United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2008/E01158.html
Cite as: [2008] UKVAT(Excise) E1158, [2008] UKVAT(Excise) E01158

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Geraldine Anne Wheeler v Revenue & Customs [2008] UKVAT(Excise) E01158 (19 December 2008)

E01158

Excise - restoration of vehicle owned by third party - review decision to restore on payment of a fee - Customs restoration policy considered - appeal dismissed

MANCHESTER TRIBUNAL CENTRE

GERALDINE ANNE WHEELER Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Elsie Gilliland (Chairman)

Carole Roberts (Member)

Sitting in public in Manchester on 17 November 2008

The Appellant in person

Josh Shields, Counsel, instructed by the General Counsel and Solicitor to Her Majesty's Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2008


 


DECISION

1. The appeal is that of Geraldine Anne Wheeler (the Appellant) against the decision of Customs on a review dated 30 May 2008 to restore the Appellant's car a Nissan Micra registration number PL03 PVF (the vehicle) to her on her paying a restoration fee. Initially this fee was put at £2104 the amount of the duty on tobacco evaded but subsequently on the purchase receipt for the vehicle being produced to Mark Collins the review officer (Mr. Collins) the restoration fee was reduced to £1650.
2. The Appellant told the tribunal that the vehicle was owned by her outright and that she was the main driver with her eighteen-year old son (Craig Alan Wheeler) the named driver. She had lent him the vehicle and without her knowledge he had driven to Belgium with a friend and had been stopped by Customs on the return journey on 23 February 2008. The evidence is that Customs had then seized and forfeited 18.5kgs of rolled tobacco which they considered that the two were smuggling into the United Kingdom. The vehicle was seized under s139(1) of the Customs and Excise Management Act 1979 (CEMA) as liable to forfeiture under s141(1)(a) of CEMA being a vehicle used to carry goods liable to forfeiture. The evaded duty was £2104.19. There was no appeal against the seizure of the goods and there were no condemnation proceedings.
3. It was accepted by Customs that the owner of the vehicle was the Appellant and the issue of restoration concerned a vehicle owned by a third party. In his evidence to the tribunal and earlier in his review letter Mr. Collins referred to the applicable policy of Customs in such circumstances. Where the vehicle owner could show that he or she was both innocent and blameless in respect of the smuggling attempt consideration might be given to restoring the vehicle for a fee; where the third party owner could show that in addition to being innocent and blameless he or she had taken reasonable steps to prevent smuggling in the vehicle then consideration might be given to restoring it free of charge. Mr. Collins said that this policy was set out in the Law Enforcement handbook which was adhered to by officers of Customs on the day and on review. In the present case he had not thought that the Appellant had taken reasonable steps to prevent the vehicle being used for smuggling.
4. The Appellant could not accept that on the one hand she could be seen as innocent and blameless as she was and yet have her car taken from her so that in effect she was paying the purchase price for the vehicle twice. She said her son was an adult; he had been driving for over a year; and she had acted responsibly in making sure that insurance was in place to cover him. The situation had caused her distress. The vehicle should be returned free of any fee.
5. The role of the tribunal is to consider whether the decision of Customs was one which they could not reasonably have arrived at. We test this by considering whether in making his decision the review officer took into account all relevant matters did not give weight to matters which were not relevant and had a proper understanding of the law. See Associated Provincial Picture Houses Ltd. v Wednesbury Corpn. [1948] 1KB 223. He has told us that he referred to and applied Customs policy. This policy is not embodied in legislation but is set out in a handbook available to and to be used by all officers. In this matter the car owner had not been present when the vehicle was stopped and had not been part of any smuggling operation but was deemed by the officer nevertheless not to be entitled to restoration of the vehicle free from the payment of a fee because she had not taken reasonable steps to prevent the vehicle being used in such an enterprise.
6. In our view it is appropriate for Customs to produce a policy by which its officers can apply a consistent approach in like circumstances. Mr. Collins in his review letter set out in some detail the reasons for his decision. This was based on the evidence and information available to him at that time. He did later agree a reduction in the restoration fee but this was still within the terms of his consideration at the time of the review. He confirmed at the hearing that he had then been aware from the notebook record of the interview with Craig Alan Wheeler at Dover on 23 February 2008 that he had made a trip abroad in the vehicle shortly before the trip when he was stopped. The review officer took the view that the Appellant had not taken on any responsibility for the use of the vehicle and was reckless in that regard.
7. To our mind it is perfectly reasonable and usual even within a family when lending a car to an eighteen-year old to ask where he is going and how long he will be away. The Appellant seems to suggest that this would have been intrusive in her relationship with her son. That is not the issue. What the tribunal is looking at is whether reasonable steps were taken by the Appellant in respect of the control and use of the vehicle. In her submissions the Appellant said that "you have to trust your children". She did not expect her son to be smuggling and indeed she did not think that her son realised what he was doing. It is however clear that had she asked some basic questions and for instance been told that he planned to drive to Belgium with a friend the outcome could well have been different. The only parameters would seem to have been that he knew that she needed transport for work and possibly that she would ring if he had the vehicle and she needed it. In cross-examination Mr. Collins put the estimated mileage for the trips known to have been made by the Appellant's son in the vehicle within a period of 13 days at some 1400 miles. Even allowing for the circumstances in our view her actions are not those of an owner exercising control over the vehicle.
8. The Appellant drew some analogies pointing out for instance that had her son hired a vehicle it would have been restored to the hirer. The arrangements in the matter before us are not commercial ones set out in contractual terms. The consent to use the vehicle here was personal with on the evidence no questions to be answered and few if any conditions imposed.
9. Another issue arose on the insurance cover both for use of the vehicle by her son and use of it abroad. Variously the Appellant had suggested that there was automatic cover then that there was none. She had insisted however that she had ensured that her son was "legal to drive". We can only look at the evidence at the hearing. The copy insurance certificate in the bundle of documents covered the period 19 November 2007 to 18 November 2008. The only persons covered are the named drivers the Appellant and Kerry Wheeler her daughter. It is clear from this certificate that her son was not insured to drive the vehicle whether in the UK or elsewhere. On the issue of entitlement to drive abroad, if a person is validly insured in the UK that person will also satisfy the minimum compulsory insurance requirement of another member state of the European Union. However that does not assist the Appellant as on the evidence produced her son was not covered at all. The Appellant acknowledged that she had not taken any steps to establish for the hearing that her son was covered by insurance though she said she could do so. She has not done so. This confirms our view that there was a lack of reasonable steps taken by the Appellant to exercise control over the vehicle and its use.
10. The Appellant referred also to the considerable hardship caused to her by the decision of Customs which deprived her of the use of her car. She had to travel to work and public transport did not meet her needs. At the hearing she expanded on the information available to Mr. Collins at the time of the review. She had three unemployed children aged nineteen twenty one and twenty two years living at home and reliant on her. She had had initially on the confiscation of the vehicle to borrow cars ; the additional vehicle of which she had been shown the keeper a Fiat Punto registration number S931 TWE was an old unreliable car of her daughter and she the Appellant had borrowed £500 to put it in order for her own use. She had been without a car for some 2 months. She said that she was driving 250 miles per week though we have no precise record. In addition to driving to work she mentioned also a weekly trip to see her brother who has learning disability. It is likely to be the case that some problems whether financial or domestic will be incurred on the loss of a vehicle in circumstances such as those before us. This follows where there has been a breach of a provision and a penalty imposed. We do not consider in the instant case that the imposition of a fee of £1650 for the restoration of the vehicle is disproportionate nor that any difficulties which may have been experienced by the Appellant arising from the decision of Customs constitute exceptional hardship.
11. We dismiss the appeal
12. Customs have not sought costs and we make no direction on costs.

MAN 08/8085

ELSIE GILLILAND

CHAIRMAN
Release Date: 19 December 2008