United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01099.html
Cite as: [2008] UKVAT(Excise) E1099, [2008] UKVAT(Excise) E01099

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Gordon Coleman v Revenue & Customs [2008] UKVAT(Excise) E01099 (19 March 2008)

E01099

Excise Duties: Importation of Cigars – Cigars ordered from Spain by UK resident via internet – goods delivered to purchaser for the purpose of making a gift to his father – goods seized no indicator of gift on parcel – whether offer of restoration reasonable – appeal dismissed.

EDINBURGH TRIBUNAL CENTRE

GORDON COLEMAN Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: (Chairman): T Gordon Coutts, QC

Sitting in Edinburgh on Wednesday 19 March 2008

for the Appellant Mr Gordon Coleman

for the Respondents Mr James Puzey, Barrister

© CROWN COPYRIGHT 2008.
 


DECISION

The Appellant whose bona fides were not challenged gave evidence to the Tribunal that as he had done on several occasions he wished to make a gift to his father. On previous occasions he had imported cigars while travelling back to the UK, thus he had sent them by post. On the instant occasion he ordered via the internet cigars to the weight of 1kg. These were dispatched by post to him at his address to his knowledge in a plain packet. His intention was that they be re-packaged and delivered to his father as a gift. His father's address was thought to be such as to make it likely that packages might go missing.

The Appellant genuinely thought that he was entitled so to operate. His clear intention was to make a gift and had he travelled with the goods he would have done so. Had he travelled with the goods there would have been no difficulty.

The European Court in P F Joustra, 23 November 2006, made it clear that a private individual who is not operating commercially acquires in one member state for his own personal requirements products subject to excise duty which have been released for consumption in that member state and arranges for them to be transported to another member state on his behalf by a transport company must pay excise duty in the receiving state, although he is, however, entitled to apply for any duty paid in the first state to be refunded. Mr Coleman falls squarely within that European Court Decision.

At the time, although it is understood not any longer, there was a gift concession applied by HMRC. However the conditions attached to that as indicating whether the concession would apply stipulate that the goods must have been sent by one private person to another private person. The situation in the present case is that the goods were sent to the order of one private person to himself and sent by a commercial company.

There is accordingly no way in which the Appellant's appeal against the sum demanded as restoration can succeed. The goods were correctly forfeit and if the Appellant wishes their return he must pay the excise duty and VAT related thereto and an administrative penalty. The Tribunal understood from the Appellant that that would not be economically sensible.

In the event however the appeal has to be dismissed.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE: 19 MARCH 2008

EDN/07/8017