United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00934.html
Cite as: [2005] UKVAT(Excise) E934, [2005] UKVAT(Excise) E00934

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John Tilburn T/A JAT Leisure v Revenue and Customs [2005] UKVAT(Excise) E00934 (14 December 2005)

EO00934

EXCISE DUTY ASSESSMENT — gap period between two amusement machine licences — default licence issued for the period — properly assessed — apportionment of days within a month not permitted by Betting and Gaming Duties Act 1981 — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JOHN TILBURN trading as JAT LEISURE Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Elsie Gilliland (Chairman)

Elizabeth M Pollard

Sitting in public in York on 3 November 2005

The Appellant in person

Bernard Haley of the Solicitor's Office of HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2005


 


DECISION
1. The appeal before the tribunal was that of John Tilburn who trades as JAT Leisure, a gaming equipment supplier, against an excise duty assessment of £80. This arose subsequent to the Commissioners identifying that there had been a gap between the periods covered by two successive amusement machine licences operating at Hatfield Hall Golf Club Stanley Wakefield West Yorkshire (the Hatfield premises). No additional civil penalty was claimed. The Appellant brought the matter before the tribunal as it was his business which was responsible for dealing with gaming licences for many customers at some 50 to 60 sites including the above. The relevant legislation is set out in section 4 (2) of Schedule 4A of the Betting and Gaming Duties Act 1981.
2. When presenting his case and in response to questions put to him by Bernard Haley for the Commissioners the Appellant explained the procedure which he would follow. He would be notified by the Commissioners' office at Greenock of licences when they fell due for renewal. There had been two at the relevant time though only one was the subject of the appeal. The form would have been filled in by his firm's then accountant and handed to Mr Tilburn who would check it sign it and hand it back to the accountant who would be responsible for sending it back to the Commissioners in the addressed pre-paid first class envelope provided. He used a nearby post box. No payment was made at that time as there was a direct debit system in place for monthly payments and all that was needed was to tick the appropriate box on the form.
3. Although the Appellant said that he had signed the form on 20 March 2002 (for a licence to commence on 24 April 2002) and this was the date shown it was clear from the copy supplied to the tribunal by Mr Haley that this bore a receipt stamp of the Greenock office of the Commissioners of 8 May 2002. Alison Claire Mellodey the witness called by the Commissioners an officer working for Salford Excise based at Blackburn informed the tribunal that she would receive a list from the Greenock office of default relating to apparent gaps in the continuance of licences which she would then pursue. There would be a default notice issued (in this case on 22 November 2004) and a default licence (here dated 25 November 2004) and the assessment. She had told the Appellant that he would be assessed for the missing duty. An internal appeal process upheld the decision and the Appellant appealed to the tribunal. The grounds of his appeal on 17 February 2005 were "that we were totally unaware that any monies were owed to C&E. The total money was less than £55.88. This amount we have paid but they are demanding a further £104.12. We pay all our licence fees by direct debit. No statements are sent out so how could we possibly be aware that this amount had remained unpaid".
4. The Appellant in his submissions stated that in fact the situation outlined above could no longer arise since the Commissioners had started sending monthly statements which listed the licence numbers so that on the basis of that information an easy check against the firm's bank statements could be made. He stated that this was a change in policy. His firm had been in the position when looking at their bank statements of having no way of finding out to which licences payments out referred. It would not seem that it is a new procedure followed in all cases by the Commissioners to issue itemised lists. In a letter of 27 June 2005 addressed to the Appellant, the Commissioners stated that it was not the policy of Revenue and Customs nor had it been the policy of Customs & Excise to issue itemised statements - "However we can on written request. I believe you now receive monthly statements".
5. The tribunal in looking at the assessment is to consider whether it has been raised to best judgment. The application form for the renewal of the licence was received late at the proper office. Applications were to be sent to Greenock 21 days before the licence expired. There was no direct evidence of posting from the person who delivered it to the post box although the Appellant did outline what would have been the usual arrangements for posting. Equally there is no evidence that there was a delay in the postal delivery. The Commissioners have submitted that the effect of the schedule to the Act is that where there has been a gap in continuing licences whatever the reason a default licence has to be issued and that there is no provision for reasonable excuse or mitigation. This was done and the proper duty rate (category 1B) ascertained. The Appellant has submitted that the fact that the Commissioners have introduced a better and more detailed system making it easier to align monthly direct debit deductions made by them with the licences set up by the Appellant establishes that the previous system was unworkable. We do not accept that this is so. The Appellant should himself have known which licences would require payment at which time in which month as a normal checking process within a business operation. The evidence of the officer was that these sums were not merely deducted at random but on certain dates in each month. Whilst more cumbersome we do not consider the procedure flawed. Further the operation of the direct debit ceased as a licence expired.
6. It is clear that the Appellant did acknowledge that he should pay for the period during which there had been a gap and in other words that there should have been a continuity of payment. He had done a calculation and in respect of the licence the subject of the appeal he had calculated against a total of £698.25 a sum due of £24.94. The legislative provision is quite specific however where a default licence is granted in relation to an unlicensed machine as it provides in paragraph 4 (7) of Schedule 4 A to the Act; "Any period of less than a month comprised in the period or part of the period shall be treated as a complete month; and accordingly the period or part of the period in question shall be treated as if it consisted of a complete month or, as the case may be complete months". No apportionment of less than a month is therefore permitted of the period of the gap between the two licences as filled in by the default licence. The Commissioners are entitled to assess for the full month.
7. The appeal is dismissed.
8. The Commissioners have not sought costs and we make no direction as to costs.

ELSIE GILLILAND

CHAIRMAN
Release Date: 14 December 2005

MAN/05/8007