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United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> McKay v Customs & Excise [2003] UKVAT(Excise) E00432 (07 July 2003)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00432.html
Cite as: [2003] UKVAT(Excise) E432, [2003] UKVAT(Excise) E00432
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Restoration of vehicle – registered owner co-habitee of importer of excessive quantity of excise goods not for own use – whether exceptional circumstances – no – whether refusal to restore reasonable – yes – appeal refused.
EDINBURGH TRIBUNAL CENTRE
TRICIA LYNN McKAY Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: T GORDON COUTTS, QC (Chairman)
Sitting in Aberdeen on Thursday 26th June 2003.
for the Appellants The Appellant appeared on her own behalf
for the Respondents Andrew Scott, Shepherd & Wedderburn, WS
© CROWN COPYRIGHT 2003.
DECISION
Ms McKay appealed against a Decision of the Commissioners made pursuant to Customs & Excise Management Act 1979 Section 152(b), not to restore her vehicle a Vauxhall Vectra registration number V758 GUX seized on 16 December 2001. After requests for restoration were made on 8th and 15th January 2002 a Decision to refuse restoration was made on 22nd February 2002. As requested the Respondents conducted a review of that Decision and upheld it on 15th May 2002. It was appealed. On 22nd October 2002 the Tribunal directed that the appeal be sisted until the release of the Decision of the Court of Appeal in R (Hoverspeed & Others) v the Commissioners. The Respondents then conducted a fresh review of the original Decision refusing restoration of the vehicle. The new Decision was again to uphold the original Decision not to restore. It was made on 13th March 2003 and is the Decision now appealed.
BACKGROUND FACTS
The Tribunal heard evidence from the Appellant and had before it the documents which were available to the Review Officer, Officer Truscott, which was fully set out in his decision letter. It is detailed and outlined the applicable legislation and the matters of fact before him.
Although the Appellant and her co-habitee, Mr McAtasney, separated about summertime 2002, they resumed co-habitation briefly, but have now again separated, at all material times relevant to the seizure and subsequent correspondence, they were in fact co-habiting. They had a fund which the Appellant thought was for Christmas use. On 15th December 2001 Mr McAtasney was in the Appellant's vehicle, being driven by a Mr Oag when it was stopped at Dover Eastern Docks. They were there interviewed. Mr Oag first stated that he had bought 3 packs of cigarettes each and 5 cases of beer. On further pressing Mr McAtasney said he had 6 packs of 10 pouches of hand-rolling tobacco and Mr Oag said he had the same. That declared quantity was about 6 kilos. On examination of the boot of the vehicle the actual quantity of hand-rolling tobacco found was 60 kilos. Mr Oag then claimed half the total was his, he said that he thought the importation would last about 8 or 9 months but he could not say how many cigarettes he obtained from a pouch of tobacco. His claimed consumption would amount to about 137 per day, a truly heroic achievement. In any event the Officer on Review calculated that if the tobacco was for his own use it would on his claimed consumption last between 12-18 months.
Mr McAtasney it appeared had travelled to the Continent on 11th November 2001 as a foot passenger. He also went with Mr Oag in a trip on 7th October 2001 when he imported 2½ kilos of hand-rolling tobacco and 7,700 cigarettes. He was stopped and shown a document referred to as Notice 1 detailing the limits within which no question would be raised about importation.
However when asked on 15th December whether he had seen that Notice before he said that he had not. He also said that part of the tobacco was for the Appellant and some for his father.
Neither Mr Oag nor Mr McAtasney was able to inform the Officer what had been paid for the tobacco, although it had all been paid in cash. The cost of the goods was in fact in excess of £3,000.
It is manifest from these quantities and from the evasive responses made by the importers that the Officer was well entitled to conclude that the importation was not for the "own use" of either of the travellers.
The Officer was told by Mr McAtasney that the vehicle was his but was registered in his wife's name. Apparently some weeks after the loss of the vehicle Mr McAtasney , Senior, referred to by the Appellant to the Tribunal as "her father in law" gave her another albeit cheaper vehicle registration G411 LSS on 21st May 2002.
Also before the Reviewing Officer were the letters sent by the Appellant firstly on 8th January 2002 in which she said that her partner had already sent a letter applying for his goods and the car back and hoping that her car would be returned to her or to her partner at the earliest possible time since they had 3 children and lived in a rural area. A further letter was written by the Appellant and signed by both her and Mr McAtasney on 15th January 2002 which states "We are writing to you to withdraw our appeal to get our car and goods back. Instead we would ask for restoration of our vehicle only". Thereafter condemnation proceedings were withdrawn. Accordingly it was no longer contested that the seizure of goods was not appropriate.
On 2nd April 2002 the Appellant wrote and said "Although my car had travelled previously there was no excess (sic) goods carried in it". She said "We did not set out to do anything illegal just to take goods for our own use."
Before the Tribunal the Appellant stated that she and the children had had a very poor Christmas since all the money had gone for the tobacco and there was none left for presents for the partners children.
The seizure of the vehicle is an "ancillary matter" under the Finance Act 1994. The jurisdiction of the Tribunal is defined by Section 16 of that Act which states that its powers "shall be confined to a power where the Tribunal is 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 a further review of the original Decision.
The Tribunal accordingly has to consider whether it is satisfied that the Commissioners could not reasonably have arrived at the Decision on the Review.
The Solicitor for the Commissioners drew the Tribunal' attention to the cases of Lindsay (2202) STC 588 and Tribunal Decisions E00200 Philip J Lett, E00190, Colin John Richell, E00281 and Kristian Marc Hodgson, pointing out that the circumstances in Hodgson where the appeal was successful differed markedly from the present in that the owner Mr Hodgson was not aware of the use of the car. This Tribunal was not referred to a Decision of its own Angela Currie, 1 August 2002 (EDN/02/8004) which is closer to the present. There this Tribunal directed a Review. However in that case there was no question of the vehicle having been taken with the consent of the owner and in particular no knowledge or awareness that it was to be taken to the Continent at all let alone used for smuggling.
In the present case one of the reasons given by the Officer for refusal to restore was that the effect of the evidence before him from Mr McAtasney and the terms of the letters was that this was truly a vehicle which Mr McAtasney had a substantial interest. He claimed it was his and was just registered in his wife's name. The letters before the Officer were to the effect that it was "our car that was sought to be restored". In these circumstances he thought there was little distinction to be drawn between a vehicle owned and operated by a smuggler and one operated by him but registered in the name of his co-habitee. Restoration of such a vehicle was equal to restoration to the smuggler himself.
The Officer was entitled to take that view. He also was aware that the Appellant was fully acquainted with the purpose of the journey and that journeys had been previously taken. The quantities being brought back were very substantial and there could be no question in his mind, and that was a reasonable conclusion to arrive at, that the importations were not for "own use". He thought it incredible in view of the vast sum of money expended in cash that the importers professed not to know what they had spent or even, where they had been, since they said they had gone to Calais but in fact went to Ostend and bought some of the tobacco in De Panne, a Belgian town on the border of France and Belgium, which Ostend is not.
The Tribunal also notes that the whole Christmas fund was spent. Funds would have to be obtained from some source in order to buy presents. It is inferred that the only source was the imported tobacco since the Appellant was not able to buy presents.
The Officer was not satisfied that there was exceptional hardship which would entitle him to depart from the Commissioners' policy on restoration and in that view he was correct.
In all these circumstances the appeal is refused.
T GORDON COUTTS, QC
CHAIRMAN
RELEASE : 7 JULY 2003.
EDN/02/8010