Blair (t/a B-Mac International) v Revenue & Customs [2010] UKFTT 291 (TC)

FTT-Tax
Blair (t/a B-Mac International) v Revenue & Customs
[2010] UKFTT 291 (TC) · 2010-06-29
[1]The appeal heard by the tribunal was that of Ian Blair t/a B-Mac International (the Appellant) against a decision of the Commissioners on a review dated 4 January 2007 to uphold a decision taken on 18 July 2006 to seize the Appellant’s vehicle with its trailer and load and on 19 July 2006 not to offer restoration of any of the goods. There was no attendance at the hearing by or on behalf of the Appellant but the Tribunal was satisfied that rule 33 of The Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2009 had been met and determined that the hearing proceed.[2]In the absence of the Appellant to assist the Tribunal counsel for the Commissioners set out the background of the matter and the procedures followed by the officers of the Commissioners before presenting the case for the Commissioners. It has not been disputed that the Appellant’s son Darren Thomas Blair was stopped at Fleetwood Docks by officers on 18 July 2006 at approximately 17.55 hrs. He had just arrived off the Larne ferry and was driving a silver-coloured Volvo FH 12 articulated vehicle registration mark CNZ 6226 with a curtain sided trailer attached. Darren Blair (the driver) had no paperwork for the load he was hauling; nor had he declared the fuel which it was found comprised the load under s.6 of the Hydrocarbon Oil Duties Act 1979 and paid excise duty on the entry of the fuel from Monaghan in the Republic of Ireland (another EU member state) his pick-up point.[3]The driver had told one of the officers that the load in the trailer was “just waste”. However on an inspection it was found to consist of 26 Intermediate Bulk Containers (IBCs) containing 26,000 litres of a hydrocarbon oil. This had a specific gravity of between 828 and 850. It had the characteristics appearance and smell of diesel. Samples both preliminary and formal were taken by the officers of the fuel from the nearside and offside tanks of the vehicle and from 4 selected from the 26 IBCs. The procedure of the taking of samples was undertaken in the presence of a police officer and the results of the subsequent tests at the Laboratory of the Government Scientist in Middlesex are in the bundle before the Tribunal at pages 22 – 33. Further information on the results was given by the review officer Liam Byrne in his evidence to the Tribunal. Also in the bundle are copies of the handwritten notes of the officers including interview notes. The officers seized the vehicle, trailer, IBCs and fuel. The 26000 litres of fuel were seized under s. 139 of the Customs and Excise Management Act 1979 (CEMA) as liable to forfeiture and the vehicle was liable to forfeiture under s.141 of CEMA having been used for its carriage. The test results showed for the nearside and offside tanks of the vehicle an ultra low sulphur content but the samples for the 4 IBCs showed 890 to 1100 when in 2006 the total sulphur content should not have exceeded 50. In one sample the marker solvent blue 79 showed and it was explained to the Tribunal that this colouring was used to enhance the green colour of the visual marker used in the ROI (green diesel).[4]It was on the same day (18 July 2006) that Darren Blair was interviewed under caution by officer Dennis Jones. He responded to questions put to him by the officer and the copy of the handwritten note of this interview (at pages 10 - 12 of the bundle) shows that he agreed and signed it at the end as a true statement. He said inter alia that the vehicle was owned by B-Mac International and he was the son of Ian Blair the owner of that firm. He did not know to whom the trailer was on hire; he had picked it up the previous day. As to the load which he had thought was waste material it came from Monaghan (ROI). He had picked it up from a yard next to a filling station but he did not know whose load it was. He had spotted the trailer knew it was one of Ian Blair’s so picked it up. He did not know the destination of the load, only that it was London Town and that he would be called by his office with more information. He did not open the back to have a look at the load. He was going to write the paperwork himself. He was handed for Ian Blair a notice of seizure and a notice 12A.[5]On 19 July 2006 the Commissioners sent 2 letters to Ian Blair one being a notice of seizure under ss. 139 and 141 of the Customs and Excise Management Act 1979 enclosing the notice of sampling and the other an invitation to attend for interview. This tape interview of which a copy record is in the bundle at pages 40 – 49 duly took place at the premises of the Commissioners at Cheadle Cheshire England under caution on 25 July 2006. Mr. Blair gave a narrative of how he came to be using contacts to find someone who might want a load on a trailer to go to England which the Appellant would take there using his unit allowing him to bring back one of his trailers which was stranded there. The trailer he had hired from a Belfast company called Hireco and it had been on hire to him for “maybe a month or so now”; the load was industrial waste going for reuse. However Mr. Blair did not have the name or telephone number of his contact. He had been told the load was going to the Luton/London area. When Darren parked at Toddington Services Darren and the other party would make contact. He did not know there was no paperwork. He had however paid for the ferry crossing.[6]The Appellant’s solicitors MacDermott, McGurk and Partners of Derry City in an undated letter marked as received by the Commissioners on 8 August 2006 forwarded a notice of appeal against the seizure signed by Ian Blair and requesting the return of the vehicle. He specifically stated that he did not contest the legality of the initial seizure but that he was not involved in any illegal activity and in those circumstances his property should be returned.[7]There was a letter from the Commissioners dated 17 November 2006 referring to the decision letter of 19 July 2006 asking if a review was sought and if so for confirmation of which items their client wished to have restored. In a subsequent letter dated 21 November 2006 the solicitors confirmed that a review was requested and confirmed that Ian Blair sought a review of the decision of 19 July 2006 upon the basis that the decision concerned the seizure of the vehicle itself. The review dated 4 January 2007 found no exceptional circumstances and upheld the seizure though the heading and the review officer’s accompanying letter of the same date made it clear that the review requested was taken as against the decision not to restore the vehicle.[8]The Appellant’s appeal to the Tribunal was submitted by his solicitor on 15 February 2007 and the grounds were:
“Facts of interview with Ian Blair are disputed. Upon basis of actual facts the balance of probabilities favours the Appellant’s contention that he and his son were innocently involved and vehicle CNZ 6226 should be restored.”
[9]The role of the tribunal is not to look at the legality of the seizure. We know of no steps taken by the Appellant to contest the seizure and in the first correspondence to the Commissioners from his solicitors on his behalf namely their undated letter received on 8 August 2006 the accompanying letter of appeal signed by him stated quite specifically:
“ I do not contest the legality of the initial seizure but contend that I was not concerned in any illegal activity and in those circumstances my property should be returned to me”
. Accordingly the Tribunal now looks at the issue as the reasonableness of the decision on review not to restore the Appellant’s vehicle and whether this was one which an officer of the Commissioners could properly make. The officer Liam Byrne had to have taken into account all relevant issues, not given weight to irrelevant ones and we would add that he was required to apply the law correctly.[10]The Appellant was not present to put his case to the Tribunal nor answer questions under cross-examination but from the letters and notices received his contention appears to be that he was not involved in any wrong-doing and that he and his son were innocents caught up in the situation. He sought to disclaim any detailed information about the arrangements to which he himself was a bargaining party - he clearly knew the price which would be received for the job. He claimed to be unable to supply the name and telephone number of his contact and could describe the load to be delivered to only the most general of locations as industrial waste.[11]Mr. Byrne in his evidence described the IBCs which each carried 1000 litres of fuel. The weight of this amount of fuel was 850 kilos or 1ton. A telescopic fork lift truck would be needed for this kind of weight. He stated that hydrocarbon oil was usually carried in a metal tanker and IBCs were not normally used for this fuel but for acids and alkalis. He thought the fuel was agricultural diesel with the marker removed and speculated that it came from a laundered plant and was filled into the bulk containers. He was clear however that green diesel had a value of 50p per litre but with the marker out was marketable at £1 per litre.[12]The Tribunal asked if restoration subject to a fee had been considered but the officer stated that no such request had been made but in any event the policy of the Commissioners was clear that in commercial importation there would be no restoration. He pointed to the unsuitability of hydrocarbon fuel being carried on a 40 foot curtain-sided trailer which had it been known would not have been allowed on the ferry.[13]We find the claims of the Appellant implausible. There were discrepancies in the statements of father and son in the interviews over the location and how confirmation of the destination would be received. There was confusion also over the trailer. Ian Blair said that this had been hired but his son specifically said that he recognised the trailer as Ian Blair’s. We are informed that no claim for restoration of the trailer has been made which is not believable if this had been a trailer on hire. Further the arrangements did not assist Ian Blair’s declared aim to bring back his other trailer from England as he would then have had 2 trailers there to bring back. The vagueness of these replies cannot be seen other than as an attempt to mislead the Commissioners and ultimately the Tribunal. Darren Blair was an experienced driver who made a trip to England weekly. He said he did not look at the load which in itself has to be queried but it would have been clear to him after a short distance behind the wheel that what he was hauling was liquid. The weight and the fuel would cause forward momentum. He was ADR trained and was for that reason aware of the risk and thus the restrictions on the transporting of hazardous loads which he merely ignored no doubt with his father’s connivance. We do not accept the case made by or for the Appellant. We are satisfied and find that the review officer’s decision was proportionate and reasonable.[14]We dismiss the appeal.[15]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. ELSIE GILLILAND TRIBUNAL JUDGE RELEASE DATE: 29 June 2010