Legal "Loophole" for Distilling "at home"

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Deathtofishy
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Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

Alright, so I couldn't see where this was covered before, and I do apologize if it has been in some form, but I couldn't find any posts regarding it, or more specifically the book it which it was written.

For Christmas I was gifted a book by Victoria Redhed Miller called "Craft Distilling: Making Liquor Legally At home". It was just printed in 2016

I had a really good laugh at the subtitle. I thought to myself... how the hell did this get printed? But after reading it, and dealing with my experiences opening a Craft Brewery and registering with the TTB, I think this actually has some merit, if your circumstances and state requirements line up. So sit back, have a beverage, and see what you ya'll think...

In her book, over the course of about two pages she talks about how she wanted to distill legally, and at home, so she went through the process of getting a license and with some persistence in 2012 it was finally granted. So I'll paraphrase with some additions but, here is how it went down.

She applies for her state and federal license to have a craft distillery. She lives in Washington, which as a 100.00 state permit (SHB 2959) per year for a craft distillery that produces 20,000 gallons a year or less.

After about two weeks of mailing in her state application she was called by the liquor control board asking why she wanted a license. She said she was writing a book and wanted to go through the process to write about it intelligently. They then asked how much she was going to sell. She said she wasn't going to sell anything, just make a small amount to enjoy with her friends and family. They said they would have to look into it and call her back. When they did they gave the answer that most of us expect, "you can't do that". But more specifically, they told her that it she was going to make booze legally, she was required to sell it.

This is where it gets interesting. In her situation (and almost anyone else's), there isn't any laws, that by the letter, require you to sell. If you think about it, you can open any business, but there isn't any requirement for you to sell anything, make money, or anything like that. You would just be a terrible/unprofitable business owner :thumbup:

So she persisted and they eventually granted it. Her state law requires that she has a separate building (specifically 4 walls, a roof and a door that locks... thats it!), and the fire inspector came out to verify that the building was correct. They made her print out a bright yellow notice to post on her door for 30 days (house is half a mile from her front gate...) and it was done.

Seemed a little vague so I did a little research on her, and found a blog she wrote back in 2011, that explained she got bonded as well, and I found out that she lives in rural Washington on 40 acres.



So putting this all together: If you live in a place where state laws are similar to Washington, and you live on land that is dual zoned for residential and commercial (in her case probably agriculture zoning), you should be able to open a craft distillery on your property in a separate small building... Simple as that.

There is no law to state you HAVE to sell anything, and if you are not selling anything even if you're reporting to the TTB, you sales would just be zero. (she does not state whether or not she submits paperwork or anything of that nature)


Anyways, I found this interesting. Maybe she just got a bit lucky in here situation, but every which way I try to think about it, it does sound like it could be quite possible if your states laws/zoning lines up?


Love to hear thoughts/criticism on doing it from ya'll.... I might even reach out to this lady and see if she has anything more specific to add as far as what she is doing for reporting (if any) and if any issues have arrived since she published the book.
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Re: Legal "Loophole" for Distilling "at home"

Post by OtisT »

Hi Fishkiller. ;-)

I’m no expert on setting up a distillery, but have done some reading on it and am interested in the subject. My questions are regarding US law, for the rest of the world reading this.

I may have missed some point in your summary, but I’m not understanding where the loophole is you mentioned. She still needed a license, right? And she needed to meet their requirements for zoning and a building. (I believe a second storage building is also required if the quantities of product to store are above a certain level.) I’ve never heard/read anything about needing to sell, though if you do their are regs for that too. I do believe all in the US would also need to pay federal tax on what you make, not what you sell. ( makes conservative cuts that much more expensive, and maybe a reason why mavor produces don’t re-run feints ( just my speculation)

Just trying to understand your message. Thanks. Otis.
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Deathtofishy
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

Otis,

That's why I put loophole, and at home in quotes... thought I was being clever. :)

Yes, from what it sounds like, she did just open a distillery on her property. In her book, she said she just put a lock on the door for an old shed that held pigs its literally 8 x 10 feet according to her, and the picture looks pretty basic homemade structure.

To me its an interesting point. If you already have a separate structure you are distilling in, and you are on mixed-use land... if you care to, you might be able to actually get the state and federal licenses and permits to do it legally. It just might cost you some yearly fees but depending, on your situation, that might be worth it.

My good friend opened up a distillery about a year ago, so I'm gonna go over it with him a bit to see if there is anything that I'm missing. I'm gonna contact this lady and see if she can give some more insight too.

As far as the fed tax. On my end from when I was involved in the brewing world, we never had to pay tax on product that we never were selling. For example, any loss of product (bad batch that went down the drain, free samples, bartender left tap handle opened, beer was pouring bad, etc) was not accounted for. I clarified this with the TTB when I was reporting early on, because It didn't make sense to me to pay tax on a product that we never made any profit on.

Again I'm not positive on distilled liquor, but I'm guessing its the same. They pay per proof gallon, but shouldn't pay tax on something that doesn't make profit.
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Re: Legal "Loophole" for Distilling "at home"

Post by TDick »

just my cent and a half on this point and I'll try not to get too far off topic.
I'm sure I'm not the only one here that has been in business for himself.
Even in legitimatly selling products, some people will make sure to take advantage of every legal deduction and if, on paper, you lose money, that is fine.
Why do you think Las Vegas is the Convention Capital of the World?
Everything you buy or do, IF it is involved in your "business" is deductible.
Important Caveat As is everything else, keep it legal. And I am NOT an attorney or a CPA.
This is just to say IF you are "forced" to operate as an ongoing business, it's not the worst thing in the world.
Case Study
A good friend who is an astute businessman became interested in wines. He and his wife took a vacation to Sonoma and wanted to buy and ship wines back here to Alabama, which has very limited choices. It evolved that to buy and have wine shipped to him, he had to "create" a wine business, which he did. Then his accountant told him he couldn't keep operating at a loss and had to make a real effort at the business. He set it up then hired his daughter to run it and she turned it into a decent state wide operation.
Just sayin, strange things... love to hear from lawyers and accountants about it.
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

I did end up finder her contact info and emailing her. We'll see if I get a response.

One of my questions was whether she got a business license as well as the state permit (she doesn't state this, so I'm assuming not?)

As far as operating a business in the negative, you usually have to have 3+ years of running in the Red before the IRS gets suspicious. I know this from starting up some of my businesses, and I have a CPA in the family. However, this is if your using it for write offs, I don't think it would be an issue if it had no losses or gains?
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Re: Legal "Loophole" for Distilling "at home"

Post by DAD300 »

Well they can't force you to sell your booze or make a profit, but...they can make it very expensive if you don't!

You have to have a Fed license to own a still. Most States also require a license, except Missouri, the one state that will allow you to own a still without a license.

While the Feds don't make you sell your product, they make you pay the tax when you remove it from the "Bonded Area" as defined in your license. So, if you want to sit in the Bonded Area and taste test your product, I imagine the Feds will allow you to, as long as you comply with a lot of other requirements; Monthly reporting, listing equipment, business license, FEIN, filing taxes (even if to report a lose),... The Fed license requires the Bonded Area be separate from your house and residential property with security alarms, specific locks, fences...

Now your State requirements. State licenses usually cost money and entail inspections. ABC License $1,000 a year in my State. Then the other State Departments come at you, Tax & Revenue, Manufacturing, Health Dept,...you have to have a a separate address, separate land line for 911, separate septic, water . Neighbors will be polled for objections.

Now, the State will call all the local offices, Sheriff, Fire Dept, waste and OHHHhhh let's not forget the EPA or your States version. So, you're on the radar and the Sheriff, Fire Marshall, Local Police, Health Dept, EPA...will all stop by for inspections.
Are you be ADA compliant? Lighted exit signs? Properly ventilated? Fire sprinklers?

You may be able to legally do it, but not practically.

Most of us would have to expect a return/profit to make the expense practical.

If you're trying to act on a legal loop hole, go for the Fuel Permit and say your truck likes rum!
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Re: Legal "Loophole" for Distilling "at home"

Post by Cu29er »

.

The problem point for most will be 'commercial space'. Ninety-nine percent of the people interested in home distilling likely live in a residential-only zoned house. Unless the 'right to farm' act features can be brought to effect -- that some are using to keep chickens and bees inside residential city limits.

Keep us posted of developments.

.
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

DAD300, Just want to clarify some things here. I really appreciate the insight, I find this to be an interesting discussion!
DAD300 wrote: Well they can't force you to sell your booze or make a profit, but...they can make it very expensive if you don't!

You have to have a Fed license to own a still. Most States also require a license, except Missouri, the one state that will allow you to own a still without a license.
I don't believe this is correct. Federally you can own a still as long as its registered, and some states don't have any issues with it either. I believe even in Missouri it should be registered. The Issue comes with using it to produce liquor to sell without a license and appropriate permits. From what I know, you have to own the still and have the location approved before the TTB will grant you a license.
DAD300 wrote: While the Feds don't make you sell your product, they make you pay the tax when you remove it from the "Bonded Area" as defined in your license. So, if you want to sit in the Bonded Area and taste test your product, I imagine the Feds will allow you to, as long as you comply with a lot of other requirements; Monthly reporting, listing equipment, business license, FEIN, filing taxes (even if to report a lose),... The Fed license requires the Bonded Area be separate from your house and residential property with security alarms, specific locks, fences...
I see what you saying on bonded area removal, this makes sense. I'm assuming that's when its packaged and ready to distribute or sell on premise (sometimes in a room/shop separated from the distillery area) it is subject to excise tax. At least this is how I've seen it setup at newer startup local craft distillers in my town.

Now this is where it gets a little interesting, she doesn't make any mention of a business license. But lets look at both scenarios

I'm assuming she has one. Then she might have to file monthly reporting, but since she isn't selling it never changes, same form information every month, super easy. Equipment only needs to be listed/registered with initial paperwork unless it changes i assume? Business license might need to be updated yearly? FEIN doesn't change. If you are a sole proprietor and you don't make more than 400 dollars per year you don't have to claim taxes. little work? Sure, but all of this can be filed online in seconds especially when you have done it before.

I know it sounds crazy, But if she doesn't have a business license, because she isn't selling anything... then I'm guessing all those requirements change pretty drastically. Monthly reporting might be done? equipment was registered once to begin with, no license, no FEIN, no reason to file taxes as stated above.

DAD300 wrote: Now your State requirements. State licenses usually cost money and entail inspections. ABC License $1,000 a year in my State. Then the other State Departments come at you, Tax & Revenue, Manufacturing, Health Dept,...you have to have a a separate address, separate land line for 911, separate septic, water . Neighbors will be polled for objections.


Now, the State will call all the local offices, Sheriff, Fire Dept, waste and OHHHhhh let's not forget the EPA or your States version. So, you're on the radar and the Sheriff, Fire Marshall, Local Police, Health Dept, EPA...will all stop by for inspections.
Are you be ADA compliant? Lighted exit signs? Properly ventilated? Fire sprinklers?
This is where its going to be different state by state. Looks like Washington has a license for startups that's only $100 per year in her scenario, drastically different than a $1000. Your state sounds like it really isn't friendly to starting a business, I've had to deal with some of those departments in some of my business ventures, but for the most part it was a breeze.

Now we got to remember this isn't a public facility. So codes and compliance are going to vary drastically. Its a 8 x 10 separated building that used to be a pig pen. She slapped a lock on the door and the fire inspectors gave her the green light. Doesn't even have electricity to the building.
DAD300 wrote: You may be able to legally do it, but not practically.

Most of us would have to expect a return/profit to make the expense practical.

If you're trying to act on a legal loop hole, go for the Fuel Permit and say your truck likes rum!
I hope you know I"m just playing devils advocate with your response. But I just find it fascinating that she went to the trouble to figure this out more or less, and it seemingly worked without too much issue on her end. From the sounds of the book she just started calling up the local and federal agencies to do this and all the cards fell into place. She complains about the current home distilling laws and advocates against them, but if she came to a forum like this first she may have never even tried to do it.
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

Cu29er wrote:.

The problem point for most will be 'commercial space'. Ninety-nine percent of the people interested in home distilling likely live in a residential-only zoned house. Unless the 'right to farm' act features can be brought to effect -- that some are using to keep chickens and bees inside residential city limits.

Keep us posted of developments.

.
Definitely a lot of people on here are urban dwellers... Although there probably are some folks here who live on some agricultural land. My county is probably 50/50 to 60/40 ratio of residential only to outlying farm land... you'd be surprised at how some zoning laws haven't changed in over 100 years. I know a guy in the middle of the city who owns 4 goats. No problem at all, except his neighbors look at him cross eyed.
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Re: Legal "Loophole" for Distilling "at home"

Post by bluefish_dist »

On the federal level and most state level you have to file monthly reports on what you produce. That includes where it went, i.e. Down the drain, removed from bond, etc. any that leaves the bond in a bottle has to have tax paid.
Yes, you could theoretically run a legal distillery for yourself and pay the taxes on everything you make. The big cost would be state license. For me that runs about $1k per year. The other cost is rent. If you had land and put it on your own property you could get away with no rent. For me I would need at least 35 acres that is rr35 to legally have a business on my land.
I think it would cost you $1k per year in Colorado and monthly reports, but it could be done. Then if you ever stopped, you would have to either destroy your inventory or sell it all. Can't close a dsp with inventory in bond. Probably not worth the hassle for most.
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DAD300
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Re: Legal "Loophole" for Distilling "at home"

Post by DAD300 »

You can go on line for free and see the application requirements.

You won't get far without an FEIN, Lease for the property, Serial Number of the still, fermenter and product condenser. Yes, you must own or have a sales receipt for that equipment. So, when I brought the stills to the new building, I wrote a letter to the State saying so, to keep it above board.

Then you must prove economic authority (that you are financially capable of funding the build and operation). Criminal checks (local and FBI) to make sure the MOB isn't involved with funding.

I understand "devil's advocate." :D But I've been through the process as has Blue Fish. It's more invasive and expensive than you can imagine.

It can also be maddening. ABC and Health Department told me I must have an ADA bathroom. $5,800usd later they admitted I didn't really. EPA was called for an environmental study because Health Dept didn't want to say were would be a GREEN Operations. A month for the EPA to review our processes and say we were o.k.

I owned the land and building. I had to lease it to myself to satisfy the Fed and State. Go to ADI Forum and read the issues with having it on your own property.

Almost $100,000K and two years in time to get minimally equipped and legal. And that's if you do everything yourself.

Every time I thought I had everything and everyone satisfied, something new popped up!

Not many can put that in a hobby. Now I have to sell it myself. Hey, you want to buy a bottle or ten?

I'm looking for a way to let others use my distillery as a work place. You come here and work a batch, mash, ferment, distill, bottle, I pay taxes and I sell it to you! Problem is how much you would have to buy. Maybe 250 bottles?
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

Its interesting how much more difficult it sounds then opening a brewery. I remember some of the forms were the same, just providing different data as to whether you were a brewery, winery, or distillery, but its been 6 plus years since I filled them out. I'm sure there are some extra ones as well that are specific to each.

Even simple things like your issues with the health department are nuts to me. Our health department walked through the brewery for all of 30 seconds, looked at a sink and said they'll sign me off but i needed to promise them I'd put caulking around it... Not that anything was wrong, they just didn't know what to look for. Although they spent about 30 minutes with the guys down in the kitchen going over stuff. We were the 5th brewery to open in a town of 250-300k people at the time, and the first 3 opened over 10 years prior... their might be more of an inspection protocol now with the craft industry boom?

I remember at my friends distillery they used Roto-Mold conicals for fermenting... He literally had to make up serial numbers and sharpie them on there and send it in... hilarious.

But I totally understand just doing what needs to be done to get open. Fire inspector wanted me to put sprinklers in the walk in cooler, I made a stink about it since no one else had them at any brewery/bar I had ever seen. Got my way as there wasn't anything specific about it actually written in the law, but the process of contesting it cost more in set backs then just doing what he asked. I've since seen many new breweries with them in the walk-ins... not sure if it was written in, or they just are smarter than I was :D

I'll look into that property stuff... is that contingent on the business entity that you are? Seems crazy to lease back to yourself?
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Re: Legal "Loophole" for Distilling "at home"

Post by Deathtofishy »

This is also an interesting little thing I found while scanning through the TTB site to see if there is anything specific about HAVING to own a business:

TTB Website wrote: ELIMINATION OF BOND REQUIREMENTS FOR SMALL BREWERIES/BREWPUBS, DISTILLED SPIRITS PLANTS, AND WINERIES

As of January 1, 2017, if you are the proprietor of a brewery, distilled spirits plant, or winery owing not more than $50,000 in excise taxes in the previous year, and you expect to owe not more than $50,000 in excise taxes in the current year on beer, distilled spirits, or wine, you may no longer be required to hold a bond.

In addition, if you owed not more than $1,000 in excise taxes the previous year and expect to owe not more than $1,000 in the current year, you will be eligible to file your excise taxes annually, rather than semi-monthly or quarterly.

The information in this tutorial may not reflect these changes. TTB will update it as soon as possible. In the meantime, please see our Bond and Filing Changes homepage for more details.

So if this is doable and somewhat practical in your state/situation, it looks like you don't have to be bonded anymore, and paperwork would be less....
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Re: Legal "Loophole" for Distilling "at home"

Post by DAD300 »

I don't have to be Bonded anymore and will file to drop it when next due, but the FED tax will still be due when the booze leaves the distillery or on a schedule/ monthly/quarterly/yearly. Jan1st the amount changed also.

The fewer distilleries in your State the harder it will be. They don't have a path to follow.

I had to lease the property from myself to the business (LLC). It's just a contract I got off line. But it also creates a good legal buffer if some one were to sue.

Liquor seems to be a business that requires you to spend a lot of time and money, before you can even get the license. Imagine if you had to own a $100,000usd truck to apply for a CDL.

It's worse in some States, three tier setups. Those distilleries have to sell everything to the State and they distribute for you.
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Re: Legal "Loophole" for Distilling "at home"

Post by Tapeman »

Does anyone have info on the Craft Beverage and Modernization Act that PASSED CONGRESS on December 20? I read the original bill that was introduced in 2015 but it was amended for 2017, and was voted into law when the new tax reduction act got passed. I'm wondering if our hobby is now going to be legal at last in the US?
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Re: Legal "Loophole" for Distilling "at home"

Post by badflash »

I think putting in for a farm distillery license is the way to go in states that have these laws. Application costs a are low, and the states are pretty open without being overly invasive. Of course they want you to sell and give them tax money. I have a brewery license from the TTB and it was pretty easy to get. The farm brewery permit was harder, but not very hard. The TTB just wanted a plan, NY wants a finished facility, and you need a health inspection from Ag & Markets, but they are helpful, and not invasive.

The biggest issue with most hobby people is the book keeping. That is where you get into trouble.

Putting in for a fuel license is easy and pretty quick, but you will need to show them what you are doing with your fuel. If you are drinking it all and have no way to use the alcohol for fuel, it will be hard to explain. I have a flex fuel truck, and a diesel I can mix alcohol into, so I am legit.
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Re: Legal "Loophole" for Distilling "at home"

Post by cranky »

I figured this was a dead thread by the time I found it so haven't commented but some years ago I brought this very subject up about this same person. ( viewtopic.php?f=49&t=50049&p=7224943#p7224943 ) She lives on a farm in Washington state. Back in 2014 (?) she wrote this
" I recently applied for a Washington State "craft distillery" license, for which I paid $100. This license permits me to produce up to 60,000 GALLONS of liquor per year. As far as sales, I am allowed to sell only retail, the customer must purchase from the place of manufacture, and I can't sell more than 2 liters per customer per day. Oh, and I have to report sales monthly and collect and pay applicable taxes.

In case you weren't aware, there are actually two licenses required to legally distill liquor: The aforementioned State license, and the Federal Basic Permit. (Incidentally, if you think there is a lot of paperwork involved in organic certification, you'll be impressed by the Federal Basic Permit process.) "
Then someone said
wrote: I don't believe anyone is making and selling alcohol on their farm legally in Washington state, which is two separate licenses each with their own issues...
It was painfully obvious to me at the time that nobody was really interested in anything this lady did or said and I didn't feel like arguing about it so I dropped the subject.
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Re: Legal "Loophole" for Distilling "at home"

Post by badflash »

Craft distilling is a big thing in NYS with the new farm distilling/brewing/wine/mead/etc. licenses. It does take 2 licenses, one from the TTB and one from the state. It isn't complicated, and the feds don't even require a bond any more for small producers. I know of about 5 within an hour of me. It does cost a few hundred bucks from the state, and you have to have a separate building that can be secured, record keeping, etc. but it is doable.

I have a TTB license for beer production and had an interim approval for the state before I got sick. Now that I am over it, I will re-apply.
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Re: Legal "Loophole" for Distilling "at home"

Post by Copperhead road »

It’s not that easy or cheap to get a license to legally make spirits in Australia, the only cheap part of the process is obtaining the “still permission” from the ATO (Australian tax office) but that only allows you to own a still not use it!
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Re: Legal "Loophole" for Distilling "at home"

Post by Yogi Chang »

" (she does not state whether or not she submits paperwork or anything of that nature)"

she would have to file income taxes. she would show a loss. that would be written off against her other income. she can do this because the distillery is techniquly a business. if it was classified as a hobby, she could not write off her losses.

sorry about the quote thing. i couldn't find the reply with quote botton

cheers!
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