“ Excise goods are released for consumption in the United Kingdom at the time when the goods - (a) … (b) are held outside a duty suspension arrangement and UK excise duty on those goods has not been paid, relieved, remitted or deferred under a duty deferment arrangement;…”
“The person liable to pay the duty when excise goods are released for consumption by virtue of regulation 6(1)(b) (holding of excise goods outside a duty suspension arrangement) is the person holding the excise goods at that time.”
“(1) Who had physical possession at the time that the alleged earlier excise duty point occurred. For example, the earlier excise duty point might be established immediately before the goods concerned were delivered to the premises of the subsequent holder, by reference to the physical possession of the courier delivering those goods. (2) Who is the person alleged to have de facto or legal control over the goodswho it is said should be assessed rather than the subsequent holder…and how that person is said to have such control and the basis on which it was being exercised. For example, the terms of supply to the person alleged to have de facto or legal control might mean that in fact that person never had control of the goods and did not direct their delivery. Control might have been exercised by another entity earlier in the chain of supply in compliance with a request by the person in question to deliver them to the subsequent holder. Alternatively, for example, the terms of supply to the subsequent holder, including where relevant the operation of the Sale of Goods Act or the Convention…might mean that the goods were already under the control of the subsequent holder while in transit to him. (3) The time at which the excise duty point arose. Whilst precise temporalexactitude is not essential…in our view the date of an invoice is not sufficient in itself without establishing who was in possession of the goods at some identified point or points in time. In that context, and as already indicated, the terms of the relevant sale may be relevant, in particular as to when delivery is deemed to have occurred. Copies of CMRs, if they can be obtained, may be relevant. (4) Where the goods were being held at the relevant time. In the case of goodsbeing transported, that could be by reference to the means of transport or the location of that means of transport at some point in time, possibly immediately prior to the delivery of the goods at a particular location. We do not consider that the goods need necessarily to be shown to have been static at a particular place at a single fixed point in time...For example, in the case of means of transport the transport used, the start and/or end points of thejourney and a defined period of time within which it must have occurred might be identified.”
“As far as the aims of the Directive are concerned, as I will explain in the section below, the broad wording of the provisions at issue, which concern a series of persons potentially liable for the duties without any order of priority being established, and who are jointly liable, seeks to guarantee that the tax debt is paid effectively and for that purpose someone must be held responsible. The Court has endorsed this view in its case-law.”
“…as 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 another Member State in order to be delivered or used there, so as to ensure so far as possible, that such duty is collected.”
“…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.”
“22. …a person need not be aware that excise duty is being evaded to be “holding” or “making … delivery of” goods for the purposes of regulation 13 of the 2010 Regulations or article 33 of the 2008 Directive. 23. It follows that the fact that Mr Perfect had neither actual nor constructive knowledge of the smuggling of the beer he was carrying cannot exempt him from liability from excise duty.”
“59. We accept that if the Appellant were found not to be the holder of the excise goods, revenue loss would be likely as employers might then be able to use their employees as ‘shields’ from liability. 60. In a case where an employer has de facto and/or legal control over excise goods it would also seem an extraordinary result if it was prevented from being regarded as holder of those excise goods purely on the grounds that its employee was the person in physical possession.”
“78. We find the factors identified by the UT in Dawson to be a useful guide in determining who to regard as holder in circumstances where physical possession and de facto and/or legal control are separated as they are in our situation, noting in this regard that the second factor must now be seen in the context of Perfect and WR. 79. This is notwithstanding the fact that in Dawson the factors were intended to aid identification of an earlier excise duty point in circumstances where an assessment was being challenged on the basis of there being an earlier excise duty point against which the assessment should have been made. 80. We also take into account the fact that Dawson and the majority of cases considered in it, including Perfect, involve persons arguing that they should not be assessed to duty simply on the basis of having physical possession of excise goods. The Appellant’s position is, in effect, the reverse as she contends that she should not be assessed to duty as she did not have physical possession of the relevant excise goods. Although the situation is the reverse, we consider that the principle of physical possession not being determinative must apply equally. 81. The approach of the UT and Court of Appeal in Dawson demonstrates that the determination of “holding” is a question of law and fact. 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. 82. Although Asplin LJ was careful to not express a view on the question of whether de facto and/or legal control is sufficient for the purpose of holding, as that issue was not before the court (see [72] of the Court of Appeal judgment), her decision shows that physical possession alone is not necessarily sufficient. 83. As the UT commented in Dawson it is consistent with the legislation and case law to adopt an approach that establishes first who has physical possession of the goods but then considers whether the circumstances of that possession are such that it is inappropriate for that person to be considered to be “holding” the goods...”
“It is then necessary for us to consider the circumstances in respect of which the Respondents contend that the Appellant (the person in control) rather than the employee (the person with physical possession) should be regarded as holder and whether those circumstances outweigh the Appellant’s lack of physical possession.”
“Where in any proceedings relating to customs or excise any question arises as to the place from which any goods have been brought or as to whether or not— (a) any duty has been paid or secured in respect of any goods… (b) then, where those proceedings are brought by or against the Commissioners, a law officer of the Crown or an officer, or against any other person in respect of anything purporting to have been done in pursuance of any power or duty conferred or imposed on him by or under the customs and excise Acts, the burden of proof shall lie upon the other party to the proceedings.”
“It seems to me, therefore, that the matters at (3) and (4) of [149] of the UT decision, being the time at which the excise point arose and where the goods were being held at that time, are factors to be taken into consideration where an assessment is challenged on the basis that an earlier excise duty point can be established. In the circumstances of this case, the burden of proof is on DWL [the Appellant]. ”
“B & M wish to be satisfied that there are not in fact earlier points in the supply chain where an excise duty point could clearly be established on the evidence, or might be if such an investigation were in their view more vigorously pursued. We would be inclined to agree that it would not be in the interests of justice that HMRC should simply be able to sit back and say that the burden is on the taxpayer to provide the evidence to displace its liability, when the evidence that HMRC do actually have is in fact sufficient to demonstrate, objectively, that an earlier excise duty point could be established. We are in no position, however, to say whether that is the position in the present case, and any concerns of that nature would anyway have to be pursued through the medium of judicial review.”
“(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (4) Parties must— (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.” (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.”
“(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. (2) … (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may by direction (a)-(c) … (d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;…” (a)-(c) … (d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;…”
“On the application of a party or on its own initiative, the Tribunal may— (a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation; (b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings…” (a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation; (b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings…”
“…in order for the main appeal to be determined fairly and justly, in accordance with the overriding objective, HMRC should have an equal opportunity to review the further relevant documents held by [the appellants] which they have not yet disclosed to HMRC and which they do not wish themselves to rely upon in the appeal…”
“As rule 2 makes clear, the Rules are intended to be interpreted and applied so as to enable the FTT “to deal with cases fairly and justly”
“HMRC had to ask for disclosure of documents in relatively general terms, because they did not know what documents relevant to the issues pleaded in the Statements of Case the appellant partnerships might hold.”
“My conclusion is that disclosure from HMRC limited to that required by rule 27(2), would not be not sufficient in these AWRS appeals, even as a starting point…I agree with the conclusion of the FTT and Upper Tribunal in these appeals that where HMRC have access to many documents of which the applicant may be unaware, it is vital that the appellant trader have access to any exonerating material in the hands of HMRC. These cases are different from the more common appeals against a tax assessment where most if not all the material considered is provided to HMRC by the tax payer.”
“In my judgment, HMRC should give what corresponds to standard disclosure under the CPR but with the same qualification as the Court accepted in the Namli case, that is excluding documents which are not relied on and which are entirely adverse to the applicant's case.”
“…although this Tribunal has no supervisory role in relation to HMRC’s investigations, it does have power under rule 5(3)(d) of the FTT Rules to make a direction to require a person to provide “documents, information or submissions”, and under rule 16(1) to require a person to attend as a witness or to answer questions or produce documents. As Mr Watkinson fairly volunteered on behalf of HMRC, it is difficult to see circumstances in which a Tribunal would refuse an application for disclosure of evidence in HMRC’s possession that might help to establish an earlier duty point where it was properly made. Where an appellant believes that, despite requests, HMRC has not disclosed such material, that would be an obvious application for an appellant to make.”
“Second, a complaint by the Appellant that HMRC possessed or might have possessed information which would have been sufficient to identify the four factors relevant to an earlier duty point could have been dealt with by an application for disclosure before the FTT hearing. The FTT has power under Rule 5(3)(d) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules to make a direction requiring a person to provide documents, information or submissions, and under Rule 16(1) to require a person to attend as a witness or to answer questions or produce documents. If the Appellant believed that HMRC was failing to disclose relevant information, an application to the tribunal could have been made under these Rules.”
“the obligation to assess the first duty point for which sufficient information is available is an obligation on HMRC as a body, not on the HMRC officer who issues the duty assessment. It follows that what mattered was not what Ms Cox [the investigating officer] knew personally about the investigations into a potential suspect, but what HMRC as a body knew.”
“Where an appellant believes that, despite requests, HMRC has not disclosed such material, that would be an obvious application for an appellant to make.”
“on the basis of the information held by HMRC, it is understood that the defaulting/missing traders and C&C Brands Ltd acted as brokers with delivery being arranged from/by their respective suppliers directly to customers such as UWG. They did not actually take physical possession of the goods in question.” (4) Officer Stuart, the investigating officer, provided a witness statement in which she said: “ I was present when Officer Henderson explained that the goods supplied by C&C Brands Ltd had been traced back to missing traders and that within the supply chain United Wholesale Grocers is the only company HMRC can establish as physically holding the goods, therefore creating a duty point.”
“…it should ordinarily be regarded as fair and just for a party to be entitled to review documents held by the other party or to which the other party has access which are relevant to the issues in the case, even if those documents are not documents on which the other party itself intends to rely (and so the documents are not within FTR rule 27) and even if they are detrimental to the other party’s case.”
“the concept of ‘relevance’ should not set ‘an unduly high bar’ and should be taken, in principle to include documents or information that might advance…a party’s case or which may lead to ‘a train of enquiry’ that might advance…a party’s case.”
“…the CPRs provide useful guidance as to the extent of disclosure that should be ordered by the Tribunal having due regard, of course, to the nature of the proceedings before it.”