Department of Revenue v. Stitzel-Weller Distillery

WADDILL, Commissioner. In this action for a declaration of rights we are asked to determine whether the' tax imposed by KRS 243.680(1) is applicable to the manufacture of distilled spirits to be exported. This'státute provides: “No person shall. manufacture distilled spirits in this state unless he first obtains from the department a permit [603] •to engage in the business of manufacturing distilled spirits. At the time of the issuance of the permit he shall pay to the state a tax of ten cents for each proof gallon of distilled spirits for which the permit is issued.” The stipulation of facts which the parties filed shows that: The appellee, a licensed manufacturer of distilled spirits, is -negotiating a contract to manufacture fifteen (15) barrels of bourbon whiskey for a •customer in Mexico; that this whiskey, when manufactured, will be drawn off into barrels identified for export in compliance with 26 CFR 252.103; that the whiskey when manufactured will be entered into ap-.pellee’s Class 6 U.S. Customs Bonded Manufacturing Warehouse (26 U.S.C. §■ 5521 (1959)), and that appellee is unable to complete its contract negotiations since it is unable to determine whether it is liable for payment of this tax. The trial judge recognized that Congress has established a scheme whereby certain products, such as whiskey, may be relieved •of local taxes so as to meet foreign competition. He assumed that the whiskey in the instant case would be exported subject to the strict control of the federal government from the time of production until exportation, and he concluded the levy of this tax would be an infringement of the congressional regulation of commerce under the Federal Constitution: . Judgment was accordingly entered. Appellant contends that since KRS 243.-'680(1) has been held to be an occupational tax (Brown-Forman Distillers Corp. v. Commonwealth of Kentucky, Ky., 346 S.W.2d 752), its incidence is on the privilege of manufacturing which precedes the time when the tax immunity of the Federal Constitution attaches. Appellee asserts that this whiskey will be committed to be exported from the time it is produced and may not be constitutionally taxed by Kentucky. The applicable test was enunciated in Empresa Siderurgica S.A. v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276, as follows: “ * * * The tax immunity runs to the process of exportation and the transactions and documents embraced in it. * * *. It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.” When goods are under federal supervision from the inception of their manufacture until delivery to a common carrier for export, they are not subject to state taxation (McGoldrick v. Gulf Oil Corp., 309 U.S. 414, 60 S.Ct. 664, 84 L.Ed. 840) and if the incidence which gives rise to the accrual of the tax is a step, in the ’export process, the levy is unconstitutional (Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80). In the instant case the stipulated facts nowhere state that this whiskey will be produced in a bonded manufacturing warehouse. Moreover they show that the whiskey will be manufactured and “drawn off” before it is placed in such bond. We conclude; that this whiskey will not be committed with certainty to the stream of exportation until it has been segregated from a common mass of distilled spirits and placed under federal supervision in a Class 6 Bonded Warehouse. Therefore the incidence of the tax imposed by KRS 243.680 (1) has not been shown to be a step in the process of exportation and the tax may be collected from appellee. The judgment is reversed with directions to enter a new one approving the collection of the tax imposed by KRS 243.680(1).