# The Excise Duties and Value Added Tax (Northern Ireland) (Miscellaneous Modifications and Amendments) Regulations 2023, Note: Explanatory note

Extent: E+W+S+N.I.

(This note is not part of the Regulations)
These Regulations amend the Customs and Excise (Personal Reliefs for Special Visitors) Order 1992 (S.I. 1992/3156) (“the Special Visitors Order”) and the Excise Duties (Northern Ireland Miscellaneous Modifications and Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1559) (“NIMMA”) for the purpose of the Protocol on Ireland/Northern Ireland to the Withdrawal Agreement between the United Kingdom and the European Union (“the Protocol”). These Regulations come into force on 13th February 2023.
VAT and excise provision under the Protocol
Article 8 of the Protocol provides that the EU law listed in Annex 3 to the Protocol will apply to and in the United Kingdom, in respect of Northern Ireland. The Annex includes Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (“the Principal VAT Directive”) and Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (“the 2008 Excise Directive”).
Article 13(4) of the Protocol provides that references in the Protocol to EU legislation shall be read as referring to that EU legislation as amended or replaced. The Principal VAT Directive has been relevantly amended by Council Directive (EU) 2019/2235 of 16 December 2019. The 2008 Excise Directive has been repealed and replaced by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (“the 2020 Excise Directive”), with effect from 13th February 2023.
The ways in which these Regulations amends UK legislation to implement the Protocol in relation to the 2020 Excise Directive and the amended Principal VAT Directive are set out below.
Excise related amendments made by these Regulations
The 2008 Excise Directive was transposed in the UK by the Excise Duties (Holding, Movement and Duty Point) Regulations 2010 (S.I. 2010/593), along with related excise legislation including the Excise Goods (Drawback) Regulations 1995 (S.I. 1995/1046), the Duty Stamps Regulations 2006 (S.I. 2006/202) and the Customs and Excise (Personal Reliefs for Special Visitors) Order 1992 (S.I. 1992/3156).
NIMMA implements the Protocol in relation to the 2008 Excise Directive.
Regulation 2 of NIMMA preserves the Excise Duties (Holding, Movement and Duty Point) Regulations 2010 as they had effect immediately before the end of the transitional arrangements provided for by the Withdrawal Agreement (“the Northern Ireland Regulations”). The Northern Ireland Regulations are applied in relation to the holding, movement and taxation of excise goods in Northern Ireland subject to the modifications provided for in Part 1 of NIMMA.
Regulations 97(1) and 99(1) of NIMMA also preserve the Duty Stamps Regulations 2006 (“the Duty Stamps Regulations”) and the Excise Goods (Drawback) Regulations 1995 (“the Drawback Regulations”), respectively. Those Regulations are also subject to modifications set out in regulations 97(2) and 99(2) of NIMMA, respectively.
The Regulations preserved by regulation 2, 97 and 99 of NIMMA, as they had effect immediately before IP completion day, are available from the legislation.gov.uk website at:
Preserved Regulations
Link
The Northern Ireland Regulations
https://www.legislation.gov.uk/uksi/2010/593/2020-12-30
The Duty Stamps Regulations
https://www.legislation.gov.uk/uksi/2006/202/2020-12-30
The Drawback Regulations
https://www.legislation.gov.uk/uksi/1995/1046/2020-12-30
These Regulations amend NIMMA and the Special Visitors Order to comply with the UK’s obligations under the Protocol in relation to the 2020 Excise Directive. The amendments are explained below under the following category headings:
Preliminary,
Extension of the Excise Movement and Control System (“EMCS”) to excise goods released for consumption including saving and transitional provisions,
Partial loss of excise goods during a movement,
Waiver of guarantee for the movement of energy products by fixed pipelines,
Alternative proof of receipt and evidence of export,
Compliance checks during movement – availability of unique administration reference code,
Excise exemption relating to the EU common security and defence policy,
Excise and customs procedure alignment.
In addition, these Regulations amend NIMMA to correct minor errors.
Preliminary
Paragraphs 1 to 3 of Schedule 2 collectively amend regulation 5 and 6 of, and insert new regulations 5A and 6A into, NIMMA. The modifications applied to the Northern Ireland Regulations update regulation 3 (interpretation).
Extension of the Excise Movement and Control System (“EMCS”) to excise goods released for consumption including saving and transitional provisions
Paragraph 15 of Schedule 2 inserts new regulation 30A into NIMMA. The modification of the Northern Ireland Regulations introduces new Parts 4A and 4B – NI certified consignees and NI certified consignors. These new Parts are linked to, and facilitate, the introduction of new computerised procedures that apply to movements of excise goods released for consumption (see the explanation to paragraph 32 of Schedule 2, below).
New Part 4A (regulations 33A to 33G) and Part 4B (regulations 33H to 33M) provide for the approval and registration of revenue traders and private individuals who either import excise goods into Northern Ireland from an EU Member State that have been released for consumption (“NI certified consignees”) or export excise goods that have been released for consumption in Northern Ireland to an EU Member State (“NI certified consignors”). It also sets out the requirements with which a NI certified consignee and consignor must comply and, in the case of imports, how the duty charged on the goods must be accounted for and paid. New regulations 33D and 33K give the Commissioners power to prescribe or specify in a published notice additional conditions and restrictions that apply to approvals.
Paragraph 32 of Schedule 2 inserts new regulation 54A into NIMMA. The modification of the Northern Ireland Regulations introduces new Parts 9A to 9C.
New Part 9A (regulations 63B and 63C) provides that excise goods may only be imported into Northern Ireland after release for consumption in an EU Member State, or exported to an EU Member State after release for consumption in Northern Ireland, if they are dispatched from a certified consignor to a certified consignee. It sets out the movement conditions that must be complied with and gives a power to the Commissioners to specify in a published notice conditions relating to the provision of a guarantee for the movement.
New Part 9B (regulations 63D to 63I) provides that movements of excise goods which have been released for consumption in Northern Ireland and are exported to an EU Member State by an NI certified consignor must take place under cover of an electronic simplified administrative document (e-SAD) and sets out the procedures which the consignor and the Commissioners must carry out in relation to such a document using the EU computerised system. It also sets out the procedures if the destination is amended. It also sets out the procedures when the Commissioners receive report of receipt (as defined in regulation 3 of the Northern Ireland Regulation) and when the computerised system is unavailable.
New Part 9C (regulations 63J to 63M) provides that movements of excise goods (other than chewing tobacco and tobacco for heating) into Northern Ireland after release for consumption in an EU Member State must take place under cover of an e-SAD. It also requires the consignee, on receipt of the goods, to send a report of receipt to the Commissioners using the EU computerised system and sets out the procedures when the Commissioners receive such a report and when the computerised system is unavailable.
Paragraph 32 of Schedule 2 also inserts new regulation 54B into NIMMA. The modification of the Northern Ireland Regulations omits Parts 10 and 11 which are replaced by Parts 9A to 9C. The omission of Parts 10 and 11 of the Northern Ireland Regulations is subject to the saving provision provided by new regulation 80A of NIMMA (see the explanation of paragraph 39 of Schedule 2, below).
Paragraph 33 of Schedule 2 omits regulations 55 to 63 of NIMMA, which deal with modifications to Parts 10 and 11.
Paragraph 37 of Schedule 2 inserts new regulation 77A into NIMMA. The modification of the Northern Ireland Regulations introduces new regulation 85A.
New regulation 85A provides that, in relation to imports of excise goods from an EU Member State into Northern Ireland after release for consumption, where there is a failure to comply with registration requirements under new Part 4A, as well as existing Part 12 (distance sales of excise goods from an EU Member State), or a failure to comply with movement requirements under new Part 9A or new Part 9C, an irregularity is deemed to have occurred. As a result, existing regulation 84 and 85 of the Northern Ireland Regulations apply – giving rise to an excise duty point in Northern Ireland in relation to the deemed irregularity. But new regulation 85A does not apply if the consignee is liable to pay the excise duty in respect of those goods under regulation 16(3)(b).
Paragraph 38 of Schedule 2 amends regulation 80 of NIMMA. The modification of the Northern Ireland Regulations adds to the list of regulations specified in Schedule 1 (civil penalties – relevant regulations) the registration and movement requirements set out in new Parts 4A and 4B and Parts 9B and 9C.
Paragraph 39 of Schedule 2 inserts new regulations 80A to 80E into NIMMA.
New regulation 80A saves Parts 10 and 11 of the Northern Ireland Regulations in relation to excise goods that are moving, in accordance with those Parts, before these Regulations come into force. The saving provisions ensures that those movements can continue to be carried out in accordance with Parts 10 and 11 of the Northern Ireland Regulations, as if the omission of those Parts under these Regulations had not come into force. The saving provision expires on 1st January 2024.
New regulation 80B makes transitional provisional in relation to excise goods released for consumption and exported from Northern Ireland. The effect of the transitional provision is to allow for the movement of excise goods under the fallback procedures as if the EU computerised system is continuously unavailable between 13th February 2023 and 31st December 2023. The Commissioners are given a power to specify in a public notice any other date for the purposes of this transitional provision.
New regulations 80C and 80D makes transitional provisional in relation to excise goods released for consumption and imported from Northern Ireland. The effect of the transitional provision is to allow for the movement of excise goods under the fallback procedures as if the EU computerised system is continuously unavailable between 13th February 2023 and 31st December 2023. The Commissioners are given a power to specify in a public notice any other date for the purpose of these transitional provisions.
New regulation 80E makes further provision relating the dates that the Commissioners may specify under regulations 80B(1), 80C(1) or 80D(1) of NIMMA.
Paragraph 40 of Schedule 2 amends regulation 97(2) of NIMMA. The modifications applied to the Duty Stamps Regulations update those Regulations to include reference to NI certified consignee and temporary certified consignors (as defined) under the Northern Ireland Regulations.
Paragraph 41 of Schedule 2 amends regulation 99 of NIMMA. The modifications applied to the Drawback Regulations update regulation 6 (eligible claimant), to include private individuals who are temporary certified consignors (as defined) under the Northern Ireland Regulations. The modifications introduce new regulation 10A (conditions to be complied with where export is a dispatch) which provides that the Commissioners may, by notice, request a claimant to provide evidence verifying that duty has been paid on those goods in the place to which they have been exported. Under modifications applied to regulation 12(1) (payment of claim), a drawback claim will not be paid unless the Commissioners are satisfied they have been provided with such evidence, or a reasonable explanation as to why the evidence cannot be provided.
Partial loss of excise goods during a movement
Paragraph 12 of Schedule 2 inserts new regulation 20A into NIMMA. The modification to the Northern Ireland Regulations introduces new regulations 21A and 21B.
New regulation 21A provides that a partial loss due to the nature of the goods that falls below the common partial loss threshold (as defined) in relation to excise goods (a) under a duty suspension arrangement at the time of the loss, will not be considered as a release for consumption, and (b) already released for consumption in an EU Member State at the time of the loss, will not give rise to an excise duty point.
New regulation 21A(3) defines “common partial loss threshold”. In relation to tobacco products, this means the threshold established by Article 1 of Commission Delegated Regulation (EU) 2022/1636 of 5 July 2022. For other excise goods this means a threshold set out public notice made under regulation 21B.
New regulation 21B gives the Commissioners are given a power to specify in a public notice a partial loss threshold for excise goods. The threshold must correspond with a common partial loss threshold established by legislation of the EU Commission in relation to the same excise goods.
Paragraph 11 of Schedule 2 substitutes regulation 20 of NIMMA. The modification to regulation 21 of the Northern Ireland Regulations provides that in cases where a common partial loss threshold is not set by the EU Commission, the existing rules in regulation 21 of the Northern Ireland Regulations continue to apply to the loss.
Waiver of guarantee for the movement of energy products by fixed pipelines
Paragraph 17 of Schedule 2 amends regulation 35 of NIMMA. The modification to the Northern Ireland Regulations introduces new regulation 39(1A).
New regulation 39(1A) exempts the movement of energy products into or out of Northern Ireland by fixed pipeline from the requirement of a movement guarantee. The Commissioners are given the power to exclude cases from the exemption, in a published notice.
Alternative proof of receipt and evidence of export
Paragraph 30 of Schedule 2 inserts new regulation 49A into NIMMA. The modification to the Northern Ireland Regulations introduces new regulation 51A.
New regulations 51A applies to movement of excise goods under duty suspension arrangements where a report of export, referred to in regulation 46(4), or report of receipt, referred to in regulation 49(2), have not been received by the Commissioners. It specifies the items of alternative proof that the Commissioners may, or must, accept as evidencing the end of a movement of excise goods. The Commissioners are given the power to specify, in a published notice, other items of evidence that it may take account of in the case of goods dispatched from Northern Ireland to a place from where they will leave the territory of the EU.
Compliance checks during movement – availability of unique administration reference code
Paragraph 31 of Schedule 2 inserts new regulation 50A into NIMMA. A modification is made to regulation 53(3) of the Northern Ireland Regulations.
Regulation 53(3), as modified, provides that the person accompanying excise goods imported under duty suspension arrangements, or where there is no accompanying person, the transporter or carrier, must on request produce to the Commissioners the unique administrative reference code that relates to those goods. The Commissioners are given the power to specify in a published notice circumstances in which a printed document, showing the unique administrative reference code, must be produced instead. Corresponding provision is made by new regulation 63K in relation to excise goods released for consumption.
Excise exemption relating to the EU common security and defence policy
Paragraph 1 of Schedule 1 amends article 18 of the Special Visitors Order to extend the excise exemption provided for by Part 7 of that Order to serving and civilian members of armed forces stationed in Northern Ireland to carry out a defence effort under the common security and defence policy (“CSDP”). This amendment also provides a corresponding exemption from VAT in relation to the CSDP (see also the heading ‘VAT legislation’ below). Paragraphs 2 and 3 make provision relating to excluding customs duty from the scope of the relief.
Paragraph 1 of Schedule 2 amends regulation 5 of NIMMA. The modifications applied to the Northern Ireland Regulations include an update to the definition in regulation 3(1) of the “exemption certificate” for the purposes of an excise exemption.
Excise and customs procedure alignment
Paragraph 16 of Schedule 2 amends regulation 32 of NIMMA. The modification to the Northern Ireland Regulations introduces new regulation 35(a)(v).
New regulation 35(a)(v) provides for a customs office of exit (as defined by this regulation) which is at the same time the customs office of departure for the external transit procedure (also defined within the regulation) as a possible excise destination.
Paragraph 18 of Schedule 2 inserts new regulation 35A into NIMMA. The modification to the Northern Ireland Regulations introduces new regulation 39A.
New regulation 39A provides that excise goods must not be moved from a place of importation under a duty suspension arrangement, until information is provided to the Commissioners on the consignor, the consignee and, where requested by the Commissioners, evidence that imported goods are intended to be dispatched from Northern Ireland to an EU Member State. The Commissioners are given the power to specify in a published notice the cases to which the requirement does not apply and the time and manner in which the information is to be provided.
Paragraph 22 of Schedule 2 inserts new regulation 38A into NIMMA. The modification to the Northern Ireland Regulations introduces new regulation 42A.
New regulation 42A applies to excise goods to be dispatched from Northern Ireland where an export declaration is lodged in Northern Ireland. It requires the declarant to provide the Commissioners with the unique administrative reference code assigned to the goods and sets out the verification procedures which Commissioners must carry out. The Commissioners are given the power to set out in a published notice the manner in which the unique administrative reference code is to be provided.
VAT related amendments made by these Regulations
The Principal VAT Directive is largely transposed in the UK by the VAT Act 1994, along with related VAT legislation including the Special Visitors Order.
These Regulations amend the Special Visitors Order to comply with the UK’s obligations under the Protocol in relation to the Principal VAT Directive, as amended by Council Directive (EU) 2019/2235 of 16 December 2019.
Paragraph 1 of Schedule 1 amends article 18 of the Special Visitors Order to extend the VAT exemption provided for by Part 7 of that Order to serving and civilian members of armed forces stationed in Northern Ireland to carry out a defence effort under the common security and defence policy.
Any published notices referred to in these Regulations will be published at: https://www.gov.uk/government/collections/holdings-and-movement-notices. A hard copy will be available for inspection free of charge at HMRC, 100 Parliament Street, London SW1A 2BQ.
A Tax Information and Impact Note covering this instrument will be published on the website at https://www.gov.uk/government/collections/tax-information-and-impact-notes-tiins.

---
Source: https://www.legislation.gov.uk/uksi/2023/64/note (the official version)
Page: https://openlegislation.uk/excise-duties-and-value-added-tax-northern-ireland-miscellaneous-modifications-and-amendments-regulations-2023/note
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.