USE OF DISSIMILAR GOODS AS "FREE GOODS"
Proprietors of Distilled Spirits Plants, Bonded
Wine Cellars, Taxpaid Wine Bottling Houses, Brewers,
Wholesale Liquor Dealers, Importers and others
concerned:
PURPOSE: The purpose of this circular is to inform
you of a forthcoming ATF Ruling concerning the use of
dissimilar alcoholic beverages as a discount on the
price of alcoholic beverages purchased. This ruling
will revoke ATF Ruling 75-33 and will read as follows:
The Bureau of Alcohol, Tobacco and Firearms has
reviewed its position, as stated in ATF Ruling 75-33,
1975 ATF C.B. 34, that "free goods" must be identical,
with the exception of container size, to other goods
purchased in order to be considered as part of a pric-
ing arrangement outside the purview of the Federal
Alcohol Administration Act, 27 U.S.C. 201 et seq. As
a result of that review, ATF Ruling 75-33 is revoked,
and the use of dissimilar alcoholic beverages as a
discount on the purchase of alcoholic beverages can be
considered as part of a legitimate pricing arrangement.
In general, 27 U.S.C. 205(b)(3) states that it is
unlawful for any producer, bottler, importer or wholesaler of alcoholic beverages, indirectly or through an
affiliate, to induce any retailer to purchase alcoholic
beverages from such person to the exclusion, in whole
or in part, of any such products sold, or offered for
sale by other persons in interstate or foreign commerce
by furnishing, giving, renting, lending or selling to
the retailer any fixtures, signs, supplies, money,
services or other things of value.
It was held in Revenue Ruling 54-161, 1954-1 C.B.
338, that so-called free goods, discounts, rebates,
refunds, and price reductions given to retailers
pursuant to an agreement made at the time of sale are
merely methods used to arrive at an agreed sales price
and are not considered "gifts" within the meaning of
the Federal Alcohol Administration Act. However, if
the amount of the free goods, discounts, rebates, or
similar price reductions is such that the pricing
aspect is merely a subterfuge, the transaction would
constitute a gift within the meaning of 27 U.S.C.
205(b)(3).
ATF Ruling 75-33 later attempted to guide industry
members in distinguishing between legitimate price
reductions and so called prohibited "gifts" by defining
what kinds of free goods were permissible. The ruling
held that free goods furnished to a retailer by an
industry member had to be identical, with the exception
of container size, to the alcoholic beverages purchased
in order to be considered as part of a legitimate
pricing arrangement.
Further consideration of the issue, however,
indicates that the use of free goods should not be
limited only to the same kind as purchased. The
purpose of the FAA Act is to promote fair and legal
competition. Since it has been the Bureau's position
to recognize free goods as a form of discount, it is
more important to consider the amount of the value of
the discount given, rather than the nature of the
furnished product. The use of even totally dissimilar
goods does fulfill the basic premise that the arrangement can be translated into an agreement to purchase
the combined amount of both free and purchased goods
at a reduced price.
Held, the use of free dissimilar alcoholic
beverages as a discount on the purchase of alcoholic
beverages can be considered as part of a pricing
arrangement provided it is based on an agreement made
at the time of sale, it is reflected on the related
sales invoice or some other document readily available
for examination, and it is not a subterfuge for violat-
ing any of the trade practices prohibited by 27 U.S.C.
205 (a) through (d).
ATF Ruling 75-33, 1975 ATF C.B. 34, is revoked.
Inquiries concerning this circular should refer to
its number and be addressed to the Assistant Director,
Regulatory Enforcement, Bureau of Alcohol, Tobacco and
Firearms, 1200 Pennsylvania Avenue, N.W., Washington,
D.C. 20226
Assistant Director
(Regulatory Enforcement)
U.S. GOVERNMENT PRINTING OPFICE : 1983 0 - 399-652 |