Andrew Burridge v The Commissioners for HMRC [2026] UKFTT 1127 (TC)

[2026] UKFTT 01127 (TC)Case No TC 09974
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 27 July 2026Date Judgment date: 05 August 2026
[Location/By remote video hearing]
Appeal reference: TC/2025/02367
Customs civil evasion penalty - Excise civil evasion penalty – Whether sufficient evidence to establish dishonest conduct by Appellant - Yes –mitigation - Appeal allowed in part
Before
TRIBUNAL JUDGE JENNIFER DEAN
Between
ANDREW BURRIDGEAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMr A. Burridge attended in person for AppellantMr G. Nyoni, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]This appeal concerns the Appellant’s appeal against an Excise & Customs Civil Evasion Penalty (“the penalty”) in the sum of £22,297.00, issued by HMRC on 11 April 2025 and upheld on review 21 May 2025.[2]HMRC’s case is that the Appellant’s conduct on 15 April 2024, in entering the United Kingdom carrying 35.35kg of hand rolling tobacco (“the goods”), involved dishonesty so as to give rise to liability to the penalty.

Background

[3]The following was not in dispute.[4]On 15 April 2024 the Appellant arrived at Manchester Airport from Banjul, Gambia and was found to be carrying the goods, which were not UK duty paid, and which exceeded the relevant travellers’ allowance of 250g of hand rolling tobacco.[5]The goods were seized by Border Force, and the seizure was not challenged, such that the goods are treated as condemned and forfeit.[6]On 11 April 2025 HMRC issued the penalty decision against which the Appellant now appeals.[7]Following a statutory review, HMRC upheld the penalty decision. The Appellant appealed to the Tribunal on 9 June 2025.

Legislative provisions, burden of proof and authorities

[8]There was no dispute about the applicable legislation.[9]The Travellers Allowance Order 1994 is limited to 250g of hand rolling tobacco and only applies where goods are not imported for commercial purposes.[10]Under section 8(1) Finance Act 1994, a penalty arises where a person engages in conduct for the purpose of evading excise duty and that conduct involves dishonesty.[11]Under section 25(1) Finance Act 2003, a similar penalty applies for evasion of customs duty and import VAT where conduct involves dishonesty.[12]The penalty is equal to the amount of duty evaded or sought to be evaded. The Tribunal has power to reduce the penalty under section 8(4) Finance Act 1994 and section 29 Finance Act 2003.[13]Pursuant to section 16(6) Finance Act 1994 and section 33(7)(a) Finance Act 2003, the burden of proving dishonesty rests upon HMRC.[14]The leading authority on the issue of dishonesty is Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 in which the Supreme Court (at [62]) approved the objective test previously explained in Royal Brunei Airlines Sdn Bhd v Tan and Barlow Clowes International Ltd v Eurotrust International Ltd [1995] 2 AC 378.[15]At [63] the Supreme Court held:
“There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution.”
[16]At [74] the Supreme Court set out the correct approach to adopt:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts.”
[17]Once the individual's actual state of mind has been established, the question of dishonesty is determined objectively by reference to the standards of ordinary decent people.[18]R v Barton and Booth [2020] EWCA Crim 575 confirms that Ivey represents the authoritative statement of the law.

Grounds of Appeal

[19]The Grounds relied upon as set out in the Notice of Appeal dated 9 June 2025 can be summarised as follows:(a) the decision to import the goods was reckless and ignorant,(b) to not be fully aware of the customs allowance and continue to do so regardless is something he should have taken great consideration for and which the Appellant deeply regrets,(c) He should have complied with the disclosure process and is happy to provide information if given another opportunity,(d) The Appellant has challenges with processing skills, along with reading and writing and required assistance in composing the appeal,(e) This is the first time the Appellant imported prohibited goods,(f) The amount of the penalty will have a huge detrimental effect on his life, and he does not think he or his family will ever recover from it.

Issues

[20]The issues to be determined can be summarised as follows:(i) Whether the Appellant engaged in conduct for the purpose of evading duty;(ii) Whether such conduct involved dishonesty;(iii) Whether HMRC have discharged the burden of proof;(iv) Alternatively, whether the penalty should be reduced.

Evidence

[21]Border Force officer Haigh who intercepted the Appellant could not attend for personal reasons, however the Appellant confirmed that he accepted Mr Haigh’s evidence which I accepted in full. The salient points of that evidence are:(i) Mr Burridge was intercepted in the Green Channel at Terminal 2 at Manchester Airport on 15 April 2024;(ii) When asked if he was aware of his allowances of tobacco, Mr Burridge replied “We’re not in the EU anymore”;(iii) When told of the allowance of 250g HRT Mr Burridge replied “Oh well you’re going to take them off me then”.(iv) The goods comprised 35.1kg of Amber Leaf tobacco and 250g of Goden Virginia tobacco;(v) Mr Haigh seized the goods.[22]HMRC officer Doherty was responsible for issuing the penalty. His evidence was that an initial letter was sent to the Appellant on 6 March 2025 to advise that HMRC were enquiring into the issues of customs and excise duty and that cooperation with the enquiry could reduce any penalties that may become due. The Appellant was asked to provide details of any health or personal circumstances that may make it difficult to deal with the enquiry. The letter also advised the Appellant that should he choose to correspond by email he would need to acknowledge the risks of email correspondence being intercepted over the internet. Mr Doherty confirmed in evidence that the letter contained the direct contact number and email address for contact should the Appellant have indicated that he faced challenges with literacy and required assistance. An extra support team is available to assist and there is the option of a telephone interview where answers can be taken verbally.[23]On 21 March 2025 a reminder letter was issued together with a copy of the earlier letter as no response had been received.[24]No response was received and on 7 April 2025 Mr Doherty considered all the information available to him, which consisted of information provided by Border Force and Mr Haigh. In reaching his decision that a penalty was due, Mr Doherty relied upon the following factors:(a) By entering the green channel, the Appellant gave a non-verbal declaration that he had no excise goods to declare in excess of his allowance;(b) A search of his bags revealed 35.35kg HRT which was 141.4 times the duty free allowance;(c) There is signage at all ports of entry and baggage reclaim advising of the allowances. The signage is written and contains visual aids including pictures of dutiable goods. Mr Doherty was satisfied that the Appellant was aware of his allowances and therefore made a dishonest attempt to import the goods;(d) The Appellant’s response to Mr Haigh that “we are not in the EU anymore” implied an understanding that allowances exist and Mr Doherty would expect a reasonable person to check the allowances before travelling;(e) Mr Doherty questioned the reference to the EU when the Appellant had travelled from Gambia which is not in the EU and concluded the Appellant was trying to deflect the question and avoid providing an incriminating answer;(f) The amount of goods indicates they were unlikely to be for personal use and Mr Doherty concluded they could have been intended for sale/commercial use;(g) There was no response from the Appellant to explain his conduct and in the absence of any explanation, Mr Doherty could only base his decision on the information in Mr Haigh’s notebook which recorded the conversation with the Appellant at interception;(h) On the balance of probabilities, Mr Doherty concluded that the conduct was dishonest and a penalty should be raised.[25]Mr Doherty confirmed that The Duty Schedule showed how the Customs Duty, Excise Duty and Import VAT had been calculated providing an individual breakdown of the Customs Duty, Excise Duty and Import VAT by brand. The total duty attempted to be evaded was £22,297.00 and the Civil Evasion Penalty for £22,297.00 is based solely on the value of the HRT that Appellant was attempting to import with the reduction of 0% for his disclosure and cooperation. There was no additional ‘’wrongdoing’’ penalty charged. There was no challenge to the calculation of the penalty as set out in Mr Doherty’s evidence and I was satisfied that it was correctly calculated.[26]Mr Doherty then considered mitigation. He explained that HMRC can allow reductions to any penalty of up to 40% for disclosure and 40% for co-operation. The reductions are based on the level of disclosure and co-operation received from the customer during the enquiry. Mr Doherty considered the lack of response from the Appellant to mean that he did not wish to provide any disclosure of information or co-operate with HMRC in this enquiry. He therefore elected not to award any mitigation to the Appellant.[27]Mr Doherty confirmed that he could not take into account the Appellant’s financial circumstances as the legislation expressly precludes it. He accepted that the Appellant had cooperated with the Border Force officer, but he clarified that there had been no cooperation with the enquiry.[28]Mr Burridge gave evidence in which he queried why he was allowed to purchase tobacco without restriction in Gambia. He was told there were no limits and so he filled up his suitcase. He did not deny he had the goods, but he was not attempting to smuggle them; he does not even smoke.[29]He had been in Gambia on a visit organised by his local church to deliver electrical kitchen goods and items for children. Once the items were delivered, he had an empty suitcase, he saw how cheap the tobacco was and he knows people who smoke.[30]The Appellant explained his limited education due to dyslexia and the struggles he faces being unable to communicate by text or letter; instead, he either has to ask for help or make telephone calls.[31]The Appellant confirmed he had travelled abroad before, including to Gambia, Benidorm, Amsterdam, Dublin and Barbados. His partner arranges all the personal travel due to his difficulties, or it is arranged by his church. His friend Graham accompanied him on this trip, which was the first time Graham had ever flown, and the church helped pay for his flight and accommodation.[32]The Appellant disagreed that he was a regular or experienced traveller and stated he was not aware of allowances for goods such as tobacco. He could not explain why, when intercepted, he had referred to the EU and stated tobacco is not usually something he would buy. He had never seen the signage at the airport and explained that he does not walk around the airport; when he arrives, he goes to the lounge and stays there until the flight is boarding.[33]The Appellant explained he decided to buy the tobacco at the airport at the duty-free shop. He had passed through customs at that point but filled his suitcase and they took it to put in the hold of the plane. He had asked if the duty-free shop had a restriction on the amount he could purchase but it did not occur to him that there may be restrictions on import. He understood that the green channel was the way out and green meant it was open and that the red channel meant that exit was closed.[34]Although he could not specifically recall receiving HMRC’s letters, he knows they were received and he understood they related to the airport interception. His partner replied on 25 April 2025 on his behalf (which was after the notice of assessment setting out the penalty that had been imposed was issued) requesting a review and advising that the risks of email correspondence were accepted. The Appellant explained that there was no further information he could have provided to reduce the penalty and he was apologetic for the situation.

Discussion and Decision

[35]The penalties in this appeal have been issued under ss 8 and 13 Finance Act 1994 and s 25 Finance Act 2003. In essence these provide that a person who is engaged in dishonest conduct for the purpose of evading duty shall be liable to a penalty equal to the amount of duty evaded or sought to be evaded.[36]It is for HMRC to establish that a person, in this case the Appellant, engaged in dishonest conduct for the purpose of evading duty and that the test to be applied is that set out in the decision of the Supreme Court in Ivey v Genting Casinos (UK) Limited t/a Crockfords [2017] UKSC 67 (at [74]).[37]I must therefore consider whether HMRC have established whether it was more likely than not that the Appellant dishonestly engaged in any conduct for the purpose of evading duty. For the reasons set out below, I am so satisfied.[38]The Appellant accepted the evidence of Mr Haigh which was supported by the record in Mr Haigh’s notebook of the conversation at the point of interception. The Appellant had entered the Green Channel, indicating that he had no excise goods to declare in excess of his allowance.[39]I rejected the Appellant claim that he was wholly unaware of the existence of limits on the amount of tobacco that could be imported. Even allowing for the literacy challenges faced by the Appellant, I consider that a traveller in his position, one who has taken international flights, travelled to Gambia before and who has travelled to a number of different countries, would have been more likely than not aware that tobacco allowances applied. I consider it reasonable to infer from the Appellant’s reference to the UK no longer being in the EU, that he was aware that restrictions applied on the importation of goods, and I concluded that his answer (at [21] above) was an attempt to deflect the question. I consider that, even if I were to accept that the Appellant did not know the exact allowances, a reasonable person would have checked the position, even more so in the Appellant’s case as someone who does not smoke and therefore was importing the goods for others/for resale.[40]My conclusion is reinforced by the Appellant’s own evidence that he queried when buying the goods whether there was a restriction on the amount he could purchase. In my view, this indicates that the Appellant clearly recognised the substantial amount he was purchasing. The overall quantity of HRT found in the Appellant’s possession was considerably in excess (141 times over the limit) of his permitted personal tobacco allowance when travelling to the UK and I find it highly unlikely that he believed that he would be permitted to bring such significant quantities of tobacco into the UK without declaring them and having to pay UK excise duty, particularly when he had queried whether there were restrictions on the amount that could be purchased.[41]I concluded that, subjectively, the Appellant knew that he was carrying cigarettes in excess of his duty-free allowance and he did not intend to declare them on arrival in the UK. I have no doubt that this conduct was dishonest by the standards of ordinary decent people.

Mitigation of the penalty

[42]Under section 29(1) of the Finance Act 2003 (in respect of customs duty) and section 8 (4) of Finance Act 1994 (in respect of excise duty) HMRC and on appeal, the Tribunal “may reduce any penalty to such amount (including nil) as they think proper”. There is no statutory guidance on what principles should be applied in determining any reduction.[43]There was no response to HMRC’s enquiry letters and consequently Mr Doherty gave no reduction to the penalty for cooperation or disclosure.[44]I take the view that HMRC’s approach to mitigation in this case failed to take account of the literacy challenges faced by the Appellant. I make no criticism of HMRC in this regard, as this was a factor unknown to them. However, I accept that the Appellant was reliant on others to assist with a response to HMRC’s letters which took time, and that he was unable to avail himself of the assistance offered in the enquiry letter as he was unable to read the letter sufficiently to recognise that it offered such assistance.[45]I take into account, as Mr Doherty accepted, that the Appellant co-operated with Border Force at the point of interception and that he did respond to HMRC’s reminder letter, albeit after the deadline and with limited information.[46]Taking into account the above, on balance I have concluded that there should be some mitigation for both disclosure and co-operation and that a 15% reduction for the element of co-operation and a 15% reduction for the element of disclosure is appropriate in respect of the penalty assessed.[47]Finally, in respect of any inability to pay or insufficiency of funds, the legislation which I must apply (see section 8(5) Finance Act 1994 and section 29(2) and (3)(a) of Finance Act 2003) expressly states that these shall not be taken into account when considering whether there should be a reduction in the penalty and I have not done so.[48]For the reasons set out above, I allow the appeal but only to the extent provided above in relation to allowing a 15% reduction for cooperation and a 15% reduction for disclosure in respect of the penalty assessed. HMRC should recalculate the total revised level of the penalty and write to the Appellant accordingly.[49]The appeal is therefore allowed in part.

Right to apply for permission to appeal

[50]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. Release date: 05 August 2026