Pilats v The Director of Border Revenue (EXCISE DUTY RESTORATION OF VEHICLE (see also EXCISE APPEAL) : Proportionality) [2016] UKFTT 193 (TC)

"Every natural legal person is entitled to the peaceful enjoyment of his possessions. No-one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 50. This provision has been the subject of judicial consideration in the context of cases involving the seizure of goods subject to unpaid excise duty and the vehicles in which they were conveyed. In particular the European Court of Human Rights said the following in Air Canada v UK (1995) 20 EHRR 150 at paragraph 36: "

"Subject to those observations, it must be borne in mind that, in the absence of harmonisation of the Community legislation in the field of the penalties applicable where conditions laid down by arrangements under such legislation are not observed, the Member States are empowered to choose the penalties which seem appropriate to them. They must, however exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality."

“It is clear law, and was common ground between the parties, that [A1P1] imports, via the rule of fair balance, the requirement that there must be a reasonable relationship of proportionality between the means employed by the state in, inter alia , the deprivation of property as a form of penalty, and the legitimate aim which is sought to be realised by the deprivation. That rule has consistently been stated by the European Court of Human Rights.” 57. They then cited Jahn v Germany (2006) 42 EHRR 1084 at [93], describing it as setting out a principle “ gathered from established Strasbourg jurisprudence in terms often repeated and generally applied”: “The court reiterates that an interference with the peaceful enjoyment of possessions must strike a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights: see, among other authorities, Sporrong and Lönnroth v Sweden (1982) EHRR 35, para 69. The concern to achieve this balance is reflected in the structure of article 1 of Protocol No 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions: see Pressos Cia Naviera SA v Belgium (1995) 21 EHRR 301, para 38. In determining whether this requirement is met, the court recognises that the state enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question: see Chassagnou v France (1999) 29 EHRR 615 , para 75.” 58. Mr Newbold also cited to us the opinion of the House of Lords in R v Smith (David) [2001] UKHL 68 . That was a case where the defendant had evaded the payment of duty on imported cigarettes by smuggling them on a vessel past the customs post. He was convicted of fraudulent evasion of excise duty contrary to s 170 (2) CEMA. As Mr Newbold observed, as a result of the smuggling attempt the cigarettes and the boat in which they were conveyed were both seized, the defendant suffered a penalty in the form of a sentence of 21 months imprisonment and he was required to pay an amount equivalent to the duty evaded on the goods in the form of a confiscation order made under the provisions of the Criminal Justice Act 1988 of that amount. The court held that the defendant had obtained a benefit from his commission of the offence in the form of “a pecuniary advantage” in that he had evaded the duty he was liable to pay on the cigarettes and therefore a confiscation order in the amount of the pecuniary advantage could be made. The case was considered in Waya where at [33] the House observed that the decision in Smith was that the pecuniary advantage had not retrospectively been undone by the subsequent seizure of the cigarettes. 59. Smith and Waya are therefore authority for the proposition that the imposition of a penalty, seizure of goods and the vehicle in which they were conveyed and the making of an assessment for the unpaid excise duty would not, depending on the circumstances, be a disproportionate response to a deliberate smuggling attempt. 60. Furthermore, this Tribunal has in the recent case of Staniszeski v HMRC [2016] UKFTT 128 held that the doctrine of proportionality is relevant to penalties but not to the duty itself. The Tribunal observed that excise duty is a tax derived from EU Directives and its aim is to raise revenue either directly or indirectly on the consumption of excise goods. Although the assessment power in s 12 FA 1994 was a revenue raising measure, it was not immune to challenge on grounds of proportionality. However, s 12 in the Tribunal’s view clearly did not extend beyond its objective of a revenue raising mechanism and cannot, on any basis, be said to be devoid of reasonable foundation and it therefore follows that its provisions must be proportionate: see [48] to [50] of the decision. We respectfully follow the reasoning of the Tribunal in that case. This is also consistent with the reasoning in Smith to the effect that although the goods were only made available for consumption for the short period of time between the excise duty point occurring (once the customs post was passed) and the time that they were seized this was sufficient for the defendant to have obtained a benefit by having evaded the payment of excise duty. Likewise, it appears to us that the moment the appellant brought the Cigarettes into the UK without having declared them the excise duty point arose and the liability to excise duty arose and could be assessed pursuant to s 12. In those circumstances, we cannot see that it can be said that it is in principle disproportionate to assess duty on goods which have been seized because they have been taken past the excise duty point without them having been declared. The assessment is simply the inevitable consequence of an excise duty point having arisen and the appellant, as the person in possession of the goods at the time the excise duty point arose is the person liable to be assessed. 61. It is therefore our view that in considering the question of proportionality we should leave out of account the fact that that an assessment to excise duty has been made and the amount of that assessment. In other words, the assessment itself can never be regarded as disproportionate. We should therefore only consider whether the sanctions themselves for the failure to declare the goods are disproportionate in the circumstances that is the seizure of the Cigarettes and the Vehicle and the charging of the penalty. That is not to say that in an appropriate case it would not be necessary to take into account the overall financial impact of those sanctions on the offender, and in that regard clearly the fact that he has liability to pay the excise duty may need to be to be taken into account. 62. What this means in the context of the present appeal is that we need to examine whether Officer Hodge exercised her discretion not to restore the Cigarettes and Vehicle proportionately as that term is understood both under EU law and under the Convention, and that a failure to do so will make the decision unreasonable. 63. We accept Dr van Dellen’s submission that in considering proportionality the decision maker should consider the financial effect on the owner of the deprivation of his goods in the context of the other financial consequences of the seizure but clearly the degree of culpability on the part of the owner and the strong policy need to deter smuggling must also be taken into account in that consideration. 64. It follows from our finding that all the relevant sanctions imposed as a result of the smuggling incident must be considered by the decision-making officer, regardless of which Department of State was responsible for imposing the particular sanction in question. 65. Mr Newbold submits that it is not necessary for the individual Border Force Officer to take into account the possibility of a penalty assessment being raised. He submits that the officer is entitled to proceed on the basis of the policy applied has been formulated against a background where there is an expectation that such a penalty will be issued, with such reduction being applied by HMRC as may be appropriate to the circumstances of the case. 66. He also points to various practical matters that in his submission dictates that the Border Force’s policy takes into account the existence of other sanctions, rather than requiring an individual officer to do so. He says that as in this case a reviewing officer may not be aware whether a penalty assessment has been raised and, if so, in what amount, when she makes her decision. Even if she had to make reasonable enquiries of HMRC or the appellant, requiring her to take into account the assessment of duty and penalty would have the potential to lead to inconsistencies. 67. Mr Newbold points out that in this case, seizure took place in March 2014 but no assessment was raised until November 2014. Had the appellant sought restoration promptly, the review decision would in all likelihood have been taken before the assessment was raised. It was also possible that any appeal to the Tribunal against a decision not to restore might have been determined before the assessment was raised. There would therefore be a perverse incentive for an appellant to delay seeking restoration to wait the terms of any assessment and penalty before seeking restoration. 68. Similarly, he submits circumstances can be imagined where a reviewing officer makes a decision to restore goods based on overall proportionality taking into account assessed duty and penalties. However, the penalty may thereafter be challenged by an appellant and if it were to be reduced the result may be disproportionately favourable to the appellant. This creates a perverse incentive on the Border Force’s part to delay making a decision on restoration while all issues relating to any penalty are resolved. 69. For these reasons, Mr Newbold submits that it is entirely appropriate for the Border Force to have a policy which is formulated against a background where it is known that assessments will be raised and penalties issued, and takes the likelihood of those assessments and penalties into account, rather than expecting reviewing officers to make those decisions on individual cases. 70. We find all of these submissions unconvincing and reject them. The need to act proportionately should not be diminished simply because the quirks of the legislation make a co-ordinated and holistic approach to the imposition of sanctions on a fully rational basis more difficult and administratively inconvenient for the government departments involved. We note in this case that the assessment and penalty was not notified to the appellant until many months after the seizure had taken place. It may therefore be incumbent on the departments themselves to coordinate the position between themselves more effectively with the result that decisions on restoration and penalties are taken in a timely fashion and as far as practicable at the same time. The strategy papers we have seen suggest that the approach to sanctions is a joint one of the two departments but the evidence of Officer Hodge in this case and Mr Newbold’s submissions indicate quite clearly that that is not the case in practice. 71. If there is a concern about the fact that an appellant may delay his request for restoration, the remedy appears to be for HMRC to ask Parliament to make provision for a time limit. The legislation makes no provision for an owner of seized goods to make his request for restoration “promptly” and he should not be criticised for exercising his legal rights in the manner envisaged by the legislation. As we mentioned above, if the government finds the current position unsatisfactory it can review the legislation. 72. If one department decides to make a decision ahead of the other, then obviously the later decision-maker will have to take into account what the other has decided so that she can decide whether the effect of her decision will be that the overall sanctions imposed are proportionate in the circumstances. We see nothing insuperably difficult about this if the departments choose to continue to make their decisions separately, notwithstanding that there is a single incident to which the State as a whole makes a response. Although, as Mr Newbold points out, one decision-maker delaying a decision until the other has made her decision is undesirable that does not mean that it should not be done if it is necessary to make an overall decision of the requisite quality. 73. We do not take it to be a significant risk that an appellant will end up with a disproportionately favourable result if his penalty is reduced on appeal after a decision has been made to restore his goods. It follows from our analysis that it would be incumbent on the Tribunal to take into account the fact that restoration has occurred in deciding whether or not the penalty should be reduced. Should the Tribunal err by failing to take into account all relevant factors in arriving at its decision to reduce any penalty then its decision may be capable of being appealed. 74. We therefore find that by following an approach whereby the decision making officer considering a request for restoration does not take into account on an individual case by case basis any sanction that may have been imposed in respect of the same incident by HMRC the officer concerned is fettering her discretion and failing to take into account all relevant circumstances. There is therefore a clear risk if this practice continues that the decision will be held to be unreasonable and set aside with the result that a further review will be necessary. 75. We therefore now turn to consider the reasonableness of Officer Hodge’s decision in the light of the principles that we have outlined above. Discussion 76. Dr van Dellen made submissions on two issues as follows. First, he submits that the evidence shows that there are exceptional circumstances which should be taken into account in deciding whether to restore the Vehicle. Although in theory Dr van Dellen was also contending that there were exceptional circumstances that justified the restoration of the Cigarettes, he made no submissions on that point and concentrated on the position of the Vehicle. In our view he was wise to do so because we can see no exceptional circumstances which could justify restoration of the Cigarettes. We therefore consider that question in the context of proportionality alone. 77. We observe at the outset that Officer Hodge cannot be criticised for her decision that no exceptional circumstances justified the restoration of the Vehicle for the simple reason, as we have found, that the appellant put forward no such circumstances in his request for a review despite being invited to do so. Nevertheless, as contemplated in Gora , as referred to at [46] above, it is open to the Tribunal to decide on the basis of the evidence before it whether the decision on restoration was reasonable notwithstanding the fact that the evidence concerned was not available to the officer who made the decision. We will therefore proceed to assess the evidence on exceptional circumstances on that basis. 78. The second issue on which Dr van Dellen made submissions was the issue of proportionality. In that context, we need to assess whether Officer Hodge’s decision was one that no reasonable officer could have made, taking into account the questions set out at [44] above. However, even if we find her decision to be unreasonable we need also to consider whether it would be inevitable that any further review that the Tribunal directed to be made would inevitably have resulted in the same decision. Exceptional circumstances 79. Dr van Dellen’s submissions on this issue amount to no more than this. The appellant has to use his BMW to drive to his place of work and the costs of so doing amount to some £70 a week more than would be the case if he still had the use of the Vehicle which is much cheaper to run. The Vehicle has been out of his possession for a long period of time so the extra cost has been considerable. The appellant says public transport is not an option as it would not get him to his place of work on time early in the morning. 80. In our view the appellant’s case on exceptional circumstances is hopeless. He has produced no evidence as to his current financial position, such as bank statements, receipts for his petrol expenses, payslips or other evidence of earnings or any table of in goings and outgoings to verify what he says about his financial circumstances. His witness statement in any event shows that he had a significant amount of money in his bank account last September which suggests that at that time he was not struggling to meet his travel expenses. In the light of his lack of credibility on other matters (and in particular our findings on whether the Cigarettes were for personal use and the fact of his lies to the Border Force officers when stopped) we cannot accept his assertions without further evidence. 81. In any event the answer to the problem that he allegedly has because of the extra cost of running the BMW is simple. He should simply sell it and acquire another vehicle which is cheaper to run. 82. In short, the consequences of the seizure of the Vehicle are no greater than what would normally to be expected in the circumstances and in any event the appellant is in a much better position than others who have their vehicles seized in that he does have an alternative means of transport and the ability to downsize it to fit his budget. 83. We therefore conclude that there are no exceptional circumstances which would call into question the reasonableness of Officer Hodge’s decision not to restore the Vehicle. Proportionality 84. Dr van Dellen’s submissions on this point can be summarised as follows: (1) In making her decision on restoration Officer Hodge failed to take a relevant factor into account, namely the total losses that the appellant has sustained as a result of the seizure, as detailed in (2) below; (2) The appellant has borne a heavy burden in terms of the losses he has sustained as a result of the seizure. He has lost the Cigarettes, which cost him £4,000, he has had the increased cost of the use of an alternative vehicle at £70 a week for 80 weeks, which amounts to £5,600, he has lost the Vehicle which is valued at £1,200 and is liable to pay HMRC excise duty and a penalty of £7,687 in total. The Tribunal should “stand back” and conduct an overall proportionality assessment and given that the value of the cigarettes was only £4,000, a total loss of £18,487 is clearly disproportionate; and (3) It would be disproportionate not to take into account the value of the property seized, the financial effect on the owner of the deprivation of his goods and the period for which the Vehicle has been detained. 85. We accept Dr van Dellen’s first submission. This follows from our conclusion at [74] above. As a result of Officer Hodge’s candid admission that she did not take into account the fact of the penalty, and indeed did not even think that it was her duty to do so it follows that she has failed to take a relevant factor into account in making her decision. Accordingly, her decision is flawed in the sense that it was one that no reasonable officer could have made and on that ground alone potentially her decision should be set aside. 86. However, as indicated at [78] above, that is not the end of the matter. We must decide whether or not it is inevitable that Officer Hodge would come to the same decision even if she had taken all relevant matters into account. In order to make that decision we need to consider the strength of the appellant’s case on proportionality in the light of all the relevant circumstances. 87. In our view this is a case of a serious and aggravated smuggling attempt. The appellant was thoroughly dishonest in his initial answers to the Border Force officers and he was carrying a large quantity of Cigarettes which were not for his personal use. Had his smuggling attempt been successful, then there would have been a significant loss to the exchequer and unfair competition with the legitimate tobacco trade. The appellant was lucky not to have been the subject of a criminal prosecution. 88. This is just the kind of case that the Government’s robust sanctions policy is designed to address. As we have found, tobacco smuggling remains a significant problem. 89. We now turn to the elements that Dr van Dellen submits amount to the appellant’s loss. As far as the cost of the Cigarettes is concerned, this can be seen as the appellant’s stake in an illicit gambling operation and he cannot complain if the operation fails and he loses his stake. The gamble that the appellant undertook was that he would not be caught with the Cigarettes but that gamble having failed he must accept the consequences. We therefore see no basis on which it would be appropriate to restore the Cigarettes to the appellant. 90. As far as the assessment to duty is concerned, we do not regard that as a loss to the appellant. He brought goods which were liable to excise duty into the United Kingdom and consequently incurred a liability to pay the duty. As we have previously explained, the assessment to duty is not a sanction, it is an inevitable consequence of an excise duty point having arisen and the appellant being in possession of the goods at the time the excise duty point arose. 91. For the reasons given at [80] to [82] above we discount the extra costs involved in running the BMW. 92. This leaves the question as to whether in all the circumstances the seizure of the Vehicle and the imposition of the penalty is disproportionate. We have no power to deal with the penalty because it is not the subject of this appeal. It was calculated on the basis that the appellant’s actions were deliberate and concealed and his disclosure of the wrongdoing was prompted. We therefore simply need to consider whether in the circumstances it would be disproportionate for the Vehicle not to be restored. 93. In our view in the circumstances of this case it cannot be argued that a refusal to restore the Vehicle would be disproportionate. Whilst undoubtedly the overall effect of HMRC’s and the Border Force’s actions has been, as the appellant himself acknowledged in his oral evidence, to give him an “expensive lesson” as to the folly of tobacco smuggling and has resulted in financial liabilities which he may not have the resources to meet, in our view it would not be appropriate to lessen the deterrent effect of the sanctions imposed by granting a degree of relief by restoring the Vehicle. In that context, we have found that the loss of the Vehicle in itself will not result in any exceptional hardship to the appellant because he still has his BMW. 94. In our view it is plain in the circumstances of this case that the sanctions imposed on the appellant as a whole strike a fair balance between the rights of the individual and the public interest, the public interest in deterring deliberate tobacco smuggling being particularly strong. 95. Officer Hodge’s reasons for her decision as summarised at [32] above present a compelling case against restoration. Consequently, it is our view that were we to set aside Officer Hodge’s decision and direct a further review, which would only be necessary so that the issue of proportionality can be properly considered, that the inevitable conclusion of that review would be that it was not disproportionate not to restore the Vehicle. 96. For these reasons, we dismiss the appeal. Postscript 97. The tenor of our decision is such that the Border Force and HMRC may take the view that the proportionality issue of imposing both a penalty and refusing restoration is unlikely to be troublesome to them in cases of aggravated smuggling. 98. Nevertheless, in our view it is important that the two agencies develop a single comprehensive policy which deals with the question as to when it would be considered appropriate to impose penalties as well as refusing restoration. This policy could cover both cases of deliberate smuggling for profit as well as less serious cases. As we have indicated, if the two agencies continue to have entirely separate policies there is a clear risk in more flawed decisions being made. 99. 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. TIMOTHY HERRINGTON TRIBUNAL JUDGE RELEASE DATE: 18 MARCH 2016 APPENDIX Relevant Legislation Liability to excise duty 1. Section 2 of the Tobacco Products Duty Act 1979 provides that excise duty is payable on tobacco products when they are imported into the United Kingdom. 2. Regulation 13 of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 provides: “13(1) Where excise goods already released for consumption in another Member State are held for a commercial purpose in the United Kingdom in order to be delivered or used in the United Kingdom, the excise duty point is the time when those goods are first so held. (2) Depending on the cases referred to in paragraph (1), the person liable to pay the duty is the person - (a) making the delivery of the goods; (b) holding the goods intended for delivery; or (c) to whom the goods are delivered. (3) For the purposes of paragraph (1) excise goods are held for a commercial purpose if they are held - (a) by a person other than a private individual; or (b) by a private individual (‘P’), except in a case where the excise goods are for P’s own use and were acquired in, and transported to the United Kingdom from, another Member State by P. (4) For the purposes of determining whether excise goods referred to in the exception referred to in the exception in paragraph (3)(b) are for P’s own use regard must be taken of - (a) P’s reasons for having possession or control of those goods; (b) whether or not P is a revenue trader; (c) P’s conduct, including P’s intended use of the goods or any refusal to disclose the intended use of those goods; … (h) the quantity of those goods and, in particular, whether the quantity exceeds any of the following quantities- … 800 cigarettes (i) whether P personally financed the purchase of those goods; (j) any other circumstance that appears to be relevant. (5) For the purposes of the exception in paragraph (3) (b)- … (b) “own use” includes use as a personal gift but does not include the transfer of goods to another person for money or money’s worth (including any reimbursement of expenses incurred in connection with obtaining them). 3. Section 12(1A) of the Finance Act 1994 provides that HMRC may assess an amount of excise duty which it appears to them is due from a person. Liability to penalty 4. Paragraph 4(1) of Schedule 41 to the Finance Act 2008 states: “4(1) A penalty is payable by a person (P) where - (a) After the excise duty point for any goods which are chargeable with a duty of excise, P acquires possession of the goods or is concerned in carrying, removing, depositing, keeping or otherwise dealing with the goods and (b) At a time when P acquires the goods, or is so concerned, a payment of duty on the goods is outstanding and has not been deferred.” 5. The amount of the penalty payable under paragraph 4 is specified by paragraph 6 of Schedule 41: “6(1) The penalty payable under any of paragraphs 2, 3(1) and 4 is (a) for a deliberate and concealed failure, 100% of the potential lost revenue, (b) for a deliberate but not concealed failure, 70% of the potential lost revenue (c) for any other case 30% of the potential lost revenue.” 6. The degrees of culpability are defined in paragraph 5 of Schedule 41. The relevant provision is paragraph 5(4) which states “(4) P’s acquiring possession of, or being concerned in dealing with goods on which a payment of duty is outstanding and has not been deferred is - (a) ‘deliberate and concealed’ if it is done deliberately but P makes arrangements to conceal it, and (b) ‘deliberate but not concealed’ if it is done deliberately but P does not make arrangements to conceal it.” 7. Paragraphs 12 and 13 of Schedule 41 provide for reductions in penalties where there has been disclosure. Paragraph 12 is as follows: “12(1) Paragraph 13 provides for reductions in penalties under paragraphs 1 to 4 where P discloses a relevant act or failure. (2) P discloses a relevant act or failure by - (a) telling HMRC about it, (b) giving HMRC reasonable help in quantifying the tax unpaid by reason of it, and (c) allowing HMRC access to records for the purpose of checking how much tax is so unpaid. (3) Disclosure of a relevant act or failure - (a) is ‘unprompted’ if made at a time when the person making it has no reason to believe that HMRC have discovered or are about to discover the relevant act or failure, and (b) otherwise, is ‘prompted’. (4) In relation to disclosure ‘quality’ includes timing, nature and extent.”

“88. If in relation to any excise goods that are liable to duty that has not been paid there is – (a) a contravention of any provision of these Regulations, or (b) … those goods shall be liable to forfeiture.” 9. The Customs and Excise Management Act 1979 (“CEMA 1979”) provides as follows: “139(1) Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer… … 141(1) …where any thing has become liable to forfeiture under the customs and excise Acts - (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either 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 things so liable, shall also be liable to forfeiture.” 10. Paragraph 1 Schedule 3 CEMA 1979 provides for notice of the seizure to be given in certain circumstances. Paragraph 3 Schedule 3 CEMA 1979 then states: “Any person claiming that any thing 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 …” 11. Where notice of a claim is given under paragraph 1, condemnation proceedings are commenced in the Magistrates’ Court. Where no notice of claim is given Paragraph 5 Schedule 3 CEMA 1979 provides: “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.” 13. Section 152 of CEMA 1979 provides … “The Commissioners may as they see fit – (a) … (b) restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under [the Customs and Excise Acts] …” 14. Sections 14 and 15 of the Finance Act 1994 makes provision for a person to require a review of a decision of HMRC under section 152(b) CEMA not to restore anything seized from that person. By virtue of Section 16(8) and Schedule 5 to FA 1994, a decision under Section 152 (b) of CEMA 1979 is a “decision as to an ancillary matter”. 15. Section 16(1) of the Finance Act 1994 provides that a person can appeal against a decision on a review under section 15. Section 16(4) provides: “(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 review or further review as appropriate of the original decision; and (c) in the case of a decision that has already been acted on or taken effect and cannot be remedied by a review or further review as appropriate, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.”