Claiming Preferential Duty Rates – what you need to know?

Free Trade Agreements Facilitation goals can include removing or cutting customs duties on goods; scrapping any limits (quotas) on the amounts firms can import/export; allowing businesses to provide services and bid for public contracts in the other country and cutting red tape whilst maintaining important standards like health and safety or environmental protection.

The reduction or removal of customs duties is usually the benefit that traders will focus on because it provides a tangible financial benefit to their business by reducing the cost of their raw materials or by making their goods more competitively priced in the free trade market.

However here are conditions attached to the FTA such as goods must be deemed to have preferential origin status in the country of supply and the importer must have proof of this origin status.

Origin is the 'economic' nationality of goods traded in commerce

Origin with regard to Customs is comparable to people passing through an airport after arriving in a destination country. The ease of movement through immigration controls depends on your nationality and any agreements made between your country and the country you are now entering. These checks can range from a simple glance at your passport to more vigorous checks and the need to purchase a visa for countries with no agreements in place.

In the case of goods, their preferential origin status is their nationality or citizenship and their proof of origin status (EUR1 or supplier declaration) is their passport.

Like citizenship, preferential origin is subject to a number of conditions. When an Irish citizen travels from Canada to the United States they are not doing so as a Canadian citizen and likewise it is not enough for a product to be simply transported from a country to claim that it has preferential origin status in that country.

The two principle determining factors in assessing a goods right to preferential origin are; that they are wholly obtained in that country or that they have they been sufficiently transformed in that country to confer origin.

Wholly obtained

Products are considered as "wholly obtained" in a country when they are entirely produced in that country without having used input from other countries.

Examples of wholly obtained products include:

  • Vegetable products harvested or gathered in that country;
  • Live animals born and raised in that country;
  • Products obtained from live animals in that country;
  • Products obtained from hunting or fishing conducted in that country;
  • Products obtained by maritime fishing and other products taken from the sea by a vessel of that country;
  • Mineral products extracted from its soil, from its territorial waters or from its seabed;
  • Products extracted from marine soil or subsoil outside that country’s territorial waters, provided that the country has sole rights to work that soil or subsoil and products produced from a combination of any of the above examples.

Sufficiently transformed

Ordinarily it should be clear whether or not a product has been wholly obtained in a country but what if a product has not been wholly obtained but has been manufactured in a country, can this qualify as preferentially originated?

The answer to this is yes.  It may qualify but first it must satisfy the conditions for preferential origin as set out in the FTA between the two countries.

The specific rules on how a product will qualify as being sufficiently worked in order to confer origin are dependent on the tariff classification of the finished product that is exported.  An outline of the classification process can be found here.

Some of the listed rules consider whether the processing carried out has added sufficient value to the exported product, that the finished product is of a different tariff heading to the non-originating raw materials used, that specific processing operations have been carried out or a combination of any these options.

Other concepts in preferential origin

The general tolerance or de minimis rule may allow the use certain non-EU materials in the processing of a wholly obtained product whilst still retaining preferential origin status.

Minimal operations or simple processing operations such as packaging or labelling products will not be sufficient to confer origin.

There are other considerations with preferential origin claims such as directly transporting the product, the non-manipulation of the product and duty drawback rules. The concept of cumulation can make it easier to meet the conditions for preferential origin claims, by forming countries into groups or zones for origin purpose. The application of these rules and concepts will differ depending on the products and countries involved and should be considered on a case by case basis.

It should be noted that while it is the exporter who is responsible for declaring the origin status of the goods, it is the importer who will receive the benefit of the preferential duty rate of the imported goods. The implication of this is that in a post clearance audit situation, if it is found that the product doesn’t qualify for preferential origin it will be the importer who will be assessed on the difference between the preferential rate of duty and the duty rate applied without preferential treatment. As assessing the originating status is generally completed on a self-review basis by the exporter, the importer should therefore be aware of the preferential origin rules in order to carry out their due diligence on their supplier’s claim of origin.

In cases where the preferential origin status may include an element of doubt, a trader can apply to their national customs authorities for an origin ruling. This will provide them with certainty regarding the application of the rules. In the EU this ruling is known as a Binding Origin Information (BOI).

Proof of origin

In order for a good to claim preferential origin on import the exporter must provide proof of origin status which comes in the form of either a preferential origin certificate or a supplier’s declaration. A preferential origin certificate is completed by the exporter and stamped by customs on export. The preferential origin certificate that is used in the EU is called a EUR1.

Alternatively, an exporter can make a declaration on the commercial invoice that the goods have preferential origin. In order to make an invoice declaration for goods exceeding a value of €6,000 an exporter will have to apply to Revenue to become an approved exporter.

The Registered Exporter system (the REX system) is the system of certification of origin of goods that applies in the Generalised System of Preference (GSP) of the European Union and was introduced on 1st January 2017 with a transition period running to 2020. To be entitled to make out a supplier’s declaration on origin, an economic operator will have to be registered in a database by their competent authorities. The economic operator will become a "registered exporter".

Important points to consider

  • Are the goods “wholly obtained”?
  • Do they qualify as sufficiently transformed? Note: that they have been correctly classified and the correct rule has been applied.
  • Will other factors affect the preferential origin status?
  • Will a ruling (Binding Origin Information) be required?
  • Do you need to register on the REX system?
  • Do you know how to complete a EUR1 or a supplier’s declaration?
  • When you receive proof of origin from an exporter, have you made sufficient enquiries to assess that this has been correctly issued?

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Scams Awareness/Anti Fraud

 

 

Click link for PDF : Scams Awareness Document

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Intermodal Freight Route Planner evaluation completes Mid-June

The IEA has played an active role in the EU-EIP Intelligent Transport Services project which completes its work in June 2017. While much of the project has focussed on the development of as close to seamless as possible road freight routes across an East-West corridor, the IEA’s specific input has been the development of an intermodal route planner. This planner is intended to inform freight Forwarders, hauliers and cargo shippers of the current range of origin/destination routes built on the use of container and other intermodal equipment using mainly a combination of modes other than road, specifically, sea, rail and barge.

Unlike a number of similar route planners introduced by certain ports and Lines in recent months the EU project’s planner is totally port and service neutral.

We would now ask you to test this intermodal route planner and give your feedback!

The Planner provides an overview of (almost) all intermodal freight connections on the East West Corridor, running from Ireland/UK via Benelux, Germany and Poland to the Baltic States. The planner can be found on https://lnkd.in/gbxYc2x. We would like to receive feedback on this intermodal route planner, to hear whether it is useful, easy to navigate, complete, etc. The questionnaire with only 7 questions can be found here: https://lnkd.in/gxMMFtv.

While this project started long before BREXIT was even thought about its relevance has been greatly enhanced by this development and the need for exporters and importers to re-examine their traditional routes with partners in continental Europe.

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Slight easing in pressure on deep-sea shipping services

 

Throughout the Spring 2017 period the Lines serving Asia, Europe and North America have been involved in a period of major re-organisation. This arises from two factors, an overall pretty disastrous 2016 in which, despite low oil prices, most of the major lines including Maersk lost significant amounts of money, leading to major cost reduction programmes and also the planned re-alignment of the Carriers into new vessel sharing Alliances.

Operating within the new Alliances means that individual Lines will find that some of the ports of call for the Ocean vessels will change, leading to a knock-on re-organisation of feeder vessel services and schedules. In some cases, the schedule changes led to Lines cancelling sailings thus allowing cargo and containers to build up. This has led to delays of up to six weeks in some cargoes being shipped and to the rates that are being charged to those shippers that were not protected by their long-term contracts escalating to up to five times more than the average rates. Irish exporters have been particularly badly hit as the local offices for the Ocean carriers have been unable to secure a sufficient supply of the right container equipment to meet Irish needs.

In order to discourage the practice of double booking of space by some cargo shippers a number of Lines have recently introduced “no-show” penalty payments where a container booking is cancelled with less than one week’s notice. In the cases of export shipments from Ireland this has not been a major problem as the Shipping Line offices and agents here keep closely in touch with Shippers to ensure that all available “slots” on both feeder and ocean vessels are used.

We discussed the situation with one major operator. They reported that, for the June period, pressure has reduced a little and that Ocean vessels are now full four weeks prior to departure from European Port instead of the six to eight weeks as was the case in the March to May period. The Alliances do expect more steady services from now on without any dropped sailings as the Alliances are now established and schedules are settling down.

The situation on freight rates remains difficult though no further increases from those running through May are now expected. However, bunker fuel prices are still creeping higher leading to increased BAF (Bunker Adjustment Factor) on most rates.  The Lines do not expect any significant drop in rates over the coming months.

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Stakeholders to Comment on Electronic Documents for Freight

 

21st May 2017, the European Commission (EC) following the recommendations of the Digital Transport and Logistics Forum (DTLF) published Inception Impact Assessment report on electronic transport documents for freight carriage and is asking stakeholders for their feedback.

 DTLF is an initiative taken by the European Commission (EC) to bring relevant stakeholders together. ESC being one of the leading members of this forum worked together with some 100 other representative parties to prepare recommendations on the use of electronic transport documents.

Being based on the DTLF contribution, the EC report provides a preliminary overview of the problem, possible policy measures and expected impacts. The document is open for feedback for 4 weeks as from the 21st of May 2017. All stakeholders can provide their comments. We encourage IEA members and all the relevant stakeholders to provide your feedback following the link: http://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-2546864_en.

After this period, the Commission will start its impact assessment process. The process will be concluded in spring 2018, with a series of open public and targeted stakeholder consultations conducted in between to get the stakeholders’ views on the different aspects.

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NCC Publishes Transport Cost Stats for 2017

 

The National Competitiveness Council has published its review of Irish Competitiveness for the year up to February 2017. Within the review is a chapter on Transport costs with figures drawn from a wide range of sources. The highlights include:

  • Brent crude oil rose from USD 27 a barrel to USD 58 in the year to end February, a 70% increase. This is the benchmark standard for all fuel prices.
  • Irish fuel prices at the pump rose by 16.7% in the case of petrol and 18.7% in the case of diesel on the back of the oil price rises. The percentage price changes here are masked by the level of taxation within the pump price.
  • Diesel prices in Ireland at €1,269 per 1000 litres in January 2017 were 9.2% above the euro area average price making Ireland the sixth most expensive country in Europe. Taxation on diesel in Ireland is 58% of price which is close to the average percentage across Europe.
  • Transport prices increased. In the 12 months to Q.4 2016, overall transport service prices were 2% higher. NCC comments that, in the transport sector prices have been relatively stable in recent times though Air transport has been a notable exception with rapid price growth. This moderated in 2016.
  • Administrative Costs and Time to export, 2016. The NCC comments that the ease and cost of customs and administration procedures has a significant impact on trade flows. Compliance costs in Ireland to export a standardised cargo by sea were USD 305 compared with USD 286 in the OECD-19. It takes an average of 24 hours to complete the required procedures in Ireland, slightly longer than the OECD average.
  • Administrative Costs and Time to import, 2016. Irish costs to import a container were USD 253, significantly lower than the OECD average of USD 333, The time taken to complete the necessary procedures is 24 hours in Ireland which is marginally lower than the OECD average but is significantly higher than the comparable time in the UK, US and Canada.

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Service Developments on the Irish Sea Area

 

Stena Line has, following the refit of their vessel Stena Europe that enables the carriage of higher freight vehicles, altered their schedule on the Rosslare/Fishguard route. The new schedule separates their sailing from those operated on the Rosslare/Pembroke route by Irish Ferries, thus giving hauliers a wider choice of sailing times on the Southern corridor route. The most significant likely result of the change will be an increase in volumes coming into Rosslare on the overnight sailing as the 04.00 arrival time facilitates deliveries to major Distribution Centres in the greater Dublin area.

Neptune Lines has opened a weekly service linking Santander with Rosslare with calls en route northbound at Le Havre and Southampton. The main traffic for this service is the import of Trade cars and other vehicles but it is expected that as the route becomes more established hauliers will begin to use it for shipments to Iberia with attendant time and cost savings as against Landbridge routes available up to now.

Seatruck has, following the switch by carmaker Toyota of their supply hub for Ireland from Portbury near Bristol to Zeebrugge, ceased their weekly service from Portbury into Dublin. The contract has now been taken up by K Line subsidiary, KESS, running weekly from Zeebrugge to Dublin. This Line is seeking to develop outbound rolling and other cargo from Dublin to the Flanders Port.

Responding to a question on Natural Gas-Powered vehicles being carried on Ferries at Fleet Transport’s Green Fleet Management with Natural Gas Power Conference, Martin Flach of IVECO said that it was his understanding that LNG powered trucks and buses could only be carried on outside decks. This would put them into a similar category to vehicles carrying hazardous materials. He did not envisage any problem with taking CNG powered vehicles on decks inside the vessel especially those operating in routes with 48 hours or less sailing time.

He confirmed that discussions are ongoing with Eurotunnel to enable Natural Gas-powered vehicles travel through the tunnel.

The IEA has raised the issue with a number of ferry operators with services from Irish Ports and will return to the subject in a future issue. The queries relate to operations on routes throughout Europe.

The Irish Ferries parent, Irish Continental Group has reported steady revenue growth in 2016. Group revenue increasing by 1.5% to € 325.4 million from € 320.6 million. This was despite a fall in ferry revenue by one million euro to € 202.7 million.

CLdN RoRo Agencies, Managing Director, Gary Walker, has advised that the line currently has 24 vessels in operation on its routes out of its Rotterdam and Zeebrugge hubs. From there vessels sail to Iberia, Great Britain, Ireland and Scandinavia. The fleet is built up with Ro-Ro vessels with varying capacities of up to 6,000 lane metres and some Lo-Lo vessels which are used to supplement the core fleet.

There is currently strong growth on the services to and from Dublin with eight to nine weekly round trip sailings, two of these operated with Lo-Lo vessels. In the course of its report on throughput figures for the first quarter of 2017, the Port of Zeebrugge noted that freight volumes out of Zeebrugge to Dublin grew by 4.1% in the period while that to Scandinavia increased by 1.3%. The automotive sector posted a growth of 10.4% in new vehicles handled with a quarterly figure of over700,000 units.

CLdN has an additional six vessels on order with the first of the 8,000 lane metre vessels due to enter service before the end of 2017. As is their normal practice the route allocation of these vessels will be decided on the basis of actual and potential traffic flows on the route network. Work is currently underway to develop enhanced ramp and other facilities at Dublin Port’s Common User terminal. CLdN will also shortly decide whether or not to convert options on another six new-buildings into firm orders.

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Accessing New Markets – Using EU Trade Agreements

With the increasing concern on the additional costs companies will face on accessing the UK market in the future this is now a good time to look at leveraging off current EU Trade Agreements. The EU is extremely active in negotiating trade agreements and there are significant opportunities for companies looking to diversify their markets outside of the UK and Continental Europe.

It is also worth remembering that once the UK leaves the EU they will have to negotiate independent trade agreements outside these EU agreements.

In our first newsletter we outlined the benefits of Canada as an opening market for Irish Companies with the new CETA agreement. Over the last month there has, in addition, been an extremely strong focus on this market with visits by An Taoiseach and the EU Commission for Agriculture, Phil Hogan. For the Irish Food and Drink Industry the Canadian FTA is of particular benefit as it opens up the Canadian Market to exporters of cheese, wine and spirits, fruit and vegetables, and processed food products, which is not typical of Trade Agreements. In fact Commissioner Hogan recently tweeted that “once CETA” is fully in place, Europe will be able to export nearly 92% of its agricultural and food products to Canada duty-free”

However along with the Canadian Agreement there are many other agreements as can be seen by the EU infogram below.

Exporters looking to develop new markets could therefore look at countries such as

To name but a few.

In our next newsletter we will expand on how to qualify, under rules or origin, to take advantage of these Trade Agreements. We will also update on ongoing trade and market access discussions taking place with countries such as Japan, Indonesia and China.

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Brexit and Borders

As we move into the negotiation and “divorce” phase of Brexit the main questions being asked by Irish Exporters are

Will there be additional tariffs to consider

Will there be border controls on trade with the UK

While nothing is known with certainty, particularly in relation to tariffs, there are at this point some extremely likely outcomes which businesses need to start preparing for.

Tariff and Duty Costs

The question on the introduction or not of tariffs is probably the most “known unknown”. The answer will depend on whether, or not, there is some form of (Free) Trade Agreement concluded between the EU and the UK. This it-self will only be known after the conclusion of, or at least positive developments in the “Divorce Negotiations”.

At a high level there are two possible outcomes:

A Free Trade Agreement is concluded which allows for a 0% duty rate on trade between the EU and UK.
If this is concluded Exporters still need to be aware of two potential complications
i) Most FTAs require companies to prove their goods are “originating” in order to benefit from the preferential duty rate. This in itself can be a complex process.
ii) Most FTAs do not cover agricultural products or restrict the benefits for agricultural products. While this may be unlikely for an EU-UK Trade agreement it still needs to be considered.

No FTA type agreement is reached and Tariffs are imposed.
In this case the tariff on import into Ireland/ the EU will be the duty rate currently applied by the EU. The tariff on import into the UK will be set independently by the UK Government. This could range from 0% to EU tariff rates to WTO bound rates.

A prudent approach therefore is to assess the impact of EU/WTO rates in looking at the potential additional duty cost that might arise on imports into the UK; and assess the impact of the current EU rates on imports into Ireland from the UK.

 

Borders

The key question at present, possibly more than tariffs, is whether there will be border controls introduced. This tends to break down into two aspects

Will there be border controls, and the requirement for Export and Import Declarations, at the Sea Ports and Airports?

Will there be border controls, and the requirement for Export and Import Declarations, at the North-South Border?

The unfortunate answer is that it is extremely difficult to see a situation where, under current EU legislation, there are no border controls.

We do have to look however at what this means.

Firstly will there be a requirement to lodge Export and Import declarations (SADs in Ireland/C88 in the UK)? It is almost impossible to see a situation where this will not be a requirement once the UK is a non-EU Country.

What does this mean?

Customs Declarations require 54 boxes of information to be supplied to Revenue, from details of the consignor/consignee to customs value to tariff classification to weights. Probably the most complex part of this is the requirement to provide the tariff classification.

These Export and Import Declarations need to be lodged with Customs, electronically, prior to export/import. Most goods will obtain instant clearance (95%) but some goods will require further checks before being allowed to clear. In all cases however these Declarations can be subject to post-clearance audit any time within the next three years.

It is important to remember that the lodging of Export and Import Declarations is no different to lodging any Tax Declaration and therefore the information supplied to Customs needs to be 100% accurate and correct or you may be subject to additional duty costs, fines and penalties (As with any Tax Audit).

The next concern is the type of border controls which might be introduced by Customs. At this point this is not 100% clear but ideally, will involve the use of electronic systems to minimise delays. As we know from many of the recent news reports this is a critical aspect for Revenue at present.

What next?

At this point most companies impacted by trading in the UK are looking at reviewing their supply chains and assessing the impact of additional tariff and non-tariff barriers on their businesses.

This modelling can be done using many resources. Enterprise Ireland, for example recently launched the ‘Brexit SME Scorecard’, a new interactive online platform which can be used by all Irish companies to self-assess their exposure to Brexit under six business pillars. Based on answers supplied by the user, the Scorecard generates an immediate report which contains suggested actions and resources, and information on events for companies to attend, to prepare for Brexit. The platform can be accessed at www.prepareforbrexit.ie

We would therefore recommend that companies pro-actively engage in completing this type of analysis and increase their knowledge of Customs.  This is particularly important for those companies who sell only within Europe, and have a significant portion of sales in the UK,  as this may be their first interaction with the Customs Authorities.

 

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Customs Classification – the What? Why? & How?

Traders who import or export goods into or out of the EU and following Brexit, the UK are required to provide a classification code for the customs clearance of each of their goods being shipped. When asked to supply a classification code by a clearance agent a number of questions arise, namely;

  • What are customs classification codes?
  • Why do traders need to be aware of them?
  • How do you classify goods for customs declarations?
  • What to do if there is uncertainty regarding the correct classification?

So what are customs classification codes?

Customs classification codes are often referred to as HS / HTS Codes, commodity codes or tariff codes. They consist of a 10 digit code for imports or an 8 digit code for exports. There is a worldwide Harmonised System which around 180 countries apply, which aims to harmonise the first 6 digits of the code across these countries. However, the interpretation of the legislation can differ between countries, so if a US supplier has a HS code on the commercial invoice it may be dangerous to assume that this code will also apply when importing into the EU.

Why do traders need to be aware of them?

Traders need to be aware of the correct classification of their products for a number of reasons;

  • Determines Rates of duty and other taxes at import – the classification of an imported good drives the customs duty rate for the imported goods. The duty rates can vary between 0% up to 25% for certain food items.

The classification of the good also determines if anti-dumping duty or agricultural levies will apply.

  • Origin requirements/benefits for preferential trade – this is particularly important when considering the post BREXIT era. Many traders believe that if a Free Trade Agreement (FTA) is in place then customs duties and declarations will no longer apply. However, the reduction of customs duties in a FTA are conditional, with the condition rules differing between classification headings. Therefore, it is required that the imported goods are correctly classified and a customs declaration is lodged even when a FTA exists.
  • Whether goods are subject to restrictions at import or export
  • Avoid delays or seizures
  • To avoid penalties and post-entry audit issues

The Importer is responsible for correctly classifying their goods on import and export.

Many traders rely on their clearance agent or HTS codes on the supplier invoice to classify their products. However, as an international trader you should be aware of the significance of the data on the customs clearance declaration or the Single Administrative Document (SAD). In the event of a post clearance check some of the more obvious information that a customs official may look out for is consistency of the information provided in the SAD. Take for instance a manufacturing company which imports plastic pipes as part of its operations. In box 31 of the SAD the product description is “Pvc plastic piping 50mm” then the Revenue officer would expect to see a tariff heading 3917 …., In box 33 of the SAD indicting that the product is “tubes, pipes and hoses of plastic”. However, if it is found that the tariff code provided is 4006 …., which covers “tubes … of rubber” this would be a red flag and could result in a post clearance customs audit.

Taking the above example, tariff heading 4006 which the importer has been using, attracts a 0% duty rate upon import into the EU. The correct tariff heading 3917 attracts 6.5%, so if Revenue go back 3 years (further in cases of suspected fraud) then 6.5% of the total shipments of plastic piping could mount up to a significant unbudgeted expense.

Regardless of how the error occurred, it is the importer who will be assessed for this duty which is generally not recoverable, so is a dead cost to the business. Furthermore, if the importer had been aware that the import of this product would have a duty impact prior to commencing importation, they may have been about to avail of customs economic (or special) procedures to suspend or eliminate the duty on import.

How do you classify goods for customs declarations?

The legal document which is used for classification in the EU is called the Combined Nomenclature (CN);

It is made up of:

-21 Sections

-99 Chapters

-960 pages

-Approximately 5,000 headings and subheadings

Classification is determined according to the terms of the headings and is subject to the Section and Chapter notes which are legally binding.

When classifying the product it is important to understand; the make-up of the product, its function, how it is presented at import, if it is an unassembled or unfinished product and the essential character of the product.

There are also guides to assist with the classification process such as the WCO Explanatory Notes and databases such as the eBTI database and TARIC in the EU and CROSS rulings in the US.

What to do if there is uncertainty regarding the correct classification?

There may be times when the classification of a good could fall between two or more headings. In other cases the risk of getting the classification incorrect could be too great in terms of extra customs duty or if one heading applied anti-dumping duty whilst another did not. Additionally, diverging codes could lead to falling foul of import/export restrictions if the classification of a product was deemed incorrect post clearance.

As the penalties for non-compliance can be severe in both financial and reputational terms, certainty is required by traders. The solution in these instances is to obtain a decision from revenue which is known as a Binding Tariff Information (BTI).

A BTI is legally binding on the holder and on all customs administrations within the European Union. Therefore, it provides legal certainty for its validity period of 3 years. The processing time for a BTI can be up to 120 days, so it is important to plan ahead before shipping materials.

Following the introduction of the Union Customs Code, the right to be heard has been removed for BTI applications. Therefore, if a trader submits a complete application to Revenue, Revenue can issue the BTI to an alternative heading without engaging in a further consultation process with the applicant. Whilst the option to appeal the decision remains, whilst the appeal is ongoing the BTI issued will be legally binding on the applicant. We would therefore advise that professional advice is sought prior to submitting an application, to allow the best chance of a satisfactory outcome.

 

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