[45]The court said at [40] that “ Neither Heijboer nor Yeardley knew the true nature of what was being delivered, and were no more than innocent agents ”. The court noted at [5] that throughout the transportation documents the load was described as textiles , and at [11] that the top boxes of each pallet contained textiles, underneath which were boxes of cigarettes. At [4], [12] and [39], the court refers to the cigarettes as being “hidden” in the load. It appears that Yeardley could not have known that the load contained cigarettes as Yeardley never physically handled the load, and that Heijboer which did handle the load could not have known because the cigarettes were hidden in the load described as textiles. 46. One of the issues in that appeal was whether the appellants were “holding” the cigarettes at the excise duty point. The Court of Appeal found that the appellants were holding the goods. It also found that Yeardley and Heijboer, as innocent agents, were not holding the goods. The Court of Appeal said:[29]“Holding” [within the meaning of reg 13 of the 2010 Regulations] is not defined in the Finance Act or in the Regulations, and there appears to be no authority on its meaning. It is plain that it denotes some concept of possession of the goods. Possession is incapable of precise definition; its meaning varies according to the nature of the issue in which the question of possession is raised ... But it can broadly be described as control, directly or through another, of the asset, with the intention of asserting such control against others, whether temporarily or permanently... In a case of bailment, the bailee has actual, or physical, possession and the bailor constructive possession. In other words, if the bailee holds possession not for any interest of his own but exclusively as bailee at will, legal possession will be shared by bailor and bailee.[30]In this case Heijboer had physical possession of the cigarettes at the excise duty point, but Heijboer was acting as no more than the agent of the primary carrier, Yeardley. Yeardley was, therefore, in law the bailee of the cigarettes at the excise duty point and, not apparently having any interest of its own in the goods, shared legal possession with the person having the right to exercise control over the goods, as explained above. If Yeardley had known, or perhaps even ought to have known, that it had physical possession of the cigarettes at the excise duty point, its possession might have been sufficient to constitute a “holding” of the cigarettes at that point. However, Yeardley had no such knowledge, actual or constructive, and was entirely an innocent agent. That important fact then turns the focus on the person or persons who were exercising control over the cigarettes at the excise duty point. There is no doubt that Wood (through Events) was such a person. Wood, as a matter of fact, under the contract with Yeardley gave instructions throughout the transportation to the carrier. Wood was correctly shown on Yeardley’s invoice to be Yeardley’s client and the consignee of the goods that were being transported. Under the Convention, as a matter of law, Wood (through Events) had the legal right of control over the goods. It is also known that Taylor (through TG) was acting together with Wood in exercising control over the cigarettes throughout the transportation. TG was shown on the CMR to be the consignee, a designation which represented accurately, if incompletely, the true state of affairs. There is no good reason to distinguish the position, in this context, of the two appellants.[31]There is nothing, furthermore, in this interpretation and application of Regulation 13(1) to the facts of this case that would be inimical to the purposes of the Finance Act. To seek to impose liability to pay duty on either Heijboer or Yeardley, who, as bailees, had actual possession of the cigarettes at the excise duty point but who were no more than innocent agents, would raise serious questions of compatibility with the objectives of the legislation. Imposing liability on the appellants raises no such questions, because they were the persons who, at the excise duty point, were exercising de facto and legal control over the cigarettes. In short, responsibility for the goods carries responsibility for paying the duty.[32]… The Court … has no hesitation in concluding that both appellants “held” the cigarettes at the duty excise point within the meaning of Regulation 13(1). …47. The Appellant relies on Taylor , contending that he was an “innocent agent” like Heijboer and Yeardley. HMRC for its part relies on the statement in Taylor at [30] that “ If Yeardley had known, or perhaps even ought to have known, that it had physical possession of the cigarettes at the excise duty point, its possession might have been sufficient to constitute a ‘holding’ of the cigarettes at that point ”. HMRC contend that in the present case, the Appellant knew that the vehicle was loaded with beer and cider, and that this was sufficient. HMRC argue that Taylor is distinguishable on the basis that in that case, Heijboer and Yeardley did not know that the load contained cigarettes.48. At the outset, the Tribunal notes that Taylor indicates that it is possible for more than one person to be “holding” goods for purposes of regulation 13 of the 2010 Regulations at any given time. In Taylor , the Tribunal found that both Mr Taylor and Mr Wood were holding the goods. Furthermore, the court said that if the facts had been different, Heijboer or Yeardley might have been “holding” the goods. There is no suggestion that if Heijboer or Yeardley had been holding the goods, this would necessarily have meant that Mr Taylor and Mr Wood were no longer holding the goods. Indeed, Taylor at [29] appears to contemplate that both a bailor and a bailee of goods can be “holding” the goods at the same time.49. This conclusion means that there may be more than one person liable to be assessed for the excise duty. That is consistent with the wording of regulation 13(2), which states that the persons so liable are the person making the delivery of the goods, the person holding the goods intended for delivery, or the person to whom the goods are delivered. These could be three different people, all of whom are so liable.50. The Tribunal considers that it is therefore not required to consider whether there might have been persons other than the Appellant who were holding the goods at the material time. The Tribunal is required only to determine whether the Appellant was holding the goods, irrespective of whether or not there might also have been others who were also holding the same goods at the same time. Thus, even if it were the case that there are further investigations that HMRC could have undertaken into others who played a role in the matter (and the Tribunal is not persuaded that that is the case), that would not be material to the present appeal. The question in this appeal is simply whether it has been established, on a balance of probability, that the Appellant was holding the goods at the material time.[51]The Tribunal notes that in Carlin at [30] it was concluded that “ Mr Woods or Woods Transport was the holder of the goods and Mr Carlin [the lorry driver] was merely the courier ”. The Tribunal does not read this sentence as suggesting that the driver of a lorry cannot be holding goods if another person can be identified as holder. If this sentence was intended to suggest that, this Tribunal disagrees with that suggestion. It is also noted that Carlin relied at [18] and [30] on the judgment of Hooper LJ in White & Ors v The Crown [2010] EWCA Crim 978 at [190]. In that judgment at [188]-[190], the Court of Appeal expressly declined to decide the question of “ a driver’s liability for excise duty, where a driver is no more than a courier paid to transport the load into this country ”.52. In Taylor at [30], the court found that Heijboer was not the bailee of the goods because it was merely acting as agent for Yeardley, such that Yeardley was in law the bailee. The Tribunal is not satisfied on the evidence in this case that the Appellant was acting as a mere agent for anyone else. As a self-employed driver (which he claims he was), the Appellant may have been contracted by someone else to do a job for them. However, that does not make the Appellant in law an agent of that person, as opposed for instance to an independent contractor.53. In the present case, the Appellant does not dispute that he knew that the vehicle was loaded with beer and cider. HMRC contend that this is sufficient to conclude that he was holding the goods, relying on the sentence in Taylor at [31] referred to at paragraph 47 above. However, the Appellant argues that he can be an “innocent agent” of the kind referred to in Taylor even if he knew that the load consisted of beer and wine.54. In support of this argument, the Appellant relies on Blackside . In that case, similarly to the present case, the Border Force had stopped and seized a lorry and its load of beer on arrival at Dover. The issues in that case were different, but the Appellant relies on a specific passage in that judgment, in which the court rejected a contention by the Secretary of State for the Home Department (who was responsible for the Border Force) that the driver of the vehicle had committed an offence. The court said:[58]In my view there is no evidence that Mr. Ray [the driver] was a person whose offence or suspected offence occasioned the seizure of the load. He told the UKBA officer that the trailer was fully loaded when he collected it. The documentation that he was given was valid on its face.[59]It is, perhaps, worth pointing out that the procedure for the movement of duty suspended loads envisaged by Article 21 of the Council Directive requires the consignor to submit a draft electronic administrative document to the competent authorities using the computerised system. The computer then carries out an electronic verification of the data submitted and, if it appears valid, issues the unique administrative reference code and transmits it to the consignor.[60]I can see no reason why Mr. Ray, assuming that he studied the documents in some detail, should have been concerned to note that the Delivery Note was dated 18 September 2012. He, unlike the UKBA, would have had no means of knowing when the ARC was issued because the date and time of its issue is not shown on the documents: that is information that only the UKBA can retrieve from the computer.[61]It is now known that checks carried out by Border Force have shown that Mr. Ray has been involved in three previous seizures, each case being one in which duplicate consignments have been carried using the same ARC. However, I know nothing about those incidents and it seems to me to be quite possible that Mr. Ray has simply been an innocent puppet exploited by others. Recent information shows also that European Transport Services is an entity used by a well-known smuggler. However, that in itself does not implicate Mr. Ray.[62]If the Defendant wishes to rely on the fact that Mr. Ray was guilty of an offence when he brought the trailer into the UK on 20 September 2012, it must prove it. The evidence before the court on this application falls well short of any such proof. I therefore reject this argument . 55. The Tribunal finds that this passage is not directly relevant to the present case because it is concerned with the issue of whether the driver had committed an offence, rather than with the issue of whether the driver was “holding” the goods. The offence that the court had in mind was apparently one under s 170B of the Customs and Excise Management Act 1979, namely the offence of being knowingly concerned in the taking of any steps with a view to the fraudulent evasion, whether by himself or another, of any duty of excise on any goods (see Blackside at [18]). A person holding excise goods on which excise duty has not been paid is not for that reason alone necessarily committing such an offence, and such an offence can be committed by a person who is not holding the goods. The circumstances in which a person becomes liable to pay excise, and the circumstances in which a person commits a criminal offence, are two very different things. 56. The Tribunal has considered the evidence before it. As to the Appellant’s evidence, the Tribunal found the Appellant to be an unimpressive witness. His answers to various questions were hesitant or evasive, and on occasion he has contradicted his own earlier evidence. For instance, the Tribunal does not find it plausible that he could not remember any details of the previous occasion that he had been “pulled” by Customs (paragraph 25 above). The first time that he mentioned a Mr Michael McVeigh was in cross-examination. The Appellant at first said that he had had no contact with Mr McVeigh or Johnny since the seizure. At first he could give no explanation as to why he would not have contacted them, then he subsequently said that he had been unable to contact them, and then he suggested that he might have spoken to Mr McVeigh after the event. 57. Nevertheless, the Tribunal has considered what the situation would be, even if the essential elements of the Appellant’s evidence were to be accepted by the Tribunal. 58. At the material time in this case, the Appellant clearly had actual physical possession and control of the goods. He knew that the goods consisted of beer and cider. On his own evidence, he had been given the job orally on the telephone by Mr McVeigh, and he merely assumed that either the vehicle belonged to Mr McVeigh or to another person for whom Mr McVeigh was acting as “transport man”. Thus, he did not in fact know to whom the vehicle belonged, nor what role Mr McVeigh played in the matter. He said that he looked at the CMR to check what the load consisted of, but did not look at other details such as the details of who was the haulier. Thus, he did not know who was the haulier, either on the paperwork or in reality. He did not know the identity of the person from whom he took possession of the trailer in France. It is apparent from the Appellant’s evidence that at the time of the Appellant’s arrival at Dover, the Appellant had no way of contacting Mr McVeigh. The Appellant said that if there had been any problem, he would have called Johnny. However, the Appellant’s evidence suggests that Johnny played no role in the matter other than as a messenger, and that if the Appellant had contacted Johnny with a problem Johnny could have done nothing other than attempt to relay a message. 59. On the Appellant’s own evidence, the Tribunal finds that during the period that the Appellant was transporting the goods, he was not subject to the supervision or control of anyone else. He had been given a telephone instruction to collect a trailer at a particular location in France and to take it to a particular location in the UK, but during the period that he was carrying out that instruction he was effectively out on his own with independent and unsupervised control of the vehicle and goods, and with responsibility for the goods. The Tribunal finds that in that period, he was “exercising control” in the kind of way referred to in Taylor at [30], and had “responsibility” of a kind referred to in Taylor at [31]. 60. The Tribunal is satisfied that in the circumstances, he was holding the goods for purposes of regulation 13(2)(b) of the 2010 Regulations. 61. The Appellant’s own evidence is sufficient to reach this conclusion. However, the conclusion is fortified by the HMRC evidence that no trace could be found of the claimed haulier, or of a registered keeper of the vehicle. HMRC accept that the Appellant had no proprietary interest in the goods or the vehicle, which means that there was another or others who owned the goods and vehicle. However, those others do not appear to be the persons named in the CMR, and the HMRC evidence thus strengthens the suggestion that the Appellant did not know who were the real owners of the vehicle and goods, and who was really behind the transport operation.62. From the HMRC evidence, it seems that the destination to which the Appellant was taking the goods may not in fact have been Seabrook, since Seabrook were not expecting a delivery. If that is so, presumably the Appellant was given an oral telephone instruction to take the goods to a place other than the destination stated in the CMR. Considering the way that the Appellant had no idea of the identity of the person from whom he collected the trailer, it is quite possible that he had also no idea of the real identity of the person to whom he was to deliver the trailer. If so, that would further fortify the conclusion in paragraph 59 above.63. In the circumstances, it is unnecessary to decide whether HMRC is correct in arguing that it was sufficient that the Appellant was in physical control of the load and knew that the load consisted beer and cider. If that HMRC argument is correct, there could be no question but that the Appellant was holding the goods at the material time.64. The Tribunal accordingly dismisses the argument that the Appellant was not liable to be assessed to excise duty as the person holding the goods under regulation 13(2)(b). It has not been suggested by the Appellant that there is any error in the way that the amount of the assessment has been calculated.65. As to the penalty, which has been imposed under Schedule 41, the Appellant contends that he has a reasonable excuse under paragraph 20 of Schedule 41. The Appellant contends that the circumstances amounting to a reasonable excuse are that he received documentation indicating that excise duty had been paid on the goods, and that he had no means of determining that the documentation provided had already been used or that the load otherwise contained illegitimate items.66. The Tribunal is not satisfied on the Appellant’s own evidence that the existence of circumstances amounting to a reasonable excuse have been established. On his own evidence, he did not know who owned the lorry that he was driving, and he had not even taken steps to satisfy himself that it was insured. He was given a telephone instruction to undertake the job by Mr McVeigh, but did not know exactly what role Mr McVeigh played in the matter. He did not know from whom he was collecting the trailer in France. On his own evidence, he checked the load to see that it contained beer and cider as described in the documentation, but did not otherwise check the documentation. The Tribunal finds that he did not do all that he could reasonably have been expected to do to satisfy himself that the load was legitimate.67. For similar reasons, the Tribunal finds that the claimed circumstances do not amount to special circumstances justifying a special reduction under paragraph 14 of Schedule 41. Even if the Tribunal were to conclude that it was entitled to use its power under paragraph 19(3)(b) of Schedule 41, it could see no reason for relying on paragraph 14 to any different extent to the penalty decision.68. Having dismissed that argument, the Tribunal finds that the Appellant has established no other basis for challenging the imposition of a penalty, or the amount of the penalty. The penalty explanation indicates that the penalty was calculated on the basis that the wrong-doing was non-deliberate, as it was considered that there was insufficient evidence to establish that it was deliberate. That finding was to the Appellant’s advantage. The penalty explanation also indicates that the penalty was calculated on the basis that disclosure of the wrongdoing was prompted, given that the Appellant did not disclose the wrongdoing until he had reason to believe that HMRC had discovered it or were about to discover it. The Tribunal has no doubt at all that this was a prompted disclosure. The Appellant has not disputed the conclusion in the penalty explanation that the penalty for non-deliberate wrong-doing with prompted disclosure is in the range of 20% to 30% of the potential lost revenue. The Appellant has been given maximum reduction for the quality of his disclosure and a penalty of only 20% has been applied. The Tribunal finds that the penalty is in accordance with Schedule 41 (see especially paragraphs 6(1)(c) and 13(6) thereof). Conclusion69. For the reasons above, this appeal is dismissed.70. 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. DR CHRISTOPHER STAKER TRIBUNAL JUDGE RELEASE DATE: 15 JULY 2015