First-tier Tribunal (Tax)

[2010] UKFTT 388 (TC)

TC00670

Appeal number:TC/2009/12869

HYDROCARBON OIL- appellant indicated that he had difficulty reading and writing – fuel taken in by mistake- reviewing office acted reasonable- no reasonable excuse- appeal dismissed.

FIRST-TIER TRIBUNAL

TAX

JASON ALLEN Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: DAVID S PORTER (TRIBUNAL JUDGE)

Sitting in public at Leeds on 11  August 2010

No one appeared for the Appellant

Miss Amberwn Chaudray, of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2010

DECISION

1.       The Appellant (Mr Allen) appealed against the decision to request a fee of £500 to restore a Peugeot 306, registration number S936 FEC seized on 4 March 2009, the vehicle having first been detected to be fuelled  with rebated fuel (red diesel) on 17 February 2009. Mr Allen submitted through W Brook & Co, his Solicitors, who assisted him in completing the Notice of Appeal that he had not realised that he had filled his vehicle with red diesel. He had learning difficulties and only has basic reading skills and the cashier at the petrol filling station did not advise him that he was filling his car with red diesel. The Respondents (HMRC) had originally required a restoration fee of £460 for ‘taking in’ and using’ red diesel but on the receipt of the Solicitors’ letter seeking a review, the review decision removed the £460 and replaced it with a restoration fee of £500 (250 for each offence).

2.       Miss Chaudray appeared for HMRC with Mrs Julie Wyggs (Mrs Wyggs) the reviewing officer. She produced a bundle for the tribunal.

3.       This appeal was called on for hearing at 10.00am today.  There was no one present to represent Mr Allen.  I asked the clerk to contact the solicitors, who advised that they were not instructed; the clerk was asked to contact Mr Allen, by mobile telephone, but there was no response; and the Tribunal Office was also contacted, who confirmed the Mr Allen had been advised on 28 April 2010 of the date of the hearing. No other information was provided indicating what Mr Allen’s intentions were and I decided to go ahead and hear the appeal in his absence.

The facts

4.       Mr Allen was stopped on 15 February 2010 by a Road Fuel testing Unit and his vehicle was taken to a Police Recovery Compound because it contained red diesel. He was interviewed on 24 February and alleged that he could not read. He had made a genuine mistake as could be seen from the fact that the vehicle was not completely filled with red diesel. Further more, the assistant at the garage at Great Houghton had not commented as he would have expected him to do on his choice of fuel. In their letter of 3 March 2009 addressed to the Road Fuel Testing Unit, the solicitors indicated that :-

“ Our Client, who has learning difficulties, with basic reading and writing, believes he accidentally injected red diesel into his car at the petrol station. We are advised by our client that he is unable to distinguish between the red diesel pump and the regular diesel pumps… Our client requires his vehicle to carry out every day activities such as shopping. Furthermore, our client is unemployed and needs access to his vehicle to assist him in attending interviews for employment”.

In her review letter of 6 July 2009 Mrs Wyggs noted that Mr Allen had been issued with a Notice of Seizure under section 139 of the Customs and Excise Management Act 1979 (CEMA) as being liable to forfeiture  under section 141 (1) (a)  because it was used for carriage handling, deposit or concealment of fuel liable to forfeiture under section 13 (6) of the Hydrocarbon oils Act 1979.  She concluded that she was surprised that Mr Allen had passed his driving test and wondered how he was able to cope with written signs and warnings on the road. She therefore found Mr Allen’s explanations less than convincing and that, on the balance of probabilities, he was aware that he was fuelling his vehicle with red diesel and driving it on the road.

The law

·       Section 6 of the Hydrocarbon Oils Duties Act 1979 ( “HODA”) provides for the levy of excise duty on hydrocarbon oil delivered for home use and by virtue of section 11 a rebate of duty is allowed at the time of delivery.

·       Section 12 of HODA prohibits the taking in or use of that heavy oil in road vehicles.

·       Under section 13 where such heavy oil is taken into or used in a road vehicle with the intent of contravening section 12A the Commissioners may assess an amount equal to the rebate on like oil at the rate in force at the time of contravention as being excise duty due from any person who used the oil or is liable for it being taken into the road vehicle.

·       An assessment is issued pursuant to the provisions of section 12A.

·       Section 141 CEMA 1979 provides as follows-

(1)…where anything has become liable to forfeiture under the Customs and Excise Acts –

(a) any ship, aircraft, vehicle…which has been used for the carriage handling ,deposit….of the thing so liable for forfeiture…and

(b)..any other thing mixed, packed or found with the thing so liable shall also be liable to forfeiture.

• Section 152(b) CEMA 1979 provides that the Commissioners may as they see fit , restore, subject to such conditions (if any)as they think proper, any thing forfeited or seized.

5.       Miss Choudray submitted that Mr Allen did not have a reasonable excuse for filling his car with red diesel. There is a requirement both for Mr Allen and the Great Houghton Garage to ensure that red diesel was not improperly taken into his vehicle. It was most unlikely that, even with his alleged learning difficulties, Mr Allen could have mistaken the pump and not been advised by the garage.  Further more, there was no real hardship for Mr Allen to be without a car. His solicitors stated that he needed it to get around, but he must accept that where his vehicle has been forfeited there would be some hardship. Mrs Wyggs had acted reasonably in refusing to restore the car other than on the payment of £500.

The decision

6.       I have considered the fact and the law and I have decided that Mrs Wyggs acted reasonably in not restoring the vehicle other than on the payment of £500. I also find that Mr Allen did not have a reasonable excuse for ‘taking in’ and ‘using’ the red diesel on the road. Nor has Mr Allen established any grounds for the car to be returned on the basis of hardship to him. I therefore dismiss the appeal. HMRC have not asked for costs and none are awarded

7.       This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.  The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

TRIBUNAL JUDGE

RELEASE DATE: 19 August 2010