United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2007] UKVAT(Excise) E01070, [2007] UKVAT(Excise) E1070

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Raymond Hought v Revenue & Customs [2007] UKVAT(Excise) E01070 (25 October 2007)

E01070

EXCISE DUTY – Non-restoration of vehicle – allegedly Appellant fully participated in the smuggling attempt by his passenger – Appellant denied any involvement – Review Officer's approach flawed – failed to consider relevant facts which indicated that the Appellant did not participate in the attempted smuggling – disregarded information about the hardship caused to the Appellant– was the decision not to restore the vehicle reasonable – no – appeal allowed and further review directed.

MANCHESTER TRIBUNAL CENTRE

RAYMOND HOUGHT Appellant

- and -

HER MAJESTY'S REVENUE and CUSTOMS Respondents

Tribunal: MICHAEL TILDESLEY OBE (Chairman)

ROLAND PRESHO FCMA (Member)

Sitting in public in York on 23 August 2007

The Appellant appeared in person

Elizabeth McLory, counsel instructed by the Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

The Appeal

The Appellant was appealing against the Respondents' decision on review dated 19 February 2007 refusing restoration of a Land Rover Discovery registration number B2 REH (hereinafter referred as the vehicle).

We heard from evidence from the Appellant and Mr Thompson, his son-in-law. We received in evidence the Respondents' bundle of documents which included the witness statement of Mrs Gillespie, who carried out the review.

Issue in Dispute

The issue in dispute was whether the Respondents' decision on review refusing restoration of the vehicle was a decision which no reasonable body of Commissioners could have arrived at. In order for the decision to have been reasonable Mrs Gillespie, the review officer, must have considered all relevant matters and must not have taken into consideration irrelevant matters.

The Background

On 14 December 2006 the Appellant travelled with a Mr Candela, a work colleague, from their homes in Lincolnshire to France on a day trip in the Appellant's vehicle, sharing the driving. They used the Channel Tunnel arriving in France between 1000 and 1100 hours. Mr Candela paid a fare of £98 for the Channel Tunnel with his credit card. They then headed for Adinkerke spending about three hours there. On their return at around 1515 hours they were stopped by Customs Officers in the United Kingdom Control Zone at Coquelles, France. Mr Candela declared that they each had three kilograms of hand rolling tobacco. One of the Officers examined the boot of the vehicle and found a suitcase, which Mr Candela said contained wine. The suitcase was opened and found to contain tobacco and bottles. The Officers searched the vehicle and discovered a quantity of tobacco in the seat backs under the covers. The Officers found 14.6 kilograms of tobacco in the vehicle. The Customs Officers interviewed the Appellant and Mr Candela separately. Following the interviews the Officers seized 14.60 kilograms of tobacco, four litres of whisky, 17.25 litres of mixed still wines and the vehicle.

On 18 December 2006 the Appellant requested restoration of his vehicle. He advised the Respondents that he purchased one kilogram of tobacco, two litres of whisky and ten litres of wine. The Appellant pointed out that this was his first trip overseas with his vehicle and that he was unaware of the quantity of goods that he was allowed to carry. The Appellant mentioned that he was having difficulties travelling to work. The Appellant enclosed a letter from Mr Candela who admitted that the bulk of the seized goods belonged to him and accepted full responsibility for the incident. On 16 January 2007 the Respondents informed the Appellant that the vehicle would be restored to him. However, this letter was sent in error and was replaced with a letter dated 18 January 2007 refusing restoration.

On 19 January 2007 the Appellant requested a review of the decision not restoring the vehicle. He considered that he had been treated unfairly particularly as his vehicle had been seized because of having someone else's goods in it. He explained that he put the goods behind the driver's seat to prevent spillages or accidents. The Appellant repeated that the loss of the vehicle was causing his family considerable hardship and stress because of having to rely on his son-in-law to take him to work.

On 21 January 2007 the Appellant's wife wrote to the Respondents. She stated that her husband was a warm, generous kind family man who has worked hard all his life. The incident started on 13 December 2006 when the Appellant rang his wife and asked if he could go with Mr Candela on the Euro Train to Belgium for Christmas presents. His wife encouraged him to go because it would be an enjoyable day out as he had not been through the tunnel. Mr Candela had planned the journey and knew what he wanted. The whole incident was making her husband ill.

On 19 February 2007 Mrs Gillespie upheld on review the non-restoration of the vehicle.

The Review Decision of 19 February 2007

In reaching her decision refusing restoration, Mrs Gillespie stated that she examined all the circumstances surrounding the seizure of the excise goods except for the legality or correctness of the seizure. She was guided by the Respondents' policy on Restoration of Private Vehicles but not fettered by it. Mrs Gillespie concluded that the excise goods brought in by the Appellant and Mr Candela were to be sold on for profit. Further although the operation may well have been organised by Mr Candela the Appellant fully participated in the deception and smuggling attempt. Since the Appellant put forward no grounds for exceptional hardship Mrs Gillespie concluded that the Appellant had deliberately used his vehicle to further a fraudulent commercial venture with the result that she saw no reason to depart from the Respondents' policy of not restoring the vehicle.

Mrs Gillespie placed weight on the following facts for her decision:

(1) The Appellant knowingly misled the Customs Officer when initially stopped about the full quantities of excise goods carried in the vehicle. The Appellant and Mr Candela carried receipts for the goods so they must have known the true quantities.

(2) The quantity of hand-rolling tobacco carried in the vehicle which was 14.6 kilograms more than four times the guide level of three kilograms.

(3) Many of the goods were concealed underneath the seat covers at the back of the front seats. The Appellant admitted to the Customs Officers that he had placed the goods there and put the seat covers over the goods.

(4) The Appellant provided no credible explanations for making the trip, buying the tobacco for Mr Candela and borrowing £200 from his son-in-law.

(5) Mr Candela's previous seizure of goods by the Respondents which was some nine to ten years ago.

(6) The inconsistency of Mr Candela's declared consumption rate of tobacco with the quantities purchased which would have meant that a significant quantity of tobacco would have gone stale before he smoked it.

(7) The four different brands of tobacco carried in the vehicle.

(8) The Appellant's wife was the registered keeper of a Ford Fiesta motor vehicle, which mitigated any hardship caused to the Appellant by the loss of his vehicle.

The Appellant's Evidence

The Appellant was 60 years old living with his wife in their property at Gainsborough. The Appellant was employed as a forklift driver earning about £1,300 a month with savings of £6,000. The Appellant had no previous convictions and never been in trouble with the police or customs before.

The Appellant purchased the vehicle from new paying £23,000. The vehicle was three years old when seized with an estimated value of £16,000. The Appellant was very proud of his vehicle which he kept spotlessly clean. The Appellant bought the vehicle so that he could tow the caravan. Also he suffered from a back problem which was eased by the seat configuration in the vehicle being higher up than a normal vehicle.

Each month the Appellant has eight days off work. In his time off he could be sometimes at a loss for things to do. The trip to France on 14 December 2006 was made on impulse. He asked Mr Candela if he could go with him after having been told about the trip on the evening of 13 December 2006. The Appellant looked on it as a day out. Mr Candela intended to take his vehicle but the Appellant suggested using his vehicle because it was more comfortable for him on a long journey, particularly with his back problem. As the trip was unplanned the Appellant did not have sufficient money in his bank account to make the trip since he had just transferred some money from his current account to an Individual Savings Account. The Appellant took £300 with him for the trip after borrowing £200 from his son-in-law.

Once in France the Appellant allowed Mr Candela to drive his vehicle as he was more familiar with driving on the continent and knew where he was going. The Appellant went to one shop with Mr Candela where the Appellant purchased wine, whisky and some tobacco. The Appellant did not know why he purchased the tobacco other than that it was there, and sometimes he bought things which were not needed. The Appellant spent less than £100 on the excise goods, still leaving him with the majority of the £200 borrowed from his son-in-law which was in his possession when stopped by the Customs Officers.

Mr Candela visited alone two other shops to purchase tobacco. The Appellant did not know what he bought because Mr Candela would put the items in a suitcase in the boot which was hidden from the Appellant's view. The Appellant did not question Mr Candela about his purchases. He did not think for a moment that Mr Candela would buy quantities which exceeded the limit. At the time the Appellant held no suspicions about Mr Candela's motives for purchasing the tobacco.

The Appellant accepted that he put two bottles of whisky and some tobacco in the back of seats. However, he did this for safety reasons and to prevent the goods from rolling around. The Appellant did not do it for the purposes of concealment.

Mr Candela answered the initial questions from the Customs Officers about where they had been and the amount of tobacco bought. The Appellant only realised that something was wrong following the search of the vehicle which revealed the quantities purchased by Mr Candela. The Appellant became nervous and panicked when answering the questions of the Officers which caused him to give confusing replies.

The Appellant had only been to France once before some 10 years ago when he travelled by ferry. He had been on holiday to Jamaica and Cyprus.

The Appellant was experiencing difficulties getting to work. He drove his wife's car to work when on night shift. However, his wife required the car during the day so that she could attend her place of employment. On day shift the Appellant relied on his son-in-law to make arrangements to get him to and from work. There was no public transport in the Appellant's home village. Since the seizure of his vehicle the Appellant has been unable to take out the caravan. Also his health has deteriorated through worrying about the proceedings.

The Appellant has ended his friendship with Mr Candela. Since the incident the Appellant has learnt a lot more about Mr Candela and accepted now that Mr Candela was buying the tobacco for commercial purposes. However, at the time of the trip the Appellant believed that they were going on a day out. He had no idea that Mr Candela would buy so much tobacco with the intention of breaking the law. The Appellant considered that he had been extremely naïve and stupid. The Appellant believed that he was being punished for Mr Candela's actions. The loss of his vehicle was out of all proportion to the mistake he made.

Mr Thompson, the Appellant's son-in-law, confirmed that he lent £200 to the Appellant so that he could go on the trip. Mr Thompson did not loan the £200 on the basis of the Appellant bringing goods back for him. Mr Thompson did not smoke. Mr Thompson spoke up for the Appellant describing him as a caring family man who would help anyone out.

Jurisdiction of the Tribunal

The Respondents' power regarding restoration of vehicles which have been forfeited or seized is set out under section 152(b) of the Customs and Excise Management Act 1979. Once the power is exercised whether in the form of a positive decision to restore on terms or a refusal to restore, the person affected has a right of appeal to the Tribunal. The powers of the Tribunal are limited in the terms set out in section 16(4) of Finance Act 1994 which provides that:

"confined to a power, where the Tribunal are satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say –

a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the Tribunal may direct;

b) to require the Commissioners to conduct, in accordance with the directions of the Tribunal, a further review of the original decision;

c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare that decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of unreasonableness do not occur when comparable circumstances arise in future".

The precondition to the Tribunal's exercise of one or more of its three powers is that the person making the decision could not reasonably have arrived at it. The test for reasonableness is set out by Lord Lane in Customs and Excise v JH Corbitt (Numismatists) Ltd [1980] STC 231 at page 239:

"…..if it were shown the Commissioners had acted in a way in which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight".

In Gora and others v Customs and Excise Commissioners [2003] EWCA Civ 525, the Court of Appeal decided that the Tribunal had a comprehensive fact finding jurisdiction in restoration Appeals:

"[The Tribunal] satisfies itself that the primary facts upon which the Commissioners have based their decision are correct. The rules of the tribunal and procedures are designed to enable it to make a comprehensive fact-finding exercise in all appeals.'

Strictly speaking, it appears that under s 16(4) of the 1994 Act, the Tribunal would be limited to considering whether there was sufficient evidence to support the Commissioners' finding of blameworthiness. However, in practice, given the power of the Tribunal to carry out a fact-finding exercise, the Tribunal could decide for itself this primary fact. The Tribunal should then go on to decide whether, in the light of its findings of fact, the decision on restoration was reasonable. The Commissioners would not challenge such an approach and would conduct a further review in accordance with the findings of the Tribunal" (paragraph 39).

In summary the Tribunal's jurisdiction in restoration proceedings incorporates the following principles:

(1) The Tribunal's jurisdiction is limited to determining whether the Commissioners' decision to refuse restoration or to offer restoration on terms was reasonable.

(2) The Tribunal is not entitled to substitute its own view about whether the vehicle should be restored.

(3) The test for reasonableness is whether the Commissioners had acted in a way in which no reasonable panel of Commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight.

(4) In deciding the reasonableness of the Commissioners' decision the Tribunal has a comprehensive fact finding jurisdiction to establish whether the primary facts upon which the Commissioners have based their decision were correct.

(5) The Tribunal is not entitled to consider the lawfulness of the seizure, or determine the underlying facts relating to seizure when deciding the reasonableness of the Commissioners' decision to refuse restoration except when the Tribunal is satisfied that it would not be an abuse of process to take into account the facts surrounding the seizure of the goods

Reasons for Decision

Discussion of the Evidence and Representations

We found the Appellant to be a truthful witness. We considered that his evidence given at the hearing was consistent with his interview with the Customs Officers except for his reasons for purchasing his share of the tobacco. Further his evidence was in line with his written representations made to the Respondents following the seizure of the vehicle. Respondents' counsel sought to undermine the Appellant's credibility by pointing out that he had given three separate explanations for purchasing his share of the tobacco and that he now knew that Mr Candela purchased tobacco for commercial purposes.

The Appellant in interview with the Customs Officers initially stated that he purchased the tobacco for Mr Candela. However, at the end of the interview he stated that he purchased the tobacco for himself but he was not a smoker. The Appellant told the Customs Officer that he did not know why he purchased it. At the hearing he repeated that he did not have a good reason for buying the tobacco. He simply bought it because he was there and sometimes bought things that he did not want. We believed his explanation given at the hearing, particularly as the quantity of tobacco purchased was relatively small and inexpensive (one kilogram or 20 packs costing £57).

We consider that the Appellant's state of knowledge at the hearing about Mr Candela's intentions for the tobacco was not relevant. Since the seizure of the vehicle the Appellant has discovered facts about Mr Candela which he did not know at the time he travelled with Mr Candela to France. The pertinent question for this Appeal was his state of knowledge at the time of the trip. We are satisfied that the Appellant did not plan the trip with Mr Candela. The Appellant decided to travel with Mr Candela on impulse, as he was at a loose end in respect of his day off. The Appellant viewed the trip as a day out. He had not been to France for ten years and was looking forward to travelling through the Channel Tunnel. The Appellant did not know the quantities of excise goods purchased by Mr Candela. The Appellant accompanied Mr Candela once on his visit to shops. Mr Candela was very careful to hide his purchases from the Appellant by immediately putting them in the suitcase in the boot of the vehicle. We are satisfied on the facts that prior to the vehicle being searched by the Customs Officers the Appellant did not know and had no reasonable grounds to believe that Mr Candela was purchasing excise goods for commercial purposes.

The Appellant was not involved with the initial deception of the Customs Officers about the quantities of excise goods carried in the vehicle. Mr Candela answered the Officers' questions about the quantity of cigarettes or tobacco carried in the vehicle. At the time the Appellant had no reason to suspect that Mr Candela's answer was wrong. The Respondents contended that the Appellant was complicit with Mr Candela's unlawful importation in that he fully participated in the deception and smuggling attempt perpetrated by Mr Candela. We consider that the evidence adduced by the Appellant and the records of interview and subsequent correspondence did not support a finding of participation on his part in the smuggling attempt by Mr Candela. Also Mr Candela was very careful to keep his activities hidden from the Appellant, which meant that the Appellant had no grounds to contradict Mr Candela's replies to the Officers when they were stopped. We are satisfied that the Appellant only became aware of the extent of Mr Candela's activities after the vehicle was searched which revealed the contents of the suitcase in the boot of the vehicle.

Mr Candela's interview with the Customs Officer and his subsequent letters to the Respondents confirm our finding that the Appellant did not participate in the smuggling attempt. The overall tenor of Mr Candela's interview was that he acted alone in the purchase of the excise goods. On two separate occasions during the interview Mr Candela stated that the Appellant was not at fault and that the Appellant was a "good guy". Mr Candela continued with the same theme in his subsequent letters by stating that he was entirely to blame for the situation and the Appellant was being punished for his ignorance and Mr Candela's actions. Mrs Gillespie did not consider Mr Candela's explanation in her review decision.

The Respondents concluded that the Appellant had concealed excise goods in the seat backs, which reinforced their view that the Appellant was involved in the smuggling attempt. Mrs Gillespie in her review decision gave the impression that the majority of the goods were concealed under the seat covers. The facts were that Mr Hought's excise goods were in the seat backs, two bottles of whisky in one of the seat backs and twenty packets of hand rolling tobacco in the other. It would appear from the Officers' interview notes that the Appellant drew their attention to the bottles of whisky in the seat backs. The Appellant readily admitted in interview that he had placed the goods in the seat backs. He put the bottles of whisky in the driver's seat back to ensure that they did not break and to prevent them from rolling around. The Appellant placed the tobacco in the passenger's seat to keep it out of the way. In evidence the Appellant denied that he attempted to conceal his purchases. He saw nothing wrong in pulling the seat covers over the excise goods. The Appellant's evidence and his straightforward replies to the Officer including volunteering the information about the location of the goods have convinced us that the Appellant was not concealing his excise goods in the seat backs. We consider that the Appellant's action of pulling over the seat covers was indicative of his compulsion with keeping his vehicle tidy and spotless, rather than of an intention to hide his purchases.

We accepted the evidence of the Appellant and Mr Thompson, the Appellant's son-in-law, about the reason why the Appellant borrowed £200 from Mr Thompson, which essentially was that the Appellant did not have access at short notice to a ready source of cash. The fact that the Appellant brought back the majority of the £200 and that Mr Thompson did not smoke confirmed that he held no ulterior motive in borrowing the cash.

Mrs Gillespie decided that the Appellant suffered no exceptional hardship from the loss of his vehicle. Her decision was primarily based upon the fact that his wife was a registered keeper of another vehicle. In reaching her decision Mrs Gillespie did not appear to consider the Appellant's individual circumstances, in particular his difficulties of getting to work, his back problem and the general deterioration of his health arising from the seizure of his vehicle. At the hearing the Appellant referred to the vehicle as "his pride and joy" giving the impression that the vehicle represented the culmination of his working life. Also the seizure of the vehicle denied the Appellant and his family the use of the caravan which languished in the garden. When all these circumstances were taken together we are satisfied that they would constitute exceptional hardship.

Our Findings of Fact

Following the above discussion on the evidence and representations we make the following findings of fact:

(1) The Appellant's decision to travel with Mr Candela to France was taken on impulse with the purpose of having a day out.

(2) The Appellant and Mr Candela travelled in the Appellant's vehicle because of the Appellant's persistent back problem which made it difficult for him to travel in cars except his own vehicle.

(3) The Appellant borrowed £200 from Mr Thompson, his son-in-law, so that he had sufficient cash to make the journey. The Appellant held no ulterior motive for the borrowing, particularly as he brought back the majority of the cash.

(4) The Appellant had only been to France once before some ten years ago. He had no history of crossing the Channel to purchase excise goods.

(5) The Appellant was unaware of the quantities of excise goods purchased by Mr Candela who was careful to keep his purchases hidden from the Appellant by secreting them in a suitcase in the boot which could not been seen from the front of the car.

(6) The Appellant saw nothing untoward with Mr Candela placing purchases in the suitcase. The Appellant considered that it would enable Mr Candela to take his goods with him when the trip finished.

(7) The Appellant escorted Mr Candela only on one visit to the shops. The total number of visits to shops by Mr Candela, three in total, was not in our view sufficient to put the Appellant on notice.

(8) There was no prior agreement between the Appellant and Mr Candela about the purchase of excise goods.

(9) All the evidence pointed to Mr Candela operating on his own.

(10) The Appellant did not deceive the Customs Officers about the quantities of excise goods carried in the vehicle. It was Mr Candela who lied to the Customs Officers. At the time of being stopped the Appellant had no reason to suspect that Mr Candela was lying.

(11) The Appellant only became aware of the extent of Mr Candela's purchases when the suitcase was opened by the Customs Officers.

(12) The Appellant drew the Officer's attention to the bottles of whisky in the seat backs.

(13) The Appellant placed his goods in the seat backs for safe keeping. He had no intention of concealing them from the view of the Customs Officers.

(14) The Appellant's purchases of 20 packets of hand rolling tobacco, 10 bottles of wine and two bottles of whisky were well within the guide levels specified in the Regulations.

(15) The amount of money, about £70, spent on excise goods by the Appellant was not indicative that he was engaged in a commercial importation. The Appellant could easily afford the sum since he was in full time employment and had savings of £6,000.

(16) The Appellant's reason for purchasing the tobacco that he was there and sometimes bought things that he did not want was plausible having regard to the evidence. The reason given was broadly consistent with his explanation to the Officers that he did not know why he purchased the goods.

(17) The Appellant was not in cahoots with Mr Candela.

(18) The Appellant was not complicit with Mr Candela's unlawful importation of excise goods.

(19) The Appellant suffered exceptional hardship from the loss of his vehicle. The Appellant has relied on members of his family to transport him to work. The Appellant's severe back pain makes it difficult for him to drive vehicles other than his own. The protracted nature of the seizure proceedings has adversely affected his health. The Appellant has lost his most valuable possession which represented the efforts of his hard work throughout his life. The loss has severely interfered with his family life, in that they can no longer enjoy holidays and short breaks in their caravan.

(20) The Appellant purchased the vehicle for £23,000. The vehicle was three years old when seized with an estimated value of £16,000. The value of the excise duty evaded on the total importation including Mr Candela's share was £1,667.29. The amount of excise duty evaded by the Appellant's share of the importation was in the region of £150.

(21) The seizure of the Appellant's vehicle was disproportionate having regard to the facts that he was not acting in concert with Mr Candela and was not involved with Mr Candela's importation of excise goods.

Was the Decision of Mrs Gillespie Reasonable?

Mrs Gillespie's essential proposition was that the Appellant fully participated in the deception and the smuggling attempt by Mr Candela, thereby putting at risk his vehicle. Our findings on the primary facts do not support Mrs Gillespie's proposition. We derived our findings from the Appellant's evidence and from a careful examination of the record of interviews and the documentation which was available to Mrs Gillespie at the time of her review. Although Mrs Gillespie did not have the benefit of hearing the Appellant in person, it was evident from her consideration that she did not assess her proposition of the Appellant's full participation in the smuggling attempt against all the information available to her. We find no detailed examination in her consideration of Mr Candela's admissions of responsibility and the Appellant's denial of involvement with the smuggling attempt by Mr Candela. Further Mrs Gillespie did not weigh up aspects of the Appellant's interview which supported his account of the events. Mrs Gillespie focused in her consideration upon Mr Candela's role in the incident rather than on the Appellant's role. We are left with the impression that Mrs Gillespie has equated the Appellant's presence at the scene with full participation, and failed to consider critically the information before her.

Under section 141 of the Customs and Excise Management Act 1979 the Respondents were entitled to seize the vehicle which was carrying excise goods intended for commercial purposes. However, as the Respondents have pointed out this Tribunal was not considering the lawfulness of the seizure but whether Mrs Gillespie was reasonable in refusing restoration of the vehicle to the Appellant. The Court of Appeal in Lindsay v. Customs and Excise Commissioners [2002] EWCA Civ 267 held that in restoration decisions a fair balance needs to be struck between the rights of the individual and the public interest. The striking of a fair balance involves a realistic assessment of all the circumstances of an individual case, including the alternative sanctions available to the Commissioners rather than the automatic imposition of an oppressive penalty which could amount to an unconscionable interference with the rights of an individual.

We are not entitled to substitute our own decision for that of Mrs Gillespie's. Further we are not at liberty to hold Mrs Gillespie's decision unreasonable because we might disagree with it. We have to consider whether Mrs Gillespie's decision was reasonable in that she considered all relevant matters and disregarded irrelevant matters. We hold that Mrs Gillespie failed to give proper consideration to the entire interview of the Appellant by the Officers, the Appellant's subsequent correspondence and Mr Candela's admissions of responsibility, which were relevant information for the restoration decision. We find that Mrs Gillespie did not make a realistic assessment of the Appellant's individual circumstances, which resulted in Mrs Gillespie making unsubstantiated conclusions about the Appellant's culpability and involvement with Mr Candela's attempted smuggling of excise goods. Thus Mrs Gillespie applied the Respondents' restoration policy to an incomplete evaluation of the Appellant's circumstances. We, therefore, conclude that Mrs Gillespie's decision of 19 February 2007 was unreasonably arrived at within the meaning of section 16(4) of the Finance Act 1994.

Our Decision

In view of our finding that the Respondents' decision of 19 February 2007 was unreasonably arrived at, we allow the Appeal. We make no order for costs.

Orders

We are not entitled to order the Respondents to restore the vehicle to the Appellant with or without conditions. In exercise of our powers on Appeal under section 16(4) of the Finance Act 1994 we make the following orders:

a. The decision to refuse restoration of the vehicle shall cease to have effect from the date of release of this decision.

b. The Commissioners shall conduct a further review of the decision not to restore the vehicle and serve the same on both the Appellant and the Tribunal within 30 days of release of this Decision.

c. An Officer not previously involved with the case shall conduct the further review.

d. The further review shall be on the basis of the Tribunal's findings of fact set out in paragraph 34 of this decision.

e. The Review Officer shall take account of any further material or representations made by the Appellant within 14 days from release of this decision. The representations shall be made to HM Revenue and Customs Review Team, Detection South Region, Crownhill Court, Tailyour Road, Crownhill, Plymouth, PL6 5 BZ.

f. The Appellant will have a further right of appeal to the Tribunal if dissatisfied with the outcome of the further review.

MICHAEL TILDESLEY OBE

CHAIRMAN

RELEASE DATE: 25 October 2007

MAN/07/8014