Finance Act 2001

Type Act

Publication 2001-03-30

State In force

Source Irish Statute Book

articles 243

“Replacement of qualifying premises.

600A.—(1) In this section— ‘qualifying premises’, in relation to a person, means a building or part of a building, or an interest in a building or a part of a building— (a) in which there is not less than 3 residential units, (b) in respect of which the person is entitled to a rent or to receipts from any easement, and (c) in respect of which all the requirements of the Regulations are complied with; ‘Regulations’ means— (i) the Housing (Standards for Rented Houses) Regulations, 1993 (S.I. No. 147 of 1993), (ii) the Housing (Rent Books) Regulations, 1993 (S.I. No. 146 of 1993), and (iii) the Housing (Registration of Rented Houses) Regulations, 1996, as amended by the Housing (Registration of Rented Houses) (Amendment) Regulations, 2000 (S.I. No. 12 of 2000); ‘replacement premises’, in relation to a person, means a building or part of a building, or an interest in a building or a part of a building— (a) which the person acquires with the consideration obtained by the person from the disposal of a qualifying premises, (b) in which the number of residential units is not less than the number of residential units in the qualifying premises, (c) in respect of which the person is entitled to a rent or to receipts from any easement, and (d) in respect of which all the requirements of the Regulations are complied with; ‘residential unit’ means a separately contained part of a residential premises used or suitable for use as a dwelling. (2) (a) Where the consideration which a person obtains for the disposal of a qualifying premises, which was a qualifying premises throughout the period of its ownership by the person, is applied by that person in acquiring a replacement premises, then the person shall, subject to paragraph (b), be treated for the purposes of the Capital Gains Tax Acts as if the chargeable gain accruing on the disposal of the qualifying premises did not accrue until— (i) that person disposes of the replacement premises, or (ii) the replacement premises ceases to be a replacement premises. (b) Where the consideration for the disposal of the replacement premises is applied by a person in acquiring a further replacement premises then, the person shall be treated as if the chargeable gain accruing on the disposal of the qualifying premises did not accrue until that person disposes of the further replacement premises or any other further replacement premises which are acquired in a similar manner, or that further replacement premises or any other further replacement premises which are acquired in a similar manner, cease to be a replacement premises. (3) Subsection (2) shall not apply if part only of the amount or value of the consideration for the disposal of the qualifying premises is applied as described in that subsection; but if all of the amount or value of the consideration except for a part which is less than the amount of the gain (whether all chargeable or not) accruing on the disposal of the qualifying premises is so applied, then, the person shall on making a claim in that behalf be treated for the purposes of the Capital Gains Tax Acts— (a) as if the amount of the gain accruing on the disposal of the qualifying premises were reduced to the amount of consideration not applied in the acquisition of the replacement premises (and if not all chargeable gain with a proportionate reduction in the amount of the chargeable gain), and (b) in respect of the balance of the gain or chargeable gain as if it did not accrue until that person disposes of the replacement premises or the replacement premises ceases to be a replacement premises. (4) A chargeable gain or the balance of a chargeable gain which under subsection (2) or (3), as may be appropriate, is treated as accruing on a date later than the date of the disposal on which it accrued shall not be so treated for the purposes of section 556. (5) This section shall apply only if the acquisition of the replacement premises takes place, or an unconditional contract for the acquisition is entered into, in the period beginning 12 months before and ending 3 years after the disposal of the qualifying premises, or at such earlier or later time as the Revenue Commissioners may by notice in writing allow; but, where an unconditional contract for the acquisition is so entered into, this section may be applied on a provisional basis without waiting to ascertain whether the replacement premises is acquired in pursuance of the contract, and when that fact is ascertained all necessary adjustments shall be made by making assessments or by repayment or discharge of tax, and shall be so made notwithstanding any limitation in the Capital Gains Tax Acts on the time within which assessments may be made. (6) This section shall not apply if the acquisition of the replacement premises was wholly or partly for the purpose of realising a gain from the disposal of the replacement premises. (7) Where the qualifying premises was not a qualifying premises throughout the period of ownership of a person making a claim under this section, the section shall apply as if a part of the qualifying premises representing the period for which it was a qualifying premises was a separate asset, and this section shall apply in relation to that part subject to any necessary apportionments of consideration for an acquisition or disposal of the interest in the premises. (8) Without prejudice to the provisions of the Capital Gains Tax Acts providing generally for apportionments, where consideration is given for the acquisition or disposal of assets some or part of which are assets in relation to which a claim under subsection (2) or (3) applies, and some or part of which are not, the consideration shall be apportioned in such manner as is just and reasonable.”.

(2) This section shall apply to disposals on or after 5 January 2001.

93 Amendment of Chapter 7 (other reliefs and exemptions) of Part 19 of Principal Act.

93.—(1) (a) The Principal Act is amended in Chapter 7 of Part 19 by the insertion after section 603 of the following:

“Disposal of site to child.

603A.—(1) This section applies to the disposal of land which at the date of disposal has a market value which does not exceed £200,000. (2) Subject to this section, a chargeable gain shall not accrue on a disposal of land to which this section applies where the disposal— (a) is by a parent to a child of the parent, and (b) is for the purpose of enabling the child to construct a dwelling house on the land which dwelling house is to be occupied by the child as his or her only or main residence. (3) Where a child— (a) at any time disposes of the land or a part of the land referred to in subsection (2), other than to his or her spouse, and (b) the land being disposed of does not contain a dwelling house which— (i) was constructed by the child since the time of acquisition of the land, and (ii) has been occupied by the child as his or her only or main residence for a period of 3 years, the chargeable gain which, but for subsection (2), would have accrued on the disposal of that land to the child, shall be treated as accruing to the child at the time of the disposal referred to in paragraph (a). (4) Where subsection (2) applies to a disposal of land by a parent to a child, it shall not apply to any such subsequent disposal to that child unless, by virtue of subsection (3), the full amount of the chargeable gain which, but for subsection (2) would have accrued to the parent, is treated as accruing to the child.”.

(b) This subsection shall apply to disposals on or after 6 December 2000.

(2) With effect from 1 January 2002, section 603A(1) of the Principal Act (as inserted by subsection (1)) is amended by the substitution for “£200,000” of “€254,000”.

94 Amendment of section 649A (relevant disposals: rate of charge) of Principal Act.

94.—Section 649A(1) of the Principal Act is amended—

(a) by the substitution for paragraphs (a) and (b) of the following:

“(a) in the case of a relevant disposal made in the period from 3 December 1997 to 30 November 1999, 40 per cent, and

(b) in the case of a relevant disposal made on or after 1 December 1999, 20 per cent.”,

and

(b) by the deletion of paragraph (c).

95 Amendment of section 652 (non-application of reliefs on replacement of assets in case of relevant disposals) of Principal Act.

95.—(1) Section 652 of the Principal Act is amended by the substitution for subsection (5) of the following:

“(5) (a) Subsection (4) shall not apply to a relevant disposal made to an authority possessing compulsory purchase powers where the disposal is made—

(i) for the purposes of enabling the authority to construct, widen or extend a road or part of a road, or

(ii) for a purpose connected with or ancillary to the construction, widening or extension of a road or part of a road by the authority.

(b) Where section 605 applies to a relevant disposal by virtue of this subsection that section shall be construed as if for subsection (4) of that section the following were substituted:

‘(4) This section shall apply only if the acquisition of the replacement assets takes place, or an unconditional contract for the acquisition is entered into, in the period beginning 2 years before and ending 8 years after the disposal of the original assets, or at such earlier or later time as the Revenue Commissioners may by notice in writing allow; but, where an unconditional contract for the acquisition is so entered into, this section may be applied on a provisional basis without ascertaining whether the replacement assets are acquired in pursuance of the contract, and when that fact is ascertained all necessary adjustments shall be made by making assessments or by repayment or discharge of tax, and shall be so made notwithstanding any limitation in the Capital Gains Tax Acts on the time within which assessments may be made.’.”.

(2) This section shall apply to relevant disposals made on or after 6 December 2000.

PART 2 Excise

Consolidation and Modernisation of General Excise Law

Chapter 1 Interpretation, Liability and Payment

96 Interpretation (Part 2).

96.—In this Part, except where the context otherwise requires or where otherwise provided—

“Appeal Commissioners” has the meaning assigned to it by section 850 of the Taxes Consolidation Act, 1997;

“authorised warehousekeeper” means a person authorised by the Commissioners to produce, process, hold, receive or dispatch in the course of his or her business, excisable products as defined in section 97 under a suspension arrangement;

“Commissioners” means the Revenue Commissioners;

“Community” means the territory of the Community as defined by the Treaty establishing the European Community and, in particular, Article 299 of that Treaty except for the following national territories:

(a) in the case of Germany, the Island of Heligoland and the territory of Bsingen,

(b) in the case of Italy, Livigno, Campione d'Italia and the Italian waters of Lake Lugano,

(d) in the case of Greece, Mount Athos,

(e) in the case of Spain, the Canary Islands, Ceuta and Melilla,

(f) in the case of France, the overseas Departments of the Republic, and

(g) in the case of Finland, the \?\land Islands,

and, for the purposes of this Part, transactions originating in or intended for one of the following national territories are to be treated as originating in or intended for—

(a) France, in the case of the Principality of Monaco;

(b) Germany, in the case of Jungholz and Mittelberg (Kleines Walsertal);

(d) Italy, in the case of San Marino;

“Directive” means Council Directive No. 92/12/EEC of 25 February 1992[^1];

“duty document” has the meaning assigned to it by section 115(2)(c);

“exemption certificate” has the meaning assigned to it by section 117(3);

“free warehouse” has the same meaning as it has in Article 166 of Council Regulation (EEC) No. 2913/92 of 12 October 1992[^2];

“free zone” has the same meaning as it has in Article 166 of Council Regulation (EEC) No. 2913/92 of 12 October 1992;

“information” includes any representation of fact, whether in legible form or otherwise;

“Member State” means a Member State of the Community;

“mineral oil” shall be construed in accordance with paragraphs (g) and (h) of section 97(1);

“non-registered trader” means a person other than an authorised warehousekeeper or registered trader who may, in the course of his or her business, occasionally receive excisable products from another Member State, subject to compliance with conditions imposed by the Commissioners, under a suspension arrangement;

“non-State vendor” means a person who has his or her place of business in another Member State and who is authorised by the competent authorities of that Member State to sell excisable products which have already been released for consumption in that Member State to private individuals resident in the State for their own personal use, and who dispatches or transports such products directly or indirectly to such persons resident in the State;

“officer”, except in Chapter 4, means an officer of the Commissioners;

“Order of 1975” means the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975);

“prescribed” means specified in, or determined in accordance with, regulations made by the Commissioners;

“records” means any books, accounts, documents or other recorded information including information in a computer or in other non-legible form;

“registered trader” means a person other than an authorised warehousekeeper, who is authorised by the Commissioners to receive, in the course of business, excisable products from another Member State under a suspension arrangement;

“release for consumption” means—

(a) any departure, including irregular departure, from a suspension arrangement,

(b) any manufacture, including irregular manufacture, of excisable products outside a suspension arrangement, or

(c) any importation of excisable products, including irregular importation, where such excisable products have not been placed under a suspension arrangement;

“small wine producer” means a person in another Member State who produces on average less than 1,000 hectolitres of wine per year and who is exempted by the competent authorities of that Member State under Article 29 of the Directive from the requirements of Titles II and III of the Directive;

“spirits” has the same meaning as it has in paragraph (a) of section 97(1);

“State vendor” means a person who is established in the State and who is authorised by the Commissioners to sell excisable products, which have already been released for consumption in the State, for the personal use of private individuals resident in other Member States, and who dispatches or transports such products, directly or indirectly, to such persons in other Member States;

“suspension arrangement” means an arrangement under which excisable products are produced, processed, held or moved, excise duty being suspended;

“tax representative” means a person, established in the State, who is authorised by the Commissioners to act in the State as an agent on behalf of persons delivering excisable products from another Member State;

“tax warehouse” means a premises or place approved by the Commissioners, where excisable products are produced, processed, held, received or dispatched under a suspension arrangement by an authorised warehousekeeper in the course of business;

“tobacco products” has the same meaning as it has in paragraph (f) of section 97(1);

“vehicle” means a mechanically propelled vehicle or any other conveyance;

“wine” has the same meaning as it has in paragraph (b) of section 97(1).

97 Excisable products (Part 2).

97.—(1) For the purposes of this Part the following are excisable products:

(a) spirits chargeable with the duty of excise imposed by paragraph 4(2) of the Order of 1975;

(b) wine chargeable with the duty of excise imposed by paragraph 5(2) of the Order of 1975;

(d) beer chargeable with the duty of excise imposed by section 90 of the Finance Act, 1992;

(e) cider and perry chargeable with the duty of excise imposed by paragraph 8(2) of the Order of 1975;

(f) tobacco products chargeable with the duty of excise imposed by section 2 of the Finance (Excise Duty on Tobacco Products) Act, 1977;

(g) until such day as the Minister for Finance may appoint by order under section 109 of the Finance Act, 1999, for the coming into operation of section 95 of that Act—

(i) mineral hydrocarbon light oil chargeable with the duty of excise imposed by paragraph 11(1) of the Order of 1975,

(ii) hydrocarbon oil, not otherwise liable to a duty of excise, chargeable with the duty of excise imposed by paragraph 12(1) of the Order of 1975,

(iii) gaseous hydrocarbons in a liquid form chargeable with the duty of excise imposed by section 41(1) of the Finance Act, 1976,

(iv) additives chargeable with the duty of excise imposed by Regulation 23(1) of the European Communities (Customs and Excise) Regulations, 1992 (S.I. 394 of 1992),

(v) substitute motor fuels chargeable with the duty of excise imposed by section 116(2) of the Finance Act, 1995;

(h) from such day as the Minister for Finance may appoint by order under section 109 of the Finance Act, 1999, for the coming into operation of section 95 of that Act, mineral oil chargeable with the duty of excise imposed by the said section 95.

(2) Without prejudice to sections 145 and 146, in the event of any question or dispute the Commissioners shall determine whether a product—

(a) is properly classified as an excisable product under paragraphs (a) to (h) of subsection (1), or

(b) while prima facie chargeable with a duty of excise, qualifies in whole or in part for any relief from duty under any provision of the law relating to excise.

98 Application of enactments.

98.—(1) (a)Subject to paragraph (b) and subsection (2), the provisions of the Customs Acts and of any instrument relating to duties of customs made under statute and not otherwise applied by this Part shall, with any necessary modifications, apply in relation to this Part, in respect of excisable products imported into the State, as they apply in relation to duties of customs.

(b)Where there is a provision in this Part corresponding to a provision of the Customs Acts or of any instrument relating to duties of customs made under statute, the latter provision shall not apply.

(2) (a)Subject to paragraph (b), the provisions of the statutes which relate to the duties of excise and the management of such duties and of any instrument relating to the duties of excise made under statute and not otherwise applied by this Part shall, with any necessary modifications, apply in relation to the provision of this Part in respect of excisable products produced in the State as they apply to duties of excise.

(b)Where there is a provision in this Part corresponding to a provision of the statutes which relate to the duties of excise or of any instrument relating to the duties of excise made under statute, the latter provisions shall not apply.

99 Suspension arrangements. liability and payment.

99.—(1) Without prejudice to any other provision of the statutes which relate to the duties of excise and of any instrument relating to the duties of excise made under statute concerning the liability of persons to excise duty and the payment of such duty—

(a) an authorised warehousekeeper shall be liable, subject to the procedure for discharge of such liability provided for in subsection (3), for payment of excise duty on excisable products released from a tax warehouse, approved in relation to such warehousekeeper, for delivery to another Member State including delivery to another Member State for export outside the Community,

(b) a registered trader or a non-registered trader shall be liable for payment of excise duty on products received by such a trader under a suspension arrangement and such excise duty shall be chargeable on receipt of such products, and

(c) a tax representative, acting on behalf of persons referred to in paragraph (a) or (b) of subsection (1) of section 113, shall be liable for the payment of excise duty on excisable products delivered to the State by or on behalf of such persons.

(2) The excise duty referred to in paragraphs (a) to (c) of subsection (1) shall be paid at such time and in such manner as may be prescribed under section 153.

(3) The liability to excise duty under subsection (1)(a) shall be fully or partly discharged and satisfied and excise duty shall not be payable where, and to the extent that, such excisable products have been fully or partly received by a person or trader referred to in section 115(2) or have been exported from the Community, and evidence to this effect is received within the prescribed time and in the prescribed manner.

(4) For the purpose of subsection (3), evidence of receipt shall be provided by means of a copy of the accompanying document, referred to in subsection (1) of section 117, returned duly endorsed—

(a) (i) by such person or trader, and

(ii) in the case of such Member State, as may be specified by the Commissioners in regulations under section 153, by the authorities of such Member State in which such person or trader has his or her place of business,

(b) in the case of exports from the Community, by the authorities of the Member State based at the customs office at the point of departure from the Community,

to the effect that such excisable products have been duly received or exported.

100 Duties to apply to excisable products released for consumption in another Member State.

100.—Subject to section 104(2), the duties of excise imposed by the provisions referred to in section 97 shall apply in relation to excisable products released for consumption in another Member State and imported into the State.

101 All excisable products are liable for all liabilities, penalties and forfeitures of a warehousekeeper.

101.—(1) Where any duty of excise has been charged or become chargeable on any excisable product, and where an authorised werehousekeeper is liable for such duty then—

(a) all excisable products and all ingredients and materials used in the manufacture or processing of such products,

(b) all articles and equipment used either in the manufacture or processing of such excisable products or in the course of business relating to them,

which are in the possession or custody of such authorised warehousekeeper or any other person acting on his or her behalf, shall be subject and liable to and chargeable with any duty of excise which has been so charged or become chargeable during the time of any such custody or possession.

(2) The products, ingredients, materials, articles and equipment referred to in paragraphs (a) and (b) of subsection (1) shall be subject and liable to all excise penalties and forfeitures incurred by such authorised warehousekeeper during the time of custody and possession referred to in that subsection.

102 Treatment of excisable products released for consumption.

102.—(1) The liability to excise duty arising when products are released for consumption is to be calculated at the rate applicable to such products at the date of such release for consumption.

(2) Losses, other than those referred to in section 106, and any shortages of excisable products under a suspension arrangement are liable to excise duty at the rate applicable—

(a) at the time such losses or shortages occurred, where such time can be established to the satisfaction of an officer, or

(b) where such time cannot be so established, at the time such losses or shortages came to the notice of an officer.

and such duty is payable immediately by the person authorised to produce, process, hold, transport, deliver, or receive (as the case may be) such excisable products.

(3) The excise duty referred to in subsections (1) and (2) is to be charged, levied, and paid in the prescribed manner.

103 Payment.

103.—(1) Except where otherwise required by any provision of the statutes which relate to the duties of excise or any instrument relating to the duties of excise made under statute, any person liable for payment of any duty of excise shall account for and pay such duty at such time and place and to such person as shall from time to time be directed by the Commissioners.

(2) Any person who does not account for and pay any amount of excise duty as required under subsection (1) or under any other provision of the statutes which relate to the duties of excise, or any instrument relating to the duties of excise made under statute, shall forfeit and lose double such amount of excise duty.

104 Reliefs.

104.—(1) Subject to compliance with any conditions or limitations the Commissioners see fit to impose, the duties of excise imposed by the provisions referred to in section 97 shall not be charged or levied on excisable products delivered—

(a) under diplomatic arrangements in the State,

(b) to international organisations recognised as such by the State, and the members of such organisations based in the State, within the limits and under the conditions laid down by international conventions establishing such organisations or by other agreements, and

(c) for consumption under any agreement entered into between the State and a country other than a Member State where such agreement also provides for exemption from value-added tax.

(2) (a)Excise duty shall not be chargeable in the State on excisable products released for consumption in another Member State which—

(i) have been acquired by a private individual in such another Member State for his or her own use and not for commercial purposes, and

(ii) are transported into the State by such private individual, and accompanied by him or her during such transportation.

(b)With the exception of mineral oil imported into the State in the fuel tank of a vehicle or in a portable container with a capacity of not more than 10 litres, subsection (a) shall not apply to mineral oil.

(3) For the purpose of subsection (2) the question of whether excisable products referred to in that subsection are for a private individual's own use or are for commercial purposes shall be determined in accordance with regulations under section 153.

105 Repayments.

105.—(1) The Commissioners may, subject to such conditions as they may prescribe under section 153 or otherwise impose, repay or remit any such duties on excisable products where such products—

(a) are released for consumption in the State and are intended for delivery for commercial purposes to another Member State.

(b) are released for consumption in the State and are purchased by a person in another Member State from a State vendor,

(c) cease to be covered by a suspension arrangement, and the duty chargeable on such products on the date of such cessation is less than an amount of duty paid in advance of that date, on such products,

(d) are subject to section 115 and it is shown to the satisfaction of the Commissioners that excise duty has been paid in respect of such products, or

(e) are shown to the satisfaction of the Commissioners to have been exported or re-exported from the State to a place outside the Community or shipped for use as stores on board a ship or aircraft on a voyage or a flight, as the case may be, from a place in the State to a place outside the State.

(2) In any case of relief under section 104, effect may be given to such relief by means of repayment.

106 Remission of losses.

106.—The Commissioners may, in respect of the duties of excise imposed by the provisions referred to in section 97 and, subject to compliance with such conditions as may be prescribed, remit such duties on excisable products under a suspension arrangement which are shown to their satisfaction to have been lost—

(a) during production, processing or holding in the State or transportation to a destination in the State, or

(b) in the course of transportation to the State,

and that such loss was—

(i) due to fortuitous events or force majeure, or

(ii) a loss inherent in the nature of the excisable products in the course of their production, processing, holding or transportation.

107 General mutual assistance.

107.—(1) In this section—

“authorised officer” means an officer authorised in writing by the Commissioners for the purposes of this section;

“Council Directive” means Council Directive No. 77/799/EEC of 19 December 1977[^1], as amended by Council Directive No. 79/1070/EEC of 6 December 1979[^2] and Council Directive No. 92/12/EEC of 25 February 1992[^3].

(2) (a)The Commissioners and authorised officers may disclose to the competent authorities of another Member State any information concerning excise duties required to be so disclosed by virtue of the Council Directive.

(b)Neither the Commissioners nor an authorised officer shall disclose any information in pursuance of the Council Directive unless satisfied that the competent authorities of the other Member State concerned are bound by, or have undertaken to observe, rules of confidentiality with respect to the information which are not less strict than those applying to it in the State.

108 Mutual assistance for the recovery of claims.

108.—(1) (a)In this section—

“Commission Directive” means Commission Directive No. 77/794/EEC of 4 November 1977[^1];

“Council Directive” means Council Directive No. 76/308/EEC of 15 March 1976[^2], as amended by Council Directive No. 79/1071/EEC of 6 December 1979[^3] and Council Directive No. 92/12/EEC of 25 February 1992.

(b)A word or expression that is used in this section and is also used in the Council Directive or in the Commission Directive has, unless the contrary intention appears, the same meaning in this section as it has in the Council Directive or the Commission Directive, as the case may be.

(2) The amount of excise duty specified in any request duly made pursuant to the Council Directive by an authority in another Member State, for the recovery in the State of any amount claimed by such an authority pursuant to a claim referred to in Article 2 of the Council Directive, is recoverable in any court of competent jurisdiction by the Minister for Finance and for the purposes of the foregoing the amount is to be regarded as being a debt due to that Minister, by the person against whom the claim is made by such an authority, in respect of a duty or tax under the care and management of the Commissioners or a simple contract debt due by such person to that Minister, as may be appropriate.

(3) The rules laid down in—

(a) Articles 4 to 12 and 14 to 17 of the Council Directive, and

(b) Articles 2 to 21 of the Commission Directive,

shall apply in relation to claims in respect of excise duty referred to in Article 2 of the Council Directive which arise in another Member State and which are the subject of legal proceedings instituted under this section.

(4) In any legal proceedings instituted under this section, any document which is in the form specified in Annex III to the Commission Directive and which purports to be authenticated in the manner specified in Article 11 of that Directive is to be received in evidence without proof of any seal or signature or that any signatory to such document was the proper person to sign it, and such document shall, until the contrary is shown, be sufficient evidence of the facts stated in it.

(5) (a)Legal proceedings instituted under this section for the recovery of any sum are to be stayed if the defendant satisfies the court that legal proceedings relevant to his or her liability on the claim to which the proceedings so instituted relate are pending, or are about to be instituted, before a court, tribunal or other competent body in another Member State, but any such stay may be removed if the legal proceedings in such Member State are not prosecuted or instituted with reasonable expedition.

(b)In any legal proceedings instituted under this section—

(i) it is a defence for the defendant to show that a final decision on the claim to which the proceedings relate has been given in favour of such defendant by a court, tribunal or other body of competent jurisdiction in another Member State, and

(ii) in relation to any part of a claim to which such legal proceedings relate, it is a defence for the defendant to show that such a decision has been given in relation to that part of the claim.

(c)No question shall be raised in any legal proceedings instituted under this section as to the defendant's liability on the claim to which the proceedings relate except as provided in paragraph (b) of this subsection.

(d)For the purposes of this section, legal proceedings shall be regarded as pending so long as an appeal may be brought against any decision in the proceedings, and for these purposes a decision against which no appeal lies, or against which an appeal lies within a period which has expired without an appeal having been brought, is to be regarded as being a final decision.

109 Warehousing.

109.—(1) Subject to subsections (2) and (3) the following shall take place only in a tax warehouse—

(a) producing and processing of excisable products, and

(b) holding of excisable products where the proper excise duty has not been paid or remitted.

(2) The provisions of subsection (1)(a) do not apply to—

(a) operations by which a user of a mineral oil makes its re-use possible in his or her own undertaking, provided that the excise duty already paid on such mineral oil is not less than the excise duty which would be due if the re-used mineral oil were again to be liable to excise duty,

(b) operations consisting of mixing or blending of excisable products with other excisable products or other materials, provided—

(i) that the proper excise duty on such excisable products has been paid previously, and

(ii) that the amount paid is not less than the amount of the excise duty which would be chargeable on the mixture or blend.

(3) The Commissioners may, on written application from the person concerned, grant an exemption from subsection (1)(a)—

(a) in respect of operations during which small quantities of excisable products are obtained incidentally, and

(b) in such other cases of production or processing of excisable products and subject to such conditions as they may deem fit to impose, but only where—

(i) the proper excise duty on such products has been paid previously, and

(ii) the amount paid is not less than the amount of the excise duty which would be chargeable following such production or processing.

(4) (a)A person shall only be approved as an authorised warehousekeeper under this section where such person appears to the Commissioners to be able to satisfy such requirements for approval as they may think fit to impose.

(b)A premises or place shall only be approved as a taxwarehouse—

(i) where such premises or place are used or intended for use for the production, processing, holding, receipt or dispatch of excisable products,

(ii) where such premises or place are used or intended for use for such production or processing and it is owned or occupied by a person licensed for such production or processing under any provision of the statutes relating to the duties of excise and the management of such duties and any instrument relating to the duties of excise made under statute,

(iii) where there has been given to an officer such information as may be required of the warehousekeeper in relation to such premises or place and in relation to all rooms, areas, plant, equipment, machinery and vessels in such premises or place, and

(iv) where such premises or place appears to the Commissioners to satisfy such requirements for approval as they may think fit to impose.

(5) The Commissioners may approve a person, premises or place under this section for such periods, and subject to such conditions (including the giving of security) as they may think fit to impose and the approved person shall comply with any such conditions.

(6) The Commissioners may, at any time for reasonable cause and following such notice as is reasonable in the circumstances—

(a) vary the terms of their approval of any person, premises or place under this section.

(b) amend the extent of the premises or place which is so approved, or

(i) an authorised warehousekeeper contravenes or fails to comply with any condition of approval imposed by them under this section, or with any provision of this Part or of regulations made under or for the purposes of such provisions, or

(ii) an approved warehouse fails to comply with any condition of approval imposed by them under this section.

(7) Any person approved as or deemed to be an authorised warehousekeeper and any premises or place approved as or deemed to be a tax warehouse under section 105 of the Finance Act, 1992, shall be deemed by the Commissioners to be approved as an authorised warehousekeeper or a tax warehouse respectively for the purposes of this section.

Chapter 2 Intra-Community Movement

110 Scope (Chapter 2).

110.—This Chapter shall apply to excisable products except that, in the case of mineral oil, it shall apply only to products specified in paragraph (1) of Article 2a of Council Directive No. 92/81/EEC of 19 October 1992[^1] or which have been the subject, under paragraph (2) of that article, of a decision to make such products subject to the control and movement provisions of the Directive.

111 Treatment of excisable products released for consumption in another Member State.

111.—Without prejudice to subsection (2) of section 104, any person acquiring for the purpose of importing into the State, excisable products released for consumption in another Member State, or importing such excisable products into the State, shall—

(a) declare to an officer his or her intention to acquire, and secure the excise duty on such excisable products in advance of the dispatch or collection of such excisable products from the other Member State,

(b) pay the excise duty on such excisable products in the manner prescribed, and

112 Provisions relating to vendors.

112.—(1) Before dispatching or transporting excisable products released for consumption in the State to a private individual in another Member State for that individual's own use and not for commercial purposes, a person resident or established in the State shall be approved by the Commissioners as a State vendor.

(2) (a)The Commissioners may approve a person as a State vendor.

(b)Approval under paragraph (a) shall be granted for such periods and subject to such conditions as the Commissioners may think fit to impose and, in particular, a State vendor shall not be approved unless such vendor—

(i) secures, prior to the dispatch of excisable products, the duty payable in respect of those products in the Member State of Destination, and

(ii) agrees to keep such accounts, records and other data or information as may be specified by the Commissioners under the terms of such approval.

(c)The Commissioners may at any time for reasonable cause and following such notice as is reasonable in the circumstances, revoke an approval or vary its terms.

(3) A non-State vendor dispatching or transporting, or causing to be dispatched or transported, excisable products released for consumption in another Member State to a private individual in the State for that private individual's own use and not for commercial purposes shall—

(a) appoint a tax representative, as provided for in section 113, in the State,

(b) prior to the dispatch of such excisable products, declare to an officer, either directly or through a tax representative appointed by such non-state vendor, his or her intention to dispatch or transport, or to have dispatched or transported, such excisable products to persons resident or established in the State,

(c) provide evidence to an officer that he or she has complied with the requirements of Article 10.3 of the Directive, and

(d) comply with such other conditions as the Commissiners may prescribe under section 153.

113 Tax representatives.

113.—(1) The Commissioners may approve a person to act as a tax representative on behalf of—

(a) a non-State vendor referred to in subsection (3) of section 112, and

(b) a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive.

(2) Approval of a tax representative shall be granted by the Commissioners for such periods and shall be subject to such conditions, including the provision of security, as they may prescribe under section 153, and the Commissioners may at any time for reasonable cause and following such notice as is reasonable in the circumstances, revoke an approval or vary its terms.

114 Application of Article 5.2 of Council Directive No. 92/12/EEC.

114.—(1) Sections 115, 116 and 117 shall not apply where the movement of excisable products takes place under a customs procedure in accordance with the provisions of paragraph 2 of Article 5 of the Directive, that is where such products are—

(a) coming from, or going to, third countries or territories excluded by section 96 from the territory of the Community and placed under one of the customs suspensive procedures listed in Article 84(1)(a) of Council Regulation (EEC) No. 2913/92[^1] or in a free zone or a free warehouse, or

(b) dispatched between Member States via an EFTA country or between a Member State and an EFTA country under the internal Community transit procedure or via one or more non-EFTA third countries under cover of a TIR or ATA carnet.

(2) A word or expression that is used in this section and is also used in Article 5 of the Directive (as amended by Council Directive 92/108/EEC of 14 December 1992[^2], and Council Directive 94/74/EC of 30 December 1994[^3]) has the same meaning in this section that it has in that Article as so amended.

115 Movement of excisable products under a suspension arrangement from the State to other Member States.

115.—(1) This section applies to the release of excisable products by an authorised warehousekeeper from a tax warehouse in the State for delivery under a suspension arrangement to another Member State, including delivery to—

(a) a free zone or free warehouse in another Member State for subsequent export from the Community, or

(b) otherwise to another Member State for such subsequent export.

(2) Subject to such conditions as the Commissioners may think fit to impose, an authorised warehousekeeper may release excisable products to which this section applies only where such products are intended for delivery to—

(a) a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive,

(b) a trader registered with the authorities of another Member State under Article 16.2 of the Directive,

(c) a trader referred to in Article 16.3 of the Directive having a place of business in another Member State and who provides evidence, in advance of the dispatch of such excisable products, to such authorised warehousekeeper by means of a document, referred to in this Part as a “duty document” certifying that such trader—

(i) has declared to the authorities of the Member State in which such place of business is situated the intention to obtain such excisable products from such authorised warehousekeeper, and

(ii) has paid to or secured with such authorities the excise duty on such excisable products in accordance with procedures laid down by such authorities,

(d) a person authorised by the authorities of another Member State to operate in a free zone or free warehouse in that Member State under the Community provisions relating to free zones and free warehouses, or

(e) a territory outside the Community and are being transported to their destination through another Member State or other Member States.

116 Movement of excisable products under a suspension arrangement to the State from other Member States.

116.—(1) This section applies to the receipt of excisable products under a suspension arrangement by persons resident or established in the State from a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive.

(2) (a)An authorised warehousekeeper may receive excisable products from a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive.

(b)A person licensed by the Minister for Enterprise, Trade and Employment to operate in the Customs-free airport, as defined in the Customs-Free Airport Act, 1947, may receive excisable products, intended for subsequent export from the Community, under a suspension arrangement from a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive and such licensed person is deemed for the purposes of this section to be an authorised warehousekeeper and this section shall apply to such licensed person accordingly.

(3) A person, other than an authorised warehousekeeper, receiving excisable products under a suspension arrangement from a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive shall be—

(a) a registered trader, or

(b) a non-registered trader and comply with subsection (5).

(4) (a)A registered trader shall neither hold nor dispatch excisable products under a suspension arrangement.

(b)Registration as a registered trader shall be granted for such periods and is to be subject to such conditions (including the provision of security, the keeping of specified accounts and records and compliance with any other specified control requirements) as the Commissioners may prescribe under section 153.

(c)The Commissioners may at any time for reasonable cause and following such notice as is reasonable in the circumstances revoke any registration so granted or vary its terms.

(5) A non-registered trader shall neither hold nor dispatch excisable products under a suspension arrangement and shall, in relation to each and every transaction involving excisable products to which this section applies, in addition to the requirements under section 99(1)(b) be required to—

(a) declare in writing to an officer the trader's intention to obtain excisable products under a suspension arrangement from another Member State, in advance of the dispatch of such excisable products from that Member State, giving details of the intended transaction in the prescribed manner,

(b) provide appropriate security to cover the trader's liability for the payment of the excise duty on such excisable products in the State, and

(6) Notwithstanding subsections (1) to (5) and subject to subsection (7), a person who is—

(a) an authorised warehousekeeper,

(b) a registered trader, or

may receive wine produced and dispatched by a small wine producer under a suspension arrangement.

(7) A person referred to in subparagraphs (a), (b) or (c) of subsection (6) who receives or intends to receive wine in accordance with that subsection shall—

(a) in advance of the dispatch of the wine, inform an officer in writing of his or her intention to obtain such wine,

(b) provide such documentary or other evidence as an officer may require to establish to the satisfaction of such officer that such wine was produced and dispatched by a small wine producer,

117 Accompanying documents.

117.—(1) With the exception of excisable products—

(a) referred to in section 104(2), and

(b) dispatched or transported by or on behalf of a State vendor or a non-State vendor in accordance with section 112,

excisable products, in the course of delivery—

(i) from another Member State to any person in the State,

(ii) from any person in the State to any person in another Member State,

(iii) from the State through another Member State to a place of destination in the State,

(iv) through the State from another Member State to a place of destination in that Member State,

(v) from one Member State through the State to another Member State,

(vi) to the State from another Member State in a case where relief from excise duty applies under section 104(1),

(vii) from the State to another Member State under any exemption provided for in paragraph 1 of Article 23 of the Directive,

(viii) to a free zone or free warehouse in another Member State for subsequent export from the Community, or

(ix) otherwise from the State through another Member State for export outside the Community,

shall, at all times while in the State during the course of such delivery, be accompanied by a document, referred to in this Part as an accompanying document, the form of which is to be prescribed under section 153.

(2) Where an authorised warehousekeeper dispatches excisable products under a suspension arrangement for delivery to a person in another Member State not being either—

(a) a person authorised by the authorities of another Member State to operate a tax warehouse under the provisions of Article 12 of the Directive, or

(b) a trader registered with the authorities of another Member State under Article 16.2 of the Directive,

such warehousekeeper shall ensure that, in addition to the accompanying document, a copy of the duty document referred to in paragraph (c) of subsection (2) of section 115 is dispatched with and accompanies such excisable products in the course of their delivery.

(3) Where an authorised warehousekeeper dispatches excisable products to another Member State under a suspension arrangement for delivery under any exemption provided for in paragraph 1 of Article 23 of the Directive, such warehousekeeper shall ensure that, in addition to an accompanying document, a certificate, referred to in this Part as an “exemption certificate”, is dispatched with and accompanies such excisable products in the course of their delivery.

(4) Where excisable products are dispatched under a suspension arrangement for delivery to a person in the State in a case where exemption from excise duty applies under section 104(1), such person shall take all reasonable steps to ensure that, in addition to an accompanying document, an exemption certificate is dispatched with and accompanies such excisable products in the course of their delivery.

(5) Where excisable products are dispatched under a suspension arrangement by a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive to a trader referred to in section 116(3)(b), such trader shall take all reasonable steps to ensure that such excisable products shall, in addition to an accompanying document, be accompanied at all times while in the State by a duty document certifying in the manner prescribed that—

(a) the transaction involving such excisable products has been declared to an officer prior to the dispatch of such products from the other Member State, and

(b) the duty on such excisable products has been either paid or secured in the State,

and, where the document referred to in this subsection does not for any reason accompany such excisable products, it is a sufficient and lawful excuse for such trader to show that he or she had informed the person sending or dispatching such excisable products of the legal requirement for such a document.

(6) The provisions of subsection (5) shall apply with any necessary modification to wine dispatched by a small wine producer as if the reference to a person authorised by the authorities of another Member State to operate a tax warehouse under Article 12 of the Directive were a reference to a small wine producer.

Chapter 3 Offences, Penalties and Proceedings

118 Interpretation (Chapter 3).

118.—In this Chapter “claimant” has the meaning assigned to it by section 143(1).

119 Evasion of excise duty.

119.—(1) It is an offence under this subsection for any person to take possession, custody or charge of, or to remove, transport, deposit or conceal, or to otherwise deal with, excisable products in respect of which any duty of excise is for the time being payable, with intent to defraud, either directly or indirectly, the State of such duty.

(2) It is an offence under this subsection for any person to be concerned in the evasion or attempted evasion of a duty of excise on excisable products with intent to defraud either directly or indirectly the State of such duty.

(3) Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under this subsection is liable—

(a) on summary conviction, to a fine of £1,500, or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both,

(b) on conviction on indictment, to a fine of 3 times the value of the excisable products concerned, including any duty or tax chargeable thereon, or £10,000, whichever is the greater, or, at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both.

120 Amendment of section 34 (amendments relative to penalties) of Finance Act, 1963.

120.—Section 34 of the Finance Act, 1963, is amended—

(a) in subsection (4) by the insertion after “subsection (3) of this section” of “or section 119 of the Finance Act, 2001”,

(b) in subsection (6) by the substitution of the following paragraph for paragraph (c):

“(c) the application of section 13 of the Criminal Procedure Act, 1967, to offences under section 186 of the Customs Consolidation Act, 1876, section 3 of the Customs Act, 1956, or any other provision of the Customs Acts or section 119 of the Finance Act, 2001.”

121 Offences generally.

121.—It is an offence under this section for any person—

(a) to contravene or fail to comply with—

(i) any provision of sections 109, 111, 112, 113, 115, 116, 117, or

(ii) any regulation made under section 153 in relation to such provision,

(b) to take possession or charge of excisable products to which any of the sections referred to in paragraph (a) applies in the knowledge that any requirement or condition specified in such sections, or in any regulations made in relation to any such sections under section 153, has not been complied with.

122 Offences in relation to false returns, claims etc.

122.—It is an offence under this section for any person to deliver any incorrect return, statement or accounts or to furnish any incorrect information—

(a) in connection with a claim for relief under section 104,

(b) in connection with a claim for repayment of excise duty under section 105,

(d) for any other purposes in relation to any duty of excise.

123 Resisting, obstructing, giving false information.

123.—It is an offence under this section for any person to—

(a) resist, obstruct or impede an officer, member of the Garda Síochána, or other person in the exercise of any power conferred by Chapter 4 on such officer, member or other person,

(b) fail without lawful and sufficient excuse to comply with any requirement imposed on them under any provision of Chapter 4,

(i) his or her name, address and date of birth, or

(ii) any other information,

when required to do so under any provision of Chapter 4, or to give any such name, address or other information which is false or misleading.

124 Penalty.

124.—Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under sections 121, 122 or 123 is liable on summary conviction to a fine of £1,500.

125 Forfeiture.

125.—(1) Any excisable products in respect of which an offence has been committed under section 119 or 121 or any goods which are packed with or used in concealing such products, are liable to forfeiture and, where any such products are found in, on, or in any manner attached to, any vehicle or other conveyance, such vehicle or other conveyance is deemed to have been made use of in the conveyance of such products and shall also be liable to forfeiture.

(2) Where a duty of excise chargeable on any excisable products is not paid at the time at which payment of such duty becomes due or within such longer period as may be permitted for payment by or under any enactment, such products are liable to forfeiture.

(3) Where any goods or vehicles are liable to forfeiture under the law relating to excise, anything containing or that contained such goods or vehicle, and anything made use of in the conveyance of such goods or vehicle, is liable to forfeiture.

126 Proceedings in relation to offences.

126.—(1) This section is concerned with proceedings in relation to any offence under or by virtue of the statutes which relate to the duties of excise or to the management of such duties or under any instrument relating to the management of such duties made under statute.

(2) Where there is evidence that an offence has been committed by several persons jointly—

(a) proceedings may be instituted against such persons, jointly or severally, for the recovery of a fine or penalty, and

(b) on conviction, such persons shall jointly and severally incur every such fine or penalty.

(3) Where proceedings have been instituted or continued in the name of an officer who has ceased for any reason to be such an officer or being such officer is absent at any time during such proceedings, then such proceedings may be continued in the name of any other officer or of the officer so absent, as appropriate in the circumstances.

(4) Any summons, notice, order or other document relating to proceedings referred to in subsection (1), or relating to any appeal against a judgement pursuant to such proceedings, may be served by an officer.

(5) (a)Notwithstanding the provisions of any other enactment but subject to paragraph (b), summary proceedings may be instituted within one year from the date of the offence.

(b)Summary proceedings in respect of an offence under this Chapter may be so instituted within 3 years of the date of the offence.

(6) Section 1 of the Probation of Offenders Act, 1907, shall not apply to offences to which this section relates.

127 Condemnation.

127.—(1) If, on the expiration of the period referred to in subsection (1) of section 143, no notice of claim has been given under that section, the thing in question shall be deemed to have been duly condemned as forfeited.

(2) Subject to subsection (3), where a notice in respect of anything is duly given under section 143, the Commissioners shall take proceedings for the condemnation of the thing by the court, and in case the court finds that the thing was at the time of seizure liable to forfeiture, the court shall condemn it as forfeited and, in any other case, shall order its release.

(3) Where anything is condemned or deemed to have been condemned as forfeited under this section, the forfeiture shall apply as from the date when the liability to forfeiture arose.

128 Proceedings for condemnation by court.

128.—(1) Proceedings under section 127 are civil proceedings and may be instituted either in the High Court or, if, in the opinion of the Commissioners, the value of the thing which is the subject of the proceedings does not exceed £5,000, the District Court.

(2) In any proceedings under section 127 the claimant, or any solicitor acting on behalf of such claimant, shall state on oath that the thing seized was, or was to the best of their knowledge and belief, the property of the claimant at the time of the seizure.

(3) The Commissioners may in their discretion stay or compound any proceedings under section 127, and may restore anything seized which is subject to such proceedings, and the Minister for Finance may order any such restoration.

(4) The provisions of section 126(3) shall also apply to proceedings under section 127.

(5) In any proceedings under section 127, if judgement is given for the claimant, no officer or person who made or assisted in making the seizure is liable to any civil or criminal proceedings on account of seizure or detention of the goods, provided that the court or judge certifies that there was probable cause for making such seizure or detention.

129 Damages.

129.—Where, in any civil or criminal proceedings against any officer or person on account of the seizing or detention of any thing, judgement is given against the defendant, and where the court or justice certifies that there was probable cause for such seizure or detention, the plaintiff shall not be entitled to any damages, besides the goods seized or the value of such thing, nor to any costs, and the defendant shall not be liable for any punishment or penalty.

130 Mitigation.

130.—(1) The Commissioners may in their discretion, in relation to any offence under or by virtue of the statutes which relate to the duties of excise or to the management of such duties or under any instrument relating to the management of such duties made under statute—

(a) mitigate any fine or penalty,

(b) stay or compound any proceedings.

(2) Section 1065(1)(b) of the Taxes Consolidation Act, 1997, shall apply to any such fine or penalty.

(3) A trial judge may in his or her discretion, mitigate any fine or penalty incurred for any offence referred to in subsection (1), provided that the amount so mitigated is not greater than 50 per cent of the amount of such fine or penalty.

(4) Notwithstanding subsections (1) and (2), where a fine or penalty is mitigated or further mitigated, as the case may be, by virtue of either of those subsections, after judgement, the total amount or amounts mitigated under this section shall not be greater than 50 per cent of the amount of such fine or penalty.

131 Presumptions.

131.—(1) Where in proceedings, any dispute arises as to—

(a) whether any excise duty has been paid in respect of any excisable products or other goods which are the subject of such proceedings,

(b) whether any such excisable products or other goods are of such kind or sort as is alleged in evidence,

the burden of proof in such dispute shall rest—

(i) in the case of proceedings referred to in subsection (1) of section 126, with the defendant,

(ii) in the case of proceedings referred to in subsection (2) of section 127, with the claimant,

(iii) in the case of proceedings commenced by a person claiming any thing seized as liable to forfeiture under the law relating to excise, against the Commissioners, or any officer, or any member of the Garda Síochána involved in such seizure, with the plaintiff.

(2) In any proceedings referred to in section 126(1) involving tobacco products, it shall be presumed until the contrary is shown that a thing is a cigarette or other tobacco product where, in the opinion of an officer, it is contained in any form of packaging which, by virtue of any wording on it, its shape and other characteristics, is indicative of the contents consisting of one or more than one cigarette or other tobacco product and the officer so states that opinion.

(3) In proceedings under section 121—

(a) any person who, otherwise than in a tax warehouse, produces, processes or holds excisable products on which excise duty has not been paid, or who does not comply with any of the conditions imposed by section 109, is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) that section,

(b) without prejudice to section 104(2), where excisable products which have been released for consumption in another Member State are found in the State and a requirement specified in paragraph (a), (b) or (c) of section 111 has not been complied with in respect of such excisable products, any person in whose possession or charge such excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) that section,

(c) where excisable products to which subsection (3) of section 112 applies are found in the State and a requirement specified in paragraph (a), (b), (c) or (d) of that subsection has not been complied with in respect of such excisable products, any person in whose possession or charge such excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) that subsection,

(d) where excisable products to which section 116 applies are found in the State and a requirement or condition specified in subsection (4), (5) or (7) or in any regulations made under section 153 has not been complied with in respect of these excisable products, any person in whose possession or charge these excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) subsection (4), (5) or (7), or any regulations made under section 153, as appropriate.

132 False evidence, punishment as for perjury.

132.—If any person in any proceedings under section 126 or 127, on any examination on oath, or in any affidavit or deposition authorised by the statutes which relate to the duties of excise, wilfully and corruptly gives false evidence, or wilfully and corruptly swears any matter or thing which is false or untrue, that person shall be guilty of an offence and on conviction be subject and liable to such punishment as persons convicted of perjury are subject and liable to.

Chapter 4 Powers of Officers

133 Interpretation (Chapter 4).

133.—In this Chapter, except where the context otherwise provides, “officer” means an officer of the Commissioners authorised by them to exercise the powers conferred on officers by this Chapter.

134 Power to stop vehicles.

134.—(1) An officer in uniform may stop any vehicle in order—

(a) that such officer, or any officer accompanying such officer, may exercise any power conferred on them by section 135 in relation to excisable products or any other products chargeable with a duty of excise, where there are reasonable grounds to believe that such products are being transported in or on such vehicle, or

(b) to examine and take samples of mineral oil under section 135(2)(a).

(2) An officer in uniform or a member of the Garda Síochána may stop any vehicle for any purpose related to vehicle registration tax or the registration of vehicles in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992.

(3) Any person in charge of a moving vehicle shall, at the request of an officer in uniform or a member of the Garda Síochána, stop such vehicle.

(4) Any person in charge of a vehicle shall, whether such vehicle has been stopped by an officer or member of the Garda Síochána under this section, or is already stationary, at the request of an officer or member of the Garda Síochána—

(a) keep such vehicle stationary for such period as is reasonably required to enable an officer or member to exercise any power conferred on such officer or member by section 135, or

(b) where such vehicle is in the opinion of such officer or member situated in a place unsuitable for the exercise of any power conferred on such officer or member by section 135, take such vehicle or cause it to be taken to such place as such officer or member may consider suitable for the exercise of such power.

135 Power to examine and search vehicles and to take samples.

135.—(1) An officer, on production of the authorisation of such officer if so requested by any person affected, or any officer accompanying such officer, may—

(a) examine a vehicle,

(b) carry out such searches of a vehicle as may appear to the officer to be necessary to establish whether—

(i) anything on or in the vehicle or in any manner attached to the vehicle is liable to forfeiture under the law relating to excise, or

(ii) any excisable products being transported in or on, or in any manner attached to, the vehicle correspond in every material respect with the description of any such products in a document referred to in paragraph (d) (iii),

(d) question the person in charge of the vehicle in relation to the vehicle or anything on or in any manner attached to the vehicle, and require such person—

(i) to give, within such time and in such form and manner as may be specified by the officer or accompanying officer, all such information in relation to the vehicle as may reasonably be required by the officer or accompanying officer and is in the possession or procurement of such person,

(ii) within such time and in such manner as may be specified by the officer or accompanying officer, to produce and permit the inspection of and the taking of copies of, or of extracts from, all such records relating to the vehicle and any products being so transported, as are reasonably required by the officer or accompanying officer and are in the possession or procurement of the person, and

(iii) to produce to the officer or accompanying officer any accompanying document, duty document or exemption certificate accompanying any excisable products being transported in or on, or in any manner attached to, the vehicle.

(2) An officer, on production of the authorisation of such officer if so requested by any person affected, or a member of the Garda Síochána, may—

(a) examine and take samples of any mineral oil in any fuel tank or otherwise present on or in any vehicle, or anything attached to any vehicle, for use or capable of being used for combustion in the engine of the vehicle, whether or not the vehicle is attended,

(b) examine or inspect any vehicle or anything attached to any vehicle for the purposes of paragraph (a),

(i) the owner of any vehicle,

(ii) any person who for the time being stands registered as the owner of any vehicle in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992,

(iii) any director, manager or principal officer of such owner where the registered owner is not one or more individuals, or

(iv) the person in charge of any vehicle,

in relation to such mineral oil, and require such owner, person, director, manager or principal officer to give to him or her any information in relation to such mineral oil as may reasonably be required and which is in the possession or procurement of such owner, person, director, manager or principal officer, as the case may be.

136 Entry and search of premises.

136.—(1) An officer may, at all reasonable times, on production of the authorisation of such officer if so requested by any person affected, enter a premises or other place (other than a dwelling) in which—

(a) the production, processing, holding, storage, keeping, importaction, purchase, packaging, offering for sale, sale or disposal of any product referred to in section 97(1) is being or is reasonably believed by the officer to be carried on,

(b) the manufacture, distribution, storage, repair, modification, importation, dealing, delivery or disposal of mechanically propelled vehicles is being, or is reasonably believed by the officer to be carried on, or

(c) any records relating to, or reasonably believed by the officer to relate to, the products or activities referred to in paragraphs (a) and (b) are being kept or are reasonably believed by the officer to be kept.

(2) An officer, on production of the authorisation of such officer if so requested by any person affected, or a member of the Garda Síochána, may—

(a) enter and inspect any premises or other place (other than a dwelling) for the purposes of section 135(2) and bring onto those premises any vehicle being used in the course of his or her duties,

(b) make such search and investigation of such premises or place as he or she may consider to be proper.

(3) An officer in or on any premises or place pursuant to subsection (1) may there—

(a) carry out such search and investigation as such officer may consider to be proper,

(b) take account of, and without payment, take samples of any product referred to in section 97(1) and of any materials, ingredients and substances used or to be used in the manufacture of such product,

(i) search for, inspect and take copies of or extracts from any such records (including, in the case of any information in a non-legible form, a copy of, or an extract from, such information in a permanent legible form),

(ii) remove and retain such records for such period as may reasonably be required for their further examination, and

(iii) require any person to produce any such records which are in that person's possession, custody or procurement and in the case of information in a non-legible form, to produce it in a legible form or to reproduce it in a permanent legible form,

(d) question any person present in relation to—

(i) any product referred to in subsection (1)(a) or any materials, ingredients or other substances used or intended to be used in the manufacture of such product,

(ii) any vehicle,

(iii) any records referred to in subsection (1)(c),

produced or found in or on such premises or place, and such person shall give to such officer all information required of such person which is in his or her possession, custody or procurement.

(4) An officer in or on any premises or place pursuant to this section, or any person accompanying an officer pursuant to subsection (5), may require any person present to give to such officer or such other person his or her name and address.

(5) Without prejudice to any power conferred by subsections (1) to (4), a judge of the District Court may, if satisfied on the sworn information of an officer that there are reasonable grounds for suspecting that—

(a) anything liable to forfeiture under the law relating to excise, or

(b) any records relating to transactions in contravention of the laws relating to excise,

are kept or concealed on or at any premises or place, issue a search warrant.

(6) A search warrant issued under this section shall be expressed and to operate to authorise a named officer accompanied by such other officers and such other persons as the officer considers necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other place named or specified in the warrant, to search such premises or other place, to examine anything found there, to inspect any record found there and, if there are reasonable grounds for suspecting that anything found there is liable to forfeiture under the law relating to excise, or that a record found there may be required as evidence in proceedings under the law relating to excise, to detain or seize the thing as liable to forfeiture or, in the case of a record, to detain it for so long as it is reasonably required for such purpose.

137 General provision concerning samples.

137.—(1) The provisions of section 6 of the Customs and Inland Revenue Act, 1888, shall apply to the taking of samples of excisable products, except where section 135(1)(c) or 136(3)(b) applies.

(2) The provisions of sections 101 and 102 of the Finance Act, 1998, shall apply to samples of excisable products or other samples taken under the laws relating to excise.

138 Obligation to answer certain questions, in respect of certain tobacco products.

138.—An officer or a member of the Garda Síochána may require any person whom such officer or member has reasonable cause to believe to be guilty of an offence under section 10A (inserted by the Finance Act, 1994), of the Finance (Excise Duty on Tobacco Products) Act, 1977, to furnish to such officer or member of the Garda Síochána—

(a) his or her name, address and date of birth,

(b) all such information in relation to the tobacco products in question as may be reasonably required by such officer or member and which is in the possession or procurement of the person.

139 Power of arrest and detention of persons.

139.—(1) Where an officer or a member of the Garda Síochána has reasonable grounds to suspect that a person is committing or has committed an offence under—

(a) section 119, or

(b) section 102(3) of the Finance Act, 1999,

then such officer or member may arrest such person without warrant.

(2) (a) Where an officer has reasonable grounds to believe that a person is committing or has committed an offence under section 10A (inserted by the Finance Act, 1994) of the Finance (Excise Duty on Tobacco Products) Act, 1977, then such officer may detain the person and, as soon as practicable thereafter—

(i) present the person, or

(ii) bring and present the person,

to a member of the Garda Síochána.

(b) Where a member of the Garda Síochána has reasonable grounds to believe—

(i) that a person is committing or has committed an offence under section 10A of the Finance (Excise Duty on Tobacco Products) Act, 1977, or

(ii) in case of a person presented or brought and presented to such member by an officer, that an offence under the said section 10A was or had been committed by the person and the person was duly detained by an officer under paragraph (a) for the offence and was either presented or brought and presented to such member in accordance with that paragraph,

then, such member may arrest the person without warrant.

140 Detention of goods and vehicles.

140.—(1) Where an officer reasonably suspects that any excisable products, or any other goods, are liable to forfeiture under the law relating to excise then—

(a) all such excisable products or other goods,

(b) any other thing being made use of in the conveyance of such products or goods, and

may be detained by such officer until such examination, enquiries or investigations as may be deemed necessary by such officer or another officer, have been made for the purposes of determining whether or not such products, goods, thing or vehicle are liable to forfeiture.

(2) Where a member of the Garda Síochána reasonably suspects that any excisable products, other goods or other thing or any vehicle is liable to forfeiture under section 10A (inserted by the Finance Act, 1994) of the Finance (Excise Duty on Tobacco Products) Act, 1977, such products, goods, other thing or vehicle may be detained by such member until such examination, enquiries or investigations as may be deemed necessary by such member or another member, or by an officer, have been made for the purposes of determining whether or not such products, goods, other thing or vehicle are liable to forfeiture.

(3) Where an officer or a member of the Garda Síochána reasonably suspects—

(a) that a vehicle has not been registered in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992,

(b) that a vehicle has been converted (within the meaning of that Chapter) and a declaration in relation to such conversion has not been made under section 131 of the Finance Act, 1992, or

then such officer or member may detain such vehicle for such period as is required to carry out such examination, enquiries or investigations as may be deemed necessary by such officer or member to determine to his or her satisfaction whether or not—

(i) such vehicle has been registered,

(ii) such declaration has been made, or

(iii) such vehicle registration tax has been paid.

(4) When a determination referred to in subsection (1), (2) or (3) has been made in respect of any excisable products, other goods, other thing or a vehicle or on the expiry of a period of one month from the date on which such products, goods, other thing or vehicle were or was detained under that subsection, whichever is the earlier, such products, goods, other thing or vehicle are to be either seized as liable to forfeiture under the Customs Acts or under section 141, or released.

141 Seizure of goods and vehicles.

141.—(1) Any goods or vehicles that are liable to forfeiture under the law relating to excise may be seized by an officer.

(2) Anything liable to forfeiture under section 10A (inserted by the Finance Act, 1994) of the Finance (Excise Duty on Tobacco Products) Act, 1977, may be seized by a member of the Garda Síochána and shall be delivered to an officer.

142 Notice of seizure.

142.—(1) Subject to subsection (2), an officer shall give notice of the seizure of anything as liable to forfeiture and of the grounds for seizure to any person who to the officer's knowledge was at the time of the seizure the owner or one of the owners of the thing seized.

(2) Notice under subsection (1) need not be given under this section to a person if the seizure was made in the presence of the person, the person whose offence or suspected offence occasioned the seizure or in the case of anything seized in any ship or aircraft, in the presence of the master or commander of such ship or aircraft.

(3) Notice under subsection (1) shall be given in writing and the notice shall include a statement of section 143 and be deemed to have been duly given to the person concerned—

(a) if it is delivered to the person personally, or

(b) if it is addressed to the person and left or forwarded by post to the person at the usual or last known place of abode or business of the person or, in the case of a body corporate, at its registered or principal office, or

(c) if the person has no known address in the State, by publication of notice of the seizure concerned in Iris Oifigiúil.

143 Notice of claim.

143.—(1) A person who claims that anything seized as liable to forfeiture is not so liable (referred to in this section as the “claimant”) shall, within one month of the date of the notice of seizure or, where no such notice has been given to the claimant, within one month of the date of the seizure, give notice in writing of such claim to the Commissioners.

(2) A notice under subsection (1) shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant.

144 Power to deal with seizures, before and after condemnation.

144.—(1) In this section “claimant” has the same meaning as it has in section 143.

(2) The Commissioners may, in their discretion, restore anything seized as liable to forfeiture under the law relating to excise, and the Minister for Finance may order such restoration.

(3) Without prejudice to subsection (2), where a notice relating to the thing seized has been duly given under section 143, the Commissioners may as they think fit and notwithstanding that such thing seized has not yet been condemned—

(a) if a notice relating to the thing has been duly given under section 143, deliver it up to the claimant on payment to the Commissioners of such sum as they think proper, being a sum not exceeding that which in their opinion represents the value of the thing, including any duty or tax chargeable on it which has not been paid, or

(b) if the thing seized is in the opinion of the Commissioners of a perishable nature, sell or destroy it.

(4) If, where anything is delivered up, sold or destroyed under this section, it is held by the court in proceedings under this section that the thing was not liable to forfeiture at the time of its seizure, the Commissioners shall, subject to any deduction allowed under subsection (5), on demand tender to such claimant—

(a) an amount equal to any sum paid by the claimant under subsection (2),

(b) if they have sold the thing, an amount equal to the proceeds of sale, or

(5) Where the amount to be tendered under subsection (4) includes any sum on account of any duty or tax chargeable on the thing which has not been paid before its seizure, the Commissioners may deduct from the amount so much of it as represents the duty or tax.

(6) If the claimant accepts any amount tendered under subsection (4), such claimant shall not be entitled to maintain proceedings in any court on account of the seizure, detention, sale or destruction of the thing concerned.

(7) All goods seized by an officer or by a member of the Garda Síochána as liable to forfeiture shall after condemnation of such goods be either—

(a) sold or destroyed, or

(b) otherwise disposed of in accordance with regulations made under section 153.

(8) Notwithstanding any other provision of this Chapter relating to goods seized as liable to forfeiture, an officer who seizes as liable to forfeiture any spirits or any stills, vessels, utensils, wort or other material for manufacturing, distilling or preparing spirits may at the discretion of such officer forthwith spill, break up or destroy any of those goods.

Chapter 5 Miscellaneous

145 Appeals to Commissioners.

145.—(1) Any person who has paid or who, in the opinion of the Commissioners, is liable to pay a duty of excise and is called on by them to pay an amount of such duty may appeal in accordance with this section against the decision concerned in respect of the liability or the amount of the duty.

(2) Any person who has claimed or received a repayment of a duty of excise may appeal to the Commissioners against the decision concerned in respect of the amount of such repayment or the refusal of such repayment.

(3) Any person who is the subject of any of the following acts of the Commissioners:

(a) a refusal to approve a person as an authorised warehousekeeper or a premises as a tax warehouse under section 109, or a revocation, under that section, of any such approval that has been granted,

(b) a refusal to approve a person as a tax representative under section 113, or a revocation, under that section, of any such approval that has been granted,

(c) a refusal to grant registration of a trader under section 116, or a revocation, under that section, of any such registration that has been granted,

(d) a decision in relation to the registration of a vehicle, or the amendment of an entry in or the deletion of an entry from, the register referred to in section 131 of the Finance Act, 1992, by the Commissioners, or on their behalf, under that section 131,

(e) a determination of an open market selling price of a vehicle under section 133(2) of the Finance Act, 1992, or

(f) a granting, refusal or revocation of an authorisation under section 136 of the Finance Act, 1992, or a decision in relation to the arrangements for payment of vehicle registration tax under that section 136,

may appeal against such an act to the Commissioners.

(4) An appeal under subsection (1), (2) or (3) shall be in writing and shall set forth in detail the grounds of appeal.

(5) An appeal is to be lodged by the person concerned with the Commissioners within the period of 2 months from the date of—

(a) the payment of a duty of excise,

(b) the notification by the Commissioners on being called on by them to pay an amount of a duty of excise,

(d) the notification by the Commissioners of a refusal of a repayment by them of a duty of excise, or

(e) the notification by the Commissioners of the doing by them of an act referred to in subsection (3),

or within such longer period as the Commissioners may, in exceptional cases, allow.

(6) An appeal shall, subject to subsection (12), be determined by the Commissioners within a period of 30 days from its lodgement with the Commissioners.

(7) The Commissioners may appoint one or more of their officers for the purposes of carrying out their functions under this section but no such officer shall determine an appeal under this section in respect of a decision he or she has made.

(8) The Commissioners shall notify in writing an appellant concerned of their determination of an appeal and the reasons for their determination.

(9) Where the Commissioners determine on appeal that the amount due is less than the amount paid, they shall repay the amount overpaid to the appellant concerned.

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.

This text is published under Irish Statute Book's own terms of reuse, not a Legalize or public-domain licence. Irish Statute Book
CC-BY 4.0 (Oireachtas Open Data PSI Licence)
Contains Irish Public Sector Information licensed under the Oireachtas (Houses of the Oireachtas) Open Data PSI Licence / Creative Commons Attribution 4.0 International, sourced from https://www.irishstatutebook.ie.