United Kingdom VAT & Duties Tribunals Decisions

You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> Ross (t/a G & G Mobile Stone Crushing) v Revenue & Customs [2008] UKVAT V20669 (06 May 2008)
URL: http://www.bailii.org/uk/cases/UKVAT/2008/V20669.html
Cite as: [2008] UKVAT V20669

[New search] [Printable RTF version] [Help]

Gordon Ross (t/a G & G Mobile Stone Crushing v Revenue & Customs [2008] UKVAT V20669 (06 May 2008)

20669

Excise – Aggregates Levy- Basis of assessment- Quarry- Sampling undertaken of stockpiled material – Subjection of samples to analysis – Results taken to be representative of material produced and sold over previous three year period – Whether or not assessment made to best judgment – Finance Act 2001 ss 16 and 17 and Schedule 5 para 2 – appeal allowed

BELFAST TRIBUNAL CENTRE

GORDON ROSS

T/A G & G MOBILE STONE CRUSHING Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: ALISTAIR F W DEVLIN (Chairman)

Sitting in public in Belfast on 21 September 2007

Brian Tilly of price WaterhouseCoopers, Belfast, for the Appellant

Mr Shaw on the instructions of the Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION

The appeal

This is an appeal by the Appellant against the decision arrived at by the Respondent to confirm following a review an assessment of aggregates levy. The assessment in question was made pursuant to paragraph 2 of Schedule 5 to the Finance Act 2001, and was notified to the Appellant by way of a Notice of Assessment dated 27 April 2006. The Respondent in due course undertook two review of that assessment under section 40 of the Finance Act, and ultimately notified the Appellant of the decision on further review to confirm the original assessment by letter dated 11 October 2006. By Notice of Appeal dated 20 October 2006 the Appellant now appeals to this Tribunal, upon the following grounds:-

"Unrepresentative sample of stone taken on which decision based. Content

and quality of the stone was not taken into account in the analysis carried

out by HMRC surveyor. Imposition of aggregate levy would render the

quarry uneconomic."

The issues at stake between the parties in this appeal are as to whether or not certain materials produced by the Appellant are or conversely are not properly subject to aggregates levy, and also the question as to whether or not samples relied upon by the Respondent for the purpose of its assessment were reliable and representative or otherwise.

The background to the appeal

The Appellant carries on in business as G & G Ross Mobile Stone Crushing from premises consisting of a quarry, situate at 33 Magheramore Road, Ballycastle, County Antrim ["the quarry"]. The Appellant provides stone crushing services to other quarries, but also as a sideline part of his business produces and deals in both taxable and non taxable aggregates. The Appellant has been involved in the quarrying business for at least 16 years. The Appellant first acquired the quarry in 2002, and has been duly registered for aggregates levy since that date.

In early 2006, two visits were made by representatives of the Respondent to the quarry. The first visit, in February, took place to the Appellant's Dundonald address, and the second visit was made to the quarry itself on 10 March 2006. During the course of the first visit, Mr Barry Greene, one of the Respondent's officers, ascertained that the Appellant was only charging and accounting for aggregates levy in respect of a limited number of the products which appeared on his product listing. The Appellant explained to Mr Greene that he was not applying the levy to all products that he sold at the quarry as a number of the products sold contained significant amounts of poor quality material, and that as a result he considered these products to be exempt from the levy. The Appellant insisted that the majority of the aggregates produced by him had simply been dug out, that they had been subjected to no secondary processing whatsoever, and that they therefore contained significant dirt deposits. The Appellant explained that he charged tax on finished product and not on dirty stone.

For the second visit, namely that made to the quarry in March 2006, Mr Greene brought with him Professor Peter Doyle, a consulting geologist. The Appellant conducted a tour of the quarry site, pointing out to the two men various types of aggregates. Professor Doyle proceeded to take samples from two piles of product stockpiled at the quarry, which he subsequently subjected to analysis. Professor Doyle upon carrying out his analysis found that the two samples recovered contained 73.33% and 79.99% respectively of taxable material. The Respondent accordingly found that neither sample met the criteria for exemption from aggregates levy, and that as a result the Appellant had underdeclared his liability to aggregates levy. On 27 April 2006 the Respondent issued an assessment to aggregates levy in the sum of £23,190 plus interest and penalties. This assessment covered the period between 1 March 2003 and 28 February 2006.

The Appellant sought in due course two formal reviews of this assessment. The Respondent in due course undertook a review and a further of the assessment under section 40 of the Finance Act, and ultimately notified the Appellant of the decision on further review to confirm the earlier assessment by letter dated 11 October 2006. The Appellant appeals in respect of that decision to the Tribunal.

The evidence

The Tribunal heard oral evidence adduced before it on behalf of the Respondent from Barry Greene, and from Professor Peter Doyle. Professor Doyle holds both a First Class Honours BSc degree and a doctorate in Geology, and is a Fellow of the Geological Society of London. The Tribunal also had evidence adduced before it from Frances Manley, a Review Officer working for the Respondent. On behalf of the Appellant, the Tribunal heard evidence from the Appellant himself, and from his expert witness, Dr Alastair Ruffell, also the holder of a Batchelor of Science Degree and a Doctorate in Geology, also a Fellow of the Geological Society of London, and a lecturer in Geology at Queen's University, Belfast. The Tribunal also viewed and considered extremely helpful photographic evidence of the quarry and its various external faces which was adduced before it by the Appellant.

The facts

The physical nature of the quarry is such that there are within its environs a wide variety of different types of rock and other materials sandwiched together on different levels. From the lowest level upwards, the various levels can be analysed as follows. The lowest level, which was referred to in evidence as Unit 1, contains good quality rock type material; during the period to which the assessment relates only limited amounts of this lowest level of material had been extracted or removed due to the access difficulties created by the presence immediately on top of this material of the various upper levels of material. Unit 1 was approximately 9 metres or thereabouts in thickness. Moving upwards, the next layer, Unit 2 was a layer of poor quality material, approximately 2 metres in thickness, consisting in the main of clay, lignite and sand. Moving further upwards, the third level, Unit 3 was again of generally poor quality material, varying in quality from poor to very poor and of approximately 6.5 metres in thickness. On top of this was a fourth layer of material, Unit 4, of approximately 15 metres in thickness, and consisting of good quality rock. This physical evidence, adduced before the Tribunal by Dr Ruffell was not disputed by the Respondent.

The Appellant's evidence was that in recent years the bulk of the material which had been extracted from the quarry had come from Units 2 and 3. Similarly, this was not disputed by or on behalf of the Respondent. All material extracted from the quarry was sold by the Appellant in one form or another, and no material produced from the quarry went to waste.

The facts and circumstances in which the two samples relied upon by the Respondent in connection with the computation and issue of its Notice of Assessment were as follows. The Appellant had been notified in advance of the fact that in March 2006 a representative from the Respondent was going to attend at the quarry, and that this representative was going to be accompanied by a second person who would want to take samples. When Mr Greene and Professor attended at the quarry, they were given free access to all parts of it by the Appellant, who was personally in attendance. The Appellant informed the Respondents representatives that they were at liberty to look wherever they wished, and to take samples of whatever they wanted to sample. Within the confines of the quarry site on the day of the visit, there were at least five extensive mounds of material being stored in stockpile form. Each pile would on the day in question have contained anything between 10 and 15 thousand tonnes of material.

Professor Doyle took his samples from two out of these five piles of stockpiled materials. He did not take any other or additional samples. Professor Doyle in so doing did not seek or obtain any indication either from the Appellant, or indeed from elsewhere, to suggest that the two samples which he was taking from two out of the five stockpiles of material available to him were necessarily representative of the products being sold by the Appellant at that time, or if so to what extent. Nor did Professor Doyle seek or obtain any confirmation that the samples taken by him, or indeed the five stockpiles of material available within the quarry at that time were representative of the products or material which would have been available within the quarry during any previous period, in particular the period to which the subsequent assessment related to. Indeed Mr Greene in his evidence very fairly accepted that no steps had been taken either by him or by Professor Doyle to invite the Appellant to identify for sampling such materials as might be fairly representative either of the materials present within the quarry at the date of the visit, or produced and sold from out of the quarry during any previous period.

The Tribunal accepts that whilst the Appellant was certainly aware in advance of the visit taking place that samples were going to be taken from the contents of the quarry, he was not aware of the fact that it was intended to take representative samples. Nor was the Appellant aware, nor does the Tribunal consider he could realistically have been expected to have been aware of the full extent to which the samples recovered were going to be regarded as being representative.

The sampling process was accordingly not one in which the Appellant was in any way involved, nor was it explained to him in advance what it was hoped or intended the actual sampling undertaken would establish or demonstrate or was hoped to be able to establish or demonstrate. The Appellant certainly did not in any way actively participate in or interfere with the sampling process. The Appellant was certainly not aware of the fact that it was intended to take samples which might subsequently be taken to be representative not only of the materials stockpiled within the quarry at the date of sampling, but additionally representative of the material which the quarry would have produced and sold during the three year period covered by the subsequent assessment, namely the period between 1 March 2003 and 28 February 2006. In the further review decision of the Review Officer, it was subsequently claimed on behalf of the Respondent that the Appellant had been 'actively involved in the selection process' so as to ensure that the samples taken were 'representative of the material being exploited'. We find absolutely no factual basis for this assertion.

The two samples taken for analysis by Professor Doyle were from stockpiled products in respect of which the Appellant was not charging aggregate levy. The first of these was, '28mm graded to dust', product No. 112 on the pricelist of products produced by the quarry in January 2003, and the second of these was '38mm crusher run', product 119 on the same pricelist. Professor Doyle produced a report in respect of his findings dated March 2006. The contents of this report were adduced in evidence before the Tribunal by Professor Doyle. Professor Doyle upon carrying out his analysis found that the two samples recovered contained 73.33% and 79.99% respectively of taxable material. Mr Greene on behalf of the Respondent accordingly concluded that neither of the samples met the criteria for exemption from the levy. He further concluded that aggregates levy should have been accounted for by the Appellant on all those sales of aggregate which the Appellant had previously classified as having been exempt on the returns submitted by him over the previous three years.

In his evidence, Dr Ruffell was critical of the significance which had been attached by the Respondent to the two samples taken by Professor Doyle on the date of the visit made to the quarry in March 2006. No criticism was however made of the sampling techniques adopted, nor of the various analytical processes which had been applied by Professor Doyle to the samples in question.

In a letter to the Appellant dated 11 April 2006 Mr Greene informed the Appellant of Professor Doyle's findings in respect of the samples taken, and went on to assert that as neither of the samples taken met the criteria for exemption from the levy, Aggregate Levy should have been accounted for on those sales of aggregate which the Appellant had previously classified on his returns as having been exempt. Mr Green enclosed a calculation in respect of the alleged underdeclaration of tax, which covered the period from 05/03 through to 02/06. Subsequently, the Respondent duly forwarded to the Appellant the disputed Notice of Assessment, in the total sum of £27,024.50 inclusive of interest and penalties.

By letter dated 29 April 2006 the Appellant indicated that he did not agree with the assessment provided, and he requested a formal departmental review. By further letter dated 3 May 2006 the Appellant invited the Respondent to attend at a further site visit. In that letter the Appellant:-

"This is in order that I can clearly show that the quarry faces consist

of approximately 70% of unsuitable material for further processing

into aggregates to meet specification…..I can demonstrate that within

the quarry face we have a variation of coal/sand/clay/soil etc. Having

read the guidance notes when the levy was introduced, I have always

been of the opinion……………….that the quarry face consists of more

than 50% of the materials listed above".

By letter dated 4 May 2006 the Respondent wrote to the Appellant confirming that his letter dated 29 April had been treated as a request for a formal Departmental Review. In that letter, no reference was made to the invitation for a further visit. However, the Respondent did inform the Appellant that if he had any information which he thought should be taken into account, and which he had not already mentioned, he should forward the details in question.

On 11 May 2006 Dr Ruffell produced a report in respect of the quarry, and provided the same to the Appellant, who forwarded a copy to the Respondent. The contents of this report were adduced in evidence before the Tribunal by Dr Ruffell. In the Conclusions to his report, Dr Ruffell observed as follows:-

"The material examined in bulk on the quarry face in Unit 2 and Unit 3

[which has according to Mr Gordon Ross been the bulk of the material

recently won and sold from this quarry operation] is generally of very

variable quality. Much of the material in these geological Units [likely

in excess of 50%] is organic [lignite] or clayey and sandy in nature and

could not be used for construction purposes such as in engineering fill

or for the purposes of making structural concrete, tarmacadam or coated

roadstone.

Only after considerable processing [crushing, screening and washing]

could some small percentage [less than 50%] of the material in these

Units be used as hard aggregate."

In the letter dated 12 May 2006, under cover of which he forwarded to the Review Officer a copy of Dr Ruffell's report, the Appellant made the following observation:-

"The tests carried out by Professor Peter Doyle, on your behalf, were only on a small percentage of material that had been processed from 'unit 2' and is no way representative of the bulk product.

The survey undertaken by Queen's University, however, was extensive

And took into account the overall area of the quarry and illustrates the

poor quality and that over 50% is of organic [lignite] or clayey and sandy in nature. The report states that with much processing, a very small proportion of good quality material could be obtained from 'unit 2'.

Professor Doyle then provided a written report dated June 2006 by way of a response to the analysis carried out on behalf of the Appellant by Dr Ruffell of Queen's University, Belfast. The contents of this report were adduced in evidence before the Tribunal by Professor Doyle. In a covering letter dated 12 June 2006 sent by him to the Respondent, Professor Doyle, referring to the Queen's University report, stated as follows:-

"I do not disagree with the basic findings of their report, which is in tune

with what I found during my site visit. However, their assessment that

the stockpiles contain greater than 50% exempt material appears to be

based on the assertion by Mr Ross that the majority of the material in the stockpiles derives from their Unit 2, consisting of sands and organic

clays/lignite. No quantitative assessment was carried out to demonstrate

the veracity of this statement.

My original report demonstrates that there is a significant amount of

crushed basalt in these stockpiles [at least 75%]. It therefore seems unlikely that the material was won from unit 2 alone [a minor part of the quarry face], and more likely that the face containing unit 2 was worked as a whole, which would reduce the potential exempt fraction dramatically, and would be consistent with the presence of significant amounts of crushed basalt. As such, as they stand currently, the two stockpiles sampled could not be considered as having greater than 50% exempt aggregate, and, in my opinion, it is likely that the others within the quarry would provide similar results."

In her review decision dated 15 June 2006, the Review Officer, stated as follows:-

" I have examined all the information presented to me. I am satisfied that

levy is due on aggregates removed for commercial exploitation at the

appropriate rate. ………….

If material is exempt from the levy, it must meet the exemption criteria

when it is subject to commercial exploitation, not at an earlier stage in

the quarrying process…………

I note that Professor Doyle took samples from materials stockpiled within the quarry. These samples were taken in your presence and with your agreement. They were formally tested in accordance with British Standard guidelines BS 812:104. You were advised of the test results.

I note that you presented a survey from Queen's University to me which

I consider to be fresh evidence.

During my review, I asked Professor Doyle to consider this fresh evidence. He has advised me that, it does not change his view that your aggregate is fully taxable. I enclose copies of his comments for your information. I also forwarded a copy of the Queen's University report to Mr Greene. Mr Greene was unable to comment on the technical aspects of the report. He did note that you subject your aggregate to crushing, screening and washing. Although the aggregate may be over 50% exempt prior to processing, when you sell it [ie. after processing] it appears taxable [as concluded by Professor Doyle].

I am satisfied that aggregates levy is due on your entire product. I am

satisfied that the disputed assessment has been correctly raised and so is to be maintained."

A further review was requested on behalf of the Appellant by letter dated 21 August 2006, and duly took place. Ms Manley, the Review Officer, in her further letter dated 11 October 2006, stated that she had not been presented with information such as to cause her to alter her view that the disputed assessment had been correctly raised and should be maintained.

The legislative framework

Section 16 of the Finance Act 2001 provides, insofar as relevant, as follows:

"[1] A tax to be known as aggregates levy, shall be charged in accordance with this Part on aggregate subjected to commercial exploitation.

[2] The charge to the levy shall arise whenever a quantity of taxable aggregate is

subjected, ……… to commercial exploitation in the United Kingdom.

[3] The person charged with the levy arising on any occasion on a quantity of

aggregate subjected to commercial exploitation shall be the person responsible for its being so subjected on that occasion.

[4] The levy shall be charged at the rate of £1.60 per tonne of aggregate subjected to commercial exploitation; and the amount of levy charged on a part of a tonne of aggregate shall be the proportionately reduced amount."

23. Section 17 of the Act goes on to provide, insofar as relevant, as follows:

"[1] In this Part "aggregate" means …………….. any rock, gravel or sand,

together with whatever substances are for the time being incorporated in the rock, gravel or sand or naturally occur mixed with it.

[2] For the purposes of this Part any quantity of aggregate is, in relation to any

occasion on which it is subjected to commercial exploitation, a quantity of

taxable aggregate except to the extent that:

[a] it is exempt under this section;

[b] it is, or derives from, any aggregate that has already been subjected to a charge to aggregates levy;

[4] For the purposes of this Part a quantity of any aggregate shall be taken to be a quantity of aggregate that is exempt under this section if it consists wholly or mainly of any one or more of the following, or is part of anything so consisting, namely—

[a] coal, lignite, slate or shale;

[f] clay, soil or vegetable or other organic matter."

Paragraph 2 of Schedule 5 to the Act goes on to provide the basis upon which the Respondent is to arrive at an assessment in respect of aggregates levy, in the following terms:-

"[1] Where it appears to the Commissioners –

[a] that any period is an accounting period by reference to which a person is liable to account for aggregates levy

[b] that any aggregates levy for which that person is liable to account by

reference to that person has become due, and

[c] that there has been a default by that person that falls within sub- paragraph [2] below, they may assess the amount of the levy due from that person for that period to the best of their judgment and notify that amount to that person,

[2] The defaults falling within this sub-paragraph are –

[d] the making, in purported compliance with any requirement of any such

provision to make a return, of an incomplete or incorrect return."