First-tier Tribunal (Tax)

[2011] UKFTT 108 (TC)

TC00984

Appeal number TC/2010/02509

Appeal against decision not to restore hand rolling tobacco seized on entry into the UK – Whether the decision could reasonably have been reached – Yes – Appeal dismissed.

FIRST-TIER TRIBUNAL

TAX

(1) DONAL FALVEY

(2) VIVIEN FALVEY

(3) BERNARD CARPENTER

(4) BARBARA CARPENTER

Appellants

- and -

DIRECTOR OF BORDER REVENUE Respondents

TRIBUNAL: JOHN BROOKS (TRIBUNAL JUDGE)

NORAH CLARKE (MEMBER)

Sitting in public at Eastgate House, Newport Road, Cardiff on 27 January 2011.

Donal Falvey for the Appellants

David Griffiths, counsel, for the Respondents

© CROWN COPYRIGHT 2011

DECISION

1.       Mr Donal Falvey, Mrs Vivien Falvey, Mr Bernard Carpenter and Mrs Barbara Carpenter appeal against a decision of the UK Border Agency (“UKBA”), contained in a letter dated 9 February 2010, upholding a previous decision not to restore 18 kilos of hand rolling tobacco that had been seized on 10 December 2009 following a departmental review, under s 14(5) and schedule 5 Finance Act 1994. Although there were initially four separate appeals, one by each of the individual Appellants, we heard these together in accordance with the direction of the Tribunal made on 10 May 2010. 

2.       On 10 December 2009 a Volkswagen Passat, driven by Mr Falvey in which his wife and their friends Mr and Mrs Carpenter were passengers, was stopped at Dover Eastern Docks by officers of the UK Border Agency (“UKBA”). They had been to Adinkerke for the day and had bought beer and food such as cheese in addition to 18 kilos of hand rolling tobacco which was to be shared between them.

3.       All four Appellants were interviewed by UKBA officers.

4.       Mr Falvey told the officer that he smoked and that a pouch of tobacco, from which he could make 60-80 roll up cigarettes, lasted between one and three days. When asked when he last travelled abroad he said “to buy tobacco at Easter” but confirmed, when asked, that he had travelled the previous day but because of “a pile up on the motorway on the way to Adinkerke” had not bought tobacco.

5.       Commercial records show that in addition to the trips made on 9 and 10 December 2009 Mr Falvey had previously made similar journeys on consecutive days between Dover and Calais on 8 and 9 April 2009, 28 and 29 August 2009. Although Mr Falvey had taken the Volkswagen Passat on occasions the car’s number plate had been “muddled” with letters being transposed and not always in the same order.

6.       Mrs Falvey told the officer that she would smoke five or six pouches a week making 45-46 roll up cigarettes from a pouch. She said that she had travelled the previous day but had turned back because of a crash on the Belgian motorway.

7.       Mr Carpenter said that he had last travelled the previous April or May and denied, when asked, that he had travelled the day before only admitting that he had done when it was explained to him that his friends had admitted that this was the case. He told the officer that he smoked four to five pouches of tobacco a week.

8.       Mrs Carpenter explained that a pouch of tobacco would last her two to two and half days and that she could make 43 roll up cigarettes from a pouch. She told the officer that she had last travelled to Calais or Belgium the previous Easter but agreed, when asked, that she had in fact travelled the day before.  

9.       Following the interviews, as the officer was satisfied that the tobacco was held for a “commercial purpose” and liable to forfeiture under s 49(1)(a)(i) Customs and Excise Management Act 1979 (“CEMA”) it was seized under ss 139(1) and 141(b) CEMA.

10.    The Volkswagen Passat was also seized under ss 139(1) and 141(1)(a) CEMA as it had been used for the carriage of goods liable to forfeiture. However, it was restored without charge on humanitarian grounds.

11.    On 12 December 2009 the Appellants wrote requesting that the tobacco be returned and when this was refused by the UKBA sought a review of the decision. This appeal is against the outcome of the review not to restore the tobacco to the Appellants.

12.    As there have not been any condemnation proceedings in this case the tobacco seized by the UKBA is deemed to have been lawfully forfeited (paragraph 5 schedule 3 CEMA). Therefore, the issue for the Tribunal is whether the decision by the UKBA not to restore the tobacco, which has been lawfully forfeited, could reasonably have been reached.

13.    Lord Phillips of Worth Maltravers MR (as he then was) said in Lindsay v Commissioners of Customs and Excise [2002] STC 508 at [40]:

“the Commissioners will not arrive reasonably at a decision if they take into account irrelevant matters, or fail to take into account all relevant matters”

14.     Mr Griffiths submitted that, in coming to the decision not to restore the tobacco the reviewing officer took into account the following matters:

·       The quantity of the tobacco (18 kilograms) which was in excess of the 3 kilogram quantity to be taken into account in determining whether it was held for a commercial purpose (under the Excise Goods (Holding, Movement Warehousing and REDS) regulations 1992 as amended) even when divided equally between the four Appellants;

·       Mr and Mrs Falvey’s claim to be heavy smokers; that none of the Appellants had told the officers that they has travelled the previous day;

·       Mr Carpenter’s insistence that this was the case until he was told that the others had admitted it; that Mr Falvey had made three trips on consecutive days in 2009;

·       that the car number plate had been “muddled”; and

·       that if there had been a hold up on 9 December 2009 it could have been avoided.

15.    He contended that by having regard to these matters in the round, the decision not to restore the tobacco was a reasonable exercise of UKBA’s discretion

16.    Mr Falvey accepted the quantity of tobacco purchased and that he had made three trips on consecutive days. He explained that as he was employed “on the ferries” it did not cost him to travel and that he, his wife and friends preferred to stay in a hotel in England than one in France. He also told us that his wife and Mr and Mrs Carpenter enjoyed the ferry crossing which they regarded as a part of the trip although agreed that it was a bit “busman’s holiday” for him.

17.    Having regard to all the circumstances we find that as the UKBA did not take into account irrelevant matters or fail to take into account all relevant matters the decision not to restore the tobacco to the Appellants was one that could reasonably have been reached.

18.    As such we dismiss the appeal.

19.    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.

JOHN BROOKS

TRIBUNAL JUDGE

RELEASE DATE: 4 February 2011