“1. Without prejudice to Article 36(1), where excise goods which have already been released for consumption in one Member State are held for commercial purposes in another Member State in order to be delivered or used there, they shall be subject to excise duty and excise duty shall become chargeable in that other Member State. 2... 3. The person liable to pay the excise duty which has become chargeable shall be, depending on the cases referred to in paragraph 1, the person making the delivery or holding the goods intended for delivery, or to whom the goods are delivered in the other Member State.”
“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; and (b) a contravention of any condition or restriction imposed by or under these Regulations those goods shall be liable to forfeiture.” those goods shall be liable to forfeiture.”
“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.”
“If on the expiration of the relevant period under paragraph 3 above for giving a notice of claim in respect of any thing no such notice has been given to the Commissioner, 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.”
“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 or (as the case may be) chargeable soft drinks in respect of which a payment of soft drinks industry levy is due and payable and has not been paid is – (a) 'deliberate and concealed' if it is done deliberately and 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.” (a) 'deliberate and concealed' if it is done deliberately and 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.”
“A person is liable to a penalty under Sch 41 if he “acquired possession of…goods on which a payment of duty is outstanding and has not been deferred”, with higher penalties charged if that person acted “deliberately”
“(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.” (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.”
“73. The FTT then said this at [101] and [102]: “101. I appreciate that care must be taken in deriving principles based on cases dealing with different legislation. However, I can see nothing in schedule 55 which evidences any intention that the phrase “special circumstances” should be given a narrow meaning. “101. I appreciate that care must be taken in deriving principles based on cases dealing with different legislation. However, I can see nothing in schedule 55 which evidences any intention that the phrase “special circumstances” should be given a narrow meaning. 102. It is clear that, in enacting paragraph 16 of schedule 55, Parliament intended to give HMRC and, if HMRC's decision is flawed, the Tribunal a wide discretion to reduce a penalty where there are circumstances which, in their view, make it right to do so. The only restriction is that the circumstances must be “special”
“1. Is a person … who is in physical possession of excise goods at a point when those goods become chargeable to excise duty in Member State B liable for that excise duty pursuant to Article 33(3) of Directive [2008/118] in circumstances where that person: (a) had no legal or beneficial interest in the excise goods; (b) was transporting the excise goods, for a fee, on behalf of others between Member State A and Member State B; and (c) knew that the goods he was in possession of were excise goods but did not know and did not have reason to suspect that the goods had become chargeable to excise duty in Member State B at or prior to the time that they became so chargeable? (a) had no legal or beneficial interest in the excise goods; (b) was transporting the excise goods, for a fee, on behalf of others between Member State A and Member State B; and (c) knew that the goods he was in possession of were excise goods but did not know and did not have reason to suspect that the goods had become chargeable to excise duty in Member State B at or prior to the time that they became so chargeable? 2. Is the answer to Question 1 different if [the person in question] … did not know that the goods he was in possession of were excise goods?”
“[24] The concept of a person who 'holds' goods refers, in everyday language, to a person who is in physical possession of those goods. In that regard, the question whether the person concerned has a right to or any interest in the goods which that person holds is irrelevant. [25] Moreover, there is nothing in the wording of Article 33(3) of Directive 2008/118 to indicate that the status of person liable to pay the excise duty, as being 'the person holding the goods intended for delivery', depends on ascertaining whether that person is aware or should reasonably have been aware that the excise duty is chargeable under that provision. … [31] Furthermore, an interpretation limiting the status of person liable to pay the excise duty as being 'the person … holding the goods intended for delivery', within the meaning of Article 33(3) of Directive 2008/118, to those persons who are aware or should reasonably have been aware that excise duty has become chargeable would not be consistent with the objectives pursued by Directive 2008/118, which include the prevention of possible tax evasion, avoidance and abuse (see, to that effect, judgment of29 June 2017 , Commission v Portugal, C-126/15, EU:C:2017:504, paragraph 59). … [33] …the Advocate General observed in point 29 of his Opinion, the intention of the EU legislature was to lay down a broad definition, in Article 33(3) of Directive 2008/118, of the category of persons liable to pay excise duty in the event of a movement of excise goods already 'released for consumption' in one Member State and held, for commercial purposes, in another Member State in order to be delivered or used there, so as to ensure, so far as possible, that such duty is collected. [34] However, to impose an additional condition requiring that the 'person … holding the goods intended for delivery', within the meaning of Article 33(3) of Directive 2008/118, is aware or should reasonably have been aware that excise duty is chargeable would make it difficult, in practice, to collect that duty from the person with whom the competent national authorities are in direct contact and who, in many situations, is the only person from whom those authorities can, in practice, demand payment of that duty. [35] That interpretation of Article 33(3) of Directive 2008/118 is without prejudice to the possibility, where provided for by national law, for the person who, under that provision, has paid the excise duty that has become chargeable to bring an action for a contribution or indemnity against another person liable to pay that duty (see, by analogy, judgment of17 October 2019 , Comida paralela 12, C-579/18, EU:C:2019:875, paragraph 44). [36] In the light of the foregoing, the answer to the questions referred is that Article 33(3) of Directive 2008/118 must be interpreted as meaning that a person who transports, on behalf of others, excise goods to another Member State, and who is in physical possession of those goods at the moment when they have become chargeable to the corresponding excise duty, is liable for that excise duty, under that provision, even if that person has no right to or interest in those goods and is not aware that they are subject to excise duty or, if so aware, is not aware that they have become chargeable to the corresponding excise duty.”
“Although the initial focus, given the scheme and wording of the legislation together with the case law, is necessarily on the physical location of goods so giving weight to physical possession – that is not the end of the matter and a more detailed consideration of the facts is needed” - see Hartleb at paragraph [82] (4) identified the fact that, whereas the appellant’s employee had had physical possession of the goods at the excise duty point, the appellant herself had had de facto and/or legal control of the goods at that point; (5) held that, in the circumstances of that case, where the appellant had entered into an arrangement with the manufacturer of the goods for the transportation of the goods by her business and was discharging her obligations under that arrangement by directing her employee to deliver the goods accordingly, it was legally correct and consistent with the operation of the Directive and the Regulations to treat the appellant and not her employee as “holding” the goods. “Put simply, the circumstances in which the Appellant had control outweigh the fact that physical possession of the excise goods was with her employee” – see Hartleb at paragraph [90]; and (6) referred to passages from the Advocate General’s opinion in WR at paragraphs [37] to [39] which suggested that, in the Advocate General’s view, where an employee was making a delivery of goods on behalf of his employer and was therefore in physical possession of the goods, it was the employer - with de facto or legal control over the goods - who would be the person liable for the duty and not the employee. 29. We are, of course, bound by the decision in Hartleb. It follows that we are bound to hold that de facto and/or legal control of goods without physical possession of them can be sufficient to amount to “holding” the goods in an appropriate case. However, that does not mean that de facto and/or legal control of the goods will always be sufficient to amount to “holding” the goods. In each case, it is necessary to consider all of the relevant facts by reference to the four questions set out in Dawson’s UT. 30. Of critical significance in this regard is that it is implicit in the nature of the four questions – and indeed it is explicit in the decision in Hartleb at paragraphs [88] to [90] - that, in a case where physical possession of the goods and de facto and/or legal control of the goods are in separate hands at the excise duty point, we are bound to decide which of the relevant persons is to be regarded as “holding” the goods at that point to the exclusion of the other or others. It is not possible to treat more than one of the relevant persons as “holding” the goods at that point. In Hartleb, the Upper Tribunal applied the four questions set out in Dawson’s UT to determine whether it was the appellant or her employee who should be treated as “holding” the goods at that point. It did not suggest that both the appellant and her employee could be treated as “holding” the goods at that point. Similarly, in Dawson’s UT at paragraph [147], the Upper Tribunal did not suggest that both the person in physical possession and the person with de facto or legal control of the goods at the excise duty point could be treated as “holding” the goods at that point. It clearly envisaged that one of the persons would be “holding” the goods at that point to the exclusion of the other. We are bound to adopt a similar approach in this case and therefore to consider whether, on the basis of applying the four questions set out in Dawson’s UT to the facts in this case, it was the Appellant or someone else – whether Palletways, as the controller of the Network through which the delivery was being made, or the driver of the lorry carrying the goods – who should be treated as “holding” the goods at the excise duty point. A finding that one of those persons was “holding” the goods at the excise duty point necessarily precludes a finding that the other or others was or were doing so and therefore a comparative exercise is required in which the position of each potential candidate must be weighed up against the other or others.”
““Making the delivery” 32. As for the question of whether the Appellant should be regarded as “making the delivery” of the alcohol at the excise duty point, the Upper Tribunal in Hartleb: (1) noted that: (a) there is no legislative definition of the term “making the delivery” for the purposes of the Directive and the Regulations and there is little authority on the meaning of the term; (b) in line with the approach which it considered to be correct in relation to the meaning of “holding”, the words “making the delivery” should be interpreted in accordance with their normal meaning unless that interpretation is contradicted by the purpose of the provision or by general principles of law and should be interpreted in context; and (c) to its knowledge, the meaning of the term had not been considered juridically. Although there was a suggestion in the Advocate General's opinion in WR at paragraph [43] that physical possession was necessary in order to be “making the delivery”, the Advocate General had not elaborated on this and the CJEU's decision in WR was focused solely on the question of “holding”; (2) went on to say as follows: “111. We would expect the determination of whether someone is “making the delivery” of excise goods to follow a similar approach to the determination of whether a person is “holding” excise goods. Regs. 13(2)(a), (b) and (c) are, in effect, tracking the physical movement of goods from leaving a duty suspension arrangement to being in the possession of the end user and are sequential. 112. Given the Excise Directive's focus on the physical location of the excise goods we would, therefore, expect physical possession of the excise goods to form an important part of the determination of whether a person is “making delivery of” those goods although, as with “holding”, for physical possession to not be definitive.” 33. The above suggests that the absence of physical possession, whilst not being definitive, is a significant factor in reaching the conclusion that the person in question is not “making the delivery” in any particular case.” (1) noted that: (a) there is no legislative definition of the term “making the delivery” for the purposes of the Directive and the Regulations and there is little authority on the meaning of the term; (b) in line with the approach which it considered to be correct in relation to the meaning of “holding”, the words “making the delivery” should be interpreted in accordance with their normal meaning unless that interpretation is contradicted by the purpose of the provision or by general principles of law and should be interpreted in context; and (c) to its knowledge, the meaning of the term had not been considered juridically. Although there was a suggestion in the Advocate General's opinion in WR at paragraph [43] that physical possession was necessary in order to be “making the delivery”, the Advocate General had not elaborated on this and the CJEU's decision in WR was focused solely on the question of “holding”; (2) went on to say as follows: “111. We would expect the determination of whether someone is “making the delivery” of excise goods to follow a similar approach to the determination of whether a person is “holding” excise goods. Regs. 13(2)(a), (b) and (c) are, in effect, tracking the physical movement of goods from leaving a duty suspension arrangement to being in the possession of the end user and are sequential. 112. Given the Excise Directive's focus on the physical location of the excise goods we would, therefore, expect physical possession of the excise goods to form an important part of the determination of whether a person is “making delivery of” those goods although, as with “holding”, for physical possession to not be definitive.”