United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01105.html
Cite as: [2008] UKVAT(Excise) E01105, [2008] UKVAT(Excise) E1105

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Emil Malinowski v Revenue & Customs [2008] UKVAT(Excise) E01105 (07 April 2008)

E01105

EXCISE DUTY – seizure of cigarettes and vehicle – Appellant claimed that the vehicle belonged to him and that he was unaware of the conduct of the driver – refusal to restore the vehicle – Appellant appealed under Finance Act 1994 s 16(4) – Appellant decided at the hearing not to pursue his appeal – appeal dismissed

LONDON TRIBUNAL CENTRE

EMIL MALINOWSKI Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: EDWARD SADLER (Chairman)

R G GRICE

Sitting in public in Birmingham on 3 April 2008

The Appellant appeared in person

Mr Rupert Jones of counsel, instructed by the General Counsel and Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2008


 


DECISION

1. This is an appeal by Mr Emil Malinowski against the decision of the review officer of The Commissioners of Her Majesty's Revenue and Customs ("the Commissioners") to refuse to restore to Mr Malinowski his car which had been seized and forfeit by the Commissioners in connection with their seizure and forfeiture of cigarettes being imported in the car into the United Kingdom. In the circumstances mentioned below at the commencement of the hearing Mr Malinowski decided that he wished to give no evidence in support of his appeal and, in effect, to withdraw his appeal. We therefore dismiss his appeal.
2. In brief summary the background to Mr Malinowski's appeal is as follows. On 22 January 2007 a Mr Pietrzyk, a Polish national at that time living and working in the United Kingdom, was intercepted at Dover whilst driving an Opel Omega car registered in Poland. Mr Pietrzyk was questioned and the car examined by an officer of the Commissioners. 20,580 cigarettes were found hidden about the car (which had been adapted to enable the cigarettes to be hidden), but Mr Pietrzyk had declared only 8 packets of cigarettes when questioned. Both the cigarettes and also the car were considered by the Commissioners to be liable to forfeiture, and so they were seized and the usual forfeiture procedures were followed, the cigarettes and the car being condemned as forfeit by the passage of time under the relevant provisions in the Customs and Excise Management Act 1979. Mr Pietrzyk requested restoration of the car, asserting that the car was his and producing a Polish vehicle registration document with his name as the registered owner. He did not challenge the legality of the forfeiture. On 28 February 2007 the Commissioners wrote to Mr Pietrzyk refusing to restore the car.
3. Mr Malinowski is also a Polish national currently living and working in the United Kingdom. In April 2007 he wrote to the Commissioners claiming that he was the owner of the car and requesting its restoration. His case was that he had purchased the car from Mr Pietrzyk (with whom he had shared accommodation in the UK for several months in 2006) in Poland on 21 January 2007, and that Mr Pietrzyk had offered to take the car to the UK to be available for Mr Malinowski when he returned there from Poland. Mr Malinowski claimed that he was unaware that the car had been adapted for smuggling cigarettes or that Mr Pietrzyk was engaged in any smuggling activities. He said that when he returned to the UK he had been unable to trace Mr Pietrzyk nor could he understand why his car had not been delivered to him. He said that he eventually learnt from relatives of Mr Pietrzyk in Poland about the seizure and forfeiture of the car, and he was shown the documents from the Commissioners relating to the forfeiture. He claimed that as soon as he was aware of this he took action requesting the car's restoration. In support of his claim that he, and not Mr Pietrzyk, was the owner of the car when it was seized, Mr Malinowski produced a handwritten document (in Polish, but with an English translation) dated 21 January 2007 purporting to be an agreement whereby Mr Pietrzyk sold the car to Mr Malinowski, and also various documents (in Polish, and again with English translation) seemingly issued by the Polish tax authorities and referring to tax payments made by Mr Malinowski in relation to the car. The earliest of these tax documents is date stamped 26 March 2007.
4. On 21 May 2007 the Commissioners wrote to Mr Malinowski refusing restoration of the car. Mr Malinowski then asked for a review of this decision, and the matter was reviewed by a Review Officer of the Commissioners, who on 27 July 2007 wrote to Mr Malinowski with his decision not to restore the car to him, setting out the review process he had conducted, the Commissioners' policy with regard to the restoration of seized vehicles used for smuggling, the matters taken into account in reaching his decision, and the reasons for the decision not to restore the car, the principal one of which was that Mr Malinowski had not established to the satisfaction of the Review Officer that he was indeed the owner of the car. It was against that decision that Mr Malinowski appealed to the Tribunal under the provisions of section 16(4) Finance Act 1994.
5. Immediately prior to the commencement of the hearing of the appeal the Tribunal Chairman called into his room (Mr Grice, the member, also being present) Mr Malinowski and Mr Jones, who appeared for the Commissioners, to discuss the conduct of the hearing in the circumstances where Mr Malinowski had no representative and was unfamiliar with the Tribunal's procedures and had an adequate, but not extensive, knowledge of the English language. In the course of that discussion the Chairman explained to Mr Malinowski that he would be required to give his evidence as to the facts as he understood them under oath, and that, also under oath, he would in all likelihood be questioned by way of cross-examination by Mr Jones for the Commissioners. Mr Malinowski asked what this meant. The Chairman explained the significance of evidence given under oath, the importance of the Tribunal knowing that witnesses were serious in their intent of telling the truth, the consequences (including criminal liability) which could follow where a witness deliberately lied when giving evidence in a court of law such as the Tribunal, and the procedure for swearing the oath or making the affirmation. Mr Malinowski expressed some agitation at this, and said that he had not realised that he would have to give evidence in these circumstances, as it was not the case in the Polish courts that evidence was given under oath except for cases of serious criminal charges. He asked to make a telephone call. On returning from making his call he said that he did not want to give evidence under oath and that therefore he would not proceed with his appeal. The Chairman pointed out that presumably he had come prepared to tell the Tribunal his understanding of the facts as truthfully as he could, and that to do so under oath was not therefore such a major additional requirement or responsibility. The Chairman also pointed out that if Mr Malinowski decided at this point not to proceed with his appeal, his appeal would be dismissed and he would have no further opportunity to seek the restoration of the car. Mr Malinowski said that he understood this, but he did not want to proceed. He said that in any event the car, which had stood unused since January 2007 in the custody of the Commissioners, was now not likely to have significant value.
6. In view of Mr Malinowski's decision not to proceed with his appeal we therefore dismiss his appeal. In so doing we want to record that there was nothing in the behaviour or demeanour of Mr Malinowski which suggested to us that his case as made out to the Review Officer was based on untruths. In the Tribunal's limited dealings with him he appeared as a serious and thoughtful man involved in a process with which, for perhaps understandable reasons, and despite the attempts of the Tribunal to explain matters to him, he was not familiar or comfortable.
7. Mr Jones took instructions on the question of costs, and told us that he was instructed not to ask for costs. We therefore make no order for costs in this appeal.

EDWARD SADLER

CHAIRMAN

RELEASE DATE: 7 April 2008

LON/2007/8084