[2012] UKFTT 326 (TC)
TC02012
Appeal number: TC
2008/8127
Excise Duty – tobacco –Goods condemned by magistrates-
HMRC decision not to restore – application to set aside direction to strike out
appeal.
FIRST-TIER TRIBUNAL
TAX CHAMBER
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ROB LEWIS
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Appellant
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- and -
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THE
COMMISSIONERS FOR HER MAJESTY’S
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Respondents
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REVENUE &
CUSTOMS
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TRIBUNAL:
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JUDGE CHARLES HELLIER
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DAVID EARLE
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Sitting in public in Plymouth on 5 December 2011 and on consideration after that date of Mr Lewis’s representations.
The Appellant did not appear
and was not represented at the hearing.
Miss Vahib instructed by the
General Counsel and Solicitor to HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT
2012
DECISION
1.
“When [HMRC] seize goods on the grounds that they have been illegally
imported two procedures are available under the Customs and Excise Management
Act 1979 (the 1979 Act) for resolving legal disputes about whether the owner
can get his goods back:
(a)
original proceedings by HMRC, to whom notice of claim has been given by
the owner of the goods. Those proceedings are brought in a magistrates’ court
or in the High Court for the condemnation and forfeiture of the goods.
(b)
Appellate proceedings in the First-tier Tribunal (the FTT), ... by the
owner of the imported goods. An appeal to the FTT lies against the review
decision on HMRC refusing the owners application to restore the seized
goods."
2.
Thus said Mummery LJ in HMRC V Jones [2011] EWCA Civ 824.
3.
This Decision relates to the second type of those proceedings. Tobacco
which Mr Lewis had sent from France was seized by the respondents. He required
HMRC to instigate condemnation proceedings in a magistrates’ court. HMRC
instigated such proceedings; at the hearing he did not turn up. The magistrates
condemned the goods as duly forfeit on 1 June 2009. Mr. Lewis then appealed
against that decision to the Crown Court in December 2010. He did not attend
the hearing. The appeal was dismissed.
4.
Mr. Lewis sought restoration of the goods from HMRC. They refused. He
asked for a review of that decision. On review by HMRC the decision was upheld.
He now wishes to appeal to the FTT against the decision not to restore the
goods. The grounds of his appeal are effectively that the goods were for his
own use and were therefore not illegally imported. In his letter of 16 August
2011 he says:
"I, together with Mr. Jason Aughton, Mr. Sean
Aughton and Mr. Jamie Griffiths, sent a quantity of hand rolling tobacco from France to the United Kingdom.
"As there is no limit to the amount of tobacco sent
from within the EU for personal use, or as gifts, I do not see how I broke the
law?
“I'm a disabled person, and receive £65 per week I cannot
afford the fine imposed, furthermore, I did not know of the date of the first court
date, and did not attend because [of] this. As soon as I realised I asked the
court to re-list for me."
5.
In July 2010 there was a preliminary hearing in this appeal. Mr. Lewis
did not attend. Judge Wallace directed that Mr. Lewis's appeal be struck out.
6.
Mr. Lewis then applied for Judge Wallace's decision to be set aside. A
hearing was set for 5 December 2011 to consider that application.
7.
Before the hearing HMRC applied to have Mr. Lewis' application struck
out because in the light of the decision of the Court of Appeal in HMRC v
Jones his appeal was hopeless, and he had failed to cooperate with the
tribunal. They sought the vacation of the hearing on 5 December. That
application however, was not made within the period required by rule 32(1) of
the Tribunal’s Rules and Judge Wallace directed that the hearing on 5 December
should proceed.
8.
Mr. Lewis did not attend the hearing. He e-mailed the tribunal two days
beforehand seeking postponement because of an unavoidable family crisis. We
decided to continue with the hearing in his absence.
9.
At the hearing we did not strike out his application. We directed that
Mr. Lewis provide further information about his reasons for not attending the
hearing before us, and that he should set out any arguments he had that his
appeal was not hopeless. We said that we would then determine the application.
10.
Mr. Lewis responded to that direction in good time. He explained that
his daughter was in a precarious mental condition and had attempted to harm
herself: he had found it necessary to take speedy action. Despite the lack of
any corroborative evidence we accept that this was the case and that it could
have been difficult for Mr. Lewis to attend or to obtain representation at the
hearing on 5 December 2011.
11.
Lewis also set out his argument in relation to the restoration of the
tobacco. He said
"My argument has always been that the tobacco I sent
from France, a member of the EU to the UK was not only to me but also my other
travelling companions. Only 3 kg of the tobacco was mine although we all had
some in the package. The others with me were Jason Aughton Sean Aughton Jamie
Griffiths, I believe that between us we did not breach any importation laws.
Because I have spent much time in Thailand I had missed the court hearings, not
having been in the UK to receive the summonses. The original magistrates
hearing should have been set aside in my opinion as I was unable to attend and
did not receive notification of the hearing."
The Relevant Law
12.
Mummery LJ explained the statutory framework which applies in cases such
as these in HMRC v Jones. He said --
"[35 ] Dutiable goods that are not declared on
importation are liable to seizure and forfeiture. ... in relation to anything
seized as liable to forfeiture section 139(6) provides that schedule 3 to 1979
act shall have effect.
"[36] Under paragraph 1 of schedule 3 HMRC are
required to give notice of the seizure of anything as liable to forfeiture of
the grounds therefor to the owner.
"[37] Under paragraph 3 any person claiming that
anything seized is liable to forfeiture is not so liable has one month from the
date of the notice of seizure in which to give notice of his claim in writing
to HMRC….
"[39] When notice of claim is duly given in
accordance with paragraph 3 and 4 it is provided in paragraph 6 that HMRC
"shall take proceedings for the condemnation of that thing by the court,
and if the court finds that the thing was at the time of seizure liable to
forfeiture the court shall condemn it as forfeited."
"[40] The proceedings for condemnation are civil
proceedings and maybe instituted either in the High Court or in a magistrates
court: paragraph 8. ...
"[41] Under separate provisions in the 1979 Act HMRC
have an administrative discretionary power to restore, subject to such
conditions (if any) as they think proper, anything forfeited or seized under
the Acts: section 152 (b).
"[42) The Finance Act 1994 provides that there is an
appeal procedure against a decision on restoration, which proceeds via a
request for a review under section 14 and the carrying out a review under the
procedure in section 15 to an appeal under section 16 against a review decision
to the FTT.
"[43] The appeal tribunal on an appeal is confined
to a power, where the tribunal are satisfied that HMRC could not reasonably have
arrived at the decision indeed, to require HMRC to conduct a further review of
the decision: section 16 (4)."
13.
If a Magistrate's Court condemns goods as forfeit its finding is binding
on other courts in the absence of a successful appeal against that magistrates
court's decision. That result follows as a matter of ordinary principles of
English law. It is not disturbed by the Human Rights Convention. As Buxton LJ
said in Gascoyne v CCE [2004] EWCA Civ 1162.
"There is no Convention objection to holding that an
actual finding in condemnation proceedings binds in a tribunal application be
it binding as to the decision as to the lawfulness of seizure, or binding as
the underlying facts.”
14.
HMRC v Jones related to the situation in which an individual had
goods seized but did not require HMRC to instigate condemnation proceedings. In
that case the goods were deemed by statute to have been duly condemned as
forfeit. It is thus related to the case where there had been no actual hearing
before magistrates. In that case the Court of Appeal held that the tribunal,
when considering an appeal against a decision not to restore goods, was
nevertheless bound by the deemed conclusion that the goods were forfeit even
though the individual had not had his day in Court. Mummery LJ said:
"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 seizure in the allocated court by invoking in
pursuing the appropriate procedure.
15.
The Court of Appeal thus found that there was no Human Rights
Convention argument which required or permitted the tribunal to reopen the
question which had been deemed by statute to be answered by the Magistrates
court.
16.
In a case where the individual does instigate proceedings, and the
magistrates actually condemn the goods, the argument that the tribunal should
not have power to reopen the question is even stronger. It is in our view absolutely
plain that the tribunal must proceed on the basis that the goods were legally
forfeit. That is the case even though Mr. Jones did not appear in the relevant
proceedings. If the proceedings were inadequate the proper place to challenge
them is not in this tribunal.
17.
Thus this tribunal is bound to proceed on the basis that the tobacco was
duly condemned as forfeit. That is what the Magistrate's Court decided.
18.
However a decision that goods were lawfully seized is not always the
same as a decision that the goods were not for the individual’s own use. For
example, if an individual’s goods were mixed with those of another person whose
goods were not for that person’s own use, then the taxpayer's goods, even if
they were for his own use, would have been lawfully seized and would be duly
condemned. But there is no hint of such an argument in the taxpayer's grounds
of appeal in this case. That would be the case only if the magistrates had
found that his goods were for his own use but those of his travelling companions
were not for their own use. That Mr Lewis does not suggest.
19.
Mr. Lewis speaks of the tobacco being legally imported. In the context
of restoration that must be taken to mean either that it was not lawfully
condemned or that it was for his own use notwithstanding its condemnation. But
neither of those contentions can survive before this tribunal: it is bound to
respect the magistrates' decision that the goods were lawfully condemned, and
that decision in these circumstances must carry with it the underlying factual
finding that the goods were for his own use.
20.
Mr. Lewis also speaks in a passage quoted at [4] above of a fine being
imposed. The matter before this tribunal is the decision of HMRC not to restore
the goods. If that decision is what Mr. Lewis means by a fine, then it may be
that Mr. Lewis is arguing that the failure to restore is in his circumstances a
disproportionate action. In our view it is not: if Mr. Lewis could afford the
tobacco the failure to restore it could not be disproportionate.
21.
Since the only other grounds of Mr Lewis’s appeal are that the goods
were for his own use (or for gifts), and that the goods were legally imported,
and because neither of those contentions can be entertained by the tribunal,
his appeal is hopeless. It should therefore remain struck out: it would not be
just to permit the appeal to be pursued.
22.
We decide that Judge Wallace’s direction to strike out Mr Lewis’s appeal
should not be set aside.
23.
This decision is not an excluded decision within section 11(5) Tribunals
Courts and Enforcement Act; as a result an appeal may be made against it on a
point of law if permission is given. 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.
CHARLES HELLIER
TRIBUNAL JUDGE
RELEASE DATE: 24 April 2012
