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3 1998

FINANCE ACT, 1998

Chapter 2

Miscellaneous

Interpretation (Chapter 2).

83. —In this Chapter “the Order of 1975” means the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975).

Amendment of provisions relating to refreshment houses licences.

84. —The Refreshment Houses (Ireland) Act, 1860, is hereby amended—

(a) in section 8 (as amended by section 96 of, and the Sixth Schedule to, the Finance (1909-10) Act, 1910), by the deletion of the following:

“Provided always, that no licence to sell foreign wine by retail to be consumed on the premises shall be granted for any refreshment house which, with the premises belonging thereto and occupied therewith, shall be under the value of eight pounds a year, nor for any refreshment house situated in any city, borough, town or place containing a population exceeding ten thousand according to the then last Parliamentary census, if such refreshment house, with the premises belonging thereto and occupied therewith, shall be under the value of fifteen pounds a year; and”,

and

(b) in section 13 (as amended by section 50 (2)(b) of the Finance Act, 1989 ), by the deletion of “, and the net annual value of such house, according to the valuation thereof last made for poor law purposes under the laws then in force” and by the deletion of “or not of the annual value required by this Act,”.

Amendment of section 21 (hours of business in registered premises) of Betting Act, 1931 .

85. Section 21 (1) of the Betting Act, 1931 , is hereby amended as on and from the 1st day of April, 1999, by the substitution of the following subsection for subsection (1):

“(1) Registered premises shall not be opened or kept open for the transaction of business at any time on any Christmas Day, Good Friday or Easter Sunday and in the case of any other day—

(a) from the 1st day of September in any year to the 31st day of March in the following year, at any time before the hour of seven o'clock in the morning and after the hour of half past six o'clock in the evening of such other day, and

(b) from the 1st day of April in any year to the 31st day of August in that year, at any time before the hour of seven o'clock in the morning and after the hour of ten o'clock in the evening of such other day.”.

Increase in duty on bookmaker's premises registration certificate.

86. —The duty of excise imposed by section 18 of the Finance Act, 1931 , on the registration, or on the renewal of the registration, under the Betting Act, 1931 , of any premises in which the business of bookmaking is carried on shall be charged, levied and paid, as on and from the 1st day of December, 1999, at the rate of £300 in lieu of the rate specified at reference number 5 in Part IV of the Sixth Schedule to the Finance Act, 1992 , and accordingly from that date the reference, opposite that reference number in column 4 (operative date), to the 1st day of December, 1992, shall be construed as a reference to the 1st day of December, 1999, and the reference, opposite that reference number in column 5 (rate of duty), to £200 shall be construed as a reference to £300.

Amendment of section 43 (gaming machine licence duty) of Finance Act, 1975 .

87. —(1) Section 43 of the Finance Act, 1975 , is hereby amended in paragraph (aa) (inserted by section 74 (2) of the Finance Act, 1980 ) of subsection (7) by the substitution of “Fridays, Saturdays, Sundays and holidays” for “Saturdays, Sundays and holidays” in both places where it occurs.

(2) (a) Subsection (1) shall apply with effect from the 1st day of May, 1998, in respect of a gaming machine licence, of the type referred to in section 43 (7)(aa) of the Finance Act, 1975 , granted on or after that date under section 43 (4) of the Finance Act, 1975 .

(b) In respect of a gaming machine licence, of the type referred to in section 43 (7)(aa) of the Finance Act, 1975 , granted before the 1st day of May, 1998, under section 43 (4) of the Finance Act, 1975 , which is a subsisting licence at that date, subsection (1) shall apply with effect from that date for the balance of the period for which such licence remains in force.

Amendment of section 123 (rates of duty) of Finance Act, 1992 .

88. —(1) Section 123 of the Finance Act, 1992 , is hereby amended in the proviso (inserted by section 88 of the Finance Act, 1994 ) to paragraph (c) (inserted by section 70 of the Finance Act, 1993 ) by the substitution of “Fridays, Saturdays, Sundays and public holidays” for “Saturdays, Sundays and public holidays”.

(2) (a) Subsection (1) shall apply with effect from the 1st day of May, 1998, in respect of an amusement machine licence, of the type referred to in section 123 (c) of the Finance Act, 1992 , granted on or after that date under section 122 of the Finance Act, 1992 .

(b) In respect of an amusement machine licence, of the type referred to in section 123 (c) of the Finance Act, 1992 , granted before the 1st day of May, 1998, under section 122 of the Finance Act, 1992 , which is a subsisting licence at that date, subsection (1) shall apply with effect from that date for the balance of the period for which such licence remains in force.

Hydrocarbons.

89. —(1) In this section—

the Act of 1988” means the Finance Act, 1988 ;

the Act of 1997” means the Finance Act, 1997 .

(2) The duty of excise on mineral hydrocarbon light oil imposed by paragraph 11(1) of the Order of 1975, shall, in lieu of the rate specified in subsection (2) of section 82 of the Act of 1997, be charged, levied and paid, as on and from the 4th day of December, 1997, at the rate of £361.36 per 1,000 litres.

(3) The rebate of duty on mineral hydrocarbon light oil provided for in subsection (3) of section 56 of the Act of 1988, shall, as respects mineral hydrocarbon light oil on which it is shown to the satisfaction of the Revenue Commissioners that duty at the rate specified in subsection (2) of this section has been paid on or after the 4th day of December, 1997, be calculated at the rate of £66.92 per 1,000 litres.

(4) For the purposes of the rebate of duty on mineral hydrocarbon light oil provided for in subsection (4) of section 82 of the Act of

1997, the said subsection (4) shall apply as on and from the 4th day of December, 1997, as if the reference therein to subsection (2) of the said section 82, were a reference to subsection (2) of this section.

Amendment of section 21 (duties on hydrocarbon oil) of Finance Act, 1935 .

90. —(1) Section 21 of the Finance Act, 1935 , is hereby amended—

(a) in subsection (15)—

(i) in the definition of “motor vehicle” (as amended by section 84 (6) of the Finance Act, 1994 ) by the insertion after “on roads,” of “including any vehicle which is designed, constructed or modified to be suitable for traction on a road by a mechanically propelled vehicle,”, and

(ii) by the insertion after the interpretation of “mobile well drilling equipment” (inserted by the said section 84(6)) of the following definition:

“the expression ‘fuel tank’ means any tank in or on a motor vehicle which is used or is capable of being used to supply fuel for combustion in the engine of the motor vehicle for the purposes of propulsion or of another motor vehicle which can provide traction for such purposes;”,

and

(b) by the insertion of the following subsection after subsection (15):

“(16) For the purposes of the definition of ‘fuel tank’ in subsection (15) of this section, it shall be presumed, until the contrary is shown, that a tank is capable of being used to supply fuel for combustion in the engine of a motor vehicle for the purposes of propulsion if there are any outlets from the tank other than—

(a) those which are permanently and solely connected to and for the sole supply of fuel for refrigeration, oxygenation, thermal insulation or other specialised systems in or on the motor vehicle, or

(b) those which are solely for the purpose of discharging fuel from an oil road tanker to a vessel or tank separate from such oil tanker.”.

(2) This section shall come into operation on such day as the Minister for Finance may appoint by order.

Amendment of section 731 (exemption from rates) of Merchant Shipping Act, 1894.

91. —Section 731 of the Merchant Shipping Act, 1894, is hereby amended by the addition of the following proviso:

“Provided that no such exemption shall be allowed in respect of excise duty on any hydrocarbon oil.”.

Amendment of paragraph 8 of Order of 1975.

92. —Paragraph 8 of the Order of 1975 is hereby amended by the substitution of the following subparagraph for subparagraph (4) (inserted by Regulation 17 of the European Communities (Customs and Excise) Regulations, 1992 (S.I. No. 394 of 1992)):

“(4) In this paragraph ‘cider and perry’ means cider and perry exceeding 1.2% vol. but not exceeding 22% vol. obtained from the fermentation of apple or pear juice and without the addition of any other alcoholic liquor or any liquor or substance which—

(i) imparts colour or flavour, and

(ii) in the opinion of the Revenue Commissioners, significantly alters the character of the product from what it otherwise would be.”.

Deferment of duty on spirits.

93. —Paragraph 4 of the Order of 1975 is hereby amended by the substitution of the following subparagraph for subparagraph (3) as amended by Regulation 4 of the European Communities (Deferred Payment of Excise Duty on Spirits and Imported Made Wine and Beer) Regulations, 1980 (S.I. No. 405 of 1980):

“(3) The Revenue Commissioners may, subject to compliance with such conditions for securing payment of the duty as they may think fit to impose, permit payment of the duty imposed by subparagraph (2) of this paragraph to be deferred to a day not later than—

(a) in case the duty is payable on a day in the month of December in any year not later than the 20th day of that month, the last day of that month in the same year, or

(b) in any other case, the last day of the month succeeding the month in which the duty is payable.”.

Tobacco products.

94. —(1) In this section and in Schedule 7

the Act of 1977” means the Finance (Excise Duty on Tobacco Products) Act, 1977 ;

the Act of 1997” means the Finance Act, 1997 ;

cigarettes”, “cigars”, “fine-cut tobacco for the rolling of cigarettes” and “other smoking tobacco” have the same meanings as they have in the Act of 1977, as amended by the Imposition of Duties (No. 243) (Excise Duty on Tobacco Products) Order, 1979 (S.I. No. 296 of 1979), by Regulations 26 and 29 of the European Communities (Customs and Excise) Regulations, 1992 (S.I. No. 394 of 1992) and by section 86 of the Act of 1997.

(2) The duty of excise on tobacco products imposed by section 2 of the Act of 1977, shall, in lieu of the several rates specified in the Seventh Schedule to the Act of 1997, be charged, levied and paid, as on and from the 4th day of December, 1997, at the several rates specified in Schedule 7 .

Amendment of section 103 (interpretation (Chapter II)) of Finance Act, 1992 .

95. —Section 103 (as amended by Regulation 7(a) of the European Communities (Customs and Excise) Regulations, 1992 (S.I. No. 394 of 1992)) of the Finance Act, 1992 , is hereby amended in subsection (1) by the substitution of the following definition for the definition of “Community”:

“‘Community’ means the territory of the Community as defined by the Treaty establishing the European Economic Community and, in particular, Article 227 thereof except for the following national territories:

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

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

(c) in the case of the United Kingdom, the Channel Islands,

(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 Åland Islands;”.

Amendment of section 111 (accompanying documents) of Finance Act, 1992 .

96. —Section 111 (as amended by Regulation 11 of the European Communities (Customs and Excise) Regulations, 1992 (S.I. No. 394 of 1992) and by section 100 of the Finance Act, 1995 ) of the Finance Act, 1992 , is hereby amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) With the exception of excisable products—

(a) referred to in subsection (2) of section 106, and

(b) dispatched or transported by or on behalf of a State vendor or a non-State vendor in accordance with the provisions of section 107,

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 exemption from excise duty applies under section 113(1), and

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

shall, at all times while within the State during the course of such delivery, be accompanied by a document (in this Chapter referred to as ‘an accompanying document’).”,

and

(b) by the insertion after subsection (2A) (inserted by the Finance Act, 1995 ) of the following subsection:

“(2B) Where excisable products are dispatched under a duty-suspension arrangement for delivery to a person in the State in a case where exemption from excise duty applies under subsection (1) of section 113, such person shall take all reasonable steps to ensure that, in addition to the accompanying document, a certificate (to be known as ‘the exemption certificate’) is dispatched with and accompanies the said excisable products in the course of their delivery.”.

Treatment of losses.

97. Section 114 of the Finance Act, 1992 , is hereby amended by the substitution of the following subsection for subsection (2):

“(2) Losses, other than those referred to in subsection (1), and any shortages of excisable products under a duty-suspension arrangement shall be liable to excise duty at the rate in operation at the time such losses or shortages occurred, as established to the satisfaction of an officer, or at the time such losses or shortages came to the notice of an officer, and duty shall be payable immediately and shall be charged, levied and paid in the prescribed manner by the person authorised to produce, process, hold, transport, deliver or receive (as the case may be) such excisable products.”.

General mutual assistance.

98. —Chapter II of Part II of the Finance Act, 1992 , is hereby amended by the insertion of the following section after section 116:

“116A.— (1) In this section—

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

the Council Directive’ means Council Directive No. 77/799/EEC of 19 December 19771 , as amended by Council Directive No. 79/1070/EEC of 6 December 19792 and Council Directive No. 92/12/EEC of 25 February 19923 ;

(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.

(c) Nothing in this section shall permit the Commissioners or an authorised officer to authorise the use of information disclosed by virtue of the Council Directive to the competent authorities of another Member State other than for the purposes of taxation or to facilitate legal proceedings for failure to observe the tax laws of that State.”.

Mutual assistance for the recovery of claims.

99. —Chapter II of Part II of the Finance Act, 1992 , is hereby amended by the insertion of the following section after section 116A (inserted by this Act)—

“116B.—(1) (a) In this section—

the Commission Directive’ means Commission Directive No. 77/794/EEC of 4 November 19771 ;

the Council Directive’ means Council Directive No. 76/308/EEC of 15 March 19762 , as amended by Council Directive No. 79/1071/EEC of 6 December 19793 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 meaning in this section that 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 shall be recoverable in any court of competent jurisdiction by the Minister for Finance and for the purposes of the foregoing the amount shall 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 shall be received in evidence without proof of any seal or signature thereon or that any signatory thereto was the proper person to sign it, and such document shall, until the contrary is shown, be sufficient evidence of the facts therein stated.

(5) (a) Legal proceedings instituted under this section for the recovery of any sum shall be stayed if the defendant satisfies the court that legal proceedings relevant to his 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 it shall be a defence for the defendant to show that a final decision on the claim to which the proceedings relate has been given in his favour by a court, tribunal or other body of competent jurisdiction in another Member State, and, in relation to any part of a claim to which such legal proceedings relate, it shall be 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 shall be regarded as being a final decision.”.

Amendment of section 87A (obligation to answer certain questions, detention and arrest) of Finance Act, 1995 .

100. —Section 87A (inserted by the Finance Act, 1997 ) of the Finance Act, 1995 , is hereby amended by the substitution in paragraph (b) of subsection (3) of “such member may arrest the person without warrant” for “such officer may arrest the person without warrant”.

Taking of samples and analysis (customs and excise).

101. —(1) In this section—

agency” means the State Laboratory and any other body or person designated by the State Chemist or the Commissioners for the purpose of this section to analyse, test or examine a sample forwarded to such agency;

the Commissioners” means the Revenue Commissioners;

functions” includes powers and duties;

officer” means an officer of the Commissioners;

owner”, in relation to goods, includes a person in charge of or in possession of the goods;

prescribed” means prescribed by regulations made by the Commissioners under subsection (14);

record” means a record in, or capable of being read in, a legible form;

the State Chemist” means the head of the State Laboratory or the person for the time being duly exercising the functions of the State Chemist or a person appointed under subsection (11) to carry out the functions of the State Chemist under this section.

(2) This section shall apply to samples of any goods taken by an officer under the laws relating to customs or the laws relating to excise where the officer considers that any of the samples may, subsequently, be required to be analysed, tested or examined by an agency for the purpose of deciding whether any proceedings should be instituted under those laws or, where it has been so decided, for the purpose of such proceedings.

(3) Where subsection (2) applies, the officer shall—

(a) where the owner or the owner's representative is present, inform him or her of the goods in respect of which the officer intends to take samples, and

(b) in respect of the goods concerned take, where possible, at least 2 samples or otherwise a single sample thereof and

(i) seal each sample, or

(ii) where already packaged in a container suitable for sealing, seal, in respect of each such sample, the container in which it is packaged, or

(iii) where appropriate in the circumstances, place each sample in a separate container and seal each such container.

(4) Before sealing a sample or container under subsection (3)(b), the officer concerned shall satisfy himself or herself that the sample or the container (as the case may be) is in a condition suitable for sealing.

(5) One of the samples of goods to which subsection(3)(b) relates shall—

(a) where subsection (3)(a) also applies, be offered to the owner of the goods or the owner's representative and such person may choose the sample to be given to him or her, and

(b) in any other case, be given to the owner of the goods, or the owner's representative, upon request made—

(i) having regard to the nature of the sample, including any perishable nature, within a reasonable period, or

(ii) within 3 months,

of the sample being sealed in accordance with subsection (3)(b), whichever first occurs, but nothing in this paragraph shall be construed as preventing the sample being so given upon a request made subsequently:

Provided that this subsection shall not apply where the samples relate to goods all of which have been detained or seized under the laws relating to customs or the laws relating to excise.

(6) Where an officer decides that a sample to which subsection (3)(b) relates is to be analysed, tested or examined by an agency in accordance with this section, an officer shall, as soon as practicable, forward it or cause it to be forwarded to an agency.

(7) Where a sample to which this section relates has been forwarded to the State Laboratory for the purpose of being analysed, tested or examined by an agency, the State Chemist may have it analysed, tested or examined by either—

(a) the State Laboratory, or

(b) an agency designated under subsection (10),

and where the State Chemist decides that paragraph (b) should apply to a sample, he or she shall, as soon as practicable, forward it or cause it to be forwarded to that agency.

(8) Where a sample is taken, sealed, offered to the owner or the owner's representative, stored, given to the owner or the owner's representative, forwarded or caused to be forwarded to an agency by an officer each such officer shall keep a record thereof, and a record of any other matter that may be prescribed for the purpose of this subsection.

(9) Every agency to which this section relates, shall, upon receipt of a sample, check whether it, or the container in which it is received, has a seal and, if it has, that the seal is intact and shall keep a written record thereof as well as a record of the receipt, storage and of any other matter that may be prescribed for the purpose of this subsection.

(10) The State Chemist and the Commissioners may each designate in writing one or more than one body or person for the purpose of this section to analyse, test or examine a sample forwarded to such body or person, or a class of specified samples or samples generally and each such body or person shall be an agency for the purposes of this section.

(11) (a) Without prejudice to the exercise at any time by the State Chemist of his or her functions under this section, the State Chemist may authorise in writing one or more than one person employed in the State Laboratory to carry out those functions, and any such authorisation shall continue until revoked by the State Chemist for the time being or the person so authorised ceases to be employed in the State Laboratory.

(b) The functions of the Commissioners to designate one or more than one agency for the purposes of this section may be exercised by any officer duly authorised in writing to carry out those functions.

(12) Where in any proceedings under the laws relating to customs or under the laws relating to excise there is produced a document which purports to be—

(a) a designation in writing under subsection (10) or a certificate signed by the State Chemist, by one of the Commissioners or by a person authorised under paragraph (a) or (b) of subsection (11) that a body or person is an agency for the purposes of this section in respect of a specified sample, a class of specified samples or samples generally (as the case may be),

(b) an authorisation in writing under paragraph (a) or (b) of subsection (11) or a certificate signed by the State Chemist or a Commissioner that a person is authorised to carry out the functions referred to in the said paragraph (a) or (b), as appropriate,

(c) a certificate from the State Laboratory or other agency certifying—

(i) that the agency concerned received the sample or container concerned with its seal unbroken or that it had no seal,

(ii) that the sample concerned was analysed, tested or examined, as the case may be, and

(iii) the conclusions, results or facts to be deduced from such analysis, test or examination, as the case may be,

then, until the contrary is shown, such document shall be sufficient evidence of the facts stated therein without proof of any signature or seal on it or that any signatory was a proper person to sign or authenticate the seal on it.

(13) Where a document has been issued under subsection (12), it shall be presumed, until the contrary is shown, that the provisions of either or both subsections (6) and (7), as appropriate, have been complied with in respect of the sample concerned.

(14) The Commissioners may make regulations for the purpose of giving effect to this section.

(15) In any proceedings under the laws relating to customs or under the laws relating to excise, nothing in this section shall be construed as preventing from being duly produced, otherwise than in accordance with the other provisions of this section, evidence of—

(a) the taking of a sample of goods under those laws, or

(b) any conclusions, results or facts deduced from any analysis, test or examination, as the case may be, of such a sample.

Transmission of samples for analysis.

102. —(1) In this section “agency”, “officer”, “the State Chemist” and “the Commissioners” have the same meaning as they have in section 101 .

(2) Where, under the laws relating to customs or under the laws relating to excise, a sample is taken by an officer and it is decided to send it to an agency to be analysed, tested or examined and where the provisions of section 101 do not apply, an officer or the State Chemist may forward it or cause it to be forwarded to such agency.

Institution of proceedings under Customs Acts, etc.

103. —Notwithstanding anything to the contrary in the Customs Acts or otherwise, an order of the Revenue Commissioners shall not be required for the commencement or continuance of proceedings under those Acts.

1O.J. No. L336 of 27 December 1977, p.15

2O.J. No. L331 of 27 December 1979, p.8

3O.J. No. L76 of 23 March 1992, p.1

1O.J. No. L333 of 24 December 1977, p.ll

2O.J. No. L73 of 19 March 1976, p.18

3O.J. No. L331 of 27 December 1979, p.10