Excise guidelines for the tobacco industry

• This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

3 LICENSING: Assessing applications

3.1 PURPOSE

This Chapter deals with:

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licensing criteria

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records you need to keep

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licence conditions

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securities

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assessing your application to renew your licence

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what happens if your licence is not granted

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what will happen if your licence is granted

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how to renew your licence, and

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penalties that can apply to offences in relation to making an application.

3.2 INTRODUCTION

We have the discretion whether to grant or refuse a licence. We base our decision on the information you supply and other information we have access to that the Excise Act permits us to take into account.

Subsection 39A(2) of the Excise Act provides that if we consider certain criteria exist, they can be the basis for refusal.

Those criteria include:

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you, or a director, officer, shareholder or associate, are not 'fit and proper'

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you do not have, or do not have available to you, the skills and experience required to carry out the activity that would be authorised by the licence

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the physical security of the premises is not adequate

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the plant and equipment to be used at the premises is not suitable

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you will have a market for the goods

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you would not be able to keep proper books of account for audit purposes, or

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it is necessary to refuse to grant the licence so as to protect the revenue.

These criteria are explained in more detail at Section 3.3.1 Licensing criteria.

How any of these criteria affects a particular licence application depends on the facts in each particular case. However, there are some criteria that are critical, for instance:

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whether you are 'fit and proper'

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the existence of a market, and

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protection of the revenue.

3.3 POLICY AND PRACTICE

3.3.1 LICENSING CRITERIA

'Fit and proper' person or company

The nature of the entity applying for the licence will affect who is assessed as being fit and proper ^[94] :

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if it is an individual, the individual is assessed

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if it is a partnership, each partner is assessed, and

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if it is a company, the company is assessed.

Persons other than the applicant can also be assessed as to whether they are fit and proper. These persons are:

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another person who would participate in the management or control of the premises that is the subject of the licence application ^[95]

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if the applicant is a company, then any director, officer or shareholder of the company that would participate in the management or control of the company ^[96] , and

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certain associates of the applicant (associates can be people or companies). ^[97]

Meaning of 'fit and proper'

The term 'fit and proper' ^[98] is not defined in the Excise Act or the Excise Regulation. In an excise context, we are assessing the suitability of the people who will have access to and control over tobacco seed, plant or leaf or ' excisable tobacco goods ' if a licence is granted. In general, qualities of diligence, honesty and the likelihood of observance of the law are pivotal characteristics to be taken into account in considering fitness and propriety. Compliance with other laws also administered by the Commissioner will also be a factor.

The Excise Act provides a definitive list of factors that we will take into account in determining whether a person or company is fit and proper. These factors generally relate to:

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any prosecution history

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solvency

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the honesty of information provided by the applicant

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compliance with tax obligations, and

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licensing history (if applicable).

In assessing these factors, we will consider whether your circumstances demonstrate that you are diligent, honest and likely to observe excise laws.

A single factor will not necessarily be determinative of whether a person or company is fit and proper. It will depend on the facts and circumstances of each case.

The weight afforded to each factor in reaching a decision about whether a person or company is fit and proper is a matter for us to decide after considering all relevant information.

Some factors apply to both individuals and companies; others are specific to individuals or to companies.

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individual or company ^[99]

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whether, within a year of lodging the application, the person or company has been charged with

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an offence under the excise legislation, or

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an offence under Commonwealth, state or territory law punishable by imprisonment for one year or longer (for an individual) or by a fine of 50 ' penalty units ' or more

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whether, within 10 years of lodging the application, the person or company has been convicted of

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an offence under the excise legislation, or

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an offence under Commonwealth, state or territory law punishable by imprisonment for one year or longer (for an individual) or by a fine of 50 penalty units or more

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the extent of the person's or company's compliance, within 4 years of lodging the application, with any law administered by us - for example, income tax or goods and services tax (GST)

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whether the person or company has held an excise licence which has been cancelled, or

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the person's or company's financial resources

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individual only ^[100]

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whether the person has participated in the management or control of a company that has had its excise licence cancelled

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whether the person is an undischarged bankrupt

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any misleading statement made in the application by the person, or

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where any false statement was made in the application - whether the person knew it was false

False and misleading statements are discussed in Where a person makes false or misleading statements in their application .

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company only ^[101]

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whether a receiver has been appointed over the property, or part of the property, of the company

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whether the company is under administration under the Corporations Act 2001 (Corporations Act)

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whether there is a current deed of company arrangement in place under Part 5.3A of the Corporations Act

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whether the company is restructuring, or

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whether the company is being wound up.

Where a person makes false or misleading statements in their application

It is important that you provide information that is accurate and complete. If your application (that is, your completed application form, any supporting documentation and any oral statements made) contains false or misleading statements ^[102] , we will take this into account when considering your fitness and propriety.

Misleading statements

The term 'mislead' is not defined in the Excise Act. The Australian Oxford Dictionary ^[103] defines 'mislead' as:

1.

cause (a person) to go wrong, in conduct, belief, etc.

2.

lead astray or in the wrong direction.

A misleading statement does not have to successfully mislead us, but it can be taken into account if it was reasonably foreseeable that we could have been misled when assessing the application.

A statement may be misleading by omission as well as by what has been said.

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Example 3A

You advise us that you have installed a state-of-the-art security system at your premises. You failed to advise us that a design fault has resulted in repeated false alarms to the point where you have switched off the security system and have no intention of re-engaging it. The design fault cannot be remedied. The only security in operation at the premises is a rusty padlock.

The information you provided, while not false, could lead us to believe that your premises are secure. This is misleading and may be taken into account in determining whether you are fit and proper.

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False statements

If you make a false statement, we will consider whether you knew the statement was false. ^[104]

In essence, a statement is false if it is not true. A false statement may be made expressly, such as stating you have no criminal convictions when, in fact, you have been convicted of a crime. A false statement may also be made by omission, such as leaving a blank response to the question on your application form in relation to criminal convictions when, in fact, you have been convicted.

Associates that can be assessed under the fit and proper test

To avoid situations where people with a high risk of non-compliance can exercise control over licence holders or controlled ' tobacco ' products, certain associates ^[105] can be assessed under the fit and proper person test.

The word 'associate' effectively takes it meaning from the Income Tax Assessment Act 1936 and is summarised below.

An associate of a natural person (otherwise than in the capacity of trustee) includes:

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a relative ^[106] of the individual - for example, their spouse, parent, sibling, uncle or aunt

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a partner of the individual or a partnership in which the individual is a partner

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if a partner of the individual is a natural person otherwise than in the capacity of trustee, the spouse or child of that partner

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a trustee of a trust under which the individual or their associate benefits, or

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a company under the control of the individual or their associate. ^[107]

Although an associate includes a spouse, a legally married spouse of a person who lives separately and apart on a permanent basis is not an associate. ^[108]

An associate of a company includes:

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a partner of the company or a partnership in which the company is a partner

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if a partner of the company is an individual, the spouse or child of the partner

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a trustee of a trust under which the company or their associate benefits

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another entity (a company, partnership, trustee or an individual) or its associate (or associates) who controls the company, or

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another company which is under the control of the company or the company's associate. ^[109]

The control of a company looks to whether another entity (including individuals):

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has sufficient influence over the company, or

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holds a majority voting interest in the company.

An associate of a trustee includes an entity or an associate of the entity that benefits or is capable of benefiting either directly or indirectly under the trust. ^[110]

For a partnership, an associate includes each partner of the partnership or associate of the partner. ^[111]

Skills and experience

Skills and experience ^[112] are not defined in the Excise Act or the Excise Regulation. There is no case law regarding skills and experience in an excise context.

In forming an opinion as to whether you have the required skills and experience, we will consider your ability to:

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carry out the activity requiring a licence

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conduct a business, and

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comply with excise obligations.

It is important to note that you, as the applicant, do not necessarily need to possess the skills and experience yourself, provided that you can demonstrate that you will use another person's skill and experience - for example, by hiring them or using a consultant. Should that be the case, we will assess the other person's skills or experience.

Physical security of the premises

Physical security ^[113] relates to measures that prevent unauthorised access to tobacco leaf or other inputs in the manufacture of excisable tobacco goods and thus protects against theft or loss of goods and excise revenue.

In forming an opinion about the physical security at the premises or storage place for tobacco leaf, we will consider:

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the nature of the site

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the kinds and quantities of goods to be kept, and

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the procedures and methods adopted to ensure the security of goods.

Consideration of the nature of the site can include:

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construction (for example, floor, walls, ceiling, windows and doors) and whether material is difficult to penetrate or remove

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barriers (for example, fences or wire) to a standard that would prevent unauthorised access

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locks and bars

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alarms, security lighting, security guard patrols or closed-circuit TV cameras

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physical security of all warehouse facilities within the site, and

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fire alarms, smoke detectors, sprinklers and other similar safety and protection devices.

Consideration of the kind and quantity of goods to be kept at the site can include:

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the ease with which goods can be handled - for example, cartons of cigarettes are easier to move than fuel in a large refinery tank

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the rate of excise duty applicable to the goods (goods that attract a greater rate of excise duty represent a greater revenue risk), and

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the greater the quantity of excisable goods to be dealt with, the higher the level of physical security that would be required.

Consideration of the security procedures and methods can include:

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a gate security system that identifies all people accessing the site and confirms their right to do so

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a gate security system that identifies the type and quantity of all goods entering and leaving the site

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a surveillance system

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procedures to handle and retain information from any surveillance system (if there is one)

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access control - for example, by limited distribution of keys, access swipe cards or codes

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security responses when breaches are detected - for example, back-to-base system, and

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an independent security audit function to oversee the security procedures and methods.

Suitability of plant and equipment

This criterion is only considered in relation to manufacturer licences. ^[114]

Plant and equipment are considered suitable if they are capable of performing the intended tasks and will allow you to properly account for tobacco leaf and excisable tobacco goods and calculate the correct amount of excise duty.

Plant and equipment that are used in relation to goods at premises covered by a licence include:

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manufacturing machines

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packing machines

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weighing equipment for determining tobacco content, and

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counting equipment to determine numbers of sticks, packs, cartons and shippers.

Market for the goods

For this criterion, we are primarily concerned with the presence of an available market ^[115] within Australia. That market must be legal. Licensing is concerned with minimising the risk of tobacco seed, plant or leaf, or excisable tobacco goods entering an illicit market in Australia and the resultant loss of revenue.

You must provide sufficient information to identify your proposed market.

You may be able to demonstrate that you have a market by, for example, supplying:

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evidence of contracts (including 'in principle' contracts) you have negotiated, or

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a business plan which outlines the market you have identified.

A legitimate market may exist overseas for locally manufactured excisable tobacco goods or tobacco seed, plant or leaf. Applications relating to overseas markets may be subject to additional scrutiny and you may be required to provide additional information or documentation as evidence of the legitimacy of your overseas market.

Therefore, 'market' should be taken to mean that there exists a proven or demonstrated demand for a commodity or an opportunity for (legally) buying or selling (trading in) a specified commodity. In such cases, a market can be either in Australia or overseas.

If you intend to manufacture excisable goods and use them within the operation of your business, you do not need to meet the market test. An example of this situation is a tertiary education facility which grows tobacco for research purposes.

Ability to keep proper books of account

This criterion is whether you can keep 'proper accounts and records' that enable us to audit those records. ^[116]

You may be asked to demonstrate:

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the recording systems you intend to use, whether they are manual or electronic

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where an electronic record-keeping system is used, systems documentation showing details such as screens, reports available and security controls, and

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the internal documentation supporting the recording systems, ensuring that the recording systems will record sufficient detail.

Protect the revenue

The term 'necessary to protect the revenue' ^[117] is not defined in the Excise Act.

The meaning of 'protect the revenue' was considered by Deputy President Forgie in Martino and Australian Taxation Office. ^[118] She said, at [50-52]:

...The expression "protect the revenue" is not defined in the Act and I am not aware of any authorities that have considered it. The word "revenue" has been considered in Stephens v Abrahams (1902) 27 VLR 753 by Hodges J. ...Hodges J took:

"... the 'revenue' to be moneys which belong to the Crown, or moneys to which the Crown has a right, or moneys which are due to the Crown... "

The ordinary meanings of the word "protect" include "keep safe, take care of" ... and they would seem to be the senses in which the word is used in the expression "protect the revenue". Mr Martino's licence may only be cancelled if it is necessary to take care of the money belonging to the Crown in right of the Commonwealth. That has the aspect of ensuring that the Commonwealth receives all that it should in the form of any excise that is ultimately payable in respect of tobacco originally grown on Mr Martino's farm and keeps all that it receives. It also has the aspect of not spending more of the Commonwealth's money than need be spent in carrying out its supervisory duties and responsibilities under the Act and in ensuring that the tobacco is not marketed illegally in Australia, and so avoid the payment of excise duty, if it cannot be marketed legally.

What is meant by the word "necessary"? I have taken the view that the meaning adopted by Allen J in State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447:

"As to the word 'necessary' it does not have, in my judgment, the meaning of 'essential'. The word is to be subjected to the touchstone of reasonableness. The concept is one as to what reasonably is necessary in a commonsense way."

'Protect the revenue' therefore means ensuring that the Commonwealth receives the full amount of excise duty that is ultimately payable and we do not spend more Commonwealth funds than necessary to carry out our responsibilities.

3.3.2 LICENCE CONDITIONS

Licence conditions form part of your licence. If you fail to comply with a condition, we may suspend or cancel your licence. ^[119]

For information about when we can suspend or cancel your licence, refer to Chapter 4 Licensing: Suspension and cancellation

All excise licences are subject to certain conditions imposed by:

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the Excise Act, and

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us (special conditions).

We are able to add, vary or revoke conditions even after the licence has been granted. ^[120] We will notify you in writing if we do so and provide you with an amended licence that includes the amended conditions.

Conditions imposed under the Excise Act

You must advise us in writing within 30 days if ^[121] :

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you or any person participating in the management or control of a licensed company or premises is charged with or convicted of

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an offence against a provision of the Excise Act, or

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an offence against a law of the Commonwealth, a state or a territory that is punishable by imprisonment for a period of one year or longer or by a fine of 50 penalty units or more

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you become bankrupt

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a person not listed in the licence application starts to participate in the management or control of the premises covered by the licence or of the company, as the case may be

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there is a change in the membership of a partnership that holds a licence

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a company that holds a licence comes under receivership, administration or begins to be wound up

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there is a change that substantially affects the physical security of the premises covered by the licence or plant and equipment used in relation to excisable goods at the premises

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you hold a manufacturer licence and you cease to manufacture excisable goods at the premises covered by the licence

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you hold a producer licence and you cease to produce tobacco seed, plant or leaf, or

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you hold a dealer licence and you cease to deal in tobacco seed, plant or leaf.

Special conditions

We can also impose special conditions on your licence if we find it necessary to protect the revenue or ensure compliance with the Excise Act. ^[122] Examples of conditions that have been imposed under this provision are:

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the trustee for a trust is to notify the Collector of the appointment of a new trustee in writing and prior to the appointment of the new trustee

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restriction of the quantity of excisable goods that a licensed manufacturer may manufacture.

The examples of special conditions given above are only for illustrative purposes. The decision to impose special conditions is considered on a case-by-case basis.

You can apply to have these special conditions varied, revoked or added. We will consider and advise you of our decision.

If you are not satisfied with any decision we make about a special condition, you can ask for a review by lodging an objection. ^[123]

For more information about your review rights, refer to Chapter 8 Reviews and objections.

3.3.3. SECURITIES

We can use conditions as a mechanism to increase the level of protection of the revenue or to ensure compliance with the Excise Act. However, prior to granting the licence, we may also require you to provide a security to achieve the same result. Even if we do not require a security prior to the granting of the licence, we may ask for a security at a later time. We can also ask you to increase the value of any security you may already have given. ^[124]

A security can be a bond, guarantee, cash deposit or similar financial product for an amount of money which may be forfeited if there is a failure to comply with the Excise Act. It is not necessary for a liability to arise as a result of the failure to comply for the security to be forfeited. There is no statutory limit to the amount of a security but the amount is generally set by reference to the level of revenue at risk.

We cannot apply these securities against other tax debts.

We review securities every 3 years, at which time they may be extended, revised or cancelled.

You cannot object to a decision to require a security. However, there may be other avenues for review - for example, you may seek an informal review of our decision.

For information about your review rights, refer to Chapter 8 Reviews and objections.

3.4 ASSESSING YOUR APPLICATION TO RENEW YOUR LICENCE

Tobacco licences are only valid for a specified period, which is generally 3 years. Renewal of a licence ^[125] is not automatic and you must apply to renew your licence before it expires. In assessing an application to renew a licence, we consider the same criteria that exist for cancelling a licence. That is, if reasons exist for us to cancel your licence (assuming that it had not expired), we might not renew your licence.

For more information about the criteria for cancelling a licence, refer to Chapter 4 Licensing: Suspension and cancellation.

If you have applied for renewal before the date of expiration on your licence but we have not made a decision by this date, the licence remains in force until such time as we do make a decision.

If we refuse your licence renewal, you may object to the decision.

For more information about your review rights, refer to Chapter 8 Reviews and objections.

As an alternative to non-renewal of a licence, we may:

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alter existing conditions on your licence

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impose new conditions, or

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require you to provide a financial security.

If you have not applied to renew your licence, the licence expires on 30 September of the relevant renewal year and you can no longer carry out excise-related activities that were permitted under that licence.

3.5 PROCEDURES

3.5.1 IF A LICENCE IS NOT GRANTED

If we do not grant a licence, we will notify you of the decision and provide you with an explanation for our decision.

If you are not satisfied with our decision, you can ask for a review by lodging an objection within 60 days of the day we notify you. ^[126]

For more information about your review rights, refer to Chapter 8 Reviews and objections.

3.5.2 IF A LICENCE IS GRANTED

If we grant you a licence, we will issue (via post or email) you with a copy of the licence. We will also provide you with an establishment number for the premises specified on your licence. This will be needed in some of your dealings with us.

You may receive a visit or phone call from us to ensure you understand your obligations and check whether you need further assistance.

3.5.3 RENEWING YOUR LICENCE

We will send you an invitation to renew your licence at least 6 weeks before the licence expires. We will also send an application form containing your details. You must verify the details on the application, provide any required information, sign and return it to us before your licence expires.

Your existing licence will remain valid until we make a decision about your application for renewal. ^[127]

Excise licences to produce, deal in or manufacture tobacco are renewed for a period of 3 years.

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Example 3B

Your licence is due to expire on 30 September 2025 (the expiry day). On 1 September 2025, you apply to renew the licence. We have not decided the application by the end of 30 September 2025.

The licence continues in force automatically past 30 September 2025 until we decide the application.

On 15 October 2025, we decide to renew the licence. The renewed licence expires on 30 September 2028.

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If you wish to renew your licence but you have not received an invitation to renew within 4 weeks of the expiry date, you need to contact us.

3.5.4 MORE INFORMATION

If you need more information on licensing matters, contact us via:

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ATO Online Services

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phone 1300 137 290

•

write to us at

Australian Taxation Office
PO Box 3514
ALBURY NSW 2640

We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.

3.6 PENALTIES THAT CAN APPLY FOR OFFENCES IN RELATION TO MAKING AN APPLICATION

You commit an offence punishable upon conviction if you ^[128] :

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intentionally make a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular, or

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intentionally omit from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular.

The maximum penalty is 50 penalty units. ^[129]

3.7 TERMS USED

Excisable tobacco products

Excisable goods are goods on which excise duty is imposed. Excise duty is imposed on goods that are manufactured or produced in Australia and listed in the Schedule.

This Guide deals with both controlled tobacco products (tobacco seed, plant and leaf) and excisable tobacco goods.

The term excisable tobacco goods includes:

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pouch tobacco

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cigars

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cigarettes

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shisha or molasses tobacco, and

•

snuff.

Penalty units

The value of a penalty unit is contained in section 4AA of the Crimes Act 1914, and is indexed regularly. The dollar amount of a penalty unit is available at Penalties .

Tobacco

Tobacco means tobacco leaf subjected to any process other than curing the leaf as stripped from the plant. ^[130] Tobacco includes any thing (including moisture) added to the tobacco leaf during manufacturing or processing. ^[131]

This means that until tobacco leaf is subjected to processes after curing it is not excisable. However, tobacco seed and plant is a controlled substance and as such you need to hold an excise producer or dealer licence to be in possession of these goods.

The species of the Nicotiana genus that are generally used for smoking, chewing or snuff are considered to produce tobacco leaf. Those species are currently Nicotiana tabacum, Nicotiana rusticum and Nicotiana sylvestris.

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Amendment history

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

References