Fortolkning af chokoladeafgiftslovens vareområde med særligt henblik på CHOAL §1, stk. 1, nr. 9 i forhold til §1, stk. 1, nr. 1.

Abstract

The aim of this master thesis is contributing to the interpretation of section 1, subsection 1, no. 9 of the Danish chocolate tax law. The product area of the provisions is not clearly defined in the wording. To clearly define the area of no. 9, the provision will be compared to section 1, subsection 1, no. 1, throughout. This leads to the problem definition: Definition of the dutiability levied in accordance with The Danish Act on Excise Duties levied on Chocolate and Sugar Products, with an emphasis on Section 1, Subsection 1, No. 9 and compared to No. 1 To investigate the provisions the concepts ‘any chocolate products’, ‘substitutes of chocolate products goods’ and ‘imitations of chocolate products’ will be defined throughout the master thesis. n interpreting the provisions, literal and purposive interpretations of the legal text will be included Because the possibility to derive conclusions from the legal text and the legislative history going back to the original “chocolate law” is not adequate, legal dogmatic method will be used. The case law on the subject will be incorporated in finding the applicable law. The purpose of the “chocolate law” has changed through time. Originally in 1922 the purpose was purely fiscal in taxing luxury products. This has been the case for a long time with the addition of the provision on substitutions and imitations in 1955. In 2012 the purpose changed to ensure public health. The wording of the law did not change in 2012, hence the problem of legality in accordance with Article 43 of the Danish Constitution. From the analysis based primarily on the case law and subsequently on the tax administration’s view, the concept ‘any chocolate product’ covers any product that is made from chocolate or a product that has a characteristic flavour of chocolate. A fully chocolate covered product is a chocolate product. Otherwise, when determining if a product is a chocolate product, the relative amount of chocolate, how the product appears visually and how distinctive the chocolate flavour is. In terms of substitutes and imitations of chocolate products the extend is not clear. Based on the analysis carob powder is a substitute for cocoa. Chocolate flavour can, in one case so far, be substituted with caramel. The sweet taste of apple and yoghurt, as well as cereal bars with a low amount of chocolate in a BAR is not dutiable, expect from the part that is chocolate or other dutiable parts. Cereal bars might be dutiable in some cases. The court will have to make a specific overall evaluation based on each products characteristics, application and marketing. A product has to look and taste as a chocolate product or as a product that can substitute or imitate it. The visual has to be compared with how it is used and marketed. In this comparison the court has in some cases clarified that the product has to cover the same need as a chocolate product or has to be marketed as such to be dutiable.

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A master thesis from Aalborg University

Fortolkning af chokoladeafgiftslovens vareområde med særligt henblik på CHOAL §1, stk. 1, nr. 9 i forhold til §1, stk. 1, nr. 1.

[Definition of the dutiability levied in accordance with The Danish Act on Excise Duties levied on Chocolate and Sugar Products, with an emphasis on Section 1, Subsection 1, No. 9 and compared to No. 1]