S13(1A) HODA 1979 – fuel misuse – assessment to best judgement – reasonableness of methodology – Appeal Dismissed
MANCHESTER RIBUNAL CENTRE MAN/08/8034
MR. SAMUEL FRY Appellant
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Ian Huddleston, Chairman
A.F. Hennessey FCA
Sitting in public in Belfast on 20th November 2008
The Appellant in person
Mr. James Puzey of Counsel for the Respondents
(a) he had approximately 33 vehicles on the road. The vehicles worked in Great Britain, Northern Ireland and the Republic of Ireland and, where possible, would refuel in the Republic of Ireland because fuel was cheaper. During the course of the interview the Appellant stated that each vehicle had a fuel card and, when used, the date, quantity and registration number of the vehicle would appear on the fuel invoice;
(b) vehicle tanks held between 1,000 and 1,400 litres;
(c) bulk fuel was purchased by the Appellant at the rate of a couple of thousand gallons every two to three months;
(d) other than being used in the vehicle itself, the Appellant indicated that fuel sourced in the Republic of Ireland was only pumped into the storage tank on his premises when the vehicle itself needed repair. In addition, he confirmed that if a vehicle had returned from Great Britain with fuel, that that fuel was also pumped into the storage tank, leaving only enough fuel to travel to the border to purchase fuel in the Republic of Ireland (a requirement of approximately 50 litres).
Relevant Legislation and the Assessment
(a) that fuel is contained in the vehicle's standard tanks; and
(b) is being used or is intended for use only by that vehicle.
(a) "any person is a person from whom any amount has become due in respect of any duty of excise; and
(b) that the amount due can be ascertained by the Commissioners, the Commissioners may assess the amount of duty due from that person and notify that amount to the person or his representative."
(a) he had scheduled fuel receipts for each of the 44 vehicles owned by the Appellant during the assessment period, detailing each on a separate work sheet, showing for each a total amount of fuel purchased during the period of the audit;
(b) he established weekly mileages for each vehicle using tacograph information and/or odometer readings;
(c) having collated that information he calculated a total fuel requirement for each vehicle during the period of the audit, and compared that to the declared fuel purchases for each of those vehicles.
The Appellant's Case
(a) the correctness (or otherwise) of the assessment of fuel purchased; and
(b) the assessment of the appropriate mileage per gallon achieved by the Vehicle.
(a) that the fuel card assigned to the Vehicle (registration P2WJH) was used by other drivers to re-fuel other vehicles;
(b) that the mileage per gallon figure which the Appellant had provided to the Respondents (ie. the 5.5 miles per gallon) was consistent with the mpg figures of other vehicles within its fleet and that the Respondent's counter assessment (ie 7 miles per gallon) was excessive;
(c) that the actual miles per gallon achieved by the Vehicle which were monitored over a period of months were closer to the 5 / 5.5 miles per gallon figure than that attributed by the manufacturer / the Respondents;
(d) that the age of the Vehicle, type of load being drawn and type of roads travelled all affected the achievable mpg.
(a) that the fuel purchased (and ascribed to the Vehicle) was unrepresentative in that it disguised fuel legitimately purchased for other vehicles;
(b) that even if all of the fuel was ascribed to the Vehicle, that the calculation was incorrect because the miles per gallon used was too high.
The First Ground – The Fuel Purchased
"There have been occasions where we have been requested by your company to authorise fuel for a vehicle where a driver has arrived on site with no fuel card in his possession. In this instance, these transactions will be allocated to an alternative card number provided, or to another fuel card when available to the site as agreed with yourselves."
Ground Two – Mileage Per Gallon
(a) by approaching a Sales Engineer for DAF directly – who gave a figure of 8mpg for equivalent vehicles of the same make /model;
(b) by speaking to a Services Engineer at TBF Thompson DAF at Mallusk – who gave an indicative figure of 7mpg.
Assessment of Weekly Mileage