United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00958.html
Cite as: [2006] UKVAT(Excise) E00958, [2006] UKVAT(Excise) E958

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Banff Bowling Club v Revenue & Customs [2006] UKVAT(Excise) E00958 (24 May 2006)

EO00958

Gaming machine – licence not applied for timeously – no notice given by HMRC seeking removal – whether the monthly default licence issued was "unfair" though not illegal – no – Finance Act 1994 s16 – Betting and Gaming Duties Act 1981 ss.21, 22, 23 and Schedule 4.

EDINBURGH TRIBUNAL CENTRE

BANFF BOWLING CLUB Appellants

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: (Chairman): T Gordon Coutts, QC

Sitting in Aberdeen Sheriff Court on Thursday 18 May 2006

for the Appellants Mr David Duncan

for the Respondents Miss Julie Strachan, Shepherd & Wedderburn WS

© CROWN COPYRIGHT 2006.


 


DECISION

The Appellants have brought an appeal against the Respondent issuing to the Appellant a default licence in relation to a gaming machine.

In essence the only matter brought before the Tribunal was whether it was appropriate that the Appellant be charged a monthly default licence to 1/12^th of an annual licence. The sum at issue was £70.41.

On 19 October 2005 the Appellant telephoned the Respondents to advise that their gaming machine licence had expired but that no renewal form had been received. The Appellant was told that in those circumstances a default licence would be issued for the period 12 October to 11 November 2005. The Appellant received the default licence schedule and paid the £230 in respect of the notice of assessment contained therein but also appealed that notice.

Before the Tribunal the Appellant's grounds of appeal were "as no account was received from H M Customs and Excise and our treasurer was responsible for bringing the non payment to the notice of H M Customs and Excise. Copy of our letter dated 2 December 2005 enclosed explains. Whilst we accept that the law may be in favour of H M Customs and Excise surely justice is more important and our contention is we are being unfairly punished".

The appropriate legislation is found in the Betting and Gaming Duties Act 1981 Sections 21(1), 22(1), 23 and paragraph 7 of Schedule 4 and paragraphs 2, 3(1), 4 and 4(7) of Schedule 4(A) to that Act. Since the applicability and content of the legislation were not disputed by Mr Duncan it is unnecessary to repeat them here.

Before the Tribunal the Appellant contended that since it had not got a notice reminding them about the incidence of duty it was unfair that they should have to pay a sum which was greater than would have been exigible had the full licence been applied for the appropriate time the Appellants contention was that if the matter could not be backdated since it was no fault of theirs then the law needed to be changed.

The position of the Respondent was that they had no discretion on the matter a licence had to be in force and the onus was on the operator to apply for the appropriate licence irrespective of the issuing of renewal notices or otherwise. The only effect was that there was interposed an intermediate one month licence before the new full year licence took effect. The Respondent had no discretion on the matter.

This appeal comes before the Tribunal by virtue of the provisions of the Finance Act 1994 Section 16 and in particular sub-section 4 which provides that, in relation to any decision as to an ancillary matter, which this matter is, the powers of an appeal tribunal shall be confined to a power to intervene in specified ways where the Tribunal are satisfied that the Commissioners could not reasonably have arrived at the decision taken.

There can be no suggestion that the decision to seek a monthly default payment in the absence of a licence was one which could not reasonably have been arrived at. The Appellant had conceded that the law was in favour of HMRC. No penalty was sought. Accordingly this appeal never had any prospect of success. It is not for this Tribunal to adapt or extend the primary legislation involved. The Appellant must obtain and have a licence and there is no obligation on HMRC to provide a "renewal form", albeit that it may be convenient for them to do so.

The Appellant seemed to be of the view that being aggrieved he was entitled to a "day in court". The Tribunal, however, is not the place to air grievances about legislation; it is available to hear complaints about the conduct of HMRC. The Respondents did not move for expenses which was a considerable exercise of forbearance on their part. On the other hand the conduct of the case by the Respondents was a significant exercise of over kill. This matter would have been entirely within the competence of a local officer, in this instance Mr Harrison but instead the Tribunal was given the unnecessary assistance of a solicitor engaged to act on behalf of HMRC. In a matter involving £70.41 that expense would not have been allowed had the Commissioners sought expenses. However as said they did not.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE: 24 MAY 2006

EDN/06/8001