[2011] UKFTT 177 (TC)
TC01046
Appeal number:TC/2009/14798, TC/2009/13736, TC/2009/13810 & TC/2009/12823
Refusal of Restoration – Whether decisions not
to restore cigarettes and hand rolling tobacco were reasonable in the
circumstances – Whether exceptional circumstances exist
FIRST-TIER TRIBUNAL
TAX
MR
JAMES WILLIAMS & MR MATTHEW BROWN
AND
MR
JAMES WILLIAMS, MR MATTHEW BROWN
&
MR ASHLEY HARVEY Appellants
-
and -
UK BORDER AGENCY
(formerly THE
COMMISSIONERS FOR HER MAJESTY’S
REVENUE
AND CUSTOMS) Respondents
TRIBUNAL: Ms. J. Blewitt (Judge)
Ms. B. Tanner (Member)
Sitting in public at Birmingham on 2 March 2011
Mr Mayo for the Appellants
Mr Gregory, Counsel,
instructed by the General Counsel and Solicitor to HM Revenue and Customs, for
the Respondents
© CROWN COPYRIGHT
2011
DECISION
The Appeals
1. These
appeals concern the decisions of the Respondents not to restore cigarettes and
hand rolling tobacco to the Appellants. We heard the two cases involving four
seizures together due to the link between the Appellants.
2. The
refusals to restore the goods arise out of the following seizures:
(a)
3,200 Cigarettes and 3kg of hand rolling tobacco seized from Mr Brown on
7th May 2009 at East Midlands Airport;
(b)
3,200 Cigarettes and 3kg of hand rolling tobacco seized from Mr Harvey
on 7th May 2009 at East Midlands Airport;
(c)
3,200 Cigarettes and 3kg of hand rolling tobacco seized from Mr Williams
on 7th May 2009 at East Midlands Airport; and
(d)
3kg of Amber Leaf hand rolling tobacco seized from Mr Williams and Mr
Brown on 21 June 2009 at Dover Eastern Docks.
3. The
decisions not to restore the goods were communicated to the Appellants as
follows:
(a)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco
seized from Mr Brown on 7th May 2009 at East Midlands Airport by letter to the Appellant dated 7 July 2009;
(b)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco
seized from Mr Harvey on 7th May 2009 at East Midlands Airport by letter to the Appellant dated 4 June 2009;
(c)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco
seized from Mr Williams on 7th May 2009 at East Midlands Airport by
letter to the Appellant dated 8 June 2009; and
(d)
In respect of the 3kg of Amber Leaf hand rolling tobacco seized from Mr
Williams and Mr Brown on 21 June 2009 at Dover Eastern Docks by letter to the
Appellants dated 30 July 2009.
4. The
Appellants requested reviews of each of the decisions listed at paragraph 3
above. Following reviews, the decisions not to restore the goods were upheld in
respect of each seizure and communicated to the Appellants as follows:
(a)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco
seized from Mr Brown on 7th May 2009 at East Midlands Airport by letter to the Appellant dated 3 August 2009;
(b)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco
seized from Mr Harvey on 7th May 2009 at East Midlands Airport by letter to the Appellant dated 7 July 2009;
(c)
In respect of the 3,200 Cigarettes and 3kg of hand rolling tobacco seized
from Mr Williams on 7th May 2009 at East Midlands Airport by letter
to the Appellant dated 17 July 2009; and
(d)
In respect of the 3kg of Amber Leaf hand rolling tobacco seized from Mr
Williams and Mr Brown on 21 June 2009 at Dover Eastern Docks by letter to the
Appellants dated 14 September 2009.
Preliminary points
5. Mr
Harvey did not attend the hearing, but was represented by Mr Mayo. Mr Brown
attended the hearing but due to illness felt unable to participate. No
adjournment was sought and Mr Mayo informed the Tribunal that he intended to
represent the three Appellants and address us by way of submissions.
6. Mr
Mayo understood that the jurisdiction of the Tribunal was limited to looking at
the decisions not to restore and whether the decisions had been reasonable. Mr
Mayo clarified that he did not intend to argue that the goods should be
restored on the basis of personal use, but submitted that extenuating
circumstances existed such as would render the refusals to restore the goods
unreasonable. Although not specified within the grounds of appeal, we
consented, with the agreement of Mr Gregory, to hear Mr Mayo’s submissions.
7. It
may assist at this point to deal with the two dates of seizures separately.
6th May 2009 at East Midlands Airport
8. The
Appellant Mr Williams appealed by way of Notice of Appeal dated 2 August 2009.
The grounds of appeal are that the Respondents seized the Appellants EU tax
paid goods and that the Appellant had not exceeded the guideline allowance of
3,200 cigarettes and 3kg of hand rolling tobacco. The Appellant asserts that
the goods should be returned as they were for personal use.
9. The
Appellant Mr Brown appealed by way of Notice of Appeal dated 29 August 2009.
The grounds of appeal are that the Respondents claim that the goods were for re-sale
and not for personal usage. The Appellant states that the guideline allowance
had not been exceeded, EU taxes had been paid in Spain and that the goods were
for personal use.
10. The Appellant Mr
Harvey appealed by way of Notice of Appeal dated 15 September 2009. The grounds
of appeal are that the guideline allowance had not been exceeded, that the
goods were for personal use, that the Appellant was confused when interviewed
at the Airport and that the Appellant had not travelled abroad for approximately
5 years prior to this trip.
Facts
11. The Appellants
were stopped by Customs Officers on arrival at East Midlands Airport from Spain.
12. Mr Williams told
the Officer who stopped him that he had been to Malaga for 1 ½ days, that he
had one holdall with him and that his two co-travellers had already proceeded
through the “Nothing to declare” area. The Officer searched Mr Williams’
luggage and seized 3kg of Golden Virginia hand rolling tobacco, 3000 Mayfair cigarettes and 200 Silk Cut cigarettes. Mr Williams confirmed that the goods were
for himself and his family and chose to stay for interview. When asked why he
had told the Customs Officer that his co-travellers had gone through the area
when they were standing next to him, Mr Williams stated he had not realised. Mr
Williams stated he had travelled to Malaga a couple of months earlier when he
had brought approximately 20 packets of Golden Virginia hand rolling tobacco,
30 boxes of Mayfair cigarettes and 1 box of Silk Cut cigarettes back into the
UK. Mr Williams stated he had travelled abroad 5 other times in the past 12
months and that he was “between jobs” suffers from depression and gets “money
from the sick really”. Mr Williams gave a consumption rate and stated that the
trip was booked by one of his co-travellers. Mr Williams stated he had taken
approximately £200 abroad with him and explained, when questioned about the
costs of the goods being in the region of £500 to £600 that he gets confused.
13. Mr Harvey stated
when stopped that he was travelling with two others and that he had been to Spain for a job interview at a bar. Mr Harvey elected to stay for interview during which he
stated that he was a self-employed carpenter/joiner but was unemployed at the
time of the trip and relied on benefits of £90 per fortnight and limited
savings. Mr Harvey stated that he had two different brands of cigarettes as
some were for his mother and some for his girlfriend; the hand rolling tobacco
belonged to him and he smoked 10 to 20 cigarettes a day. Mr Harvey stated he
had paid cash for the goods.
14. Mr Brown stated
when stopped that he had 3,200 Mayfair cigarettes, 1 ½ kg of Drum hand rolling
tobacco, 1 kg Amber leaf hand rolling tobacco and ½ kg of Samson hand rolling
tobacco. Mr Brown confirmed that he had been stopped the previous December at Heathrow Airport when he had imported the same amount of goods. Mr Brown stated that he
expected the goods to last 6 months and that he had 1,400 cigarettes remaining
from the previous importation. Mr Brown elected to stay for interview during
which he stated that his consumption rate was 30 cigarettes per day and that he
rolled between 180 and 200 cigarettes from a 50g pouch of tobacco. Mr Brown
recalled he had been abroad once earlier in the year and a few times the
previous year. Mr Brown recalled, when reminded, that he had been away twice
the previous December. Mr Brown stated he was not employed and relied on
benefits. It was clarified that the goods purchased had cost 570 Euros and Mr
Brown stated that he had received money for his 21st birthday which
was coming up and had afforded previous trips by borrowing money.
15. In each case the
Officers were satisfied that the goods imported were for commercial use and
seized the goods. The Appellants did not challenge the legality of the seizures.
Review Decisions
16. Mr Collins was
the Officer responsible for reviewing the decision not to restore Mr Williams’
goods. In a letter to the Appellant dated 17 July 2009 Mr Collins set out his
considerations of the case and upheld the decision not to restore the goods. Mr
Collins took account of correspondence from the Appellant dated 10 May 2009 and
supporting evidence attached in the form of a copy of a prescribed drug
prescription. Mr Collins concluded that Mr Williams had attempted to mislead
the Customs Officer who stopped him by stating that his co-travellers had gone
through the nothing to declare channel. As a result Mr Collins questioned the
Appellant’s credibility and decided that the Appellant’s assertion that he did
not realise his co-travellers were standing next to him was completely
unreasonable. Mr Collins considered the frequency of the Appellant’s travel and
the discrepancies as to how the Appellant could fund both the trips and excise
goods on such a limited income. Mr Collins concluded that finance must come
from an unknown source. Mr Collins noted the Appellant’s contention that he was
confused by the questions asked and did not find this to be a convincing
explanation for clear inconsistencies. Mr Collins reviewed the consumption rate
given by the Appellant and concluded that there was an attempt to explain away
the volume of the purchase. Mr Collins considered the answers given by the
Appellant when interviewed at the Airport, in particular his uncertainty as to
how he knew his co-travellers and his concession that many regulars of his
local public house go to Spain to import excise goods. Mr Collins took into
account the Appellant’s correspondence in which it was asserted that he suffers
from anxiety and takes medication as a result. The Officer formed the opinion
that there had been no attempt by the Appellant to explain to the interviewing
officer that he was not fit to answer questions and that the Appellant signing
the officer’s notes as true and accurate without comment or amendment reinforced
this conclusion. The Officer concluded that as the Appellant had not claimed
that the goods were to be passed to others on a “not for profit” reimbursement
basis, then they must be held for profit. The decision not to restore the goods
was upheld as fair, reasonable and proportionate in the circumstances.
17. Following the
Appellant’s appeal to the Tribunal, the Respondents requested, by letter dated
16 September 2009, further and better particulars of the grounds of appeal. The
Reviewing Officer considered the response received from the Appellant which
stated that he had combined alcohol and medication during the trip which he had
subsequently been advised by his doctor causes side effects of confusion and
slowed reactions. The Appellant attributes any delay in his responses at
interview to the side effects and requests that the interview is disregarded.
The Officer concluded that his decision not to restore the goods was unaffected
by this further information.
18. Mr Crouch
reviewed the decision not to restore Mr Harvey’s excise goods. Mr Crouch took
account of correspondence from the Appellant dated 9 May 2009 which stated that
the goods were for personal use and seizure was unwarranted. Mr Crouch formed
the view that the Appellant’s answers when interviewed at the Airport had been
vague and that to date no evidence had been received from the Appellant to show
how the goods had been financed bearing in mind his limited income of £90 per
fortnight. Mr Crouch noted that the Appellant had provided no evidence to
support his assertion that he had gone to Spain for a job interview. Mr Crouch
concluded that the sole purpose of such a short trip was a joint enterprise
with the co-travellers to purchase and import excise goods. The Officer
concluded that as the Appellant had not claimed that the goods were to be
passed to others on a “not for profit” reimbursement basis, then they must be
held for profit. The decision not to restore the goods was upheld as fair,
reasonable and proportionate in the circumstances.
19. Following the
Appellant’s appeal to the Tribunal, the Respondents requested, by letter dated
24 September 2009, further and better particulars of the grounds of appeal. The
Reviewing Officer considered the response from the Appellant dated 4 October
2009 which stated that the trip and goods had cost, in total, approximately
£950 which was “all I had in the world”. The Appellant asserted that the severe
emotional stress caused by the potential loss his goods severely impaired his
answers in interview and caused him to give incorrect answers. Mr Harvey states
that he would like to take back his answers and have the opportunity to cross
examine HMRC at the Tribunal hearing. This information was considered by the
Reviewing Officer, who concluded that his decision not to restore the goods
remained unaffected.
20. Mr Harris reviewed
the decision not to restore Mr Brown’s excise goods. No further information was
provided by Mr Brown in support of his request for review of the decision not
to restore the excise goods. Mr Harris concluded that it was implausible, given
the Appellant’s limited income, that he would spend a significant amount of
money on goods, which the Appellant asserted he would give away. The Officer
found that the consumption rate stated by the Appellant when interviewed did
not stand up to critical examination. The Officer noted the Appellant assertion
that he had borrowed funds from others to finance his trips abroad and the
purchase of excise goods and found that further importation when, by the Appellant’s
own admission, he still had excise goods left from a previous trip was not a
credible account. The Officer concluded that as the Appellant had not claimed
that the goods were to be passed to others on a “not for profit” reimbursement
basis, then they must be held for profit. The decision not to restore the goods
was upheld as fair, reasonable and proportionate in the circumstances.
21. Further
information provided by the Appellant by letter dated 5 October 2009 was
considered by the Reviewing Officer. The Appellant asserted that he was only 20
years old at the time of interview and “knowing that my every word was being
recorded, I knew that not only was I going to lose my goods, I thought that I
was going to be charged with something and maybe go to prison.” The Appellant
stated that his state of mind in interview was affected by emotional stress and
that he now wishes to retract his answers. This information was considered by
the Reviewing Officer, who concluded that his decision not to restore the goods
remained unaffected.
Submissions
22. The Tribunal
considered the submissions of Mr Mayo on behalf of the Appellants and each
point will be addressed in turn.
Mr Brown
23. Mr Mayo
submitted that the Respondent’s statement of case is inaccurate in stating that
Mr Brown had his excise goods seized on 7th May 2009. The
Respondents submitted that the statement of case is remedied by referring to 6th
May 2009 and that little hangs on this point in respect of the issue to be
determined.
24. We considered
the submissions and noted that the statement of case goes on to describe that
the Appellant was stopped on 6th May 2009 and that the goods were
seized after interview. It is clear to us, from the evidence provided, that the
interview with the Appellant concluded shortly before midnight, after which the
goods were seized. We noted the Reviewing Officer’s decision referred to the
Appellant being stopped on 6th May 2009 and concluded that there had
been no inaccuracy in the information considered by the Officer. We did not
accept that a mistake as to the date of seizure within the statement of case,
remedied later within the same document, rendered the decision not to restore
the goods unreasonable nor did we find that it amounted to exceptional
circumstances.
25. Mr Mayo
submitted that when Mr Brown was taken away for tape recorded interview at the
Airport, such was the concern of all three Appellants that their answers to the
officers were affected. Mr Brown had been so nervous that his answers in
interview made little sense as a result of his anxiety. Mr Williams, who was on
medication at the time of being stopped, was severely agitated and Mr Harvey
was concerned that Mr Brown was being taken to prison.
26. Mr Gregory
submitted in response that the Tribunal’s jurisdiction was to look at whether
exceptional circumstances apply to any of the Appellants and that the conduct
of the Appellants in interview does not fall within our jurisdiction as it
relates to the legality of seizure.
27. We accepted Mr
Gregory’s submissions on this point and found as a fact that if the Appellant
had wanted to challenge the content of his interview then the correct forum
would have been the Magistrates’ Court. The Appellant had initially lodged a
Notice of Claim against the legality of the seizure but by letter dated 6 July
2009 had withdrawn his claim without explanation. We found as a fact that we
had no jurisdiction to re-open the issue of personal use. We noted that
following his appeal to the Tribunal, the Appellant had explained in a letter
dated 5 October 2009 the emotional stress he had suffered during interview and
the fact that he would wish to retract his answers and that this information
had been considered by the Reviewing Officer who remained of the view that the
excise goods should not be restored. We found as a fact that the Reviewing
Officer had been fair in considering this new information and that his decision
not to restore remained reasonable. We did not accept that the Appellant’s
written submissions to the Tribunal, uncorroborated by any oral evidence from
Mr Brown, amounted to exceptional circumstances.
28. Mr Mayo referred
the Tribunal to the Review Decision and submitted that the Officer had taken
into account answers given by Mr Brown in interview which ought to have been
disregarded due to the stressful conditions of interview.
29. For the same
reasons as set out at paragraph 27 above, we did not accept that that the
stress Mr Brown alleged he was suffering amounted to exceptional circumstances
and we found as a fact that the answers given by Mr Brown in interview were a
relevant consideration for the Officer in reaching his decision.
30. Mr Mayo
submitted that the Officer had taken into account Mr Brown’s income in reaching
his decision not to restore the goods, which was an irrelevant factor and had
not accounted for Mr Brown’s savings.
31. We rejected Mr
Mayo’s submission; we found as a fact that the Officer was entitled to look at
the Appellant’s financial situation in assessing the credibility of Mr Brown
and the account he gave in interview as to how the trip and excise goods were
funded. We found as a fact that this was a highly relevant consideration for
the Officer in reaching a conclusion as to whether the goods should be
restored. We noted that at the date of this hearing, over 1 year since seizure,
Mr Brown had failed to provide any further evidence in support of savings. In
the absence of any such evidence, we did not accept the submissions made by Mr
Mayo. We found that the Officer had taken into account relevant information and
that his decision not to restore the Appellant’s excise goods was reasonable.
32. Mr Mayo referred
the Tribunal to the Statement of Case which noted that the Appellant “...was
travelling with Ashley Harvey and James Williams who also had a similar amount
of tobacco products seized.” Mr Mayo submitted that this was an irrelevant
consideration and contradicted the Reviewing Officer’s statement that each case
is considered on its own merits.
33. We found this
submission to be misconceived. The statement of case sets out as part of the
facts that the Appellants were travelling together. This was not in dispute by
the Appellant. We found as a fact that the Reviewing Officer had taken the
correct approach in reaching his decision. We found that the Officer was
entitled to consider whether the Appellant was travelling alone or in company
in assessing whether the trip had been a joint commercial venture. We found
that it was also relevant for the Officer to consider whether any exceptional
circumstances applied to Mr Brown’s case, which may not apply to the
co-travellers. We therefore found that the Officer had considered all relevant
information, disregarded irrelevant matters and that his decision was
reasonable.
34. Mr Mayo made
submissions on the Respondent’s statement of case which summarised the
Appellant’s contentions in interview, namely; that the goods were for personal
use, that he had previously imported excise goods and been stopped by customs,
that his statement that he had not been abroad twice the previous December was
shown to be false, that he was unemployed, reliant on benefits and that he had
paid for the trip and goods by money received for his 21st birthday.
Mr Mayo submitted that the case for the Respondents was weak and that these
considerations were irrelevant.
35. We rejected this
submission; we found as a fact that the information as to previous
trips/importations and income were proper avenues to be explored in interview
and that the Officer was entitled to take the answers into account in his
Review as relevant considerations to the restoration issue.
36. Mr Mayo’s final
submission in respect of Mr Brown related to the awarding of costs to his
co-travellers due to the Respondent’s late service of their statement of case.
Mr Mayo submitted that there had been an error by the Tribunal and that Mr
Brown ought to have received costs but had not.
37. This was an
entirely separate matter which had been dealt with by a different Judge. We
concluded that there was no appeal before us relating to costs and we had no
jurisdiction to consider the matter. We found that it bore no relevance to the
issue of restoration which we had to determine.
Mr Williams
38. Mr Mayo
concisely reiterated his submission that the Respondent’s statement of case is
inaccurate in stating that the excise goods were seized on 7 May
2009 when in fact the goods were seized on 6 May 2009.
39. For the reasons
set out at paragraph 24 above, we did not accept that a mistake as to the date
of seizure within the statement of case, remedied later within the same
document, rendered the decision not to restore the goods unreasonable nor did
we find that it amounted to exceptional circumstances.
40. Mr Mayo
submitted that the statement of case should be ruled inadmissible as it was
ordered to be served by 16 December 2009. Mr Mayo produced the Appellant’s copy
of the statement of case which was dated 16 December 2009 and submitted that it
had been received late.
41. Mr Gregory for
HMRC could provide no explanation for the date on the Appellant’s copy of the
statement of case as those within the possession were dated 4 December 2009, as
were the copies received by the Tribunal. Mr Gregory submitted that there was
no power to rule the statement of case inadmissible and that even if it were,
the evidence outlined within the document could be given orally by the
Reviewing Officer.
42. There was no
reason apparent to us as to why the Appellant’s statement of case contained a
different date to all other copies available at the hearing. We found that
there was no evidence upon which we could find that the Appellant had received
his copy late or, if that was the case, that any prejudice had been caused to
him. We noted that some of Mr Mayo’s submissions related to the statement of
case and therefore could not see that it would assist him for the document to
be ruled inadmissible. We accepted Mr Gregory’s submission that even if the
Respondents were precluded from relying on the document, the issue to be
determined was unaffected. The issue before us was whether the Reviewing
Officer’s decision was reasonable in the circumstances or whether exceptional
circumstances applied to Mr Williams’ case.
43. Mr Mayo referred
us to the Respondent’s statement of case which stated that following a request
for further information from the Appellant in support of his Appeal to the Tribunal,
a letter was received which was considered by the Reviewing Officer. Mr Mayo
submitted that the Officer had considered the wrong letter; that the Appellant
had sent a letter to the Tribunal dated 8 October 2009 and a letter to the
Respondents dated 4 October 2009 and that the letter referred to in the
statement of case was that of 8 October 2009.
44. We carefully
considered the two letters written by the Appellant. The statement of case
quotes the Appellant’s letter to the Tribunal dated 8 October 2009, although no
date is specified. The statement of case goes on to say that the Reviewing
Officer considered the Appellant’s submissions and his decision remained
unaffected. We noted that the same points are raised in both letters, namely
that the Appellant was taking prescribed medication for anxiety at the time he
was stopped, that he had consumed alcohol which his doctor subsequently advised
causes side effects of confusion and slowed reactions and which the Appellant
asserts affected his responses in interview. The Appellant states in both
letters that it may have appeared to the interviewing officer that he was
“delaying” his responses to “think of an answer” which may have impacted on the
decision not to restore the excise goods. The Appellant states that his answers
in interview cannot be relied upon due to his unfit state.
45. We took the view
that as both letters contained the same information, although one appeared to
relate to the trip to France and one to the trip to Spain. In our view it made
little practical difference which letter the Reviewing Officer had received and
considered. It cannot be said that the Reviewing Officer disregarded relevant
information or took into account irrelevant information as he had considered
the Appellant’s assertions in support of his appeals. We found that the
decision reached by the officer was reasonable and we did not accept that the
Appellant’s contentions amounted to exceptional circumstances.
46. Mr Mayo
submitted that the Reviewing Officer had conducted a poor review on the basis
that reference is made in the review decision to the fact that Mr Williams was
travelling with Mr Harvey and Mr Brown, which contradicts the assertion that
each case is considered on its own merits.
47. For the reasons
set out at paragraph 33 above, we found that the Officer was entitled to
consider whether the Appellant was travelling alone or in company in assessing
whether the trip had been a joint commercial venture. We found that it was also
relevant for the Officer to consider whether any exceptional circumstances
applied to Mr Williams’ case, which may not apply to the co-travellers. We
therefore found that the Officer had considered all relevant information,
disregarded irrelevant matters and that his decision was reasonable.
48. Mr Williams was
called to give evidence to the Tribunal. He confirmed that the information
given by Mr Mayo accurately reflected his position. There was no cross
examination by the Respondents.
Mr Harvey
49. Mr Mayo contended
that the Respondent’s statement of case is inaccurate in stating that the
excise goods were seized on 7 May 2009 when in fact the goods were
seized on 6 May 2009.
50. For the reasons
set out at paragraphs 24 and 39 above, we did not accept that a mistake as to
the date of seizure within the statement of case, remedied later within the
same document, rendered the decision not to restore the goods unreasonable nor
did we find that it amounted to exceptional circumstances.
51. Mr Mayo
submitted that exceptional circumstances applied to Mr Harvey’s case as he had
been sitting near Mr Williams when asked initial questions at the airport and
that they had both seen Mr Brown taken away from the area and believed he may
be taken to prison. Mr Mayo submitted that the Officer had taken into account
answers given by Mr Harvey in interview which ought to have been disregarded
due to the stressful conditions of interview.
52. We did not
accept that Mr Mayo’s submissions to the Tribunal, uncorroborated by any oral
evidence from Mr Harvey, amounted to exceptional circumstances. We did not
accept that that the alleged stress of Mr Harvey amounted to exceptional
circumstances and we found as a fact that the answers given by Mr Harvey in
interview were a relevant consideration for the Officer in reaching his
decision.
53. Mr Mayo referred
us to the Respondent’s statement of case and submitted that the summary of Mr
Harvey’s responses in interview were insufficient grounds for non restoration.
The statement of case summarised that Mr Harvey had gone to Spain for a job
interview but was unable to provide any evidence in support of this, that the
goods were for personal use and gifts, that he had paid cash, was unemployed
and received benefits and that he was a smoker although he could not say how
many cigarettes he could get from a packet of tobacco.
54. We noted Mr
Mayo’s submission that the Appellant had gone to Spain for a job interview and
that at the time he was stopped, he was unable to call the bar where he hoped
to find employment due to the late hour, and was therefore unable to provide
verification to the interviewing officer. Mr Mayo also submitted that the
Officer had not taken into account the Appellant’s savings from previous
self-employment. Mr Mayo explained that Mr Harvey had been confused in
interview as he did not consider that cigarettes are made from tobacco.
55. At the time of
this hearing, Mr Harvey had failed to provide any further evidence in support
of his assertions. Mr Harvey did not attend the hearing and therefore we did
not hear oral evidence from him. In the absence of any supporting evidence, we
did not accept the submissions made by Mr Mayo. We found that the Officer had
taken into account relevant information and that his decision not to restore
the Appellant’s excise goods was reasonable. We did not find that there was any
evidence upon which we could conclude that there were exceptional
circumstances.
56. Mr Mayo submitted
that the Reviewing Officer was wrong to consider the fact that Mr Harvey had
co-travellers and conclude that there had been a joint enterprise.
57. For the reasons
set out at paragraphs 33 and 47 above, we found that the Officer was entitled
to consider whether the Appellant was travelling alone or in company in
assessing whether the trip had been a joint commercial venture. We found the
Officer’s conclusion that there had been a joint enterprise reasonable in the
circumstances. We found that it was relevant for the Officer to consider
whether any exceptional circumstances applied to Mr Harvey’s case, which may
not apply to the co-travellers. We therefore found that the Officer had
considered all relevant information, disregarded irrelevant matters and that
his decision was reasonable.
58. Mr Mayo
submitted that the Reviewing Officer was incorrect in asserting that there had
been no claim by Mr Harvey that the goods were to be passed on to others on a
“not for profit” reimbursement basis as he had stated in interview that some of
the goods were gifts for his mother and girlfriend. Mr Mayo invited the
Tribunal to accept his interpretation that this was a contradiction by the
officer.
59. The Tribunal
found that Mr Mayo was mistaken in his interpretation of the Officer’s
statement. “Not for profit” reimbursement would involve Mr Harvey being
recompensed for the goods, at cost price. This was not the assertion made by Mr
Harvey in interview when he stated he did not expect to receive any money for
the goods. We found that the Officer had not been contradictory in his Review
Decision and we rejected Mr Mayo’s submission.
21 June 2009 at Dover Eastern Docks
60. The Appellants jointly
appealed by way of Notice of Appeal dated 14 September 2009.
61. The grounds of
appeal in respect of Mr Williams are that he was taking prescribed medication
(copy enclosed) at the time of his interview and had consumed alcohol while on
a day trip to France. The medication should not be taken with alcohol and as a
result Mr Williams asserts he was unfit for interview and that the decision to
stay for interview should not have been taken by him, but by the customs
officer’s supervisor. Mr Williams states that his answers in interview were
incorrect.
62. Mr Brown states
as his grounds of appeal that he had been assaulted in France the evening before returning to the UK and as a result was kept in hospital overnight (record
enclosed confirming this). Mr Brown states that he was still confused and did
not know what he was saying when interviewed by the customs officer.
Facts
63. The Appellants
were stopped on 21 June 2009 by Customs Officers on arrival at Dover Eastern
Docks from Calais, France. When initial questions were asked by customs
officers, the Appellants explained that they had been due to return by coach
the previous day, but due to forgetting to take account of the time difference
in France, they missed the coach. Mr Brown was assaulted during the evening and
stayed in hospital overnight. Mr Brown stated he had no cigarettes or tobacco
with him. Mr Williams stated he had purchased cigarettes and tobacco for his
girlfriend; initially he could not recall what type of tobacco but subsequently
stated it was Amber Leaf. Mr Williams stated that the receipt for the goods had
been in Mr Brown’s wallet, which had been stolen when he was assaulted. Mr
Williams stated he had taken approximately £500 on the trip, that his
girlfriend had given him approximately £250 for the tobacco and that he was
currently in receipt of sickness benefit. Mr Williams stated he was a chain
smoker and that 1 pouch of tobacco would last him for 1 week.
64. 3kg of Amber
Leaf hand rolling tobacco from Belgium was seized from Mr Williams’ luggage. Mr
Williams could not recall having been to Belgium, but Mr Brown stated that Mr
Williams had purchased the tobacco there.
65. Mr Williams
indicated that he did not wish to stay for interview as he was taking
medication. When the Officer explained that the goods would be seized and an
interview arranged for a later date, Mr Williams stated that he needed the
goods for his girlfriend, that he was fit to be interviewed and wished to stay
for questioning.
66. In interview Mr
Williams stated he had not taken his medication for the day, that he had been
unemployed since December 2007, that his income was approximately £320 per
month and that he had received money from his family for Christmas. Mr Williams
stated that he smoked about 3 pouches of tobacco a week and that he had
previously stated less as he was trying to reduce the amount he smokes. Mr
Williams stated that half of the tobacco was his, but that it was jointly
owned. He stated he did not know the cost of the tobacco as he was dyslexic and
admitted that he had previously had goods seized.
67. The goods were
seized, the officer being satisfied that they were held for a commercial
purpose.
68. By letter dated
10 July 2009 Mr Williams requested restoration of the goods. A supporting
statement asserted that he wished further information to be considered. The
information set out stated that he had been confused in interview due to mixing
his medication with alcohol and that he had been embarrassed to tell the
officer that the goods belonged to him and his boyfriend, Mr Brown.
69. By letter dated
11 July 2009 Mr Brown requested restoration of the goods. Mr Brown provided a
supporting statement in which he asserted that he owned half of the seized
tobacco, which was for personal use due to the fact that customs had seized his
tobacco on a previous trip. Mr Brown explained that he was robbed during the
night and taken to hospital. Due to his injuries, he stated that Mr Williams
had carried their bag at Dover and was slightly behind Mr Brown when he was
stopped by officers. Mr Brown stated he had tried to return to Mr Williams but was
prevented by an officer and told to wait outside.
70. The Respondents
refused to restore the goods by letter dated 30 July 2009. By letter dated 16
August 2009, the Appellants jointly requested a review of the decision not to
restore the goods, providing medical bills to show that Mr Brown received
hospital treatment in France.
Review Decision
71. Mr Aston was the
UK Border Agency officer who reviewed the decision not to restore the excise
goods to the Appellants.
72. Mr Aston
reviewed the circumstances of the seizure and Mr Williams’ interview with the
customs officer. Mr Aston took into account the letters dated 10 July 2009 and
11 July 2009 requesting restoration and the information contained therein, and
letters dated 31 July 2009 and 16 August 2009 which provided Mr Brown’s
hospital bills from France.
73. Mr Aston
concluded that when initially questioned, both Appellants were present and had
lied to Customs officers; Mr Brown by stating he had no tobacco and Mr Williams
by stating that he had cigarettes and tobacco for his girlfriend. This was
subsequently confirmed by the Appellants to be untrue as later correspondence
from the Appellants to the Respondents asserted that half of the goods belonged
to Mr Brown and not to Mr Williams’ fictitious girlfriend. Mr Aston noted that
Mr Williams persisted with the lie in his interview.
74. Mr Aston
considered Mr Brown’s assertion that Mr Williams had been behind him when
stopped and that he had been prevented from returning to his friend. Mr Aston
concluded that this too was a lie as both Appellants had been present when
initial questions had been asked by the Customs officer.
75. Mr Aston
considered the fact that both Appellants had been stopped by Customs officers
previously and therefore knew, or ought to have known, the importance of being
truthful with officers. Mr Aston formed the view that the credibility of the
Appellants had been severely undermined in view of the lies to Customs.
76. Mr Aston
considered the reasons why the goods had initially been seized and accepted
that subsequent information went some way to explain why Mr Williams had been
vague as to the type of tobacco he had, the cost, lack of receipt and money
received from a non-traveller. However, Mr Aston noted that the information
provided by the Appellants did not explain why they had lied when stopped.
77. Mr Aston
considered Mr Williams’ financial situation as compared against the number of
admitted trips abroad he had taken. Mr Aston formed the view that to travel so
frequently on such low income stretches credulity and concluded that Mr
Williams’ assertion that he had given goods from previous trips away, when his
income was so low, was implausible. Similarly in respect of Mr Brown, Mr Aston
noted that he is man of limited financial means and questioned how he could
afford to fund numerous trips abroad.
78. Mr Aston
considered the inconsistent accounts given by Mr Williams as to his smoking
habits and did not accept that he could have been so confused by the questions
that his confusion accounted for the discrepancies.
79. Mr Aston paid
particular regard to the information supplied by both Appellants in respect of
Mr Williams’ medical condition. Mr Aston noted that the officer made a number
of attempts to stop the interview when he was made aware of Mr Williams’
condition, but had continued the interview at Mr Williams’ insistence. The
Officer concluded that his decision not to restore the goods was unaffected by
this information.
80. Mr Aston concluded
that the tobacco was imported for a commercial purpose and upheld the decision
not to restore the goods.
Submissions
81. On behalf of
both Appellants, Mr Mayo submitted that the amount of tobacco imported was
below the guideline figure of 3kg as each Appellant owned 1 ½ kg and therefore
should not have been seized.
82. We rejected this
submission; the guidelines have no legal status and act only as an indicator. We
accepted that it is entirely plausible that small quantities can be imported
for commercial use just as large quantities can be imported for personal use. We
found that the Reviewing Officer was entitled to consider the surrounding
circumstances of seizure in addition to the amount of tobacco imported.
83. Mr Mayo
submitted that the Respondents statement of case was inconsistent in that it
stated the goods were not held for a commercial purpose (at paragraph 5) then
went on to state (at paragraph 15 (g)) that the goods were not imported for
“own use”.
84. We rejected this
submission as it appeared to us that Mr Mayo had misunderstood the wording of
the statement of case, which reads “The Respondents, not being satisfied
that the goods found in Mr Williams’ possession were not held for a
commercial purpose, seized them from him” (emphasis added). We saw no scope
for interpretation of this statement and found its meaning clear. We did not
accept that the Respondents had been inconsistent and did not accept that it
had any bearing on the issue for us to determine.
85. Mr Mayo
submitted that the Reviewing Officer had been wrong to take into account the
seizure on 6th May 2009, having stated in his decision that he would
consider each case on its own merits.
86. We found that Mr
Aston had been entitled to take into account the previous importation, which we
noted had been raised by both Appellants in their supporting statements sent to
the Respondent. We found that the Reviewing Officer had taken the proper
approach of considering all relevant matters and considered whether exceptional
circumstances apply to either individual case.
87. Mr Mayo took us
through the summary of discrepancies in the Appellants’ answers to Customs
Officers as set out in the Respondents’ Statement of Case. Mr Mayo submitted
that Mr Brown had not lied to officers by stating he had no tobacco on him
as Mr Williams was carrying the tobacco. Mr Mayo added that Mr Brown’s
recollection of the seizure was clouded due to the injuries he had sustained
the previous evening.
88. We rejected this
argument, which was unsupported by oral evidence from the Appellant. We found
that Mr Brown had made no claim to the tobacco when stopped and that he had
been present when Mr Williams stated the tobacco was for himself and his
girlfriend, which knew to be untrue as shown by his subsequent correspondence
in which he claims joint ownership of the tobacco. We found that the answers
given by Mr Brown when he was stopped had been a relevant consideration for the
Reviewing Officer in reaching his decision not to restore the goods.
89. Mr Mayo
submitted that when Mr Williams stated to the interviewing officer that Mr
Brown’s tobacco had been stolen, he meant that Mr Brown had one packet of
cigarettes stolen along with his mobile telephone and wallet.
90. We did not
accept this information which was unsupported by any oral evidence from Mr
Williams. We found that the answers given by Mr Williams in interview had been
a relevant consideration for the Reviewing Officer in reaching his decision not
to restore the goods.
91. Mr Mayo
submitted that the interviewing officer had been concerned about Mr Williams’
state of mind and therefore should not have continued the interview. Mr Mayo
submitted that a doctor or senior officer should have assessed the Appellant’s
fitness for interview and that to require him to make a 500 mile round trip on
limited income in order to return for interview was unreasonable.
92. We found that
the Reviewing Officer had properly considered this issue and concluded that Mr
Williams had elected to stay for interview at his own insistence. We found that
the Reviewing Officer’s conclusion was reasonable and that Mr Williams’ state
of mind did not amount to exceptional circumstances.
93. Mr Mayo
submitted that there could be no commercial gain and provided us with his own estimates
as to how much money could be made on the sale of this amount of imported
excise goods. Mr Mayo submitted that in view of the cost of the trip and excise
goods purchased, it was unreasonable to conclude that the goods were imported
for a commercial purpose.
94. We found that
this was an argument that went to the legality of seizure and therefore we had
no jurisdiction to consider the issue of personal/commercial use; the correct
forum being the Magistrates’ Court.
Decision
95. We found that
the officers had, in each case, taken into account all relevant information and
disregarded irrelevant matters. We did not find the decisions, or the manner at
which they were arrived at to be unreasonable or disproportionate. We found that
no exceptional circumstances applied to the Appellants, the circumstances of
the seizures or the decisions not to restore the excise goods in each case.
96. The Appeals are
dismissed.
97. 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.
TRIBUNAL JUDGE
RELEASE DATE: 16 March 2011
