ATO Interpretative Decision

ATO ID 2004/199

Excise

Excise: collections - alcohol - refund - 90 day rule for beer
FOI status: may be released

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Status of this decision: Decision Current

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If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Issue

Does the maximum 90 day period required by regulation 56 of the Excise Regulations 1925 (the Regulations) for the return of bulk beer, start from the time beer is first removed physically from the brewery where it was made?

Decision

Yes. The maximum 90 day period required by regulation 56 of the Regulations for the return of bulk beer starts from the time beer is first removed physically from the brewery where it was made.

Facts

A brewer removes bulk beer from the brewery at which it was made and transfers it under bond to another brewery. The beer is then entered for home consumption and duty paid. The bulk beer is later returned to the brewery at which it was made and a refund claimed. The brewer calculates the 90 day period from the time the duty was paid (and the beer left the second brewery).

Reasons for Decision

Section 78 of the Excise Act 1901 allows for refunds of excise duty in such circumstances and such conditions as are prescribed. The regulations governing refunds are contained in Part III of the Regulations.

Paragraph 50(1)(k) of the Regulations requires that the bulk beer (on which duty has been paid), be returned to the brewery at which it was made, in the container in which it was removed from the brewery. A further condition is imposed by regulation 56 which states in part:

A refund of Excise duty shall not be allowed in a circumstance specified in paragraph 50(1)(k) unless:

(a)
if the beer has been returned to the brewery at which it was made, it was so returned within 90 days after it was first removed from the brewery;

Whilst paragraph 50(1)(k) of the Regulations refers to beer on which duty has been paid, paragraph 56(a) of the Regulations quoted above, requires that the return to the brewery take place within 90 days of the time it was first removed from the brewery, not from when duty was paid.

Paragraphs 50(1)(k) and 56(a) of the Regulations make it clear that it is not relevant whether the beer has been entered and duty paid when it is first removed from the brewery where it was made, or removed under bond to a licensed premise and duty paid at some later time. Irrespective of where and when duty is paid, the 90 day period starts from the time the beer is first removed from the brewery at which it was made.

Amendment History

Date of amendment	Part	Comment
18 March 2013	Issue	Edited expression for clarity
	Reasons for Decision	Amended citation for clarity

Date of decision: 26 February 2004

Legislative References:
Excise Act 1901
section 78

Excise Regulations 1925
   regulation 50
   paragraph 50(1)(k)
   regulation 56
   paragraph 56(a)

Related ATO Interpretative Decisions
ATO ID 2004/198

Keywords
Alcohol excise
Beer excise
Excise
Excise collections

Business Line: Indirect Tax

Date of publication: 5 March 2004

ISSN: 1445-2782

history

	Date:	Version:
	26 February 2004	Original statement
You are here →	22 March 2013	Updated statement
	24 April 2015	Archived

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