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United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Kelly v Revenue & Customs [2008] UKVAT(Excise) E01129 (29 July 2008)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01129.html
Cite as: [2008] UKVAT(Excise) E01129, [2008] UKVAT(Excise) E1129
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- This is an application by the Respondents to strike out an Appeal Notice lodged on behalf of the Appellant by his advisers, Messrs. Tiernans Solicitors ("Tiernans") dated 12th February 2008.
- The Appeal is against an assessment dated 17th December 2002 for the payment of excise duty in the amount of £770,350, which was assessed in relation to the importation of 718,396 litres of DERV. The DERV was alleged to have been imported to Northern Ireland without payment of excise duty in breach of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992.
- From the limited information before the Tribunal it would appear that the case arose out of criminal proceedings brought against the Appellant in 2001 / 2002 relating to the illegal importation of fuel and the assessment which was raised in December 2002 ("the Assessment") appears to have been raised on the back of those proceedings.
- The letter under cover of which the assessment was sent to the Appellant was dated on 17th December 2002 and required immediate payment of the excise duty so assessed. The letter included details as to how the Appellant could lodge an appeal. It also including the following paragraph:
- In response to that letter, Tiernans wrote to the Respondents on the 8th January 2003, pointing out that the Assessment was linked to criminal proceedings against the Appellant then outstanding, and proceeded to request that:
- Customs responded to that request by way of a letter dated the 21st January 2003. In that letter, the reviewing officer who signed the letter stated that:
- The exact details of what happened next are not clear, but it would appear that there was no follow up letter from Tiernans and matters were left in abeyance pending the outcome of the criminal case. That case concluded in 2005 and resulted in the Appellant's acquittal. In October 2005 the case was referred to the Debt Management Unit of HMRC after which, again, there are very few details as to what exactly occurred. The next definitive action appears to have been the serving of a statutory demand in October 2007 – almost two years later. Mr. McNamee from Tiernans suggested that during the intervening period an earlier statutory demand had been served, but was then withdrawn because it had been served in accordance with English practice and procedure and not in accordance with NI law, and therefore the service of those proceedings was initially defective. In any event, it would appear that the service of the statutory demand in October 2007 brought a further impetus to the case which, after correspondence passing between the parties, resulted in the appeal notice which Tiernans signed on the 12th February 2008.
- The Respondents now assert that this appeal notice should be struck out for two reasons:
- In support of her argument, Ms. Tilling cited the nine points referred to in the Chairman's judgment in Medical House and applied them to the facts of this case.
- That there has been no review of the decision in dispute seems to be quite clear from the information before this Tribunal. From that information it would seem that when the criminal proceedings were concluded, the internal procedures for the collection of the Excise Duty simply recommenced without any reconsideration of the case. The Respondents relied heavily upon the terms of their letter of January 2003 from the Reviewing Officer, which made it quite clear to Tiernans that there would be no review unless asked for, and that all that was being "adjourned" was the requirement to pay the Excise Duty until the criminal proceedings were completed. That is the literal interpretation of that letter. The consequence was that no review was conducted and, therefore, no appealable matter arises before this Tribunal. That is sufficient to dispose of the Appeal which I now strike out on that basis.
- Given the finding above, and the fact that it disposes of the appeal, I do not have to deal with the Respondent's second ground but, for the sake of completeness, based on the principles expounded in the Medical House Case, I would not have been minded to extend the period within which the appellant could have appealed, but because of the earlier findings, I do not specifically deal with that issue.
- For the reasons given, this cause do not disclose an appealable matter and is therefore struck out.
- No order as to costs.
E01129
MANCHESTER TRIBUNAL CENTRE MAN/08/8005
PAUL KELLY Appellant
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Sitting in private in Belfast on 21st April 2008
Mr. Daniel McNamee, Solicitor, for the Appellant and
Miss Kim Tilling of the Solicitors Department of HM Revenue & Customs for the Respondents
The Appeal
"I am sure that the appeal officer will accept another request to adjourn any further action until the outcome of any criminal proceedings is known. You do need however to make the rather formal request for such a postponement direct to the appeals officer."
"any further action in this matter ……… be adjourned until the outcome of the criminal proceedings is known."
"I understand from your letter [ie. meaning Tiernan's letter of 8th January 2003] that you are, at this stage, not seeking such a review of the assessment, but that its payment be suspended until any criminal proceedings are completed. If my understanding is incorrect, please indicate that you do wish a review of this assessment as soon as possible."
(a) in the first place, there was no review of the original decision and so no appealable matter arises;
(b) in the second place, that the appeal is significantly out of time – it having been lodged some six years after the Assessment.
In support of that argument, they placed reliance, in particular, on the letter which was sent to Tiernans on the 21st January 2003 (quoted above) which made it quite clear that it was not the review that was being adjourned or suspended, but simply the requirement to pay, and that, secondly, based on the case The Medical House plc –v- HMRC [19859], in the interests of justice, the appeal should be struck out as out of time, and that time should not be extended because of the inordinate delay.
The Review
Application for the Appeal to be heard out of time
Conclusion
Costs