Budget October 2021 

Recycling bottles and containers - call for repeal of HMRC’s spirits duty stamps law 


The British Distillers Alliance (BDA) has been inundated with requests from members for clarification of the law concerning re-filling of duty-stamped empty bottles.  The law does not make clear where a stamp should be re-applied, and appears silent about stamped bottles that are re-filled at on-trade premises.  There are potentially huge penalties for breach of the regulations including a fixed penalty of £250 per bottle even though the duty has been paid on the spirits (and the penalty is 30 times the duty on the spirits in the stamped bottle that has already been duty paid).  The BDA has written several times to HMRC Policy officials over the past 12 months to discuss and seek clarification but has not had replies.  Meanwhile, the industry is in panic they may get things wrong.

The law has not moved with the times and, at the least, requires amendment and clarification.  That said, the simplest solution would be for the duty stamps scheme to be repealed entirely.  There never was any spirits duty fraud of any statistical significance at the time the duty stamps scheme was mooted and the empirical data clearly bear this out.  It appears HMCE (as was) erred in interpreting revenue receipts at the turn of the century but nevertheless in 2006  legislated for a scheme that the industry did not believe was necessary and, indeed, remains unnecessary and heavily burdensome.

23 February 2021

UK – EU excise movement procedures from 1 January 2021

Since 1 January 2021, the excise movement procedures for intra-EU movements between GB and EU Member States ceased.  The procedures for what are (now) imports and exports of excise goods between the UK (GB) and EU (now Rest of World) already exist but many businesses have been wrong-footed.  


The UK  “switched off” the EU-wide Excise Movement and Control System – EMCS – at the end of 2020 (and gave notice this would happen).  The UK has retained a domestic version of EMCS for duty-suspended movement of excise goods wholly within the UK.  This takes movements as far as the port for exports (under EMCS).


There is an option for exporters to use customs transit/procedures which does not involve EMCS but HMRC’s Notice 197 section 13 (Exports of excise goods) commences (and majors) on the “EMCS” route.  A brief summary of how goods should “move” under the “EMCS” route is set out below.  


The GB tax warehousekeeper of dispatch must use the UK-only version of the Excise Movement Control system (EMCS) to initiate a movement (eAD) from a UK tax warehouse to UK port under cover of a UK movement guarantee.  A declaration must be lodged for the export to the EU and an import declaration to be made (e.g. French or Dutch customs), with a customs procedure code for release of the goods to free circulation (customs-cleared), but subsequently under the control of the EU EMCS (excise duty suspension) from the port, to a tax warehouse within the EU.  The movement from the UK is discharged when a Report of Export (IE 818) is received via EMCS from HMRC.


When the goods are customs-cleared in the EU, any further excise duty-suspended movement must be initiated on the EU EMCS by a Registered Consignor (Defined in Directive 2008/118/EC Article 4(10)) in the “recipient” Member State.  Further, “another” moment guarantee must be in place to cover "the risks inherent in the movement" under the EU EMCS.  The goods then move under cover of an eAD (with an ARC number) to a tax warehouse in the EU.  


For movements involving Northern Ireland, see Notice 197 section 17.


The ”reverse” applies to all excise imports into the UK (GB) in effect.  See Notice 197 section 7.


The UK has retained its own version of the EMCS, as explained above, but it has no relationship or interface with the EU EMCS.  



January 2021 will bring an end to the main opportunities for alcohol excise duty fraud and must mean changes to HMRC’s anti-fraud Due Diligence Condition


January 2021 brings in fundamental changes to the movement and control of excise goods from the EU to the UK.  What were “acquisitions” from the EU will be “rest of world” imports, subject to full border controls.  This will mean that the current opportunity for systematic alcohol fraud under the weakness of the EMCS (“inward diversion” fraud) is closed entirely.   Further, the requirement for alcohol excise businesses to carry out the mandatory Due Diligence procedures (including those under the AWRS) as set out in public notices, must urgently be reviewed by HMRC to reflect the entirely different supply chains for excise goods moved between the EU and the UK.


Features of alcohol excise duty fraud


Alcohol duty fraud has been primarily in inward diversion of large volumes of popular (and relatively inexpensive) British-produced brands of lager.  Its most severe effects were felt by the wholesale sector and the impact was exacerbated by HMRC’s inability to counter the problem.


There has additionally been a lesser problem with popular third country wine brands, but, as highlighted repeatedly by HMRC’s Fraud Investigation Service, the main issue was beer.  Indeed, this was the conclusion of the 2012 All Party Parliamentary Beer Group’s report on the matter, which took evidence from HMRC, Border Force, other regulatory bodies, industry trade-body representatives and businesses.   


HMRC’S description of the fraud was summarized in last year’s Court of Appeal case “Seabrook Warehousing Ltd ” 2019 EWCA Civ 1357 by Henderson LJ at [37]:

a)  A movement of goods is arranged, moving goods to the UK under duty suspension for consignment to an account within a receiving excise warehouse in the UK.


b)  The movement is entered onto EMCS, and is known as “the cover load”.

c)  The cover load will leave for the UK. If it reaches the UK, and passes through the frontier without being checked by UK Border Force, it will “park up” and not go direct to the warehouse.


d)  At this point, a number of identical “mirror loads” will be created, with the same Administrative Reference Code (“ARC”) as the cover load. These mirror loads will then be transported into the UK, until one of them is intercepted or until the journey time stated on the original EMCS expires.


e)  If a mirror load is detected, it will use the details of the cover load to legitimise itself and will make its way to the UK warehouse. The ARC will then be discharged, and the cover load which has been “parked up” will probably be, in the jargon, “slaughtered” (i.e. broken up and distributed).


f)  If none of the mirror loads is intercepted, they can then all be “slaughtered” and enter the UK home market without payment of any excise duty or VAT.


From 2021, supply chains and revenue risk will be very different for movements between the UK and the EU and most importantly, the main risk of alcohol excise inward diversion fraud will simply be extinguished. This is because when the UK exits the EU following the end of the transition period, EMCS will be switched off for intra-EU trade, which means the weakness of EMCS for inward diversion of fraudsters using multiple mirror loads under cover of a single ARC will not be possible.  Import declarations will have to be made and excise goods will always be subject to control checks, which is not currently permitted under Single Market rules.  The risk of fraud will therefore be reduced by these measures.  That is not to say that fraud may not mutate, but “container fraud”, akin to tobacco duty fraud (i.e. plain old fashioned smuggling) seems unlikely.

This will also mean that the current Due Diligence Condition set out in HMRC’s public notices must be revised substantially or removed entirely.  The current policy really deals with intra-EU movements and inward diversion fraud as described in the Seabrook Warehousing case, i.e. risks in EMCS alcohol supply chains between the UK and the EU.  The supply chains will not be subject to EMCS from January 2021 and as a consequence HMRC’s entire policy will need re-consideration, particularly in respect of the heavy burdens it has imposed upon the legitimate alcohol sector.

28 November 2020

HM Government Alcohol Duty Review Call for Evidence 2020 -  BDA response


The British Distillers Alliance has responded to the government’s Alcohol Duty Review (ADR) Call for Evidence.  Copies of the response are available upon request.


There are two elements to the ADR: rates and structure (HM Treasury) and management of the revenue (HMRC).  In terms of the former, the main issues are fairer tax for spirits (tax by unit for all alcohol) and reduced rates for smaller producers.  In the case of management of the revenue, this runs in tandem with HMRC’s modernization and simplification programme, for which the BDA has also made submissions, reiterated in the ADR response.


At a Joint Alcohol and Tobacco Consultative group meeting on  meeting on 24 November, HMRC addressed the status of the ADR, with the following points:


  • Stakeholder engagement (other than HMG) comprises industry, economists and the public health sector;

  • HM Treasury will engage with minister before Christmas and “shape proposals”

  • There will be consultation on proposals including a “technical” consultation

  • These consultations will be announced next year — possibly at a “Budget event”, taking matters thereafter into 2022.

  • Constraints will be (as always) systems capacity and legislative space.


The BDA will participate in further interim discussion.

8 October 2020

BDA welcomes HMRC Policy change to remove requirement for excise warehouse premises guarantees

HMRC has just announced an extremely welcome policy change removing the requirement for a premises guarantee to be in place as a condition of excise warehouse approval.  Until this month, a premises guarantee has been a requirement for excise warehouse approval, albeit it has been possible for “trade facility” policy excise warehousekeepers to have a “nil” level of security where there is no more than  £100k duty stockholding at month end.


By circular of 28 September 2020 to members of the Joint Alcohol and Tobacco Consultative Group (JATCG), HMRC stated:

“Excise premises guarantees will also be changing from 1 January 2021. This will allow most GB and NI businesses to operate an excise premises without a guarantee. This will be subject to risk and compliance checks by HMRC​. This policy change will apply to both storage and production premises.  

HMRC is currently reviewing all existing premise guarantees to identify those that can be cancelled.  HMRC will notify businesses who do not satisfy the risk and compliance checks, as these guarantees will be retained.  It is expected we will complete this work by 1st January 2021.”

At the virtual JATCG meeting of 7 October 2020, HMRC confirmed that excise warehouse premises guarantees would be applied “by exception” ie the requirement for a guarantee would be exceptional, not the norm.  HMRC’s position is that a guarantee could be required for cases of non-compliance by a warehousekeeper (or applicant for warehouse approval) or other revenue risk. 

Whilst the policy change is welcomed, the BDA nevertheless believes that HMRC misses the purpose (or rather, lack of purpose) of a premises guarantee.  HMRC has manifold appropriate sanctions to improve compliance of a warehousekeeper incrementally or with immediate severity.  The premises guarantee is not really part of such compliance measures and never covers the full extent of revenue in duty-suspension.  Instead, a premises guarantee is really an archaic, blunt “long stop” in the unlikely event that a warehousekeeper did not pay assessments to duty on pilferages or unexplained stock deficiencies.  

To put this into context, HMRC has never routinely require licensed wine producers or cider-makers or registered brewers to provide a premises guarantee for excise duty suspension.  It is discriminatory, therefore, for a premises guarantees to be imposed upon excise warehousekeepers who may “hold” such alcohol products (as well as spirits).   Alan Powell and the BDA have lobbied hard for years for removal of warehouse premises guarantees imposed as a matter of routine by HMRC since they are not necessary or effective for compliance purposes and are discriminatory vis a vis “production” tax warehouses. 

2 October 2020

UK Alcohol Duty Review starts - call for evidence

HM Treasury has advised the BDA that the Call for Evidence by the UK government into alcohol, duty rates and structures has commenced. The link to the web site is here: https://www.gov.uk/government/publications/alcohol-duty-review-call-for-evidence

The government committed at Budget 2020 to undertake a review of the alcohol duty system. This area of policy was previously harmonised by EU law.  The UK is  now able to set its own law in this area.

The aim of the Alcohol Duty Review is said to improve the current system to make it simpler, more economically rational and less administratively burdensome on businesses and HMRC. This call for evidence seeks views from respondents on how well the current system works (both for the individual duties and as a system as a whole), and also looks at whether:

  • the method of alcohol taxation should be standardised

  • the duty categories should be changed or unified

  • products should be consistently distinguished by their strength

  • distinctions should be made based on the place of retail

  • small producer reliefs should be extended or standardised

  • duties could be uprated for inflation in a more consistent manner

  • a single process for approvals, declarations and payments should be introduced

  • more could be done to tackle avoidance and evasion of duty

The BDA has been ready to contribute to this call for evidence since the Budget announcement and will participate with submissions to HMT about both duty rates and the entire taxation structure.