Amanda Broome v Director of Border Revenue [2013] UKFTT 228 (TC) (12 April 2013)
[2013] UKFTT 228 (TC)
TC02642
Appeal number: TC/2011/03997
EXCISE DUTY RESTORATION OF
VEHICLE – vehicle restored for fee representing excise duty on goods seized
(hand rolled tobacco) – level of fee – non-apportionment of fee to goods
attributable to appellant – appellant offered to pay fee – appellant incurred
other costs relating to seizure and restoration – whether decision to restore
for fee should have been made sooner – whether decision one that could not
reasonably have been arrived at? –no - appeal dismissed
FIRST-TIER TRIBUNAL
TAX CHAMBER
|
|
AMANDA BROOME
|
Appellant
|
|
|
|
|
|
|
- and -
|
|
|
|
|
|
|
|
DIRECTOR OF
BORDER REVENUE
|
Respondents
|
|
|
|
|
|
TRIBUNAL:
|
JUDGE SWAMI RAGHAVAN
|
|
|
ELIZABETH BRIDGE
|
Sitting in public at Bedford Square , London on 4 April 2012 and 14 September 2012
Mrs Amanda Broome in person
Mr Edward Culver, Counsel for
the Respondents
© CROWN COPYRIGHT 2013
DECISION
Introduction
1.
Mrs Broome appeals against a decision of the UK Border Agency (“UKBA”)
of 21 June 2011 restoring her car for a fee of £1940.00. The decision amended
an earlier decision of 5 May 2011 which refused restoration of the car.
2.
The car, a Ford Kuga, registration number EN10 CDK, was seized on 12
March 2011 following the seizure of 15kg of hand rolling tobacco upon which
excise duty of £1,943.85 had been evaded. The appellant was travelling with her
husband, Ian Broome and another couple.
3.
The appellant argues the fee required by UKBA was unreasonable. In
particular the fee did not take into account that only a proportion of the
goods were for the appellant and it was unfair in view of other costs including
legal costs the appellant had incurred in the car having been seized and in
getting her car back. She also argues the decision to restore for a fee should
have been reached sooner than it had been.
4.
UKBA argue the decision to restore for the fee was in accordance with
its policy, that it was reasonable, and that the timescale over which the
decision was taken was also reasonable.
5.
The hearing had been adjourned from 4 April 2012 as UKBA’s witness was
unavailable for cross-examination due to medical reasons.
Evidence
We had before us
a bundle of documents produced by UKBA. This included UKBA’s notes of the
initial interception and interview of the appellant and other occupants of the
vehicle and correspondence between the appellant and UKBA. It also included
copies of documents produced by the appellant covering details of fees incurred
in relation to representation and in relation to the eventual retrieval of the
car. We heard evidence from David Harris the UKBA officer who made the
decision which is the subject of the appeal, and Mrs Broome had the opportunity
to ask Mr Harris questions. Mrs Broome represented herself and in the course of
her submissions gave evidence upon which UKBA were able to ask questions.
Facts
6.
On 12 March 2011 the appellant’s vehicle was stopped by UKBA officers at
the UK Control Zone at Coquelles. The appellant had been away for the day to
Brugge along with her husband Ian Broome and two friends of the family Andrew
Lang and Trudie Alger and they had between them bought 300 pouches of hand
rolling tobacco with a weight of 15kg. The goods were paid for on the
appellant’s Tesco credit card which enabled her to collect Tesco clubcard
points on the purchase.
7.
The four occupants were interviewed. The officer came to the view the
tobacco was not for own use and was held for a commercial purpose. The tobacco
was seized under s139(1) of the Customs and Excise Management Act 1979 (CEMA)
as being liable to forfeiture and the car was seized as being liable to
forfeiture because it was used for the carriage of goods liable to forfeiture.
8.
The appellant took initial steps to challenge to the legality of the
seizure in the magistrate’s court.
9.
On 14 March 2011 the appellant wrote to UKBA to make representations in
relation to the return of the vehicle.
10.
On 25 March 2011 UKBA Officer Harvey wrote to the appellant refusing to
restore the vehicle.
11.
On 1 April the appellant’s solicitor requested a review of the decision.
The officer wrote on 5 April 2011 inviting submissions of further information.
Further correspondence ensued between that date and 4 May 2011.
12.
On 8 April 2011 the appellant sent a letter by fax and post to the
Acting Chief Executive of UKBA. The letter included the following:
“On the 28th March I received a letter
stating that the amount of excise duty on the whole seizure would be £1943.85.
I spoke to the other members of my party and it was agreed I would telephone to
pay this duty in order to get the goods and the car back. The letter also
stated that the car would not be restored! I immediately telephoned to pay the
duty and was informed that I could not to this.”
13.
On 5 May 2011 Mr Harris wrote to the appellant refusing to restore the
vehicle.
14.
On 17 May 2011 the appellant wrote to UKBA making further
representations as to why the vehicle should be restored. The letter included
the following:
“I hope that you will re-consider your decision and
the matter can be resolved upon repayment of the Excise Duty payable…I request
again that HMRC accept payment if the Excise Duty by way of “fee” and restore
my vehicle…”.
15.
The letter also mentioned the car was purchased less than 6 months ago
for £19,000.
16.
On 18 May 2011 the appellant was informed by UKBA that Officer Harris
was on leave and would not be back until early June.
17.
On 27 May 2011 the appellant’s representative informed UKBA the
appellant was withdrawing from proceedings in the magistrates court referring
to reasons of costs and because of the implications of the other members of her
party not contesting those proceedings. On the same day the appellant lodged
her Notice of Appeal with the Tribunal.
18.
On 21 June 2011 Mr Harris wrote to the appellant and having reviewed the
decision further made an offer for restoration of the vehicle for a fee of £1940.
19.
In the letter Mr Harris stated he was:
“…exceptionally going to deviate from the general
policy in such cases and extend to you the benefit of the doubt and offer
restoration of the vehicle for a fee based on the excise duty evaded. The
decision is made on humanitarian grounds.”
20.
In an e-mail dated 29 June 2011 the appellant’s representative enclosed
a copy of the revised decision and confirmed to the Tribunal that the appellant
wished to pursue her appeal against the revised decision.
21.
On 7 July 2011 the Tribunal informed the parties that the appeal would
continue under the same reference number but with substitution of the appealed
decision with UKBA’s decision of 21 June 2011.
22.
Shortly afterward the same month the appellant paid the fee and vehicle
was restored to her.
Law
23.
Under Section 141(1) CEMA a vehicle is liable to forfeiture if it used
for the carriage of the seized goods.
24.
Section 152 CEMA provides:
“The Commissioners may, as they see fit,
…b) restore, subject to any conditions (if any) as
they think proper, anything forfeited or seized ….”
25.
The provisions of the Borders, Citizenship and Immigration Act 2009
enable UKBA to exercise customs functions at the UK border and provide for
legislative references to the Commissioners to be read accordingly.
26.
The powers of the Tribunal in relation to UKBA’s decision are set out in
s16(4) of the Finance Act 1994. This provides:
“…the powers of an appeal tribunal on an
appeal…shall be confined to a power, where the tribunal are satisfied that the
Commissioners or other person making that 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 review or further review as
appropriate of the original decision; and
c) in the case of a decision which has already been
acted on or taken effect and cannot be remedied by a review or further review
as appropriate, to declare the decision to have been unreasonable and to give
directions to the Commissioners as to steps to be taken for securing that
repetitions of the unreasonableness do not occur when comparable circumstances
arise in the future.”
Appellant’s arguments
27.
The appellant argues it was unfair of UKBA to seek a fee of £1940 in
view of the following.
(1)
The amount corresponded to the whole amount of duty on the tobacco
rather than the proportion attributable to her.
(2)
She had already incurred significant costs as a result of the seizure of
the car and in retrieving the car.
(3)
The context in which the appellant had made an offer to pay an amount
representing the duty on the goods was from sheer desperation to get the car
back.
(4)
The decision to restore for a fee ought to have been made at the outset.
28.
The appellant disputed that the tobacco was held for a commercial
purpose. The appellant had begun to contest this in condemnation proceedings in
the magistrates court but these had to withdrawn because of the costs.
Respondents’ arguments
29.
The Respondent argues that the decision to restore the vehicle for a fee
the appellant had offered and which represented the unpaid excise duty was a reasonable
decision. The seized goods were for profit and in those circumstances the
return of the vehicle for a fee was a concession from the normal application of
UKBA’s policy which would have resulted in the car not being restored.
30.
The calculation of the fee by reference to the duty evaded was
reasonable and it was reasonable to calculate this on the whole amount rather than
on the amount of tobacco attributable to the appellant.
31.
The length of time to make the decision given the train of
correspondence was reasonable. Even if the Tribunal did not think the decision
was reasonable the threshold was that of showing that the decision could not
reasonably have been arrived at and that threshold was not met on the facts of
this case.
Discussion
Tribunal’s powers given vehicle had
already been returned and fee paid
32.
The appellant had the car restored to her upon payment
of £1940 in June 2011. The issue was raised at the hearing on 4 April 2012 and in
correspondence preceding this hearing as to whether the Tribunal could in these
circumstances nevertheless deal with issues as to the level of the fee charged.
33.
The Tribunal’s powers under s16(4) Finance Act 1994 are
set out above at [26]. Given, for example, the power in subparagraph c), which
refers to the tribunal being able to declare a decision to have been
unreasonable and to give directions to the Commissioners so as to secure that
future repetitions of unreasonableness do not occur, we think it is clear that
the Tribunal is not deprived of jurisdiction to hear an appeal where the
reasonableness of the fee is in issue even if the vehicle has been restored and
the fee paid. At the hearing Mr Culver, correctly in our view, did not seek to
argue otherwise.
34.
Before the Tribunal can exercise any of the powers set
out in s16(4) Finance Act 1994 it must however be satisfied in relation to the
decision that “the Commissioners or other person making [the] decision could
not reasonably have arrived at it...”.
35.
It is not for the Tribunal to re-make the decision
afresh but to consider whether in reaching its decision UKBA took account of
all relevant matters, did not take into account irrelevant matters and did not
make an error of law.
36.
In examining UKBA’s decision there are some issues the
Tribunal may not consider. To the extent the appellant argues that the tobacco
was not held for a commercial purpose this is not something the Tribunal is
able to consider following the Court of Appeal decision in Jones v Jones [2011] EWCA Civ 824. That issue and any issue as to the legality of the seizure had to
be addressed in condemnation proceedings. The fact that the appellant states
she withdrew from such proceedings due to reasons of cost does not alter the
position that the tribunal cannot consider the issue of whether the goods were
held for a commercial purpose.
Mr Harris’s decision to restore for a fee
37.
Mr Harris’s decision of 21 June 2011 was in response to
the appellant’s letter of 17 May 2011 which in turn responded to Mr Harris’s
original decision letter of 5 May 2011. That letter contained a summary of
UKBA’s policy for the restoration of private vehicles.
38.
The general policy is stated to be that private
vehicles used for the improper importation or transportation of excise goods
should not normally be restored. The policy draws a distinction between “not
for profit” cases which are described as cases where the goods are not for own
use but are to be passed on to others on a not for profit reimbursement basis
and “for profit” cases. In “for profit” cases the vehicle is not normally
restored but the circumstances of the quantity of excise goods being small and
the importation being a first occurrence are cited as an example where UKBA
might decide to restore subject to conditions e.g. a fee.
39.
In relation to “not for profit” cases for a first
“aggravated detection” the policy states the vehicle will normally be seized
and restored for 100% of the revenue involved. Aggravating circumstances are
defined as including where large quantities for example more than 6kg of
handrolling tobacco. In his letter of 17 May 2011 Mr Harris explained that as
no claim had been made that the goods were to be passed on to others on “not
for profit” reimbursement basis Mr Harris had concluded the goods were held for
profit the policy was not to restore the vehicle. He also considered the issue
of whether there was exceptional hardship arising from the difficulties the
appellant faced in transporting her disabled father-in-law but concluded that
this was not a reason to restore noting that records indicated to him that the
appellant was shown as a keeper of another vehicle.
40.
While UKBA’s policy is not something which binds this
Tribunal it is relevant to our consideration of the decision to look at whether
Mr Harris acted in accordance with the stated policy on the basis that if he
did not this would on the face of it indicate the decision was not one which
could reasonably have been arrived at. We note that although Mr Harris’s
decision of 21 June 2011 to restore the vehicle for a fee was a departure from
the summarised policy (in that vehicles would not normally be restored in “for
profit” cases where the quantities were not small) it was one which was
favourable to the appellant. From the correspondence and evidence before us
there was nothing to suggest Mr Harris was wrong in concluding that the goods
were not to be supplied to others on a reimbursement basis. The appellant had
not claimed this and the evidence supplied did not support such a conclusion.
Although the conclusion was that this was not a “not for profit” case, the
calculation of the fee was made by reference to the amount that would have been
calculated had there been a restoration for a fee for a first time detection of
a “not for profit” case i.e. 100% of the excise duty on the goods.
41.
Mr Harris also explained to us that when he saw the
appellant’s offer to pay the excise duty outstanding he thought restoration for
a fee of that amount would be reasonable.
42.
He explained that the price of the car is not taken into account except
in so far as it acts as a cap so that if the duty evaded was greater than the
value of the car the fee would not exceed the value of the car. The appellant’s
letter of 17 May 2011 refers to the car being bought for £19,000 six months
earlier so the cap was not engaged.
43.
There are a number of aspects relating to the fee which
the appellant say made it unfair. We must consider these from the point of view
of whether the amount of the fee was one the decision maker could not
reasonably have arrived at.
44.
The appellant argues that if a fee was to be charged it
should have been apportioned to the duty on her share of the goods. We note
that the circumstances of the trip were that the two couples who knew each
other well and had been on a shopping trip together. It was a joint expedition,
the appellant was aware of the quantities of goods having paid for them on her
credit card and allowed her car to be used to bring the tobacco in. That Mr
Harris did not apportion the duty payable in calculating the fee in such circumstances
does not strike us as unreasonable.
45.
The fact that the fee was linked to the amount of duty
on the goods seized did not appear to us to be unreasonable given the
legislative basis upon which the vehicle was seized was because it was used for
the carriage of goods liable to forfeiture.
46.
Mr Harris’s decision was also influenced by the
appellant offering to pay a fee for an amount representing the duty on the
goods. The appellant says she made the offer in
desperation and that she would, in her words, have done anything to get the car
back. We accept that was her genuine sentiment and that that was the context in
which she made the offer. But, we do not think that means it is unreasonable
for Mr Harris to have taken account of her offer in setting the fee especially
as it was an offer which was not out of step with the fee that would have been
charged if UKBA had accepted the goods were “not for profit” under their
policy.
47.
The appellant also referred us to the fees she had incurred which came
to £4,274.11. As well as including the fee of £1940 it covered the loss of the
seized goods and the taxi fare home after seizure divided by 4, legal fees
incurred, road tax lost, insurance lost due to cancellation, bus fares, and petrol
costs in retrieving the car. The appellant felt it was unfair that she had to
suffer these costs. We cannot deal with a generalised complaint of unfairness, but
we can consider whether the lack of account being taken of the costs when
determining the fee was something that meant the decision was not reasonably
arrived at.
48.
We note however that all of these items arise in some way from the
seizure of the goods and vehicle and the vehicle’s restoration following its
seizure. As mentioned above the legality of the seizure cannot be an issue in
these proceedings. In our view there is no merit in any argument that Mr Harris
did not reach his decision reasonably because he did not take account of costs
arising from the legal seizure of the goods and the vehicle and the costs
incurred in retrieving the vehicle.
49.
The decision to restore for a fee of £1940 was in our view not
unreasonable or disproportionate taking account the circumstances of the case.
50.
As to the appellant’s complaint the decision to restore could have been
reached sooner, the Tribunal’s focus as outlined above must be to look at the
reasonableness of the decision of 21 June 2011, whether relevant factors were taken
into account, irrelevant factors were disregarded and whether there was any
error of law.
51.
The chronology of what was disclosed to whom and when may of course be
relevant considerations when assessing what factors were and were not taken
into account and it is possible to envisage situations where the delay in
considering evidence or representations is so significant that the tribunal
comes to the view the decision maker could in those circumstances not be said
to have reasonably arrived at the decision. That is not the case here. The
appellant made an offer to pay amount representing the duty on 8 April 2011. Mr
Harris did not see this letter, it was addressed to the Acting Chief Executive
of UKBA but even if the letter is to be treated as received by him we cannot
assume Mr Harris’s decision to restore for a fee would have been made then
given the offer was in relation to both the goods and the car and as accepting
it would have been a departure from the stated policy. Reviewing the train of
correspondence, to the extent there were any delays, they were not unreasonable
and they certainly were not so significant as to provide a reason for why the
decision of 21 June 2011 was a decision that could not reasonably have been
arrived at.
Conclusion
52.
In the circumstances of this case it was not unreasonable to calculate
the fee by reference to the duty evaded, to take account of the offer the
appellant made and to not apportion the duty to the amount of tobacco
attributable to the appellant. The decision to restore the vehicle for a fee of
£1940 was one which was within the range of reasonable decisions open to UKBA
in exercising its discretion to restore vehicles subject to such conditions as
they think proper. The considerations Mr Harris took account of were relevant
and he did not take into account irrelevant considerations. We can discern no
error of law in the decision. It has not been demonstrated to us the decision
was one that could not reasonably have been arrived at and accordingly the
appellant’s appeal is dismissed.
53.
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.
SWAMI
RAGHAVAN
TRIBUNAL JUDGE
RELEASE DATE: 12 April 2013
