Commentary on Provisions Part 1 – Scottish Aggregates Tax Commercial exploitation of aggregate Section 7: Commercial exploitation
27.This section sets out how the commercial exploitation of aggregate is defined for the purposes of Part 1 of the Act.
28.Subsection (1) provides that a quantity of aggregate is subjected to exploitation if it is removed from a site falling within subsection (2), i.e. from the originating site of the aggregate (see section 9); from a site which is not the originating site of the aggregate but is registered under the name of the same owner; or from a site not falling within those categories to which the quantity of aggregate had been removed for the purpose of having an excepted process (see section 4) applied to it, but at which no such process had in fact been applied to it.
29.A quantity of aggregate is also subjected to exploitation if it becomes the subject of an agreement to supply it to any person. For these purposes (as per subsections (5)-(6)) the time when a quantity of aggregate becomes the subject of an agreement to supply it to any person is either when the agreement is entered into, or in a case where the quantity of aggregate is not separately identifiable when the agreement is entered into, at the time when it is appropriated to the agreement. However, any supply effected by the transfer or creation of land rights is not included within the definition of “supply” for the purposes of the tax.
30.A quantity of aggregate is also subjected to exploitation if it is used for construction purposes, e.g. in building sites.
31.A quantity of aggregate is also subjected to exploitation if it is mixed, otherwise than in permitted circumstances, with any material or substance other than water. Aggregate is often mixed with other substances in the production of materials such as concrete and asphalt. For these purposes (as per subsection (7)) a quantity of aggregate is mixed with a material or substance in permitted circumstances if the material or substance with which it is mixed consists wholly of a quantity of taxable aggregate that has not previously been subjected to commercial exploitation in Scotland, and the mixing takes place on a site which, in a case where it falls within subsection (2) in relation to any part of the aggregate included in the mixture, so falls in relation to every part of it.
32.Subsection (3) clarifies that exploitation is commercial exploitation if it is carried out in the course or furtherance of a business carried on by the person (or one of the persons) responsible for subjecting it to exploitation. For these purposes, “business” includes any activity of the Scottish Administration, the UK Government, local authority or charity.
33.Subsection (4) sets out exceptions to the definition of commercial exploitation for the purposes of Part 1 of the Act. This includes cases where aggregate is removed from one registered site to another, where both sites are registered under the name of the same person: this allows for circumstances where aggregate is moved between sites for processing or storage before being used or sold, Subsection (4) also includes cases where aggregate is moved to a registered site for the purpose of having an excepted process (as defined in section 4) applied to it on that site.
34.Subsection (8) provides that for the purposes of Part 1 of the Act, the exploitation of a quantity of aggregate is taken to occur in Scotland if the aggregate is in Scotland at the time when it is subjected to exploitation, or where aggregate is subjected to exploitation under subsection (1)(a) or (b) as a result of the movement of aggregate to Scotland from elsewhere in the UK.
35.Subsection (10) gives the Scottish Ministers a regulation-making power, subject to the affirmative procedure, in order to make further provision about the circumstances in which the exploitation of aggregate is taken to occur in Scotland for the purposes of subsection (8) of this section. Regulations under subsection (10) may amend subsection (8) and other provisions of the Act to make provision of that kind.
36.Subsection (12) applies to the occupation of a site by agriculture or forestry businesses. In such a case the exception to commercial exploitation at subsection (4)(d) applies in a modified form: so no commercial exploitation occurs if aggregate returns to the land at the site from which it was won, or at a site occupied by the same business, but the exception applies without the need for this to take place by virtue of the aggregate being used for a purpose connected with winning aggregate or other minerals from the site in question.