Category Archives: Customs

Excise Duty: Your Christmas drink of choice, or perhaps not

By Marcus Ward 17 December 2018

Advocate General (AG) Manuel Sanchez-Bordona has released his opinion in the Bene Factum case (The link is to Lithuanian, so you ‘may” need to translate…).

A curious matter and one which brings into focus the drinking habits of people across the EU. Now, as those who know me will be aware, I am not adverse to a good single malt, nor a decent claret, but I do wonder sometimes where people draw the line.

Background

It transpires that in Lithuania people who choose not to drink, or cannot afford, even the cheapest alcoholic items have turned to drinking perfume and mouthwash which contain isopropyl alcohol. This has a similar effect on the human body to what most people would regard as being from more usual beer, wine or spirits etc. Sounds delicious eh?

Issue

The issue was whether these products where subject to Excise Duty, or, as the appellant contended, they were duty free as cosmetic products.

Decision

The AG found that isopropyl alcohol is almost unpalatable to most people. The fact that Bene Factum held out, advertised and marketed to people to drink the products did not affect the fact that the main purpose of the goods was for their use as cosmetics and mouthwash. What must be considered is Excise Duty depends on an objective classification to determine whether it is intended for human consumption. This classification is not affected by the fact that Bene Factum actively encouraged people to drink these products rather than use them for cosmetic purposes.

Consequently, the goods where not subject to Excise Duty. Good news for Lithuanian alcohol connoisseurs! It remains to see if the court follows this opinion, in most cases they do, but one never knows.

Commentary

If there is anybody out there who is getting ready for their Christmas party, looks at some cosmetic products and considers taking a swig, I make the following comments:

Probably best to stick supermarket own brand booze if money is an issue
I expect that these things taste absolutely terrible (although I have not sampled them)
I tend to stick to things that are to be applied externally doing just that with them without ingestion
If you can’t decide whether to gargle with something or drink it, I counsel spitting it out
If these goods come to the UK, at least they will be even cheaper being duty free. I am not sure that is a good thing.

EC clamp down on yacht and aircraft VAT abuse

By Marcus Ward 8 November 2018

The European Commission (EC) has stepped up its agenda to tackle tax avoidance in the yacht and aircraft sectors by implementing infringement proceedings on tax breaks being applied in the pleasure craft industries of the Isle of Man. These provisions can generate major distortions of competition, as highlighted by last year’s ‘Paradise Papers’ leaks.

The EC has sent a formal notice to the UK in respect of the Isle of Man’s abusive VAT practices relating to sales and leasing of aircraft.

Background

Input tax is only deductible when it relates to business use of an asset. The EC says that supplies of aircraft, including leasing services, intended expressly for private use, should not be effectively VAT free. The EC believes that the UK has not taken sufficient action against abusive VAT practices in the Isle of Man on supplies and leasing of aircraft. This perceived abuse is facilitated by UK national rules which do not comply with EU law.

Broadly, arrangements are made such that a (seemingly) artificial leasing businesses is put in place and through which individuals rent their own jets from themselves. The most high-profile example of this structure is one used by Lewis Hamilton for his private jet.

Features of such arrangements are said to be:

Users of the scheme recover 100% of import VAT when it appears that an adjustment should be made for the proportion of the amount of private use intended for the aircraft
VAT should be declared and paid to any European Member States whose airports are used for leisure flights.
The leasing businesses set up for jets usually appear to be a letterbox companies with no real economic purpose. Consequently, it is unlikely that such entities should be entitled to reclaim VAT from the Isle of Man.

It is understood that the Isle of Man government has called in the HMRC which will review of 231 tax refunds issued to private jet owners since 2011 valued at circa $1billion of VAT.

Representatives of the EC are due to visit the Isle of Man this month. Similar action is being taken against Italy in respect of the lease of yachts and excise duty rates for motor boats.

What happens next?

The UK now has two months to respond to the arguments put forward by the EC regarding VAT on aircraft. If the UK authorities do not act within those two months, the EC will send a reasoned opinion. If the UK does not act within the next two months on the reasoned opinion the EC may bring the case before the Court of Justice of the EU.

Pierre Moscovici, the Commissioner for Economic and Financial Affairs, Taxation and Customs Union, said: “It’s simply not fair that some individuals and companies can get away with not paying the correct amount of VAT on products like yachts and aircraft. Favourable tax treatment for private boats and aircraft is clearly at odds with our commonly agreed tax rules and heavily distorts competition in the maritime and aviation sectors. With this in mind, the Commission is taking action to clamp down on rules that try to circumvent EU law in these areas.”

For More Information

On the general infringements procedure, MEMO/12/12.

On the EU infringements procedure.

Commentary

We do not design, sell or advocate such schemes. Our view is that these and similar structures are, quite rightly, open to attack from the relevant authorities. They do not reflect well on those that put these structures in place nor those that benefit from them. Using a leasing scheme as such is not necessarily abusive. However, if one takes the other elements in the targeted schemes into consideration, such as the absence in motive of setting up those companies and the fact that those companies do not seem to have any substance, it is likely to lead to the action we see from the EC and its view that these schemes are abusive.

How Brexit will impact on these and similar situations remains to be seen.

Combined Nomenclature – 2019 version published

By Marcus Ward 5 November 2018

The European Commission (EC) has published the latest version of the Combined Nomenclature (CN) applicable from 1 January 2019.

The CN forms the basis for the declaration of goods

at importation or exportation or
when subject to intra-Union trade statistics

This determines which rate of Customs Duty applies and how the goods are treated for statistical purposes. The CN is a vital working tool for business and the Member States’ Customs administrations.

The CN is updated every year and is published as a Commission Implementing Regulation in the Official Journal of the European Union.

The latest version is now available as Commission Implementing Regulation (EU) 2018/1602 in EU Official Journal L 273 on 31 October 2018 and applies from 1 January 2019.

Businesses which import, and/or export need to be aware of any changes as they could affect the amount of Customs Duty payable. We recommend that such a business’s import/export agent or carrier should be contacted in the first instance.

Customs Declaration Service (CDS) – Update

By Marcus Ward 23 October 2018

As many will be aware, CDS will fully replace the Customs Handling of Import and Export Freight (CHIEF) system later this year/early next year, full details here.This will affect any business which imports or exports goods from or to countries outside the EU (and possibly will affect businesses which trade with the EU in the event of a No Deal Brexit).

HMRC have provided more information on the implementation of CDS.

They say that the number of businesses making declarations via CDS will grow over coming months. If you have not been contacted by HMRC then your business is not part of this first group. The time your business begins using CDS will depend on its(or its agent’s) software developer or Community System Provider. HMRC expect remaining importers will start to move to CDS early in the New Year. Exporters will migrate to CDS when export functionality becomes available in March 2019. This means that CDS and CHIEF will run in parallel for a short period of time. Import declarations will be made in CDS whilst export declarations will continue to be made in CHIEF.

Not an ideal situation, but it does seem prudent to phase CDS in in this way.

Checklist

Visit Customs Declaration Service to understand how the changes affect your business and what you will need to do to prepare for the introduction of CDS and when. This includes making sure you have a Government Gateway account and an EORI number.
A new Trade Tariff will be used for declarations on CDS to comply with the Union Customs Code (UCC) so it is important you take the time to understand how the information you provide as part of your declarations will change. The imports tariff can be found on the link above. The exports Tariff will be available later in the year.
If you use a software provider or agent, you may also want to check they are aware and are preparing for the new CDS.
If you use a C88 form or the National Export System to make declarations, please visit the web page above where you can find more information.

If you have any queries we will be pleased to help.

VAT and Customs Duty – Impact of No-Deal Brexit

By Marcus Ward 4 October 2018

HMRC has published guidance on the likely implications of a No-Deal Brexit. The guidance states that it is “unlikely” that the UK will leave the EU without a deal, however, in the recent political climate, observers comment that a No-Deal scenario is increasingly likely (to put it conservatively). Consequently, business must be in a position to deal with a No-Deal from 29 March 2019. The guidance may be summarised as follows:

Current position

VAT is payable by businesses when they bring goods into the UK. There are different rules depending on whether the goods are acquisitions (EU) or imports (non-EU)
no requirement to pay VAT when goods from the EU arrive in the UK. A business acquiring goods from the EU accounts for VAT on the goods in its next VAT return, offsetting input tax against output tax (acquisition tax, a simple “reverse charge” bookkeeping exercise)
no Customs Duty on goods moving between EU Member States
goods that are exported by UK businesses to non-EU countries and EU businesses are UK VAT free
goods that are supplied by UK businesses to EU consumers have either UK or EU VAT charged, subject to distance selling thresholds
for services the place of supply (POS) rules determine the country in which a business needs to charge VAT

From 29 March 2019 with a No-Deal Brexit

the UK will continue to have a VAT system
the government will attempt to keep VAT procedures as close as possible to the current systems
acquisitions from the EU will become imports
imported goods from the EU (or elsewhere) will be subject to VAT deferment
Customs and Excise Duty formalities will now be required for EU imports
UK businesses supplying digital services are likely to be required to register for the one stop shop (MOSS) in a country within the EU
the rate of input recovery for providers of financial services (FS) and insurance may be improved
Low Value Consignment Relief (LVCR) is likely to be abolished for goods entering the UK as parcels, whether from within or outside the EU.
no requirement to comply with existing Distance Selling rules (exports of goods to individuals will be UK VAT free)
EC Sales Lists will not be required
Businesses need to take steps to examine their import and export procedures (!)

I have paraphrased some of the guidance for clarity and technical accuracy and the above points are not direct quotes.

Commentary

The apparent good news is that UK businesses importing goods from the EU will not have to pay VAT on the date that the goods enter the UK, but rather, will be able to account for the VAT later via a deferment system, presumably similar to the one in place for current non-EU imports. Helpful for cashflow, but an unwanted additional complexity, especially for small businesses. A concern is that HMRC cannot deal with the documentation requirements even before Brexit see here

A big negative for UK business is the fact that customs declarations and the payment of any other duties will now be required for imports from the EU – in the same way as currently applies when importing goods from outside the EU. Consequently, for goods entering the UK from the EU

an import declaration will be required
customs checks may be carried out
customs duties must be paid.

This is an additional complication and a cost to a business which is currently able to bring goods into the UK from the EU without any of these declarations, payments or inspections. This is likely to lead to additional delays at the border and will certainly increase administration and costs. Whether this will encourage UK businesses to purchase more goods from UK suppliers remains to be seen. It is worth mentioning that HMRC has also said that UK importers need to take steps apply for an Economic Operator Registration and Identification Number (EORI) for businesses which do not already have one. Details here

Brexit may provide a ray of sunshine for FS and insurance suppliers (well for VAT anyway, the commercial impact may be somewhat different). In the event of a No-Deal Brexit, for UK FS and insurance providers, input VAT deduction rules in respect of services to the EU may be changed. Although no details are provided, it appears to me that input tax attributable to these supplies will be treated similarly to those currently provided to recipients outside the EU. Which will broadly mean that those supplies which would be exempt if provided in the UK would provide full input tax recovery if the recipient belongs anywhere outside the UK. This will be very good news for The City.

LVCR currently relieves goods worth under £15 which come into the UK from outside the EU from UK VAT. Its abolition means that all goods entering the UK as parcels sent by overseas businesses will be liable for VAT (unless they are zero-rated from VAT) if the value is under £15. An unwelcome and apparently unnecessary change.

Generally

It is prudent for businesses to consider how their imported goods will be classified and how they will submit import declarations in the result of a No-Deal Brexit. HMRC suggests that importers may want to consider looking at suitable commercial software and, or, engaging a commercial customs broker, freight forwarder or logistics provider. We advise contacting the relevant providers sooner, rather than later, to establish what you, or your client’s business may require. Of course, all of the above will increase the potential of a business receiving penalties and interest if it gets it wrong.

If you would like to discuss any of the above, please contact me, or a member of my team. Readers that know me, may admire my restraint in commenting, politically, on Brexit…

As I often find myself saying recently – good luck everybody.

VAT Import documents – delays with paperwork

By Marcus Ward 24 September 2018

We understand that HMRC is having difficulties after outsourcing the issuing of C79 forms.

What are C79s?

A C79 form is issued to businesses which import goods into the UK from countries outside the UK. It is used to reclaim VAT charged at the point of import. It is an important document because, unlike usual VAT claims, it is not sufficient to claim on an invoice from the supplier.

Impact

Technically, without a C79 form, the VAT on import cannot be claimed. So, a delay in issuing the documentation can have serious consequences for a business’ cashflow. It is possible to request a duplicate form, but the department which deals with these has been overwhelmed with applications and does not appear to be able to help in a timely manner. It looks like taxpayers will have to be patient and tolerate yet another HMRC “problem”. With a very long overdue move to electronic import documentation businesses may be in a better position, but, in the future…

Compare this with the implementation of MTD where something which benefits HMRC and will cause grief to taxpayers has been pushed ahead with despite the difficulties.

Brexit

Of course, early next year, we may be looking at the requirement of C79s for goods “imported” from other EU Member States, which does beg the question; if HMRC cannot cope now, how will it when the number of forms increases significantly? I strongly suspect delays at borders (for many, various reasons), delays with documentation (whether it be electronic or good old dead trees) and delays with any system operated by any of the UK authorities with responsibility, in capacity, for cross-border movement of goods and people.

Good luck everybody…

The EU VAT GAP 2018

By Marcus Ward 24 September 2018

VAT GAP Report 2018: EU Member States still losing almost €150 billion in revenues according to new figures.

What is the tax gap?

The VAT gap is the difference between the amount of VAT that should, in theory, be collected by EU authorities, against what is actually collected. The ‘VAT total theoretical liability’ (VTTL) represents the VAT that should be paid if all businesses complied with both the letter of the law and the EU bodies’ interpretation of the intention of the lawmakers (commonly referred to as the spirit of the law).

In nominal terms, the VAT Gap decreased by €10.5 billion to €147.1 billion in 2016, a drop to 12.3% of total VAT revenues compared to 13.2% the year before. The individual performance of the Member States still varies significantly.

The VAT Gap decreased in 22 Member States with Bulgaria, Latvia, Cyprus, and the Netherlands displaying strong performances, with a decrease in each case of more than 5% in VAT losses. However, the VAT Gap did increase in six Member States: Romania, Finland, the UK, Ireland, Estonia, and France.

Changes to the import of goods

By Marcus Ward 10 August 2018

If a business imports goods from countries outside the EU, there are changes being made by HMRC which it needs to beware of. If a business currently uses the UK Trade Tariff to make Customs declarations it will be affected by these changes.

The changes are set out here for imports. We understand that the changes for exports will be made available later in the year.

If a business’ agent or courier completes its declarations on its behalf, it may be prudent for a business to contact them discuss the impact of the changes.

Background

An overview of the changes may be found here

And a general guide to importing here

Why is the Tariff changing?

HMRC is phasing in the new Customs declaration Service (CDS) here from August to replace the current Customs Handling of Import and Export Freight (CHIEF) system. As well as being a modern, digital declaration service, CDS will accommodate new legislative requirements under the Union Customs Code UCC here In order to comply with the UCC, a business will need to provide extra information for its declarations which can be found in the tariff.

When will a business be required to use the new Tariff?

The majority of importers will start using CDS after November 2‌018, once their software provider or in-house software team has developed a CDS compatible software package. Some importers will start making declarations on CDS before this, but there is no action for a business to take unless it has been contacted by HMRC to be part of this group.

Brexit

As is very common with Brexit, it is unknown how the UK leaving the EU will affect this position. With a No-Deal Brexit seeming likely, the above rules are likely to apply to goods brought into the UK from other EU Member States after next March.

Please contact us should you have any queries.

Beyblades – a Customs Duty case

By Marcus Ward 17 July 2018

Latest from the courts

In the Court of Appeal (CA) case of Hasbro European Trading BV (Hasbro) the issue was whether Customs Duty (CD) was due on the import of Beyblades. If they fall within the definition of a toy CD is payable at 4.7%. However, if they are more accurately classified as a game they are treated as duty free – so a significant difference in import cost dependent on what, superficially, appears to be a somewhat question of semantics.

Beyblades

For the purposes of the case, it is important to understand what a Beyblade is and how it is used.

Beyblade is the brand name for a line of spinning tops originally developed and manufactured by Tomy in Japan. The main novelty is that they are a series of items which are customisable, with interchangeable parts. A Beyblade is set in motion by means of a rip-cord powered launcher.

A “game” is played with two players. Each player is allowed a number of Beyblades to choose from during a match. Players may use any parts available to them to make their Beyblades), but may not switch parts once a match has started. The first player to reach seven points wins. Points are awarded to the player based on how their Beyblade knocks out the opponent’s

One point is awarded if the opponent’s Beyblade stops spinning
One point is awarded if the opponent’s Beyblade is knocked out of the stadium or into a pocket on the edge of the ring
Two points are awarded if the opponent’s Beyblade breaks during a game

The Arguments

The case concerned the classification of Beyblades’. The appellant, Hasbro contended that Beyblades are correctly classified as “articles for … table or parlour games” under heading 9504 of the Combined Nomenclature. In contrast, HMRC maintained that Beyblades should be classified as “other toys” under heading 9503, The First-tier Tribunal FTT and the Upper Tribunal (U’) both previously agreed with HMRC’s analysis.

Classification

There are “explanatory notes” to the Harmonised System (HSENNs). The CA ruled that the classification rule which prefers the most specific description does not apply at the level of the HSENs: they are an important guide to interpretation, but do not have force of law.

The Decision

The CA allowed the appeal and went against the decisions in the FTT and UT. The judge concluded that “In the circumstances, it seems to me to fall to us to decide which of the alternative headings provides the more specific description. In my view, it is heading 9504. As I see it, “articles for … parlour games” encompasses a more limited range of goods than “toys” and “more clearly identifies Beyblades”, particularly since, as I say, “articles for … parlour games” reflects the fact that Beyblades are meant to be used in games…”. The fact that Beyblades are used in a competitive scenario seems to have swung the decision which knocked out HMRC. Consequently, there was no CD payable as they fell to be duty free.

Commentary

It does beg the question; why did this issue need to get to the CA for the appellant to finally win (but of course, this isn’t the first case which has raised that question). Perseverance was clearly the key word here. If you are convinced that HMRC is wrong on ay matter, it really does pay to challenge any ruling.

New RCB 5 – VAT treatment of goods supplied on approval

By Marcus Ward 25 June 2018

Goods supplied on approval

Meaning

Goods supplied on approval is an arrangement under which items of durable nature are provided to a prospective customer for a pre-purchase trial. These items are returnable after a specified period in re-saleable condition if not accepted for purchase.

New publication

HMRC has announced via Revenue and Customs Brief 5 (2018) “RCB 5” changes to the way goods supplied on approval are treated for VAT purposes.

The broad thrust of RCB 5 is that, in HMRC’s opinion, taxpayers are using the rules for goods supplied on approval when this treatment is inappropriate.

The goods supplied on approval rules

Output tax is due at the end of the approval period. That is, tax is deferred until a time the goods are adopted (if they are). These rules are distinct from a supply of goods with a subsequent right to return them. In these cases the tax point is when title passes.

Sale on approval was considered by the Tribunal in the case of Littlewoods Organisation plc (VTD 14977). The Tribunal held that goods were supplied on approval where there is no contract of sale unless, and until, the recipient concerned adopted or was deemed to have adopted the goods. The judge in that case decided that Littlewoods did not supply goods on approval. This case appears to have triggered an HMRC initiative to look at the number of businesses which may be incorrectly deferring output tax by using these rules. It concluded that a lot fewer taxpayers were actually providing goods on approval than previously thought.

Technical

The basic tax point for a supply of goods in these situations is determined by the VAT Act 1994 section 6(2) (c) which applies in the case of goods on approval. It delays the basic tax point until the time when the goods are adopted by the customer or twelve months from the date they were originally despatched, whichever is the earlier

Section 6(2)

(2) … a supply of goods shall be treated as taking place –

(a) if the goods are to be removed, at the time of the removal;

(b) … ;

(c) if the goods (being sent or taken on approval or sale or return or similar terms) are removed before it is known whether a supply will take place, at the time it becomes certain that the supply has taken place or, if sooner, 12 months after the removal.

The guidance

HMRC has published the RCB to provide guidance on how businesses should review their transactions in order to establish whether they are using sale on approval treatment correctly.

Indicators of goods supplied on approval

Whether or not goods are supplied on approval will depend on the facts in each case and will require consideration of a number of indicators which will have to be carefully weighed against each other. Relevant indicators include the following factors but they are not exhaustive.

The terms and conditions of trading, and all contractual terms applying.
The time when title in the goods passes to the buyer.
The time at which the buyer has the right to dispose of the goods as owner.
The view presented to the customer in marketing literature, order forms, delivery notes, statements etc.
The rights of the customer to return unwanted goods.
The terms of any supply of credit finance provided with the goods.
The time when payment for the goods is demanded.
The time when payment for the goods is received.
The time when the buyer assumes responsibility for the upkeep and insurance of the goods.
Anything the buyer does to signify his adoption of the goods.
The calculation of the minimum payment due for goods delivered.
The time when a sale is recognised in the financial accounts of the business.

(these indicators are not featured in RCB 5).

Deadline

HMRC state that from 18 September 2018 all business must change their accounting systems and accurately apply the appropriate VAT treatment. However, no action will be taken for past inaccuracies and taxpayers will not be required to make any changes to records or declarations.

Delivery charges

In normal circumstances, the fee charged for delivery follows the VAT liability of the goods being supplied (it is a single supply of delivered goods). However, the RCB somewhat controversially, states that when goods are supplied on approval the delivery charge is not ancillary. HMRC conclude that as delivery occurs before the customer or the supplier know whether there will be a supply of goods, delivery is an aim in itself, represents a separate, independent supply and is not dependent upon the supply of goods. The purpose of the delivery service is to facilitate the customer inspecting the goods to decide whether or not they wish to purchase them. This is always a standard rated supply and consequently, output tax is due on this fee, whether or not the goods are adopted (and with a tax point prior to adoption or return). I expect that this analysis will be challenged at some point as it does not, in my mind, sit comfortably with previously decided case law.

Action

Businesses which consider themselves to be supplying goods on approval (usually mail order businesses) need to review their terms and manner of trading to identify whether that is indeed the case. Consideration must be given to the above indicators, the ruling in the Littlewoods case and the information in RCB 5. If what is being provided falls outside the definition of a supply on approval, the necessary changes are required in order to recognise a sale at an earlier time. Even if goods are supplied on approval, the VAT treatment of delivery charges need to be reconsidered and adjusted if need be. We can assist if required.