Stephen Hawley v Director of Border Revenue [2012] UKFTT 245 (TC) (04 April 2012)
[2012] UKFTT 245 (TC)
TC01939
Appeal number: TC 2011/04847
EXCISE
DUTY – NON-RESTORATION OF VEHICLE – the Appellant’s vehicle seized for
carrying 12 kilograms of hand rolling tobacco – no challenge to the magistrates
on seizure – importation for commercial purposes – was the decision not
to restore the vehicle reasonable? – Yes – Appeal dismissed.
FIRST-TIER TRIBUNAL
TAX CHAMBER
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STEPHEN HAWLEY
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Appellant
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- and -
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DIRECTOR OF
BORDER REVENUE
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Respondents
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TRIBUNAL:
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JUDGE MICHAEL TILDESLEY OBE
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BEVERLEY TANNER
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Sitting in public at Tribunals
Service, Phoenix House, 1-3 Newhall Street, Birmingham on 14 February 2012
Richard Adams counsel for the
Appellant
Davinia Riley counsel for the
Respondents
© CROWN COPYRIGHT
2012
DECISION
The Appeal
1. The
Appellant appealed against the Respondents’ decision on review dated 7 June
2011 refusing restoration of a Mitsubishi L200, registration number L2 SGH
(hereinafter known as the vehicle).
2.
On 28 April 2011 at the UK Control Zone at Coquelles, France, Border Officers stopped the Appellant who was driving the vehicle. The Appellant was
accompanied by his daughter, Miss Nicola Hawley, and her fiancé, Mr Christopher
Evans. The Appellant and his passengers informed the Officers that they had
purchased 12 kilograms of tobacco in Belgium. The Officers after interviewing
the Appellant and his passengers concluded that the tobacco had been bought for
commercial purposes. The Officers seized the tobacco and the vehicle.
3.
The Appellant has not challenged the lawfulness of the seizure of the
vehicle. On 16 May 2011 he withdrew his Appeal to the magistrates’ court. The
Appellant contended that the seizure was disproportionate and that the loss of
the vehicle had caused him exceptional hardship. The Appellant argued that the
review decision was fundamentally flawed. The Respondents disagreed and
maintained that the decision of Mr Crouch, the review officer, not to restore
the vehicle was fair, reasonable and proportionate.
4. The
issue for the Tribunal is whether Mr Crouch’s refusal to restore the vehicle
was a decision which no reasonable body of Commissioners could have arrived at.
In order for the decision to have been reasonable Mr Crouch must have
considered all relevant matters and must not have taken into consideration
irrelevant matters.
5. The
Tribunal heard evidence from the Appellant and Miss Hawley. Mr Crouch, the
review officer, gave evidence for the Respondents. An agreed bundle of
documents was admitted in evidence.
The Jurisdiction of the Tribunal
6. The
Respondents’ power regarding restoration of goods and vehicles which have been
forfeited or seized is set out under section 152(b) of the Customs and
Management Act 1979. Once the power is exercised whether in the form of a
positive decision to restore on terms or a refusal to restore, the person
affected has a right of appeal to the Tribunal. The powers of the Tribunal are
limited in the terms set out in section 16(4) of Finance Act 1994 which
provides that:
“confined to a power, where the Tribunal are
satisfied that the Commissioners or other person making the decision could not
reasonably have arrived at it, to do one or more of the following, that is to
say –
a) to direct that the decision, so far as it remains
in force, is to cease to have effect from such time as the Tribunal may direct;
b) to require the Commissioners to conduct, in
accordance with the directions of the Tribunal, a further review of the
original decision;
c) in the case of a decision which has already been
acted on or taken effect and cannot be remedied by a further review, to declare
that decision to have been unreasonable and to give directions to the
Commissioners as to the steps to be taken for securing that repetitions of
unreasonableness do not occur when comparable circumstances arise in future”.
7. The
precondition to the Tribunal’s exercise of one or more of its three powers,
namely, that the person making a decision could not reasonably have arrived at
it, falls within the guidance given by Lord Lane in the decision in Customs
and Excise v JH Corbitt (Numismatists) Ltd [1980] STC 231 at page 239:
“…..if it were shown the Commissioners had acted in
a way in which no reasonable panel of commissioners could have acted; if they
had taken into account some irrelevant matter or had disregarded something to
which they should have given weight”.
8. The
Tribunal is entitled to make its own findings on the primary facts which are to
be taken into account by the Respondents when exercising their powers regarding
restoration of goods. The findings of fact include blameworthiness and the
proportionality of the penalty imposed to the policy aims pursued having full
regard to the individual circumstances of the case. The Tribunal, however, has
no fact finding jurisdiction for the purpose of challenging the legality of the
seizure and forfeiture of the goods. The Tribunal will then apply its findings
of fact to determine whether the Respondents acted reasonably in refusing
restoration.
9.
The Court of Appeal in Revenue and Customs Commissioners v Jones and
another [2011] EWCA Civ 824
confirmed the scope of the Tribunal’s jurisdiction when a person does not
contest the seizure before the magistrates’ court.
10.
Mummery LJ at paragraphs 71(4) & (5) stated
“The stipulated statutory effect of the respondents'
withdrawal of their notice of claim under para 3 of Sch 3 was that the goods
were deemed by the express language of para 5 to have been condemned and to
have been 'duly' condemned as forfeited as illegally imported goods. The
tribunal must give effect to the clear deeming provisions in the 1979 Act: it
is impossible to read them in any other way than as requiring the goods to be
taken as 'duly condemned' if the owner does not challenge the legality of the
seizure in the allocated court by invoking and pursuing the appropriate
procedure.
The deeming process limited the scope of the issues
that the respondents were entitled to ventilate in the FTT on their restoration
appeal. The FTT had to take it that the goods had been 'duly' condemned as illegal
imports. It was not open to it to conclude that the goods were legal imports
illegally seized by HMRC by finding as a fact that they were being imported for
own use. The role of the tribunal, as defined in the 1979 Act, does not extend
to deciding as a fact that the goods were, as the respondents argued in the
tribunal, being imported legally for personal use. That issue could only be
decided by the court. The FTT's jurisdiction is limited to hearing an appeal
against a discretionary decision by HMRC not to restore the seized goods to the
respondents. In brief, the deemed effect of the respondents' failure to contest
condemnation of the goods by the court was that the goods were being illegally
imported by the respondents for commercial use”.
The Facts
11.
The Appellant submitted that the Tribunal should proceed on the basis
that just three kilograms of the tobacco were illegally imported. According to
the Appellant, he was entitled to claim three kilograms of tobacco for his own
use, whilst six kilograms were brought in by Miss Hawley and Mr Evans. The
Appellant’s proposition is flawed in law. The Appellant and his passengers did
not complain to the magistrates’ court opposing the condemnation of the
tobacco. In those circumstances the Tribunal is obliged as a matter of law to
treat the entire 12 kilograms of tobacco as duly condemned as an illegal
import. The legal consequences of so treating the 12 kilograms are that the
Tribunal must regard the 12 kilograms of tobacco as being imported for a
commercial purpose, and that the vehicle had been used for the carriage of an
illegal import of 12 kilograms of tobacco.
12.
In this respect Mr Crouch’s starting point for his review was correct
when he stated that the seizure of the vehicle was legal and the excise goods
involved were commercial (not for own use).
13.
The Appellant, however, sought to undermine Mr Crouch’s conclusion that
the tobacco had been held for profit and the vehicle should not normally be
restored by identifying seven purported flaws with his reasoning. The Tribunal intends
to examine the purported flaws in turn by reference to the facts available to
Mr Crouch at the time he made the decision and the evidence before the
Tribunal. The Tribunal considers that some of the purported flaws should be
grouped together under single headings.
Misleading the Officer about the Quantity of Tobacco (Flaws 1, 2 and 3)
14.
Mr Crouch found that the Appellant knowingly misled the Border Officer
about the true quantity of the excise goods that was his. Mr Crouch decided that
the Appellant was the owner of the 12 kilograms of hand rolling tobacco, not
six kilograms. In Mr Crouch’s view, it was evident from the interviews of Miss
Hawley and Mr Evans that the tobacco they claimed to be theirs clearly belonged
to the Appellant. Mr Crouch was satisfied that Miss Hawley and Mr Evans did not
smoke hand rolling tobacco, and that it made no sense for each of them to spend
₤252 on goods they did not use. Mr Crouch believed that Miss Hawley and
Mr Evans claimed that they each had three kilograms of tobacco in an abortive
attempt to legitimise the Appellant’s illegal import of 12 kilograms of
tobacco. Finally Mr Crouch asserted that the Appellant had with him the
receipts for the 12 kilograms.
15.
The Appellant contended that if his evidence and that of Miss Hawley’s
about the events on 28 April 2011 were believed the Tribunal would have no
hesitation in holding Mr Crouch’s reasoning flawed. Further Mr Crouch had no
evidential basis for his assertion that the Appellant possessed the receipts
for the full 12 kilograms of tobacco.
16.
Mr Crouch considered that the interviews of Miss Hawley and Mr Evans
supported his conclusion that the 12 kilograms of tobacco belonged to the
Appellant. In his view Miss Hawley’s replies to the questions of the Border
Officer revealed that she had no understanding of smoking hand rolled tobacco.
Miss Hawley did not know how many roll ups a pouch of tobacco would produce,
and whether it would be cheaper to smoke than ordinary cigarettes. Miss Hawley
accepted that she had never smoked had rolled tobacco before, although later in
the interview she stated that she had tried out her father’s roll-ups. Miss
Hawley’s explanation for purchasing so much tobacco when she did not know it
would work out cheaper was that she had been thinking about using hand rolling
tobacco for a while and would not know when she would go overseas again.
17.
Mr Evans initially in interview asserted that he purchased the tobacco
for his own use but was unable to explain the mechanics of hand rolling
tobacco. Finally Mr Evans apologised to the Officer and stated that the tobacco
was for the Appellant, and requested the Officer to keep his fiancée out of
trouble.
18.
The Appellant stated in evidence that he had travelled several times to
France in connection with finding a site for his caravan which was being stored
there. The Appellant explained that he and his wife had decided to site their
caravan in France because it was easier to travel to Spain from there for their
main three weeks holiday in August/September. It would also enable them to have
long weekends in France when he could also do some fishing.
19.
On the day in question he left home very early in the morning so that he
could return in the afternoon to enable him to have some sleep before he
started work at midnight. The Appellant’s intention was to get some things from
the caravan which was being stored in France. He also decided to go first to
Adinkerke in Belgium to purchase some tobacco for him and his wife. The
Appellant’s daughter had asked to go with him as she was off work that week. He
only learnt that Mr Evans was joining him on the trip on the day in question.
When he arrived at Adinkerke his daughter and Mr Evans were asleep in the
vehicle. The Appellant decided to go to a shop to buy Cutters Choice hand
rolling tobacco. At the shop the Appellant purchased one three kilograms
consignment of Cutters Choice. He then returned to the same shop to buy
another three kilograms consignment. The Appellant took this course of action
because he knew that the shop would not sell him six kilograms of tobacco in
one transaction.
20.
When the Appellant returned to the vehicle he met Mr Evans and his
daughter who had been to a shop where they each bought three kilograms of Golden
Virginia hand rolling tobacco. According to the Appellant, Mr Evans
informed him that he had purchased the tobacco for the Appellant as gratitude
for the jobs that the Appellant had done for them on their house. The Appellant
told Mr Evans that he could not accept the tobacco as it would represent
payment in kind. The Appellant and Mr Evans took the tobacco back to the shop
but they were unable to obtain a refund. The Appellant stated that he told Mr
Evans to take the tobacco back to the UK and if stopped to tell Customs that he
smoked but they may take it off him.
21.
The Appellant was not surprised that his daughter had purchased tobacco.
Miss Hawley confirmed the Appellant’s account of the events on 28 April 2011.
She stated in evidence that the Appellant had no inkling beforehand of Mr
Evan’s intention to buy tobacco as a gift. Miss Hawley repeated that the
tobacco she purchased was for her own use. She acknowledged in view of her
limited knowledge on hand rolling tobacco that it may have been more sensible
to have purchased one pouch of tobacco.
22.
After visiting Adinkerke they went to pick up some things from the
caravan and bought alcohol from Calais before making their way home via the
Eurotunnel. The Appellant considered that the Officers who stopped them were
arrogant and not prepared to listen to him. The Appellant believed that the
Officers had not given Mr Evans sufficient time to explain the correct version
of events. The Appellant was of the view that Mr Evans had wrongly put the
blame on him with the result that they have fallen out and were no longer
speaking with each other. Mr Evans did not attend the hearing to give evidence.
23.
The Appellant asserted that he only had in his possession the two
receipts for the Cutters Choice tobacco. Mr Evans and Miss Hawley
retained the individual receipts for their tobacco purchases. Mr Crouch was
unable to point to the specific reference in the evidence about the Appellant
carrying receipts for the entire 12 kilograms of tobacco.
24.
The Tribunal considers that Mr Crouch at the time he made the decision had
solid grounds for his conclusion that the Appellant had misled the Officer
about the ownership of the 12 kilograms of tobacco. The Tribunal agrees with Mr
Crouch’s assessment of Miss Hawley’s interview that in view of her answers it
was highly improbable for her to spend ₤252 on hand rolling tobacco for
her own use. Mr Evans in interview confirmed that the tobacco had been
purchased for the Appellant. Although Mr Crouch was unable to substantiate his
assertion regarding the receipts, the Tribunal is satisfied that the weight of
the evidence from the interviews of Miss Hawley and Mr Evans constituted
persuasive grounds for his conclusion that the Appellant was the owner of the
12 kilograms of tobacco.
25.
The Tribunal considers the evidence given by the Appellant and Miss
Hawley did not undermine the reasonableness of Mr Crouch’s conclusion on
ownership. Miss Hawley essentially restated what she said in interview which
presented an unconvincing explanation for why she purchased the tobacco for her
own use. The Tribunal was not impressed with the Appellant’s ruse of queuing
twice to buy separate consignments of Cutters Choice hand rolling
tobacco. His knowledge of the particular shop and its restrictions suggested
that the Appellant was an experienced purchaser of hand rolling tobacco in
Adinkerke. Also the Appellant on his own account advised Mr Evans that he
should mislead Border Officers about smoking hand rolling tobacco. The Tribunal
considers the Appellant’s denial of ownership of the 12 kilograms of tobacco
was damaged by the identified inconsistencies in his testimony.
26.
The Tribunal is, therefore, satisfied of the reasonableness of Mr
Crouch’s conclusion that the Appellant misled the Officers on the ownership of
the 12 kilograms of tobacco
Sole Purpose of the Day Trips to Purchase Tobacco for resale at Profit (Flaws
4, 5, & 6)
27.
Mr Crouch took into account several factors in arriving at his
conclusion that the Appellant’s trips to the continent were for the purpose of
purchasing tobacco. Mr Crouch relied on what he saw as a contradictory account
given by the Appellant about whether he purchased tobacco when he last
travelled overseas with his brother. Mr Crouch considered that the Appellant
was somewhat vague in his answer about the number of trips made since December.
Mr Crouch brought into his reasoning the record of trips overseas made by the
Appellant, which showed 13 trips in a 14 month period equating to approximately
one trip a month. Next Mr Crouch referred to the cost of such trips which the
Appellant had said was ₤130 for a round trip which did not include the
price of the Eurotunnel ticket. Finally on the one occasion that the Appellant
was stopped he was found to be in possession of 12 kilograms of tobacco.
28.
The Appellant’s approach to this part of Mr Crouch’s review was to
select specific reasons and argue that they were not justified on the evidence
before Mr Crouch when he undertook his review. The Appellant contended that Mr
Crouch had misinterpreted his answer regarding the goods brought in with his
brother. The Appellant stated that it was unsurprising given the circumstances
that he did not remember the precise number of trips made since December.
Finally Mr Crouch’s conclusion that the Appellant purchased tobacco on the
other trips was extraordinary and without any evidential foundation.
29.
The Tribunal was not persuaded by the Appellant’s challenges. The
Tribunal considered that Mr Crouch’s interpretation of the facts surrounding
the selected reasons was feasible. In the Tribunal’s view, the Appellant did not
appreciate the cumulative nature of Mr Crouch’s reasoning which built up a
picture justifying the reasonableness of his inference that the sole purpose of
the day trips was to purchase tobacco for resale at a profit.
30.
The real weakness with the Appellant’s case was the absence of a
plausible alternative explanation for the regular day trips. The Appellant
asserted in his correspondence and in evidence that his primary purpose for the
frequent day trips was to find sites for his caravan which was stored in France. The Appellant, however, failed to produce evidence to corroborate his stated
purpose regarding the caravan.
31.
The Tribunal is, therefore, satisfied of the reasonableness of Mr
Crouch’s conclusion that the Appellant’s sole purpose in carrying out the day
trips to France was to purchase tobacco for resale at a profit.
The Remaining Parts of Mr Crouch’s Review Regarding the Circumstances of
the Importation
32.
Mr Crouch incorporated as part of his grounds for refusing restoration:
the large quantity of tobacco imported, the fact that the tobacco was paid for
in cash, the preparedness of the Appellant to write off the money spent (₤1,100)
on the tobacco by not challenging the seizure and that the Appellant had not
claimed that the tobacco was to be passed onto others on a not for profit
basis.
33.
The Appellant contested the validity of Mr Crouch’s inference from the
cash payments (flaw 7). Mr Crouch stated that cash payments were a common
feature of purchasing excise goods for commercial purposes. He pointed out that
most purchasers used credit or debit cards but smugglers paid by cash instead
so there was no evidence of the transaction in their bank statements. Further
payments by cash indicated that they had been paid cash in advance by their
customers.
34.
The Appellant argued that Mr Crouch went a step too far by alleging that
he was doing something dishonest. The Tribunal is not convinced with the
strength of the Appellant’s challenge on cash payments. The Tribunal considers
that Mr Crouch was entitled to draw on his experience when making inferences
from the facts, particularly as the Appellant offered no reason for the cash
payments. The Tribunal noted that the Appellant had two credit cards and one
bank card in his possession when he was interviewed by the Border Officers.
35.
Mr Crouch acknowledged that he made an error in his witness statement
about the date of the review which he put at 28 April 2011 instead of the
correct date of 7 June 2011. Mr Crouch, however, did not accept that he was
mistaken when he stated at page 7 of his written decision that an Officer had
written to the Appellant on the 7 June 2011 explaining the review process. The letter
shared the same date as Mr Crouch’s review. Mr Crouch pointed out that the
Respondents gave priority to a request for a review from a Member of Parliament
which had pre-empted the usual procedure of sending a letter acknowledging the
request and giving a date for completion of the review. On 16 June 2011 the
Appellant through his solicitor put forward a separate request for review which
Mr Crouch considered and decided on 21 June 2011 that it did not change his
decision of 7 June 2011.
Overall Conclusion of the Tobacco being held for a Profit
36.
Mr Crouch decided that the Appellant had purchased tobacco for resale at
profit. The Appellant’s commercial purpose was aggravated by his findings that
the Appellant misled the Border Officer over the ownership of the 12 kilograms
of tobacco, the frequency of his trips overseas to buy tobacco, and the
quantity of the tobacco imported which was four times the guide level of three
kilograms. The Appellant sought to undermine Mr Crouch’s rationale by giving
fresh evidence and challenging the evidential foundation for some of his
reasons.
37.
The Tribunal was not persuaded by the Appellant’s challenges. The
Appellant’s case was constrained by his failure to challenge the seizure of the
tobacco before the magistrates which meant that the starting point of Mr Crouch’s
review was that the tobacco had been imported for commercial purposes. The
Appellant did not proffer an explanation that the tobacco had been imported for
a not for profit reimbursement basis. Instead the Appellant persisted with his
assertion that the tobacco had been brought in for own use and gifts which as a
matter of law had to be disregarded by the Tribunal. The consequence of the
way that the Appellant presented his case was that the Tribunal had to treat
the importation as one for resale at a profit.
38.
The Tribunal examined each of the Appellant’s challenges to the
aggravating circumstances identified by Mr Crouch. The Tribunal was satisfied
that the substance of Mr Crouch’s findings was reasonably arrived at on the
facts before him at the time he made the review. There was no evidence that he
had regard to irrelevant factors and disregarded relevant ones. Mr Crouch’s
mistake on the correct review date in his witness statement was careless but did
not go to the subject matter of the review. The Appellant’s fresh evidence was
insufficient to displace the merit of Mr Crouch’s findings on aggravating
circumstances, and in some respects was deficient particularly the omission to
supply corroboration of the purported visits to caravan sites.
39.
Given the above findings the Tribunal is satisfied of the reasonableness
of Mr Crouch’s conclusion that the Appellant was holding the 12 kilograms for
resale at a profit, and that his illegal importation was aggravated by his
frequent trips to Belgium to buy tobacco, his attempt to mislead the Officer
and the large quantity of tobacco imported.
Proportionality
40.
The Appellant purchased the vehicle in 2006 for ₤26,818. The
Appellant believed the present value of the vehicle to be ₤12,102 plus
extras and low mileage. Mr Crouch stated that the trade value of the vehicle
was about ₤8,700. The value of the duty evaded by the Appellant’s illegal
importation was ₤1,822.80.
41.
The parties had different starting points for arriving at the value of
the vehicle. The variation in value was not significant in respect of the
question of proportionality. The Respondents accepted that the vehicle was of
high value which substantially exceeded the value of the duty evaded.
Proportionality, however, is not primarily concerned with the value
relationship between that of the vehicle and the duty evaded. Proportionality
in the context of non-restoration is assessed against the seriousness of the
contravention in the context of the policy objective to protect legitimate UK trade and revenue and prevent illicit trade in excise goods. In this respect Mr Crouch
properly addressed his mind to the law on proportionality as articulated in the
Court of Appeal decision in Lindsay v. Customs and Excise Commissioners [2002]
EWCA Civ 267
42.
Lord Phillips in Lindsay at paragraph 63 said
“Having regard to these considerations, I would not
have been prepared to condemn the commissioner's policy had it been one that
was applied to those who were using their cars for commercial smuggling, giving
that phrase the meaning that it naturally bears of smuggling goods in order to
sell them at a profit. Those who deliberately use their cars to further
fraudulent commercial ventures in the knowledge that if they are caught their
cars will be rendered liable to forfeiture cannot reasonably be heard to
complain if they lose those vehicles. Nor does it seem to me that, in such
circumstances, the value of the car used need be taken into consideration.
Those circumstances will normally take the case beyond the threshold where that
factor can carry significant weight in the balance. Cases of exceptional
hardship must always, of course, be given due consideration”.
43.
Lord Justice Judge in Lindsay at paragraph 72 said
“Given the extent of the damage caused to the public
interest, it is, in my judgment, acceptable and proportionate that, subject to
exceptional individual considerations, whatever they are worth, the vehicles of
those who smuggle for profit, even for a small profit, should be seized as a
matter of policy. However, the equal application of the same stringent policy
to those who are not importing for profit fails adequately to recognise the
distinction between them and those who are trading in smuggled goods.
Accordingly the policy is flawed”.
44.
Mr Crouch’s finding that the non-restoration of the vehicle was
proportionate even if there were no aggravating circumstances was consistent
with the judgment in Lindsay in that a commercial importation would
normally take the case beyond the threshold when non-restoration can be
considered.
45.
Mr Crouch, however, did not restrict his enquiry on proportionality to
the stated law on the subject. He went onto consider the particular
circumstances of the Appellant’s importation and whether the exceptions to the
Respondent’s general policy on non-restoration for improper importation or
transportation of excise goods applied. Mr Crouch decided that the exception
of small quantity of excise goods and first occurrence did not apply to the
Appellant’s importation. Further he considered that the aggravated
circumstances identified reinforced his view that non-restoration was
proportionate.
46.
The Tribunal finds no fault with Mr Crouch’s approach to the issue of
proportionality which was consistent with the stated law and took account of
the individual circumstances of the Appellant’s importation. The Tribunal found
Mr Crouch’s judgments on the individual circumstances reasonable in the
preceding sections dealing with the purported flaws in Mr Crouch’s decision
making.
Hardship
47.
The Appellant contended that he has suffered exceptional hardship
arising from the non-restoration of the vehicle. He stated that he was unable
to purchase a suitable replacement vehicle which he required to care for his
elderly mother and travel to work which was a thirty mile round trip. The
Appellant’s mother was 82 years old and in remission from bowel cancer. His
mother had sadly suffered three strokes and was currently on 16 different forms
of medication. The Appellant took his mother to Chesterfield Hospital for regular checks and he was the first contact in the case of an emergency with his
mother.
48.
Mr Crouch decided that the Appellant had not made out a case for
exceptional hardship. In his view the Appellant must expect some hardship from
his illegal act and that the circumstances relied upon by the Appellant were
not sufficient to justify a departure from the normal policy of non-restoration
for commercial importations. Mr Crouch pointed out that the Appellant had not
identified alternatives that his mother might use to travel to hospital, and
that there was another vehicle (Ford Fiesta) registered at the Appellant’s
address which the Appellant had used in travelling to France.
49.
The evidence given at the Tribunal revealed that the Appellant was the registered
keeper from 29 May 2011 of a Mitsubishi Shogun Warrior which was of similar age
and specification to the vehicle seized. The Appellant accepted that this
vehicle had his personal registration plates and that he was insured as the
principal driver for the vehicle. The Appellant, however, denied that the
vehicle was his to use, saying that it effectively belonged to his son who
worked away in Bolton. The Appellant explained that he insured the vehicle in
his name because the premium was considerably less than the one quoted to his
son. The Appellant saw nothing wrong in insuring the vehicle in his name as
principal driver rather than in his son’s name.
50.
The Appellant told the Tribunal that his mother lived alone in her own
home in Langwith which was some five miles away from the Appellant’s home. He
had a brother and sister who lived close to the Appellant’s mother. The
Appellant acknowledged that his sister at odd times cared for his mother. The
Appellant’s employment as an HGV driver took him all over the UK. He often worked a six day week and long hours starting at midnight.
51.
The Tribunal held strong reservations about the strength of the
Appellant’s pleas of exceptional hardship. The evidence given at the Tribunal
cast considerable doubt on the Appellant’s assertions that he did not have access
to a vehicle and that he was the principal carer for his mother. The evidence
disclosed that there were two vehicles registered at the Appellant’s address. In
the case of his mother the evidence showed that there were other family members
living close to her, and that the nature of his employment prevented him from
acting as the principal carer in person.
52.
The Tribunal, therefore, agrees with Mr Crouch’s finding that there was no
exceptional hardship in this case to justify non-restoration of the vehicle.
The Tribunal is satisfied that Mr Crouch gave proper consideration to the
hardship issues raised by the Appellant, and that the evidence at the hearing
confirmed the reasonableness of Mr Crouch’s assessment.
The Referees
53.
The Appellant submitted two referees which testified to his good
character and the Appellant’s dependence on a vehicle for his employment. The
references were dated 30 April 2011 and 8 June 2011. Mr Crouch mentioned the 30
April 2011 reference in his review, and in the Tribunal’s view had regard to it
when he considered the question of hardship. The Tribunal does not consider the
reference dated 8 June 2011 added a new perspective to the circumstances of the
Appellant’s illegal importation. The Appellant’s good character is not relevant
because of the Tribunal’s starting point of an illegal importation in cases
where seizure has not been challenged before the magistrates. The question of
the Appellant’s dependence on a vehicle has been fully aired under hardship.
Decision
54.
The Tribunal recognizes that the Appellant was extremely distressed by
his dispute with the Respondents, and that regretfully it has caused a rift
between the Appellant and his prospective son-in-law. The Tribunal’s
jurisdiction in non-restoration Appeals, however, is strictly circumscribed by
the law. The Tribunal has no power to consider the legality of the seizure and
is obliged to commence its enquiry on the basis that the Appellant’s
importation was for commercial purposes. The Appellant strongly feels that he
has done nothing wrong which is a matter for the magistrates not the Tribunal.
The Tribunal’s authority is further circumscribed by the wording of section
16(4) of the Finance Act 1994 which limits the Tribunal’s jurisdiction to
assessing the reasonableness of Mr Crouch’s review decision. The Tribunal
cannot substitute its own decision for that of Mr Crouch.
55. The Tribunal has
carried out in the preceding paragraphs an extensive examination of Mr Crouch’s
review. On the basis of its findings, the Tribunal is satisfied that Mr Crouch
applied the law correctly and took account of relevant considerations and disregarded
irrelevant matters in reaching his decision. The Tribunal, therefore, holds
that the Respondents’ decision on review dated 7 June 2011 refusing restoration
of the vehicle was reasonably arrived at within the meaning of section 16(4) of
the Finance Act 1994. The Tribunal, therefore, dismisses the Appeal.
56. The Appellant
raised the possibility of an application for costs if he was successful. In
view of the Tribunal’s decision, the Tribunal considers there are no grounds to
make an order for costs in favour of the Appellant.
57. 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: 4 April 2012
