United Kingdom VAT & Duties Tribunals (Excise) Decisions

Evans v Customs and Excise [2004] UKVAT(Excise) E00688 (25 March 2004)

RESTORATION — Son took vehicle to Calais for the day — purchased 36 kg hand rolling tobacco and 380 cigarettes — commercial purchase not in dispute — car offered for restoration on payment of £785 — Appellant unwilling to pay — unaware of son's activities — third party car — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ROBERT WYN EVANS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: D S PORTER (Chairman)

Mrs M C AINSWORTH (Member)

Sitting in public in Manchester on 10 February 2004

The Appellant appeared in person

Mr C Middleton of counsel for the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION

The Dispute

1. This is an appeal by Robert Wyn Evans (the Appellant) against the refusal to restore his vehicle number M813 SHE seized on 10th May 2003 when being driven by his son Gareth Evans except on the payment of £785. The condition was set out in a letter dated 22nd August 2003. The Appellant states that the car is his and that he was unaware that his son had taken it abroad to buy tobacco. The Respondents allege that the car was not a "third party car" and that the Appellant knew perfectly well that the car could be used by his son for such purposes

   The Parties

2. Mr C Middleton of counsel appeared for the Commissioners, called Ms G Burrell as a witness, and produced a bundle of documents for the Tribunal. The Appellant appeared in person.

Preliminary Issue

3. Mr C Middleton suggested that if all the parties were prepared to agree that the vehicle had been being used for smuggling then the Tribunal would only be concerned with whether the Appellant knew that his son was using the vehicle for the purposes of smuggling. The Appellant agreed that the Tribunal could accept that the vehicle had been used for smuggling but did not accept that he knew his son was using it for that purpose.

The Facts

4. The Appellant is 63 years of age and is retired living with his wife at Talar Wen 9 Craig-y-fron, Bala, Gwynedd, North Wales. He has an income of £155.80 per week and he has no savings. His wife no longer works and has no pension, nor savings. The Appellant had had an accident previously and the car was insured in his wife's name. The insurance automatically covered travel in Europe and stated that there was a 2nd car bonus. (See page 63 of the bundle). The Appellant and his son Gareth Evans were added as named drivers.
5. His son lives within walking distance of the Appellant and borrowed the car principally to go shopping in Chester or Wrexham.
6. The Appellant attended for an interview at Dover on 21st June 2003. (See pages 67,68 and 69 of the bundle). In the interview he was asked if he and his son had access to another car. He replied it is "my own car as well my wife's car, which she uses for work". He was then asked if his son ever used that car and the Appellant replied "No". At the Tribunal the Appellant was adamant that there had only ever been one car. In fact he had travelled to the tribunal today from Bala in his uncle's car. We are satisfied that there must have been two cars, otherwise there could not have been a second car bonus.
7. It was unclear whether the son had another key for the car. He did, however, collect the car from his father at various times, in circumstances in which it would have been very inconvenient for his father and mother to be disturbed. The Appellant was unclear whether his son had collected the car prior to his trip abroad the subject of this appeal, in the morning, or the previous night.
8. We find as a fact that the Appellant's son could use the car at any time when he wished to borrow it. When stopped by the Customs officers at Dover the Appellant's son had claimed that the car was his and that he had had it for some twelve months.
9. We find as fact the matters set out in paragraphs 4 to 8 above.

The Law

10. The Customs and Excise Management Act 1979 states that any vehicle which has been used for the carriage of the goods which have not paid duty and are forfeited is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper.

Summing Up

11. Mr Middleton submitted that the decision not to restore the car, except on the payment of £785, was reasonable. The duty outstanding on the goods was approximately £5000 and the value of the car was substantially less. The car, although insured in the Appellant's wife's name, was specifically covered for the Appellant and his son. In fact his son had alleged at interview that the car was his. It would have been more appropriate for him to say that it did not belong to him. The vehicle insurance automatically covered the drivers for use in the European Community. It was clear that there must have been more than one car in spite of what the Appellant said at the tribunal. At his interview, the Appellant had suggested that the insurance included a 2nd car bonus. It was open to the Appellant's son to pay the £785 as he clearly had sufficient income to do that. In his interview his son stated that he had purchased £1880 worth of the goods and that he had used his credit card as means of payment. The Appellant had raised no hardship either to the reviewing officer or the Tribunal. In the circumstances the appeal should be dismissed.
12. The Appellant submitted he needed the car for local journeys. He would not have gone all the way to Dover for the interview and to the Tribunal today if he had not felt that the Respondents had acted unreasonably. He was not in a position to pay for the car and he wanted it returned.

The Decision

13. My colleague and I have considered the facts and are satisfied that the car was a family car and that the Reviewing Officer acted reasonably in refusing to restore it without the payment of £785. In fact we are surprised that the Appellant did not agree to pay that amount and ask his son to pay some or all of the costs. The trip to Dover and to the Tribunal today must have cost in the region of £400, which would have gone some way to paying for the car. We therefore dismiss the appeal.
14. The Respondents claimed no costs so we award none.
D S PORTER CHAIRMAN Released:

MAN/03/8148