United Kingdom VAT & Duties Tribunals (Insurance Premium Tax) Decisions

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Cite as: [2005] UKVAT(IPT) IPT12, [2005] UKVAT(IPT) IPT00012

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Travelers Casualty & Surety & Others v Customs and Excise [2005] UKVAT(IPT) IPT00012 (06 May 2005)

IPT0012

INSURANCE PREMIUM TAX – Exemption – Reinsurance – Transfer of risk by insurers issuing surety bonds to reinsurers – Whether reinsurance although surety bonds not insurance contracts – FA1994 Sch 7A para 1 – Appeal allowed

LONDON TRIBUNAL CENTRE

TRAVELERS CASUALTY & SURETY

COMPANY OF EUROPE LTD

ZURICH GSG LIMITED

LLOYD'S SYNDICATE 33

ST PAUL INTERNATIONAL INSURANCE COMPANY LIMITED

NEW HAMPSHIRE INSURANCE COMPANY LTD

EULER HERMES GUARANTEE PLC

DE MONTFORT INSURANCE COMPANY PLC Appellants

and –

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: THEODORE WALLACE (Chairman)

K S GODDARD MBE

Sitting in public in London on 21 October 2004

Gabriel Moss QC, instructed by Barlow Lyde and Gilbert, for the Appellant

Andrew Neish, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2005

DECISION

This appeal concerns the treatment for insurance premium tax of premiums paid by insurers to other insurers in respect of their risks on surety bonds. The issue is whether such premiums are for reinsurance within Schedule 7A, paragraph 1, of the Finance Act 1994 and are therefore exempt.

The Appellants are all insurers writing direct surety business. The appeal is against a review decision dated 17 February 2004 which confirmed a decision in Business Brief 25/03 dated 8 December 2003 that the premiums payable on the reinsurance of surety bonds are liable to insurance premium tax ("IPT").

The review was requested by the Appellants. It was agreed by both parties that although it did not concern specific premiums the decision fell within section 59(1)(a) of the Finance Act 1994 and that the Tribunal has jurisdiction to hear the appeal. The implementation of the ruling in the Business Brief was in fact delayed until 1 April 2004. The ruling followed a correspondence between the Association of British Insurers and Customs over several years following a meeting in 1999. Prior to the ruling insurers had treated premiums charged to insurers issuing surety bonds as exempt.

The relevant part of the Business Brief read as follows:

"1, Insurance premium tax : implementation of Customs' ruling on the liability of the 'reinsurance' of surety bonds

Customs has recently completed a review of the Insurance Premium Tax (IPT) liability of premiums receivable under contracts covering risks guaranteed by way of surety bonds (i.e. contracts for the 'reinsurance' of surety bonds).

As a result of the review, Customs has concluded that those 'reinsurance' contracts are in fact contracts of primary insurance for IPT purposes (the bond contracts falling outside the scope of IPT because they are contracts of guarantee and not written as contracts of insurance). Therefore, premiums receivable under those contracts are liable to UK IPT when the risk covered (i.e. the surety bond provider) is located in the UK."

The review decision confirmed the Business Brief and considered the meaning of reinsurance in Schedule 7A, paragraph 1 to the Finance Act 1994. The Act contains no definition of reinsurance.

Under section 70 of the 1994 Act any contract of insurance is a taxable insurance contract unless it falls within Part I of Schedule 7A. Paragraph 1 of Schedule 7A reads,

"1. A contract falls within this paragraph if it is a contract of reinsurance."

There were no oral witnesses and no witness statements. The Appellants put in evidence an expert reinsurance underwriter's report by Ernest A Cheal, ACII dated 7 October 2004 and a supplementary report dated 20 October 2004. Mr Neish objected to the supplementary report stating that he had not seen either when preparing his submissions and that the supplementary report was only dated on the day before the hearing. Unlike under the Special Commissioners (Jurisdiction and Procedure) Regulations 1994, there is no requirement in the VAT Tribunals Rules 1986 for prior service of expert evidence. The Civil Procedure Rules do not apply to the Tribunal which has a wide discretion as to the evidence it will receive. We consider that it would be wrong to exclude this evidence. Such value as the decision has would be reduced if we declined on a technical ground to take account of evidence which might be adduced in another appeal.

A treaty incepting on 1 January 2004 between Zurich GSG Limited and Hannover Rueckversicherung AG, described as an obligatory reinsurance treaty, was produced in evidence. Article 2.1 headed "Reinsurance cover" provided,

"2.1 GSG may cede to the Reinsurer upon the terms and conditions of this Treaty (and the Reinsurer shall accept obligatorily) Bonds or parts of Bonds having a total value not exceeding the Treaty Limits in respect of each Name or Group and the Reinsurer shall indemnify and keep indemnified GSG from and against the same and any Losses arising therefrom in the Reinsurance Percentage."

"Bond" was defined in the Schedule as meaning,

"Subject to the Treaty Limits any bond, guarantee, cautionary obligation, indemnity or other obligatory instrument (but excluding Financial Guarantees) in whatever form including …"

There followed a list of different types of bond including construction bonds, Customs and Excise bonds and bonds issued by national statutory or fiscal authorities.

At the request of the Tribunal the parties produced an agreed statement of facts after the hearing. This included as an attachment a number of specimen surety bonds and sample contracts whereby the insurers transferred all or part of the risks under the original bonds. These latter contracts describe the ceding company as the reinsured and the assuming companies as the reinsurers. The reinsurers subscribing included some of the major international reinsurers.

It is common ground that if the contracts in issue in the present appeals are not exempt all the premiums paid on those contracts are liable to IPT regardless of whether the underlying surety bond risks are located in the UK or outside the UK.

Apart from Lloyd's Syndicate 33 the Appellants are insurance companies. As part of their business, all the Appellants sell surety bonds. Surety bonds are sold by some banks and by some insurance companies or syndicates.

Surety bonds are used in a variety of situations including (a) performance bonds in the construction industry (under which the surety undertakes to pay its client's employer on a construction project in the event the client defaults on its contractual obligations); (b) court or bail bonds; (c) bonds in connection with deferred VAT liabilities and (d) bonds in connection with the travel industry (where surety bonds are issued to holiday providers and used to protect purchasers of holidays against the consequences of the providers' insolvency). A number of specimen surety bonds similar to those used by the Appellants were exhibited together with cover notes for quota share treaty and excess of loss treaty reinsurance and a standard form reinsurance agreement for insurances and facultative insurances underwritten and defined in the Insurance Companies Act 1982 as credit, suretyship and miscellaneous financial loss.

At common law surety bonds are contracts of guarantee and are not contracts of insurance.

Although not contracts of insurance at common law, surety bonds were and are treated as contracts of insurance for regulatory purposes. If surety bonds were not within the regulatory regime affecting insurers, as now provided for by the Financial Services and Markets Act 2000, the Appellant insurers would not be authorised to sell them.

Mr Cheal, who has over 35 years of experience in reinsurance and insurance underwriting with involvement throughout his career in surety business, stated in his report dated 7 October 2004,

"The method used by the [insurance and reinsurance markets in the UK] to transfer risk between an insurer issuing a surety bond and a reinsurer who has agreed to accept a share of the risk has, in my experience, always been viewed by the market to be by way of reinsurance."

He stated that regulatory bodies have regarded the transfer of surety risks between an insurer and a reinsurer as reinsurance and that insurers issuing surety bonds net off as reinsurance in their statutory returns any part of the risks transferred by reinsurance. He stated that banks and insurers have traditionally competed for surety bond business.

In his supplementary report which was in response to the initial written submissions by Customs he said this,

"Not only the surety market but the wider insurance and reinsurance markets would understand that the transfer of risk between an insurer issuing surety bonds and a reinsurer of the same would be by way of reinsurance, as it always has been in my many years in the business."

Appellant's Submissions

Mr Moss said that the key question is whether "reinsurance" in Schedule 7A, paragraph 1 includes the indemnification of insurers who provide surety bonds and like instruments. There is no definition of the term in the Act and no comprehensive and exclusive definition in case law. The ordinary meaning of "reinsurance" covers the indemnification of surety bonds, whether in commercial usage, usage in case law or usage by Customs. Because reinsurance is a technical concept, evidence of market usage is relevant. The person in the market would understand reinsurance as covering this. He referred to Mr Cheal's report.

He said that this usage ties in with the regulatory position under section 95(a) of the Insurance Companies Act 1982 and class 15 of Schedule 2. He said that this also accords with judicial usage: in Trade Indemnity Co Ltd v Workington Harbour and Dock Board [1937] AC 1, Lord Atkin at page 17 summarised without disapproval the argument of the insurers in such a way as to suggest that the indemnification of surety bond liabilities undertaken by an insurer would be described as reinsurance; Mr Moss emphasised Lord Atkin's words "they have reinsured their risks with other persons carrying on business in the insurance world, notably at Lloyd's …" He said that there is no case where it has been decided that reinsurance excludes the transfer of risk on a security bond. He submitted that Parliament must be assumed to know the usage in case law.

Mr Moss said that Customs' usage referred to the indemnification by a reinsurer of the risk undertaken by an insurer, see paragraph 5.3 of Notice IPT 1 which reads,

"A reinsurance contract under which an original insurer is indemnified by a reinsurer for a risk undertaken by the original insurer is exempt."

He referred also to paragraph 2.3 of IPT 2 (October 1997). He referred to Article 2.2 of the draft Council Directive concerning reinsurance, which read,

"The activity of reinsurance consists in accepting risks ceded by an insurance undertaking or another reinsurance undertaking."

He said that this definition would cover contracts to indemnify insurers providing surety bonds.

Mr Moss said that the Appellants' argument was basically set out in an opinion by him dated 22 March 2004. If reinsurance was intended to be confined to insurance of a risk under a contract of insurance this would have been stated in the legislation. In his budget speech on 30 November 1993, the Chancellor of the Exchequer had said (Hansard, col 934),

"To avoid driving business offshore, I propose to exempt the reinsurance of risk …"

The rationale was thus to avoid driving business offshore. This applied whether the underlying contract was a contract of insurance or not.

Submissions for Customs

Mr Neish said that insurance premium tax is a general tax on insurance with a low rate of tax and limited exclusions. Surety bonds do not involve contracts of insurance and are therefore not covered by the tax. In 2000 Customs concluded that "reinsurance" of surety bonds is not reinsurance at all because there is no initial insurance. There is no reinsurance without insurance. He said that the Appellants want to have it both ways: they do not want surety bond business to be taxed but they want the "reinsurance" of such business to be exempt. Customs only seek the one charge to IPT. If a reinsurance contract covers both surety business and other reinsurance, apportionment is needed under section 69 of the Finance Act 1994.

He said that the practical difficulties raised by the Appellants in correspondence are not relevant to interpretation of the Act. He said that there is no evidence of chaos in accounting terms and there is no inherent difficulty in coding or apportioning premiums. Coding is often needed with a commercial treaty.

Mr Neish said that the meaning of "contract of reinsurance" in the Act is a pure question of statutory interpretation. The aim of statutory interpretation is not to determine the ordinary meaning of "contract of reinsurance" but rather the meaning which reflects the intention of Parliament in using the words in the Act. The reference to "reinsurance of risk" in the Chancellor's Budget Speech (Hansard, 30 November 1993, col 934) was not clear enough to be an admissible guide. He referred to the statement of the Paymaster General in the Second Reading debate (Hansard, 1 February 1994) when he said,

"if we were to tax reinsurance, it would create double taxation."

He said that Customs do not say that the reinsurance exemption is solely to avoid double taxation since some primary insurance is exempt for example long term business; it is however necessary for reinsurance that as a minimum content there should be an underlying contract of insurance. He said that the requirements in Pepper v Hart [1993] AC 593 to permit reference to Parliamentary statements, are cumulative, see the opinion of Lord Browne-Wilkinson at page 640 B-C. The statement by the Chancellor was not precise enough to meet the test; there was no obvious reason for preferring the Chancellor's statement to that of the Paymaster-General.

He said that nothing in Notice IPT 1 or 2 is relevant to the interpretation of "contract of reinsurance" in the statute. He referred to Halsbury's Laws of England, 4^th reissue (1995) vol 44(1) at paragraph 1369 onwards.

Mr Neish said that the words "contract of reinsurance" are technical and legal and that it is necessary to refer to technical and legal definitions and sources to establish the recognised meaning at common law and general market usage. He accepted that people engaged in surety reinsurance regard that as reinsurance and use reinsurance contracts; however he said that general market usage means the reinsurance market generally rather than the "arcane" market for reinsurance of sureties.

He said that reference to dictionaries and to legal and market textbooks and case law establishes that the proposition that there cannot be a contract of reinsurance without an underlying contract of insurance is accepted as a matter of general usage in the reinsurance market and is legally correct. He cited the Oxford English Dictionary, 2^nd ed (1999), volume XIII, where reinsurance is defined as :

"a renewed or second insurance; spec one by which an insurer or underwriter secures himself wholly or in part against the risk he has undertaken".

He also cited MacGillivray on Insurance Law, 10^th ed (2003) at chapter 33, Reinsurance Law, ed. Butler and Merkin at A-0140 to A-0156 and The Law of Reinsurance in England and Bermuda, 2^nd ed (2004) at 1-35. He further cited three English and two foreign reinsurance practitioners' textbooks. He said that all the textbooks state that a contract of insurance is a pre-requisite for reinsurance.

Mr Neish said that Trade Indemnity was not concerned with reinsurance but with whether the bond in question was a contract of guarantee or a contract of insurance. He cited Lord Mansfield CJ in Delver v Barnes (1807) 1 Taunt 48 where he said,

"… a reassurance … consists of a new assurance, effected by a new policy on the same risk that was before insured, in order to indemnify the underwriters from their previous subscription : and both parties are in existence at the same time."

Mr Neish cited dicta from a series of cases to illustrate the need for an underlying insurance contract on the same subject matter before there can be a reinsurance contract, including South British Fire and Marine Insurance Co of New Zealand v Da Costa [1906] 1 KB 456 at 460 and Toomey v Eagle Star [1994] 1 Lloyd's Rep 516. In the latter case Hobhouse LJ said this at page 522,

"reinsurance is the insurance of an insurable interest in the subject matter of an original insurance and … the principles of subrogation apply."

He cited the opinions of Lord Hope at page 249 and Lord Millett at pages 260 and 262 in Agnew v Länsforsäkringsbolagens AB [2001] 1 AC 223.

He said that it is irrelevant that insurance of surety bonds is always treated in the market as reinsurance; the label in the market or by the parties is irrelevant, see Street v Mountford [1985] AC 809, 819. The principle remains that no reinsurance is possible without insurance.

Mr Neish said that Customs are only aware of two cases which address the legal substance of an arrangement involving the insurance of liabilities under guarantees and the question whether such arrangements are insurance or reinsurance. In Re Law Guarantee Trust and Accident Society Ltd [1914] 2 Ch 617 the question whether there was a contract of reinsurance was considered although it was not part of the reasons for the decision. Buckley LJ at page 631 and Kennedy LJ at page 637 proceeded on the basis that if the contract of guarantee was a contract of insurance the further contract guaranteeing part of the risk was reinsurance. Kennedy LJ said this at page 637,

"… if, as I think it is not incorrect to say, the obligation of the society under the tripartite agreement was a contract of insurance, this contract between the society and the company is a contract of reinsurance."

Mr Neish said that the implication was that otherwise it was not reinsurance. He also referred to a dictum by McCarthy J in an unreported Irish case in 1992 involving Hong Kong and Shanghai Banking Corporation v Icarom Plc and Meadows Indemnity Co (third party) where he said that the reality was that Meadows agreed to insure ICI in respect of a loss that might be sustained under a contract of guarantee.

He said that since, as a matter of general technical usage and common law reinsurance depends on there being underlying insurance, it is for the Appellants to show that "contract of reinsurance" in Schedule 7A, paragraph 1 bears an inexact or looser meaning, see Spillers Ltd v Cardiff Assessment Committee [1931] 2 KB 21 at page 43. He said that all the other exemptions in Schedule 7A are exactly delimited.

Mr Neish's written submissions which covered 46 pages cited a further twelve cases to which he did not refer in his oral submissions. Since the parties had only requested one day for the hearing and Mr Neish's submissions lasted until 4.10pm we agreed to Mr Moss giving a brief oral reply and to completing his submissions in writing. Mr Moss's written reply covered 18 pages and elicited a further 16 pages from Mr Neish to which Mr Moss sent a further response dated 16 December 2004.

Appellant's submissions in Reply

Mr Moss said that in the absence of a comprehensive definition of reinsurance excluding reinsurance of a surety bond, there is no basis for excluding such reinsurance unless there is an underlying contract of insurance. There is no doubt there is normally an underlying insurance contract, however it is not necessary. In the absence of a comprehensive definition it is necessary to look at market usage. The fundamental thesis of Mr Cheal had not been challenged. Customs had chosen not to challenge his evidence and had called no evidence of general market usage. In none of the decided cases had the requirement for an underlying insurance contract been expressed in comprehensive or exclusive terms.

He said that none of the cases cited by Customs required the construction for which Customs contend. In Law Guarantee Kennedy LJ did not say that otherwise it was not reinsurance. At page 647 Scrutton J said that it was immaterial to decide whether the society was a surety or an insurer but that the agreement with the insurance company could "correctly be described as a policy of reinsurance." In Hong Kong and Shanghai Banking it was not said that it was not a contract of reinsurance.

Mr Moss submitted that in Delver v Barnes, Lord Mansfield was describing a typical reassurance in 1807 in the context where the underlying risk was a policy of insurance; he was not providing a definition. He did not say that reinsurance is restricted to a transfer of risk relating to an underlying contract of insurance.

He said that in Toomey Hobhouse LJ was not seeking to provide an exclusive definition of reinsurance but was dealing with the particular question in hand. Hobhouse LJ had cited a passage from MacGillivray, "the evolution of reinsurance in its various forms has made it difficult to achieve a comprehensive definition". That passage was cited in O'Neill and Wolonieki, a book relied on by Customs.

Mr Moss said that Agnew concerned whether "insurance" in the phrase "matters relating to insurance" includes reinsurance for the purposes of the international Lugano Convention 1988. Lord Hope at page 249 said,

"The contracting parties are engaged in the same industry. The re-insurer is an insurance company or underwriter who deals not with members of the public but only with other insurance companies or underwriters."

Lord Millett said at page 262 that reinsurance is "essentially a professional hedging operation". Mr Moss said that the present case involves hedging of insurance liabilities by insurers; the liabilities under surety bonds are from insurance business in the regulatory sense.

Mr Moss said that the question whether reinsurance "is always an insurance on the original subject matter" has been expressly left open by Lord Mustill in Charter Reinsurance v Fagan [1997] AC 313. He said that Parliament cannot have intended the meaning of reinsurance to turn on a point of law left open by the House of Lords. He said that both in Toomey and Agnew there were underlying contracts of insurance. While the risk reinsured is normally an insurance risk under an original contract, he submitted it is not necessary that the risk reinsured should be an insurance risk. He said that Customs' argument is circular.

Mr Moss said that the subjection of surety bond reinsurance to IPT would distort competition between insurers and banks which syndicate their surety bond risks. He said that the Tribunal can take judicial notice of the competition with banks. There is a presumption against an interpretation resulting in such distortion. He submitted that reinsurance for IPT purposes should tie in with the regulatory position,

Conclusions

The Finance Act 1994 contains no definition either of contract of insurance or of contract of reinsurance.

The charge to tax arises on the receipt by an insurer of a premium under a taxable insurance contract, see section 49. Under section 73 an "insurer" is a person or body carrying on insurance business and "insurance business" means a business which consists of or includes the provision of insurance. Under section 70(1) and (1A) any contract of insurance is a taxable contract; under section 70(1A) a contract is not a taxable contract if it falls within Part I of Schedule 7A.

A contract of reinsurance is therefore a category of contract of insurance which is excluded from the charge to insurance premium tax.

It is clear both from the Act and from general principles of insurance law that a contract of insurance relates to a premium referable to a risk. The Act contains numerous references to "risk", see section 67, section 72(1) and Schedule 7A.

It is common ground between the parties that reinsurance involves the passing on by an insurer of a risk to another insurer, the reinsurer.

The dispute is simply as to whether the risk ceded must itself be a risk arising under a contract of insurance.

The primary risks being on bonds of surety are not on contracts of insurance. If authority is needed for this it is to be found in Trade Indemnity Co v Workington Dock and Harbour Board [1937] AC 1. It is because surety contracts are not insurance contracts that no insurance premium tax is payable on the premiums for the surety bonds themselves.

The fact that insurance business under section 95(a) of the Insurance Companies Act 1982 includes the effecting and carrying out of suretyship contracts by persons not carrying on a banking business does not make such contracts contracts of insurance. It does however make such surety contracts part of the legitimate business of an insurer acting as such.

It is clear that traditionally the concept of reinsurance has been considered in terms of involving a primary contract of insurance, see Delver v Barnes (1807) cited in paragraph 33-2 at the beginning of Chapter 33 on Reinsurance in MacGillivray on Insurance Law, 10^th ed (2003).

In Agnew [2001] 1 AC 223, Lord Millett said this at page 260,

"Reinsurance is merely a species of insurance, In English law the subject matter of a contract of reinsurance is the same as the subject matter of the original direct insurance. The reinsurer reinsures the insurer against the same event as that covered by the original insurance …"

While that was a clear statement that case was not concerned with ceding of risks under surety bonds. Although Re Law Guarantee Trust [1941] 2 Ch 617 did concern insurance of a guarantee, the issue was not whether the insurance of the guarantee was reinsurance or insurance.

The passage from the speech of Lord Atkin in Trade Indemnity Co Ltd was in respect of the issue whether the contract was one of insurance or guarantee. Given that the appellants in that case contended that the performance bond or surety was a contract of insurance, it is not surprising that in setting out their argument Lord Atkin referred to reinsuring their risks. It does not follow that Lord Atkin was describing the indemnification of surety bond liabilities as reinsurance.

Mr Cheal's evidence was that the transfer of risk to other insurers on surety bonds issued by insurers is regarded in the market as reinsurance. Mr Moss relied on the proposition at paragraph 1488 of Halsbury's Laws, Volume 44(1) 4^th ed Reissue (1995) that in the absence of a contrary intention technical terms should be given their technical meaning. It is clearly desirable that in relation to commercial matters the interpretation of terms in a statute should not conflict with commercial usage without a good reason. It is also desirable that the fiscal treatment of transactions should be consistent with the regulatory treatment where that is practical.

Mr Neish accepted that "contract of insurance" in Schedule 7A is a technical term. His response to Mr Cheal's evidence was that the textbooks on reinsurance law and practice are to be preferred as evidence of the technical meaning of reinsurance and that the market for insurance of sureties is too narrow to form the basis of general market usage.

We note the opening words in Chapter 33 of McGillivray cited in Toomey [1994] Lloyd's LR at page 522,

"The English authorities do not provide a satisfactory definition of reinsurance, and the evolution of reinsurance in its various forms have made it difficult to achieve a comprehensive definition."

The developing nature of the reinsurance markets makes it necessary to view observations in textbooks with caution.

Insurance of sureties is clearly a special sector of the reinsurance market. Not one of the nine extracts from textbooks produced to us mentioned the insurance or reinsurance of surety bonds. It is clear however from the evidence of Mr Cheal (see paragraph 16 above) that the wider reinsurance markets do regard insurance of surety bonds issued by an insurer as reinsurance. This evidence was within Mr Cheal's experience and expertise and is consistent with the sample policies produced to us. Mr Neish adduced no evidence to the contrary.

Statements in textbooks as to the need for a primary contract of insurance which are not directed to the transfer of risk of surety bonds are of little value in determining whether the transfer of risk by an insurer issuing surety bonds to a reinsurer are reinsurance. It is a statement of the obvious that the meaning of words used cannot be taken as intended to cover facts or situations which are not in the mind of the person using those words. The same observation applies to the passages cited from decided cases. None of the cases concerned whether the transfer of risk on surety bonds to a person carrying on reinsurance business is reinsurance, given that such person would regard it as reinsurance and that it would be treated as such for regulatory purposes.

It is clear that the structure of the legislation with no deduction for outward insurance is such that there would be double taxation unless reinsurance is excluded from the charge. However this does not mean that there cannot be reinsurance within Schedule 7A without a primary contract or contracts of insurance.

The exclusion of insurance of insurers issuing surety bonds from reinsurance is clearly contrary to market practice and is also contrary to the regulatory framework of insurance. We also note that this type of business clearly falls within the definition of reinsurance in the draft Council Directive, see paragraph 19 above.

After some hesitation we have concluded that the words "contract of reinsurance" which are technical words do cover the issue by reinsurers of contracts of insurance covering risks accepted by insurance companies in respect of the issue of surety bonds. This conclusion is consistent with the description of reinsurance in Kiln's Reinsurance in Practice 4^th ed (2001) as "insuring insurers."

Finally we must observe that the time agreed by the parties for the hearing was wholly inadequate. The oral presentation was rushed and consideration of the later material and the extensive material produced at the hearing by Customs has inevitably taken a substantial amount of time and delayed the release of this decision.

THEODORE WALLACE

CHAIRMAN

RELEASED: 6 May 2005

LON/04/9000