From: Norman F. Sharp [nsharp@cigarassociation.org]
Sent: Wednesday, August 31, 2005 2:42 PM
To: techcorrections (Finance-Rep)
Subject: Technical correction letter (Finance)

Cigar Association of America, Inc.

1707 H Street, NW (Suite 800)

Washington, DC  20006

 

 

 

August 31, 2005

 

 

The Honorable Charles Grassley                     The Honorable Max Baucus

Chairman                                                         Ranking Member

Committee on Finance                                    Committee on Finance

United States Senate                                      United States Senate

Washington, DC  20510                                 Washington, DC  20510

 

 

Dear Chairman Grassley and Senator Baucus:

 

In response to your request for comments on S. 1447, the Cigar Association of America would urge you to make a technical correction to the American Jobs Creation Act of 2004 (“AJCA”), specifically to the provisions under Title VI, the Fair and Equitable Tobacco Reform Act of 2004 (“FETRA”), providing for the buyout of tobacco quota owners and growers.  The members of the Cigar Association of America account for more than 96 percent of cigars manufactured, imported, and sold in the United States.

 

Our comments relate to AJCA section 625, which provides for imposition of assessments as a source for the payments to tobacco quota owners and growers.  Section 625(b) requires the Secretary of Agriculture to impose quarterly assessments (during the FY 2005-14 period) on tobacco product manufacturers and importers selling products in the United States, including manufacturers and importers of cigarettes, cigars, snuff, roll-your-own tobacco, chewing tobacco, and pipe tobacco.  Section 625(c) provides rules for allocating shares of the total assessment to these different classes of tobacco products.

 

Cigars erroneously subjected to assessments

 

From a policy perspective, it was a clear mistake for cigars to be included in the AJCA tobacco buyout assessment regime.  The apparent policy justification for the tobacco buyout assessments was that the manufacturing beneficiaries of the Federal tobacco quota/price support program should bear the cost of retiring that program.

 

That policy does not argue for imposition of the assessments on cigars.  The cigar industry simply does not make use of quota tobacco.  In 2002, the cigar industry’s use of quota tobacco was just 0.025 percent of the total 905 million pounds of quota tobacco grown in the United States.  In fact, domestic quota tobacco was used by only one small company in Scranton, Pennsylvania that makes only 0.3 percent of all cigars sold in the United States.  By way of comparison, we believe the amount of quota tobacco used by the cigar industry is about the same as the amount used in medical research programs.

 

Nor does the cigar industry use any significant amount of imported quota-type tobacco.   When imported quota-type tobacco is added to domestic quota tobacco, the cigar industry’s use of such tobacco remains de minimis – just 0.14 percent of the total used by the entire tobacco industry in 2002.  The fact is, cigars sold in the United States are made from a completely different class of tobacco than that at issue in the quota buyout program.

 

The inclusion of cigars in the AJCA buyout program has much to do, we suspect, with the speed in which the AJCA conference negotiations were concluded.  Neither the House-passed nor the Senate-passed buy-out provisions included any buyout assessments with respect to cigars.  The House-passed bill included no buyout assessment scheme, while the Senate version’s buyout assessment provisions specifically (and correctly) exempted cigars.  The assessment regime included in the conference report was wholly new, and developed without the benefit of a full and open airing of views that we believe would have led lawmakers to exempt cigars.

 

Cigar industry’s assessment allocation is miscalculated

 

A further injustice to the cigar industry is the fact that the industry’s allocated share of the total buyout assessment is overstated.

 

The AJCA initial allocation percentages were determined by reference to 2003 excise tax data.  Specifically, the assessment allocations were calculated by multiplying tobacco products (both domestic and imported) “removed” (i.e., subject to tax) in 2003 by the maximum excise tax rate for each class of tobacco.  The AJCA methodology resulted in an estimate that cigars accounted for 2.783 percent of total tobacco excise taxes in 2003.

 

This methodology erroneously assumes that all large cigars were taxed at the maximum rate of $48.75 per 1,000 cigars.  In reality, however, a sizable number of cigars are sold at a price that yields a tax per 1,000 that is significantly lower.  Furthermore, final Department of Agriculture regulations implementing the assessment regime compound this problem by providing that the same flawed methodology will apply for purposes of determining class allocations for all subsequent years.  Accordingly, absent the appropriate exercise by the Department of Agriculture of its regulatory authority to base future assessments on actual tax collections, the allocation percentage for cigars will continue to be misstated going forward.

 

Actual excise tax data for imported and domestic tobacco shows conclusively that the 2.783 percent share for the cigar industry was grossly overstated.  Consider the following:

 

 

 

 

The government data therefore indicates that cigars accounted for $161.490 million ($154.361 million domestic plus $7.129 million imported) of total FY 2003 tobacco excise tax collections of $7,910.776 million ($7,435.498 million domestic plus $475.278 million imported), or 2.04 percent.  

 

Thus, if cigars must be assessed under the buyout program, and the assessment must be based on excise taxes, the industry’s allocation should be 2.04 percent – not 2.783 percent as enacted under AJCA.

 

Unfortunately, the situation only will get worse for the industry over the 2005-14 life of the assessment program.  Because the large cigar excise tax is the only ad valorem tobacco excise tax, the cigar industry’s share of total industry excise taxes will continue to climb as large cigar prices increase – even if cigar use (relative to other products) remains constant.  As the cigar industry’s share of taxes rises, its assessment allocation likewise will increase.  Based on our projections, the cigar industry’s share of total assessments will climb from 2.783 percent to more than 5 percent before the assessments terminate.  Looked at another way, the cigar industry’s share of assessments will increase from $282 million over 10 years (if the first-year assessment were held constant) to nearly $400 million.

 

Recommendation

 

It remains the strong view of the Cigar Association of America that cigars should be removed from the tobacco-buyout assessment regime, for all of the reasons discussed above.  Accordingly, we urge you to consider an AJCA technical correction that would accomplish this result.

 

If a decision is made not to remove cigars from the buy-out regime, the alternative technical correction would be to set allocations by reference to the actual share of tobacco excise taxes paid (i.e., 2.04 percent in 2003).  Further, in light of the unfair application of the assessment regime to the cigar industry, we would urge that the industry’s allocation be frozen at that level for the duration of the assessments.

 

Sincerely,

 

 

 

Norman F. Sharp

President