United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00960.html
Cite as: [2006] UKVAT(Excise) E960, [2006] UKVAT(Excise) E00960

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Terence William Horne v Revenue & Customs [2006] UKVAT(Excise) E00960 (05 June 2006)

E00960

EXCISE DUTY – Restoration of seized excise goods and vehicle –– originally two appellants but one of the Appellants withdrew from the proceedings – the sole Appellant gave evidence that he had not authorised the representative to act on his behalf and that the purported signatures on various documents were not his – we found that the sole Appellant had not requested a review of the decision refusing restoration and did not submit a Notice of Appeal to the Tribunal – we have no jurisdiction to entertain the Appeal by virtue of section 16(2) of the Finance Act 1994.

LONDON TRIBUNAL CENTRE

TERENCE WILLIAM HORNE Appellant

- and -

HER MAJESTY'S REVENUE and CUSTOMS Respondents

Tribunal: MICHAEL TILDESLEY OBE (Chairman)

CLAIRE HOWELL (Member)

Sitting in public in Plymouth on 25 May 2006

The Appellant appeared in person

Matthew Barnes, Counsel instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006


 


DECISION

The Appeal

1. The Appellant was appealing against the Respondents' decision on review dated 16 August 2005 refusing restoration of excise goods comprising 30 kilograms of hand rolling tobacco, 200 cigarettes, 262.5 litres of beer and a Citreon Berlingo van, registration number Y284 KNN.

The Chronology of the Appeal

2. On 1 June 2005 Customs Officers stopped the Appellant and his wife at the United Kingdom Control Zone, Coquelles. The Officers seized 30 kilogrammes of hand rolling tobacco, 262.5 litres of beer, 200 cigarettes and a Citreon Berlingo Van, registration number Y284 KNN.
3. On 2 June 2005 Mr and Mrs Horne sent a letter purportedly signed by them to the Respondents requesting restoration of the seized goods and appealing against the seizure of the goods and vehicle.
4. On 29 June 2005 the Respondents wrote to Mr and Mrs Horne at 9 Muscliffe Lane, Bournemouth refusing restoration of the goods and the vehicle.
5. On 2 July 2005 a letter from Mrs N Bowers purportedly on behalf of Mr and Mrs Horne was sent to the Respondents requesting review of the decision refusing restoration of the goods and the vehicle.
6. On 6 July 2005 the Respondents required Mrs Bowers to provide written authorisation from Mr and Mrs Horne that she was entitled to act on their behalf. A written authorisation purportedly signed by Mr and Mrs Horne dated 7 July 2005 was provided on 11 July 2005.
7. On 15 July 2005 Mr and Mrs Horne withdrew their appeal proceedings against the seizure.
8. On 19 July 2005 Mrs Bowers supplied further information to the Respondents regarding Mr and Mrs Horne's request for restoration.
9. On 16 August 2005 the Respondents sent their review decision which confirmed the non-restoration of the excise goods and vehicle to Mrs Bowers c/o Mrs Eileen Horne at 9 Muscliffe Lane, Bournemouth.
10. On 5 September 2005 Mrs Bowers who addressed herself as a "McKenzie friend" submitted a Notice of Appeal on behalf of Mr and Mrs Horne to the VAT and Duties Tribunal against the Respondents' decision on review dated 16 August 2005.
11. On 1 November 2005 Mr Horne contacted the Tribunal Office by phone requesting information about the progress of the Appeal. He followed up his phone call with a note on his business stationary advising the Tribunal of his address.
12. On 1 December 2005 the Tribunal Office received a Notice of Appeal in the name of Mr T Horne which was put before a Chairman who decided that the Notice was a duplicate of the 5 September 2005 Notice of Appeal. The Chairman instructed the Office to write to Mrs Horne requesting her confirmation that she was withdrawing from the Appeal which would leave Mr Horne as the sole Appellant.
13. On 9 January 2006 Mrs Horne informed the Tribunal Office that her husband and herself were no longer together and she did not want any part in the Appeal. Mrs Horne asked for her name and Mrs Bowers to be deleted from the Tribunal records.
14. On 7 February 2006 Mr Horne told the Tribunal Office of dates to avoid and his new address.
15. The Appeal was set down for hearing on 25 May 2006 at Plymouth.

Mr Horne's Evidence

16. Mr Horne gave evidence on oath. He informed the Tribunal that he wanted to clear the air particularly now that his estranged wife wanted nothing more to do with the Appeal.
17. Mr Horne told the Tribunal that he had been living apart from his wife for a considerable time. They were separated at the time they travelled to France on 1 June 2005. His purpose in crossing the Channel was to purchase beer for his birthday which was on 23 July. When they were on the shuttle Mrs Horne asked to be taken to Adinkerke to purchase tobacco for herself and her family. Mr Horne agreed to do this and lent Mrs Horne £140 towards the tobacco.
18. When they were stopped by Customs Officers Mrs Horne asked for Mr Horne's help in sticking up for her. Mr Horne told the Tribunal that he lied to the Customs Officers in order to cover up for his wife. Mr Horne was not a smoker and his replies to the Officers about smoking were a complete fabrication.
19. Mr Horne considered that he had been unfairly treated by the Customs Officers. He was unaware until the last moment that his van would be seized. Mr Horne felt strongly about being left by Customs Officers to find their own way home.
20. Mr Horne was concerned principally to get his van back which he used in his window cleaning business. He had another van which allowed him to carry on his work following the seizure of his van. However, his employee had used the seized van. The loss of the van meant that they worked together which restricted their flexibility in carrying out the business.
21. Mr Horne told the Tribunal that he was unaware of the correspondence sent on his behalf by his wife and Mrs Bowers until he received the Appeal bundle just before the hearing on the 25 May 2006. He had not authorised Mrs Bowers to act upon his behalf. He did not give Mrs Bowers authority to request a review of the decision refusing restoration and to submit the first Notice of Appeal dated 5 September 2005. He denied that he signed the various documents in the bundle which purportedly carried his signature. These documents included the request for restoration of the motor vehicle dated 2 June 2005, the authorisation of Mrs Bower's request for review of the non-restoration decision, and the second Notice of Appeal received 1 December 2005. Mr Horne conjectured that his wife signed the various documents in his name. He did not see the Respondents' correspondence concerning the Appeal because it was sent to 9 Muscliffe Lane, Bournemouth which was his wife's address, not his. Mr Horne knew that his wife and other family members had been trying to get the excise goods back but he had not been part of the discussions.

Respondents' Counsel Submission

22. Mr Barnes submitted on behalf of the Respondents that in view of Mr Horne's evidence there was no valid Appeal before the Tribunal. He requested that the Tribunal determine this preliminary point before he proceeded with the Respondents' case.

Decision

23. We find on the Mr Horne's evidence that he had not submitted:

(1) a request for restoration of his vehicle seized on 1 June 2005;

(2) a request for a review of the decision dated 29 June confirming the non-restoration of his vehicle.

(3) the Notices of Appeal dated 5 September 2005 and 1 December 2005.

24. On 9 January 2006 Mrs Horne withdrew from the Appeal leaving Mr Horne as the sole Appellant.
25. Section 16(2) of the Finance Act 1994 provides that

"An appeal under this section (section 16 of the 1994 Act) shall not be entertained unless the Appellant is the person who required the review in question".

26. We found on Mr Horne's evidence that he did not request the review of the decision dated 29 June 2005 refusing restoration of his vehicle. Mrs Bowers made this request. Mr Horne gave evidence on oath that he did not authorise Mrs Bowers to act on his behalf and that it was not his signature on the letter dated 7 July 2005 which gave authority to Mrs Bowers to act for Mr Horne. Mrs Horne withdrew from the Appeal on 9 January 2006 which left Mr Horne as the sole Appellant.
27. We, therefore, conclude that by virtue of section 16(2) of the Finance Act 1994 we have no jurisdiction to entertain this Appeal because Mr Horne was the sole Appellant to these proceedings and he had not requested a review of the Respondents' decision refusing restoration of his vehicle. We make no order for costs as neither party submitted an application.
28. Mr Barnes requested that we dismiss Mrs Horne's Appeal. We do not consider that an order is appropriate because Mrs Horne withdrew from the Appeal on the 9 January 2006 which was noted on the Tribunal file and considered by a procedural Tribunal Chairman.

PostScript

29. We are of the view that Mr Horne is entitled to start the proceedings afresh by requesting the Respondents to restore his vehicle. We expressed our view at the hearing. The Respondents did not challenge our understanding of the legal position. We suggest that Mr Horne advises the Respondents whether he wishes to take this course of action within 14 days of release of the decision. We ask the Respondents to provide Mr Horne with the correct address to which he should send his request. We did ask Mr Harris, the Review Officer, to provide Mr Horne with the address but on reflection it may be that the request should go first to the Post Seizure Unit. If the Respondents have not heard from Mr Horne within 14 days to contact him to establish whether he intends to make a request for restoration of his vehicle and until that is established not to dispose of the vehicle. If Mr Horne does proceed, we would request that the matter is expedited which may involve an initial decision, a review of that decision and a tribunal hearing. We did suggest to Mr Horne that he may wish to take independent advice on this matter, particularly in view of his evidence to the Tribunal.

MICHAEL TILDESLEY

CHAIRMAN

RELEASE DATE: 5 June 2006

LON/05/8104