that amount as a
credit on a return of tax under this subpart filed by the person making
the claim. In this regard, see Sec. 53.185.

Sec. 53.172 Credit or refund of manufacturers tax under chapter 32.

(a) Overpayment not described in section 6416(b)(2) of the Code--(1)
Claims included. This paragraph applies only to claims for credit or
refund of an overpayment of manufacturers tax imposed by Chapter 32. It
does not apply, however, to a claim for credit or refund on any
overpayment described in paragraph (b) of this section which arises by
reason of the application of section 6416(b)(2) of the Code.
(2) Supporting evidence required. No credit or refund of any
overpayment to which this paragraph (a) applies shall be allowed unless
the person who paid the tax submits with the claim a written consent of
the ultimate purchaser to the allowance of the credit or refund, or
submits with the claim a statement, supported by sufficient available
evidence, asserting that:
(i) The person has neither included the tax in the price of the
article with respect to which it was imposed nor collected the amount of
the tax from a vendee, and identifying the nature of the evidence
available to establish these facts, or
(ii) The person has repaid the amount of the tax to the ultimate
purchaser of the article.
(3) Ultimate purchaser--(i) General rule. The term ``ultimate
purchaser'', as used in paragraph (a)(2) of this section, means the
person who purchased the article for consumption, or for use in the
manufacture of other articles and not for resale in the form in which
purchased.
(ii) Special rule under section 6416(a)(3)--(A) Conditions to be
met. If tax under chapter 32 of the Code is paid in respect of an
article and the appropriate TTB officer determines that the article is
not subject to tax under chapter 32, the term ``ultimate purchaser'', as
used in paragraph (a)(2) of this section, includes any wholesaler,
jobber, distributor, or retailer who, on the 15th day after the date of
the determination holds for sale any such article with respect to which
tax has been paid, if the claim for credit or refund of the overpayment
in respect of the articles held for sale by wholesaler, jobber,
distributor, or retailer is filed on or before the date on which the
person who

[[Page 214]]

paid the tax is required to file a return for the period ending with the
first calendar quarter which begins more than 60 days after the date of
the determination by the appropriate TTB officer.
(B) Supporting statement. A claim for credit or refund of an
overpayment of tax in respect of an article as to which a wholesaler,
jobber, distributor, or retailer is the ultimate purchaser, as provided
in this paragraph (a)(3)(ii), must be supported by a statement that the
person filing the claim has a statement, by each wholesaler, jobber,
distributor, or retailer whose articles are covered by the claim,
showing total inventory, by model number and quantity, of all such
articles purchased tax-paid and held for sale as of 12:01 a.m. of the
15th day after the date of the determination by the appropriate TTB
officer that the article is not subject to tax under chapter 32 of the
Code.
(C) Inventory requirement. The inventory shall not include any such
article, title to which, or possession of which, has previously been
transferred to any person for purposes of consumption unless the entire
purchase price was repaid to the person or credited to the person's
account and the sale was rescinded or any such article purchased by the
wholesaler, jobber, distributor, or retailer as a component part of, or
on or in connection with, another article. An article in transit at the
first moment of the 15th day after the date of the determination is
regarded as being held by the person to whom it was shipped, except that
if title to the article does not pass until delivered to the person the
article is deemed to be held by the shipper.
(b) Overpayments described in section 6416(b)(2) of the Code--(1)
Claims included. This paragraph applies only to claims for credit or
refund of amounts paid as tax under chapter 32 of the Code that are
determined to be overpayments by reason of section 6416(b)(2) of the
Code (relating to tax payments in respect of certain uses, sales, or
resales of a taxable article).
(2) Supporting evidence required. No credit or refund of an
overpayment to which this paragraph (b) applies shall be allowed unless
the person who paid the tax submits with the claim a statement,
supported by sufficient available evidence, asserting that:
(i) The person neither included the tax in the price of the article
with respect to which it was imposed nor collected the amount of the tax
from a vendee, and identifying the nature of the evidence available to
establish these facts, or
(ii) The person repaid, or agreed to repay, the amount of the tax to
the ultimate vendor of the article, or
(iii) The person has secured, and will submit upon request of the
appropriate TTB officer, the written consent of the ultimate vendor to
the allowance of the credit or refund.
(3) Ultimate vendor--General rule. The term ultimate vendor, as used
in paragraph (b)(2) of this section, means the seller making the sale
which gives rise to the overpayment or which last precedes the
exportation or use which has given rise to the overpayment.
(c) Overpayments not included. This section does not apply to any
overpayment determined under section 6416(b)(1) of the Code (relating to
price readjustments), section 6416(b)(3)(A) of the Code (relating to
certain cases in which refund or credit is allowable to the manufacturer
who uses, in the further manufacture of a second article, a taxable
article purchased by the manufacturer taxpaid), or section 6416(b)(5) of
the Code (relating to the return to the seller of certain installment
accounts which the seller had previously sold). In this regard, see
Sec. Sec. 53.173, 53.180, and 53.183.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.173 Price readjustments causing overpayments of manufacturers tax.

In the case of any payment of tax under chapter 32 of the Code that
is determined to be an overpayment by reason of a price readjustment
within the meaning of section 6416(b)(1) of the Code and Sec. 53.174 or
Sec. 53.175, the person who paid the tax may file a claim for refund of
the overpayment or may claim credit for the overpayment on any return of
tax under this subpart which the person subsequently files. Price
readjustments may not be anticipated. However, if the readjustment

[[Page 215]]

has actually been made before the return is filed for the period in
which the sale was made, the tax to be reported in respect of the sale
may, at the election of the taxpayer, be based either:
(a) On the price as so readjusted, or
(b) On the original sale price and a credit or refund claimed in
respect of the price readjustment.

A price readjustment will be deemed to have been made at the time when
the amount of the readjustment has been refunded to the vendor or the
vendor has been informed that the vendor's account has been credited
with the amount. No interest shall be paid on any credit or refund
allowed under this section. For provisions relating to the evidence
required in support of a claim for credit or refund, see 27 CFR 70.123
(Procedure and Administration), Sec. 53.172(a)(2) and Sec. 53.176. For
provisions authorizing the taking of a credit in lieu of filing a claim
for refund, see section 6416(d) of the Code and Sec. 53.185.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.174 Determination of price readjustments.

(a) In general--(1) Rules of usual application--(i) Amount treated
as overpayment. If the tax imposed by chapter 32 of the Code has been
paid and thereafter the price of the article on which the tax was based
is readjusted, that part of the tax which is proportionate to the part
of the price which is repaid or credited to the purchaser is considered
to be an overpayment. A readjustment of price to the purchaser may occur
by reason of:
(A) The return of the article,
(B) The repossession of the article,
(C) The return or repossession of the covering or container of the
article, or
(D) A bona fide discount, rebate, or allowance against the price at
which the article was sold.
(ii) Requirements of price readjustment. A price readjustment will
not be deemed to have been made unless the person who paid the tax
either:
(A) Repays part or all of the purchase price in cash to the vendee,
(B) Credits the vendee's account for part or all of the purchase
price, or
(C) Directly or indirectly reimburses a third party for part or all
of the purchase price for the direct benefit of the vendee.

In addition, to be deemed a price readjustment, the payment or credit
must be contractually or economically related to the taxable sale that
the payment or credit purports to adjust. Thus, commissions or bonuses
paid to a manufacturer's own agents or salesperson for selling the
manufacturer's taxable products are not price readjustments for purposes
of this section, since those commissions or bonuses are not paid or
credited either to the manufacturer's vendee or to a third party for the
vendee's benefit. On the other hand, a bonus paid by the manufacturer to
a dealer's salesperson for negotiating the sale of a taxable article
previously sold to the dealer by the manufacturer is considered to be a
readjustment of the price on the original sale of the taxable article,
regardless of whether the payment to the salesperson is made directly by
the manufacturer or to the salesperson through the dealer. In such a
case, the payment is related to the sale of a taxable article and is
made for the benefit of the dealer because it is made to the dealer's
salesperson to encourage the sale of a product owned by the dealer.
Similarly, payments or credits made by a manufacturer to a vendee as
reimbursement of interest expense incurred by the vendee in connection
with a so-called ``free flooring'' arrangement for the purchase of
taxable articles is a price readjustment, regardless of whether the
payment or credit is made directly to the vendee or to the vendee's
creditor on behalf of the vendee.
(iii) Limitation on credit or refund. The credit or refund allowable
by reason of a price readjustment in respect of the sale of a taxable
article may not exceed an amount which bears the same ratio to the total
tax originally due and payable on the article as the amount of the tax-
included readjustment bears to the original tax-included sale price of
the article.
(2) Rules of special application--(i) Constructive sale price. If,
in the case of a taxable sale, the tax imposed by chapter 32 of the Code
is based on a constructive sale price determined

[[Page 216]]

under any paragraph of section 4216(b) of the Code and Sec. Sec. 53.94-
53.97, as determined without reference to section 4218 of the Code, then
any price readjustment made with respect to the sale may be taken into
account under this section only to the extent that the price
readjustment reduces the actual sale price of the article below the
constructive sale price.

Examples: (A) A manufacturer sells a taxable article at retail for
$110 tax included. Under section 4216(b)(1) of the Code the constructive
sale price (tax included) of the article is determined to be $93.
Thereafter, the manufacturer grants an allowance of $10 to the
purchaser, which reduces the actual selling price (tax included) to
$100. Since the readjustment price exceeds the amount of the
constructive sale price, this readjustment is not recognized as a price
readjustment under this section.
(B) Subsequently, the manufacturer extends to the purchaser an
additional price allowance of $10, thereby reducing the actual sale
price to $90. Since the actual sale price is now $3 less than the
constructive sale price of $93, the manufacturer has overpaid by the
amount of tax attributable to the $3. Assuming the tax rate involved is
10 percent, and the prices involved are tax-included, the overpayment of
tax would be $0.27, determined as follows:
[GRAPHIC] [TIFF OMITTED] TC05OC91.021

(ii) Price determined under section 4223(b)(2) of the Code. If a
manufacturer (within the meaning of section 4223(a) of the Code) to whom
an article is sold or resold free of tax in accordance with the
provisions of section 4221(a)(1) of the Code for use in further
manufacture diverts the article to a taxable use or sells it in a
taxable sale, and pursuant to the provisions of section 4223(b)(2) of
the Code computes the tax liability in respect of the use or sale on the
price for which the article was sold to the manufacturer or on the price
at which the article was sold by the actual manufacturer, a reduction of
the price on which the tax was based does not result in an overpayment
within the meaning of section 6416(b)(1) of the Code of this section.
Moreover, if a manufacturer purchases an article tax free and computes
the tax in respect of a subsequent sale of the article pursuant to the
provisions of section 4223(b)(2) of the Code, an overpayment does not
arise by reason of readjustment of the price for which the article was
sold by the manufacturer except where the readjustment results from the
return or repossession of the article by the manufacturer, and all of
the purchase price is refunded by the manufacturer. See, however,
paragraph (b)(4) of this section as to repurchased articles.
(b) Return of an article--(1) Price readjustment. If a taxable
article is returned to the manufacturer who paid the tax imposed by
Chapter 32 of the Code on the sale of the article, a price readjustment
giving rise to an overpayment results:
(i) If the article is returned before use, and all of the purchase
price is repaid to the vendee or credited to the vendee's account, or
(ii) If the article is returned under an express or implied warranty
as to quality or service, and all or a part of the purchase price is
repaid to the vendee or credited to the vendee's account, or
(iii) If title is still in the seller, as, for example, in the case
of certain installment sales contracts, and all or a part of the
purchase price is repaid to the vendee or credited to the vendee's
account.
(2) Return of purchase price. For purposes of paragraph (b)(1) of
this section, if all of the purchase price of an article has been
returned to the vendee, except for an amount retained by the
manufacturer pursuant to contract as reimbursement of expense incurred
in connection with the sale (such as a handling or restocking charge),
all of the purchase price is considered to have been returned to the
vendee.

[[Page 217]]

(3) Taxability of subsequent sale or use. If, under any of the
conditions described in paragraph (b)(1) of this section, an article is
returned to the manufacturer who paid the tax and all of the purchase
price is returned to the vendee, the sale is considered to have been
rescinded. Any subsequent sale or use of the article by the manufacturer
will be considered to be an original sale or use of the article by the
manufacturer which is subject to tax under Chapter 32 of the Code unless
otherwise exempt. If under any such condition an article is returned to
the manufacturer who paid the tax and only part of the purchase price is
returned to the vendee, a subsequent sale of the article by the
manufacturer will be subject to tax to the extent that the sale price
exceeds the adjusted sale price of the first taxable sale.
(4) Treatment of other transactions as repurchases. Except as
provided in paragraph (b)(1) of this section, a price readjustment will
not result when a taxable article is returned to the manufacturer who
paid the tax on the sale of the article, even though all or a part of
the purchase price is repaid to the vendee or credited to the vendee's
account, since such a transaction will be considered to be a repurchase
of the article by the manufacturer.
(c) Repossession of an article. If a taxable article is repossessed
by the manufacturer who paid the tax imposed by chapter 32 of the Code
on the sale of the article, and all or a part of the purchase price is
repaid to the vendee or credited to the vendee's account, a price
readjustment giving rise to an overpayment will result. However, if the
manufacturer later resells the repossessed article for a price in excess
of the original adjusted sale price, the manufacturer will be liable for
tax under chapter 32 of the Code to the extent that the resale price
exceeds the original adjusted sale price.
(d) Return or repossession of covering or container. If the covering
or container of a taxable article is returned to, or repossessed by the
manufacturer who paid the tax imposed by chapter 32 of the Code on the
sale of the article, and all or a portion of the purchase price is
repaid to the vendee or credited to the vendee's account by reason of
the return or repossession of the covering or container, a price
adjustment giving rise to an overpayment will result. If a taxable
article is considered to have been repurchased, as provided in paragraph
(b)(4) of this section, and the covering or container accompanies the
taxable article as part of the transaction, the covering or container
will also be considered to have been repurchased.
(e) Bona fide discounts, rebates, or allowances--(1) In general.
Except as provided in Sec. 53.175 (relating to readjustments in respect
of local advertising), the basic consideration in determining, for
purposes of this section, whether a bona fide discount, rebate, or
allowance has been made is whether the price actually by, or charged
against, the purchaser has in fact been reduced by subsequent
transactions between the parties. Generally, the price will be
considered to have been readjusted by reason of a bona fide discount,
rebate, or allowance, only if the manufacturer who made the taxable sale
repays a part of the purchase price in cash to the vendee, or credits
the vendee's account, or directly or indirectly reimburses a third party
for part or all of the purchase price for the direct benefit of the
vendee, in consideration of factors which, if taken into account at the
time of the original transaction, would have resulted at that time in a
lower sale price. For example, a price readjustment will be considered
to have been made when a bona fide discount, rebate, or allowance is
given in consideration of such factors as prompt payment, quantity
buying over a specified period, the vendee's inventory of an article
when new models are introduced, or a general price reduction affecting
articles held in stock by the vendee as of a certain date. On the other
hand, repayments made to the vendee do not effectuate price
readjustments if given in consideration of circumstances under which the
vendee has incurred, or is required to incur, an expense which, if
treated as a separate item in the original transaction, would have been
incudable in the price of the article for purposes of computing the tax.

[[Page 218]]

Examples. The provisions of paragraph (e)(1) of this section may be
illustrated by the following examples:

Example (1). B, a manufacturer of shotguns, bills its distributors
in a specified amount per shotgun purchased by them. Thereafter, B
issues to each distributor a credit memorandum in the amount of X
dollars for each demonstration by the distributor of the shotguns at a
sporting goods exhibition. The credit which B allows the distributor for
demonstration of B's product does not effect a readjustment of price.
Example (2). C, a manufacturer of firearms, bills its dealers in a
specified amount per firearm purchased by them. Thereafter, C remits to
the dealer X dollars of the original sale price for each firearm sold by
the dealer. An additional amount of Y dollars is paid to the dealer upon
a showing by the dealer that the dealer has paid Y dollars to the
salesperson who made the sale. In this case, the X dollars paid to the
dealer by C constitutes a bona fide discount, rebate, or allowance since
payment of such amount is in the nature of a price reduction. In
addition, the Y dollars paid to the dealer in reimbursement for the
amount paid by the dealer to the salesperson who made the sale, also
constitutes a bona fide discount, rebate, or allowance.

(2) Inability to collect price. A charge-off of an amount
outstanding in an open account, due to inability to collect, is not a
bona fide discount, rebate, or allowance and does not, in and of itself,
give rise to a price readjustment within the meaning of this section.
(3) Loss or damage in transit. If title to an article has passed to
the vendee, the subsequent loss, damage, or destruction of the article
while in the possession of a carrier for delivery to the vendee does
not, in and of itself, affect the price at which the article was sold.
However, if the article was sold under a contract providing that, if the
article was lost, damaged, or destroyed in transit, title would revert
to the vendor and the vendor would reimburse the vendee in full for the
sale price, then the original sale is considered to have been rescinded.
The vendor is entitled to credit or refund of the tax paid upon
reimbursement of the full tax-included sale price to the vendee.

Sec. 53.175 Readjustment for local advertising charges.

(a) In general. If a manufacturer has paid the tax imposed by
chapter 32 of the Code on the price of any article sold by the
manufacturer and thereafter has repaid a portion of the price to the
purchaser or any subsequent vendee in reimbursement of expenses for
local advertising of the article or any other article sold by the
manufacturer which is taxable at the same rate under the same section of
chapter 32 of the Code, the reimbursement will be considered a price
readjustment constituting an overpayment which the manufacturer may
claim as a credit or refund. The amount of the reimbursement may not,
however, exceed the limitation provided by section 4216(e)(2) of the
Code and Sec. 53.101, determined as of the close of the calendar
quarter in which the reimbursement is made or as of the close of any
subsequent calendar quarter of the same calendar year in which it is
made. The term ``local advertising,'' as used in this section, has the
same meaning as prescribed by section 4216(e)(4) of the Code and
includes generally, advertising which is broadcast over a radio station
or television station, or appears in a newspaper or magazine, or is
displayed by means of an outdoor advertising sign or poster.
(b) Local advertising charges excluded from taxable price in one
year but repaid in following year--(1) Determination of price
readjustments for year in which charge is repaid. If the tax imposed by
chapter 32 of the Code was paid with respect to local advertising
charges that were excluded in computing the taxable price of an article
sold in any calendar year but are not repaid to the manufacturer's
purchaser or any subsequent vendee before May 1 of the following
calendar year, the subsequent repayment of those charges by the
manufacturer in reimbursement of expenses for local advertising will be
considered a price readjustment constituting an overpayment which the
manufacturer may claim as a credit or refund. The amount of the
reimbursement may not, however, exceed the limitation provided by
section 4216(e)(2) of the Code and Sec. 53.101, determined as of the
close of the calendar quarter in which the reimbursement is made or as
of the close of any subsequent calendar quarter of the same calendar
year in which it is made.

[[Page 219]]

(2) Redetermination of price readjustments for year in which charge
was made. If the tax imposed by chapter 32 of the Code was paid with
respect to local advertising charges that were excluded in computing the
taxable price of an article sold in any calendar year but are not repaid
to the manufacturer's purchaser or any subsequent vendor before May 1 of
the following calendar year, the manufacturer may make a
redetermination, in respect of the calendar year in which the charge was
made, of the price readjustments constituting an overpayment which the
manufacturer may claim as a credit or refund. This redetermination may
be made by excluding the local advertising charges made in the calendar
year that became taxable as of May 1 of the following calendar year.

Sec. 53.176 Supporting evidence required in case of price readjustments.

No credit or refund of an overpayment arising by reason of a price
readjustment described in Sec. 53.174 or Sec. 53.175 shall be allowed
unless the manufacturer who paid the tax submits a statement, supported
by sufficient available evidence:
(a) Describing the circumstances which gave rise to the price
readjustment,
(b) Identifying the article in respect of which the price
readjustment was allowed,
(c) Showing the price at which the article was sold, the amount of
tax paid in respect of the article, and the date on which the tax was
paid,
(d) Giving the name and address of the purchaser to whom the article
was sold, and
(e) Showing the amount repaid to the purchaser or credited to the
purchaser's account.

Sec. 53.177 Certain exportations, uses, sales, or resales causing

overpayments of tax.

In the case of any payment of tax under chapter 32 of the Code that
is determined to be an overpayment by reason of certain exportations,
uses, sales, or resales described in section 6416(b)(2) of the Code and
Sec. 53.178, the person who paid the tax may file a claim for refund of
the overpayment or, in the case of overpayments under chapter 32 of the
Code, may claim credit for the overpayment on any return of tax under
this subpart which the person subsequently files. However, under the
circumstances described in section 6416(c) of the Code and Sec. 53.184,
the overpayments under chapter 32 may be refunded to an exporter or
shipper. No interest shall be paid on any credit or refund allowed under
this section. For provisions relating to the evidence required in
support of a claim for credit or refund under this section, see 27 CFR
70.123 (Procedure and Administration) and 53.179. For provisions
authorizing the taking of a credit in lieu of filing a claim for refund,
see section 6416(d) of the Code and Sec. 53.185.

Sec. 53.178 Exportations, uses, sales, and resales included.

(a) In general. The payment of tax imposed by chapter 32 of the Code
on the sale of any article, will be considered to be an overpayment by
reason of any exportation, use, sale, or resale described in any one of
paragraphs (b) to (e), inclusive, of this section. This section applies
only in those cases where the exportation, use, sale, or resale (or any
combination thereof) referred to in any one or more of these paragraphs
occurs before any other use. If any article is sold or resold for a use
described in any one of these paragraphs and is not in fact so used, the
paragraph is treated in all respects as inapplicable.
(b) Exportation of tax-paid articles. A payment of tax under chapter
32 of the Code on the sale of any article will be considered to be an
overpayment under section 6416(b)(2)(A) of the Code if the article is by
any person exported to a foreign country or shipped to a possession of
the United States. It is immaterial for purposes of this paragraph,
whether the person who made the taxable sale had knowledge at the time
of the sale that the article was being purchased for export to a foreign
country or shipment to a possession of the United States. See Sec.
53.184 for the circumstances under which a claim for refund by reason of
the exportation of an article may be claimed by the exporter or shipper,
rather than by the person who paid the tax. For definition of the

[[Page 220]]

term ``possession of the United States'', see Sec. 53.11.
(c) Supplies for vessels or aircraft. A payment of tax under chapter
32 of the Code on the sale of any article, will be considered to be an
overpayment under section 6416(b)(2)(B) of the Code if the article is
used by any person, or is sold by any person for use by the purchaser,
as supplies for vessels or aircraft. The term ``supplies for vessels or
aircraft'', as used in this paragraph, has the same meaning as when used
in sections 4221(a)(3), 4221(d)(3), and 4221(e)(1) of the Code, and the
regulations thereunder (Sec. 53.134(b)(1)).
(d) Use by State or local government. A payment of tax under chapter
32 of the Code on the sale of any article will be considered to be an
overpayment under section 6416(b)(2)(C) of the Code if the article is
sold by any person to a State, any political subdivision thereof, or the
District of Columbia for the exclusive use of a State, any political
subdivision thereof, or the District of Columbia. For provisions
relating to tax-free sales to a State, any political subdivision
thereof, or the District of Columbia, see section 4221(a)(4) of the Code
and Sec. 53.131.
(e) Use by nonprofit educational organization. A payment of tax
under chapter 32 of the Code on the sale of any article will be
considered to be an overpayment under section 6416(b)(2)(D) of the Code
if the article is sold by any person to a nonprofit educational
organization for its exclusive use. The term ``nonprofit educational
organization'', as used in this paragraph (e), has the same meaning as
when used in section 4221 (a)(5) or (d)(5) of the Code, whichever
applies, and the regulations under Sec. 53.136.

Sec. 53.179 Supporting evidence required in case of manufacturers tax

involving exportations, uses, sales, or resales.

(a) Evidence to be submitted by claimant. No claim for credit or
refund of an overpayment, within the meaning of section 6416(b)(2) of
the Code and Sec. 53.178, of tax under chapter 32 of the Code shall be
allowed unless the person who paid the tax submits with the claim the
evidence required by Sec. 53.172(b)(2) and a statement, supported by
sufficient available evidence:
(1) Showing the amount claimed in respect of each category of
exportations, uses, sales, or resales on which the claim is based and
which give rise to a right of credit or refund under section 6416(b)(2)
of the Code and Sec. 53.177,
(2) Identifying the article, both as to nature and quantity, in
respect of which credit or refund is claimed,
(3) Showing the amount of tax paid in respect of the article or
articles and the dates of payment, and
(4) Indicating that the person claiming a credit or refund possesses
evidence (as set forth in paragraph (b)(1) of this section) that the
article has been exported, or has been used, sold, or resold in a manner
or for a purpose which gives rise to an overpayment within the meaning
of section 6416(b)(2) of the Code and Sec. 53.178.
(b) Evidence required to be in possession of claimant--(1) Evidence
required under paragraph (a)(4)--(i) In general. The evidence required
to be retained by the person who paid the tax, as provided in paragraph
(a)(4) of this section, must, in the case of an article exported,
consist of proof of exportation in the form prescribed in Sec. 53.133
or must, in the case of other articles sold tax-paid by that person,
consist of a certificate, executed and signed by the ultimate purchaser
of the article, in the form prescribed in paragraph (b)(1)(ii) of this
section. However, if the article to which the claim relates has passed
through a chain of sales from the person who paid the tax to the
ultimate purchaser, the evidence required to be retained by the person
who paid the tax may consist of a certificate, executed and signed by
the ultimate vendor of the article, in the form provided in paragraph
(b)(1)(iii) of this section, rather than the proof of exportation itself
or the certificate of the ultimate purchaser.
(ii) Certificate of ultimate purchaser. (A) The certificate executed
and signed by the ultimate purchaser of the article to which the claim
relates must identify the article, both as to nature and quantity; show
the address of the ultimate purchaser of the article, and the name and
address of the ultimate vendor of the article; and describe the

[[Page 221]]

use actually made of the article in sufficient detail to establish that
credit or refund is due, except that the use to be made of the article
must be described in lieu of actual use if the claim is made by reason
of the sale or resale of an article for a specified use which gives rise
to the overpayment.
(B) If the certificate sets forth the use to be made of any article,
rather than its actual use, it must show that the ultimate purchaser has
agreed to notify the claimant if the article is not in fact used as
specified in the certificate.
(C) The certificate must also contain a statement that the ultimate
purchaser understands that the ultimate purchaser and any other party
may, for fraudulent use of the certificate, be subject to all applicable
criminal penalties under the Internal Revenue Code.
(D) A purchase order will be acceptable in lieu of a separate
certificate of the ultimate purchaser if it contains all the information
required by this paragraph.
(iii) Certificate of ultimate vendor. Any certificate executed and
signed by an ultimate vendor as evidence to be retained by the person
who paid the tax as provided in paragraph (a)(4) of this section may be
executed with respect to any one or more overpayments by the person
which arose under section 6416(b)(2) and Sec. 53.178 by reason of
exportations, uses, sales or resales, occurring within any period of not
more than 12 consecutive calendar quarters, the beginning and ending
dates of which are specified in the certificate. A certificate
supporting a claim for credit or refund under this section shall contain
the following:
(A) Name of ultimate vendor if other than person executing the
certificate.
(B) Statement that article(s) was purchased by the ultimate vendor
tax-paid and was thereafter exported, used, sold, or resold.
(C) Description of proof which supports exportation or certificate
as to use executed by ultimate purchaser.
(D) Statement that ultimate vendor retains such proof for 3 years
from the date of the statement and will, upon request, supply such proof
at any time within such 3 year period to the taxpayer to establish that
credit or refund is due in respect of the article.
(E) Statement that to the best knowledge and belief of the person
executing the certificate, no statement in respect of the proof of
exportation or certificate has previously been executed and that the
person executing the certificate understands that any fraudulent use of
the certificate may subject the person executing the certificate or any
other party to all applicable criminal penalties under the Code.
(F) Name, title, address and signature of person executing
certificate and date signed.
(G) Description of all articles covered by the certificate, with the
corresponding vendor's invoice number, date of resale of article,
quantity, whether articles were exported or used and the use made of
article or to be made of article.
(iv) TTB I 5600.33. TTB I 5600.33, Statement of Ultimate Vendor,
which is available as provided in Sec. 53.21(b), when completed,
contains all necessary information for a properly executed certificate.
Additional copies may be reproduced as needed.
(2) Repayment or consent of ultimate vendor. If the person claiming
credit or refund or an overpayment to which this section applies has
repaid, or agreed to repay, the amount of the overpayment to the
ultimate vendor or if the ultimate vendor consents to the allowance of
the credit or refund, a statement to that effect, signed by the ultimate
vendor, must be shown on, or made a part of, the supporting evidence
required under this section to be retained by the person claiming the
credit or refund. In this regard, see Sec. 53.172(b)(2).

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-380, 61
FR 37007, July 16, 1996; T.D. TTB-44, 71 FR 16958, Apr. 4, 2006]

Sec. 53.180 Tax-paid articles used for further manufacture and causing

overpayments of tax.

In the case of any payment of tax under chapter 32 of the Code that
is determined to be an overpayment under section 6416(b)(3) of the Code
and

[[Page 222]]

Sec. 53.181 by reason of the sale of an article, directly or
indirectly, by the manufacturer of the article to a subsequent
manufacturer who uses the article in further manufacture of a second
article or who sells the article with, or as a part of, the second
article manufactured or produced by the subsequent manufacturer, the
subsequent manufacturer may file claim for refund of the overpayment or
may claim credit for the overpayment on any return of tax under this
subpart subsequently filed. No interest shall be paid on any credit or
refund allowed under this section. For provisions relating to the
evidence required in support of a claim for credit or refund, see 27 CFR
Sec. 70.123 (Procedure and Administration), 53.172 and 53.182. For
provisions authorizing the taking of a credit in lieu of filing a claim
for refund, see section 6416(d) of the Code and Sec. 53.185.

Sec. 53.181 Further manufacture included.

(a) In general. The payment of tax imposed by chapter 32 of the Code
on the sale of any article by a manufacturer of the article will be
considered to be an overpayment by reason of any use in further
manufacture, or sale as part of a second manufactured article, described
in paragraph (b) of this section. This section applies in those cases
where the exportation, use, or sale (or any combination of those
activities) referred to in this paragraph occurs before any other use.
(b) Use of tax-paid articles in further manufacture described in
section 6416(b)(3)(A) of the Code. A payment of tax under chapter 32 of
the Code on the sale of any article, directly or indirectly, by the
manufacturer of the article to a subsequent manufacturer will be
considered to be an overpayment under section 6416(b)(3)(A) of the Code
if the article is used by the subsequent manufacturer as material in the
manufacture or production of, or as a component part of, a second
article manufactured or produced by the subsequent manufacturer which is
taxable under chapter 32 of the Code. For this purpose it is immaterial
whether the second article is sold or otherwise disposed of, or if sold,
whether the sale is a taxable sale. Any article to which this paragraph
applies which would have been used in the manufacture or production of a
second article, except for the fact that it was broken or rendered
useless in the process of manufacturing or producing the second article,
will be considered to have been used as a component part of the second
article.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31084, July 9, 1991]

Sec. 53.182 Supporting evidence required in case of tax-paid articles used

for further manufacture.

(a) Evidence to be submitted by claimant. No claim for credit or
refund of an overpayment, within the meaning of section 6416(b)(3) of
the Code and Sec. 53.181 shall be allowed unless the subsequent
manufacturer submits with the claim the evidence required by Sec.
53.132 and a statement, supported by sufficient available evidence:
(1) Showing the amount claimed in respect of each category of
exportations, uses, or sales on which the claim is based and which give
rise to a right of credit or refund under section 6416(b)(3) of the Code
and Sec. 53.180,
(2) Showing the name and address of the manufacturer, producer, or
importer of the article in respect of which credit or refund is claimed,
(3) Identifying the article, both as to nature and quantity, in
respect of which credit or refund is claimed,
(4) Showing the amount of tax paid in respect of the article by the
manufacturer or producer of the article and the date of payment.
(5) Indicating that the article was used by the claimant as material
in the manufacture or production of, or as a component part of, a second
article manufactured or produced by the manufacturer or was sold on or
in connection with, or with the sale of, a second article manufactured
or produced by the manufacturer, and
(6) Identifying the second article, both as to nature and quantity.
(b) Evidence required to be in possession of claimant--(1)
Certificate of ultimate purchaser of second article. The certificate
executed and signed by the ultimate purchaser of the second article must
contain the same information as that required in Sec. 53.179(b)(1)(ii),
except

[[Page 223]]

that the information must be furnished in respect of the second article,
rather than the article to which the claim relates.
(2) Certificate of ultimate vendor of second article. Any
certificate executed and signed by an ultimate vendor as evidence to be
retained by the person claiming credit or refund must be executed in the
same form and manner as that provided in Sec. 53.179(b)(2)(iii).
(3) Repayment or consent of ultimate vendor. If the person claiming
credit or refund of an overpayment to which this section applies has
repaid, or agreed to repay, the amount of the overpayment to the
ultimate vendor or if the ultimate vendor consents to the allowance of
the credit or refund, a statement to that effect, signed by the ultimate
vendor, must be shown on, or made a part of, the evidence required to be
retained by the person claiming the credit or refund. In this regard,
see Sec. 53.172(b)(2).

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56
FR 31085, July 9, 1991]

Sec. 53.183 Return of installment accounts causing overpayments of tax.

(a) In general. In the case of any payment of tax under section
4216(d)(1) of the Code in respect of the sale of any installment account
that is determined to be an overpayment under section 6416(b)(5) of the
Code and paragraph (b) of this section upon return of the installment
account, the person who paid the tax may file a claim for refund of the
overpayment or may claim credit for the overpayment on any return of tax
under this subpart which that person subsequently files. No interest
shall be paid on any credit or refund allowed under this section. For
provisions relating to the evidence required in support of a claim for
credit or refund under this section, see 27 CFR 70.123 (Procedure and
Administration) and paragraph (c) of this section. For provisions
authorizing the taking of a credit in lieu of filing a claim for refund,
see section 6416(d) of the Code and Sec. 53.185.
(b) Overpayment of tax allocable to repaid consideration. The
payment of tax imposed by section 4216(d)(1) of the Code on the sale of
an installment account by the manufacturer will be considered to be an
overpayment under section 6416(b)(5) of the Code to the extent of the
tax allocable to any consideration repaid or credited to the purchaser
of the installment account upon the return of the account to the
manufacturer pursuant to the agreement under which the account
originally was sold, if the readjustment of the consideration occurs
pursuant to the provisions of the agreement. The tax allocable to the
repaid or credited consideration is the amount which bears the same
ratio to the total tax paid under section 4216(d)(1) of the Code with
respect to the installment account as the amount of consideration repaid
or credited to the purchaser bears to the total consideration for which
the account was sold. This paragraph (b) does not apply where an
installment account is originally sold pursuant to the order of, or
subject to the approval of, a court of competent jurisdiction in a
bankruptcy or insolvency proceeding.
(c) Evidence to be submitted by claimant. No claim for credit or
refund of an overpayment, within the meaning of section 6416(b)(5) of
the Code and paragraph (b) of this section, of tax under section
4216(d)(1) of the Code shall be allowed unless the person who paid the
tax submits with the claim a statement, supported by sufficient
available evidence, indicating:
(1) The name and address of the person to whom the installment
account was sold,
(2) The amount of tax due under section 4216(d)(1) of the Code by
reason of the sale of the installment account, the amount of the tax
paid under section 4216(d)(1) with respect to the sale, and the date of
payment,
(3) The amount for which the installment account was sold,
(4) The amount which was repaid or credited to the purchaser of the
account by reason of the return of the account to the person claiming
the credit or refund, and
(5)(i) The fact that the amount repaid or credited to the purchaser
of the account was so repaid or credited pursuant to the agreement under
which the account was sold, and

[[Page 224]]

(ii) The fact that the account was returned to the manufacturer
pursuant to that agreement.

Sec. 53.184 Refund to exporter or shipper.

(a) In general. Any payment of tax imposed by chapter 32 of the Code
that is determined to be an overpayment within the meaning of section
6416(b)(2)(A) of the Code and Sec. Sec. 53.178 and 53.179, by reason of
the exportation of any article may be refunded to the exporter or
shipper of the article pursuant to section 6416(c) of the Code, if:
(1) The exporter or shipper files a claim for refund of the
overpayment, and
(2) The person who paid the tax waives the right to claim credit or
refund of the tax.

No interest shall be paid on any refund allowed under this section. For
provisions relating to the evidence required in support of a claim under
this paragraph, see 27 CFR 70.123 (Procedure and Administration) and
paragraph (b) of this section.
(b) Supporting evidence required. No claim for refund of any
overpayment of tax to which this section applies shall be allowed unless
the exporter or shipper submits with that claim proof of exportation in
the form prescribed by Sec. 53.133, and a statement, signed by the
person who paid the tax, showing:
(1) That the person who paid the tax waives the right to claim
credit or refund of the tax, and
(2) The amount of tax paid on the sale of the article and the date
of payment.

Sec. 53.185 Credit on returns.

Any person entitled to claim refund of any overpayment of tax
imposed by chapter 32 of the Code may, in lieu of claiming refund of the
overpayment, claim credit for the overpayment on any return of tax under
this subpart subsequently filed. Any such credit claimed on a return
must be supported by the evidence prescribed in the applicable
regulations in this subpart and 27 CFR 70.123 (Procedure and
Administration).

Sec. 53.186 Accounting procedures for like articles.

(a) Identification of manufacturer. In applying section 6416 of the
Code and the regulations thereunder, a person who has purchased like
articles from various manufacturers may determine the particular
manufacturer from whom that person purchased any one of those articles
by a first-in, first-out (FIFO) method, by a last-in, first-out (LIFO)
method, or by any other consistent method approved by the appropriate
TTB officer. For the first year for which a person makes a determination
under this section, the person may adopt any one of the following
methods without securing prior approval by the appropriate TTB officer.
(1) FIFO method.
(2) LIFO method.
(3) Any method by which the actual manufacturer of the article is in
fact identified.
(4) Any other method of determining the manufacturer of a particular
article must be approved by the appropriate TTB officer before its
adoption. After any method for identifying the manufacturer has been
properly adopted, it may not be changed without first securing the
consent of the appropriate TTB officer.
(b) Determining amount of tax paid. In applying section 6416 and
Sec. Sec. 53.171-53.186, if the identity of the manufacturer of any
article has been determined by a person pursuant to a method prescribed
in paragraph (a) of this section, that manufacturer of the article must
determine the tax paid under Chapter 32 of the Code with respect to that
article consistently with the method used in identifying the
manufacturer.

Sec. 53.187 OMB control numbers.

(a) Purpose. This section collects and displays the control numbers
assigned to collections of information in this part by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1980.
TTB intends that this section comply with the requirements of Sec. Sec.
1320.12, 1320.13, and 1320.14 of 5 CFR part 1320 (OMB regulations
implementing the Paperwork Reduction Act), for the display of control

[[Page 225]]

numbers assigned by OMB to collections of information in the regulations
in this part.
(b) Display.

------------------------------------------------------------------------
27 CFR part 53 section number OMB control number(s)
------------------------------------------------------------------------
Sec. 53.1......................... 1545-0723
Sec. 53.3......................... 1545-0685
Sec. 53.11........................ 1545-0723
Sec. 53.92........................ 1545-0023
Sec. 53.93........................ 1545-0023
Sec. 53.99........................ 1545-0023
Sec. 53.131....................... 1545-0023
Sec. 53.132....................... 1545-0023
Sec. 53.133....................... 1545-0023
Sec. 53.134....................... 1545-0023
Sec. 53.136....................... 1545-0023
Sec. 53.140....................... 1545-0023
Sec. 53.141....................... 1545-0023
Sec. 53.142....................... 1545-0023
Sec. 53.143....................... 1545-0023
Sec. 53.151....................... 1545-0023, 1545-0723
Sec. 53.152....................... 1545-0723
Sec. 53.153....................... 1545-0257, 1545-0723
Sec. 53.155....................... 1545-0723
Sec. 53.157....................... 1545-0257
Sec. 53.171....................... 1545-0023, 1545-0723
Sec. 53.172....................... 1545-0723
Sec. 53.173....................... 1545-0723
Sec. 53.174....................... 1545-0723
Sec. 53.175....................... 1545-0723
Sec. 53.176....................... 1545-0723
Sec. 53.177....................... 1545-0723
Sec. 53.178....................... 1545-0723
Sec. 53.179....................... 1545-0723
Sec. 53.180....................... 1545-0723
Sec. 53.181....................... 1545-0723
Sec. 53.182....................... 1545-0723
Sec. 53.183....................... 1545-0723
Sec. 53.184....................... 1545-0023, 1545-0723
Sec. 53.185....................... 1545-0023, 1545-0723
Sec. 53.186....................... 1545-0723
------------------------------------------------------------------------

SUBCHAPTERS D-E [RESERVED]

[[Page 226]]

SUBCHAPTER F_PROCEDURES AND PRACTICES

PART 70_PROCEDURE AND ADMINISTRATION--Table of Contents

Subpart A_Scope

Sec.
70.1 General.
70.2 Forms prescribed.
70.3 Delegations of the Administrator.

Subpart B_Definitions

70.11 Meaning of terms.

Subpart C_Discovery of Liability and Enforcement of Laws

Examination and Inspection

70.21 Canvass of regions for taxable persons and objects.
70.22 Examination of books and witnesses.
70.23 Service of summonses.
70.24 Enforcement of summonses.
70.25 Special procedures for third-party summonses.
70.26 Third-party recordkeepers.
70.27 Right to intervene; right to institute a proceeding to quash.
70.28 Summonses excepted from 26 U.S.C. 7609 procedures.
70.29 Suspension of statutes of limitation.
70.30 Time and place of examination.
70.31 Entry of premises for examination of taxable objects.
70.32 Examination of records and objects.
70.33 Authority of enforcement officers of the Bureau.
70.34 Listing by appropriate TTB officers of taxable objects owned by
nonresidents.

General Powers and Duties

70.40 Authority to administer oaths and certify.
70.41 Rewards for information relating to violations of tax laws
administered by the Bureau.
70.42 Returns prepared or executed by appropriate TTB officers.

Subpart D_Collection of Excise and Special (Occupational) Tax

Collection--General Provisions

70.51 Collection authority.
70.52 Signature presumed authentic.

Receipt of Payment

70.61 Payment by check or money order.
70.62 Fractional parts of a cent.
70.63 Computations on returns or other documents.
70.64 Receipt for taxes.
70.65 Use of commercial banks.

Assessment

70.71 Assessment authority.
70.72 Method of assessment.
70.73 Supplemental assessments.
70.74 Request for prompt assessment.
70.75 Jeopardy assessment of alcohol, tobacco, and firearms taxes.
70.76 Stay of collection of jeopardy assessment; bond to stay
collection.
70.77 Collection of jeopardy assessment; stay of sale of seized property
pending court decision.

Notice and Demand

70.81 Notice and demand for tax.
70.82 Payment on notice and demand.

Interest

70.90 Interest on underpayments.
70.91 Interest on erroneous refund recoverable by suit.
70.92 Interest on overpayments.
70.93 Interest rate.
70.94 Interest compounded daily.

Additions to the Tax, Additional Amounts, and Assessable Penalties

Additions to the Tax and Additional Amounts

70.95 Scope.
70.96 Failure to file tax return or to pay tax.
70.97 Failure to pay tax.
70.98 Penalty for underpayment of deposits.
70.100 Penalty for fraudulently claiming drawback.
70.101 Bad checks.
70.102 Coordination with title 11.
70.103 Failure to pay tax.

Assessable Penalties

70.111 Rules for application of assessable penalties.
70.112 Failure to collect and pay over tax, or attempt to evade or
defeat tax.
70.113 Penalty for failure to supply taxpayer identification number.
70.114 Penalties for aiding and abetting understatement of tax
liability.

Abatements, Credits and Refunds

Procedure in General

70.121 Amounts treated as overpayments.
70.122 Authority to make credits or refunds.
70.123 Claims for credit or refund.
70.124 Payments in excess of amounts shown on return.
70.125 Abatements.

[[Page 227]]

70.126 Date of allowance of refund or credit.
70.127 Overpayment of installment.

Rule of Special Application

70.131 Conditions to allowance.

Lien for Taxes

70.141 Lien for taxes.
70.142 Scope of definitions.
70.143 Definitions.
70.144 Special rules.
70.145 Purchasers, holders of security interests, mechanic's lienors,
and judgment lien creditors.
70.146 45-day period for making disbursements.
70.147 Priority of interest and expenses.
70.148 Place for filing notice; form.
70.149 Refiling of notice of tax lien.
70.150 Release of lien or discharge of property.
70.151 Administrative appeal of the erroneous filing of notice of
Federal tax lien.

Seizure of Property for Collection of Taxes

70.161 Levy and distraint.
70.162 Levy and distraint on salary and wages.
70.163 Surrender of property subject to levy.
70.164 Surrender of property subject to levy in the case of life
insurance and endowment contracts.
70.165 Production of books.
70.167 Authority to release levy and return property.
70.168 Redemption of property.
70.169 Expense of levy and sale.
70.170 Application of proceeds of levy.

Disposition of Property

70.181 Disposition of seized property.
70.182 Disposition of personal property acquired by the United States.
70.183 Administration and disposition of real estate acquired by the
United States.
70.184 Disposition of perishable goods.
70.185 Certificate of sale; deed of real property.
70.186 Legal effect of certificate of sale of personal property and deed
of real property.
70.187 Records of sale.
70.188 Expense of levy and sale.

Judicial Proceedings

Civil Action by the United States

70.191 Authorization.
70.192 Action to enforce lien or to subject property to payment of tax.
70.193 Disposition of judgments and moneys recovered.

Proceedings by Taxpayers and Third Parties

70.202 Intervention.
70.203 Discharge of liens; scope and application; judicial proceedings.
70.204 Discharge of liens; nonjudicial sales.
70.205 Discharge of liens; special rules.
70.206 Discharge of liens; redemption by United States.
70.207 Civil actions by persons other than taxpayers.
70.208 Review of jeopardy assessment or jeopardy levy procedures;
information to taxpayer.
70.209 Review of jeopardy assessment or levy procedures; administrative
review.
70.210 Review of jeopardy assessment or levy procedures; judicial
action.
70.213 Repayments to officers or employees.

Limitations

Limitations on Assessment and Collection

70.221 Period of limitations upon assessment.
70.222 Time return deemed filed for purposes of determining limitations.
70.223 Exceptions to general period of limitations on assessment and
collection.
70.224 Collection after assessment.
70.225 Suspension of running of period of limitation; assets of taxpayer
in control or custody of court.
70.226 Suspension of running of period of limitation; taxpayer outside
of United States.
70.227 Suspension of running of period of limitation; wrongful seizure
of property of third party.

Limitations on Liens

70.231 Protection for certain interests even though notice filed.
70.232 Protection for commercial transactions financing agreements.
70.233 Protection for real property construction or improvement
financing agreements.
70.234 Protection for obligatory disbursement agreements.

Limitations on Levies

70.241 Property exempt from levy.
70.242 Wages, salary and other income.
70.243 Exempt amount.
70.244 Payroll period.
70.245 Computation of exempt amount and payment of amounts not exempt
from levy to the appropriate TTB officer.

Periods of Limitation in Judicial Proceedings

70.251 Periods of limitation on suits by taxpayers.
70.252 Periods of limitation on suits by the United States.
70.253 Periods of limitation on suits by persons other than taxpayers.

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Limitations on Credit or Refund

70.261 Period of limitation on filing claim.
70.262 Limitations on allowance of credits and refunds.
70.263 Special rules applicable in case of extension of time by
agreement.
70.264 Time return deemed filed and tax considered paid.
70.265 Credits or refunds after period of limitation.
70.266 Credit against barred liability.

Transferees

70.271 Procedure in the case of transferred assets.

Bonds

70.281 Form of bond and security required.
70.282 Single bond in lieu of multiple bonds.

Miscellaneous Provisions

70.301 Reproduction of returns and other documents.
70.302 Fees and costs for witnesses.
70.303 Rules and regulations.
70.304 Place for filing documents other than returns.
70.305 Timely mailing treated as timely filing.
70.306 Time for performance of acts other than payment of tax or filing
of any return where last day falls on Saturday, Sunday, or
legal holiday.

General Provisions Relating to Stamps, Marks or Labels

70.311 Authority for establishment, alteration and distribution of
stamps, marks, or labels.

Registration

70.321 Registration of persons paying a special tax.

Crimes, Other Offenses, and Forfeitures

70.331 Fraudulent returns, statements, or other documents.
70.332 Unauthorized use or sale of stamps.
70.333 Offenses by officers and employees of the United States.

Subpart E_Procedural Rules Relating to Alcohol, Tobacco, Firearms, and
Explosives

Provisions Relating to Distilled Spirits, Wines, and Beer

70.411 Imposition of taxes, qualification requirements, and regulations.
70.412 Excise taxes.
70.413 Claims.
70.414 Preparation and filing of claims.
70.415 Offers in compromise.
70.416 Application for approval of interlocking directors and officers
under section 8 of the Federal Alcohol Administration Act.
70.417 Rulings.
70.418 Conferences.
70.419 Representatives.
70.420 Forms.

Provisions Relating to Tobacco Products, and Cigarette Papers and Tubes

70.431 Imposition of taxes; regulations.
70.432 Qualification and bonding requirements.
70.433 Collection of taxes.
70.434 Assessments.
70.435 Claims.
70.436 Offers in compromise.
70.437 Rulings.
70.438 Forms.

Provisions Relating to Firearms, Shells and Cartridges, and Explosives

70.441 Applicable laws.
70.442 Taxes relating to machine guns, destructive devices, and certain
other firearms.
70.443 Firearms and ammunition.
70.444 Importation of arms, ammunition, and implements of war.
70.445 Commerce in explosives.
70.446 Rulings.
70.447 Assessments.
70.448 Claims.
70.449 Offers in compromise.

Seized Property

70.450 Seizure and forfeiture of personal property.

Possessions

70.461 Shipments to the United States.
70.462 Shipments from the United States.

Rulings

70.471 Rulings.

Administrative Remedies

70.481 Agreements for payment of liability in installments.
70.482 Offers in compromise of liabilities (other than forfeiture) under
26 U.S.C.
70.483 Offers in compromise of violations of Federal Alcohol
Administration Act.
70.484 Offers in compromise of forfeiture liabilities.
70.485 Closing agreements.

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70.486 Managerial review.

Subpart F_Application of Section 6423, Internal Revenue Code of 1954, as
Amended, to Refund or Credit of Tax on Distilled Spirits, Wines, and
Beer

General

70.501 Meaning of terms.
70.502 Applicability to certain credits or refunds.
70.503 Ultimate burden.
70.504 Conditions to allowance of credit or refund.
70.505 Requirements on persons intending to file claim.

Claim Procedure

70.506 Execution and filing of claim.
70.507 Data to be shown in claim.
70.508 Time for filing claim.

Penalties

70.509 Penalties.

Subpart G_Losses Resulting From Disaster, Vandalism, or Malicious
Mischief

Definitions

70.601 Meaning of terms.

Payments

70.602 Circumstances under which payment may be made.

Claims Procedures

70.603 Execution and filing of claims.
70.604 Record of inventory to support claims.
70.605 Claims relating to imported, domestic, and Virgin Islands
liquors.
70.606 Claimant to furnish proof.
70.607 Supporting evidence.
70.608 Action on claims.

Destruction of Liquors

70.609 Supervision.

Penalties

70.610 Penalties.

Subpart H_Rules, Regulations and Forms

70.701 Rules and regulations.
70.702 Forms and instructions.

Subpart I_Disclosure

70.801 Publicity of information.
70.802 Rules for disclosure of certain specified matters.
70.803 Requests or demands for disclosure in testimony and in related
matters.

Authority: 5 U.S.C. 301 and 552; 26 U.S.C. 4181, 4182, 5146, 5203,
5207, 5275, 5367, 5415, 5504, 5555, 5684(a), 5741, 5761(b), 5802, 6020,
6021, 6064, 6102, 6155, 6159, 6201, 6203, 6204, 6301, 6303, 6311, 6313,
6314, 6321, 6323, 6325, 6326, 6331-6343, 6401-6404, 6407, 6416, 6423,
6501-6503, 6511, 6513, 6514, 6532, 6601, 6602, 6611, 6621, 6622, 6651,
6653, 6656-6658, 6665, 6671, 6672, 6701, 6723, 6801, 6862, 6863, 6901,
7011, 7101, 7102, 7121, 7122, 7207, 7209, 7214, 7304, 7401, 7403, 7406,
7423, 7424, 7425, 7426, 7429, 7430, 7432, 7502, 7503, 7505, 7506, 7513,
7601-7606, 7608-7610, 7622, 7623, 7653, 7805.

Source: T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, unless otherwise
noted.

Editorial Note: Nomenclature changes to part 70 appear by T.D. ATF-
450, 66 FR 29022-29030, May 29, 2001.

Subpart A_Scope

Sec. 70.1 General.

(a) The regulations in Subparts C, D, and E of this part set forth
the procedural and administrative rules of the Alcohol and Tobacco Tax
and Trade Bureau for:
(1) The issuance and enforcement of summonses, examination of books
of account and witnesses, administration of oaths, entry of premises for
examination of taxable objects, granting of rewards for information,
canvass of regions for taxable objects and persons, and authority of TTB
officers.
(2) The use of commercial banks for payment of excise taxes imposed
by 26 U.S.C. Subtitles E and F.
(3) The preparing or executing of returns; deposits; payment on
notice and demand; assessment; abatements, credits and refunds;
limitations on assessment; limitations on credit or refund; periods of
limitation in judicial proceedings; interest; additions to tax,
additional amounts, and assessable penalties; enforced collection
activities; authority for establishment, alteration, and distribution of
stamps, marks, or labels; jeopardy assessment of alcohol, tobacco, and
firearms taxes, and registration of persons paying a special tax.
(4) Distilled spirits, wines, beer, tobacco products, cigarette
papers and tubes, firearms, ammunition, and explosives.
(b) The regulations in Subpart F of this part relate to the
limitations imposed by 26 U.S.C. 6423, on the refund or

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credit of tax paid or collected in respect to any article of a kind
subject to a tax imposed by Part I, Subchapter A of Chapter 51, I.R.C.,
or by any corresponding provision of prior internal revenue laws.
(c) The regulations in Subpart G of this part implement 26 U.S.C.
5064, which permits payments to be made by the United States for amounts
equal to the internal revenue taxes paid or determined and customs
duties paid on distilled spirits, wines, and beer, previously withdrawn,
that were lost, made unmarketable, or condemned by a duly authorized
official as a result of disaster, vandalism, or malicious mischief. This
subpart applies to disasters or other specified causes of loss,
occurring on or after February 1, 1979. This subpart does not apply to
distilled spirits, wines, and beer manufactured in Puerto Rico and
brought into the United States.

[T.D. ATF-376, 61 FR 31031, June 19, 1996, as amended by T.D. TTB-44, 71
FR 16958, Apr. 4, 2006]

Sec. 70.2 Forms prescribed.

(a) The appropriate TTB officer is authorized to prescribe all forms
required by this part. All of the information called for in each form
shall be furnished as indicated by the headings on the form and the
instructions on or pertaining to the form. In addition, information
called for in each form shall be furnished as required by this part. The
form will be filed in accordance with the instructions for the form.
(b) Forms prescribed by this part are available for printing through
the TTB Web site (http://www.ttb.gov) or by mailing a request to the
Alcohol and Tobacco Tax and Trade Bureau, National Revenue Center, 550
Main Street, Room 1516, Cincinnati, OH 45202.

[T.D. ATF-376, 61 FR 31031, June 19, 1996, as amended by T.D. ATF-450,
66 FR 29022, May 29, 2001; T.D. TTB-44, 71 FR 16959, Apr. 4, 2006]

Sec. 70.3 Delegations of the Administrator.

Most of the regulatory authorities of the Administrator contained in
this part are delegated to appropriate TTB officers. These TTB officers
are specified in TTB Order 1135.70, Delegation of the Administrator's
Authorities in 27 CFR Part 70, Procedure and Administration. You may
obtain a copy of this order by accessing the TTB Web site ( http://
www.ttb.gov) or by mailing a request to the Alcohol and Tobacco Tax and
Trade Bureau, National Revenue Center, 550 Main Street, Room 1516,
Cincinnati, OH 45202.

[T.D. TTB-44, 71 FR 16959, Apr. 4, 2006]

Subpart B_Definitions

Sec. 70.11 Meaning of terms.

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Electronic fund transfer or EFT. Any transfer of funds effected by a
taxpayer's commercial bank, either directly or through a correspondent
banking relationship, via the Federal Reserve Communications System
(FRCS) or Fedwire to the Treasury Account at the Federal Reserve Bank of
New York.
Enforced collection. Collection of taxes when a taxpayer neglects or
refuses to pay voluntarily. Includes such administrative measures as
liens and levies.
Levy. The taking of property by seizure and sale or by collection of
money due to the debtor, such as wages.
Lien. A charge upon real or personal property for the satisfaction
of some debt or performance of an obligation.
Person. An individual, a trust, estate, partnership, association or
other unincorporated organization, fiduciary, company, or corporation,
or the District of Columbia, a State, or a political subdivision thereof
(including a city, county, or other municipality).
Provisions of 26 U.S.C. enforced and administered by the Bureau.
Sections 4181 and 4182 of the Internal Revenue Code of 1986 (the Code),
as amended; subchapters F and G of chapter 32 of the Code, insofar as
they relate to activities administered and enforced with respect to
sections 4181 and 4182 of the Code; subtitle E of the Code; and subtitle
F of the Code as it relates to any of the foregoing.
Secretary. The Secretary of the Treasury or designated delegate.
Seizure. The act of taking possession of property to satisfy a tax
liability or by virtue of an execution.
Treasury Account. The Department of the Treasury's General Account
at the Federal Reserve Bank of New York.
U.S.C. The United States Code.

(Aug. 16, 1954, Ch. 736, 68A Stat. 775 (26 U.S.C. 6301); June 29, 1956,
Ch. 462, 70 Stat. 391 (26 U.S.C. 6301))

[T.D. ATF-48, 43 FR 13535, Mar. 31, 1978; 44 FR 55841, Sept. 28,979, as
amended by T.D. ATF-77, 46 FR 3002, Jan. 13, 1981; T.D. ATF-301, 55 FR
47608, Nov. 14, 1990; T.D. ATF-331, 57 FR 40327, Sept. 3, 1992; T.D.
ATF-378, 61 FR 29955, June 13, 1996; T.D. ATF-450, 66 FR 29022, May 29,
2001; T.D. TTB-44, 71 FR 16959, Apr. 4, 2006]

Subpart C_Discovery of Liability and Enforcement of Laws

Examination and Inspection

Sec. 70.21 Canvass of regions for taxable persons and objects.

Each appropriate TTB officer shall, to the extent deemed
practicable, cause officers or employees under the appropriate TTB
officer's supervision and control to proceed, from time to time, and
inquire after and concerning all persons therein who may be liable to
pay any tax, imposed under provisions of 26 U.S.C. enforced and
administered by the Bureau, and all persons owning or having the care
and management of any objects with respect to which such tax is imposed.

[T.D. ATF-331, 57 FR 40327, Sept. 3, 1992, as amended by T.D. ATF-450,
66 FR 29023, May 29, 2001]

Sec. 70.22 Examination of books and witnesses.

(a) In general. For the purpose of ascertaining the correctness of
any return, making a return where none has been made, determining the
liability of any person for any tax imposed under provisions of 26
U.S.C. enforced and administered by the Bureau (including any interest,
additional amount, addition to the tax, or civil penalty) or the
liability at law or in equity of any transferee or fiduciary of any
person in respect of any such tax, or collecting any such liability, any
appropriate TTB officer may examine any books, papers, records or other
data which may be relevant or material to such inquiry; and take such
testimony of the person concerned, under oath, as may be relevant to
such inquiry.
(b) Summonses. For the purposes described in paragraph (a) of this
section the appropriate TTB officersare authorized to summon the person
liable for tax or required to perform the act, or any officer or
employee of such person, or any person having possession, custody, or
care of books of accounts containing entries relating to the business of
the person liable for tax or required to perform the act, or any person
deemed proper, to appear before a designated officer or employee of the
Bureau at a time and place named in

[[Page 232]]

the summons and to produce such books, papers, records, or other data,
and to give such testimony, under oath, as may be relevant or material
to such inquiry; and take such testimony of the person concerned, under
oath, as may be relevant or material to such inquiry. Such TTB officer
may designate an appropriate TTB officer as the individual before whom a
person summoned pursuant to 26 U.S.C. 7602 shall appear. Any such
officer, when so designated in a summons, is authorized to take
testimony under oath of the person summoned and to receive and examine
books, papers, records, or other data produced in compliance with the
summons. The authority to issue a summons may not be redelegated. See
Sec. 70.302 of this part for rules concerning payments to certain
persons who are summoned to give information to the Bureau under 26
U.S.C. 7602 and this section.

(Aug. 16, 1954, Chapter 736, 68A Stat. 901; (26 U.S.C. 7602))

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, as amended by T.D. ATF-42, 42
FR 8367, Feb. 10, 1977; T.D. ATF-301, 55 FR 47608, Nov. 14, 1990; T.D.
ATF-331, 57 FR 40328, Sept. 3, 1992; T.D. ATF-450, 66 FR 29023, May 29,
2001]

Sec. 70.23 Service of summonses.

(a) In general. A summons issued under 26 U.S.C. 7602 shall be
served by an attested copy delivered in hand to the person to whom it is
directed, or left at his last and usual place of abode. The certificate
of service signed by the person serving the summons shall be evidence of
the facts it states on the hearing of an application for the enforcement
of the summons. When the summons requires the production of books,
papers, records, or other data, it shall be sufficient if such books,
papers, records, or other data are described with reasonable certainty.
(b) Persons who may serve summonses. Any appropriate TTB officer may
serve a summons issued under 26 U.S.C. 7602.

(68A Stat. 902, as amended (26 U.S.C. 7603); 26 U.S.C. 7805 (68A Stat.
917), 27 U.S.C. 205 (49 Stat. 981 as amended), 18 U.S.C. 926 (82 Stat.
959), and sec. 38, Arms Export Control Act (22 U.S.C. 2778, 90 Stat.
744), 27 U.S.C. 205, 22 U.S.C. 2778, 26 U.S.C. 7602, and 5 U.S.C. 301)

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, as amended by T.D. ATF-48, 43
FR 13531, Mar. 31, 1978; T.D. ATF-201, 50 FR 12533, Mar. 29, 1985; T.D.
ATF-249, 52 FR 5961, Feb. 27, 1987; T.D. ATF-301, 55 FR 47608, Nov. 14,
1990; T.D. ATF-450, 66 FR 29023, May 29, 2001]

Sec. 70.24 Enforcement of summonses.

(a) In general. Whenever any person summoned under 26 U.S.C. 7602
neglects or refuses to obey such summons, or to produce books, papers,
records, or other data, or to give testimony, as required, application
may be made to the judge of the district court or to a U.S. magistrate
for the district within which the person so summoned resides or is found
for an attachment against him as for a contempt.
(b) Persons who may apply for an attachment. Appropriate TTB
officers are authorized to apply for an attachment as provided in
paragraph (a) of this section. The authority to apply for an attachment
for the enforcement of a summons may not be redelegated.

(68A Stat. 902, as amended (26 U.S.C. 7604))

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973; 38 FR 33767, Dec. 7, 1973, as
amended by T.D. ATF-450, 66 FR 29023, May 29, 2001]

Sec. 70.25 Special procedures for third-party summonses.

(a) When the Bureau summons the records of persons defined by 26
U.S.C. 7609(a)(3) as ``third-party recordkeepers'', the person about
whom information is being gathered must be notified in advance, except
when:
(1) The summons is served on the person about whom information is
being gathered, or any officer or employee of such person, or
(2) The summons is served to determine whether or not records of the
business transactions or affairs of an identified person have been made
or kept, or

[[Page 233]]

(3) The summons does not identify the person with respect to whose
liability the summons is issued (a ``John Doe'' summons issued under the
provisions of 26 U.S.C. 7609(f)), or
(4) The appropriate TTB officer petitions, and the court determines,
on the basis of the facts and circumstances alleged, that there is
reasonable cause to believe the giving of notice may lead to attempts to
conceal, destroy, or alter records relevant to the examination, to
prevent the communication of information from other persons through
intimidation, bribery, or collusion, or to flee to avoid prosecution,
testifying or production of records.
(b) Within 3 days of the day on which the summons was served, the
notice required by paragraph (a) of this section shall be served upon
the person entitled to notice, or mailed by certified or registered mail
to the last known address of such person, or, in the absence of a last
known address, left with the person summoned. No examination of any
records required to be produced under a summons as to which notice is
required under paragraph (a) of this section may be made:
(1) Before the close of the 23rd day after the day notice with
respect to the summons is given in the manner provided in this
paragraph, or
(2) Where a proceeding under paragraph (c) of this section was begun
within the 20-day period referred to in that paragraph and the
requirements of paragraph (c) of this section have been met, expect in
accordance with an order of the court having jurisdiction of such
proceeding or with the consent of the person beginning the proceeding to
quash.
(c) If the person about whom information is being gathered has been
given notice, that person has the right to institute, until and
including the 20th day following the day such notice was served on or
mailed, by certified or registered mail, to such notified person, a
proceeding to quash the summons. During the time the validity of the
summons is being litigated, the statutes of limitation are suspended
under 26 U.S.C. 7609(e). Title 26 U.S.C. 7609 does not restrict the
authority under 26 U.S.C. 7602 (or under any other provision of law) to
examine records and witnesses without serving a summons and without
giving notice of an examination.

(26 U.S.C. 7609)

[T.D. ATF-301, 55 FR 47608, Nov. 14, 1990]

Sec. 70.26 Third-party recordkeepers.

(a) Definitions--(1) Accountant. A person is an ``accountant'' under
26 U.S.C. 7609(a)(3)(F) for purposes of determining whether that person
is a third-party recordkeeper if the person is registered, licensed, or
certified under State law as an accountant.
(2) Attorney. A person is an ``attorney'' under 26 U.S.C.
7609(a)(3)(E) for purposes of determining whether that person is a
third-party recordkeeper if the person is admitted to the bar of a State
or the District of Columbia.
(3) Credit cards--(i) Person extending credit through credit cards.
The term ``person extending credit through credit cards or similar
devices'' under 26 U.S.C. 7609(a)(3)(C) generally includes any person
who issues a credit card. It does not include a seller of goods or
services that honors credit cards issued by other parties but does not
extend credit on the basis of credit cards or similar devices issued by
itself.
(ii) [Reserved]
(iii) Similar devices to credit cards. An object is a ``similar
device'' to a credit card under 26 U.S.C. 7609(a)(3)(C) only if it is
physical in nature, such as a coupon book, a charge plate, or a letter
of credit. Thus, a person who extends credit by requiring credit
customers to sign sales slips without requiring use of physical objects
issued by that person is not a third-party recordkeeper under 26 U.S.C.
7609(a)(3)(C).
(b) When third-party recordkeeper status arises. A person is a
``third-party recordkeeper'' with respect to a given set of records only
if the person made or kept the records in the person's capacity as a
third-party recordkeeper. Thus, for instance, an accountant is not a
third-party recordkeeper (by reason of being an accountant) with respect
to the accountant's records of a sale of property by the accountant to
another person. Similarly, a credit card issuer is not a third-party
recordkeeper (by reason of being a person extending credit through the
use of credit

[[Page 234]]

cards or similar devices) with respect to:
(1) Records relating to noncredit card transactions, such as a cash
sale by the issuer to a holder of the issuer's credit card; or
(2) Records relating to transactions involving the use of another
issuer's credit card.
(c) Duty of third-party recordkeeper--(1) In General. Upon receipt
of a summons, the third-party recordkeeper (``recordkeeper'') must begin
to assemble the summoned records. The recordkeeper must be prepared to
produce the summoned records on the date which the summons states the
records are to be examined regardless of the institution or anticipated
institution of a proceeding to quash or the recordkeeper's intervention
(as allowed under 26 U.S.C. 7609(a)(3)(C)) into a proceeding to quash.
(2) Disclosing recordkeepers not liable-- (i) In general. A
recordkeeper, or an agent or employee thereof, who makes a disclosure of
records as required by this section, in good faith reliance on the
``Certificate of the Secretary'' (as defined in paragraph (c)(2)(ii) of
this section) or an order of a court requiring production of records,
will not be liable for such disclosure to any customer, or to any party
with respect to whose tax liability the summons was issued, or to any
other person.
(ii) Certificate of the Secretary. The appropriate TTB officer may
issue to the recordkeeper a ``Certificate of the Secretary'' stating
both:
(A) That the 20-day period, within which a notified person may
institute a proceeding to quash the summons has expired; and
(B) That no proceeding has been properly instituted within that
period.

The appropriate TTB officer may also issue a ``Certificate of the
Secretary'' to the recordkeeper if the taxpayer, with respect to whose
tax liability the summons was issued, expressly consents to the
examination of the records summoned.
(3) Reimbursement of costs. Recordkeepers may be entitled to
reimbursement of their costs of assembling and preparing to produce
summoned records, to the extent allowed by 26 U.S.C. 7610, even if the
summons ultimately is not enforced.

(26 U.S.C. 7609)

[T.D. ATF-301, 55 FR 47608, Nov. 14, 1990]

Sec. 70.27 Right to intervene; right to institute a proceeding to quash.

(a) Notified person. Under 26 U.S.C. 7609(a), the Bureau must give a
notice of summons to any person, other than the person summoned, who is
identified in the description of the books and records contained in the
summons in order that such person may contest the right of the Bureau to
examine the summoned records by instituting a proceeding to quash the
summons. Thus, if the Bureau issues a summons to a bank requesting
checking account records of more than one person all of whom are
identified in the description of the records contained in the summons,
then all such persons are notified persons entitled to notice under 26
U.S.C. 7609(a). Therefore, if the Bureau requests the records of a joint
bank account of A and B, both of whom are named in the summons, then
both A and B are notified persons entitled to notice under 26 U.S.C.
7609(a).
(b) Right to institute a proceeding to quash--(1) In general. Title
26 U.S.C. 7609(b) grants a notified person the right to institute a
proceeding to quash the summons in the United States district court for
the district within which the person summoned resides or is found.
Jurisdiction of the court is based on 26 U.S.C. 7609(b). The act of
filing a petition in district court does not in and of itself institute
a proceeding to quash under 26 U.S.C. 7609(b)(2). Rather, the filing of
the petition must be coupled with notice as required by 26 U.S.C.
7609(b)(2)(B).
(2) Elements of institution of a proceeding to quash. In order to
institute a proceeding to quash a summons, the notified person (or the
notified person's agent, nominee, or other person acting under the
direction or control of the notified person) must, not later than the
20th day following the day the notice of the summons was served on or
mailed to such notified person:
(i) File a petition to quash in the name of the notified person in a
district court having jurisdiction.

[[Page 235]]

(ii) Notify the Bureau by sending a copy of that petition by
registered or certified mail to the Bureau employee and office
designated to receive the copy in the notice of summons that was given
to the notified person, and
(iii) Notify the recordkeeper by sending to that recordkeeper by
registered or certified mail a copy of the petition.

Failure to give timely notice to either the summoned party or the Bureau
in the manner described in this paragraph means that the notified person
has failed to institute a proceeding to quash and the district court has
no jurisdiction to hear the proceeding. Thus, for example, if the
notified person mails a copy of the petition to the summoned person but
not to the designated Bureau employee and office, the notified person
has failed to institute a proceeding to quash. Similarly, if the
notified person mails a copy of such petition to the summoned person,
but instead of sending a copy of the petition by registered or certified
mail to the designated employee and office, the notified person gives
the designated employee and office the petition by some other means, the
notified person has failed to institute a proceeding to quash.
(3) Failure to institute a proceeding to quash. If the notified
person fails to institute a proceeding to quash within 20 days following
the day the notice was served on or mailed to such notified person, the
Bureau may examine the summoned records following the 23rd day after
notice of the summons was served on or mailed to the notified person
(see 26 U.S.C. 7609(d)(1)).
(c) Presumption no notice has been mailed. Title 26 U.S.C.
7609(b)(2)(B) permits a notified person to institute a proceeding to
quash by filing a petition in district court and notifying both the
Bureau and the summoned person. Unless the notified person has notified
both the Bureau and the summoned person in the appropriate manner, the
notified person has failed to institute a proceeding to quash. If the
copy of the petition has not been delivered to the summoned person or
the person and office designated to receive the notice on behalf of the
Bureau within 3 days from the close of the 20-day period allowed to
institute a proceeding to quash, it is presumed that the notification
has not been timely mailed.

(26 U.S.C. 7609)

[T.D. ATF-301, 55 FR 47609, Nov. 14, 1990]

Sec. 70.28 Summonses excepted from 26 U.S.C. 7609 procedures.

(a) In aid of the collection of certain liabilities--(1) In general.
Title 26 U.S.C. 7609(c)(2)(B) contains an exception to the general
notice requirement when a summons is issued to a third-party
recordkeeper. That section excepts summonses issued in aid of the
collection of the liability of any person against whom an assessment has
been made or judgment rendered or the liability at law or in equity of
any transferee of such a person.
(2) Examples. Examples of summonses referred to in paragraph (a)(1)
of this section are:
(i) Summonses issued to determine the amount held in a bank in the
name of a person against whom an assessment has been made or judgment
rendered;
(ii) Summonses issued to enforce transferee liability for a tax
which has been assessed.
(b) Numbered account (or similar arrangement). Under 26 U.S.C.
7609(c)(2), a summons issued solely to determine the identity of a
person having a numbered account (or similar arrangement) with a bank or
other institution is excepted from the requirements of 26 U.S.C. 7609. A
``numbered account (or similar arrangement)'' under 26 U.S.C. 7609(c)(2)
is an account through which a person may authorize transactions solely
through the use of a number, symbol, code name, or other device not
involving the disclosure of the person's identity. A ``person having a
numbered account (or similar arrangement)'' includes the person who
opened the account and any person authorized to use the account or to
receive records or statements concerning it.

(26 U.S.C. 7609)

[T.D. ATF-301, 55 FR 47610, Nov. 14, 1990]

Sec. 70.29 Suspension of statutes of limitations.

(a) Suspension while a proceeding under 26 U.S.C. 7609(b) is
pending. Under

[[Page 236]]

26 U.S.C. 7609(e)(1), the statutes of limitations of 26 U.S.C. 6501 and
6531 are suspended if a notified person with respect to whose liability
a summons is issued, or the notified person's agent, nominee, or other
person acting under the direction or control of the notified person,
takes any action as provided in 26 U.S.C. 7609(b).
(1) Agent, nominee, etc. A person is a notified person's agent,
nominee, or other person acting under the direction or control of a
notified person for purposes of 26 U.S.C. 7609(e) if the person with
respect to whose liability the summons is issued has the ability in fact
or at law to cause the agent, etc., to take the actions permitted under
26 U.S.C. 7609(b). Thus, in the case of a corporation, direction or
control by the notified person may exist even though less than 50
percent of the voting power of the corporation is held by the notified
person.
(2) Period during which a proceeding, etc., is pending. Under 26
U.S.C. 7609(e), the statute of limitations shall be suspended for the
period during which a proceeding and any appeals regarding the
enforcement of such summons is pending. This period begins on the date
the petition to quash the summons is filed in district court. The period
continues until all appeals are disposed of, or until the expiration of
the period in which an appeal may be taken or a request for a rehearing
may be made. Full compliance, partial compliance, and noncompliance have
no effect on the suspension provisions. The periods of limitations which
are suspended under 26 U.S.C. 7609(e) are those which apply to the
taxable periods to which the summons relates.
(3) Taking of action as provided in 26 U.S.C. 7609(b). Title 26
U.S.C. 7609(b) allows intervention by a notified person as a matter of
right upon compliance with the Federal Rules of Civil Procedure. The
phrase ``takes any action as provided in subsection (b)'', found in 26
U.S.C. 7609(e), includes any intervention whether or not 26 U.S.C.
7609(b) is specifically mentioned in the order of the court allowing
intervention. The phrase also includes the fulfilling of only part of
the requirements of 26 U.S.C. 7609(b)(2), relating to the right of a
person to institute a proceeding to quash. Thus, for instance, if a
notified person notifies a person who has been summoned by sending a
copy of the petition by registered or certified mail but does not mail a
copy of that notice to the appropriate person and office under 26 U.S.C.
7609(b)(2)(B), the notified person has taken an action under 26 U.S.C.
7609(e).
(b) Suspension after 6 months of service of summons. In the absence
of the resolution of the third-party recordkeeper's response to the
summons described in 26 U.S.C. 7609(c) or the summoned party's response
to a summons described in 26 U.S.C. 7609(f) the running of any period of
limitations under 26 U.S.C. 6501 or under 26 U.S.C. 6531 with respect to
any person with respect to whose liability the summons is issued (other
than a person taking action as provided in 26 U.S.C. 7609(b)) shall be
suspended for the period:
(1) Beginning on the date which is 6 months after the service of
such summons, and
(2) Ending with the final resolution of such response.

(26 U.S.C. 7609)

[T.D. ATF-301, 55 FR 47610, Nov. 14, 1990]

Sec. 70.30 Time and place of examination.

(a) Time and place. The time and place of examination pursuant to
the provisions of 26 U.S.C. 7602 must be such time and place as may be
fixed by an appropriate TTB officer and as are reasonable under the
circumstances. The date fixed for appearance shall not be less than 10
days from the date of the summons.
(b) Restrictions on examination of taxpayer. No taxpayer is to be
subjected to unnecessary examination or investigations, and only one
inspection of a taxpayer's books of account shall be made for each
taxable year unless the taxpayer requests otherwise or unless an
authorized internal revenue or an appropriate TTB officer, after
investigation, notifies the taxpayer in writing that an additional
inspection is necessary.

(68A Stat. 902, as amended (26 U.S.C. 7605))

[T.D. ATF-450, 66 FR 29023, May 29, 2001]

[[Page 237]]

Sec. 70.31 Entry of premises for examination of taxable objects.

(a) General. An appropriate TTB officer may, in the performance of
his or her duty, enter in the daytime any building or place where any
articles or objects subject to tax are made, produced, or kept, so far
as it may be necessary for the purpose of examining said articles or
objects and also enter at night any such building or place, while open,
for a similar purpose.
(b) Distilled spirits plants. Any appropriate TTB officer may, at
all times, as well by night as by day, enter any plant or any other
premises where distilled spirits are produced or rectified, or structure
or place used in connection therewith for storage or other purposes; to
make examination of the materials, equipment and facilities thereon; and
make such gauges and inventories as such officer deems necessary.
Whenever any appropriate TTB officer, having demanded admittance, and
having declared his or her name and office, is not admitted to such
premises by the proprietor or other person having charge thereof, such
officer may at all times, use such force as is necessary for such
officer to gain entry to such premises.
(c) Authority to break up grounds. An appropriate TTB officer, and
any person acting in his or her aid, may break up the ground on any part
of a distilled spirits plant, or any other premises where spirits are
produced or rectified, or any ground adjoining or near to such plant or
premises, or any wall or partition thereof, or belonging thereto, or
other place, to search for any pipe, cock, private conveyance, or
utensil; and, upon finding any such pipe or conveyance leading therefrom
or thereto, to break up any ground, house, wall, or other place through
or into which such pipe or other conveyance leads, and to break or cut
away such pipe or other conveyance, and turn any cock, or to determine
whether such pipe or other conveyance conveys or conceals any spirits,
mash, wort, or beer, or other liquor, from the sight or view of the
appropriate TTB officer, so as to prevent or hinder such officer from
taking a true account thereof.

(68A Stat. 903, 72 Stat. 1357 (26 U.S.C. 7606, 5203))

[T.D. ATF-450, 66 FR 29023, May 29, 2001]

Sec. 70.32 Examination of records and objects.

Any appropriate TTB officer may enter, during business hours, the
premises of any regulated establishment for the purpose of inspecting
and examining any records, articles, or other objects required to be
kept by such establishment under 18 U.S.C. chapter 40 or 44, or
provisions of 26 U.S.C. enforced and administered by the Bureau, or
regulations issued pursuant thereto.

(68A Stat. 715, as amended, 903, 72 Stat. 1348, 1361, 1373, 1381, 1390,
1391, 1395, 82 Stat. 231, as amended, 84 Stat. 955; (26 U.S.C. 5741,
7606, 5146, 5207, 5275, 5367, 5415, 5504, 5555, 18 U.S.C. 923, 843))

[T.D. ATF-331, 57 FR 40328, Sept. 3, 1992, as amended by T.D. ATF-450,
66 FR 29023, May 29, 2001]

Sec. 70.33 Authority of enforcement officers of the Bureau.

Appropriate TTB officers may perform the following functions:
(a) Carry firearms;
(b) Execute and serve search warrants and arrest warrants, and serve
subpoenas and summonses issued under authority of the United States;
(c) In respect to the performance of such duty, make arrests without
warrant for any offense against the United States committed in his
presence, or for any felony cognizable under the laws of the United
States if he has reasonable grounds to believe that the person to be
arrested has committed, or is committing, such felony; and
(d) In respect to the performance of such duty, make seizures of
property

[[Page 238]]

subject to forfeiture to the United States.

(53 Stat. 1291, 62 Stat. 840, 68 Stat. 848, as amended, 72 Stat. 1429,
as amended, 82 Stat. 233, as amended, 84 Stat. 956 (49 U.S.C. 782, 18
U.S.C. 3615, 22 U.S.C. 1934, 26 U.S.C. 7608, 18 U.S.C. 924, 844); 26
U.S.C. 7805 (68A Stat. 917), 27 U.S.C. 205 (49 Stat. 981 as amended), 18
U.S.C. 926 (82 Stat. 959), and sec. 38, Arms Export Control Act (22
U.S.C. 2778, 90 Stat. 744))

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, as amended by T.D. ATF-48, 43
FR 13531, Mar. 31, 1978. Redesignated by T.D. ATF-301, 55 FR 47606, Nov.
14, 1990; T.D. ATF-450, 66 FR 29023, May 29, 2001]

Sec. 70.34 Listing by appropriate TTB officers of taxable objects owned by

nonresidents.

Whenever there are any articles in any internal revenue district
subject to tax, which are not owned or possessed by, or under the care
or control of, any person within such district, and of which no list has
been transmitted to the appropriate TTB officer, as required by law or
by regulations prescribed pursuant to law, an appropriate TTB officer
shall enter the premises where such articles are situated, make such
inspection of the articles as may be necessary, and make lists of the
same according to the forms prescribed. Such lists, being subscribed by
the appropriate TTB officer, are sufficient lists of such articles for
all purposes.

[T.D. ATF-450, 66 FR 29023, May 29, 2001]

General Powers and Duties

Sec. 70.40 Authority to administer oaths and certify.

Appropriate TTB officers are authorized to administer such oaths or
affirmations and to certify to such papers as may be necessary under the
tax laws administered by the Bureau, the Federal Alcohol Administration
Act, or regulations issued thereunder, except that the authority to
certify must not be construed as applying to those papers or documents
the certification of which is authorized by separate order or directive.

(68A Stat. 904 (26 U.S.C. 7622))

[T.D. ATF-450, 66 FR 29023, May 29, 2001]

Sec. 70.41 Rewards for information relating to violations of tax laws

administered by the Bureau.

(a) In general. An appropriate TTB officer may approve such reward
as he or she deems suitable for information that leads to the detection
and punishment of any person guilty of violating any tax law
administered by the Bureau or conniving at the same. The rewards
provided for by 26 U.S.C. 7623 are limited in their aggregate to the sum
appropriated therefor and shall be paid only in cases not otherwise
provided for by law.
(b) Eligibility to file claim for reward--(1) In general. Any
person, other than certain present or former federal employees (see
paragraph (b)(2) of this section), who submits, in the manner set forth
in paragraph (d) of this section, information relating to the violation
of tax laws administered and enforced by the Bureau, is eligible to file
a claim for reward under 26 U.S.C. 7623.
(2) Federal employees. No person who was an officer or employee of
the Department of the Treasury at the time he came into possession of
information relating to violations of tax laws administered by the
Bureau, or at the time he divulged such information, shall be eligible
for reward under 26 U.S.C. 7623 and this section. Any other federal
employee, or former federal employee, is eligible to file a claim for
reward if the information submitted came to his knowledge other than in
the course of his official duties.
(3) Deceased informants. A claim for reward may be filed by an
executor, administrator, or other legal representative on behalf of a
deceased informant if, prior to his death, the informant was eligible to
file a claim for such reward under 26 U.S.C. 7623 and this section.
Certified copies of the letters testamentary, letters of administration,
or other similar evidence must be annexed to such a claim for reward on
behalf of a deceased informant in order to show the authority of the
legal representative to file the claim for reward.
(c) Amount and payment of reward. All relevant factors, including
the value of the information furnished in relation to the facts
developed by the investigation of the violation, must be taken

[[Page 239]]

into account in determining whether a reward must be paid, and, if so,
the amount thereof. The amount of a reward shall represent what the
appropriate TTB officer deems to be adequate compensation in the
particular case, normally not to exceed 10 percent of the additional
taxes, penalties, and fines which are recovered as a result of the
information. No reward, however, shall be paid with respect to any
additional interest that may be collected. Payment of a reward will be
made as promptly as the circumstances of the case permit, but generally
not until the taxes, penalties, or fines involved have been collected.
However, the informant may waive any claim for reward with respect to an
uncollected portion of the taxes, penalties, or fines involved, in which
case the claim may be immediately processed. No person is authorized
under these regulations to make any offer, or promise, or otherwise to
bind the appropriate TTB officer with respect to the payment of any
reward or the amount thereof.
(d) Submission of information. Persons desiring to claim rewards
under the provisions of 26 U.S.C. 7623 and this section may submit
information relating to violations of tax laws administered by the
Bureau to an appropriate TTB officer. If the information is submitted in
person, either orally or in writing, the name and official title of the
person to whom it is submitted and the date on which it is submitted
must be included in the formal claim for reward.
(e) Anonymity. No unauthorized person shall be advised of the
identity of an informant.
(f) Filing claim for reward. An informant who intends to claim a
reward under 26 U.S.C. 7623 should notify the person to whom he submits
his information of such intention, and must file a formal claim, signed
with his true name, as soon after submission of the information as
practicable. If other than the informant's true name was used in
furnishing the information, the claimant must include with his claim
satisfactory proof of his identity as that of the informant. Claim for
reward under the provisions of 26 U.S.C. 7623 must be made on TTB Form
3200.13. TTB Form 3200.13 should be obtained from the office where the
information is filed.

(68A Stat. 904 (26 U.S.C. 7623); 26 U.S.C. 7805 (68A Stat. 917), 27
U.S.C. 205 (49 Stat. 981 as amended), 18 U.S.C. 926 (82 Stat. 959), and
sec. 38, Arms Export Control Act (22 U.S.C. 2778, 90 Stat. 744))

[T.D. ATF-6, 38 FR 32445, Nov. 26, 1973, as amended by T.D. ATF-48, 43
FR 13531, Mar. 31, 1978; 44 FR 55841, Sept. 28, 1979. Redesignated by
T.D. ATF-301, 55 FR 47606, Nov. 14, 1990; T.D. ATF-312, 56 FR 31085,
July 9, 1991; T.D. ATF-450, 66 FR 29024, May 29, 2001]

Sec. 70.42 Returns prepared or executed by appropriate TTB officers.

(a) Preparation of returns--(1) General. If any person, required by
provisions of 26 U.S.C. enforced and administered by the Bureau or by
the regulations prescribed thereunder to make a return, fails to make
such return, it may be prepared by an appropriate TTB officer provided
the person required to make the return consents to disclose all
information necessary for the preparation of such return. The return
upon being signed by the person required to make it must be received by
the appropriate TTB officer, as the return of such person.
(2) Responsibility of person for whom return is prepared. A person
for whom a return is prepared in accordance with paragraph (a)(1) of
this section shall for all legal purposes remain responsible for the
correctness of the return to the same extent as if the return had been
prepared by such person.
(b) Execution of returns--(1) General. If any person, required by
provisions of 26 U.S.C. enforced and administered by the Bureau or by
the regulations prescribed thereunder to make a return, fails to make a
return at the time prescribed therefor, or makes, willfully or
otherwise, a false or fraudulent return, the appropriate TTB officer
must make such return from such officer's own knowledge and from such
information as the officer can obtain through testimony or otherwise.
(2) Status of returns. Any return made in accordance with paragraph
(b)(1) of this section and subscribed by the appropriate TTB officer is
prima facie good and sufficient for all legal purposes.

[[Page 240]]

(c) Cross references. (1) For provisions that the return executed by
an appropriate TTB officer will not start the running of the period of
limitations on assessment and collection, see 26 U.S.C. 6501(b)(3) and
Sec. 70.222(b) of this part.
(2) For additions to the tax and additional amounts for failure to
file returns, see section 6651 of the Internal Revenue Code.
(3) For additions to the tax for failure to pay tax, see sections
5684, 5761, and 6653 of the Internal Revenue Code.
(4) For failure to make deposit of taxes or overstatement of deposit
claims, see section 6656 of the Internal Revenue Code.
(5) For an additional penalty for tendering a bad check or money
order, see section 6657 of the Internal Revenue Code.
(6) For certain failures to pay tax with respect to cases pending
under Title 11 of the United States Code, see section 6658 of the
Internal Revenue Code.
(7) For failure to supply identifying numbers, see section 6676 of
the Internal Revenue Code.
(8) For penalties for aiding and abetting understatement of tax
liability, see section 6701 of the Internal Revenue Code.
(9) For criminal penalties for willful failure to make returns, see
sections 7201, 7202, and 7203 of the Internal Revenue Code.
(10) For criminal penalties for willfully making false or fraudulent
returns, see sections 7206 and 7207 of the Internal Revenue Code.
(11) For authority to examine books and witnesses, see section 7602
of the Internal Revenue Code and Sec. 70.22.

(26 U.S.C. 6020)

[T.D. ATF-251, 52 FR 19314, May 22, 1987. Redesignated and amended by
T.D. ATF-301, 55 FR 47606 and 47610, Nov. 14, 1990; T.D. ATF-450, 66 FR
29024, May 29, 2001]

Subpart D_Collection of Excise and Special (Occupational) Tax

Collection--General Provisions

Sec. 70.51 Collection authority.

The taxes imposed by provisions of 26 U.S.C. enforced and
administered by the Bureau must be collected by appropriate TTB
officers.

(26 U.S.C. 6301)

[T.D. ATF-450, 66 FR 29024, May 29, 2001]

Sec. 70.52 Signature presumed authentic.

An individual's name signed to a return, statement, or other
document shall be prima facie evidence for all purposes that the return,
statement or other document was actually signed by that individual.

(26 U.S.C. 6064)

[T.D. ATF-301, 55 FR 47611, Nov. 14, 1990]

Receipt of Payment

Sec. 70.61 Payment by check or money order.

(a) Authority to Receive--(1) General. (i) The appropriate TTB
officer may accept checks drawn on any bank or trust company
incorporated under the laws of the United States or under the laws of
any State, Territory, or possession of the United States, or money
orders in payment for internal revenue taxes, provided such checks or
money orders are collectible in U.S. currency at par, and subject to the
further provisions contained in this section. The appropriate TTB
officer may accept such checks or money orders in payment for internal
revenue stamps (authorized under Subtitle E of the Internal Revenue Code
or any provision of Subtitle F which relates to Subtitle E) to the
extent and under the conditions prescribed in paragraph (a)(2) of this
section. A check or money order in payment for internal revenue taxes or
internal revenue stamps should be made payable to the Alcohol and
Tobacco Tax and Trade Bureau. A check or money order is payable at par
only if the full amount thereof is payable without any deduction for
exchange or other charges. As used in this section, the term ``money
order'' means:
(A) U.S. postal, bank, express, or telegraph money order; and
(B) Money order issued by a domestic building and loan association
(as defined in section 7701(a)(19) of the Internal Revenue Code) or by a
similar association incorporated under the laws of a possession of the
United States;

[[Page 241]]

(C) A money order issued by such other organization as the
appropriate TTB officer may designate; and
(D) A money order described in paragraph (a)(1)(ii) of this section
in cases therein described. However, the appropriate TTB officers may
refuse to accept any personal check whenever there is good reason to
believe that such check will not be honored upon presentment.
(ii) An American citizen residing in a country with which the United
States maintains direct exchange of money orders on a domestic basis may
pay his/her tax by postal money order of such country. For a list of
such countries, see section 171.27 of the Postal Manual of the United
States.
(iii) If one check or money order is remitted to cover two or more
persons' taxes, the remittance should be accompanied by a letter of
transmittal clearly identifying--
(A) Each person whose tax is to be paid by the remittance;
(B) The amount of the payment on account of each such person; and
(C) The kind of tax paid.
(2) Payment for internal revenue stamps--In general. The appropriate
TTB officer may accept checks and money orders described in paragraph
(a)(1) of this section, in payment for internal revenue stamps
authorized under Subtitle E of the Internal Revenue Code or under any
provision of Subtitle F which relates to Subtitle E. However, the
appropriate TTB officer may refuse to accept any personal check whenever
there is good reason to believe that the check will not be honored upon
presentment.
(3) Payment of tax on distilled spirits, wine, beer, tobacco
products, pistols, revolvers, firearms (other than pistols and
revolvers), shells and cartridges; proprietor in default. Where a check
or money order tendered in payment for taxes on distilled spirits, wine
or beer products (imposed under Chapter 51 of the Internal Revenue
Code), or tobacco products (imposed under chapter 52 of the Internal
Revenue Code), or pistols, revolvers, firearms (other than pistols and
revolvers), shells and cartridges (imposed under chapter 32 of the
Internal Revenue Code) is not paid on presentment, or where a taxpayer
is otherwise in default in payment of such taxes, any remittance for
such taxes made during the period of such default, and until the
appropriate TTB officers finds that the revenue will not be jeopardized
by the acceptance of personal checks, shall be in cash, or shall be in
the form of a certified, cashier's, or treasurer's check, drawn on any
bank or trust company incorporated under the laws of the United States,
or under the laws of any State or possession of the United States, or a
money order as described in paragraph (a)(1) of this section.
(b) Checks or money orders not paid--(1) Ultimate liability. The
person who tenders any check (whether certified or uncertified,
cashier's, treasurer's, or other form of check) or money order in
payment for taxes is not released from liability until the check or
money order is paid; and, if the check or money order is not duly paid,
the person shall also be liable for all legal penalties and additions,
to the same extent as if such check or money order had not been
tendered. For the penalty in case a check or money order is not duly
paid, see section 6657 of the Internal Revenue Code. For assessment of
the amount of a check or money order not duly paid see section
6201(a)(2)(B) of the Internal Revenue Code.
(2) Liability of banks and others. If any certified, treasurer's, or
cashier's check (or other guaranteed draft) or money order is not duly
paid, the United States shall have a lien for the amount of such check
upon all assets of the bank or trust company on which drawn or for the
amount of such money order upon the assets of the issuer thereof. The
unpaid amount shall be paid out of such assets in preference to any
other claims against such bank or issuer except the necessary costs and
expenses of administration and the reimbursement of the United States
for the amount expended in the redemption of the circulating notes of
such bank. In addition, the Government has

[[Page 242]]

the right to exact payment from the person required to make the payment.

(26 U.S.C. 6311)

[T.D. ATF-251, 52 FR 19314, May 22, 1987. Redesignated by T.D. ATF-301,
55 FR 47606, Nov. 14, 1990; T.D. ATF-331, 57 FR 40328, Sept. 3, 1992;
T.D. ATF-353, 59 FR 2522, Jan. 18, 1994]

Sec. 70.62 Fractional parts of a cent.

In the payment of any tax, a fractional part of a cent shall be
disregarded unless it amounts to one-half cent or more, in which case it
shall be increased to one cent. Fractional parts of a cent shall not be
disregarded in the computation of taxes.

(26 U.S.C. 6313)

[T.D. ATF-251, 52 FR 19314, May 22, 1987. Redesignated by T.D. ATF-301,
55 FR 47606, Nov. 14, 1990]

Sec. 70.63 Computations on returns or other documents.

(a) Amounts shown on forms. To the extent permitted by any TTB form
or instructions prescribed for use with respect to any TTB return,
declaration, statement, or other document, or supporting schedules, any
amount required to be reported in such form may be entered at the
nearest whole dollar amount. The extent to which, and the conditions
under which, such whole dollar amounts may be entered on any form will
be set forth in the instructions issued with respect to such form. For
the purpose of the computation to the nearest dollar, a fractional part
of a dollar shall be disregarded unless it amounts to one-half dollar or
more, in which case the amount (determined without regard to the
fractional part of a dollar) shall be increased by $1. The following
illustrates the application of this paragraph:

------------------------------------------------------------------------
To be
Exact amount reported as
------------------------------------------------------------------------
$18.49..................................................... $18
$18.50..................................................... 19
$18.51..................................................... 19
------------------------------------------------------------------------

(b) Election not to use whole dollar amounts--(1) Method of
election. Where any TTB form, or the instructions issued with respect to
such form, provide that whole dollar amounts shall be reported, any
person making a return, declaration, statement, or other document on
such form may elect not to use whole dollar amounts by reporting thereon
all amounts in full, including cents.
(2) Time of election. The election not to use whole dollar amounts
must be made at the time of filing the return, declaration, statement,
or other document. Such election may not be revoked after the time
prescribed for filing such return, declaration, statement, or other
document, including extensions of time granted for such filing. Such
election may be made on any return, declaration, statement, or other
document which is filed after the time prescribed for filing (including
extensions of time), and such an election is irrevocable.
(3) Effect of election. The taxpayer's election shall be binding
only on the return, declaration, statement, or other document filed for
a taxable year or period, and a new election may be made on the return,
declaration, statement, or other document filed for a subsequent taxable
year or period.
(4) Fractional part of a cent. For treatment of the fractional part
of a cent in the payment of taxes, see 26 U.S.C. 6313 and Sec. 70.62 of
this part.
(c) Inapplicability to computation of amount. The provisions of
paragraph (a) of this section apply only to amounts required to be
reported on a return, declaration, statement, or other document. They do
not apply to items which must be taken into account in making the
computations necessary to determine such amounts. For example, each item
of liability must be taken into account at its exact amount, including
cents, in computing the amount of total liability required to be
reported on a tax return or supporting schedule. It is the amount of
total liability, so computed, which is to be reported at the nearest
whole dollar on the return or supporting schedule.

(26 U.S.C. 6102)

[T.D. ATF-301, 55 FR 47611, Nov. 14, 1990]

Sec. 70.64 Receipt for taxes.

The appropriate TTB officer must, upon request, issue a receipt for
each tax payment made (other than a payment for stamps sold or
delivered). In

[[Page 243]]

addition, an appropriate TTB officer or employee must issue a receipt
for each payment of 1 dollar or more made in cash, whether or not
requested. In the case of payments made by check, the canceled check is
usually a sufficient receipt. No receipt shall be issued in lieu of a
stamp representing a tax, whether the payment is in cash or otherwise.

(26 U.S.C. 6314)

[T.D. ATF-301, 55 FR 47611, Nov. 14, 1990, as amended by T.D. ATF-450,
66 FR 29024, May 29, 2001]

Sec. 70.65 Use of commercial banks.

For provisions relating to the use of commercial banks and
electronic fund transfer of taxpayment to the Treasury Account, see the
regulations relating to the particular tax.

(Aug. 16, 1954, ch. 736, 68A Stat. 775 (26 U.S.C. 6301); June 29, 1956,
ch. 462, 70 Stat. 391 (26 U.S.C. 6301))

[T.D. ATF-77, 46 FR 3002, Jan. 13, 1981. Redesignated by T.D. ATF-301,
55 FR 47606, Nov. 14, 1990]

Assessment

Sec. 70.71 Assessment authority.

The appropriate TTB officers are authorized and required to make all
inquiries necessary to the determination and assessment of all taxes
imposed under the provisions of 26 U.S.C. enforced and administered by
the Bureau. The appropriate TTB officers are further authorized and
required to make the determinations and the assessments of such taxes.
The term ``taxes'' includes interest, additional amounts, additions to
the taxes, and assessable penalties. The authority of the appropriate
TTB officers to make assessment includes the following:
(a) Taxes shown on return. The appropriate TTB officer shall assess
all taxes determined by the taxpayer or by the appropriate TTB officer
and disclosed on a return or list.
(b) Unpaid taxes payable by stamp. (1) If without use of the proper
stamp:
(i) Any article upon which a tax is required to be paid by means of
a stamp is sold or removed for sale or use by the manufacturer thereof,
or
(ii) Any transaction or act upon which a tax is required to be paid
by means of a stamp occurs, the appropriate TTB officer, upon such
information as can be obtained, must estimate the amount of the tax
which has not been paid and the appropriate TTB officer must make
assessment therefor upon the person the appropriate TTB officer
determines to be liable for the tax. However, the appropriate TTB
officer may not assess any tax which is payable by stamp unless the
taxpayer fails to pay such tax at the time and in the manner provided by
law or regulations.
(2) If a taxpayer gives a check or money order as a payment for
stamps but the check or money order is not paid upon presentment, then
the appropriate TTB officer shall assess the amount of the check or
money order against the taxpayer as if it were a tax due at the time the
check or money order was received by appropriate TTB officer.

(26 U.S.C. 6201)

[T.D. ATF-301, 55 FR 47611, Nov. 14, 1990]

Sec. 70.72 Method of assessment.

The assessment shall be made by an appropriate TTB officer signing
the summary record of assessment. The summary record, through supporting
records, shall provide identification of the taxpayer, the character of
the liability assessed, the taxable period, if applicable, and the
amount of the assessment. The amount of the assessment shall, in the
case of tax shown on a return by the taxpayer, be the amount so shown,
and in all other cases the amount of the assessment shall be the amount
shown on the supporting list or record. The date of the assessment is
the date the summary record is signed by an appropriate TTB officer. If
the taxpayer requests a copy of the record of assessment, the taxpayer
shall be furnished a copy of the pertinent parts of the assessment which
set forth the name of the taxpayer, the date of assessment, the
character of the liability assessed, the

[[Page 244]]

taxable period, if applicable, and the amounts assessed.

(26 U.S.C. 6203)

[T.D. ATF-251, 52 FR 19314, May 22, 1987. Redesignated and amended by
T.D. ATF-301, 55 FR 47606 and 47612, Nov. 14, 1990; T.D. ATF-450, 66 FR
29025, May 29, 2001]

Sec. 70.73 Supplemental assessments.

If any assessment is incomplete or incorrect in any material
respect, the appropriate TTB officer, subject to the applicable period
of limitation, may make a supplemental assessment for the purpose of
correcting or completing the original assessment.

(26 U.S.C. 6204)

[T.D. ATF-301, 55 FR 47612, Nov. 14, 1990]

Sec. 70.74 Request for prompt assessment.

(a) Except as otherwise provided in Sec. 70.223 of this part, any
tax for which a return is required and for which:
(1) A decedent or an estate of a decedent may be liable, or
(2) A corporation which is contemplating dissolution, is in the
process of dissolution, or has been dissolved, may be liable, shall be
assessed, or a proceeding in court without assessment for the collection
of such tax shall be begun, within 18 months after the receipt of a
written request for prompt assessment thereof.
(b) The executor, administrator, or other fiduciary representing the
estate of the decedent, or the corporation, or the fiduciary
representing the dissolved corporation, as the case may be, shall, after
the return in question has been filed, file the request for prompt
assessment in writing with the appropriate TTB officer. The request, in
order to be effective, must be transmitted separately from any other
document, must set forth the classes of tax and the taxable periods for
which the prompt assessment is requested, and must clearly indicate that
it is a request for prompt assessment under the provisions of 26 U.S.C.
6501(d). The effect of such a request is to limit the time in which an
assessment of tax may be made, or a proceeding in court without
assessment for collection of tax may be begun, to a period of 18 months
from the date the request is filed with the appropriate TTB officer. The
request does not extend the time within which an assessment may be made,
or a proceeding in court without assessment shall be begun, after the
expiration of 3 years from the date the return was filed. This special
period of limitations will not apply to any return filed after a request
for prompt assessment has been made unless an additional request is
filed in the manner provided herein.
(c) In the case of a corporation the 18-month period shall not apply
unless:
(1) The written request notifies the appropriate TTB officer that
the corporation contemplates dissolution at or before the expirationof
such 18-month period; the dissolution is in good faith begun before the
expiration of such 18-month period; and the dissolution so begun is
completed either before or after the expiration of such 18-month period;
or
(2) The written request notifies the appropriate TTB officer that a
dissolution has in good faith begun, and the dissolution is completed
either before or after the expiration of such 18-month period; or
(3) A dissolution has been completed at the time the written request
is made.

(26 U.S.C. 6501(d))

[T.D. ATF-301, 55 FR 47612, Nov. 14, 1990, as amended by T.D. ATF-353,
59 FR 2522, Jan. 18, 1994]

Sec. 70.75 Jeopardy assessment of alcohol, tobacco, and firearms taxes.

(a) If the appropriate TTB officer believes that the collection of
any tax imposed under provisions of 26 U.S.C. enforced and administered
by the Bureau will be jeopardized by delay, the appropriate TTB officer
must, whether or not the time otherwise prescribed by law for filing the
return or paying such tax has expired, immediately assess such tax,
together with all interest, additional amounts and additions to the tax
provided by law. An appropriate TTB officer will make an assessment
under this section if collection is determined to be in jeopardy because
at least one of the following conditions exists.
(1) The taxpayer is or appears to be designing quickly to depart
from the

[[Page 245]]

United States or to conceal himself or herself.
(2) The taxpayer is or appears to be designing quickly to place the
taxpayer's property beyond the reach of the Government either by
removing it from the United States, by concealing it, or by dissipating
it, or by transferring it to other persons.
(3) The taxpayer's financial solvency is or appears to be
threatened.
(b) The tax, interest, additional amounts, and additions to the tax
will, upon assessment, become immediately due and payable, and the
appropriate TTB officer shall, without delay, issue a notice and demand
for payment thereof in full.
(c) See 26 U.S.C. 7429 with respect to requesting the appropriate
TTB officer to review the making of the jeopardy assessment.
(d) For provisions relating to stay of collection of jeopardy
assessments, see Sec. 70.76 of this part.

(26 U.S.C. 6862 and 6863)

[T.D. ATF-301, 55 FR 47612, Nov. 14, 1990, as amended by T.D. ATF-450,
66 FR 29025, May 29, 2001]

Sec. 70.76 Stay of collection of jeopardy assessment; bond to stay

collection.

(a) The collection of taxes assessed under 26 U.S.C. 6862 (referred
to as a ``jeopardy assessment'' for purposes of this section) of any tax
may be stayed by filing with the appropriate TTB officer a bond on the
form to be furnished by TTB upon request.
(b) The bond may be filed:
(1) At any time before the time collection by levy is authorized
under 26 U.S.C. 6331(a), or
(2) After collection by levy is authorized and before levy is made
on any property or rights to property, or
(3) In the discretion of the appropriate TTB officer, after any such
levy has been made and before the expiration of the period of
limitations on collection.
(c) The bond must be in an amount equal to the portion (including
interest thereon to the date of payment as calculated by the appropriate
TTB officer) of the jeopardy assessment collection of which is sought to
be stayed. See 26 U.S.C. 7101 and Sec. 70.281, relating to the form of
bond and the sureties thereon. The bond shall be conditioned upon the
payment of the amount (together with interest thereon), for which the
collection is stayed, at the time at which, but for the making of the
jeopardy assessment, such amount would be due.
(d) Upon the filing of a bond in accordance with this section, the
collection of so much of the assessment as is covered by the bond will
be stayed. The taxpayer may at any time waive the stay of collection of
the whole or of any part of the amount covered by the bond. If as a
result of such waiver any part of the amount covered by the bond is
paid, or if any portion of the jeopardy assessment is abated by the
appropriate TTB officer, then the bond shall (at the request of the
taxpayer) be proportionately reduced.

(26 U.S.C. 6863)

[T.D. ATF-301, 55 FR 47613, Nov. 14, 1990]

Sec. 70.77 Collection of jeopardy assessment; stay of sale of seized

property pending court decision.

(a) General rule. In the case of an assessment under 26 U.S.C. 6862,
and property seized for the collection of such assessment shall not
(except as provided in paragraph (b) of this section) be sold until the
latest of the following occurs:
(1) The period provided in 26 U.S.C. 7429(a)(2) to request the
appropriate TTB officer to review the action taken expires.
(2) The period provided in 26 U.S.C. 7429(b)(1) to file an action in
U.S. District Court expires if a request for redetermination is made to
the appropriate TTB officer.
(3) The U.S. District Court judgment in such action becomes final,
if a civil action is begun in accordance with 26 U.S.C. 7429(b).
(b) Exceptions. Notwithstanding the provisions of paragraph (a) of
this section, any property seized may be sold:
(1) If the taxpayer files with the appropriate TTB officer a written
consent to the sale, or
(2) If the appropriate TTB officer determines that the expenses of
conservation and maintenance of the property will greatly reduce the net
proceeds from the sale of such property, or

[[Page 246]]

(3) If the property is of a type to which 26 U.S.C. 6336 (relating
to sale of perishable goods) is applicable.

(26 U.S.C. 6863)

[T.D. ATF-301, 55 FR 47613, Nov. 14, 1990, as amended by T.D. ATF-353,
59 FR 2522, Jan. 18, 1994]

Notice and Demand

Sec. 70.81 Notice and demand for tax.

(a) General rule. Where it is not otherwise provided by provisions
of 26 U.S.C. enforced and administered by the Bureau, the appropriate
TTB officer shall, after the making of an assessment of a tax pursuant
to Sec. 70.71 of this part, give notice to each person liable for the
unpaid tax, stating the basis for the tax due, the amount of tax,
interest, additional amounts, additions to the tax and assessable
penalties, and demanding payment thereof. Such notice shall be given as
soon as possible and within 60 days. However, the failure to give notice
within 60 days does not invalidate the notice. Such notice shall be left
at the dwelling or usual place of business of such person, or shall be
sent by mail to such person's last known address.
(b) Assessment prior to last date for payment. If any tax is
assessed prior to the last date prescribed for payment of such tax,
demand that such tax be paid will not be made before such last date,
except where it is believed collection would be jeopardized by delay.

(26 U.S.C. 6303 and 7521)

[T.D. ATF-301, 55 FR 47613, Nov. 14, 1990]

Sec. 70.82 Payment on notice and demand.

Upon receipt of notice and demand from the appropriate TTB officer,
there shall be paid at the place and time stated in such notice the
amount of any tax (including any interest, additional amounts, additions
to the tax, and assessable penalties) stated in such notice and demand.

(26 U.S.C. 6155)

[T.D. ATF-301, 55 FR 47613, Nov. 14, 1990]

Interest

Sec. 70.90 Interest on underpayments.

(a) General rule. Interest at the underpayment rate referred to in
Sec. 70.93 of this part shall be paid on any unpaid amount of tax from
the last date prescribed for payment of the tax (determined without
regard to any extension of time for payment) to the date on which
payment is received.
(b) Interest on penalties, additional amounts, or additions to the
tax-- (1) General. Interest shall be imposed on any assessable penalty,
additional amount, or addition to the tax (other than an addition to tax
imposed under section 6651(a)(1) of the Internal Revenue Code) only if
such assessable penalty, additional amount, or addition to the tax is
not paid within 10 days from the date of notice and demand therefor, and
in such case interest shall be imposed only for the period from the date
of the notice and demand to the date of payment.
(2) Interest on certain additions to tax. Interest shall be imposed
under this section on any addition to tax imposed by section 6651(a)(1)
of the Internal Revenue Code for the period which (i) begins on the date
on which the return of the tax with respect to which such addition to
tax is imposed is required to be filed (including any extensions), and
(ii) ends on the date of payment of such addition to tax.
(c) Payments made within 10 days after notice and demand. If notice
and demand is made for payment of any amount, and if such amount is paid
within 10 days after the date of such notice and demand, interest under
this section on the amount so paid shall not be imposed for the period
after the date of such notice and demand.
(d) Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under
section 6601 of the Internal Revenue Code on the portion of the tax so
satisfied for any period during which, if the credit had not been made,
interest would have been allowable with respect to such overpayment.
(e) Last date prescribed for payment. (1) In determining the last
date prescribed for payment, any extension of time

[[Page 247]]

granted for payment of tax shall be disregarded. The granting of an
extension of time for the payment of tax does not relieve the taxpayer
from liability for the payment of interest thereon during the period of
the extension. Thus, except as provided in paragraph (d) of this
section, interest at the underpayment rate referred to in Sec. 70.93 of
this part is payable on any unpaid portion of the tax for the period
during which such portion remains unpaid by reason of an extension of
time for the payment thereof.
(2) In the case of taxes payable by stamp and in all other cases
where the last date for payment of the tax is not otherwise prescribed,
such last date for the purpose of the interest computation shall be
deemed to be the date on which the liability for the tax arose. However,
such last date shall in no event be later than the date of issuance of a
notice and demand for the tax.

(26 U.S.C. 6601)

[T.D. ATF-251, 52 FR 19314, May 22, 1987, as amended by T.D. ATF-301, 55
FR 47613, Nov. 14, 1990]

Sec. 70.91 Interest on erroneous refund recoverable by suit.

Any portion of an internal revenue tax (or any interest, assessable
penalty, additional amount, or addition to tax) which has been
erroneously refunded, and which is recoverable by a civil action
pursuant to 26 U.S.C. 7405, shall bear interest at the underpayment rate
referred to in Sec. 70.93 of this part.

(26 U.S.C. 6602)

[T.D. ATF-301, 55 FR 47614, Nov. 14, 1990]

Sec. 70.92 Interest on overpayments.

(a) General rule. Except as otherwise provided, interest shall be
allowed on any overpayment of any tax at the overpayment rate referred
to in Sec. 70.93 of this part from the date of overpayment of the tax.
(b) Date of overpayment. Except as provided in section 6401(a) of
the Internal Revenue Code, relating to assessment and collection after
the expiration of the applicable period of limitation, there can be no
overpayment of tax until the entire tax liability has been satisfied.
Therefore, the dates of overpayment of any tax are the date of payment
of the first amount which (when added to previous payments) is in excess
of the tax liability (including any interest, addition to the tax, or
additional amount) and the dates of payment of all amounts subsequently
paid with respect to such tax liability.
(c) Period for which interest is allowable in case of refunds. If an
overpayment of tax is refunded, interest shall be allowed from the date
of the overpayment to a date determined by the appropriate TTB officer
which shall not be more than 30 days prior to the date of the refund
check. The acceptance of a refund check shall not deprive the taxpayer
of the right to make a claim for any additional overpayment and interest
thereon, provided the claim is made within the applicable period of
limitation. However, if a taxpayer does not accept a refund check, no
additional interest on the amount of the overpayment included in such
check shall be allowed.
(d) Period for which interest allowable in case of credits--(1)
General rule. If an overpayment of tax is credited, interest shall be
allowed from the date of overpayment to the due date (as determined
under paragraph (d)(2) of this section of the amount against which such
overpayment is credited.
(2) Determination of due date--(i) General. The term due date, as
used in this section, means the last day fixed by law or regulations for
the payment of the tax (determined without regard to any extension of
time), and not the date on which the appropriate TTB officer makes
demand for the payment of the tax. Therefore, the due date of the tax is
the date fixed for the payment of the tax;
(ii) Tax not due yet. If a taxpayer agrees to the crediting of an
overpayment against tax and the schedule of allowance is signed prior to
the date on which such tax would otherwise become due, then the due date
of such tax shall be the date on which such schedule is signed;
(iii) Interest. In the case of a credit against interest that
accrues for any period ending prior to January 1, 1983, the due date is
the earlier of the date of assessment of such interest or December 31,
1982. In the case of a credit

[[Page 248]]

against interest that accrues from any period beginning on or after
December 31, 1982, such interest is due as it economically accrues on a
daily basis, rather than when it is assessed.
(iv) Additional amount, addition to the tax, or assessable penalty.
In the case of a credit against an additional amount, addition to the
tax, or assessable penalty, the due date is the earlier of the date of
assessment or the date from which such amount would bear interest if not
satisfied by payment or credit.

(26 U.S.C. 6611)

[T.D. ATF-251, 52 FR 19314, May 22, 1987, as amended by T.D. ATF-301, 55
FR 47614, Nov. 14, 1990; T.D. ATF-358, 59 FR 29367, June 7, 1994]

Sec. 70.93 Interest rate.

(a) In general. The interest rate established under 26 U.S.C.
6621(a)(2) shall be:
(1) On amounts outstanding before July 1, 1975, 6 percent per annum.
(2) On amounts outstanding:

------------------------------------------------------------------------
Rate per
After And before annum
(percent)
------------------------------------------------------------------------
June 30, 1975....................... Feb. 1, 1976........... 9
Jan. 31, 1976....................... Feb. 1, 1978........... 7
Jan. 31, 1978....................... Feb. 1, 1980........... 6
Jan. 31, 1980....................... Feb. 1, 1982........... 12
Jan. 31, 1982....................... Jan. 1, 1983........... 20
------------------------------------------------------------------------

(3) On amounts outstanding after December 31, 1982, the adjusted
rates for overpayment and underpayment established by the Commissioner
of Internal Revenue under 26 U.S.C. 6621. These adjusted rates shall be
published by the Commissioner in a Revenue Ruling. See Sec. 70.94 of
this part for application of daily compounding in determining interest
accruing after December 31, 1982. Because interest accruing after
December 31, 1982, accrues at the prescribed rate per annum compounded
daily, the effective annual percentage rate of interest will exceed the
prescribed rate of interest.
(b) Applicability of interest rates--(1) Computation. Interest and
additions to tax on any amount outstanding on a specific day shall be
computed at the annual rate applicable on such day.
(2) Additions to tax. Additions to tax under any section of the
Internal Revenue Code that refers to the annual rate established under
26 U.S.C. 6621, shall be computed at the same rate per annum as the
interest rate set forth under paragraph (a) of this section.
(3) Interest. Interest provided for under any section of the
Internal Revenue Code that refers to the annual rate established under
this section, including 26 U.S.C. 6332(d)(1), 6343(c), 6601(a), 6602,
6611(a), 7426(g), and 28 U.S.C. 1961(c)(1) or 2411, shall be computed at
the rate per annum set forth under paragraph (a) of this section.

[T.D. ATF-301, 55 FR 47614, Nov. 14, 1990]

Sec. 70.94 Interest compounded daily.

(a) General rule. Effective for interest accruing after December 31,
1982, in computing the amount of any interest required to be paid under
any provision of 26 U.S.C. or under 28 U.S.C. 1961(c)(1) or 2411, by the
appropriate TTB officer or by the taxpayer, or in computing any other
amount determined by reference to such amount of interest, or by
reference to the interest rate established under 26 U.S.C. 6621, such
interest or such other amount shall be compounded daily by dividing such
rate of interest by 365 (366 in a leap year) and compounding such daily
interest rate each day.
(b) Applicability to unpaid amounts on December 31, 1982. The unpaid
interest (or other amount) that shall be compounded daily includes the
interest (or other amount) accrued but unpaid on December 31, 1982.

(26 U.S.C. 6622)

[T.D. ATF-301, 55 FR 47614, Nov. 14, 1990]

Additions to the Tax, Additional Amounts, and Assessable Penalties

Additions to the Tax and Additional Amounts

Sec. 70.95 Scope.

For purposes of the administration of excise taxes by the Alcohol
and Tobacco Tax and Trade Bureau in accordance with Title 26 of the
United States Code, the penalties prescribed in Sec. Sec. 70.96 through
70.107 shall apply.

[T.D. ATF-251, 52 FR 19314, May 22, 1987, as amended by T.D. ATF-301, 55
FR 47614, Nov. 14, 1990]

[[Page 249]]

Sec. 70.96 Failure to file tax return or to pay tax.

(a) Addition to the tax--(1) Failure to file tax return. In the case
of failure to file a return required under authority of:
(i) Title 26 U.S.C. 61, relating to returns and records;
(ii) Title 26 U.S.C. 51, relating to distilled spirits, wines and
beer;
(iii) Title 26 U.S.C. 52, relating to tobacco products, and
cigarette papers and tubes; or
(iv) Title 26 U.S.C. 53, relating to machine guns, destructive
devices, and certain other firearms; and the regulations thereunder, on
or before the date prescribed for filing (determined with regard to any
extension of time for such filing), there shall be added to the tax
required to be shown on the return the amount specified below unless the
failure to file the return within the prescribed time is shown to the
satisfaction of the appropriate TTB officer to be due to reasonable
cause and not to willful neglect. The amount to be added to the tax is 5
percent therof if the failure is not for more than one month, with an
additional 5 percent for each additional month or fraction thereof
during which the failure continues, but not to exceed 25 percent in the
aggregate. The amount of any addition under paragraph (a)(1) of this
section shall be reduced by the amount of the addition under paragraph
(a)(2) of this section for any month to which an addition to tax applies
under both paragraphs (a)(1) and (a)(2) of this section.
(2) Failure to pay tax shown on return. In case of failure to pay
the amount shown as tax on any return required to be filed after
December 31, 1969 (without regard to any extension of time for filing
thereof), specified in paragraph (a)(1) of this section, on or before
the date prescribed for payment of such tax (determined with regard to
any extension of time for payment), there shall be added to the tax
shown on the return the amount specified below unless the failure to pay
the tax within the prescribed time is shown to the satisfaction of the
appropriate TTB officer to be due to reasonable cause and not to willful
neglect. The amount to be added to the tax is 0.5 percent of the amount
of tax shown on the return if the failure is for not more than 1 month,
with an additional 0.5 percent for each additional month or fraction
thereof during which the failure continues, but not to exceed 25 percent
in the aggregate.
(3) Failure to pay tax not shown on return. In case of failure to
pay any amount in respect of any tax required to be shown on a return
specified in paragraph (a)(1) of this section, which is not so shown
(including an assessment made pursuant to 26 U.S.C. 6213(b)) within 10
days from the date of the notice and demand therefor, there shall be
added to the amount shown in the notice and demand the amount specified
below unless the failure to pay the tax within the prescribed time is
shown to the satisfaction of the appropriate TTB officer to be due to
reasonable cause and not to willful neglect. The amount to be added to
the tax is 0.5 percent of the amount stated in the notice and demand if
the failure is for not more than one month, with an additional 0.5
percent for each additional month or fraction thereof during which the
failure continues, but not to exceed 25 percent in the aggregate. The
maximum amount of the addition permitted under this subparagraph shall
be reduced by the amount of the addition under paragraph (a)(1) of this
section, which is attributable to the tax for which the notice and
demand is made and which is not paid within 10 days from the date of
notice and demand. The preceding sentence applies to amounts assessed on
or before December 31, 1986.
(4) Increases in penalties in certain cases. For increases in
penalties for failure to file a return or pay tax in certain cases, see
26 U.S.C. 6651(d) or (f).
(b) Month defined. (1) If the date prescribed for filing the return
or paying tax is the last day of a calendar month, each succeeding
calendar month or fraction thereof during which the failure to file or
pay tax continues shall constitute a month for purposes of section 6651.
(2) If the date prescribed for filing the return or paying tax is a
date other than the last day of a calendar month, the period which
terminates with the

[[Page 250]]

date numerically corresponding thereto in the succeeding calendar month
and each such successive period shall constitute a month for purposes of
section 6651. If, in the month of February, there is no date
corresponding to the date prescribed for filing the return or paying
tax, the period from such date in January through the last day of
February shall constitute a month for purposes of section 6651. Thus, if
a return is due on January 30, the first month shall end on February 28
(or 29 if a leap year), and the succeeding months shall end on March 30,
April 30, etc.
(3) If a return is not timely filed or tax is not timely paid, the
fact that the date prescribed for filing the return or paying tax, or
the corresponding date in any succeeding calendar month, falls on a
Saturday, Sunday, or legal holiday is immaterial in determining the
number of months for which the addition to the tax under section 6651
applies.
(c) Showing of reasonable cause. A taxpayer who wishes to avoid the
addition to the tax for failure to file a tax return or pay tax must
make an affirmative showing of all facts alleged as a reasonable cause
for the taxpayers failure to file such return or pay such tax on time in
the form of a written statement containing a declaration that it is made
under penalties of perjury. Such statement should be filed with the
appropriate TTB officer. In addition, where special tax returns of
liquor dealers are delivered to an appropriate TTB officer, such
statement may be delivered with the return. If the appropriate TTB
officer determines that the delinquency was due to a reasonable cause
and not to willful neglect, the addition to the tax will not be
assessed. If the taxpayer exercised ordinary business care and prudence
and was nevertheless unable to file the return within the prescribed
time, then the delay is due to a reasonable cause. A failure to pay will
be considered to be due to reasonable cause to the extent that the
taxpayer has made a satisfactory showing that the taxpayer exercised
ordinary business care and prudence in providing for payment of the tax
liability and was nevertheless either unable to pay the tax or would
suffer an undue hardship (as described in 26 CFR 1.6161-1(b)) if paid on
the due date. In determining whether the taxpayer was unable to pay the
tax in spite of the exercise of ordinary business care and prudence in
providing for payment of a tax liability, consideration will be given to
all the facts and circumstances of the taxpayer's financial situation,
including the amount and nature of the taxpayer's expenditures in light
of the income (or other amounts) the taxpayer could, at the time of such
expenditures, reasonably expect to receive prior to the date prescribed
for the payment of the tax. Thus, for example, a taxpayer who incurs
lavish or extravagant living expenses in an amount such that the
remainder of assets and anticipated income will be insufficient to pay
the tax, has not exercised ordinary business care and prudence in
providing for the payment of a tax liability. Further, a taxpayer who
invests funds in speculative or illiquid assets has not exercised
ordinary business care and prudence in providing for the payment of a
tax liability unless, at the time of the investment, the remainder of
the taxpayer's assets and estimated income will be sufficient to pay the
tax or it can be reasonably foreseen that the speculative or illiquid
investment made by the taxpayer can be utilized (by sale or as security
for a loan) to realize sufficient funds to satisfy the tax liability. A
taxpayer will be considered to have exercised ordinary business care and
prudence if such taxpayer made reasonable efforts to conserve sufficient
assets in marketable form to satisfy a tax liability and nevertheless
was unable to pay all or a portion of the tax when it became due.
(d) Penalty imposed on net amount due--(1) Credits against the tax.
The amount of tax required to be shown on the return for purposes of
section 6651(a)(1) and the amount shown as tax on the return for
purposes of section 6651(a)(2) shall be reduced by the amount of any
part of the tax which is paid on or before the date prescribed for
payment of the tax and by the amount of any credit against the tax which
may be claimed on the return.
(2) Partial payments. (i) The amount of tax required to be shown on
the return for purposes of section 6651(a)(2) of

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the Internal Revenue Code shall, for the purpose of computing the
addition for any month, be reduced by the amount of any part of the tax
which is paid after the date prescribed for payment and on or before the
first day of such month, and
(ii) The amount of tax stated in the notice and demand for purposes
of section 6651(a)(3) of the Internal Revenue Code shall, for the
purpose of computing the addition for any month, be reduced by the
amount of any part of the tax which is paid before the first day of such
month.
(e) No addition to tax if fraud penalty assessed. No addition to the
tax under section 6651 of the Internal Revenue Code shall be assessed
with respect to an underpayment of tax if an addition to the tax for
fraud is assessed with respect to the same underpayment under section
6653(b). See section 6653(d) of the Internal Revenue Code.

(26 U.S.C. 6651)

[T.D. ATF-251, 52 FR 19314, May 22, 1987, as amended by T.D ATF-301, 55
FR 47614, Nov. 14, 1990; T.D. ATF-353, 59 FR 2522, Jan. 18, 1994; T.D.
ATF-450, 66 FR 29025, May 29, 2001]

Sec. 70.97 Failure to pay tax.

(a) Negligence--(1) General. If any part of any underpayment (as
defined in paragraph (d) of this section) is due to negligence or
disregard of rules or regulations, there shall be added to the tax an
amount equal to the sum of 5 percent of the underpayment, and an amount
equal to 50 percent of the interest payable under section 6601 of the
Internal Revenue Code with respect to the portion of such underpayment
which is attributable to negligence for the period beginning on the last
date prescribed by law for payment of such underpayment (determined
without regard to any extension) and ending on the date of the
assessment of the tax (or if earlier, the date or the payment of the
tax).
(2) Underpayment taken into account reduced by a portion
attributable to fraud. There shall not be taken into account under
paragraph (a) of this section any portion of an underpayment
attributable to fraud with respect to which a penalty is imposed under
paragraph (b) of this section.
(3) Negligence. For purposes of paragraph (a) of this section, the
term ``negligence'' includes any failure to make a reasonable attempt to
comply with the provisions of the Internal Revenue Code, and the term
``disregard'' includes any careless, reckless, or intentional disregard.
(4) The provisions of paragraph (a) apply to returns the due date
for which (determined without regard to extensions) is after December
31, 1986.
(b) Fraud--(1) General. If any part of any underpayment (as defined
in paragraph (d) of this section) of tax required to be shown on a
return is due to fraud, there shall be added to the tax an amount equal
to 50 percent of the portion of the underpayment which is attributable
to fraud and an amount equal to 50 percent of the interest payable under
section 6601 of the Internal Revenue Code with respect to such portion
for the period beginning on the last day prescribed by law for payment
of such underpayment (determined without regard to any extension) and
ending on the date of the assessment of the tax or, if earlier, the date
of the paymen