MANCHESTER TRIBUNAL CENTRE MAN/07/8058
FREDERICK DYLAN NORRIS Appellant
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Sitting in Belfast on 21st April 2008
Mr. Philip Henry, BL, instructed by Gibson & Quigley on behalf of the Appellant
Mr. Nigel Bird, BL instructed by the Solicitor's Office of
HMRC appeared on behalf of the Respondents
- the vehicle had been owned by the Appellant from new, and had been acquired in approximately 2001;
- the recorded mileage was 142,787;
- in the interview he stated his occupation to be a taxi driver and confirmed that he had worked as a taxi driver for the last three years;
- it was confirmed that the Appellant was not registered for VAT, but had registered as self-employed from the 10th July 2006. When asked why he had not previously registered, the Appellant suggested that his reason for not doing so was because he had "some bills to sort out";
- it was established that the vehicle had a PSV licence and had been insured as a taxi for the three year period in question;
- it was confirmed that the Appellant's weekly mileage was approximately 600 miles, and that he worked between forty five and fifty hours per week;
- the Appellant, taking advantage of the cheaper fuel prices in the Republic of Ireland, fuelled at petrol stations in either Bridgend or Muff in County Donegal, but indicated that he did not retain fuel receipts;
- he confirmed to the Officers that the vehicle had last been fuelled two days previously when he had purchased £10 of fuel in a Statoil Petrol Filling Station in Muff;
- the Appellant confirmed that he knew it was an offence to run a vehicle on green diesel.
- they took the date of acquisition as the 30th September 2001 – thus establishing a period of ownership of 1,835 days, or 262.14 weeks;
- the recorded mileage during the period of ownership was 142,787. In terms of the initial assessment, the Respondents took a commencement date of the 8th January 2004, and an end date of the 8th October 2006, giving a total assessment period of 1,004 days, or 143.42 weeks. Based on those factors, they established an average weekly mileage of 544.69 – a figure slightly lower than that which the Appellant had suggested in his interview under caution, but obviously to his advantage;
- based on the average miles per gallon of the vehicle, the Respondents then estimated that the fuel required per week was 11.34 gallons / 51.58 litres, giving a total fuel requirement for the total miles travelled of 7,382.64 litres for the period of the assessment;
- based on the relevant (and different) rates of duty applicable during the period of the assessment, the Respondents then assessed the total sum of duty due on green diesel used as road fuel by the Appellant during the assessment period as £3,932.73.
- that he had only started taxiing on the 10th July 2006, and that prior to that period he had been suffering from depression and was not, therefore, able to work on a consistent basis;
- that he had purchased fuel from the Statoil Garage in Muff, County Donegal and, upon returning to that station, he had observed that there is a pump which dispenses green diesel, but that there was no signage on the pump to denote its contents, or that it dispensed green diesel. He indicated that the pump dispensing green diesel was not the one which he normally used.
"The excise duty point in relation to any Community Excise Goods shall be the time when the goods are charged with duty at importation."
"The person liable to pay the duty in the case of importation of excise goods from another member state shall be the importer of the excised goods."
"12(1) Subject to sub-section (4) below, where it appears to the Commissioners –
(a) that any person is a person from whom any amount has become due in respect of any duty or excise; and
(b) that there has been a default falling within sub-section (2) below,
the Commissioners may assess the amount of duty due from that person to the best of their judgment and notify that amount to that person or his representative.
12(2) The defaults falling within this sub-section are-
(a) any failure by any person to make, keep, preserve or produce as required or directed by or under any enactment any returns, accounts, books, records or other documents;
(b) an omission from or inaccuracy in returns, accounts, books, records or other documents which any person is required or directed by or under any enactment to make, keep, preserve or produce.
12(3) Where an amount has been assessed as due from any person and notified in accordance with this section, it shall, subject to any appeal under section 16 below, be deemed to be an amount of the duty in question due from that person and may be recovered accordingly unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced.
- Section 6 HODA applied because green diesel had been detected in the Appellant's vehicle, whilst on a public road in the United Kingdom, and the Appellant had not paid excise duty in relation to that fuel;
- Regulations 4 and 5 of the 1992 Regulations are relevant because the Appellant became liable to excise duty at the time of importation and had not paid that duty;
- Section 12 of the Finance Act 1994 was relevant because green diesel had been detected and, as a consequence, under that Section, the Commissioners had the vires to assess the Appellant to the unpaid excise duty, and then to the best of their judgment.
The Appellant's Case
"I was not aware there was green diesel in the car. I only started as a self-employed taxi driver in July 2006. Prior to this I was ill and not working. This is covered in my appeal letter dated 16th February 2007."
- that he had only commenced trading as a taxi driver in July 2006 (ie. the date upon which he registered with Revenue and Customs as a self-employed trader);
- that as he was conducting a long distance relationship, a good deal of his total mileage was for personal use and should be discounted;
- that he had simply filled his car on this occasion through inadvertence, and had not used green diesel either before or since detection.