WOWGR – reform to the regulatory regime

Within the framework of Scotch whisky regulation, one of the fundamental pieces of legislation is the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (known as WOWGR).

WOWGR is the scheme which allows certain goods to be stored in “duty suspension”. Under this scheme, Scotch whisky is able to be stored and matured in warehouses across in Scotland, with excise duty becoming payable to HMRC only at the point at which the whisky leaves an excise warehouse for the last time – typically to be bottled and sold.

In our earlier article, we provided an overview of the key roles and features of the WOWGR regime in the Scotch whisky industry. This article considers the proposals for reform to WOWGR and the potential impact of changes.

This article is part of a series, please visit our Scotch whisky homepage.

What are the changes being consulted upon?

In March 2022, HMRC announced that it would be undertaking a review of WOWGR as part of a programme of “excise simplification and modernisation”. A consultation was later launched on reform to WOWGR.

HMRC issued a questionnaire (Questionnaire to assess potential reforms to WOWGR), asking for feedback on a wide range of aspects of the current regime, including:

• How does WOWGR help you identify illicit products within the supply chain?
• What’s the role of WOWGR assisting with due diligence checks when acquiring and holding alcohol and / or tobacco products? For example, how much do you rely on the registration certificate when carrying out due diligence.
• What do you see as the main arguments for retaining WOWGR in some form of to tackle illicit products? For example, what issues could occur if the Owner of Goods provisions were removed.
• What are the likely burdens and cost HMRC should be aware of if the current legislation is reformed? For example, the costs and time which might be associated with due diligence.

Feedback was invited from key excise stakeholders (including WOWGR registered persons) during a period of consultation, which ran from 25 October 2023 to 29 November 2023. The outcome of the consultation is awaited.

Comment

With the results of the consultation awaited, it remains to be seen what reform (if any) will be made to the current regime. However, what is clear is that any “gap” in the verification process created (indirectly) by reform of WOWGR would need to be filled.

Through the terms of the questions being asked, there is a clear acknowledgement by HMRC that WOWGR performs a wider verification role beyond ensuring that HMRC receive excise duties due, with benefits to those operating in the industry.

At present, there are no regulations addressing the process for the transfer of ownership of Scotch whisky. The verification of goods and persons in the industry is performed, indirectly, through HMRC. The role performed by warehouse keepers can be looked at as an example. Within the industry, acceptance of goods into an excise warehouse by a warehouse keeper is widely regarded as confirmation of the stated provenance of a cask, and acknowledgement of a delivery order by a warehouse keeper is regarded as confirmation of ownership of a cask. Removal of the authorised warehouse keeper would remove this verification (or due diligence) role relied upon by the industry.

Further, removal of the requirement for authorisation of revenue traders may not have the desired effect. Unless the warehouse keeper would no longer be jointly and severally liable with owners for the excise duty payable on goods held in the warehouse, it can be anticipated that warehouse keepers would be reluctant to open accounts for unknown (unvetted) persons and accept their goods into their warehouse.

Therefore, whilst the form and scope of any reform to WOWGR is awaited, it can be anticipated that removal of the verification function performed through WOWGR would create a “WOWGR vacuum” that would need to be filled, most likely in the form of regulations. This may be beneficial to the industry, with “designed for purpose” regulations introduced which address, directly, the critical issues of due diligence within the Scotch whisky industry. What is clear, is that reform in this area would, of necessity, lead to further reform.

DLA Piper and our Scotch whisky team has experience of advising clients across the globe in the distilled spirit sector and would be pleased to discuss any issues which arise from this article.