The Customs (Import Duty) (EU Exit) Regulations 2018

PART 10 Guarantees

Interpretation

94.  In this Part—

“charges” means fees under Part 14 of these Regulations, interest payable for late payment of import duty and penalties under Part 3 of the Finance Act 2003(1);

“guaranteeing association” has the same meaning as in Article 1 of the ATA Convention, Article 1 of Annex A to the Istanbul Convention or Article 1(q) to the TIR Convention, as the case maybe;

“specified amount” has the meaning given in regulation 98.

Guarantee

95.—(1) A guarantee in respect of a liability or potential liability to pay import duty required by or under these Regulations must—

(a) guarantee the payment of the specified amount in respect of a liability to which the guarantee applies within the applicable period required for discharge of the liability provided by regulation 43;

(b) be in a form specified in a notice published by HMRC; and

(c) be for a period approved by HMRC.

(2) HMRC may require that a guarantee extends to the payment of any charges in relation to the specified amount.

(3) HMRC must publish a notice specifying the forms of guarantee that may be approved.

(4) A guarantor may cancel a guarantee by notice to HMRC specifying the date on which the guarantee will cease to have effect which must be at least 15 days after the date on which the notice is received by HMRC.

Guarantors

96.—(1) A guarantor must be—

(a) approved by HMRC; or

(b) a guaranteeing association.

(2) An applicant for approval to act as a guarantor must be established in the United Kingdom.

(3) A guarantor may only guarantee the liability to import duty of another person.

(4) If a guarantor’s approval is revoked, HMRC must give notice of the revocation to any person whose payment in relation to a liability or potential liability to pay import duty is guaranteed by that guarantor.

(5) HMRC may publish a notice specifying persons treated as approved as a guarantor under this regulation.

Single and comprehensive guarantees

97.—(1) In respect of a liability or potential liability to import duty—

(a) a guarantee (a “single guarantee”) may be given in respect of particular goods declared for a Customs procedure, or

(b) a comprehensive guarantee(2) may be given in respect of all goods declared for special Customs procedures(3) in one or more calendar months.

(2) A comprehensive guarantee extends also to any liability or potential liability to import duty in respect of any goods declared for the free-circulation procedure(4) in a calendar month to which the guarantee relates.

(3) A person may give a comprehensive guarantee in respect of a liability to import duty only if authorised to do so by HMRC.

(4) A person may only be authorised to give a comprehensive guarantee if—

(a) the person is established in the United Kingdom;

(b) the person, and any directors or senior employees of that person, have not been involved in a breach of an obligation relating to tax or a Customs obligation, which in the opinion of an HMRC officer is—

(i) a serious breach having regard to the circumstances, nature and number of breaches; and

(ii) relevant to the suitability of that person to give a comprehensive guarantee;

(c) the person, and any directors or senior employees of that person, have no criminal conviction which in the opinion of an HMRC officer is—

(i) serious having regard to the type of conviction; and

(ii) relevant to the suitability of that person to give a comprehensive guarantee; and

(d) the person is—

(i) a regular user of the Customs procedure in relation to which the comprehensive guarantee will be used;

(ii) in the opinion of an HMRC officer, a suitable person to give a comprehensive guarantee taking account of that person’s financial standing and practical experience; or

(iii) approved as an operator of a temporary storage facility.

(5) For the purposes of paragraph (5)(d)(i), a person is a regular user of a Customs procedure if that person has used that procedure on at least three occasions in the 12 month period preceding the application for authorisation.

Specified amount

98.—(1) The specified amount is—

(a) in relation to a single guarantee, the maximum amount of import duty that is likely to be payable in respect of the particular goods declared for a Customs procedure; or

(b) in relation to a comprehensive guarantee, the maximum amount of import duty that is likely to be payable in any calendar month for which the guarantee subsists, having regard to the business of the person authorised to give the guarantee, in particular in relation to goods imported into the United Kingdom in the previous 12 months and proposed importations in the next 12 months.

(2) If the amount of the liability or potential liability to import duty exceeds the specified amount of the guarantee, the person liable or potentially liable to that import duty must notify HMRC as soon as practicable on becoming aware of the shortfall.

(3) HMRC may by notice to the person required to give the guarantee in respect of a liability to import duty, amend the specified amount with effect from a date specified in the notice but not less than 15 days from the date the notice is given.

Specified amount: reduced amounts and waivers in relation to comprehensive guarantees

99.—(1) HMRC must approve a reduction in the specified amount in relation to a comprehensive guarantee to 50% of the amount determined under regulation 98(1)(b) if satisfied that the person authorised to give the comprehensive guarantee—

(a) draws up accounts in accordance with generally accepted accounting practice;

(b) maintains reliable business records;

(c) is solvent;

(d) has in the preceding three years discharged any liability to pay—

(i) import duty; and

(ii) EU customs duty under the EU Customs Code as it had effect before exit day; and

(e) has sufficient financial resources to meet the liability or potential liability not guaranteed by the reduced comprehensive guarantee.

(2) HMRC must approve a reduction in the specified amount in relation to a comprehensive guarantee to 30% of the amount determined under regulation 98(1)(b) if satisfied that the person authorised to give the comprehensive guarantee—

(a) meets the conditions in paragraph (1); and

(b) maintains procedures to ensure that HMRC are notified of any breach of any Customs obligation.

(3) HMRC must approve a waiver to the requirement for a comprehensive guarantee in relation to a potential liability to pay import duty if satisfied that the person authorised to give the comprehensive guarantee—

(a) meets the conditions in paragraphs (1) and (2)(b);

(b) allows HMRC officers access to all electronic and physical information systems maintained by that person;

(c) maintains a logistical system that identifies chargeable goods and domestic goods and their location;

(d) where the liability relates to agricultural goods, has satisfactory procedures to ensure compliance with any relevant regulatory obligation in relation to agricultural goods;

(e) has satisfactory procedures in relation to archiving records; and

(f) maintains satisfactory computer system security measures.

(4) A person authorised as an authorised economic operator is treated as meeting the conditions in paragraphs (2) and (3).

(5) In this regulation, “generally accepted accounting practice” has the meaning given in section 1127 of the Corporation Tax Act 2010(5).

Discharge of guarantees

100.—(1) A guarantee is regarded as discharged in full—

(a) if all the liability to which the guarantee relates and, where regulation 95(2) (guarantee in relation to charges) applies, any charges in relation to that liability, is paid in full;

(b) where the potential liability to which the guarantee relates has been extinguished on the discharge of a special Customs procedure;

(c) where—

(i) an application for remission of the duty in respect of the liability covered by the guarantee is made where regulation 48 (incorrect amount of import duty), 50 (lower rate of import duty available), 51 (defective and non-compliant chargeable goods) or 52 (just and equitable reduction) applies;

(ii) the goods in relation to which the duty has arisen have been released to the free-circulation procedure; and

(iii) in the opinion of an HMRC officer the requirement of a guarantee would be likely to cause serious economic or social difficulties to the person required to give the guarantee; or

(d) where the potential liability to which the guarantee relates has been extinguished on the transfer of rights and obligations under regulation 42 (transfer of rights and obligations) of the Customs (Special Procedures and Outward Processing) (EU Exit) Regulations 2018(6).

(2) A person required to give a guarantee or a guarantor may apply to HMRC to discharge a guarantee in part where part of the liability to import duty to which the guarantee relates and, where regulation 95(2) applies, any charges, have been discharged.

(3) An application under paragraph (2) must state—

(a) the goods to which the application relates;

(b) the amount of the liability to import duty;

(c) the amount which has been paid in respect of the liability; and

(d) the location of the goods.

(4) An application must—

(a) include details identifying the applicant;

(b) be made to the place;

(c) be made in the form and manner, including electronic; and

(d) be accompanied by such information,

as specified in a notice published by HMRC.

(5) HMRC must publish a notice specifying the matters referred to in paragraph (4).

(6) By no later than 30 days after the date on which an application is received by HMRC, HMRC must notify the applicant that the application—

(a) is accepted and the guarantee is discharged in part, specifying the amount of the liability discharged and the goods in respect of which the liability relates; or

(b) is rejected for the reasons set out in the notification.

(7) If an acceptance or rejection is not made as required by paragraph (6), the application is deemed to be rejected.

(8) Where a guarantee is provided by a guaranteeing association, Article 6(3) and (4) of the ATA Convention, Article 8(3), (4) and (5) of Annex A of the Istanbul Convention or Article 10(2) of the TIR Convention, as the case may be, apply to determine the circumstances in which the guarantee is to be regarded as discharged.

Cases where no guarantee is required

101.—(1) Notwithstanding any provision in these Regulations to the contrary, a person is not required to give a guarantee in respect of a liability to pay import duty if—

(a) the person liable is a public authority or universal service provider and the liability or potential liability arose in the course of carrying out the duties or functions of that authority or provider;

(b) the liability relates to goods imported into the United Kingdom via a pipe-line;

(c) the liability relates to goods subject to an inward processing procedure where regulation 21(2) (authorisation to declare goods for an inward processing procedure) of the Customs (Special Procedures and Outward Processing) (EU Exit) Regulations 2018 applies;

(d) the liability relates to goods subject to an outward processing procedure where regulation 28(6) (authorisation to declare goods for an outward processing procedure) of the Customs (Special Procedures and Outward Processing) (EU Exit) Regulations 2018 does not apply;

(e) the liability relates to goods declared for a temporary admission procedure(7) and—

(i) the declaration is made under regulation 20, 21 or 27 (Customs declarations made orally or by conduct: musical instruments, packaging, broadcast equipment, disaster relief material and miscellaneous goods);

(ii) the goods comprise empty packaging and have permanent, indelible markings identifying that use;

(iii) the goods are used for transportation of imported goods and have permanent, indelible markings identifying that use; or

(iv) the goods have previously been discharged from a temporary admission procedure.

(2) For the purposes of this regulation—

“pipe-line” has the meaning given in section 1 of CEMA 1979;

“public authority” means a public authority as defined by the Freedom of Information Act 2000(8) or a Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002(9);

“universal service provider” means a postal operator designated as a universal service provider under section 35 of the Postal Services Act 2011(10).

(1)

2003 c. 14.

(2)

“Comprehensive guarantee” is defined in paragraph 8(1)(b) of Schedule 6 to the Act.

(3)

“Special Customs procedure” is defined in section 3 of the Act.

(4)

“The free-circulation procedure” is defined in section 3 of the Act.

(5)

2010 c. 4.

(6)

S.I. 2018/1249.

(7)

“A temporary admission procedure” is defined in paragraph 15 of Schedule 2 to the Act.

(8)

2000 c. 36; “public authority” is defined in section 3 of that Act.

(9)

2002 asp 13; “Scottish public authority” is defined in section 3 of that Act.

(10)

2011 c. 5.