Mears v United Kingdom Border Agency [2010] UKFTT 635 (TC)

FTT-Tax

Mears v United Kingdom Border Agency

[2010] UKFTT 635 (TC) · 2010-12-09

[22]“ The concept of abuse of process does have a part to play in this situation. It is apparent that it may be treated as an abuse of process to try to raise before the Tribunal matters that could and should have been raised previously. The background to the Tribunal hearing is that the car has been forfeited by HMRC, Mr Mills had an opportunity to have forfeiture questions tested and ruled on in the magistrates' court, the restoration claim has been determined by an officer, and there has been a review. It is not necessarily possible for Mr Mills to raise all possible matters at all stages in that procedure. It may be an abuse of process for him to seek to do so. The taxpayer will normally be expected to challenge the forfeiture in the magistrates' court if he wishes to challenge it at all, and if he does not do so then not only will the forfeiture be treated as having been effective, he will not be able to challenge the facts which will be taken to have been the basis of the forfeiture, which will usually (in these sort of cases) be an intention not to use the tobacco for own use. In other words, the own use point will usually be taken to be decided against him… ” 27 The tribunal saw nothing in this case that took it outside “these sort of cases”. As a result, it agrees with Miss Anson that it cannot look again at the question of “own use”. 28 The witness statements produced belatedly by the Appellants at the hearing were statements by the four individuals seeking to bring excise goods into the United Kingdom that were limited to the reason why they were bringing those goods into the country. They therefore add nothing of relevance to the Appellant’s appeal that can be considered at this stage by this tribunal. It must act on the basis that that matter has been decided. The tribunal therefore concludes that, although it was prepared to admit the statements late to avoid any injustice to the now unrepresented Appellants, their content is irrelevant to the appeal before the tribunal. Nothing therefore turns on their admission. In particular there is no unfairness to the Respondents arising from their admission as there is no “ambush”. 29 The tribunal is not aware of any attempt by any of the three passengers in the car themselves to contest the seizure of the tobacco products. There is therefore nothing before this tribunal, or that could be brought before this tribunal, concerning their positions. 30 While Miss Anson rightly (in view of comments by Mann J in the Mills case) sought to protect her clients from the tribunal making findings of fact about areas that she considered to be outside its jurisdiction in this appeal, it follows that the tribunal makes no such findings. While the tribunal might have formed other views had it been asked itself to take a decision on these issues, the tribunal accepts that any attempt to do so here would be an abuse of procedure. Refusal to return the car 31 The one issue that the tribunal can consider is the failure of the Respondents to return the car. See section 16(4) of the Customs and Excise Management Act as set out in the extract in the Annex. A problem for the Appellants here is that at no time did the solicitors raise any relevant point about this when they were acting, beyond asking the Respondents properly to look again at the seizures and review their decision. Nor was there anything relevant to this point in the witness statements that arrived belatedly before the tribunal. Nor did the Appellants themselves raise the matter at the hearing, although they did respond to questions. 32 The Respondents tendered the proper evidence of the review decision and of the consideration by Mr Holland, who gave oral evidence to the tribunal. Again, given that there was no serious contest to most of his evidence or to the documents, the tribunal does not consider it need repeat the clearly documented process in this decision. It saw nothing that set this case apart from the standard procedures followed in such cases or that suggested a procedural defect. 33 Nonetheless, the tribunal has jurisdiction to consider, and did consider, whether there were grounds to ask the Respondents again to review their decision not to restore the car to Mrs Mears. That included both the possibility that the car be returned without requiring payment and the possibility that it could have been returned on terms, including terms that required in effect that she buy the car back from the Respondents. 34 The central facts here are, or must be taken to be:(a) the car was used to bring the excise goods seized into Britain;

(b) the quantity of goods seized from the car included over 6,000 cigarettes and 12.5 kg of tobacco;

(d) the goods and car were properly seized on the basis that the goods were not for own use. 35 It was also not disputed that Mr Mears had previously brought tobacco products into the United Kingdom. There was a dispute about when the most recent trip to the United Kingdom had taken place. Inconsistent evidence was given to the officers at the time of seizure by the different individuals on this point. This matter was raised with the Appellant and his passengers because there was documentary evidence that the car had been booked for a trip abroad not long before that trip. This was considered as part of the grounds for seizure and so forms part of the finding that is now outside the tribunal’s jurisdiction. However, in so far as it is relevant to the refusal to return the car, the tribunal records that the Appellants produced evidence that the trip planned to be undertaken shortly before this trip was cancelled. They also told the tribunal why it had been cancelled. 36 The decision not to restore the car is a discretionary decision to be made, now, by the Border Agency. The tribunal cannot retake that decision. It has the power only to direct that the Respondents take the decision again, taking into account any findings of fact that the tribunal may make. It can, and therefore should, consider whether there are grounds on which to direct the Border Agency to take the relevant decision again. But that is all it can do. 37 The most important issue here is whether, on the facts before the tribunal, there are grounds to consider that the decision taken was not properly taken. For example, did the officer taking the decision get the facts wrong, or did he or she take a decision that was not in accordance with any policy adopted by, now, the Border Agency in respect of such decisions? 38 The formal policy with regard to the vehicle of a third party is as follows:

“If the vehicle was owned by a third party, who was not present at the time of the seizure, and can show that they were both innocent of and blameless for the smuggling attempt, then consideration may be given to restoring the vehicle for a fee: if in addition to being both innocent and blameless the third party demonstrates that they have taken reasonable steps to prevent the smuggling in the vehicle then consideration may be given to restoring it free of charge.”

The policy statement also emphasises: “A vehicle will not normally be restored to a third party in a situation where that would be tantamount to restoring it to a person responsible for the smuggling.” 39 Mr Harris gave evidence of the basis for the decision not to return the car. It was, in his evidence, taken in accordance with the policy and in the light of the facts found above. Save for one point, the tribunal accepts that the decision was based on the facts found above. The one issue was that at the time the decision not to restore was taken, there had been no condemnation proceedings. The decision disclosed this. However, the assumption on which the decision was based, namely that the condemnation would not be challenged, has now been confirmed. So therefore has the reason for the seizure. 40 Mr Harris confirmed, in reply to a question by the tribunal, that he had heard nothing at the hearing that would lead him to reconsider the refusal to restore the car. The view had been taken that any restoration of the car would have been, in effect, a restoration to Mr Mears of the means to import goods in the way Mr Mears had previously sought to import goods, so the fact that the car belonged to Mrs Mears not Mr Mears was not in point. The tribunal saw no reason on the evidence before it to disagree with that assessment of the position. 41 No point was raised on this for the Appellants when the solicitors were acting, although that would have been the proper stage at which this policy, which was notified to the Appellants, should have been challenged. 42 Mrs Mears stated to the tribunal that she had lent her car to Mr Mears so that he did not have to use his little car. She did not think he was doing anything illegal. She thought that he was going to buy quantities of tobacco that were within the legal limits. She said that if she had thought otherwise she would have told him to use his own car. She and Mr Mears explained how they had bought this car for her as a better car than they had previously bought. They also gave evidence of inconvenience when the car was seized and they only had one car. In considering this, the tribunal must accept that the car was used for bringing in goods that were not for own use. In so far as the evidence of Mr and Mrs Mears conflicts with this, it must accept the finding of the court in the condemnation proceedings. Taking that point, the tribunal was not given any convincing evidence that Mrs Mears was not to be associated with the activities of her husband. Her informal evidence to this tribunal must been seen against the determination of the condemnation court and does not outweigh it. Nor was there any evidence suggesting that she attempted to stop him taking their son or the other passengers with him, nor with regard to the participation of their son in buying the tobacco. The intent of the driver and passengers is not open to dispute before this tribunal. On that basis, the tribunal sees no ground to ask the Border Agency to look at this aspect of its decision again. 43 With regard to the seizure of the tobacco products the policy is based in part on both the size and the value of the amount seized. As already noted, the tribunal must accept the basis of the seizure as having been established. It was on that basis that the Agency policy was applied to the seizures. The tribunal can see no point on which therefore it can be argued that the decision fell outside the policy, as set out in the review letter and notified properly to the Appellants. The number and value of the items seized from the car are not open to dispute. 44 The tribunal notes that even if this had been a “not for profit” case, this would have fallen in the “aggravated” category of seizure as discussed for example in the recent tribunal case of Redmond v UK Border Agency

[2010] UKFTT 420 (TC)

. That case was again similar to this. It was not cited to the tribunal as it had not been decided at the date of hearing (it was heard a month before). But it is factually similar save that it was a “not for profit” case. The tribunal refused restoration of a car there, even though there had been evidence of hardship. This was in part because the decision was that the case was an aggravated case. That would have been so here also. “Aggravated” in this context includes factors such as the amount of duty being evaded and the amount of excise goods in question. The policy defines a “large amount” for these purposes as being 6kg of tobacco or 6,000 cigarettes, among other items. The totals here exceeded both those limits. 45 The tribunal therefore sees no grounds to interfere with the Border Agency decision save for one final aspect. Was there exceptional hardship here of a kind that should have been taken into account, and weighed properly by the officer, but was not? Put another way, was the decision disproportionate? The tribunal has again to observe that no attempt was made to raise this issue by the solicitors when they were acting. Nor did the tribunal see or hear any evidence properly served on either the Respondents or the tribunal to put it on notice to explore this issue further. But it also considered the informal evidence of the Appellants at the hearing and whether in the light of that evidence any further issue should be explored with them. 46 The tribunal accepts that at the time of its hearing there was evidence that the Appellants had suffered hardship because Mrs Mears had by that time been made redundant and they were no longer able to afford to retain their solicitor. But that was not relevant to the situation at the time of the seizure. Nor did the car belong to any third party such as a leasing company. Nor was the car seized their only car. Mr Mears had his car, available for the use of both of them. Nor was any evidence given at any stage of any need for the car seized arising because of disablement or illness of any of the family. The Appellants contended that they had the hardship of losing a car for which they had paid a significant price. But that does not constitute exceptional hardship of a kind that could be said to make the decision of the Respondents disproportionate. That is precisely the result that must follow from the proper application of the law in every case of seizure of a car with any significant value. It is not exceptional. Conclusion 47 Returning to the procedural points discussed above, the tribunal has reached a conclusion that puts the Respondents at no disadvantage because of the failure of the Appellants or their past representatives to comply with the directions of the tribunal in a timely way (or, in the case of disclosure of further documents, at all). The tribunal therefore declines to make any further direction for late production of evidence, as requested by Miss Anson, and instead exercises its power to waive the irregularities. 48 Although the tribunal has some sympathy with the Appellants in that they found themselves unable properly to pursue their remedy in this case because of the need to end their instructions to their solicitors, the tribunal finds no ground within its jurisdiction on which it can base a direction to the Respondents to review the refusal to return the car (with or without payment). It must dismiss the appeal. 49. 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. David Williams TRIBUNAL JUDGE RELEASE DATE: 9 December 2010 ANNEX: Extract from the judgment of Mann J in HMRC v Mills

[2007] EWHC 2241 (Ch)

“The statutory background

[2]Before turning to the details of this appeal, and more details of the facts, it will be useful to set the statutory background first. That statutory background is as follows. An individual is entitled to bring in a certain amount of dutiable goods (in this case, tobacco) free of duty, but there are limits. The circumstances in which an individual can bring in goods free of duty are set out in the Excise Goods Beer and Tobacco Products (Amendment) Regulations 2002. A person who brings in excise goods for his own use (which includes use as a personal gift) is not liable to pay excise duty. Regulation 4(1) of that Order amends previous regulations so as to provide:

"(1A) In the case of tobacco products acquired by a person in another member State for his own use and transported by him to the United Kingdom, the Excise duty point is the time when those products are held or used for a commercial purpose by any person. (1B) ... (b) " own use" includes use as a personal gift, (c) if the tobacco products in question are - (i) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them), or (ii) the person holding them in tends to make such a transfer, those goods are to be regarded as being held for a commercial purpose."

Guidance is given as to how personal use is to be judged in sub-paragraph (e):

"(e) without prejudice to sub-paragraphs (c) and (d) above, in determining whether tobacco products are held or used for a commercial purpose by any person regard shall be taken of -- (i) that person's reasons for having possession or control of those products, (iii) that person's conduct, including his intended use of those products or any refusal to disclose his intended use of those products, (iv) the location of those products, (v) and the mode of transport used to convey those products, ... (viii) the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities -- 3200 cigarettes, .... 3 kilograms of any other tobacco products (ix) whether that person personally financed the purchase of those products, (x) any other circumstance that appears to be relevant."

There is therefore an important distinction between "own use" and importation for commercial purposes. Some of the tests for distinguishing between the two are set at in the above provisions. Importation for the latter purpose attracts excise duty. If excise duty has not been paid or secured prior to the time that the goods are held for a commercial purpose, they are liable to forfeiture under section 49(1) of the Customs and Excise Management Act 1979 ("CEMA").

[3]However, it is not only the relevant goods that are liable to forfeiture. Section 141 of CEMA permits the forfeiture of other items with which the goods have been mixed, and of vehicles in which the goods are conveyed. It provides:

"141(1) Without prejudice to any provision of the Customs and Excise Act 1979, where anything has become liable to forfeiture under the customs and excise Acts - (a) any ... . vehicle.. or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, and at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and (b) any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture."

It was pursuant to these provisions that Mr Mills' car was forfeited.

[4]Section 152 (b) of CEMA provides that the Commissioners may, as they think fit, restore anything forfeited or seized. The present case concerns the exercise by the Commissioners of that jurisdiction.

[5]Statute provides a mechanism for challenging a seizure of goods. Schedule 3 to CEMA provides for an appeal against seizure of goods:

"(3) Any person claiming that anything seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise. (5) If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited. (6) Where notice of claim in respect of any thing is duly given in accordance with paragraphs 3 and 4 above, the Commissioners shall take proceedings for the condemnation of that thing by the court, and if the court finds that the thing was at the time of seizure liable to forfeiture, the court shall condemn it as forfeited." … Those paragraphs contain a statutory route where the taxpayer seeks to challenge the underlying legality of the forfeiture, whether that challenge is based on law or fact or both. Had Mr Mills sought to challenge the legality of the forfeiture itself, then he ought to have taken the appeal route just described. He did not do so. He invoked a separate jurisdiction to review a decision of HMRC. Under section 14(1)(d) of the Finance Act 1994 certain decisions of the Commissioners may be made the subject of a review by HMRC and appeals as provided in sections 14 to 16 of that Act. One of the matters subject to this regime is a decision as to whether or not to restore a forfeited article to its owner: "

Any decision under section 152(b) as to whether or not anything forfeited or seized under the customs and excise Acts is to be restored to any person or as to the conditions subject to which any such thing is so restored." Section 16(2) and (8) of the 1994 Act give a right of appeal to the VAT Tribunal in respect of a review. A decision not to restore a vehicle is an "ancillary matter". As such the powers of the VAT Tribunal on an appeal are limited by section 16(4):

"In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal Tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say -- (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and (c) [not material to this appeal]."