Excise guidelines for the alcohol industry
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12 SPIRITS AND OTHER EXCISABLE BEVERAGES
12.1 PURPOSE
This chapter deals with how excise law applies to spirits and other excisable beverages and discusses:
- how spirits and other excisable beverages are classified
- contents for duty purposes
- special provisions for beverage spirits, and
- responsibilities of licence holders.
12.2 INTRODUCTION
If your alcoholic products are not wine or beer, then they will be classified to either item 2 or 3 of the Schedule to the Excise Tariff Act, as either spirits or other excisable beverages (OEBs). The main distinction between items 2 and 3 in the Schedule to the Excise Tariff Act is whether the alcohol content is above or below 10% alcohol by volume. If it is below 10%, then the product is classified to item 2 in the Schedule to the Excise Tariff Act. If it is above 10%, then the product is classified to item 3 in the Schedule to the Excise Tariff Act.
The discussion below explains in more detail about how to classify excisable alcohol products to these items, particularly item 3 in the Schedule to the Excise Tariff Act which has different rates of duty depending on the nature and intended use of the product.
12.3 POLICY AND PRACTICE
12.3.1 HOW ARE SPIRITS AND OTHER EXCISABLE BEVERAGES CLASSIFIED?
The following is an extract from the Schedule to the Excise Tariff Act which is relevant to spirits and other excisable beverages:
Tariff Item | Subitem | Description of Goods | Rate |
2 |
| Other excisable beverages not exceeding 10% by volume of alcohol | $79.77* per litre of alcohol |
3 |
| Spirits; Other excisable beverages exceeding 10% by volume of alcohol |
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**Rate of duty as at 2 February 2015. For the current rates of duty, refer to the Schedule under Excise Tariff Working Pages on our website at www.ato.gov.au
Other excisable beverages (OEBs) are beverages containing more than 1.15% alcohol by volume but exclude:
OEBs are classified to items 2 or 3 in the Schedule to the Excise Tariff Act depending on their strength.
Spirits are classified to item 3 in the Schedule to the Excise Tariff Act. [322]
Item 2 - Other excisable beverages not exceeding 10% by volume of alcohol
Item 2 in the Schedule to the Excise Tariff Act generally includes:
- pre-mixed spirit based drinks, and
- fermented products that are not beer or wine.
For an alcoholic beverage to be classified to item 2 in the Schedule to the Excise Tariff Act, the answer to all of the following questions must be NO:
- Is the beverage under 1.15% alcohol by volume?
- Is the beverage over 10% alcohol by volume?
- Is the beverage wine?
- Is the beverage brandy?
- Is the beverage beer?
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Example 12A
Beverage2Go manufactures a beverage that is 30% alcohol by volume. The beverage is delivered into the Australian domestic market in bottles that have instructions for mixing the beverage with other ingredients to make a particular style cocktail. The cocktail will have an alcoholic strength of 8% by volume. The beverage is not classified to item 2 in the Schedule to the Excise Tariff Act.
Item 3 - Spirits; Other excisable beverages exceeding 10% by volume of alcohol
Item 3 in the Schedule to the Excise Tariff Act contains a number of different subitems (ie categories) of excisable alcohol products that attract different rates of duty depending on the nature of the product and its intended use.
Tariff Item | Subitem | Description of Goods | Rate |
3 |
| Spirits; Other excisable beverages exceeding 10% by volume of alcohol |
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| 3.1 | Brandy | $74.50* per litre of alcohol |
| 3.2 | Other excisable beverages exceeding 10% by volume of alcohol | $79.77* per litre of alcohol |
| 3.5 | Spirit that:
| Free |
| 3.6 | Spirit that:
| Free |
| 3.7 | Spirit that:
| Free |
| 3.8 | Spirit denatured according to a formula determined under section 77FG of the Excise Act 1901 , other than spirit for use as fuel in an internal combustion engine | Free |
| 3.10 | Spirits not elsewhere included | $79.77* per litre |
*Rate of duty as at 2 February 2015. For the current rates of duty, refer to the Schedule under Excise Tariff Working Pages on our website at www.ato.gov.au
These subitems fall into two distinct groups of alcohol products:
1) Other excisable beverages exceeding 10% by volume of alcohol (item 3.2)
This classification covers:
- all beverage spirits except brandy (for example, whisky, rum, vodka, gin, ouzo, tequila, schnapps, etc.), and
- other alcoholic beverages that are not beer or wine and exceed 10% strength. For example wine fortified above 22% strength is not wine as defined in the A New Tax System (Wine Equalisation Tax) Act 1999 (WET Act) legislation and is therefore an OEB exceeding 10% strength.
2) Spirits
The term 'spirits' refers to:
- brandy, being a spirit distilled from grape wine in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to brandy. [323] - subitem 3.1 in the Schedule to the Excise Tariff Act
- concessional spirit [324] (spirit with a free rate of duty when delivered into the Australian domestic market, if the conditions for the particular concessional subitem are met) - subitems 3.5 to 3.8 in the Schedule to the Excise Tariff Act, and
- spirits not elsewhere included in the Schedule to the Excise Tariff Act - subitem 3.10 in the Schedule to the Excise Tariff Act.
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Spirits not elsewhere included may include:
- denatured spirit that does not meet the requirements for subitem 3.8 in the Schedule to the Excise Tariff Act, and
- concentrated wine flavours delivered for a use other than a concessional use.
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12.3.2 CONTENTS FOR DUTY PURPOSES
Excise duty is levied on litres of alcohol (Lals) at the rate specified in the relevant item of the Schedule to the Excise Tariff Act.
Determination of volume
The volume of alcoholic excisable goods must be measured using equipment which has been calibrated against standard instruments certified by an appropriate authority.
What are the acceptable methods for measuring volume?
Acceptable methods for measuring volume are by:
- volumetric glassware
- calibrated dip stick, tape or sight glass
- weighing and using density tables
- calibrated flow meters, or
- any other method that consistently produces a similar result.
Do I need to correct volume measurement?
You must correct volume measurement to 20 º Celsius:
- if you receive bulk alcohol from any outside source
- before you deliver bulk alcohol to any outside destination, and
- immediately prior to packaging, at the header tank or bottling tank.
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There are some permitted variations when measuring volumes of alcoholic excisable beverages. These are outlined in the table below:
If... | Then... |
the volume of the contents is not:
| the dutiable volume is the actual volume of the contents |
the volume of the contents is:
and
| the dutiable volume is the labelled (or otherwise indicated) volume |
the volume of the contents is
| the dutiable volume is:
plus
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Determination of strength
How do I measure the alcoholic strength of a beverage?
You must measure the alcoholic strength of the beverage by analysing samples of the product after it has reached its full alcoholic strength. This is done using equipment that has been calibrated:
- at intervals of one year or less, and
- against standard instruments certified by an independent authority approved by;
- the National Association of Testing Authorities (NATA),
- the Chief Metrologist, or
- State and Territory Trade Measurement legislation.
Sufficient samples must be taken from each run to ensure the measured strength accurately reflects the true strength of the beverage.
The strength:
- is the average strength of all sample measurements, and
- must be expressed as a percentage, if the alcohol were measured at a temperature of 20 ° C.
If you calculate volume by reference to the specific gravity of alcohol, you must make the calculation on the basis that, at a temperature of 20 ° C and in a vacuum, the specific gravity of alcohol in relation to water is 0.79067.
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To work out the excise duty payable on spirits and OEBs:
If... | Then... |
the actual strength of the beverage does not exceed the labelled (or otherwise indicated) strength by more than 0.2% | the strength is the labelled (or otherwise indicated) strength and the tariff rate applicable to that strength applies |
the actual strength of the beverage exceeds the labelled (or otherwise indicated) strength by more than 0.2% | the strength is the actual strength and the tariff rate applicable to that strength applies |
What methods can I use to determine strength?
You can use the following methods to determine strength:
- gas chromatography
- near infra-red spectrometry
- distillation followed by the gravimetric measurement of the distillate or by measurement in a density meter, or
- any other method that consistently produces a similar result.
Strength and tariff classification for other excisable beverages
As noted at the beginning of this chapter, there are separate tariff classifications for OEBs, depending on whether the content exceeds 10% by volume of alcohol.
A product labelled at 10% strength is classified to item 2 ' Other excisable beverages not exceeding 10% by volume of alcohol' in the Schedule to the Excise Tariff Act. However, if the actual strength of the contents exceeds the permitted variation of 0.2%, the product must be classified to subitem 3.2 ' Other excisable beverages exceeding 10% by volume of alcohol' in the Schedule to the Excise Tariff Act and the higher rate of duty applies.
Example 12B
Zed and cola in cans has a labelled strength of 10% but an actual strength of 10.2% alcohol by volume.
As the product does not exceed the permitted variation of 0.2%, the strength of the product for excise purposes is the labelled strength.
As the strength does not exceed 10%, the product is classified to item 2 in the Schedule to the Excise Tariff Act.
Example 12C
Why and dry in cans has a labelled strength of 10% but an actual strength of 10.3% alcohol by volume.
As the product exceeds the permitted variation of 0.2%, the strength of the product for excise purposes is the actual strength.
As the strength exceeds 10%, the product is classified to subitem 3.2 in the Schedule to the Excise Tariff Act.
Example 12D
Oops, lime and soda in cans has a labelled strength of 10.1% but an actual strength of 9.9% alcohol by volume.
As the product does not exceed the labelled strength, the strength of the product for excise purposes is the labelled strength.
As the strength exceeds 10%, the product is classified to subitem 3.2 in the Schedule to the Excise Tariff Act.
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12.3.3 SPECIAL PROVISIONS FOR BEVERAGE SPIRITS - BRANDY, WHISKY & RUM
What is brandy, whisky or rum?
These spirits are defined in section 77FI of the Excise Act:
- Brandy means a spirit distilled from grape wine in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to brandy.
- Whisky means a spirit obtained by the distillation of a fermented liquor of a mash of cereal grain in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to whisky.
- Rum means a spirit obtained by the distillation of a fermented liquor derived from the products of sugar cane, being distillation carried out in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to rum.
The interpretation of the definitions of brandy, whisky and rum will be applied taking into account the definitions above and the following considerations:
- the particular prerequisite raw materials from which the spirits are distilled, and
- the manner in which the spirits are distilled, so that they possess certain characteristics generally attributed to the particular spirit (recognising that taste, aroma and characteristics can vary, even within a particular spirit type, for example light rum and dark rum).
One of the characteristics attributable to specific spirits is the strength of the spirit as distilled. In line with industry practice we would not question the strength as a characteristic for brandy and whisky distilled up to a maximum of 95% alcohol by volume and for rum distilled up to a maximum of 96.5% alcohol by volume.
These characteristics are those that the spirit possesses when it comes off the still.
The following special provisions apply to brandy, whisky and rum.
Maturation requirement
You cannot deliver brandy, whisky or rum from our control unless they have been matured by storage in wood for at least two years. [326]
If you have distilled a spirit that has the characteristics of brandy, whisky or rum, you must then mature the spirit in wood. The maturation in wood is not what provides the characteristics referred to above.
'Storage in wood' means that the part of the storage vessel - vats, casks or barrels - that is in contact with the spirit is made entirely of wood.
You must record the date on which the spirit is put into wood. If the spirit is temporarily held in non-wooden vessels, you cannot include that period for the purposes of maturation in wood. If you do not maintain accurate records you may not be able to calculate the date when the spirit reaches the required maturation age.
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Describing spirits as 'old' or 'very old'
Unless spirits have been aged in wood for five or 10 years, respectively, you cannot describe the spirits as 'old' or 'very old' or in a way that could reasonably lead another person to believe that the spirits have been matured for that period. [327]
12.3.4 WHAT ARE MY RESPONSIBILITIES AS A MANUFACTURER?
If you are licensed to manufacture excisable alcohol products, you are responsible for the safe custody of all alcohol under your control. [328]
You may be responsible for paying an amount equal to the excise duty that would have been payable on any stolen, missing or unaccounted for excisable alcohol products. [329]
Where, after we take stock of excisable alcohol products manufactured, and the materials you use in the manufacturing process, it appears to us that not all the duty that should have been paid has been paid we can demand that you pay the amount that should have been paid. [330]
If you hold a manufacturer licence, you do not need a separate storage licence to store excisable alcohol products that you manufactured at those premises. You may also store excisable alcohol products that have been manufactured elsewhere by another entity and moved underbond into your licensed premises.
You are also responsible for ensuring that you comply with all conditions of your licence. [331]
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You must also:
- ensure excisable alcohol products are only delivered into the Australian domestic market with appropriate authority, such as in accordance with a periodic settlement permission or Delivery authority [332]
- pay the correct amount of excise duty [333]
- get permission to move underbond excisable alcohol products [334]
- ensure that your manufacture complies with the Excise Act and any conditions specified in your licence [335]
- not manufacture excisable alcohol products at premises that are not specified in your licence [336]
- give us access to your factory when requested [337]
- keep your excisable alcohol products safe and accounted for to our satisfaction [338]
- provide all reasonable facilities to enable us to exercise our powers under the Excise Act [339]
- provide sufficient lighting, correct weights and scales, and all labour necessary for
- weighing material received into your factory
- weighing all excisable alcohol products manufactured in your factory, and
- taking stock of all material and excisable alcohol products contained in your factory. [340]
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12.3.5 WHAT RECORDS DO I HAVE TO KEEP?
You must keep records, as directed by us and retain those records for the period directed. Your records must be available for us to inspect when requested. [341]
The information you may be requested to record includes:
- the amount of excisable alcohol products produced showing all inputs, outputs and waste
- details of all excisable alcohol products held in your licensed premises
- all deliveries from your licensed premises
- details of all duty payments and excise returns, and
- any refunds and remissions.
It is good business practice to keep suitable and adequate records and these records are those that you would normally keep for your particular operations.
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12.3.6 WHAT ELSE CAN WE DO?
Access
We have the right to enter your licensed premises at any time and can examine and take account of all the goods at the premises. [342] Note: we will usually only seek to enter your premises during normal business hours.
Stop vehicles
We can stop any vehicle leaving your licensed premises and check that there is proper documentation for excisable alcohol products leaving the premises. We can question the driver about any goods in the vehicle. We can direct that the vehicle is unloaded and goods taken to particular parts of the premises for further examination. We must not detain a vehicle for longer than is necessary to do the checking. [343]
Search vehicles
We can stop and search any vehicle (not just vehicles leaving a licensed premises) without a warrant if we have reasonable grounds for believing that the vehicle contains excisable alcohol products and that the vehicle has been used, is being used or will be used in the commission of an offence against the Excise Act (and certain offences in the Crimes Act 1914 [344] and Criminal Code [345] relating to accessory after the fact, attempt to commit an offence, aid and abet someone to commit an offence and conspiracy to commit an offence). [346]
Examine goods
We can open packages and examine, weigh, mark and seal any excisable goods that are subject to excise control and lock up, seal, mark or fasten any plant in or on your factory. [347]
We can also:
- supervise the manufacture of excisable alcohol products [348]
- take samples of materials, partly manufactured excisable alcohol products and excisable alcohol products subject to excise control, and alcohol products that we have reasonable grounds for suspecting are excisable alcohol products on which duty has not been paid. [349]
12.4 PROCEDURES
12.4.1 WHAT DO I DO IF I NEED MORE INFORMATION?
If you need more information on spirits and other excisable beverages contact us via:
the Business Portal
phone on 1300 137 290
fax at 1300 130 916 ,
email at alcohol@ato.gov.au , or
mail toAustralian Taxation OfficePO Box 3514ALBURY 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.
12.5 WHAT PENALTIES CAN APPLY TO OFFENCES IN RELATION TO SPIRITS AND OTHER EXCISABLE BEVERAGES?
The following are the penalties that may apply after conviction for an offence.
Manufacture
If you manufacture excisable alcohol products without a manufacturer licence, the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [350]
If you manufacture excisable alcohol products contrary to the Excise Act or any conditions specified in your licence, the penalty is a maximum of two years in prison or 500 penalty units. [351]
If you manufacture excisable alcohol products at premises that are not specified in your licence, the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [352]
Move, alter or interfere
If you move underbond excisable alcohol products without approval, the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [353]
Note:
This includes moving underbond excisable alcohol products from your premises to any other location or for export.
If your movement of underbond excisable alcohol products does not comply with the permission to move the underbond excisable alcohol products, the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [354]
If you move, alter or interfere with excisable alcohol products that are subject to excise control, without permission, the penalty is a maximum of two years in prison or the greater of 500 penalty units and 5 times the amount of duty on the excisable alcohol products. [355]
Deliver
If you deliver excisable alcohol products into the Australian domestic market contrary to your permission, the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [356]
Sell
If you sell excisable alcohol products on which duty has not been paid (unless it is an underbond sale), the penalty is a maximum of two years in prison or the greater of 500 penalty units and five times the amount of duty on the excisable alcohol products. [357]
Records
If you do not keep, retain and produce records in accordance with section 50 of the Excise Act, the penalty is a maximum of 30 penalty units.
Directions
If you do not comply with a direction in regard to what parts of the factory can be used for various matters, the penalty is a maximum of 10 penalty units. [358]
False or misleading statements
If you make a false or misleading statement, or an omission from a statement in respect of duty payable on particular goods, to us, a penalty not exceeding the sum of 50 penalty units and twice the amount of duty payable on those goods. [359]
If you describe spirits as 'old' or 'very old' or in a way that could reasonably lead another person to believe that the spirits have been matured in wood for 5 or 10 years, respectively, and they have not, the maximum penalty is 10 penalty units. [ 360]
Evade
If you evade the payment of any duty that is payable, the maximum penalty is five times the amount of duty evaded or where a court cannot determine the amount of that duty the penalty is a maximum of 500 units. [361]
Facilities etc.
If you do not provide all reasonable facilities for enabling us to exercise our powers under the Excise Act, the penalty is a maximum of 10 penalty units. [362]
If you do not provide sufficient lighting, correct weights and scales, and all labour necessary for weighing material received into, and all excisable alcohol products manufactured in, your factory and for taking stock of all material and excisable alcohol products contained in your factory, the maximum penalty is 10 penalty units. [363]
If we mark or seal excisable alcohol products or fasten, lock or seal any plant in your factory and you alter, break or erase the mark, seal, fastening or lock, the maximum penalty is 50 penalty units. [364]
12.6 TERMS USED
Deliver into the Australian domestic market [365]
'Deliver into the Australian domestic market' is the term we use in this manual for when excisable alcohol products are released into domestic consumption. The term used in the legislation is 'deliver for home consumption'.
Normally this will be by delivering the goods away from licensed premises but includes using those goods yourself (for example sales to staff).
The term 'home consumption' is not defined in the Excise Act and there is no definitive case law that looks at the issue in question. However there are several cases where issues closely related to it are considered. [366]
The conclusion drawn from those cases is that 'home consumption' refers to the destination of goods as being within Australia as opposed to exporting them.
Excisable alcohol 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 to the Excise Tariff Act.
As these guidelines deal with alcohol products, we have used the term excisable alcohol products.
Excisable alcohol products include:
- beer
- spirits
- premixed drinks known as ready-to-drink (RTD) beverages
- brewed beverages that are not beer, and
- spirit for non-beverage use, including denatured spirit.
Excise control
Goods are subject to excise control from the point of manufacture until they have been delivered into the Australian domestic market or for export.
Goods subject to excise control cannot be moved, altered or interfered with except as authorised by the Excise Act.
Excise return
An excise return [367] is the document that you use to advise us:
- the volume of excisable alcohol products that you have delivered into the Australian domestic market during the period designated on your PSP, or
- the volume of excisable alcohol products that you wish to deliver into the Australian domestic market following approval.
Penalty units
Refer to section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Section 50 direction
This is a written instruction issued under section 50 of the Excise Act to a licensed manufacturer, or proprietor of licensed premises, to keep specified records, furnish specified returns, retain records for a specified period and produce those records on demand by us. The written instructions are incorporated into the licence conditions.
Underbond
This is an expression not found in excise legislation but it is widely used to describe goods that are subject to excise control. Excisable goods that are subject to excise control are commonly referred to as 'underbond goods' or as being 'underbond'. This includes goods that have not yet been delivered into the Australian domestic market and goods moving between premises under a movement permission.
12.7 LEGISLATION (quick reference guide)
In this chapter we have referred to the following legislation:
Section 4 - Definitions
Section 25 - Only licensed manufacturers to manufacture excisable goods
Section 26 - Licensed manufacturers to manufacture in accordance with Act and licence
Section 27 - Licensed manufacturers to manufacture only at licensed premises
Section 39D - Conditions of licence
Section 46 - Supervision by officers
Section 49 - Facilities to officers
Section 50 - Record keeping
Section 51 - Collector may give directions
Section 52 - Weights and scales
Section 53 - Responsibility of manufacturers
Section 54 - Liability to pay duty
Section 58 - Entry for home consumption etc.
Section 60 - Persons to keep excisable goods safely etc.
Section 61 - Control of excisable goods
Section 61A - Permission to remove goods that are subject to CEO's control
Section 61C - Permission to deliver certain goods for home consumption without entry
Section 62 - Deficiency in duty
Section 77FF - Spirit for an industrial, manufacturing, scientific, medical, veterinary or educational purpose - specific approvals
Section 77FI - Delivery from CEO's control of brandy, whisky or rum
Section 77FL - Offence in relation to describing spirits as "old" or "very old"
Section 86 - Officers to have access to factories and approved places
Section 87 - Power to stop conveyances about to leave an excise place
Section 87AA - Searches of conveyances without warrant
Section 91 - Examine all goods
Section 92 - Seals etc. not to be broken
Section 106 - Samples
Section 117A - Unlawfully moving excisable goods
Section 117B - Unlawfully selling excisable goods
Section 120 - Offences
The Schedule
12.7.3 A New Tax System (Wine Equalisation Tax) Act 1999
Subdivision 31-A Wine
Section 4AA - Penalty units
Section 6 - Accessory after the fact
Section 11.1 - Attempt
Section 11.2 - Complicity and common purpose
Section 11.5 - Conspiracy
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