Liquor License Tax Deductions clarified by the Taxation and Revenue Department

What it is and who is eligible: Apparently there has been some confusion as to whether it is a deduction or a credit. It is a deduction. That means it lessens the taxpayer’s tax liability by lowering their taxable income or taxable gross receipts.

The Legislature created deductions of up to $50,000 on either personal or corporate income tax for liquor license lessors who held licenses as of June 30, 2021. The license must be a dispenser’s license and sales of alcoholic beverages for consumption off premises must be less than fifty percent of total alcoholic beverage sales. The deductions are available through the 2025 tax year.

It also created a deduction from gross receipts of up to $50,000 a year for those who held a dispenser’s license as of June 30, 2021. The deductions are available for tax years 2022-2025.

Here is a link to the legislation: https://nmlegis.gov/Sessions/21%20Regular/final/HB0255.pdf

For questions about this Tax Deduction email: Moore, Charlie, Taxation and Revenue Department <Charlie.Moore@state.nm.us

How to claim the deductions.

On PIT the deduction can be taken on Line 22 of PIT-ADJ. 

On CIT the deduction can be taken on Line 17 of the CIT-1. 

For GRT, the deduction code is D0-024.

If you qualify, you would report your liquor sales for the month. You could deduct the sales amount fully if it is under the $50,000 for that month until you hit the $50,000 threshold for that year.

If total liquor sales are above $50,000, you could claim the full deduction of $50,000 once and that would max out your deduction for the year.

This deduction is for up to $50,000 of alcohol receipts for the year, not $50,000 of tax reported.

CHANGES STARTING JULY 1

Here are immediate changes to the liquor laws as of July 1, 2021, that proprietors should be aware of, in no particular order:

·     Sunday sales: No restrictions. Hours, based on the various licenses hours of operation, are the same on Sunday as they are Monday through Saturday. Off-premise sales – 7 am – midnight. On premise, full dispenser – 7am – 2am.

·     Ask for ID if the person looks younger than 35.

·     An identity document is valid for the purposes of the Liquor Control Act even if it is expired.

·     Holders of dispensers, restaurant or club license may employ servers 18 years or older to sell or serve alcoholic beverages in a restaurant setting. Food sales must be the primary source of revenue. Bartenders must still be 21 years of age or older.

·     Off-premise licensees may not sell spiritous liquors in closed containers of 3 fluid ounces (‘minis’) or less. The exceptions to this rule are on-premise sales of miniatures such as hotels, golf courses, planes, and trains.

·     Licensed Premises Expansion- Creating a “controlled access” area outside of the licensed premises will be allowed (excluding parking lots or fueling stations) on the property of the business as long as the controlled access area is enclosed by a sufficient barrier and connected and contiguous to an indoor controlled access area. “Licensed Premise” means contiguous areas of the business property that are under the direct control of the licensee. A diagram/floor plan must be approved by ABC.

HB 255: Alcohol Deliveries – This bill has been signed by the Governor. The following link is to the NMRA Analysis of HB 255 – Disclaimer: The following is our first reading of the liquor bill. The Alcohol Beverage Division will be promulgating rules for this new law that may not follow this analysis. Please DO NOT make business decisions using this analysis. We are paraphrasing what the law actually says and only looking for the major changes. Read NMRA HB 255 Analysis Read Copy of Final Bill

ALCOHOL LAW CHANGES FAQs

1 – Can an 18-year-old serve alcohol if the establishment has a wine grower’s license?
Answer: No. Dispenser, restaurant, and club licenses, held out to the public as a place where meals are prepared and served and the primary source of revenue is food, are the only licenses that may employee minors as servers.
15.10.33.9 EMPLOYMENT OF MINORS: A. No person may employ a minor to participate in the sale or service of alcoholic beverages, or to supervise other employees with respect to the sale or service of alcoholic beverages, except as provided in this section.
B. In accordance with Subsection B of Section 60-7B-11 NMSA 1978, a holder of a dispenser’s, restaurant or club license that is held out to the public as a place where meals are prepared and served and the primary source of revenue is food, and where the sale or consumption of alcoholic beverages is not the primary activity, may employ minors 19 years
of age or older to sell or serve alcoholic beverages, except that a person younger than 21 years of age shall not be employed as a bartender. Otherwise, no person may employ a minor to participate in the sale or service of alcoholic beverages, except as provided below. C. A holder of a restaurant, dispenser’s, or club license, or a special dispenser’s permit, may allow minors to enter a restricted area to remove and dispose of alcoholic beverage containers in the course of their employment as bus persons provided that such employees remain in the restricted area no longer than necessary to carry out those duties.
NMAC |Title 15 |AGD Rules |Page 14 of 61

D. A holder of a wholesaler’s, retailer’s, or manufacturer’s license, or a holder of a dispenser’s license who sells by the package, may employ minors to stock and handle alcoholic beverages in unopened containers on or around the licensed premises if an adult 21 years of age or older is on duty directly supervising such activities. E. A licensee may permit the following minors to enter and remain in a restricted area of a licensed premise
during the course of their employment or official duties if the minors are at least 18 years of age:
(1) professional musicians, disc jockeys or other entertainers engaged in their professional capacities, or sound or lighting technicians actively engaged in support of professional musicians, disc jockeys, or other entertainers;
(2) persons performing janitorial services, but only when the licensed premises are closed;
(3) employees of amusement device companies for the purpose of installing, maintaining, repairing or removing any lawful amusement device or vending machine; and (4) security and law enforcement officers. [15.10.33.9 NMAC – Rp, 15 10.33.9 NMAC, 4/25/2017]
15.10.33.10 NO SALE, SERVICE, POSSESSION OR CONSUMPTION PERMITTED: Under no circumstances, may minors purchase, be served, possess or consume alcoholic beverages on a licensed premises, and nothing in these rules, including provisions permitting minors on licensed premises, shall be construed as permitting
the sale or service to, or possession or consumption of any alcoholic beverage by, a minor on a licensed premises. [15.10.33.10 NMAC – Rp, 15 10.33.11 NMAC, 4/25/2017]

2 – For the Restaurant A license do you have to wait a year before you can add the spirits permit?
Answer: If you already have a beer & wine license prior to 7/1/2021 then you don’t have to wait. ABC has streamlined the conversion process to make conversion easier and quicker. Additionally, an entity may apply for a restaurant B license at any time.

3 – Can you start with a Restaurant A+ license then upgrade to a Restaurant B license if you determine it is worth the cost?
Answer: Yes

4 – Can a Restaurant B license have a bar?
Answer: No.
D. Except for food counters where patrons may sit to order food and drinks, a restaurant may not have any counters dedicated primarily to the display, service, or consumption of alcoholic beverages, with incidental food service;
and
E. All areas of the licensed premises must have food service as the primary commercial purpose.
Here is the citing, and the rule remained the same in the new rules.
15.11.24.9 APPLICATION FOR RESTAURANT LICENSE: An applicant for a restaurant license shall satisfy the director that the applicant is a restaurant as defined in these rules and its primary purpose is not the sale or service of alcohol, by submitting the following: A. Documentation showing that the applicant holds a valid food service establishment permit, and has a dining room and a kitchen for preparation of food for on premises consumption. Documentation shall include photos of kitchen equipment. B. A menu showing that the food items available are not fast foods, consistent with the definition of a restaurant as defined in these rules. The menu must contain entrees that are available during all usual and customary hours of operation, and identify the hours of operation. C. A detailed floor plan and photos of the proposed licensed premises that depicts and labels all areas of the restaurant including, but not limited to the kitchen, dining, storage and patio areas. Outdoor patios must be enclosed by a fence or wall to physically separate the outdoor portion of the licensed premises from the surrounding area. The enclosure must enclose the majority of the outdoor patio, but may have a small opening or a gate to allow patrons to enter and exit, unless the director finds good cause to require the patio to be completely enclosed or to waive this requirement subject to any necessary restrictions where the outdoor patio areas are sited within a licensed premise comprised of areas and facilities, provided that the totality of the licensed premise is physically or otherwise appropriately separated from the
surrounding areas. The enclosure for an outdoor area does not have to be permanent, but the enclosure must be erected any time alcoholic beverages are being served to patrons seated in the outdoor patio.
D. Except for food counters where patrons may sit to order food and drinks, a restaurant may not have any counters dedicated primarily to the display, service, or consumption of alcoholic beverages, with incidental food service;
and
E. All areas of the licensed premises must have food service as the primary commercial purpose.

5 – Can you have a dedicated bartender with the Restaurant A or B license?
Answer: No. Restaurant licenses are not allowed to have designated bartenders.  While this is not written, it is due to the fact that they cannot have bars.  If the licensee cannot have an area dedicated primarily to the display, service, or consumption of alcohol (aka a bar) they cannot have someone whose primary function is the tending of a bar.

6 –  Can an 18-year-old be a bartender or a delivery driver?
Answer: No. Both a delivery driver and a bartender must be 21 or older.
60-7B-11. Employment of minors.
A. Except as provided in Subsection B or C of this section, it is a violation of the Liquor Control Act for any person licensed pursuant to the provisions of the Liquor Control Act [60-3A-1 NMSA 1978] or for any employee, agent or lessee of that person knowingly to employ or use the service of any minor in the sale and service of alcoholic beverages.

B. A person holding a dispenser’s, restaurant or club license may employ persons eighteen years of age or older to sell or serve alcoholic beverages in an establishment that is held out to the public as a place where meals are prepared and served and the primary source of revenue is food, and where the sale or consumption of alcoholic beverages is not the primary activity, except that a person under twenty-one years of age shall not be employed as a bartender or deliverer.

7 – Can you deliver beer, wine, or spirits to a hotel room outside of the restaurant but in the same building?
Answer: If the hotel is not part of the licensee’s designated floorplan, then the answer is no.  If the licensee has the hotel as part of the approved floorplan, then it is not considered delivery as the entire transaction takes place within the controlled access areas of the licensed premises.  The ability to include hotel rooms on the floorplan will depend on the type of license the establishment has, as well as areas with the licensee’s control.

According to the ABC Rules: An establishment shall not deliver alcoholic beverages to a business, a commercial establishment, a college or university, or a school campus; This is very circumstantial therefore we suggest asking ABC before proceeding with this practice.
15.11.20.8 ALCOHOLIC BEVERAGE DELIVERY PERMIT: An alcoholic beverage delivery permit may be issued, at the discretion of the director, to the holder of a retailer’s, dispenser’s, craft distiller’s, winegrower’s, small brewer’s, restaurant a, or restaurant b license upon submission of an application to the division.
A. For purposes of this section dispenser’s licenses shall include dispenser’s, inter-local dispenser’s, canopy, and lottery licenses.
(1) Those licenses that no longer have package sales capabilities, for consumption off of the licensed premises, to be limited in alcoholic beverage quantities established in Subsection B of 15.11.20.10 NMAC and Subsection C of 15.11.20.10 NMAC.
(2) Nothing within these rules allows licensees to allow for to go sales of alcoholic beverages for consumption off of the licensed premises, if the license does not allow for package sales.
B. The holder of an alcoholic beverage delivery permit may do the following:
(1) Deliver alcoholic beverages only in unbroken packages or sealed growlers;
(2) Deliver alcoholic beverages only within the geographical boundaries of the county and the local option district the licensee is located, unless written approval to deliver into an adjoining county has been given by the division;
(3) Deliver alcoholic beverages only during the hours allowd by the Act, based on the license type; and
(4) Contract for the delivery of alcoholic beverages with the holder of a third-party delivery license issued in accordance with the act.
C. The holder of an alcoholic beverage delivery permit:
(1) Shall receive payment for alcoholic beverages only at the licensed premises of the licensee personally, telephonically, electronically, via website or application, or other internet platform;
(2) Shall not change the price charged for an alcholic beverage because it was purchased for delivery, provided they may charge a separate delivery fee disclosed at the time of the purchase;
(3) Shall not delivery an alcoholic beverage to a business, a commercial establishment, a college or university, or a school campus;

8 – Can customers picking up to go food orders also pick up wine, beer, or mixed drinks?
Answer: No. Delivery permits do not allow for “to-go” orders of alcohol.

15.11.20.8 ALCOHOLIC BEVERAGE DELIVERY PERMIT
A.2 . Nothing within these rules allows licensees to allow for to go sales of alcoholic beverages for consumption off the licensed premises, if the license does not allow for package sales.

9 –  We have a retail liquor store and have applied for a delivery license. Are there limits to how much we can deliver to a residence?
Answer: Yes, depending on your license type. Delivery restrictions may occur due to either the type of license held or the size and location of the business.  If the license does not have package sales capabilities (Inter-Local Dispenser or either Restaurant License) then it is limited by 15.11.20.10 (below).  Additionally, restrictions/requirements may occur if license is located in a Class A county and has a retail space greater than 10,000 square feet.  With that being said, there are no restrictions on the quantity, a licensee with package capabilities in a Class B county or under the 10,000 square feet limit in a Class A county, can deliver at any one time.

15.11.20.9 DELIVERY RESTRICTIONS AND REQUIREMENTS IN CLASS A COUNTIES:
A. The division shall follow the county classifications established by the local government division of the department of finance and administration.
B. Licensees otherwise qualified to be issued an alcoholic beverage delivery permit, with an indoor retail space greater than 10,000 square feet, located in a class A county shall:
(1) Use an identification verification system approved by the division. The system must
have the capabilities to establish identification of the purchaser was checked and scanned for each delivery and store such information; (2) Only sell for delivery beer and wine.
(3) Provide to the division proof of liquor liability endorsement in the amount of five million dollars ($5,000,000) or greater; and (4) Only utilize employees of the licensee for purposes of delivery of alcoholic beverages.

15.11.20.10 DELIVERY RESTRICTIONS AND REQUIREMENTS FOR RESTAURANT LICENSES:
A. Restaurant licenses are limited to the delivery of alcoholic beverage types allowed by their license.
B. Alcoholic beverages shall only be delivered to customers concurrently with the delivery of a minimum of ten dollars ($10.00) worth of food.
C. Delivery of alcoholic beverages to one location, during a three hour period of time, shall not exceed:
(1) 750 milliliters of wine;
(2) six 12-ounce containers of prepackaged wine, beer, cider;
(3) three 12-ounce containers of manufacturer canned or bottled ready to drink cocktails
containing spiritous liquors with an alcoholic by volume of thirteen percent;
(4) one growler or crowler of product manufactured by a small brewer; or
(5) one howler of a cocktail, mixed by the licensee, containing no more than four and one-
half ounces of spiritous liquors, in order to comply with Paragraph (6) of Subsection F of Section 60-6A-4 NMSA
1978, of the act. The howlers used must contain the DBA of the licensee etched onto the glass or have the receipt secured onto the container.
D. Contracting with the holder of a third-party delivery license shall not be used as a means to
circumvent these rules.
[15.11.20.10 NMAC – N, 9/14/2021]

10 –  To expand our premises do we just submit a new floor plan?
Answer: Yes. If you are updating or expanding your “licensed premise” must have “controlled access”. Additionally, NMAC 15.10.32.12 requires that floor plans that accurately reflect the controlled access areas of a licensee’s licensed premise be kept current by filing an application to change a floor plan within 30 days of a change, and to expand a floor plan by filing an application prior to expansion, or upon request by the director.

15.10.32.14 OUTDOOR CONTROLLED ACCESS AREA: Controlled access areas of a licensed premises that are outdoors must be enclosed by a continuous physical barrier of sufficient height in order to physically separate the controlled access area from the surrounding area. The division may allow exceptions to this requirement upon written request by a licensee. Also refer to 15.10.32.10

11 – Can we deliver mixed drinks?
Answer: Yes.
15.11.20.9 DELIVERY RESTRICTIONS AND REQUIREMENTS FOR RESTAURANT LICENSES
C. Delivery of alcoholic beverages to one location, during a three-hour period of time, shall not exceed:
(3) Three 12-ounce containers of manufacturer canned or bottled ready to drink cocktails containing spiritous liquors with an alcoholic by volume of thirteen percent;
(5) one howler of a cocktail, mixed by the licensee, containing no more than four- and one-half ounces of spiritous liquors, in order to comply with Paragraph (60 of Subsection F of Section 60-6A-4 NMSA 1978, of the act. The howlers must contain the DBA of the licensee etched onto the glass or have the receipt secured onto the container.

12 – Are current alcohol server certificates still valid under the new laws/rules?
Answer: Yes, current server permits are valid until the indicated expiration date.

13 – To what type of establishment does the three-drink rule apply?
Answer: Restaurant licenses (who serve spirituous liquors) cannot serve a patron more than three drinks, each containing 1.5oz of spirituous liquors, in a single visit.

14 –  What kind of record keeping do we have to maintain for deliveries?
Answer:15.11.2.15 DOCUMENTS REQUIRED FOR DELIVERY OF ALCOHOLIC BEVERAGES
A. A licensee holding an alcoholic beverage delivery permit, or a third-party delivery license, must cause all delivery employees to have on their person, during delivery, the following:
(1) the original, or an electronic or physical copy, of the permittees alcoholic beverage delivery permit;
(2) A physical or electronic copy of the delivery personnel’s server certification;
(3) A physical copy of the receipt printout accompanying all alcoholic beverages out for delivery;
B. A licensee holding an alcoholic beverage delivery permit, or a third-party delivery license must save for a period of six months, at their licensed establishment, documentation containing the following information:
(1) The name and age information for the customer who ordered and paid for the alcoholic beverages;
(2) The address alcoholic beverages are to be delivered to;
(3) The quantity and type of alcoholic beverages being delivered; and
(4) The time of alcoholic beverage delivery.

15 – How do we purchase NM spirits from a craft distiller?
Answer: The craft distiller can apply for a wholesaler’s license and sell directly to you, or you can go through a traditional distributor for NM Spirits.