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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Howes v UK Border Agency [2010] UKFTT 572 (TC) (16 November 2010)
URL: http://www.bailii.org/uk/cases/UKFTT/TC/2010/TC00823.html
Cite as: [2010] UKFTT 572 (TC)
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Thomas Arthur Howes v UK Border Agency [2010] UKFTT 572 (TC) (16 November 2010)
EXCISE DUTY RESTORATION OF GOODS (see also EXCISE APPEAL)
Own use
[2010] UKFTT 572 (TC)
TC00823
Appeal number TC/2010/01931
EXCISE DUTY- Goods deemed condemned - appellant withdrew from Magistrates’ hearing- goods condemned Tribunal no jurisdiction to hear argument as to own use –review letter incorrect and altered prior to hearing- appeal allowed
FIRST-TIER TRIBUNAL
TAX
THOMAS ARTHUR HOWES Appellant
- and -
UK BORDER AGENCY Respondents
TRIBUNAL: DAVID S PORTER ( Judge)
MOHAMED FAROOQ (Member)
Sitting in public in Birmingham on 13 October 2010
The Appellant in person
Alexander Williams, counsel, instructed by the General Counsel and Solicitor to the Border Agency
© CROWN COPYRIGHT 2010
DECISION
1. Mr Thomas Arthur Howes (Mr Howes) appeals against the review by Mr R Brenton, the Reviewing Officer for the Respondents (Border Agency), contained in a letter dated 14 December 2009 refusing to return 3 kilos of hand rolling tobacco and 4000 cigarettes (the goods).Mr Howes says that the goods were purchased for his own use. He understood that he could bring in as much tobacco as he wished so long as it was for his own use. The Border Agency should not have seized the goods and having done so should have returned them to him. The Border Agency say that, as the goods had been deemed forfeit under paragraph 5 of Schedule 3 of The Customs and Excise Management Act 1979 (“CEMA”), Mr Howes could not claim before the Tribunal that the goods were for his own use. As a result the goods should be forfeited.
2. Mr Williams appeared for the Border Agency and we were provided with a bundle. Neither the Tribunal nor Mr Howes had had an opportunity to read the bundle as it had only been provided to the Tribunal at the hearing. Mr Howes appeared in person.
3. We were referred to:
Revenue and Customs Commissioners v Dawkin [2008] ALL ER (D) 83 (Aug)
John Morgan TC/00102
Preliminary issue
4. Mr Howes told us that he wrote to the Border Agency asking for his case to be sent to the Magistrates’ Court. The Border Agency replied on 15 October 2009 acknowledging his letter and advised:-
“if you withdraw from Condemnation proceedings in the Magistrates’ Court then the goods in question are deemed to be forfeit to the Crown… Furthermore, the Director of Border Revenue from the UK Border Agency will ask for any challenge to the legality of the seizure, including claims of “own use”, in any subsequent Tribunal appeal to be struck out on the grounds that you had ample opportunity to make your claim in the proper place - Magistrates’ Court – but failed to do so: therefore the legality of the seizure has already been confirmed and the goods are for commercial purposes”.
Mr Howes told us that he had telephoned the Border Agency in Plymouth some time after 1 October 2009 when he had been stopped, and 25 October 2009. The female operative had advised that.
“ he would be better off not going that way (to the Magistrates’ Court) as it would cost him money and he would need a representative”
As a result of that advice he withdrew his request for a hearing before the Magistrates’’ Court by a letter dated 25 October 2009 he also asked for a review. He indicated at the hearing that he had a reasonable excuse for not attending the Magistrates’ Court hearing as he had been advised not to go because of the expense.
5. In Revenue and Customs Commissioners v Dawkin [2008] ALL ER (D) 83 (Aug)
John Morgan TC/00102 Judge David Richards said at paragraph 38
“… Thirdly, the position as to costs is common to litigants in most proceedings. The fact that bringing or defending proceedings may, if unsuccessful, lead to an adverse order for costs cannot, at least generally, provide a good reason for not bringing or defending them for the purposes of abuse of process. Finally, there can be no criticism of HMRC in mentioning the costs position. It would be a failure not to mention it which might be open to criticism.”
6. We have decided, in the light of that decision, that we do not accept that Mr Howes had a reasonable excuse for not attending the Magistrates’ Court and as a result he can not give evidence to the effect that he had purchased the goods for his own use before this Tribunal. Mr Howes was unsure when he had made the telephone call and suggested that it might have been some time before his letter of 25 October 2009 withdrawing his appeal to the Magistrates’ Court. In considering the bundle of documents after the hearing, we note that the letter from the Respondents of 15 October 2009 clearly sets out what would happen if he did not appeal to the Magistrates’ Court. This letter was not produced to us at the hearin,g but is in the bundle of evidence. It is clear from the date on that letter that Mr Howes must have spoken to Border Agency after the 15 October 2009, when he received the letter, and before he decided to withdraw from the Magistrates’ Court in his letter of 25 October 2009. He, therefore, understood the consequence of not appealing to the Magistrates’ Court.
The facts
7. We advised Mr Howes that he could not give evidence to the effect that the goods had been purchased for his own use and that he might only be able to recover his goods if he could show that there was some exceptional reason why he should be able to do so. Mr Howes produced to the Tribunal the original review letter of 14 December 2009 and pointed out that the reviewing officer had completed the date on which he was stopped incorrectly, suggesting that it had occurred on the 3 October 2009. Mr Howes showed us the letter and on the first page it indicated under the heading “Background” that he had been stopped on 3 October 2009. The letter in the bundle had clearly been retyped as it identified that he had been stopped on 1 October 2009, the correct date. We assume the letter must have been altered by Mr Brenton, the reviewing officer, on15 February 2010 as there is a reference on the second page to that date at the end of the line of “Summary of your interview”. Mr Williams was unable to explain why the letter had been altered, but submitted that in all other respects the facts appeared correct and that the date must be a typing error. We accepted that that could be the case, but we consider the failure to type the correct date reveals a lack of care on the part of the Reviewing Officer if he did not notice an elementary error on the first page of his review. It therefore suggested that there might be further mistakes. The error was compounded by the fact that the reviewing officer had decided to amend the letter for the purposes of the hearing, without alerting the Tribunal or their Counsel as to the correction of the error. It is important that documentation produced as evidence to the Tribunal is correct. If it has been altered, and the Tribunal is not alerted to it, the Tribunal cannot rely on the accuracy of the remaining evidence. We therefore halted the proceedings and had no alternative but to decide that the reviewing officer could not have acted reasonably in reaching his decision and that there must be a further review carried out by different reviewing officer.
8. In order to clarify the situation, we would add that if Mr Howes wishes to appeal the subsequent review letter, in the event that the goods are not returned to him, he will not be allowed to produce evidence to the effect that he purchased the goods for his own use because we have decided that he did not have a reasonable excuse for failing to attend the Magistrates’ Court
9. 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.