United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01123.html
Cite as: [2008] UKVAT(Excise) E01123, [2008] UKVAT(Excise) E1123

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Robert Bulmer v Revenue & Customs [2008] UKVAT(Excise) E01123 (27 June 2008)

E01123

HYDROCARBON OILS DUTIES – Appellant purchased vehicle for £200 to enable his son to visit his terminally ill Mother – appellant repaired vehicle and son filled it with petrol at supermarket – vehicle checked - fuel contained 41% kerosene – no reasonable excuse – dismissed

MANCHESTER TRIBUNAL CENTRE

ROBERT BULMER Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: DAVID PORTER (Chairman)

JON P M DENNY (Member)

Sitting in public in Manchester on 5 June 2008

The Appellant appeared in person

Bernard Haley, instructed by the Solicitor for HM Revenue and Customs appeared for the Respondents

© CROWN COPYRIGHT 2008

DECISION

.In this appeal Robert Bulmer appeals against a decision dated 6 August 2007 which imposed two civil penalties of £250 each for "taking in" and using" rebated fuel. The Appellant believes that the fuel put in the vehicle by his son must have been contaminated when it was supplied by the supermarket. The Respondents says that it is not reasonable to believe that the supermarket fuel was contaminated.

The Appellant appeared in person and called David Stringer as a witness. Bernard Haley appeared for the Respondents and produced a bundle of documents for the tribunal.

The Facts

Robert Bulmer, who had run a road haulage business known as "RSJ Trucks" up to his retirement (he is now 70 years of age) said that he had bought a Citroen Estate car registration L240 SFM on 30 June for £200 from Mr Stringer so that his son, Drew Hunter-Fox, could use it to travel from his home to see his Mother, who was dying. The vehicle was registered to Mr Bulmer in his original trading name of RSJ Trucks.

Mr Bulmer confirmed that he still had fuel tanks at his home from the time that he ran his road haulage business, although he assured us that they were empty. He also confirmed that he was familiar with the regime for red diesel but he was less knowledge about the regime for kerosene. Mr Stringer, who gave evidence, said that he runs a shop which sells motor car parts from scrap cars, which he acquires from time to time. He knew that Mr Bulmer was looking for a car and he arranged to collect the Citroen on a low-loader and he and Mr Bulmer repaired it. They had not put any diesel in it, but as it was very low on fuel, Mr Bulmer told his son that as the fuel tank was registering empty, he would have to fill it up. His son (who had changed his name to Hunter-Fox ,previously) collected the car in the evening. We were told that he had put £15 of fuel into the car at Morrisons on his way to work the next day.

On the same day, 2 July 2007, Customs Officers were on duty with the Police on the A666 Manchester Road Kearsley. They stopped Mr Bulmer's son and tested the vehicle, and whilst the Customs Officers were checking the fuel sample the police allowed Mr Hunter-Fox to leave. The test proved positive, revealing that the fuel contained 41% kerosene. The Customs Officers arranged to meet Mr Bulmer's son at his home, 2 Chepstow Road, Clifton. It was unclear when the meeting was arranged for. Mr Bulmer's son believed the meeting to be at 9.00 am but the Respondents indicated that it was at 10.00 am. Because his mother was anxious to see him, and as the officers had not arrived by 9.30 am he went to see his Mother. He did not ring the officers to ascertain where they were and indeed if and when they were due to visit him. The notice of the sampling was sent to Mr Bulmer's son and the result of the test sent to Mr Bulmer on 31 July 2007. Mr Bulmer's son was never interviewed and the only evidence as to the supply of the fuel was provided by Mr Bulmer, who said that his son and told him that he had put £15 of fuel into the car at the supermarket using his credit card.

His son did not attend the hearing and the credit card receipt was not produced as evidence.

The Law

Section 9 of the Finance Act 1994 provides:-

"(2) Any person to whose conduct this section applies shall be liable –

(a)….

(b) in any other case, to a penalty of £250.

Hydrocarbon Oil Duties Act 1979 provides:

"Section 12 Rebate not allowed on fuel for road vehicles.

(1) if, on delivery of heavy oil for home use, it is intended to use the oil as fuel for a road vehicle, a declaration shall be made to that effect in the entry for home use and thereupon no rebate (under section 11 above) shall be allowed in respect of that oil.

(2) No heavy oil whose delivery for home use rebate has been allowed – shall –

a. be used as fuel for a road vehicle; or

b. be taken into a road vehicle as fuel,

Section 13. Penalties for misuse of rebated heavy oil.

(1) where any person

a. uses heavy oil in contravention of section 12 (2) above; or

b. is liable for heavy oil being taken into a road vehicle in contravention of that subsection,

(his use of the oil (or his becoming so liable (or, when his conduct include both, each of them)) shall attract a penalty under section 9 of the Finance Act 1994 (civil penalties);"

Summing up

Mr Haley submitted that no reasonable excuse had been given under section 10 of the Finance Act 1994. Mr Bulmer is the owner of the vehicle and he had required his son to fill it up. No evidence had been given as to the circumstances in which the vehicle came to be fuelled other than the statement by Mr Bulmer. It was unlikely that the contaminated fuel had come from the supermarket and the kerosene must have been put in by his son.

In the circumstances two penalties of £250 were incurred for taking in the kerosene and using the vehicle and the appeal should be dismissed.

Mr Bulmer submitted that he knew all about red diesel as he had run a road haulage business in the past. Although he was unsure he believed it was dangerous to put kerosene into a vehicle. The vehicle had been empty when his son took it in the evening and the only time it was filled up was when his son went to the supermarket. He had no reason to disbelieve his son and if Customs thought that the supermarket was at fault, they should have made appropriate enquiries.

The decision

Having heard the evidence and considered the law we dismiss the appeal. Mr Bulmer does not have a reasonable excuse. We are satisfied that the vehicle had been filled with 41% kerosene. We are also satisfied that the kerosene was put in the vehicle by his son. Unfortunately his son did not attend the hearing and we can only assume that that was because he knew the source of the kerosene. The credit card receipt form the £15 of fuel purchased at Morrisons garage on 2 July 2007 was not produced. His son has made no attempt to meet with Customs Officers to explain the position to them. Mr Bulmer stated that he did not think his son needed to come nor that it was necessary to produce the receipt. We have considerable sympathy for Mr Bulmer for the loss of his wife, which occurred during this period, but as someone who had been involved in the road haulage business he must have known (as he admitted) how seriously these matters were taken and he must have known that his son had put the kerosene in the vehicle. We therefore dismiss the appeal and confirm the penalty amounting to £500. We do not, however, make any order for costs

DAVID PORTER

CHAIRMAN
Release Date: 27 June 2008