United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2006/E00977.html
Cite as: [2006] UKVAT(Excise) E977, [2006] UKVAT(Excise) E00977

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Edit v Revenue & Customs [2006] UKVAT(Excise) E00977 (11 August 2006)

E00977

EXCISE DUTY – Decision not to restore seized motor vehicle – Appeal heard in the absence of the Appellant – Issue as to whether the Appellant owned the vehicle at the time of seizure – Whether Commissioners' decision that she did not was unreasonable – Held it was not unreasonable – Appeal dismissed

LONDON TRIBUNAL CENTRE

BIHARI EDIT Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents Tribunal: MR JOHN WALTERS QC (Chairman) MRS S SADEQUE

Sitting in public in London on 26 May 2006

The Appellant was not present or represented at the hearing

Saribjit Singh, of Counsel, instructed by the Solicitor for H.M. Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006


 


DECISION
1. Bihari Edit ("the Appellant") appeals against the Respondent Commissioners' decision dated 9 December 2005 to refuse to restore a seized vehicle, registration number JGN 180, to the Appellant.
2. There was no representation of the Appellant when the appeal was called on for hearing at 10:30 a.m. on 26 May 2006. At 8:37 a.m. on the day of the hearing, a faxed message was received at the Tribunal Centre from the Appellant, apparently in Hungary, as follows: "Dear madam/sir, we can't appear at the hearing today, because of family reasons. Bihari Edit".
3. The Tribunal Centre sent a faxed message in reply asking for elaboration of this message but no response was received before the appeal was called on for hearing.
4. Mr. Singh, for the Commissioners, submitted that the Appellant had shown no valid reason for postponing the hearing and that the Tribunal should proceed to hear the appeal in the absence of the Appellant in the exercise of our power under rule 26(2) of the VAT Tribunals Rules 1986.
5. We decided to proceed to hear the appeal in the absence of the Appellant. We had regard to the fact that notice of the hearing had been sent to the Appellant in Hungary on 22 March 2006, that the Commissioners had appeared prepared to argue the case, that the Appellant in the short faxed message received had not in terms asked for a postponement, that in principle there is a public interest in an appeal which has been set down for hearing proceeding unless there is a clear reason why it would be more convenient for it to be postponed, and that the Tribunals Rules make clear provision for an appeal to be heard in the absence of a party, and consequential provision (see: rule 26(3)).
6. The issue between the parties in the appeal is whether the vehicle was owned by the Appellant at the date of the seizure (18 August 2005) or not. The Appellant asserts that she was the owner of the vehicle pursuant to a contract dated 11 August 2005, by which she bought it from Mr. Harcsa Gabor. Her grounds of appeal are that she was the owner of the vehicle, not present at the time of the seizure and an innocent third party. The Commissioners submit that they reasonably consider the contract to have been fabricated for the purpose of facilitating the restoration of the vehicle and Mr. Gabor to have been the owner of the vehicle at the time of its seizure.
7. The vehicle was being driven by Mr. Gabor when it was seized at Dover. A quantity of excise goods (6,040 cigarettes) were seized at the same time, but they are not the subject of this appeal. On being questioned at Dover, Mr. Gabor was asked whose vehicle it was. He replied that it was his. He was then asked how long he had owned it. He replied "one year". This exchange is clear from the notes of the interviewing officer which were in evidence.
8. In a letter dated 22 August 2005 sent by Mr. Gabor to the Commissioners, he stated "I would like to get my car back as soon as possible". He went on to say that he did not speak English but invited the Commissioners to "deal with my friend Robert Acs" and a telephone number was given.
9. The Commissioners treated the letter as a request for restoration of the vehicle. On 15 September 2005, an officer, I.J. Ashton, from the Post Seizure Unit, wrote to Mr. Gabor informing him of his decision not to offer the vehicle for restoration. Included in this letter was a recitation of the Commissioners' policy for the restoration of private vehicles seized for carrying excise goods subject to forfeiture. Included was the statement: "If the vehicle was owned by a third party who was not present at the time of the seizure and was either innocent or had taken reasonable steps to prevent smuggling in the vehicle" then the vehicle "may be restored at the discretion of the Commissioners subject to such conditions (if any) as they think proper (e.g. for a fee)".
10. The Appellant wrote to the Commissioners' Review Officer by a letter dated 13 October 2005 stating that she bought the vehicle from Mr. Gabor on 11 August 2005 (attaching a copy of the relevant sale and purchase contract), and had lent it to him for a further three weeks. She stated that Mr. Gabor had informed her about the seizure of the vehicle on 1 September 2005 and she referred to a letter dated 16 October 2005 (which must be an error, and the letter dated 15 September 2005 already referred to must be meant) in which Mr. Gabor was informed that he would not get the vehicle back and that he had 45 days to appeal against the decision. She went on to state that since then she had had the letter translated into Hungarian and had discussed it with her solicitor. She made the request for the decision to be reviewed and the vehicle restored to her citing the reference to a vehicle owned by an innocent third party in the Commissioners' policy as recorded in the letter dated 15 September 2005 sent to Mr. Gabor.
11. Finally, her letter included a request in case of any query to contact Mr. Robert Acson, stated to be a friend who speaks fluent English. A telephone number was given, which was the same number as that which Mr. Gabor had given with reference to his friend, Mr. Robert Acs.
12. The copy of the relevant sale and purchase contract enclosed was not dated.
13. Officer Mrs. M Baldwin of the Commissioners' Post Seizure Unit replied to the Appellant in a letter dated 20 October 2005 stating that the Commissioners were unable to consider restoring the vehicle to the Appellant because Mr. Gabor had stated, both in interview and in his restoration request, that he owned the vehicle.
14. The Appellant sent a letter dated 14 November contesting this, and pointing out that Mr. Gabor "does not speak any word in English". The letter was countersigned by Mr. Gabor.
15. This letter was treated by the Commissioners as a request for a further review of the decision not to restore the vehicle.
16. The result of the review was the confirmation of the decision not to restore the vehicle. This decision is the subject of the appeal. The version of the sale and purchase contract supplied by the Appellant for the purposes of the appeal had had inserted into it the date 11 August 2005.
17. The Tribunal's function in this appeal is to consider whether the Commissioners or other person making the decision could not reasonably have arrived at it (section 16(4) Finance Act 1994).
18. We are entirely unpersuaded that the decision to confirm non-restoration of the vehicle could not have been arrived at reasonably. We accept Mr. Singh's submissions, in particular that the evidence of the interview with Mr. Gabor on 22 August 2005 and the late insertion of the date 11 August 2005 into the sale and purchase contract justified the Commissioners' reasonable suspicions that the argument that the Appellant had purchased the vehicle before its seizure had been concocted to facilitate the restoration of the vehicle having regard to the statement of the Commissioners' policy conveyed to Mr. Gabor in the letter dated 15 September 2005.
19. For these reasons we announced at the hearing that we would dismiss the appeal.
20. Because the Appellant is resident in Hungary and apparently does not speak English, we direct that the period during which an application may be made to the Tribunal Centre to set aside this Decision on such terms as the Tribunal may think just, under rule 26(3) of the VAT Tribunals Rules 1986, will be extended from 14 days to 42 days after the date of the release of this Decision.
JOHN WALTERS QC CHAIRMAN RELEASED: 11 August 2006

LON/06/8007