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5 2005

Finance Act 2005

PART 2

Excise

Chapter 1

Alcohol Products Tax

Amendment of section 134 (power to stop vehicles) of Finance Act 2001.

59. Section 134 of the Finance Act 2001 is amended in subsection (1) by substituting the following for paragraph (a):

“(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, any other products chargeable with a duty of excise, or any prohibited goods, where there are reasonable grounds to believe that such products or goods are being transported in or on such vehicle, or”.

Amendment of section 139 (power of arrest and detention of persons) of Finance Act 2001.

60. Section 139 of the Finance Act 2001 is amended by substituting the following for subsection (1):

“(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,

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

(c) section 79(5) (inserted by the Finance Act 2005) of the Finance Act 2003 ,

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

Amendment of section 73 (interpretation) of Finance Act 2003.

61. Section 73 of the Finance Act 2003 is amended in subsection (1)—

(a) by inserting the following definition after the definition of “Commissioners”:

“ ‘counterfeit goods’ has the same meaning that it has in Article 2 of Council Regulation (EC) No. 1383/2003 of 22 July 20031 ;”,

(b) by inserting the following definition after the definition of “Directive”:

“ ‘illicit alcohol product’ means any alcohol product—

(a) which has been produced or processed in the State otherwise than in a tax warehouse, except where section 77(f), or subsection (2) or (3) of section 109 of the Finance Act 2001 applies, or

(b) which is counterfeit goods;”,

(c) by substituting the following for the definition of “prohibited goods”:

“ ‘prohibited goods’ means any machinery, apparatus, equipment, vessel, materials, substance or other thing which is being used, or was used, or is intended to be used, either in the production or processing of any illicit alcohol product or in the removal from any alcohol product of any denaturant;”.

Amendment of section 79 (offences and penalties) of Finance Act 2003.

62. The Finance Act 2003 is amended, in Chapter 1 of Part 2, by substituting the following for section 79:

“79.—(1) Except where subsection (2), (3) or (5) applies, it is an offence under this subsection for any person to contravene or fail to comply with any provision of this Chapter or any regulation made under section 81 or any condition imposed under this Chapter or under such regulation in relation to such provision.

(2) It is an offence under this subsection to invite an offer to treat for, offer for sale, keep for sale or delivery, sell or deliver, or to be in the process of delivering, any alcohol product on which the appropriate rate of alcohol products tax has not been paid.

(3) It is an offence under this subsection for any person to record in any account, return or other record relating to alcohol products or materials which is required to be kept in accordance with any provision of this Chapter or any regulations made under section 81—

(a) a quantity, strength, or gravity for any alcohol product or materials which is found by an officer taking account to be greater or less than the actual quantity, strength or gravity of such alcohol product or materials,

(b) any other particular relevant to the liability of any alcohol product to alcohol products tax which is not true and accurate.

(4) Subsection (3) does not apply where any discrepancy—

(a) is accounted for by a loss due to force majeure or by a loss inherent in the nature of the product, or

(b) is otherwise accounted for to the satisfaction of the Commissioners, and the alcohol products tax due on the product in question is paid.

(5) It is an offence under this subsection—

(a) to produce or process any illicit alcohol product or to attempt such production or processing, or to be concerned with any such production, processing, attempted production or attempted processing,

(b) without the consent in writing of the Commissioners, to remove or to attempt to remove, or to be knowingly concerned in removing or attempting to remove, any denaturant from any alcohol product,

(c) to knowingly deal in any illicit alcohol product or any alcohol product from which any denaturant has been removed,

(d) to keep prohibited goods in any premises or on any land, or

(e) to deliver, or be in the process of delivering, any illicit alcohol product or prohibited goods.

(6) (a) Whenever a person, who is the owner or the occupier for the time being of premises or land in or on which prohibited goods are found, is charged in any legal proceedings with contravening subsection (5)(d), the prohibited goods shall, until the contrary is proved, be presumed to have been kept by such person in the said premises or on the said land (as the case may be), in contravention of that subsection.

(b) In the case of an offence under subsection (2), where it is shown that any alcohol product is counterfeit goods, it shall be presumed, until the contrary is proved, that the appropriate rate of alcohol products tax has not been paid on such product.

(7) Without prejudice to any other penalty to which a person may be liable, a person guilty of an offence under subsection (1), (2) or (3) is liable on summary conviction to a fine of €1,900.

(8) Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under subsection (5) is liable—

(a) on summary conviction to a fine of €3,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months, or to both, or

(b) on a conviction on an indictment, to a fine of €12,695 or, at the discretion of the Court, to imprisonment for a term not exceeding 5 years, or to both.

(9) Where a person convicted of an offence under subsection (2) or (5) is either a licensee within the meaning of section 2 of the Intoxicating Liquor Act 2003 , or the secretary of a club registered under the Registration of Clubs Acts 1904 to 2004, section 9 (which relates to the temporary closure of a licensed premises) of the first-mentioned Act shall, with the exception of subsection (4), apply in respect of a licensed premises or premises of such club, used in connection with such offence.

(10) Any alcohol products, materials or prohibited goods in respect of which an offence has been committed under this section are liable to forfeiture and, where any such products, materials or goods are found in, on, or in any manner attached to any vehicle, such vehicle is also liable to forfeiture.

(11) Where an offence under this section is committed by a body corporate and the offence is shown to have been committed with the consent or connivance of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate or a member of the committee of management or other controlling authority of the body corporate, that person shall also be deemed to be guilty of an offence and may be proceeded against and punished as if guilty of the first-mentioned offence.”.

Amendment of Chapter 1 of Part 2 (alcohol products tax) of Finance Act 2003.

63. —Chapter 1 of Part 2 of the Finance Act 2003 is amended by inserting the following section after section 78:

“Relief for small breweries.

78A.—(1) A relief of half the amount of alcohol products tax paid on beer shall, subject to subsection (3) and to such conditions as the Commissioners may prescribe or otherwise impose, be granted on a quantity of beer, not exceeding 20,000 hectolitres in a calendar year, brewed in the European Community in a brewery—

(a) in which the quantity of beer brewed in the previous year has not exceeded 20,000 hectolitres,

(b) which is legally and economically independent of any other brewery,

(c) the premises of which are situated physically apart from those of any other brewery, and

(d) in which less than 50 per cent of the beer brewed in the previous calendar year has been brewed under a licence, franchise or contract arrangement for another brewery.

(2) The relief under subsection (1) shall be granted by the Commissioners by means of repayment.

(3) (a) Subject to paragraph (b), relief under subsection (1) does not apply to any beer brewed for another brewery under a licence, franchise or contract arrangement.

(b) Notwithstanding paragraph (a), where beer is brewed in a brewery under a licence, franchise, contract or other cooperation arrangement with one or more other breweries, and where—

(i) such brewery and each of the breweries with which it has such an arrangement satisfy the criteria set down in paragraphs (a), (b) and (c) of subsection (1), and

(ii) the combined total quantity of the beer brewed in the previous calendar year, in such brewery and the breweries with which it has such an arrangement, has not exceeded 40,000 hectolitres,

then subsection (1)(d) does not apply, and such beer qualifies for relief under subsection (1).

(4) For the purposes of subsection (1)(b) a brewery is not considered to be legally and economically independent of another brewery where such breweries are directly or indirectly owned or partly owned—

(a) by the same person, or

(b) by associated companies within the meaning of section 432 of the Taxes Consolidation Act 1997 or by legal entities corresponding to such associated companies.

(5) (a) Claims for repayment under subsection (2) shall be made in such form as the Commissioners may direct and shall be in respect of payments of alcohol products tax made within a period of 3 calendar months beginning on the first day of January, April, July or October.

(b) A repayment may not be made under this section unless the claim is made within 6 months following the end of each such period or within such longer period as the Commissioners may, in any particular case, allow.”.

1OJ No. L196, 2.8.2003, p.7