Following the departure of the United Kingdom from the European Union, we have been working with aircraft owners and operators to resolve the import issues arising from the two new customs and tax territories.
Returned Goods Relief
As explained in our article in January 2021 (please see link here), the Returned Goods Relief regime (RGR) is an automatic Customs Duty relief available for previously imported and community/domestic goods. It allows those goods to return to the relevant Customs territory (whether EU27 or the UK), without the imposition of Customs Duties, including Import VAT.
From the perspective of business aircraft that are already imported and VAT paid, this means aircraft are normally able to leave and return to the original import territory relatively freely under RGR without formal export and re-import requirements, subject to certain conditions. This arrangement allows aircraft to be used for normal travel purposes without undue delay or any additional paperwork.
Developments in an untested area
There are various conditions for RGR to apply and normally this is a relatively straightforward process. However the existing rules do not allow for circumstances where – as with Brexit – the Customs territory of original import is subsequently split into two entirely separate Customs territories.
While this is a developing area, it does not appear possible that RGR may be claimable in both the UK and the EU based on a single pre-Brexit EU import i.e. two imports retained in effect where Import VAT has only been paid once. However, from a tax perspective, it seems clear that RGR should only be claimed in one or the other territory, and alternative options such as temporary admission or re-import will be required in the remainder territory.
Supporting paperwork
This is a complex area of Customs and VAT analysis and due to the lack of clarity provided by either the UK or the EU, and given the value of the aircraft involved. our view is that any claim to RGR must be supported by suitable paperwork that will evidence the retention of free circulation status, not just for the immediate present but also for the future.
This may mean formalising evidence of movements which are not normally required, and specific advice should be sought on the circumstances of each aircraft affected. Full clarity on the application of RGR for both territories, or on the transfer of RGR rights from one territory to another, may not be settled until guidance is fully established, has been tested in the real world and any resultant VAT assessments and court appeals have been settled; something which may potentially take several years.
Certainty?
This provides no certainty for tax players seeking to use RGR outside of what might be seen as the “home” import Customs territory, and, in fact increases risk when relying on RGR for the alternate Customs territory, rather than more secure options.
The use of RGR will therefore depend on each aircraft’s circumstances as well as the risk appetite of the owner/operator. We would only normally recommend that you consider the possibility of the use of RGR where this reflects supporting import documentation.
Summary
Until both the UK and EU27 provide clear updated guidance or rules on RGR, aircraft owners and operators are subject to increased risk by relying on RGR to protect an aircraft’s import status, particularly as different EU member states may take differing views on the correct application of post Brexit RGR. This risk is magnified as a result of the current political tension between the UK and EU27 and may last for some time until legal clarity is available.
Given the potential for challenge to the use of RGR we would strongly recommend seeking advice from qualified customs and tax advisers before relying on using RGR for your aircraft.
If you have any questions or concerns please do not hesitate to contact Heather Gordon at heather.gordon@martynfiddler.aero
