Pleszczynski v Revenue & Customs [2013] UKFTT 512 (TC)

FTT-Tax
Pleszczynski v Revenue & Customs
[2013] UKFTT 512 (TC) · 2013-09-26
[1]If the excise goods were held for profit the vehicle should not normally be restored unless a small quantity was involved and it was a first offence – 24.5 kilos was self-evidently not a small quantity;[2]If the excise goods were to be passed on to others on a ‘not for profit’ reimbursement basis, whether there were aggravating circumstances (such as a previous offence by the individual or the importation of more than 6 kilos of hand rolling tobacco) because if there were not, then the vehicle should normally be restored for a fee. If there were aggravating circumstances, then whether the degree of that aggravation should result in the refusal to restore the goods;[3]….[4]In all cases, whether there are exceptional circumstances that should result in restoration of the goods; and[5]In all cases, whether the result is fair, reasonable and proportionate in all of the circumstances. c) The Respondent submits that the goods were held for a commercial purpose on a ‘ for profit ’ basis. Various factors support this contention such as: i. The quantity of hand-rolling tobacco imported (24.5 kilos) was eight times the guideline amount for importation from the EU (3 kilos). Smuggling such a vast quantity into the UK represents a serious attempt to damage legitimate trade in the UK. In the case of Mr Robert Hardie (MAN/03/8116 17/5/2004) Judge J D Demack commented at paragraph 15:- There comes a point in every decision where the tribunal has to consider the quantity of excise goods being imported. It is but one factor to be taken into account in determining whether an importation is commercial, and must be viewed in the light of all the other evidence, not in isolation. Nevertheless, on any view 36 kilos is a commercial quantity of tobacco.” ii. The travellers were stopped by a UKBA Officer in uniform and must have known that they were expected to answer questions truthfully and to disclose the full quantities of any excise goods carried with them in the vehicle. The travellers deliberately lied to the officer in an attempt to mislead him. The Appellant failed to disclose all of the excise goods, thus misleading the Officer about the true quantity of them. iii. When asked for receipts the Appellant was actually carrying nine receipts for the full quantity but only attempted to give the Officer two of them, and he clearly knew that he was misleading the Officer. iv. The majority of the tobacco had been concealed throughout the vehicle, which can only be construed as a deliberate attempt to smuggle the tobacco into the country. v. When asked why he had not declared the tobacco the Appellant replied “we just lied”. So he admitted misleading the Officer. On these grounds there is good reason to doubt the traveller’s credibility even though they were not questioned. In the case of Barber & Towers v Commissioners of Customs and Excise

Judge Johnson (Chairman) said the following at paragraphs 35 and 36:

“In certain circumstances it must be reasonable for a Customs officer to take a robust view of whether an attempt is being made to deceive her. In those circumstances, it is not required of her that she should continue to question the individual whom she is convinced is engaged in deception. She would then be entitled to stop all further questioning immediately and simply rely upon the powers arising from the fact that deception appears to be in progress. As we see it, that was the case here. The findings of fact made are such that, whatever we personally might have said or done at the time, we must find that the officer was justified in taking the line she did. One course that might have been adopted was for her to have read a commerciality statement, and then explored the means of the travellers, their respective rates of consumption (especially of the tobacco), what exactly they intended for the goods, and so forth. That is what Customs officers commonly do, but it was not done in this particular case. We hold that it was unnecessary for the officer, … to have done that, if she had justifiably become convinced that deception was in progress.” vi. Deliberately and repeatedly misleading Officers is reasonable grounds alone for doubting the traveller’s credibility. vii. The reason given for travelling was that the Appellant had visited a friend who was in hospital in Calais but this is doubted as he left the UK at 01.05 hours that morning and was stopped returning at 20.30 hours that evening. viii. Records show that the Appellant also made a day trip to the continent a week earlier on 15 November 2010, again leaving late at night and returning the same day. As on the one occassion that the Appellant was stopped he was found to be in possesssion of a large quantitiy of tobacco it is averred that it is reasonable to assume that the purpose of the previous trip was also to buy tobacco. Per Tribunal Chairman, Mr Colin Bishopp, in the case of Michael Robert Brealey : “ If travellers lie to Customs about the frequency of their trips, the quantities of goods they have bought or the quantities they already have at their house, they cannot be surprised, nor can they complain, if Customs doubt everything else they say…….it cannot, in our view, be regarded as unreasonable if Customs Officers, having detected lies, conclude that a traveller’s purposes are not as innocent as he claims .”
Also Judge Bishopp in paragraph 9 of the decision in the case of Mr Gordon Grimshaw (MAN/04/8070 11/11/04):
“ In our view it cannot be an unreasonable inference that travellers who conceal trips they have made abroad, give conflicting information and provide unconvincing explanations are not telling the whole truth, and are attempting to conceal the true reason for their importation of goods. ”
Also Judge Dr Avery Jones (CBE) in paragraph 15 of the decision in the case of Peter John Dumphy (LON/02/8282) stated in relation to previous travel:
‘ …The Appellant having been caught out in this easily verifiable point the Commissioners understandably did not believe the rest of the answers……’
. In paragraph 15 of the judgment in Lakhbir Khatkar (LON/04/8030), Judge Sir Stephen Oliver QC said: “ Bearing in mind that Mr Khatkar had been found to have been importing large quantities of excise goods on the occasions when he was stopped, it was, we think, reasonable to conclude that Mr Khatkar had been importing large quantities on those other occasions when he had not been stopped.” d) Further the Respondent contends that non-restoration of the vehicle was reasonable and proportionate particularly in light of the trade value of the vehicle being £1,900 according to the Glass’ Guide valuation when compared with the duty evaded which exceeds £3,000 and the aggravating circumstances, namely the mis-declaration to the Officers, and the amount imported. The total revenue involved was actually £3,174.96, being the 24.5 kilos of tobacco purchased and transported by the vehicle on the day in question. In any event, it is the Respondent’s submission, that the value of the vehicle is not relevant given the commercial nature of the importation. Applying the dicta in Lindsay -v – Customs and Excise Commissioners [2002] 1 WLR 1766 Per Lord Phillips:- ‘… Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their vehicles will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need to be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration….’ Per Lord Justice Judge:- ‘…Given the extent of the damage caused to the public interest, it is, in my judgment, acceptable and proportionate that subject to exceptional individual considerations, whatever they are worth , the vehicles of those who smuggle for a profit, even for a small profit, should be seized as a matter of policy…’ [emphasis added] Judge Dr K Khan in the case of David Arthur Hemms (LON/2008/8057) dated 9 December 2009 at paragraph 22:- “Where people attempt to evade excise duty and try to deceive HMRC officers, with conflicting explanations as to why items were purchased and proceed to give half truths and feeble explanations for the reason for the importation of goods, in such circumstances, those people would not have a right to complain when the vehicle being used for smuggling is confiscated”. e) The Review Officer also paid particular attention to the degree of hardship caused by the loss of the vehicle. He reasonably concluded that one must expect considerable inconvenience as a result of having a vehicle seized by Customs and perhaps considerable expense in making other transport arrangements or even in replacing the vehicle. Replacement of a seized vehicle with another does not necessarily require replacement with a vehicle of equal specification and value if as more basic and/or cheaper vehicle will perform adequately. Hardship is a natural consequence of having a vehicle seized and it would have to be exceptional hardship for the vehicle to be restored. The inconvenience and expense caused to the Appellant was not exceptional hardship over and above what one should expect in the circumstances. Furthermore, from official records, the Appellant is shown as the keeper of a Peugeot 307 motor vehicle registration number YJ02 SNU since 25 November 2010 and this is only 2 days after the seizure of his goods and vehicle. In the circumstances, there was no reason to disapply the Respondents’ policy of not restoring the vehicle in all of the circumstances. e) The review officer was guided by the policy but not fettered by it and considered the case on its merits and concluded the policy treated the Appellant no more harshly or leniently than anyone else in similar circumstances. f) In summary, for the reasons set out above, the Reviewing Officer was justified in concluding that, on the balance of probabilities, the excise goods were being imported for profit. Given that the goods were held for profit, and that misleading and contradictory statements were provided the Respondent submits that it is fair, reasonable and proportionate in the circumstances not to restore the vehicle. There are also no exceptional factors that militate towards disapplying the Respondents’ policy and restoring the goods. CONCLUSIONS[19]The Appellant does not dispute that he attempted to mislead the officer about how much tobacco he had in the car. Neither does he dispute that there was 24.5 kg in the vehicle and that he was attempting to import the tobacco without paying excise duty. The Appellant does not challenge the legality of the seizure, but rather challenges the reasonableness of the refusal to restore the vehicle.[20]It is clear that the tobacco was not being imported for the Appellants own use. The tobacco amounted to approximately 8 times the guideline amount. He Appellant also attempted to mislead the officer in respect of the receipts which he was carrying and when asked why he had not declared the tobacco admitted that he had "just lied". This clearly has to call into question his assertion that this was the first time that he had imported tobacco. His journey times were inconsistent with his story that he had been visiting a friend in hospital in Calais. The Appellant had also made a day trip to the continent a week before the seizure of the vehicle and it is a reasonable inference that the Appellant smuggled tobacco on that trip.[21]The value of the vehicle, which has been seized, is irrelevant when the reasonableness of the seizure is what is being considered. Lindsay v Customs and Excise Commissioners [2002] 1 WLR. The seizure and non-restoration of the vehicle was reasonable and proportionate when the trade value of the vehicle of £1900 is compared to the duty evaded, which exceeded £3000.[22]The reviewing Officer considered the hardship caused by the seizure of the vehicle and in our view, reasonably concluded that there was no hardship of an exceptional nature beyond that to be expected on seizure of a vehicle. It also appears from the evidence subsequently gathered by the Respondent that the Appellant became the keeper of another vehicle only two days after the seizure of the tobacco and the vehicle.[23]The function of the Tribunal is to determine whether the Respondent 's decision not to restore the vehicle to the Appellant was a decision which could not have been reasonably arrived at. In assessing whether the decision was reasonable, we find that the decision maker, was guided by established policy, properly considered all relevant matters and did not take into account any irrelevant matters.[24]In summary, for the reasons set out above, our conclusion is that the Reviewing Officer was justified in his conclusions. The decision appealed against is therefore in our view reasonable and proportionate, and not one that could not have been reasonably arrived at.[25]For the above reasons we dismiss the appeal.[26]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. MICHAEL S CONNELL TRIBUNAL JUDGE RELEASE DATE: 26 September 2013