United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01071.html
Cite as: [2007] UKVAT(Excise) E1071, [2007] UKVAT(Excise) E01071

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Nicola Robb v Revenue & Customs [2007] UKVAT(Excise) E01071 (01 November 2007)

E01071

EXCISE DUTIES — travellers importing tobacco goods — importation to be treated as commercial — car used for journey owned by third party — car seized and restored on payment of duty on tobacco — whether decision to impose requirement of payment reasonably arrived at — no — further review directed

MANCHESTER TRIBUNAL CENTRE

NICOLA ROBB Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Colin Bishopp (Chairman)

Gilian Pratt

Sitting in public in Manchester on 19 October 2007

The Appellant in person

Adam Watkins, counsel, instructed by the Solicitor and General Counsel for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION

1. On 13 April 2006 the Respondents seized a car owned by the Appellant, Nicola Robb, at the entrance to the Channel tunnel at Coquelles. Miss Robb was not present at the time, and the car was being driven by her then partner, Michael Taylor. His cousin, Anthony Scott, and Mr Scott's partner, Janet Jenkins, were passengers in the car. The three travellers were returning from a trip to Belgium where they had bought, between them, 24½ kilos of hand rolling tobacco and 200 cigarettes. The Respondents' officers who intercepted them at Coquelles took the view that the goods were being imported for what are shortly known as commercial purposes and, since the travellers had not offered to pay UK duty on them, they seized the goods, exercising the powers conferred on them by section 139(1) of the Customs and Excise Management Act 1979.
2. Section 141(1) of that Act also enables the Respondents to forfeit, among other things, any vehicle used for the importation of excise goods in such circumstances, and it was in the exercise of that power that Miss Robb's car was seized. She asked the Respondents to restore it to her, in accordance with section 152(b) of the Act, on the grounds that she was entirely innocent in the matter. They agreed to do so, but only on the condition that she pay to them the sum of £2,723.32, representing the UK duty which should have been paid on the tobacco. Miss Robb has paid the amount demanded, in order to retrieve her car, but has appealed to this tribunal against the terms of the restoration offer, in the hope of recovering her money. We may allow her appeal only if we are satisfied that the decision on review, upholding the terms offered, was one at which the Respondents could not reasonably have arrived: see section 16(4) of the Finance Act 1994.
3. We had some evidence from Miss Robb about the importation itself, as well as information provided by Adam Watkins, counsel for the Respondents, and various documents relating to the importation and the seizure. However, Mr Taylor had challenged the seizure of the car and of his share of the tobacco by causing the Respondents to take condemnation proceedings in the magistrates' court. Although he was successful in respect of his tobacco, the magistrates made an order condemning the car and Mr Scott's share of the tobacco (apparently in the absence of any challenge by him to its seizure) and, following an appeal by the Respondents to the Crown Court, Mr Taylor's tobacco too was condemned. We cannot revisit the findings of the magistrates and of the Crown Court and must approach Miss Robb's appeal on the footing that the tobacco was brought into the UK for commercial purposes, that is, not for the personal consumption of the travellers, and that her car was properly seized.
4. Section 152(b) of the Act enables the Respondents to restore goods, including cars, which they have seized "subject to such conditions (if any) as they think proper". Thus they have a discretion but, as in the case of any public body on which a discretionary power has been conferred, they must exercise it reasonably and fairly. The Respondents have a policy which their officers are expected to follow when they are called on to consider the restoration of cars seized in these and similar circumstances. As the published policy indicates, where, as here, the owner was not present at the time of seizure "and was either innocent or had taken reasonable steps to prevent smuggling in the vehicle" it is the practice to restore the vehicle without charge, but where the owner is thought to be blameworthy in some way restoration will not be offered free of charge. An owner complicit in smuggling will not have the vehicle restored at all; one whose blame is of a lesser kind will be offered restoration on terms. We see nothing offensive, in principle, in the use by the Respondents of a policy, nor in the terms of the policy itself. The policy must, however, be applied correctly to the facts of the individual case, and with a measure of flexibility in borderline cases. The Respondents' conclusion in Miss Robb's case, upheld on the review which Miss Robb requested, was that she fell in the latter category, that is she was not complicit but had taken insufficient steps to prevent the use of her vehicle for smuggling, and that restoration should be offered on the terms we have mentioned.
5. In reaching that conclusion the officers concerned took into account, first, the commercial nature of the importation (as they were plainly right to do) and also replies given by Mr Taylor when he was interviewed at Coquelles, as well as the information provided by Miss Robb in response to a questionnaire sent to her by the Respondents. One answer given by Mr Taylor which the officers considered significant was that he had said the car was his, but we observe that he did so in response to a question which he could reasonably have understood to have been designed to discover which of the travellers was the owner. In fact, as Miss Robb told us (and as she had told the Respondents in her answers to the questionnaire) the car was hers but Mr Taylor, as her partner, had the use of it whenever he liked, subject only to her not needing it herself and to his being accompanied by a qualified driver, as he had only a provisional licence. We regard this answer as insignificant and we note that, although the officer first considering the restoration request dwelt on it, the review officer did not. He did, however, make the point in the letter communicating his decision that restoration to Miss Robb was tantamount to restoration to Mr Taylor. By that time, however, the car had already been restored to her. As it happens, Miss Robb told us, her relationship with Mr Taylor has broken down and he no longer has the use of the car, but the review officer could not have been aware of that fact.
6. More important is the review officer's conclusion that Miss Robb knew that Mr Taylor and Mr Scott intended to buy tobacco. She told us she did indeed know that that was their intention, although the principal purpose of the trip, she understood, was to enable them to visit their grandfather's grave in Flanders. She had, at that time, been living with Mr Taylor and their children for 18 years and she was aware that on two previous occasions he had travelled to Belgium in order to buy tobacco. On the first occasion, some four years earlier, he had been intercepted and his tobacco had been seized, but he had challenged the seizure and his challenge had been successful in the magistrates' court. On the second, two years previously, he had been stopped by the Respondents' officers but allowed to proceed with his goods. Miss Robb told us that the quantities Mr Taylor had bought on those occasions were similar to the quantity he had bought on this, that he had smoked the tobacco himself, and that the tobacco he bought on the later trip had lasted until shortly before this trip. We observe that Mr Taylor mentioned the trip two years previously quite openly when asked about it at Coquelles (he was not asked about the trip four years previously) and there was no suggestion, either in the correspondence or at the hearing, that what he had told the officers, or what Miss Robb told us, was inaccurate in any particular. We add that we have no doubt that Miss Robb is a truthful witness.
7. Mr Watkins put it to her that, knowing of the previous trips, and of Mr Taylor's purchases then of tobacco, she should have refused to lend him her car for another trip, or have imposed some restriction on him to ensure that he bought only a modest amount. We share her view that it is unreasonable and unrealistic to expect her to do anything of the kind. She knew that on two previous occasions Mr Taylor had bought tobacco, in similar quantities. On one occasion the magistrates had concluded that he had made a legitimate importation, and on the other the Respondents' own officers had given him a similar indication. The notion that she should have told him not to do something he and she believed, on reasonable grounds, he was entitled to do (and, if he genuinely intended to smoke the tobacco himself, as we are quite satisfied Miss Robb believed, was in fact entitled to do) does not withstand scrutiny, and her failure to take any such steps is not a factor which a review officer ought to have taken into account. In our view no blame of any kind attaches to Miss Robb.
8. It follows that, the review officer having taken an irrelevant matter into account, his decision was not one at which he could reasonably have arrived, and the appeal must be allowed. Section 16 of the 1994 Act limits our power, in a case of this kind, to the directing of a further review, and we therefore direct that the Respondents shall carry out a further review, to be undertaken by an officer hitherto unconnected with the case, who shall take into account the findings we have made. The review is to be concluded within six weeks of the release of this decision and its outcome is to be communicated immediately thereafter to Miss Robb and to the tribunal. If Miss Robb remains aggrieved by the outcome of that review, she may make a further appeal to this tribunal.

COLIN BISHOPP

CHAIRMAN
Release Date: 1 November 2007

MAN/06/8045