[2009] UKFTT 47 (TC)

	TC00025
					      Appeal Number: Man/08/8110 

FIRST TIER TRIBUNAL

TAX

DECISION NOTICE
Rule 35(2) The Tribunal Procedure (First Tier Tribunal) (Tax Chamber) Rules 2009 

	CHRISTOPHER ROUND	Appellant

	- and -

THE COMMISSIONERS FOR
	HER MAJESTY’S REVENUE and CUSTOMS	Respondents

			Tribunal: MICHAEL TILDESLEY OBE	 (Chairman)
				      ALBAN HOLDEN                        (Member)	  

Sitting in public at Manchester on 3 April 2009

Ella Anderson counsel instructed by Bhatia Best solicitors for the Appellant

Josh Shields counsel instructed by the Solicitor’s office of HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2009

DECISION
The Appeal
1.	The Appellant was appealing against the HMRC’s decision on review dated 20 August 2008 refusing restoration of a Ford Focus Zetek  registration number FD07 LKA (hereinafter known as “the vehicle”).
The Dispute
2.	The Appellant contended that the loss of the vehicle was a disproportionate punishment having regard to the very low intended evasion of duty, the value of the vehicle and his personal circumstances. 
Summary Findings of Fact and Reasons
3.	The Tribunal finds the following facts:
(1)	On 19 May 2008 Customs Officers at the Eastern Car Terminal in Dover intercepted the vehicle driven by the Appellant accompanied by two passengers. The vehicle was found to be carrying 20.2 kilogrammes of tobacco, 2,000 cigarettes, 50 cigarillos, 22.5 litres of wine and 12 litres of Fosters lager.
(2)	The Customs Officers seized the vehicle as it was liable for forfeiture because they were satisfied that the excise goods were being held for a commercial purpose and UK excise duty had not been paid on them.
(3)	The Appellant withdrew his Appeal against the forfeiture of the vehicle to the magistrates’ court.
(4)	There was no challenge to the lawfulness of the seizure.
(5)	The tribunal did not believe the Appellant’s explanation that he purchased the majority of the tobacco for his personal use, and sold the balance at near cost price to his work colleagues.
(6)	The Appellant gave a different explanation when stopped by the Customs Officers on 19 May 2008.
(7)	The Appellant purchased the excise goods found in the vehicle.
(8)	The Appellant’s explanation that his passengers were to refund him the purchase monies for their share of the excise goods was contradicted by the passengers’ answers in interview with the Customs Officers, and the fact that the passengers had not repaid him the monies allegedly due.
(9)	The Appellant travelled to France and Belgium on a regular basis to buy tobacco and other excise goods.
(10)	The quantity of tobacco imported was large, and well in excess of the guideline level of three kilograms for an individual traveller.
(11)	The Tribunal was satisfied that the Appellant purchased all the excise goods found in the vehicle with the intention of selling most of them on at a profit.
(12)	The Appellant’s use of the vehicle for a fraudulent commercial venture went beyond the threshold where the value of the vehicle may be a relevant consideration.
(13)	The non-restoration of the vehicle was a proportionate response to the Appellant’s contravention
(14)	The Appellant gave no convincing evidence of exceptional hardship.  The non-restoration of the vehicle had not seriously affected his employment. The Appellant did not expand upon the difficulties if any caused by the repayment of the loan associated with the vehicle.
Decision
4.	The Tribunal is satisfied that HMRC decision on review dated 20 August 2008 refusing restoration of the vehicle was reasonably arrived at within the meaning of section 16(4) of the Finance Act 1994.  The Tribunal, therefore, dismisses the Appeal and makes no order for costs.

MICHAEL TILDESLEY OBE
CHAIRMAN
   RELEASE DATE:  8 April 2009

Notes
5.	The Tribunal directed that the costs regime which operated prior to 1 April 2009 applied to this Appeal. The Tribunal noted HMRC counsel’s objections to its direction.
6.	A party may apply for full written findings and reasons, and must do so before making an application for permission to Appeal, provided the application is made in writing and received within 28 days after the date that the Tribunal released the decision notice.
7.	A party wishing to Appeal this decision to the Upper Tribunal must seek permission by making   an application in writing to the Tribunal within 56 days of being provided with full written reasons for the decision. An application for permission must identify the alleged error(s) in the decision and state the result the party making the application is seeking.